In The Court of Appeal

(Port Harcourt Judicial Division)

On Thursday, the 28th day of February, 2008

Suit No: CA/PH/EPT/351/2007

Before Their Lordships

 Between

 And

SAULAWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Governorship and Legislative Houses Election Tribunal holden at Umuahia, Abia State which was delivered on 10/7/2007 thereby dismissing the appellants' petition No. ABS/SHA/EPT/8/2007, pursuant to paragraph 3(4) of the Election Tribunal and Court Practice Directions No.2, 2007. The facts and circumstances surrounding this appeal, as could be gleaned from the record of the lower tribunal, are to the effect that on 14/4/07 the 2nd respondent had conducted election into the Abia State House of Assembly. Both the 1st appellant and 1st respondent had contested the said election for Arochukwu State Constituency under the respective platforms of the Peoples Democratic Party (2nd appellant) and Progressive People Alliance (PPA). They contested the said election along with four other candidates sponsored by four different political parties, namely:

(i) Okezie Lawrence of the Action Alliance (AA);

(ii) Thomas N. Ezeikpe of the Action Congress (AC)

(iii) Alex Oji Ekubo of the All Nigeria Peoples Party; and

(iv) Udenyi Okechukwu C of the All Progressive Grand Alliance (APGA), respectively.

At the conclusion of the election, the respondent was declared and returned by the 2nd respondent as the duly elected member of the Abia State House of Assembly representing Arochukwu State Constituency. Not unnaturally, the petitioner was dissatisfied with the result of that election. He accordingly filed a petition on 14/5/07 in the lower tribunal, challenging the declaration and return of the 1st respondent, on the following grounds:

(i) That the 1st respondent was not duly or validly elected or returned by majority of lawful voles cast at the   questioned election of 14th April, 2007 having not scored or polled the highest member or majority of lawful valid votes cast at the election.

(ii) That the declaration election or return of the 1st respondent is undue and invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, 2006 as amended.

The petition was served on the respondents, who accordingly filed their respective replies thereto. Hearing notice was thereafter served upon the parties against the 10/7/07. On that date, the lower tribunal, suo motu, made some observations and came to the conclusion thus:

"The hearing for this day is for this tribunal to consider the status of some of the petitions before it which failed to comply with the law pertaining to hearing the petitions ... We have noted that the petitioner in the petition before us filed his petition on the 14th of May, 2007 and the 1st respondent filed his reply on the 7th of June, 2007. The petitioner then filed his reply on the 23rd of June, 2007. It should be noted that paragraph 12 of the schedule to the Electoral Act 2006, provides that the respondent shall within 14 days of entering appearance file his reply to the petition ....

In the present circumstance, the failure of either party to apply for Form TF007 and TF008 as provided under paragraph 3(2) of the Practice Directions (supra) indicates the lack of seriousness on the part of the petitioner and the respondents. Hence we deem the petition before us as abandoned. It is on record that we have to issue a notice for today's hearing in order to effect the dismissal of the petition before us. For the aforesaid reasons, we hold that this petition is hereby dismissed in accordance with paragraph 3(4) of the Practice Directions (supra). "

See pages 265 - 266 of the record of the lower tribunal. 

As a consequence of the dismissal of the petition thereof, the appellants filed a motion on notice on 25/7/07 in the tribunal seeking an order setting aside the order of dismissal of 10/7/07, and relisting the petition on the cause list for the purpose of hearing same on the merits.

However, prior to the conclusion of the hearing of the motion in question, the appellants filed a notice of appeal on 30/7/07 in the registry of the lower tribunal against the ruling dismissing the petition. At the conclusion of hearing of the motion, the tribunal delivered its ruling on 06/8/07 to the effect, inter alia, thus:

It is pertinent to state that in view of paragraph 3(5) of the Practice Directions we hold that this application is   misconceived and incompetent as the said sub-paragraph 5 -

Dismissal of a petition pursuant to sub-paragraphs (3) and (4) above in final, and accordingly the tribunal or court shall be functus officio. We intended to take up the application in view of the views that we were in error. Having shown that there was no error on our party we hereby dismiss the application for lacking in merit. 

See page 316 of the record.

Instructively, no appeal was filed by the appellants against the 2nd ruling of 06/8/07 in question. The present appeal is predicated upon a total of grounds of appeal with the particulars thereof. Parties have filed and served their respective briefs of argument. Most particularly, the appellants' brief was dated 06/9/07, but filed on 10/9/07. The 1st respondent's brief as well as that of the 2nd-176th respondents were filed on 14/9/07. The 1st respondent has filed a notice of preliminary objection on 12/9/07, which was however incorporated in the said brief thereof. The appellants have equally filed two reply briefs to the 1st respondent's and 2nd - 176th respondents' briefs on 04/10/07 and 08/10/07, respectively.

By virtue of Order 17 rule 5 of the Court of Appeal Rules, 2007, an appellant is required to within 14 days after service of the respondent's brief thereon, file and serve a reply brief which shall deal with all new points arising from the respondents' brief. It is trite that a reply brief may only be filed when an issue of law or argument raised in the respondent's brief calls for a reply thereto.

An appellant is not under any obligation to file a reply brief. However, failure to file a reply brief can be fatal to the appellant's case, if the issues raised in the respondent's brief are substantial, weighty, competent and relevant in law. Otherwise, a reply brief becomes rather otiose. See Dada v. Dosunmu (2006) 18 NWLR (Pt.10l0) 134 at pages 164, paragraphs E - H; 165, paragraphs B - C; and 185, paragraphs E - G, respectively.

Invariably, a respondent intending to raise and rely upon a  preliminary objection to the hearing of the appeal is required, under the rules of this court, to give 3 clear days notice to the appellant before the hearing, setting out the grounds of the objection. See Order 10 rule 1 of the Court of Appeal Rules, 2007. However, where the appellant deems it expedient to respond fully to the objections raised in the respondent's brief, the court has the discretion to deal with the preliminary objection, notwithstanding the respondents' failure to file a notice of preliminary objection as required by rule I of Order 10 (supra). See C.S.S. Bookshops Ltd. v. R.T.M. C.R.S. (supra) at pages 556 - 557 paragraphs G - A. The essence of the exercise of the court's discretion in such desirous circumstances, as manifested in C.S.S. Bookshops Ltd. v. R. T.M. C.R.S. (supra), is undoubtedly predicated upon the principle of substantial justice, as against technical justice. This is because the main preoccupation of a court of law is fundamentally to dispense substantial justice between the parties before it. See Dada v. Dosunmu (supra) at 15 paragraphs F - G.

I have deemed it appropriate, in the circumstance, to first and foremost deal with the preliminary objection raised in the 1st respondent's notice filed on 14/9/07 and the brief thereof filed on 04/10/07. The said preliminary objection is predicated on three grounds, which are to the following effect:

(a) Incompetence of grounds of 2, 3 &4 of the appellants' notice and grounds of appeal.

(b) The appeal is incompetent in that it was filed out of time without leave of the court of appeal.

(c) The present appeal constitutes an abuse of the judicial process.

The argument of the learned counsel regarding the first ground of the objection is to the effect that grounds 2, 3 & 4 of the grounds of appeal are not grounds of law, but are at best grounds of mixed law and fact. According to the counsel, the 3 grounds in question, and the particulars thereof, show that the appellants were contending that the time within which they were to file the pre-hearing notice forms was still running by 10/7/07 when the petition was dismissed. 

That, in order to prove that allegation, the appellants filed a counter affidavit and written submission. That, the 1st respondent had equally countered those depositions. See pages 270 -271 and 286-290 of the records. That, the above circumstances amount to an invitation to the Tribunal to make findings of fact regarding the issue of filing and service of pleadings. Thus, the counsel contended that the 3 grounds in question are grounds of fact, or at best of mixed law and fact. See N.N.S.C. v. E.S.V.(1990)7 NWLR (Pt. 164) 526; Falana v. Bello (1995) 9 NWLR (Pt. 418) 182. 

It was further argued that by the combined effect of sections 240, 241(b) & 242 (1) of the 1991) Constitution (supra), leave of either the tribunal or a Court of Appeal was required where the grounds are either of fact, or mixed law and fact. See Mohammed v. Olawunmi (1990) 2 NWLR (Pt.133) 458; 476 & 480; Eng. Nura Khalil v. Alhaji Umaru Musa Yar'adua & Ors. (2003) 16 NWLR (Pt. 847) 446; 479, respectively.

The court was urged to accordingly strike out grounds 2, 3, & 4 of the grounds of appeal for being incompetent, having been filed without leave.

The second ground seeks the court to strike out the appeal, for having been filed out of time and with out the leave of court. Reference was made to sections 240, 241(1)(h) and 242(1) of the 1999 Constitution (supra), the Court of Appeal Act, and the Federal High Court (Civil Procedure) Rules (supra), to the effect that the appellants had 15 days from 10/7/07 to appeal against the dismissal of their petition; as the decision of the tribunal dismissing the petition was allegedly interlocutory. That, the appeal was filed on 30/7/07 i.e. 20 days after the petition was dismissed. The court was thus urged to strike out the appeal for being incompetent on the above ground.

  The third ground of the objection, on the other hand, contends that the entire appeal is an abuse of the judicial process. That, the appellants had earlier filed an application seeking to set aside the ruling of the lower tribunal dismissing the petition on 10/7/07. That, while that application was still pending, the appellants preempted the tribunal's ruling thereon and filed the present notice of appeal on 30/7/07. That, the appellants could not explore both options of filing an application to set aside the ruling of 10/7/07, and appealing there against.

It was argued that the appeal was filed on 30/7/07 to preempt the tribunal's ruling and trifle the issue of judicial process to the irritation and annoyance of the respondents. It allegedly amounts to forum shopping, and therefore an abuse of judicial process. See Owonikoko v. Arowosaiye (1997) 10NWLR (Pt. 523) 61; Dapianlong v. Dariye (No. I) (2007) All FWLR (Pt. 373) I at 71; (No.1) (2007) 8 NWLR (Pt. 1036) 239; Ubeng v. Usua (2007) All FWLR (Pt. 348) 1000; (2006) 12 NWLR (Pt.994) 244; Harriman v. Harriman (1989) 5 NWLR (Pt.119) 6; Benaplatic Industries Ltd. v. Vasilyev (1999) 10NWLR (Pt. 624) 620; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156; Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.200) 659;  Adesokan v. Adegorolu (1991) 3 NWLR (Pt. 179) 293 respectively. 

We have been urged upon to thus hold that the present appeal constitutes an abuse of judicial process.

On the other hand, the appellants' reply to the first ground of the preliminary objection, is to the effect that a thorough examination of grounds 2, 3 and 4 of the grounds of appeal would reveal that their complaint is in respect of the misunderstanding and misapplication of the law by the lower tribunal, regarding paragraph 3 (2), (3) and (4) of the Election Tribunal and Court Practice Directions, 2007. See Ogbechie & Ors. v. Onochie & Ors. (1986) 7 NSCC 443; 445- 446; (1986) 2 NWLR (Pt.23) 484; Shanu v. Afribank (Nig.) Plc (2000) 18WRN 1 at 8 paragraphs 1- 20; (2000) 13NWLR (Pt.684) 392; Anambra State Housing Dev. Corp. v. J.C.O. Emekwue (1996) 1 SCNJ 98; 130 lines 1 - 10; (1996) 1 NWLR (Pt.426) 505; Dangiwa & Anor. v. Nasarawa & 6 Ors. (2004) 24 WRN 118 at 139 - 140; A.-G., Federation & 2 Oros. V. Abubakar (2007) 10 NWLR (Pt. 1041) 1 at 92 paragraphs B - C; Akinsanya v. U.B.A. Ltd. (1986) 2 NSCC 981; (1986) 4 NWLR (Pt. 35) 273 at 296; Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458 at 476 respectively.

It was argued that grounds 2, 3 and 4 are not grounds of fact or mixed law and fact. That, it's the nature of the order made that determines whether a decision is final or interlocutory, and not the subsequent application made by a party to a cause. That, the application to set aside the tribunal's ruling in question can not have the effect of converting the final order of the tribunal into an interlocutory one.

The appellants thus urged that the court to discountenance the 1st ground of objection for being incompetent and lacking in merit.

The appellants' submission on the 2nd ground of the objection is to the effect that the decision of the lower tribunal was a final and not interlocutory one, thus the appeal was filed within time. The court was urged to accordingly discountenance that objection, for being incompetent and lacking in merit.

The appellant's response to the 3rd ground of the objection is, without much ado, to the effect that the appeal is not an abuse of judicial process, as there is no action pending between the parties except the present appeal. See Adigun v. A.-G., Oyo State (No.1) (1987) 1 NWLR (Pt. 53) 678; 7Up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (1996) 7 NWLR (Pt.463) 714 at 738 paragraphs C - D. The court has been urged to thus discountenance the 3rd ground of the objection. 

I have accorded a careful consideration upon the three grounds of the preliminary objection, the response thereto in the reply brief, as well as the submissions of the learned counsel thereon. The 1st objection raises the question of whether grounds 2, 3 and 4 of the grounds of appeal are incompetent, on the ground that they are either  of fact or at best of mixed law and fact, for which leave of the Tribunal or the Court of Appeal ought to have been obtained. It was also alleged, that the ruling of the tribunal, resulting in the dismissal of the petition on 10/7/07, was an interlocutory decision for which the appellants required leave before filing the appeal on 30/10/07.

Grounds 2, 3 and 4 in question are to the following effect:

"(i) GROUND TWO

Error In Law

The election tribunal erred in law when it held that the parties failed, neglected or refused to comply with the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007 and thereby occasioning a miscarriage of justice to the appellants.

GROUND THREE

(ii) Error In Law

The Election Tribunal erred in law when it held that failure of either party to apply for form TF007 and Form TF008 as provided under paragraph 3(2) of the Practice Directions (supra) indicates the lack of seriousness on the part of the petitioners and the respondents. Hence, we deem the petition before us as abandoned. "and it thereby came to a wrong conclusion which occasioned a miscarriage of justice."

(iii) GROUND FOUR

The Election Tribunal erred in law when it held thus "we have to issue a notice for today's hearing in order to effect the dismissal of the petition before us."

Having accorded an ample regard upon grounds 2, and 4 of the grounds of appeal reproduced above, as well as the particulars thereof, I am unable to appreciate, let alone uphold, the contention of the 1st respondent's counsel that the three grounds in question are of fact or at best of law and fact. The three grounds are undoubledly complaining of the alleged misapplication of the provisions of paragraph 3(2), (3) and (4) of the Election Tribunal Hand Court Practice Directions, 2007. The grounds have also raised the issue of breach of fair hearing.

It's a fundamental principle of law, that the line of division between a ground of law, in simpliciter, and one of mixed law and facts, is very thin. The guiding principle is that a ground of appeal ought to be accorded its most liberal interpretation, in order to ascertain the question it involves. The court has a duty to read the particular ground, together with its particulars, if any as a whole. Where a ground of appeal raises an issue of law based on accepted, undisputed, or admitted facts, or on facts as found by the trial court, then it's a ground of law. Where, however, its based on facts in dispute, or unascertained, it is one of mixed law and fact. See Metal Construction (WA.) Ltd. v. Migliore (1990) I NWLR (Pt. 126) 299; Ifediorah v. Umeh (1988) 2 NWLR (Pt.74) 5; 13; Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484; Obijuru v. Ozims (1985) 2 NWLR (Pt. 6) 167; N.N.S.E. v. E.S.V. (1990) 7 NWLR (Pt.164) 526 at 536 - 537 paragraphs H - A; 547 paragraphs D - E; Shanu v. Afribank(Nig.) Plc (2000) 18 WRN 1 at 8 paragraphs 10 - 10; (2000) 13 NWLR (Pt.684) 392 respectively.

In the light of the above postulations, there is no doubt that grounds 2, 3 and 4 of the grounds of appeal are of law alone. And I so hold.

The second ground of the objection raises the question of the appeal being incompetent, for having been filed out of time without the leave of court. It was argued, on behalf of the 1st respondent, that the decision of 10/7/07 of the lower tribunal, giving rise to the instant appeal, was an interlocutory decision. Consequently, the appeal having been filed on 30/7/07 out of time, without the leave of this court, is incompetent and ought to thus be struck out.

I have found myself unable to uphold that erroneous contention, for some obvious reasons. One, contrary to the erroneous contention of the appellants in the reply brief thereof, the instant case is not covered by the provisions of section 149(2) of the Electoral Act 2006 (supra), which provides thus:

(2) If the Election Tribunal or the court, as case may be, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the election tribunal or the court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought.

Most undoubtedly, the provisions of section 149(2) of the Electoral Act, 2006 (supra) envisages a situation whereby a full trial on the merits takes place, resulting in the decision of the trial tribunal or court determining that a candidate returned as elected was not validly elected. In the present case, however, it is so obvious that the petition was dismissed in limine and not on the merits. The provisions of section 149 (2) of the Electoral Act (supra) cannot therefore validly be said to be applicable to the present case. And I so hold. See Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 179 paragraphs G - H; 180 paragraphs C - E.

Two, the petition was ostensibly dismissed by the lower tribunal in accordance with the powers thereof under paragraph 3(4) of the Electoral Tribunal and Court Practice Directions, 2007 which

provides thus. 

(4) where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.

Thus, by implication, a dismissal under the said paragraph 3 (4) of the Electoral Tribunal And Court Practice Directions, 2007 (supra) tantamounts to a final decision; as such the lower tribunal is deprived of the power to relist the petition on its cause list. That's to say, it's functus offcio. This position of the law has been unequivocally stated to be so in paragraph 3 (5) of the Election Tribunal And Court Practice Directions, 2007 (supra) thus:

"(5) Dismissal of a petition pursuant to sub-paragraph (3) and (4) above is final and accordingly the tribunal or Court shall be functus officio."

It's axiomatic, that in the absence of any specific provisions regarding the time for the filing of an appeal arising from the exercise of the powers of the lower tribunal or Court under paragraph 3(4) of the Election Tribunal and Court Practice Directions, 2007 (supra), a resort has to be made to the provisions of the Court of Appeal Act and the rules made pursuant thereto. In the circumstance, a resort has to be made to the provisions of paragraph 51 of the rules of procedure for electoral petition as contained in the first schedule to the Electoral Act, 2007 as well as section 24(2) of the Court of Appeal Act (supra) which provide as follows:

(i) 51. subject to the provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined an accordance with the practice and procedure relating to appeals in the Court of Appeal or the Supreme Court as the case may be regard being had to the need for urgently on election matters.

(ii) 24

(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are -  

(a) In an appeal in a civil cause or matter fourteen days where the appeal in against an interlocutory decision and three months where the appeal is against a final decision.

See also Buhari v. Obasanjo (supra) at 179 paragraphs G - H and 180 paragraphs C - E in which the Supreme Court most aptly albeit authoritatively held inter alia, thus:

"By the provisions of section 27(2)(a) of the Supreme Court Act, Cap. 424, the period prescribed for giving of notice of appeal from a decision of the Court of Appeal to   the Supreme Court in a civil case is three months. In the absence of any specific provision in the Electoral Act, 2002 as to the time for giving notice to appeal as such and in the light of paragraph of the procedure for election petitions. I hold that the provisions of section 27(2)(a) of the Supreme Court Act applies to this case."

Thus, in view of the above authoritative decision of the apex court, any lingering doubt as to whether the provisions of section 24(2) (a) of the Court of Appeal Act (supra) (which is in pari material with section 27(2)(a) of the Supreme Court Act (supra) applies to the instant case, would have by now been laid to rest. And I so hold.

The third ground of the objection raises the question of whether the appeal has constituted an abuse of judicial process. It was submitted that in view of the earlier application seeking to set aside the tribunal's order of dismissal of the petition, the filing of the instant appeal was pre-emptive and tantamounts to a forum shopping. That, it is an abuse of judicial process which had been deprecated in strong terms by the courts.

On the other hand, the appellants conceded to the fact that the notice of appeal was actually filed while the motion on notice, seeking to set aside the order of dismissal of the petition, was still pending in the lower tribunal. It was, nonetheless, argued that the motion was adjourned off record from 25/7/07 to 04/8/07 for hearing, by which time the appellants' right of appeal would have elapsed, by virtue of section 149 of the Electoral Act, 2006 (supra).

It was further argued that the option open to the appellants was to apply to have that motion struck out and stay further proceedings in the lower tribunal. See 7Up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (1996) 7 NWLR 714 at 738 paragraphs C-D. The court was urged to accordingly discountenance the 3rd ground as lacking in merit.

The term, abuse of (judicial) process, could be aptly defined as the tortuous or improper use of a legitimately issued court process to procure a result that is either unlawful, or beyond the scope of

that process. The term is synonymous with several other terms, such as abuse of legal process; malicious abuse of process; malicious abuse of legal process; wrongful process; wrongful process of law. 

See Black's Law Dictionary, Seventh Edition, 1999 at page 10. 

It's trite, that an abuse of judicial process may be occasioned when a party improperly uses a court process resulting in the annoyance and intimidation of his opponent, and interference with the administration of justice. A typical example of an abuse of judicial process, is where two similar processes are used against the same party in respect of the exercise of the same right and subject matter.  See Owonikoko v. Arowosaiye (1997) 10 NWLR (Pt. 523) 61 at 76 paragraph D - E; Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt. 200) 659; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 respectively.

I have deemed it expedient to reiterate, at this point in time, that this court, nay any court of law for that matter, has an onerous duty under the provisions of section 6(6)(a) of the 1999 Constitution (supra), not to treat with levity any action or proceedings before it that it considers to be an abuse of the process thereof. Thus, the court has a duty to invoke its constitutional powers and dismiss the action in limine.

The ruling of the tribunal on the application for relisting of the petition could be found at pages 313 - 316 of the record. The said ruling was delivered on 06/8/07, resulting in the dismissal of the application. The issue of abuse of judicial process was evidently never raised at the lower tribunal. What's more, the 1st respondent's brief of argument was filed in this court on 14/9/07 i.e. about 40 days after the said application was dismissed, and thus no longer pending before the lower tribunal.

In view of the above high light, it would be rather preposterous to allege that this appeal has amounted to an abuse of process. The third ground in my view has no basis whatsoever and its hereby Overruled.

On the whole, there is every reason, as alluded to above, to believe that the 3 grounds of the preliminary objection raised by the 1st respondent, in both the notice and brief thereof, are rather baseless and are accordingly hereby overruled by me.

Having overruled the 1st respondent's 3 grounds of the preliminary objection in question, I now proceed to deal with the arguments proffered by the learned counsel in the respective briefs thereof. The appellants have formulated only two issues in the brief thereof for determination, to wit:

2.1. Whether in the circumstances, the appellants right to fair hearing was not breached by the tribunal on 10 July, 2007 when it dismissed Petition No. ABS/SHA/EPT/8/07 as abandoned petition and thereby occasioned a miscarriage of justice. (Grounds 1 and 5).

2.2. whether the tribunal was right in deeming and dismissing the petition as abandoned pursuant to paragraph 3(4) of the Election Tribunal and court Practice Directions, 2007. (Grounds 2, 3 and 4).

On his own part, the 1st respondent has formulated two issues thus:

1. Was the tribunal right in dismissing the petition as an abandoned petition?

2. If issue No.1 is answered in the negative, are the appellants still entitled to the relief sought, having not appealed against the ruling findings of the tribunal made on 6/8/2007 refusing to set aside its judgment of 10/7/2007?

On the other hand, the 2nd - 176th respondents have formulated a total of three issues, viz:

3.1. Whether in the circumstance, the appellants' right to fair hearing was in any way breached by the tribunal on 10th July, 2007 when it dismissed Petition No. ABS/SHA/EPT/8/2007 as an abandoned petition and whether same occasioned a miscarriage of justice?

3.2. Whether the tribunal was right in deeming and dismissing the petition as abandoned pursuant to paragraph 3 (4) of the election tribunal and Court Practice Directions, 2007?

3.3. Whether the appellants were right in pre-empting the ruling of the tribunal delivered on 6/8/2007 when It filed a notice of appeal dated 27/7/2007 and filed on 30/7/2007 and whether same is not vexatious and constitute   an abuse of the process of court'?

While the 1st and 2nd issues could not be said to be dissimilar to the appellants' two issues, the 3rd issue seems to be, for all intents and purposes, at large, and thus unconnected with the grounds of appeal. Ironically, the 2nd -176th respondents have not filed any cross - appeal. That being the case therefore, they have no liberty or discretion to formulate an additional issue distinct from the two issues formulated by the appellants. Thus, the formulation of the 3rd issue by the 2nd-176th respondents is fallacious for being at large and completely alien to the appellants' six grounds of appeal. 

  It is a fundamental principle of law that issues arising in an appeal for determination are determined on the basis of the number of competent grounds of appeal challenging the decision of the court appealed against. Neither a party to the appeal, nor the court itself, is allowed to raise or deal with any issue which is not related to, or does not arise from, a ground of appeal. See C.S.S. Bookshops Ltd v. R. T.M.C.R.S. (2006) 11 NWLR (Pt.992) 530; 559; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514; Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188; Mark v. Eke (2004) 5 NWLR (Pt. 865) 54 respectively. 

The arguments canvassed in a brief of argument must be predicated on, or traceable to the issues for determination in the appeal as well as the grounds of appeal from which such issues for determination were formed. As such, any issue which does not arise from the ground of appeal is irrelevant to the appeal, incompetent, and therefore liable to be struck out by the court. See Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563; Nkado v. Obiano (1997) 5 NWLR (Pt.5(3) 31; Animashaun v. U.C.H. (1996) 10NWLR (Pt. 476) 65; Kari v. Ganaram (1997) 2 NWLR (Pt. 488) 380; Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) 134; F.R.N. v. Obegolu (2006) 18 NWLR (Pt.1010) 188, respectively.

Thus, in the light if the above reasoning, its rather obvious that the 3rd issue raised in the 2nd -176th respondents' brief is incompetent and its accordingly hereby discountenanced. I have deemed it expedient to determine the appeal on the basis of the two issues formulated in the appellants' brief of argument.  

The first issue of the appellants raises the question of whether  their right to fair hearing was not breached by the lower tribunal, when it dismissed the petition No.ABS/SHA/EPT/8/07 on the 10/7/07 in question.

The submission of the appellants' learned counsel is to the effect inter alia, that the dismissal of the petition by the tribunal on 10/7/07 has violated their fundamental right to fair hearing enshrined under the 1999 Constitution (supra). See Abana v. Obi (2005) 6 NWLR (Pt. 920)"183 at 204; Bamgboye v. University of florin (1999) 10NWLR (Pt. 622) 290; Adigun v. A.-G., Oyo State (1987) 1NWLR (Pt. 53) 678; (1987) 35C; 250; Saleh v. Moguno (2003) 1 NWLR (Pt. 801) 221 at 247. 

It was further argued that the hearing notice of 06/7/07 served upon the appellants was insufficient and amounts to no notice at all, therefore the proceedings of 10/7/07 initiated on the basis of the notice was a nullity. See U.B.A. Plc v. Okonkwo (2004) 5 NWLR (Pt.867) 445 at 465; Garba v. University of Maiduguri (1986) 1 NWLR 550; Adigun & Ors. v. A.-G., Oyo State (supra) at 376; Madukolu v. Nkemdilim (2001) 46 WRN at 13 lines 15 -20; (1962) All NLR 587 at 590; (1962) 2 SCNLR 341. According to the learned counsel, the procedure adopted by the tribunal amounted to raising a point suo motu. He contended that where a court raises a point suo motu, the parties must be invited to address on it, particularly the party that may suffer a loss as a result of the point raised. See Nashtex International (Nig)Ltd. v. Habib Bank Ltd. (2008) 13WRN 168 at 195 line 45; (2007) 17 NWLR (Pt. 1063) 308 et al. That, the failure by the tribunal to hear the parties was in breach of the appellants' right to fair hearing. See Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267 at 280; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 at 616 paragraphs E - F et al. 

The appellants have accordingly urged upon us to resolve the first issue in his favour thereof.

On the other hand, the response of the respondent to the appellants' first issue could be found at pages 9 - 12 of the brief thereof. The submission of the 1st respondent regarding the 1st issue in question is to the effect, inter alia, thus -   

5.9. That no miscarriage of justice was occasioned in that by, 1st July, 2007 when the petition was dismissed, the petitioners were already out of time in applying for the issuance of the pre-hearing forms. At that stage, by the provisions of paragraph 3(4) of the Practice Directions, the tribunal itself (was precluded from entertaining any applications by the petitioners to regularize their position.

It was argued, that the appellants failed to diligently pursue their right within a reasonable time, as such they can not now claim that they have been denied fair hearing. They are deemed to have waived their right to prosecute the petition thereof. They can not thus hold the lower tribunal and other parties to ransom. That, the rule of equity helps only the vigilant, and not the indolent. See Ndu v. State  (1990) 7 NWLR (Pt. 164) 550; A-G., Rivers State v. Ude (2006) All FWLR (Pt. 347) 598 at 614; (2006) 17 NWLR (Pt.1008) 436. 

It is argued that the cases of Adigun v. A-G., Oyo State (supra); Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290; et al, do not apply to the instant case. That, a careful construction of  paragraphs 3 (1) - (5) of the Practice Directions (supra) show that the provisions require very strict compliance therewith. Thus, the implication is that once a petitioner fails to apply within time, no [further] step can be taken to save the petition. See section 141 of the Electoral Act 2006 to the effect that time can not be extended to present a petition. See also U.B.A. Plc v. A.C.B. (Nig.) Ltd. (2005) 12 NWLR (Pt. 939) 232 at 264; Buhari v. Obasanjo (supra) at 206; S.C.C. (Nig.) Ltd. v. Elemadu (2005) 7 NWLR (Pt. 923) 28 at 59. 

The submission or the 2nd-176th respondents under issue No. 1 is to the effect that as at 10/7/07, all the parties were in default of the provisions of paragraph 3(1) of the Practice Directions (supra). As such, the lower tribunal was right when it dismissed the petition for non-compliance with the said paragraph 3(1). That, rules of court are meant to be obeyed when such rules require a strict compliance there with. That, the rules are equitable by nature, and thus help only the vigilante and not the indolent. See A-G., Rivers State v. Ude (supra) at 614; Buhari v. Obasanjo (supra) et al.

It was finally submitted that the appellants' right to fair hearing was in no way breached by the tribunal when it dismissed the petition on 10/7/07, pursuant to paragraph 3(4) of the Practice Directions (supra).

I have critically, albeit dispassionately, considered the submissions of the learned counsel in the respective thereof, the authorities referred to therein, as well as the record of proceedings of the lower tribunal as a whole. It is trite, that, the term fair hearing, in simpliciter, denotes ajudicial or administrative hearing (or trial) conducted in accordance with due process [of law]. 

In the same vein, the term due process means the conduct of legal proceedings in accordance with laid down rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a court of law or tribunal with the jurisdiction to determine the case. The term is also usually referred to as due process of law; due course of law. See Black's Law Dictionary, Seventh Edition, 1999, at page 516. See also Mulliane v. Central Hanover Bank & Trust Co. 339 U.S. 306; 314, 70 S. Ct. 652, 657 in which Jackson, J. held most aptly thus:

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections The notice must be of such nature as reasonably to convey the required information."

I have at the out set of this judgment reproduced the relevant aspect of the controversial ruling of the lower tribunal, resulting in the dismissal of the appellants' petition on 10/7/07 in question. It's evident from the ruling, that the observation made by the tribunal was done suo motu. Most regrettably, however, the learned Chairman did not deem it appropriate or even expedient to call upon the parties to address the tribunal on the vexed issue of whether or not the petition was liable to be dismissed for having been abandoned by the appellants. As alluded to above, the Chairman merely deemed it fit to dismiss the petition on the ground, inter alia, thus:

"It is on record that we have to issue a notice for today's hearing in order to effect the dismissal of the petition before us. For the aforesaid reasons we hold that this petition is hereby dismissed in accordance with paragraph 3(4) of the Practice Directions (supra)."

Paragraph 3(4) of the Election Tribunal and Court Practice Directions, 2007 (supra), relied upon by the Chairman to dismiss the petition provides thus:

"(4) Where the petitioner and the respondent fail to bring an application under this paragraph, the Tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained."

The said paragraph 3(1) referred to in paragraph 3(4) above is to the following effect:

  "(1) Within 7 days after the filing and service of the petitioner's reply on the respondent, or 7 days after the filing and service of the respondent's reply, which ever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007."

The fact that the appellants had not applied for the issuance of pre hearing notice (as in Form TF007) as provided under paragraph 3(1) (supra) is not in doubt. Invariably, the lower tribunal had in its own volition issued the notice of hearing (Form TF005) dated 06/7/07 to the effect thus:

"NOTICE OF HEARING: TAKE NOTICE the above Election Petition will be heard at Election tribunal on the 10th day of July 20 ... and on such other days as the tribunal may determine.

Dated 6th day of July, 2007.

Secretary. "

Undoubtedly, what the lower tribunal embarked upon on 10/7/07 was delivery of the ruling and not the hearing of the petition contrary to the intendment of the said form TF005 issued and served on the parties, including the appellant. The delivery of the ruling which resulted in the dismissal of the petition, suo motu, had amounted to what could rightly be termed, as an ambush on the appellants. The Tribunal had a duty to invite and hear the parties, especially the appellants, before taking any decision regarding the validity or otherwise of the petition.

It is a well settled principle of law that a trial or hearing is only fair when all the parties to the, dispute are given an opportunity of being heard.

Thus, where a party to the dispute is denied an opportunity of  being heard, the trial or hearing can not, for all intents and purposes, qualify as fair hearing. In the present case, it's undoubtedly evident that the appellants were not at all accorded an opportunity to be heard prior to the pronouncement of the ruling by the Chairman of the lower tribunal resulting in the dismissal of the petition on 10/7/07. It cannot, therefore, be said that they were heard let alone accorded a fair hearing by the lower tribunal. 

It is trite that the strict observance of the rule of fair hearing by a court or tribunal in the administration of justice can not be over emphasised. A denial of a right of fair hearing of a party by court or tribunal tantamounts to a breach of the fundamental right of fair hearing, as cherishingly enshrined in the 1999 Constitution (supra), especially under section 36(1) thereof, which provides thus: 

"36(1) In the determination of his civil rights and obligations, including any question or determination by or against   any Government or authority, a person shall be entitled to a fair hearing within a reosonable time by a Court or other Tribunal established by law and constituted in such manner as to secury its independence and impartiality."

See also Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587 at 605; 616 paragraphs E -F, respectively.

As alluded to above, where a Judge raises an issue, suo motu, without hearing the parties and proceeds to pronounce his decision thereon, as in the instant case, there emerges a case of mistrial, and a blatant breach of the fundamental principle of fair hearing.   In our adversarial judicial system, no one should have a decision entered against him without being accorded an opportunity of hearing. 

That's the whole essence of the equitable maxim: audi alteram partem. The maxim implies that parties must be heard on any material point before a decision based there upon can rightly be made by the   court or tribunal. As emphatically stated by the Supreme Court- " ... a Judge who in our system must be and be seen as an impartial umpire will be anything but that if he takes up a material point no matter how clear it may appear, and, without hearing any of the parties to be affected   by the decision, decides it. That can not be even handed justice. A court ought never raise an issue for either of the parties and, without hearing both parties proceed to base its judgment on it."  See Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566 at 582  paragraphs A - D, per Nnaemeka-Agu, JSC. See Sheldon v. Bromfield Justices (1964) 2 QB 573; 578; R. v. Hendon Justices, exparte Gorchein (1973) 1 WLR 1502; Inua v. Nta (1961) 1 All NLR 576; Ejowhomu v. Edok-Eter Mandilas Limited (1986) 5 NWLR (Pt.39)1 respectively.

  Undoubtedly, there is no justification for the lower tribunal's failure to accord the appellants the right of hearing prior to the dismissal of their petition on the 10/7/07 in question. The arbitrary dismissal of the petition has resulted in breaching the appellant's fundamental right to fair hearing, as cherishingly enshrined under section 36(1) of the 1999 Constitution (supra).

Consequently, the entire proceedings or ruling of the tribunal upon which the order of dismissal of the petition was predicated is null, void, and of no effect whatsoever. See Otapo v. sunmonu (1987) 2 NWLR (Pt. 58) 587 at 606 paragraphs A-B.

In the light of the above reasoning therefore, the first issue is most undoubtedly resolved in favour of the appellants. 

The second issue raises the question of whether the lower Tribunal was right in deeming and dismissing the petition as abandoned (petition) in pursuance of paragraph 3(4) of the Election Tribunal and Court Practice Directions, 2007 (supra). The issue was predicated on grounds 2, 3 and 4 of the grounds of appeal. However, having accorded an ample regard upon the fact that the issue has been resolved in the appellants' favour, it goes without saying that the second issue must also be resolved in their favour.

This view is predicated on the well founded principle, as alluded to above, that where a court or tribunal reaches a decision in total disregard or breach of the fundamental right to fair hearing, the proceedings, decision, and any order that may have been predicated   there upon are null, void and of no effect whatsoever. See Otapo v. Sunmonu (supra) at 606 paragraphs A-B.

Before putting the final dot on this judgment, I have deemed it expedient to reiterate that the doctrine of fair hearing is not merely a rhetorical or technical principle. It's indeed a rule of substance. The rule most undoubtedly, goes beyond the mere question of whether a party is entitled to be heard before a decision is reached thereon, but whether he has as a matter of fact been duly given the opportunity to be heard. See Bamaiyi v. The State (2001) FWLR (Pt. 46) 956 at 974 paragraphs DE; (2001) 8NWLR (Pt.715) 270; Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419; Atano v. A.-G., Bendel State (1988) 2 NWLR (Pt. 75) 201; Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909, respectively. 

The said second issue is resultantly hereby so resolved in favour of the appellants.

Hence, having resolved both the first and second issues in favour of the appellants, I have no hesitation whatsoever in coming to the most inevitable conclusion that this appeal is meritorious, and its accordingly hereby allowed by me.

Consequently, the ruling of the lower tribunal dated 10/7/07 dismissing the petition No. ABS/SHA/EPT/8/07 in question is hereby set aside. The petition is resultantly remitted back to the Abia State Governorship and Legislative Houses Election Tribunal, Umuahia for trial by a differently constituted panel.

I make no order as to costs.

GALADIMA, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother, Saulawa, J.C.A. This appeal was brought against the dismissal of the appellants' petition pursuant to paragraph 3(4) of the Election Tribunal and Court Practice Directions No.2 of 2007.  

The facts and circumstances leading to this appeal have been set out in the lead judgment. I need not repeat same. However, I will make my contribution by way of emphasis in view of similar facts and circumstances in Appeal No. CA/PH/EPT/350/2007 which was heard on the same day as this and is being delivered today as well.   

The reason for the dismissal of the petition by the lower Tribunal was or, the ground that:

"It is on record that we have to issue a notice for today's hearing in order to effect the dismissal of the petition before us. For the aforesaid reasons we hold that this petition is hereby dismissed in accordance with paragraph 3(4) of the Election Tribunal and Practice Directions (supra). "

Paragraph 3(4) of the Practice Directions provides that: 

"(4) Where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained."

Paragraph 3(1) is to the following effect. It provides thus:  

"(1) Within 7 days after the filing and service of the petitioner is reply on the respondent's reply, which ever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007."

It is on record that the appellant did not apply for the issuance of pre-hearing notice (as in Form TF007) as provided under paragraph 3(1) supra. On its own, the Tribunal issued hearing notice (Form TF005) on 06/07/2007 to the following effect:

  "NOTICE OF HEARING: TAKE NOTICE the above Election Petition will be heard at Election Tribunal on the 10th day of July, 2007 and on such other days as the Tribunal may determine.

Dated 6th day of July 2007.

  (Sgd)

Secretary. "

What the lower tribunal did on 10/07/2007 was to deliver its ruling dismissing the petition and not the hearing of the said petition contrary to the clear content and message conveyed in Form TF005 issued and served on the parties, which included the appellants. It is the delivery of the ruling resulting in the dismissal of the petition that the appellants have felt aggrieved about. Appellants were not given opportunity of being heard. It is a well settled principle of law that where a party to the dispute is denied an opportunity of being   heard, the trial or hearing cannot be said to be a fair trial. We emphasise here that there is need for the strict adherence and observance of the equitable Latin maxim of audi alteram partem Even handed justice demands that the parties to the proceedings be heard before the court of law can proceed to hand down its  decision.

See Otapo. v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 at 605; Ugo. v. Obiekwe (1989) 1NWLR (Pt. 99) 566 at 582. It is in the light of the above that the first issue is hereby resolved in favour of the appellants.

The second issue raises the question of whether the lower Tribunal was right in deeming and dismissing the petition as abandoned, in pursuant of paragraph 3(4) of the Practice Directions, 2007. Having held that the appellants were not given a hearing before the lower Tribunal dismissed their petition, the second issue, to my mind, dealing with an order predicated upon the tribunal's ruling must be declared null and void and of no effect. 

It is in view of the above considerations and for more reasons comprehensively set out in the lead judgment, I too, set aside the ruling of the lower tribunal of 10/07/2007 dismissing the appellants'  petition. I abide by the order of remittance of the petition to the lower tribunal by a differently constituted panel. I make no order as to costs.

ABDULLAHI, J.C.A.: I have had a preview of the judgment which has just been delivered by my learned brother, Saulawa, J.C.A., and I am in complete agreement with reasoning and conclusions arrived thereat.

However by way of emphasis, I will add a few words. It is now settled that where a person's legal rights and obligations are called into question, he ought to be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights and obligations or else the hearing cannot be said to be fair. 

The right to fair hearing under the present Constitution, needless to say is an entrenched right, guaranteed and jealously protected and should not be denied an individual save as provided by its provision. See the case of Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628 at 644-645 paras. H-A.

It is instructive to state at this juncture that the right to fair healing is a fundamental principle of the adjudicatory process that it cannot therefore be comprised on any ground. I am of the firm view that the learned lower tribunal was wrong to have dismissed the petition of the appellant without giving him an opportunity to ventilate his case more so when the issue of non-compliance with the Practice Directions was raised by the lower tribunal suo motu.

For this reason and the more detailed ones ably set out in the lead judgment, I too allow the appeal and abide by all the consequential orders therein contained.

Appeal allowed.

     Appearances