In The Court of Appeal

(Calabar Judicial Division)

On Friday, the 7th day of October, 2011

Suit No: CA/C/NAEA/218/2011

Before Their Lordships

 Between

 And

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The Petitioner of the All Nigeria Peoples Party contested but lost election to the House of Representatives Ogoja/Yala Federal Constituency held on the 9th day of April, 2011, in favour of the 1st Respondent who polled 36,365 votes; the petitioner polled 7,611 votes. The Action Congress of Nigeria's candidate had 3,076 votes as against 1,827 polled by the candidate of the Congress for Progressive Change. The candidate of DFPF Party had 17 votes.

The 2nd Respondent returned the 1st Respondent as the duly elected member of the House of Representatives in the constituency, on 10th day of April, 2011.

The Petitioner presented a petition before the Governorship and Legislative Houses of Election Petition Tribunal holden at Calabar, Cross-River State of Nigeria on 29-04-2011 praying in paragraph 22 of the petition that the 1st Respondent be disqualified; that the result of the election should be voided and cancelled by reason of substantial irregularities/corrupt practices, non-compliance with the guidelines and the provisions of the Electoral Act, 2010. The petitioner sought for an order for fresh election.

Upon service of the petition the 1st Respondent entered appearance on 12-05-2011 followed by a Reply on 19-05- 2011. The 2nd Respondent presented a memo of appearance on 03-06- 2011 without a reply; the 3rd Respondent did so on 10-05-2011 but also without a Reply. The petitioner filed a Reply in respect to the 1st Respondent's Reply on 28-05- 2011. 2nd and 3rd Respondents' separate applications for extension of time to file Replies were dismissed on 12-07-2011.

On 24th day of June, 2011 Mr. Osim, Esq, of counsel filed a motion for pre-hearing notice praying for the issuance of Form TF007 and TF008. The motion was moved on 29th day of June, 2011 without objection from Mr. Ujong, Ese, of learned Counsel to the 1st Respondent; Mr. Sanni, Esq, of Counsel to the 2nd Respondent and Izato, Esq, of Counsel to the 3rd Respondent. The application was granted. The Tribunal ruled and the pre-hearing session commenced that same day.

On the 26-07-2011 1st Respondent's Solicitors brought an application supported by affidavit praying that paragraphs 5, 6, and 7 of the petition and paragraphs 1-4 of the petitioner's answers to the 1st Respondent's Reply be struck out since they related to pre-election issues that had been determined by the Federal High Court, Calabar in suit No. FHC/CA/CS/17/2011 viz Liyel Imoke & 37 Ors V.s INEC (unreported) namely the qualification of the 1st Respondent's to contest the election of 9th April, 2011 into the Ogoja/Yala Federal Constituency, Cross-River State. Secondly, that the petition was headed in a non-existent Tribunal. On the 10th day of August, 2011 the Tribunal granted prayer one by holding at page 425 lines 6-16 of the printed record thus:

"1st Respondent is a successor to the right to contest the April 9th, 2011 Election on the platform of the 3rd Respondent. It is in view of that we hold that the issue of failure of the 3rd Respondent to conduct party primaries to elect delegates that will nominate 3rd Respondent's candidates for the election had been decided by the Federal High Court, Calabar in suit No.FHC/CA/CS/17/2011 between Liyel Imoke V. INEC. 1st Respondent's name appears in the case as the 12th respondent. The six reliefs sought in that suit are contained on pages 2 and 3 of the copy of that judgment annexed to the affidavit in support (paragraph 6 thereof) as Exhibit RO1."

In granting the prayers the Tribunal cited Section 285(1) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 as altered and Odedo V. INEC (2008) 17 NWLR (Pt.11170) 554 at 602 per Niki Tobi, JSC.

On the 3rd August, 2011 the 3rd Respondent's learned Counsel applied that the Tribunal should set aside the pre-hearing session order made on 29th day of June, 2011 including Forms TF007 and TF008 already issued to the parties upon which the pre-hearing had commenced. The 3rd Respondent argued that the petition should be dismissed under paragraph 18(4) of the 1st Schedule to the Electoral Act, 2010 as amended on the grounds that it had been abandoned. Having heard argument from learned Counsel to the respective parties the Tribunal held at page 437 lines 13-26 and page 438 lines 1-7 of the printed record as follows:

"Having been satisfied that the order this Tribunal made for issuance of pre-hearing notice in this petition on 29th June, 2011, ought not to have been made for failure of the petitioner to file it within the time limited by paragraph 18(1) of the 1st schedule to the Electoral Act (supra) we are convinced and we hold the order was made without jurisdiction. Since the circumstances in the present application do not appear to prohibit the Tribunal from setting aside the said order, as its order to set aside was applied for timeously and before the 3rd Respondent/applicant took any further steps goading the Tribunal to proceed with hearing of the petition to a stage that would deprive the Tribunal of the vires to entertain it, we set aside the said order of 29th June, 2011 for the issuance of pre-trial notice.

The provision of paragraph 18(1) of the 1st schedule mandatory. As it stands now, the petitioner's petition fundamentally defective and incompetent for failure of the petitioner or any of the respondents to apply for pretrial in respect thereof. It is not just a breach of procedure or a mere irregularity as, without valid pretrial further proceedings no matter how well conducted shall be a nullity. See Okereke v. Yar'Adua (2008) 12 NWLR (Pt.110) 557 at 583 paragraphs "A-B". In view of this we deem the petition as abandoned and dismiss same under the combined effect of paragraph 18(1), (3) and (4) of the 1st Schedule to the Electoral Act, 2010 (as amended)".

On 31-08-2011 learned Counsel to the petitioner filed a single Notice of Appeal challenging the decisions of the Tribunal delivered on 10th and 16th August, 2011 respectively. On the whole seven (7) grounds accompanied the single Notice of Appeal. Ground six (6) has no particulars. This much was conceded by Osim, Esq, when the appeal came up for hearing on 05-10-2011. Accordingly, it is struck out. The surviving grounds of appeal are 3, 4, 5 and 7. They read as follows:

"3. The learned justices of the lower Tribunal erred in law when they failed, refused and or neglected to pronounce on the propriety or other-wise of the competence of the said application by virtue of the 53(2) of the 1st schedule to the said Electoral Act.

PARTICULARS

(i) The said application was not filed timeously and set out in the reply (pleadings) of the 1st Respondent by virtue of paragraph 12(5) of the 1st Schedule to the Electoral Act.

(ii) The said application was taken after the Respondent/Applicant have taken several steps in the proceedings after becoming aware of the defect, if any.

(iii) The same, if any is an irregularity that does not defeat and or nullify proceedings.

4. The learned justices of the lower Tribunal erred in law when they held that suit number FHC/CA/CS/17/2011 between Senator Liyel Imoke & 37 ors V. INEC constitute res judicata for the same to be re-litigated by the Petitioner.

PARTICUIARS

(i) The parties in that suit and the petition of the Petitioner are not the same as the Petitioner and the 3rd Respondent were not parties in the said suit.

(ii) The learned justices of the lower Court suo motu, without any affidavit evidence by the 1st Respondent to that effect, held that the 1st Respondent is the privy of the 3rd Respondent.

(iii) The learned justices relied on the said judgment by the 1st Respondent when the said 1st Respondent did not front load same according to paragraph 12(3) of the 1st schedule to the Election Act and did not seek the leave of the Honourable Tribunal showing exceptional circumstances according to paragraph 41 (8) of the 1st Schedule to the Electoral Act.

(iv) The judgment of the Federal High Court relied upon was not properly before the Honourable Tribunal and or before it at all.

5. The learned justices of the lower Tribunal erred in law when they sat as an appellate Tribunal/Court over its order of the 29th day of June, 2011 when the same was not a nullity and or made by misrepresentation of facts, fraud, want to service and or concealment of relevant facts.

PARTICULARS OF ERROR:

(i) All parties were served the process of the Honourable Tribunal leading to the order of the 29th day of June, 2011 without objection and participated in the said proceedings.

(ii) The said proceedings, if at all was not properly filed and taken is a breach of procedure, which is an irregularity that does not defeat proceedings.

(iii) The parties particularly the 3rd Respondent had waived his right to complained by participation and taking further steps in the proceedings, particularly taking his motion for extension of time in the pre-hearing session open in pursuance of the order of the 29th day of June, 2011.

7. The rulings of the lower Tribunal of the 10th and 16th day of August, 2011 is against the weight of evidence. "

One cannot tell whether ground 3 as couched relates to the ruling of 10th or 16th August, 2011. Being vague it is struck out. See Order 6 rule 2(2) and (3) of the Court of Appeal Rules, 2011.

When the appeal came up for hearing, Osim Esq., of Counsel to the appellant drew the Court's attention to the fact that the 1st Respondent's brief was filed out of time on 05-10-2011. This was not disputed by Counsel to the 1st Respondent. Accordingly, 1st Respondent's brief is struck out.

The 3rd Respondent's brief was filed on 26-09-2011. 2nd Respondent did so on 29-09-2011. Learned Counsel to the 3rd Respondent raised a preliminary objection at pages 5-6 of the brief on the grounds that no issues were formulated by the appellant in respect of grounds 1 and 2 of the Notice of Appeal. Therefore, arguments based on those grounds were incompetent. There was no Reply Brief filed by the learned Counsel to the appellant contending otherwise. What is not denied needs no further proof. See Section 75 of the Evidence Act, 2004.

Where no issues have been formulated in respect of any ground of appeal, that is deemed abandoned. See Agballah v. Chime (2009) 1 NWLR (Pt.1122) 273; Nwankwo v. Yar'Adua (2010) 12 NWLR (Pt.1209) 518. Accordingly, grounds 1 and 2 in the Notice of Appeal and issues formulated thereon are struck out.

This appeal shall be considered on grounds 4, 5, and 7 being the only surviving grounds in the Notice of Appeal.

On the whole the surviving issues for determination as formulated by the appellant are as follows:

"3.03. Whether the lower Tribunal can rely on and make use of judgment of the Federal High Court in suit No.FHC/CA/CS/17/2011 in the said application which judgment was not front loaded, in the face of the provision of paragraph 41(8) of the 1st Schedule to the Electoral Act, 2010 and or does not the same constitute res judicata? (Ground 4).

3.04. Whether the order of the lower Tribunal of the 29th day of June, 2011 is a nullity and not an irregularity, if any, to be set aside only on appeal and or is the application of the 3rd Respondent filed on the 2nd day of August, 2011 competent"? (Ground 5).

3.06. Whether the said rulings and decisions of the lower Tribunal of the 10th and 16th day of August, 2011 upon the available affidavit evidence and the written and oral submissions is not perverse and or against the weight of evidence? (Ground 7)."

2nd Respondent identified two issues namely:

"1. The first issue that arises for determination is whether the Tribunal was right to have struck out paragraphs 5, 6 and 7 of the petition and paragraphs 1, 2, 3 and 4 of the Petitioner's answer to the 1st Respondent's reply as constituting pre-election matters, already decided by the Federal High Court in suit number FHC/CA/CS/17/2011 between Senator Liyel Imoke & 37 Ors v. INEC, therefore res judicata.

2. Whether the Honourable Tribunal was right to hold that the petitioner's failure to apply for the issuance of pre-hearing notice within the time prescribed by paragraph 18(1) of the Electoral Act, 2010 as amended renders the Petitioner's Petition fundamentally defective and incompetent and thereby dismissed the petition."

The 3rd Respondent formulated the following issues for determination:

"1. Whether the application of the 1st Respondent filed on 26th day of July, 2011 was competent and cognizable in law? (Ground 3).

2. Whether taking into consideration the peculiar circumstances of this case, the trial Tribunal was right in setting aside its previous order and dismissing the petitioner's petition for failure to comply with the provisions of paragraph 18(1), (3) and (4) of the First Schedule to the Electoral Act, 2010 (as amended). (Ground 5)."

ARGUMENT: ISSUE 3.03:3.04 AND 3.06: APPELLANT'S BRIEF'

I shall consider the appellant and respondent's issues together since they seem to overlap. The argument by learned Counsel to the appellant on these surviving issues is whether, without frontloading the judgment of the Federal High Court in the face of paragraph 41(8) of the 1st Schedule to the Electoral Act, 2010 as amended the 3rd Respondent and the Tribunal could have relied upon it as constituting res judicata or does the same judgment constitute res judicata? Learned Counsel submitted that the Tribunal could not; neither did the judgment constitute res judicata. Counsel relied on Ikoton v. Oyekanmi (200s) 4 KLR (pt.253) 1777 at 1788 paragraph "B" to page 1791 paragraph "C".

The second issue was whether the Tribunal should have set aside the orders directing the issuance of Forms TF007 and TF008 for the commencement of pre-hearing session when the order was not a nullity in view of the affidavit evidence. I think these three issues encapsulate what transpired at the Tribunal and are supported by the surviving grounds of appeal.

I have read the submissions of learned counsel appearing for the respective parties. I shall now give my reasons:

On the 10-08-2011 the Tribunal made a specific finding that the 1st Respondent's name appeared in the judgment of the Federal High Court, Calabar in suit No. FHC/CA/CS/17/2011 between Liyel Imoke v. INEC supra as the 12th plaintiff. That the Federal High Court further made orders compelling INEC to recognize the 1st Respondent and others named therein as plaintiffs as the candidates to be sponsored by the 3rd Respondent in Cross-River State to contest various offices at the April, 2011 general elections.

The same Court made an order restraining the Defendants in that case from rejecting or purporting to reject or disqualifying the plaintiffs amongst whom was the 1st Respondent from contesting the elections. This judgment was delivered on 24th March, 2011 well before the elections were held on 09- 04-2011.

In my humble view the judgment was relevant on the question of the 1st Respondent's right to be sponsored by the 3rd Respondent at the election held on 9th April, 2011. The judgment is conclusive proof of the facts which it decided in favour of the 1st Respondent and cannot be re-opened in the Tribunal by the Petitioner except perhaps to show that it was delivered without jurisdiction. See Sections 51, 53, 54 and 55(1) and (2) of the Evidence Act, 2004. See Timitimi v. Amabebe 14 WACA 374; Okafor v. Attorney-General (1999) 7 SCNJ 192 at 211 and Aladegbami v. Fasanmande (1938) 3 NWLR (pt.81) 129.

The judgment subsisted and enured in favour of 1st Respondent until set aside on appeal. The findings of the Tribunal in favour of 1st Respondent have not been successfully impeached in this appeal. However, the judgment cannot be pleaded as res judicata between the petitioner and the 1st Respondent since the petitioner was not a party in that judgment. See Lawal v. Ijale (1967) NMLR 155; Oke v. Otoloye (1986) 2 SC 422; Aro v. Fabolude (1933) 1 SCNLR 58 and Aseimo v. Amos (1975) 2 SC 57. The law is well settled that it is made by a Court or Tribunal that is not every error susceptible of an appeal Court interfering with the judgment or ruling. See Onifade v. Olayiwola (1990) 11 SCNJ 10 at 22; Onojobi v. Olanipekun (1935) 4 SC (Pt.2) 156 at 163 and Ugo v. Obiekwe (1989) 2 SCNJ 95 at 103-104.

The next issue argued by Counsel relates to the fact that the judgment was not frontloaded hence it ought not to have been relied upon by the Tribunal. Learned Counsel referred this Court to paragraph 41(8) of the 1st Schedule to the Electoral Act, 2010 as amended which reads as follows:

"(8) save with leave of the Tribunal or Court, after on applicant has shown exceptional circumstances, no document, plan, photograph or model shall be receive at the hearing unless it has been listed or filed along with the petition in the case of the petitioner or filed along with the reply in the case of the respondent:

(9) Such leave may be granted with costs save where in the circumstance the Tribunal or Court considers otherwise".

If paragraphs 41(1)-(9) of the 1st schedule to the Electoral Act, 2010 as amended are read together, it will be seen that the provisions of sub-paragraph (8) supra do not apply to the facts of this case. See Mobil Nig. Plc v. IAL 36 INC (2000) FWLR (Pt.10) 1632 at 1650; Orubu v. INEC (1988) NWLR (pt.94) 323. The reason is that hearing of the petition was yet to commence when the 3rd Respondent filed the application on 12-07- 2011 to strike out the offending paragraphs. The Tribunal did not by entertaining the application and making use of the judgment receives evidence during or at the hearing of the petition. There is no substance in this issue which I resolve against the appellant. It is a fact that on 29th day of June, 2011 none of the learned counsel to the Respondents took objection when Osim, Esq of counsel moved the motion filed on 24-06-2011 for the issuance of Form TF007 and TF008. None of the parties/counsel raised the issue that the order sought was a nullity. Indeed, only the 1st Respondent had then filed a Reply. The application for extension of time to file replies by 2nd and 3rd Respondent was dismissed by the Tribunal on 12-07-2011.

A Court or Tribunal is only competent to set aside her judgment or ruling delivered without jurisdiction conferred by the constitution or a statute. See Siliyan & Ors v. Mashi & Ors (1930) 1 PLR 337 at 341; Obimonike v. Erinosho (1965) 1 A1 NLR 250; Otun v. Adesanro (1962) WRNLR 339; Forfei v. Seifah (1958) 1 All E.R. 289.Rules of Practice and Procedure confer procedural but not substantive jurisdiction on a Court or Tribunal. See The State v. Onagoruwa (1992) 2 SCNJ (Pt.1) 1 at 19; Onuorah v. Kaduna Refining Petrochemical Co. Ltd (2005) 21 NSCQR 130 at 140.

The Rules of Procedure for Election Petitions is the First Schedule to the Electoral Act, 2010 as amended read together with the Election Tribunal and Court Practice Directions, 2011. The Courts have laid it down that a violation of Rules of practice and Procedure if not timeously objected to by a party or his Counsel may, depending on each circumstance, be deemed waived. See Kossen (Nig.) Ltd v. Savannah Bank (Nig.) Ltd. (1995) 9 NWLR (Pt.42) 439 at 451 paragraph "D-E"; Adebayo v. Johnson (1 969) 1 All NLR 176 at 190-191; Jozebson Industries Co. V. R. Laurwers Import & Export (1988) 3 NWLR (Pt.83) 429 and Eboh v. Akpoki (1963) 1 All NLR 220/221. Paragraph 18(1)-(5) of the 1st Schedule to the Electoral Act supra as amended relates to Rules of Practice and Procedure in Election Tribunals, a violation of which was waived by the respondents to enable the expeditious and urgent disposal of the petition.

In this case the Tribunal issued Forms TF007 and TF008 to the parties. Pre-hearing session commenced on 29-06-2011 with the participation of the parties and their respective Counsel only for the 3rd Respondent to wake from slumber, and then apply for the striking out and dismissal of the petition for no just cause.

Surprisingly, the Tribunal granted the application against the dictates of justice and conscience. Whether the petitioner had applied for pre-hearing notice within or outside the seven days stipulated by paragraph 18(1) of the 1st Schedule or not there was no objection to the application even if irregularly made by the petitioner.

The jurisdiction of the Tribunal to set aside her orders or ruling is confined to orders or judgments which are nullities. See Iro Ogbu v. Urum (1931) 4 SC 1; Nwosu v. Udeaja (1990) 1 SCNJ 152 at 167 and Akinbobola v. Plisson Fiasko (1991) 1 ANLR (pt. 167) 270 at 299.

In Buhari v. INEC (2003) 19 NWLR (Pt.1120) 246 the petitioner and respondents proceeded under the Practice Directions and participated in the proceedings in line with the Practice Directions only for the petitioner to argue on appeal that the Practice Directions were unconstitutional. In rejecting this line of argument Niki Tobi, JSC, queried the petitioner's moral basis for his line of action and conduct at page 346 paragraph "H" to page 347 paragraphs "A" to "C" as follows:

"What is the moral basis of issue No.5 formulated by the appellant? And that takes me to equity which is morality personified in many areas of our law. Has the appellant done equity on this issue? Has he come with clean hands? Why should he indulge himself in a Court process in one breath and then turn around in another breath to question the legality or constitutionality of the process? Will equity allow him to benefit from the Court process and at the same time urge the Court to discountenance it? Equity with its hands of cleanliness and purity will not allow the appellant to blow hot and cold with the same breath. This is because there is the possibility of injuring his health, and equity will not like him to injure his health.

I think issue No.5 is caught by the principles of estoppel by conduct. I come to this inclusion because the appellant was the first person to invoke the Practice Directions in the proceedings and he cannot deny it. That was the origin in the English Courts of equity of the doctrine of estoppel in pais that is, by formal words or conduct once a party, either by his words or conduct, has intimated that he consents to an act, as in this case, the use of the Practice Directions, which has been done and that he will offer no opposition to it, he cannot later question the legality of the act he had so sanctioned to the prejudice of those who have given faith to his word. See Akanni V. Makanju (1978) 11 SC 13 at 26; Chief Okpuruwa V. Chief Okpokam (1988) 4 NWLR (pt.90) 554; Feponle V. U.I.T.H.B.M. (1991) 4 NWLR (pt. 183) 43; Hi-Flow Farm Ind. V. Unibadan (1993) 4 NWLR (pt.200) 719; Ondo State University v. Folayan (194) 7 NWLR (pt.354) 1".

On the whole, I hold that the Tribunal lacked the jurisdiction to have set aside the order made for the commencement of prehearing session on 29th June, 2011. This appeal succeeds. The petition is remitted to the Tribunal for hearing on the merit. No order as to costs.

UZO I. NDUKWE-ANTANWU, J.C.A: I had the privilege of reading in draft form, the judgment just delivered by my learned brother J. T. Tur, J.C.A. I agree that once a court makes on order, it subsists except up turned on Appeal. The Respondent's have not proved that the order was without jurisdiction. This appeal is meritorious and therefore succeeds. The Petition no EPT/CR/NA/6/2011, is remitted for trial on merit. No orders as to costs.

ISAIAH OLUFEMI AKEJU, J.C.A: I had the lead judgment of my learned brother, Joseph. Tine Tur, JCA just delivered. I agree with the reasons therein and the conclusion that the appeal has merit. I allow the appeal and abide by the consequential order in the lead judgment.

I make no order as to costs

     Appearances