IN THE COURT OF APPEAL (PORT HARCOURT DIVISION)
SULEIMAN GALADIMA JUSTICE, COURT OF APPEAL
TIJJANI ABDULLAHI JUSTICE, COURT OF APPEAL
IBRAHIM MOHAMMED MUSA SAUAWA JUSTICE, COURT OF APPEAL
JOHN OGELLI KENNEDY C APPELLANTS
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENTS
2. RESIDENT ELECTORAL COMMISSIONER,ABIA STATE
3. RETURNING OFFICIER,ABIA STATE HOUSE OF ASSEMBLY
4. ELECTORAL OFFICIER ISUIKWUATO L.G.A., ABIA STATE
5. RETURNING /COALIATION OFFICIER ACHARA/MBUGWU WARD 7,ISUIKWUATO L.G.A. ABIA STATE
6. SUPERVISORY PRESIDING OFFICIER WARD 7 ISUIKWUATO L.G.A. ABIA STATE
7. HON. MONDAY EJIEGBU
GALADIMA, J.C.A.(Delivering the Leading Judgment)
This was an appeal against the Ruling of the Governorship and Legislative Houses Election Tribunal holden at Umuahia on 10th July 2007. In the said ruling, the Chairman and four members of the tribunal held as follows.
"In the petition before us the petitioner filed his petition on the 14th of May, 2007, the 1st to 6th respondents filed their reply on 20th June, 2007, then the 7th respondent on the 7th June, 2007. The petitioner by paragraph 3(1) of the Practice Direction ought to have brought an application 7 days after the 26th of June, 2007 since he did not file a reply to the respondent's reply after he was served with the respondent's reply for form TF 007. But to dated (sic) 14th days, he did not do so. It is in view of this that we hold this petition ought to be dismissed as it falls in the category of abandoned petitions as paragraph 3(4) of the Practice Direction (supra) and it is hereby dismissed."
Dissatisfied with this ruling, appellant file his notice of appeal containing three grounds with particulars. The following three issues were formulated for determination of the appeal, as gleaned from paragraphs 2.02 -2.04 of the appellant's brief of argument.
"2.02 Whether the tribunal below was right in law summarily dismissing the appellant's petition when the appellant was yet to be served with the respondent's replies to his petition .
2.03 Whether the tribunal below was right in proceeding to dismiss the petition without first resolving the issue of whether or not the appeallant had been served with the respondents replies to his petition.
2.04 Whether having regard to the facts and circumstances of the dismissal of the appellant's petition the appellant's fundamental rights to fair hearing was not breached." On behalf of the 1st to 6th respondents, their learned counsel Sunday Nwigboke, Esq., filed brief of argument on 24/10/2007. He also raised a preliminary objection which is incorporated and argued in paragraphs 2.02 -2.10 of the brief. It is contended that the appellant's three issues as formulated are not the issues for determination in this appeal. 1st to 6th respondents raised sole issue for determination thus:
"Whether the tribunal was right in dismissing the petition as an abandoned petition."
On the other hand on behalf of the 7th respondents, his learned counsel K.C. Nwufo, Esq. having raised a preliminary objection and incorporated same in the brief of argument filed on 10/9/2007, raised one issue for determination in the following terms:
"(1) Whether the Honourable Election Petition Tribunal was right when it dismissed the petition No. ABS/SHA/EPT/24/2007 pursuant to the provisions of paragraph 3 of the Election Tribunal and Court Practice Direction, 2007."
Before dealing with the issues raised by the respective parties in this appeal, I shall first consider the preliminary objections raised by the respondents; this is because these are threshold issues. A challenge to the competence of a ground of appeal is a fundamental point of law. If the ground of appeal is incompetent then the court has no jurisdiction to entertain it and as such it will be struck out. See Saude v. Abdullahi (1989) 4 NWLR (Pt. 1 L6) 387.
At pages 2-4 of the brief of argument of the 1st -6th respondents, an objection was raised to the appeal on the ground that the appellant did not obtain leave before filing his appeal. It is trite that an appeal filed where there is no right of appeal is frivolous and that amounts to an abuse of court process. See Ogboru President Court of Appeal & Anor (2005) 18 NWLR (Pt. 956) 80 at 94. Section 246 (1 )(b) of the 1999 Constitution creates a right of appeal. The section provides:
"246(1) (b) An appeal to the Court of Appeal shall lie as of right from ¬
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative House Election Tribunals on any question as to whether -
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution.
(ii) any person has been validly elected to the office of Governor or Deputy Governor, or
(iii) The term of office of any person has ceased or the seat of any such person has become vacant."
The appeal herein is against the decision of the lower tribunal dismissing the petition of the appellant in which he complained against undue return of the 7th respondent to the office of Member of Abia State House of Assembly during the General Elections held on l4/4/2007.
In effect, the learned counsel for the 1st to 6th respondent is contending that the appellant's notice of appeal be struck out in that each of the grounds of appeal contained therein is either a ground anchored on facts or mixed law and facts. Learned counsel in his brief of argument relied on several decisions of this court and the Supreme Court in which the general guidelines for determining whether a ground of appeal is one of law or mixed law and facts were set out. These cases are N.N.S.C. v. E.S.U. (1990)7 NWLR (Pt.164)526;Falana v. Bello(1995) 9NWLR(Pt.418) at 182; Mohammed v. Olawunmi (1990)2 NWLR(Pt.133)at 476; and Eng. Khalil v. usa YarAdua(2003) 16 NWLR (Pt. 847) page 446 at 479.
Learned counsel relied on sections 240,241(1)(6) and 242(1) of the 1999 Constitution. No mention of section 246(1) of the said, constitution is made either counsel .As I have done, that section is reproduced above. It is crystal clear that the appeals under that section being as of right, no leave of either this court or the lower Tribunal is required. This is more so regard being had to the nature of the election matters being sui generis. His Lordship, Uwais, JSC (as he then was later CJN) in the case of Orubu v. N.E.C. (1988) 5 NWLR (Pt. 94) 323 at 347 expressed his opinion succinctly beyond doubt thus:
" .. .It is realized that an election petition is not the same as the ordinary civil proceedings, it is a special proceeding, because of the peculiar nature of elections which, by reason of their importance to the well-being of a democratic, society, are regarded with aura that places them over and above the normal day to day transactions between individuals which gives rise to ordinary or general claims in court. As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural cogs that cause delay in the disposition of the substantive dispute ..."
To my mind, the correct and viable legal position to which I subscribe and agree with is that the appellant did not require or need leave to file and argue the grounds of appeal contained in his notice of appeal.
The case of Khalil v. Yar'Adua (supra) cited by the learned counsel for the 1th-6th respondents did not decide that an appellant under the provision of section 246(1) of the 1999 Constitution requires leave to file and argue grounds of facts or mixed law and facts. The opinion expressed by I.T. Muhammad, JCA (as he then was) on page 479 para. E-F of the law report was on the provisions of section 241(1)(b) and 242( 1) of the Constitution. To that extent, I am also of the view that it is not helpful to the objection of the 1st -6th respondents. In view of the foregoing, the preliminary objection by the 1st-6th respondent to the Notice and ground 2 of the appeal fails, and is dismissed.
Now turning to the 2nd and 3rd grounds of appeal found on pages 109 -110 of the record of appeal, which is anchored on the ruling of the lower tribunal of 10th July, 2007, it is clear that the appellant's complaint is based on error of law. The grounds of appeal raise questions of law only. Ground 2 challenges the procedure adopted by the trial tribunal in dismissing the appellant's petition as an abandoned petition without first of all resolving the issue raised by the appellant through his counsel that was yet to be served with the respondents' reply. The ground raises the issue of fair hearing as guaranteed by section 36 of the 1999 Constitution. The grounds call in to question the correct interpretation and application of the Practice Direction of 2007, Ground 3 also raises the issue of fair hearing as well as the validity of paragraph 3(4) and (5) of the Election Petition Practice Direction of 2007. It also questions the correctness of the application of the provisions of Practice Direction to the instant case, as paragraph 3(1) of the Practice Direction comes into play after the service of the respondents' reply on the appellant. I am of the firm view that this Court of Appeal is well in a position to determine the three grounds of appeal without making any findings of facts. See Arum v. Nwobodo (2004) 9 NWLR (Pt. 878) page 411 at 437-439.
Grounds two and three of the grounds of appeal neither raised grounds of facts or that of mixed law and fact. No leave is therefore required for filing the appeal. In the light of the foregoing, I hold that the grounds are valid and competent. The preliminary object is not sustained. It is therefore dismissed.
The 7th respondent in his notice of preliminary objection contained and argued in paragraph 2 of his brief of argument challenges grounds 2 and 3 of the grounds of appeal on the grounds that they did not arise from the decision of the lower tribunal appealed against. At paragraph 2.01 of the 7th respondent's brief, reference was made to pages 106 -107 of the record of appeal. No reference was made to page 105 of the records. It is clear from the records that the proceedings at pages 105, 106 and 107 took place the same day. The court note at page 105 of the record reads:
"We have not been served with the respondents' reply consequent we could not apply for pre-hearing conference we could not apply for pre-hearing conference. We apply for the matter to be adjourned because we ought to be served with the respondents reply because we apply for TF007.
The following counsel announced appearance for the parties:
Kelechi Nwaiwu for Chief A.N. Nwaiwu, SAN for the petition; K.C. Nwufo for the 7th respondent, U. Onwuzumgbo for the 1st respondent.
The 7th respondent at the trial was also the 7th respondent ably represented by counsel on the day. Who else would have complained that he was not served with the respondents reply? Obviously the appellant. If, as it is felt by the appellant, the tribunal ignored his complaint and proceeded to enter judgment, dismissing the appellants petition, the appellant is entitled to complain against that procedure and that is what he has done in ground 2 of the notice of appeal. This ground arises from proceedings. The ruling of the tribunal at pages 106-107 of the records cannot be separated from the proceedings at page 105.The ruling was based on the earlier complaint of the appellant. I therefore form the view and firmly too, that ground 2 arises from the decision appealed against.
As regards ground 3 the particulars of error highlighted that the appellant is complaining that his fundamental right to fair hearing has been breached. It is trite law that failure to observe the rule of fair hearing renders the proceeding null and void. The issue of nullity of a proceeding for either want of jurisdiction or breach of fair hearing can be raised for the first on appeal. A ground of appeal is based on any wrong decision, inference or step taken by a court which in the contention of an applicant is wrong. Consequently, once a ground of appeal relates to the decision of judgment appealed against and challenges the validity of the ratio in the judgment, the ground cannot be said to be incompetent. An appeal must attack or challenge the decision appealed against that it is erroneous and must be reversed or set aside. See Gov. Akwa-Ibom v. Umah (2002) 7 NWLR (Pt. 767) 238 at 769 B -C; Afribank Nig. Plc v. Osisanya (2000) 1 NWLR (Pt. 642) 598 at 611.
The appeal herein substantially deals with the nullity of the proceedings which the appellant is praying this court to set aside. Part of the contention of the appellant is that he was denied fair hearing by the lower tribunal. To determine the veracity or otherwise of the appellant's contention, the court must go beyond the pronouncement or decision of the tribunal. The resolution of the issue will involve an overview of the proceedings. I must say with due respect, that grounds 2 and 3 of the grounds of appeal are valid and competent. In view of the foregoing I dismiss the preliminary objection as lacking in merit.
I shall now proceed to consider the merit of the appeal. I have already set out the issues formulated by the respective counsel for the parties for determination. Appellant distilled three issues. 1st to 6th and 7th respondents formulated sole issue. Their sole issue considered are quite identical or similar. I am of the opinion that their single issue will determine the appeal. Preference is however given to the 7th respondent's sole issue. It is the contention of the appellant that the lower tribunal erred in law in dismissing the appellant's petition without first resolving the issue whether the appellant had been served with the respondent's reply to his petition. It is submitted that having regard to the signature of the appellant on his petition and written statement on oath, he is not the person who signed the dispatch book at pages 114 and 115 of the records which purports to be his. Learned counsel for the appellant further submitted that assuming that the appellant was out of time as claimed by the respondents, it is not sufficient to deny him hearing on his petition when he was in court with his counsel, ready to prosecute his petition. It is therefore urged upon the court to allow the appeal and set aside the decision of the Tribunal made on 10th July, 2007 and order that the petition be heard and determined on the merits by another panel.
On the part of the 1st to 6th and 7th respondents, their learned counsel have submitted that the tribunal was right in dismissing the petition of the appellant as abandoned for the failure of the petitioner to comply with the provisions of paragraph 3(1) of the Election Petition Tribunal Practice Direction No.1 of 2007. That there was application for extension of time within which the appellant was to comply with paragraph 3(1) of the Practice Direction, 2007. It is urged on the Court to dismiss the appeal as lacking in merit.
Paragraph 3 of the Practice Direction No. l provides for pre- hearing session of the petition. It provides as follows:
"l. Within 7 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, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007.
2. Upon application by a petitioner under sub-paragraph
(1) above the tribunal or court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF007 accompanied by a re-hearing till information sheet as in Form TF008 for the purposes set up hereunder:
(a) disposal of all matters which can be dealt with on interlocutory application;
(b) giving such directions as to the future course of the petition as appear best adapted to secure its just expeditious and economic disposal in view of their urgency of election petitions;
(c) giving directions on order of witnesses to be caIled and such documents to be tendered by each party to prove their cases having in view the need to expeditious disposal of the petition ;
(d) fixing clear dates for hearing of the petition.
3. The respondent may bring the application in accordance with sub-paragraph (I) above where the petitioner fails to do so, or by motion which shall be served on the Petitioner and returnable in 3 clear days apply for an order to dismiss the petition.
4. Where the petition 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 step shall be filed or entertained.
5. Dismissal of petition pursuant to sub-paragraphs (3) and (4) above is final, and accordingly the tribunal or Court shall be funtus officio. "
From the provisions of paragraph 3(1) of the Practice Direction above, the time allowed the petitioner to apply for a pre-hearing session is within 7 days of his filing and service of his reply to the respondents' reply to his petition or 7 days after service on him of the respondents' reply to the petition, which ever is its case. The time for the making of the application only starts to run after the service on the petitioner of the respondents reply to his petition. But where the petitioner defaults making the application, the respondent can equally make the application. In the alternative, respondent can bring a motion praying that the petition be dismissed, under paragraph 3(3). Under paragraph 3(4) of the Practice Direction where the petitioner and respondents fail to bring application, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take step shall be filed or entertained.
From the above, there are two circumstances when the tribunal may dismiss a petition.
Firstly, where a respondent brings a motion for dismissal of the petition for non-compliance with paragraph 3(1) of the Practice Direction. Secondly, where from the circumstances, the tribunal can draw an inference that' the petition has been abandoned. In the instant case, I am bound by the record of court. The petitioner in his petition gave his address for service as; "c/o Nwabunna Chambers, 23 Azikiwe Road, Unuahia, Abia State." From the records and it is common ground that the two sets of respondents replies were not served on the petitioner at that address. The affidavit of service made on 26/6/2007 by the Chief bailiff of the tribunal, L.O. Nwogwugwu, claims to have served both replies of 7th respondent filed on 7/6/2007 and that of the 151 to 6111 respondents filed on 20/6/2007, on the petitioner in the premises of the election tribunal on 26/6/2007. The petitioner whose petition was to come up for the first time before the tribunal on 10/7/2007 denied receiving such service. The petitioner had by way of an affidavit challenged the record of such service of the respondents' replies on him 112 -115 of the records, the petitioner annexed to the said affidavit certified true copies of a dispatch book purportedly signed by the petitioner on receipt of the replies. It is contended that a careful examination and comparison of the signature on the despatch books at pages 114 and 115 of the records and those of the appellant on his petition at Page 6 of the records, his written statement on oath and page 15 of the records, that on his protest letter on the 2nd respondent at page 36 of the records as well as those at pages 114 and 115 wherein the appellant is alleged to have signed for receipt of the respondents' replies to the petition do not belong to the appellant. The lower tribunal has a duty to make such careful examination and comparison with view to verifying the claims of the petitioner through counsel (both of whom were court on 10/7/2007) that he was yet to receive the replies filed by the respondents is true or not.
Under section 108 of the Evidence Act, the trial tribunal is empowered to make comparison with two or more signatures of the appellant and come to a just conclusion. See Lawai v.Ejidike (1997) 2 NWLR (Pt. 487) 319 at 330 B E Ozigbo v. C.O.P. (1976) All NLR 109 at 113; (1976) 2 SC 67;and Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91 at 107 G -H.
The appellant was entitled to be served at an addressed he supplied for service except if he has given the tribunal any notice of any of change of address. A cursory look at the content of the affidavit of service of the bailiff relied upon by the tribunal below would indicate that the bailiff admitted not knowing the appellant and yet he did not indicate who showed or identified the appellant for him as the person he intended to effect service of the replies of the respondents.
The practice and procedure of the tribunal shall be clearly as possible similar to the Practice and Procedure of the federal High Court, by virtue of paragraph 50 of the 1st Schedule of the Electoral Act. Order 13 rule 27 of the Federal high Court Rule, 2000, provides that a bailiff or other officer of court who effects service of court process shall swear to and file an affidavit of such service and that such affidavit of service shall on production be pima facie evidence of service. Order 13 rule 30 requires the keeping of a book for recording service by court officials of any process of court. The law however makes such desposition or declarations to service by court bailiff prima facie and not final, as bailiffs. When the appellant through his counsel informed the tribunal that he was not served with the respondents replies, he clearly challenging the affidavit of service by bailiff to enable him react to it. See Odutola v. Kayode (1994) NWLR(Pt.324) page 1.
The service of a process on a party, where it should be served is one of the fundamental condition precedent to the exercise of the jurisdiction by a court. if service of process is necessary and there is n concrete proof that such service was affected on the appropriate party, any decision or judgment emanating from such proceeding is a nullity See Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55)179 and Scott-Emuakpor v. Ukavbe(1976)12 SC 41 at; and Okereke v. Ejiofor (1996) 3 NWLR (Pt 434) 90 at 102C- D
Where therefore the lower tribunal was faced with a denial of personal service by the appellant, the tribunal was bound to call oral evidence in order to resolve the conflict in the affidavit evidence before it. The issue whether a court process is served or not is a question of fact of which oral evidence can be given: See Mohammed v. Mustapha(1993) 5 NWLR (Pt, 292) 222 at 232A B and; Katsina L.A. v. Makudawa (1971) I NMLR 100.
The bailiff's affidavit of service only raises a reputable presumption of service. The lower tribunal was therefore wrong in treating the bailiff's affidavit of the Chief Bailiff as if it were a final and conclusive proof of such service. Wappah v. Mourah (2006) 18 NWLR (Pt. 1010) 18 at 45.
The instant matter is an election petition whilst time is of essence in seeing to its early disposal. Care must be taken however to avoid laying precedents that would enable respondent to receive documents for petitioner or turn round to secure a summary dismissal of such petition on ground of non-competence with the practice direction.
It is apparent on the record that the petition came up for the first time on 10th July, 2007 following a hearing Notice to the parties issued on 6th July, 2007. Appellant's counsel informed the tribunal that the, appellant had not been served with the respondents' reply. Consequently, he could not apply for pre-hearing conference. Learned counsel for the appellant sought for an adjournment so that the appellant could be served to enable him apply for Form YF 007. All that the tribunal did in reaction to this application was to stand the matter down for ruling by 12.30pm that day and summarily dismissed the petition. The appellant and his counsel were present in court. I agree with the learned counsel for the appellant that their presence negates the conclusion by the tribunal that the appellant had abandoned his petition. The appellant has shown interest in prosecuting the appeal. From the opening paragraph subsequent to the ruling at page 105 of the records, it is clear that the tribunal was in a rush to dismiss the appellant's petition.
The right to fair hearing means that each party to a dispute is heard or given opportunity of being heard before a decision taken in the matter. Fair hearing under section 36 of the 1999 Constitution is an entrenched fundamental right. It entails doing all things will make an impartial observer in the court room to believe that the trial has balanced and fair to both sides of the trial. All that is required for fair hearing is that a party to an action should be heard. Where right has been breached in a judicial proceeding it breach vitiates the entire proceedings. See Wappah v. Mourah (supa) and Mains Ventures Ltd. v. Petroplast Ind. Ltd. (2000) 4 NWLR (Pt. 651) 151 at 164-167.
It has been observed that the trial Tribunals in this dispensation or this time around, are anxious to see to the expeditious disposal of election matters being sui generis. This is commendable. However, the Tribunals have a duty while doing this, to ensure fair trial of cases brought before them. The practice directions are rules of Court touching on the administration of justice. These are rules established for attaining justice with ease and dispatch. They must therefore be consistent that purpose. They cannot be applied in such a manner as to defeat the ends of substantial justice. Let it be said loud and clear that this court will not lend its weight to further the ends of any arbitrary decision of the court below, such as this, all in name of speedy and expeditious trial of election petitions.
In some, in the light of the foregoing, I find merit in this appeal. I will allow it and set aside the decision of the lower tribunal in which he dismissed the appellant's petition. It is hereby order that the petition be heard and determined on the merits by another panel.
There will be costs of N30,000.00 against each set of respondents in favour of appellant.
ABDULLAHI, J.C.A.: I had the privilege of reading in drift the judgment delivered by my learned brother, Galadima, JCA. I agree with his reasoning and conclusions that the appeal should be allowed.
I may only emphasise that under the present Constitution we are operating fair hearing is an entrenched right, guarantee land protected and ought not to be denied an individual save as provided by its provision.
Section 36(I) of the 1999 Constitution of the Federal Republic of Nigeria provides thus.
"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 reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality,"
The provision of the Constitution reproduced supra is very clear and explicit and no aid is required for its interpretation. The petitioner in the instant case needless to say, in the determination of his rights is entitled to a fair hearing. This to my mind includes but not limited to have his petition heard on the merit more so when it was not proved that he had abandoned it.
It is now trite that a subsidiary legislation cannot contradict of override the principal legislation. It is also elementary that subsidiary legislation derives life or force of law from the principal law. The Practice Direction heavily relied by the tribunal in dismissing the petition of the appellant cannot override the provisions of section 151 of the Electoral Act or paragraph 43 and 50 of the First Schedule to the Electoral Act talkless the provisions of the Constitution of the Federal Republic of Nigeria, 1999.
For this and the more detailed reasons set out in the lead judgement, I too hold that the appeal is pregnant with a lot of merit. I allow it and abide by the consequential orders made therein including order on cost.
SAUAWA, J.C.A.: I have had the privilege of reading, before now the lead judgment prepared and delivered by my learned bother. Galadima JCA. Having carefully gone through the records of proceedings of the lower tribunal and vis-a-vis the brief of argument of respective learned counsel, I cannot but concur with the reasoning and conclusion reached in the lead judgment, to the effect that his appeal is meritorious.
It is trite that the election into the various State Houses of Assembly of the 36 States of the Federation, including Abia State, took place on the 14/4/07. In Abia State in particular, the appellant contested the said election on the platform of the People's Democratic
Party(PDP), for Elauma Isuikwato, Isuikwato Local Government Area. The 7th respondent also contested that election on the platform of the Peoples Progressive Alliance (PPA). Both the appellant and 7th respondent contested the election in question along with five other candidates namely: (i) Basil Landis Eze; (ii)Nwabienne Joseph; (iii) Amaefule Godswill Jona; (iv) Chintua Sampson A.; and (v) Kennedy Nwaduikwu, who were sponsored by the Action Alliance (AA), Action Congress (AC), All Nigerian Peoples Party (ANPP), All Progressive Grand Alliance (APGA) and Democratic Peoples Party (DPP), respectively. At the conclusion of the election the 7th respondent was declared and returned by the 1st -6th respondents as having been duly elected.
Dissatisfied with the return of the 7th respondent as duly elected, the appellant filed his petition in the lower court tribunal on 14/5/07 praying for the following reliefs:
(i) That it may be determined that 7th respondent Hon. Barr. Monday Ejiegbu was not validly elected as member representing Isuikwuato State Constituency, in that had the election in Ward 7 been conclusive, the Petitioner would have won and that the result of the Election ought ordinarily to have been added to the scores of the candidates.
(ii) That the election as it relates to Ward 7 was invalid by reason of not having been conducted substantially in accordance with the principles of the Electoral Act 2006 and guidelines and that the non-compliance affected substantially the result of the election in that petitioner would have won but for the cancellation of the result in Ward 7.
(iii) That the 1st to 6th respondents conduct fresh election in Achara/Mbaugwu Ward 7, comprising above stated 12 polling units in Isuikwuato State. Constituency Abia State House of Assemble, and the results added to the existing scores of the candidates at the election.
(iv) That 1st to 6th respondents conduct fresh election in Uturu Secondary School Isunabo polling unit in Ikeagha II Ward 9 and the result added to the existing scores of the candidates at the election.
(v) And for such order or further orders as the honorable Tribunal may deem fit to make in the circumstances.
On 06/7/07, the lower tribunal served the parties with a hearing notice against 10/7/07. On the said date the 7th respondent filed a motion on Notice dated 05/7/07, pursuant to section 147(3) of the Electoral Act, 2006, seeking the following relief.
AN ORDER striking out this Petition on the ground of being incompetent for non-compliance and/or not being accordance with the provisions of the Electoral Act, and lack of jurisdiction of this Honourable Tribunal to entertain same." .
On the date inquestion, when the petition came up both the appellant and his counsel, as well as the respondents' counsel were present in the lower tribunal. Mr. K.C. Nwufo, the learned counsel for the 7th respondent was recorded as having submitted at page 105 of the record thus:
"We have & not been served with the respondents reply consequent (sic) we could not apply for pre-hearing conference. We apply for the matter to be adjourned because we ought to be served with the respondents reply before we apply for Form TF 007." Consequently, the lower tribunal stood down the matter to 12.30 pm for delivery of ruling. The said ruling is contained at pages 106 -107 of the record and it's to the following effect: RULING
The Hearing for today is to consider the status of some of the petitions before this Tribunal which are not being pursued in accordance with the provisions of the Electoral Act, 2006 and the Election Tribunal and Court Practice, 2007.
In the petition before us the petitioner filed his petition on the 14th of May, 2007, the 1st to 6th respondents filed their reply on 29th June, 2007, then the 7th respondent on the 7th June, 2007.
The 7th respondents reply was served on the petitioner on the 26th of June, 2007 and on the 1st to 6th respondent on the 12th of June, 2007. The Petitioner did not file any reply nor did he apply for Form TF 007.
We have noted that the 7th respondent has applied for the striking out of the petition on the ground of incompetence but it should be noted that this motion would have been taken if the necessary procedure was followed as provided in the Practice Directions but the failure to do so renders the said application unripe for hearing in the circumstance.
The petitioner by paragraph 3(1) of the Practice Direction ought to have brought an application 7 days after the 26th of June, 2007 since he did not file a reply to the respondent's reply after he was served with the respondent's reply Form TF007. But to dated (sic) 14th days, he did not do so.
lt is in view of this that we hold that this petition ought to be dismissed as it falls' in the category of abandoned petitions as per paragraph 3(4) of the Practice Direction (supra) and it is hereby dismissed:'
Both the 1st -6th respondents and 7th respondent's counsel have filled Notices of preliminary objection, which they' incorporated in their respective briefs of argument. The preliminary objection has been adequately dealt with in the lead judgment. I have accorded an ample, albeit very critical, consideration upon the three grounds of appeal raises an issue of law, and therefore could not be said to be of either fact or mixed law and fact.
It is a well settled principle of law, that the line of demarcation between a ground of law, in simpliciter, and one of mixed law and fact, is very thin indeed: The fundamental guiding principle is that a ground of appeal ought to be given a most liberal interpretation, so as to ascertain the question raised therein. Thus, the court has a duty to read both the particular ground of appeal and the particulars thereof, if any, as a whole. Where a ground of appeal; as in the instant case, raises an issue of law based on accepted, admitted or undisputed facts; or on facts as found by the trial court, then it's qualified to be a ground of law. Contrariwise however, where a ground of appeal is apparently based on facts in dispute, or unascertained; it is one of mixed law and fact. See Metal Construction (WA) Ltd. v. Migliore (1990) 1 NWLR (Pt. 126) 299; Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5 at 13; Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484; Obijuru v. Ozims (1985) 2 NWLR (Pt. 60) 167; N.S.C. v. E.S.U. (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 18;(2000) 13 NWLR (Pt. 684) 392 respectively.
In the light of the above postulations and the detailed reasoning contained in the lead judgment, I am of the view that the respondents counsel's preliminary objection in question are rather baseless and are accordingly hereby overruled by me.
The appellants have formulated three issues for determination in the brief thereof. On the other hand, the 1st -6th respondents and 7th respondent have formulated only one issue of determination in the respective brief thereof. Having contrasted the issues as a whole, I am of the view that issue No.3 raised in the appellants' brief is most fundamental and thus capable of determining the appeal. The said issue No.3 is to the following effect:
"Whether having regard to the facts and circumstances of the Dismissal of the appellants petition the appellants fundamental rights to fair hearing was not breached."
It is common knowledge that on 10/7/07, when the petition was dismissed suo motu by the tribunal, the appellant and his counsel, as well as the respondents counsel, were present on the lower tribunal. As could be gleaned from page 105 of the Record, after the parties' counsel had announced their appearances, one Mr. K.C. Nwufo, of counsel for the 7th respondent submitted thus:
We have not been served with the respondents reply consequent (sic) we could not apply for pre-hearing conference. We apply for the matter to be adjourned because we ought to be served with the respondent's reply before we apply for Form TF007."
In consequent of the above submission by the 7th respondent's counsel, the lower tribunal's chairman stood down the petition for ruling which has been copiously reproduced above. It's evident from the Record that a part from Mr. Nwufo, the respondent's counsel, Kelechi Nwaiwu (holding the brief of Chief A. Nwainu, SAN.) and U, Onwuzumgbo also appeared on that date for the petitioner and 1st respondent, respectively. However, neither the said Nwaiwu nor Onwuzumgbo was indicated to have been allowed by the lower tribunal to address it on the vexed issue of filing of respondents' reply and vis-a-vis Form TF007 in question. The lower tribunal simply stood down the petition to 12.30pm for ruling. As alluded to above, the ruling was to the effect, inter alia, thus:
"The petitioner by paragraph 3(1) of the Practice Direction ought to have brought an application 7 days after the 20'h of June, 2007 since he did not file a reply after he was served with the respondent's reply for Form TF007. But to dated (sic) 14 till days, (sic) he did not do so.
It is in view of this that we hold that this petition ought to be dismissed as it facts in the category of abandoned petitions as per paragraph 3(4)of the Practice Direction (supra) and it is hereby dismissed."
At page 6, paragraph 4.03 of the appellant brief, it was indicated that the appellant's counsel had informed the lower tribunal , that he had not been served with the respondents reply (to the petition). However, no argument was advanced to show that it was actually the appellant's counsel and not the 7th respondent's counsel Mr. K.C. Nwufo who made that submission. It's trite that an appellate court is strictly bound by the records of the lower court, unless there is cogent, unequivocal evidence to the contrary.
Be it as it may, it's rather obvious that the lower tribunal was in a gravious error when it proceeded to deliver the ruling in question, resulting in the arbitrary and summary dismissal of the petition. It goes without saying that, the fact that both the petitioner and his counsel were present in the lower tribunal on 10/7/07, is a clear confirmation of their interest in and readiness to prosecute the petition. Their presence in the tribunal on that date in question is most undoubtedly inconsistent with the attitude of a petitioner who has abandoned his petition.
There is not doubt that the procedure adopted by the lower tribunal in dismissing the petition prematurely and arbitrarily, is novel, to the provisions of the Election Tribunal and Court Practice Directions, 2007. Under the provisions of the Practice Directions, 2007 (supra), the lower tribunal has the power to dismiss a petition, in limine in the following two circumstances:
"3(3) The respondent may bring the application in accordance with subparagraph (l) above where the petitioner fails to do so, or by motion which shall be served on the petitioner and returnable in 3 clear days; apply for an order to dismiss the petition.
(4) Where the petitioner and the failure 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."
It is rather instructive, that the 7th respondent had on 07/7/07 filed an application praying the lower tribunal to dismiss the petition on the ground of incompetence, in accordance with paragraph 3 (4) of the Election Tribunal and Court Practice Directions, 2007 (supra).See pages 97 -98, as well as 91 -96 of the Record, respectively. Most unfortunately however, the said application was ignored by the lower tribunal. See page 107 of the Record, wherein the lower tribunal held inter alia, thus:
"We have noted that the 7th respondents has applied for the striking out of the petition on the ground of incompetence but it should be noted that this motion would have been taken if the necessary procedure was followed as provided in the Practice Directions but the failure to do so renders the said application unripe for: hearing in the circumstances.
The view, as expressed there above by the lower tribunal, is erroneous as much as. it's most unfortunate, with due respect thereto, It is a well-established doctrine that once a motion is duly filed by a Party in a court or tribunal, no matter how apparently frivolous it may be, it must be heard, determined, and accordingly ruled upon, one way or the other. In the instant case, the refusal or failure by the lower tribunal to entertain and determine the 7th respondent's motion filed on the said 07/7/07 was improper, to say the least, and thus a negation of the provisions of paragraph 3(3) of the Election Tribunal and Court Practice Directions, 2006 (supra).
What is more, the seeming exercising of the lower tribunal's power under paragraph 4(5) of the Practice Directions, 2007 (supra), has occasioned a breach of the appellant's fundamental right to fair hearing, cherishingly enshrined under section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, which provides thus:
"In the determination of his civil right 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 reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality."
It was most inappropriate for the lower tribunal to have proceeded, as it did, to dismiss the petition, suo motu .By doing so, it had arbitrarily trampled upon the appellant's fundamental right to fair hearing. It was not fair at all. It has no right or power to arbitrarily deprive the appellant of his cherishingly fundamental right to hearing. It should be reiterated, that the rule of fair hearing is merely a technical or rhetorical doctrine. It is most undoubtedly a principle of substance. This is so because, it goes beyond merely questioning whether a party is entitled to be heard before any decision is reached there against; but rather whether he had as a matter of fact, been given the opportunity to be heard. See Atan v. A.-G., Bendel State (1988)2 NWLR (Pt. 75) 201; Ntukidem v.Iko (1986) 5 NWLR (Pt. 45) 909; Kotoye v. C.B.N. (l986) 1 NWLR (Pt. 98) 419; Bamaiyi v. State (2001) FWLR (Pt. 46) 956, respectively.
I have earlier herein above, alluded to my preference for determining this appeal on the basis of the appellant No. 3 alone. The basis for doing so is not doubt predicated in well trite principle that, where an appellate court arrives at the conclusion that a party was entitled to be heard before a decision reached, but was not accorded the opportunity of a hearing the decision, order or judgment thus entered becomes null and void which is bound to be set aside. See Kotoye v. C.B.N. (supra)at 448, per Nnaemeka-Agu, JSC.
Thus, where a court holds, as in the instant case, that party's fundamental right to fair hearing has been breached by a lower court or tribunal, it may not be necessary at all to consider other issues that may have been raised in the briefs of argument of counsel.
Hence, in the light of the above postulations, and the detailed reasoning and conclusion reached in the lead judgment, I have no hesitation whatsoever in holding that the appeal is meritorious, and same is accordingly hereby allowed by me. .
Consequently, the lower tribunal's ruling date 10/7/07, dismissing the appellant's petition No. ABS/SHA/EPT4/07 is hereby set aside. The said petition is hereby remitted to the Abia State Governorship and Legislative Houses Election Tribunal, holden at Umuahia to be heard and determination on the merits by a differently constituted panel.
I hereby by the cost of N30, 000.00 awarded in favour of the appellant against the respondents.