Chief Joseph Adolo Okotie-eboh V. Chief James Ebiowo Manager & Ors (2004)
LAWGLOBAL HUB Lead Judgment Report
EDOZIE, J.S.C.
The appellant and the 1st respondent herein together with one other who is not a party in this proceeding are members of the Peoples Democratic Party (P.D.P. for short) in the Delta State South Senatorial District. As prospective candidates for the 2003 general election to the Senate, all the three contested the P.D.P. primary election for the Delta State South Senatorial District. At the end of the primary election, the 1st respondent scored the highest number of votes followed by the appellant who emerged second. Aggrieved thereby, the appellant addressed a petition to the P.D.P. (2nd respondent) alleging, inter alia that the 1st respondent was not qualified to have contested the primary election on the ground that on a previous occasion he was indicted by a Local Government Council Election Tribunal for electoral malpractice. The petition was considered by the Delta State Electoral Panel of the party which upheld the petition, disqualified the 1st respondent and recommended that the appellant should be nominated as the party’s candidate for the general election. Against this recommendation, the P.D.P. (2nd respondent) nevertheless submitted the name of the 1st respondent to the Independent National Electoral Commission (INEC) the 3rd respondent, herein, as its candidate for the Delta State South Senatorial District who after the general elections emerged victorious.
Meanwhile, the appellant as plaintiff before the general election was conducted, had in the High Court of the Federal Capital Territory sitting in Abuja in suit No. FCT/11/CV/208/2003 filed on 30th February, 2003 commenced an action by an originating summons against the respondents as defendants seeking against them the following five reliefs, to wit:-
“1. A declaration that by virtue of the provisions of section 66(l)(h) of the 1999 Constitution and Guideline 23(b) of the Electoral Guidelines for Primary Elections, 2003 of the Peoples Democratic Party, the 1st defendant is not qualified to contest the primary election of the Peoples Democratic Party in the Delta State South Senatorial District and the 2003 general election to the
Senate because he is a person who has been indicted for fraud by the then Bendel State Local Government Council Election Tribunal set up under the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 15 of 1989 in a judgment delivered on 20th March, 1991 in suit No. W/ET/1/90 between Mr. F. Wenetu Edonkunoh v. J. E Manager & 5 others.
- A declaration that the purported election of the 1st defendant James Ebiowo Manager as the Peoples Democratic Party’s candidate for the Delta State South Senatorial District in the general election to the Senate of the Federal Republic of Nigeria is unconstitutional, null and void.
- A declaration that the plaintiff being the candidate with, the second highest number of votes at the Peoples Democratic Party primary election in the Delta South Senatorial District is the person entitled to have his name submitted by the 2nd defendant to the 3rd defendant as the party’s candidate for the general election to the Senate of the Federal Republic of Nigeria.
- An injunction restraining the 3rd defendant whether by itself, its servants, agents and or representatives from treating the 1st defendant as the defendant’s candidate for Delta State South Senatorial District in the 2003 general election to the Senate of the Federal Republic of Nigeria.
- An order directing the 2nd defendant to substitute the plaintiff’s name for the 1st defendant as the 2nd defendant’s candidate for Delta State South Senatorial District in the 2003 general election to the Senate of the Federal Republic of Nigeria.”
The originating summons was supported by an affidavit of nineteen paragraphs sworn to by the appellant and had annexed to it five exhibits including exh. “JA 0-4” being the judgment of the Bendel State Local Government Council Election Tribunal in suit No. W/ ET/1/90 between F. Wenetu Edonkumoh v. J.F. Manager (1st respondent herein) delivered on 20th March, 1991 wherein that tribunal nullified the election of the 1st respondent as the Chairman of Bomadi Local Government Council on the ground of double registration and voting twice at the said election. There was also a further affidavit by the same deponent to which was annexed as exh. A., the constitution of the P.D.P.
In his reaction to the originating summons, the learned senior counsel for the 1st respondent by a notice of preliminary objection filed in court on 26th of February, 2003 raised objection to the jurisdiction of the court on the following grounds:
“1. The plaintiff’s suit does not disclose any cause of action or cognisance reasonable cause of action.
- The suit as presently constituted is incompetent.
- The subject matter borders on internal affairs of a political party which this court cannot entertain.”
The preliminary objection was taken on 27th February, 2003 and in the course of arguments of learned counsel, a wide range of issues was canvassed which misled the learned trial Judge in having unknowingly to make remarks which appears to have pre-judged the merit of the main suit. This is contrary to the principle that in a ruling on an interlocutory application, the court should avoid making any observation that might appear to prejudge the main issue in contention between the parties: see Sylvanus Mortune v. Alhaji Mohammed Gambo (1979) 3-4 SC 54 at 56; (1983) 4 N.C.L.R 237 at 242. In an interlocutory matter, parties must not only shy away from the merit of the matter but must completely refrain therefrom; Ojukwu v. Government of Lagos State (1986) 3 NWLR (Pt. 26) 39. In his ruling delivered on 5th March, 2003, the learned trial Judge held, inter alia, that section 66(1)(h) of the 1999 Constitution relied upon by the appellant in canvassing the disqualification of the 1st respondent from the primary election was unavailing as there was no evidence of Government’s acceptance of the report of the tribunal that indicted the 1st respondent and furthermore that the election tribunal that tried him was not the type contemplated by section 66(1)(h) of the 1999 Constitution. The court further decided, relying on the authority of Onuoha v. Okafor (1983) 2 S.C.N.L.R. 244 at 267 that the appellant’s action which raises the question of the candidate a political party will sponsor in an election was a political question over which it has no jurisdiction to decide. Accordingly the appellant’s claims were struck out and the suit dismissed.
Expectedly, the appellant by a notice of appeal filed on 6th March, 2002 and subsequently amended, lodged an appeal to the Court of Appeal, Abuja Division sub-joining to the amended notice five grounds of appeal. In a motion for departure from the rules of court to compile the record of appeal and for accelerated hearing of the appeal, the appellant indicated that he intended to submit only one issue for determination which he spelt out in the motion paper. As the 2nd and 3rd respondents did not participate in the proceedings, both in the two lower courts and in this court, the 1st respondent will be referred to simply as the respondent.
Briefs were filed and exchanged between the appellant and the respondent in the court below but before the appeal could be heard, learned senior counsel for the respondent brought a second notice of preliminary objection filed on 23rd April, 2003 contending that since the general elections into the National Assembly had been conducted on 12th April, 2003, and the respondent returned as duly elected, as the candidate of Delta State Senatorial District, the court could no longer entertain the subject matter of the appeal by virtue of the combined effect of sections 131(1) and 134 of the Electoral Act, 2000 (as amended) and section 285(1) of the Constitution of the Federal Republic of Nigeria, 1999. On 30th of April, 2003, both the appeal and the second preliminary objection were argued simultaneously, and in the leading judgment delivered on 2nd July, 2003 by Oduyemi, J.C.A. concurred in by Oguntade, J,C.A. as he then was, and Bulkachuwa, J.C.A. the Court of Appeal dismissed the appeal and glossed over the second preliminary objection as it appears it did not express any opinion thereon. Both parties being dissatisfied with the judgment, the appellant further appealed against the dismissal of his appeal while the respondent cross-appealed on the failure of the Court of Appeal to pronounce on the second preliminary objection.
Before us, therefore, there are the appellant’s/cross-respondent’s appeal and the respondent’s/cross-appellants cross-appeal. Both parties filed and exchanged written briefs of arguments which they adopted with oral address in expatiation of the written briefs. For the appellant, there is the appellant’s brief filed on 7th November, 2003 and a reply brief filed on 28th July, 2004. The respondent relied on his brief filed on 30th April, 2004 and a cross-respondent’s brief filed the same date. It is proposed to consider the appellant’s appeal first and later the cross-appeal.
With respect to the appellant’s appeal predicated on two grounds of appeal from which two issues for determination were distilled, the respondent has raised a preliminary objection on the competency of ground 2 thereof and issue 2 formulated therefrom. The reason for the objection according to the learned senior counsel for the respondent is that the said ground 2 which is labelled “misdirection of law” implies on a careful analysis of that ground and its particulars a combination of both misdirection of law and errors in law lumped together as one ground of appeal. This, learned counsel submits is bad in law stressing that a ground of appeal alleging misdirection of law and error in law cannot co-exist as they are mutually exclusive, disjunctive and ought to be struck out, supporting his proposition with a litany of cases, to wit, Amadi v. Okoli (1977)7 SC 57; (1977) N.S.C.C. (Vol. II) 117 at 119-120, Okorie v. Udom (1960) SCNJ 326; (1960) N.S.C C (Vol. I) 108, Nnabuife v. Nwigwe (2001) 9 NWLR (Pt. 719) 710 at 722, Obi v. Owolabi (1990) 5 NWLR (Pt.153) 702 at 716-717 and Abu v. Ogli (1995) 8 NWLR (Pt. 413) 353 at 366-367 among others.
Admittedly a ground of appeal alleging a misdirection is distinct from the one described as error-in-Iaw. According to Black’s Law Dictionary, 6th Edition, p. 999, a misdirection is an error made by a Judge in instructing the jury upon the trial of a cause.
In a legal system such as ours in which the Judge also performs the function of the jury, a misdirection occurs when the Judge misconceives the issues, whether of facts or of law, or summarises the evidence inadequately or incorrectly. The misdirection may take the form of a positive act or mere non-direction: See Chidiak v. Laguda (1964) N.M.L.R. 123 at p. 125; Nwadike v. Ibekwe (1987) 4 N.W.L.R. (pt.67) 718 at 744. But a ground of appeal alleging error in law relates to a finding of the court Chidiak v. Laguda supra. For quite sometime, doubts had been expressed about the validity of a ground of appeal alleging a misdirection of law and error in law, but the decision of this court in Nwadike v. Ibekwe supra did not appear to have gone far enough to invalidate such grounds of appeal. It needs to be stressed that the essence of a ground of appeal is to appraise the opposite party of the nature of the complaint being raised therein and the overriding consideration is whether the ground is clearly stated or vague. This appears to be the outcome of the recent judgment of this court in the case of Aderounmu v. Olowu (2000) 4 N.W.L.R. (Pt. 652) 253 at pp. 265 to 266, where Ayoola, J.S.C., delivering the leading judgment to which the rest of the Justices concurred, had this to say:-
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality, whereby the court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this court and in the Court of Appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal, and, that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information, to the other side, of the precise nature of the complaint of the appellant and, consequently, of the issues that are likely to rise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form.
In my opinion, what is important in a ground of appeal, and the test the court should apply, is whether or not the impugned ground shows clearly what is complained of as error in law and what is complained of as misdirection, or, as the case may be, error of fact. The view, with which I am inclined to agree, is expressed in the Court of Appeal case of Njeogwuija & Ors. v. lkuru & Ors. (1998) 10 N.W.L.R. (Pt. 569) 267, 310 that the mere fact that a ground of appeal is framed as an error and a misdirection does not make it incompetent. In my view, only general propositions can be made in a matter in which the question is not as to form. It must be realised, and emphasised, that, ultimately, an unobjectionable ground of incompetence of a ground of appeal, in the con of the question raised in this appeal, is to be sought in its lack of preciseness or specificity in, or the ambiguity of, what it complains about. In this wise, it is not a question of formal defect but of the ground not satisfying the requirement of preciseness and specificity, set by the rules of appellate procedure. Ultimately, it is for the court before which the question is raised to decide whether, viewed objectively, the ground satisfies the requirements of preciseness and clarity. A proposition widely stated that a ground alleging an error and misdirection is not incompetent is as objectionable as proposition that every such ground is incompetent. What makes a ground incompetent is not whether it is framed as an error and a misdirection but whether by so stating it, the other side is left in doubt and without adequate information as to what the complaint of the appellant actually is.
In this case, notwithstanding the formulation of the grounds of appeal that were struck out, the detailed statement of the particulars of error and the clear statements of what the appellants conceived to be errors in law and misdirection in fact in the judgment of the trial Judge, satisfied the requirement of the rule as to formulation of grounds of appeal. To hold otherwise will be tantamount to insistence on form rather than substance.”
Bearing the above principles in mind it is now appropriate to consider the question of the validity or otherwise of ground 2 of the grounds of appeal complained of. For a better appreciation and nature of the ground of appeal in question, I find it convenient to reproduce it in extenso together with the issues distilled from it. Ground 2 reads ‘-
“Ground two
The Court of Appeal misdirected itself in law when it held per Oduyemi, J.C.A. as follows:
“The following provisions of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 15 of 1989 – (Now Cap. 213, L.F.N., 1990) are relevant:
S.59 .
S.60 .
S.61 .
S.62 .
S.63 .
Finally, S.64 provides thus:
“64. Every person who is convicted of an offence against sections 59, 60, 61, 62 and 63 of this Act shall (in addition to any other punishment) not be eligible, during the period of three years after the date of his conviction-
(a) of voting at any Local Government election in any state; or
(b)of being elected as a member of a Local Government Councilor if elected before his conviction of retaining his seat.”
…
…
There is no doubt in my mind that the period of the bar imposed by the 1989 Decree under which he was convicted in 1991 had long expired in March, 1994. Furthermore, if the 1st defendant is to be found liable to a second jeopardy under the 1999 Constitution, such liability has not been found in express words in section 66(1)(h) and not by any inference or implication. There is no such clear or express provision in S. 66(1)(h). In the event, I hold that the lower court was correct in the construction it gave to S. 66 (1)(h) of the 1999 Constitution with regard to the action of the plaintiff/ appellant. S. 66(1)(h) is not a bar to the electoral ambition of 1st defendant in 2003.”
Particulars of misdirection
(a) Section 66(1)(h) of the 1999 Constitution relied upon by the appellant, inter alia, disqualifies
any person who has been indicted of fraud by a Judicial Commission of Inquiry or Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunal of Inquiry Law or any other Law by the Federal or State Government from contesting election into the Senate or House of Representatives.
(b) The judgment in suit No. W/ET/1/90 between F. Wenetu Edonkumoh v. J. E. Manager & 7 Others which was relied upon by the appellant did not convict the 1st respondent but only indicted him for electoral fraud and the judgment was delivered by a tribunal set up under a law made by the Federal Government.
(c) S. 64 of the Local Government (Basic Constitutional and Transitional Provisions) Act does not apply to this case.
(d) In the premises the Court of Appeal ought not to have upheld the construction which the trial court gave to section 66(1)(h) of the 1999 Constitution.”
The second issue for determination in the appellant’s brief supposedly based on that ground of appeal reads thus:-
“Whether the Court of Appeal was right in its conclusion that section 66(1)(h) of the 1999 Constitution was not a bar to the electoral ambition of the 1st respondent in 2003.”
In my candid opinion, I think the ground of appeal under consideration was drafted with sufficient clarity. It seems clear to me that the ground posits in the main that the court below considered the applicability of sections 59 to 64 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No.15 of 1999 (Cap. 213, Laws of the Federation of Nigeria, 1990) which deals with the consequences of the conviction of a person as a disqualification for contesting an election into a political office whereas the appellant was relying on the indictment of a person by a tribunal for embezzlement or fraud as a ground for the disqualification of the respondent pursuant to section 66(1)(h) of the 1999 Constitution which he alleged was wrongly construed. The issue formulated did not however quite accurately reflect and encompass fully the complaint in that ground. It may be modified and redrafted more appropriately thus:-
“Whether the Court of Appeal was correct in considering the applicability of the provisions of sections 59-64 of the Local Government (Basic Constitutional and Transitional Provisions) Act, Cap. 213, Laws of the Federation of Nigeria, 1990 in relation to the eligibility of the respondent to contest the 2003 general election into the National Assembly and in concluding that section 66(1)(h) of the 1999 Constitution is not operative to disqualify him.”
In the light of the foregoing, I hold that ground 2 of the appellant’s grounds of appeal is competent. Consequently, I overruled the preliminary objection raised thereunder.
The appellant’s main appeal will now be considered. The first issue for determination as formulated in the respondent’s brief which I adopt as adequately reflecting ground 1 of the appeal is in the C following terms:-
“Whether the Court of Appeal was right in striking out issues Nos. 2 and 3 which were submitted for determination by the appellant on the ground that leave of court was not sought and obtained to raise them, the issues having been subsumed in issue No.1 therein.”
As I had mentioned tangentially in the introductory part of this judgment, the background facts relating to this issue are that after the appellant had filed his notice of appeal as amended before the Court of Appeal, he subsequently brought before that court an interlocutory application for departure from the rules of court and accelerated hearing of the appeal indicating that only one issue would be submitted for determination, that issue being,
” … whether the question as to the eligibility of the 1st respondent to contest election as a senatorial candidate under the 2nd respondent’s Electoral Guidelines and section 66(1)(h) of the 1999 Constitution is a political question which is within the domestic affairs of the 2nd respondent or a constitutional question which only the court can entertain.”
In his brief of argument in the court below, the appellant submitted three issues for determination, the fourth having been abandoned.
The three issues are reproduced hereunder:-
“1. Whether having regard to the provisions of Guideline 23(b) of the Electoral Guidelines for Primary Elections, 2003 of the P.D.P. and section 66(1)(h) of the Constitution of the Federal Republic of Nigeria, 1999, the question as to the eligibility of the 1st respondent under those provisions to contest the primary election of the 2nd respondent in the Delta State South Senatorial District was a political question which is within the domestic affairs of the 2nd respondent or a constitutional question which the court can entertain.
- Whether the learned trial Judge was right in holding that the Bendel State Local Government Council Election Tribunal which indicted the 1st respondent in 1991 was not within the contemplation of section 66(1)(h) of the 1999 Constitution.
- Whether the learned trial Judge was right in holding that the only proof of government’s acceptance of the indictment of the 1″ respondent by the tribunal under section 66(1)(h) of the 1999 Constitution is by a white paper issued by the Government or publication in a gazette.”
As is evident from the above three issues, the common or central question raised by each of them is the question of the disqualification of the respondent to contest the general election pursuant to section 66(1)(h) of the 1999 Constitution. It is not surprising therefore that in its reaction to the above three issues, the Court of Appeal, per the leading judgment of Oduyemi, J.C.A. commented on p. 261 as follows:-
“However, it would be recalled that the application for leave of this court in connection with the order for departure from the rules of this court was obtained on the ground that the only issue to be submitted by appellant for determination by the court is the issue now contained in issue 1. No leave has been sought to include the issues now raised as issue No.2 and issue No.3. Accordingly, issues Nos. 2 and 3 which in any case, are already subsumed in issue No. 1 are struck out.”
(Italics for emphasis)
The learned senior counsel for the appellant has vigorously criticized the above quoted statement of the Court of Appeal and its order striking out issues 2 and 3. In this regard, he submitted that in so far as the court below did not in its order granting the appellant’s interlocutory application limit the issues to be submitted for determination to only one issue, the appellant was not in anyway estopped or debarred from raising additional issues for determination if they properly arose from the grounds of appeal. He canvassed that by striking out issues 2 and 3, the court below failed to hear the appellant on those issues and as such it was in breach of his right to fair hearing as guaranteed by section 36(1) of the 1999 Constitution citing in aid of the submission the following authorities:- Obodo v. Olomu (1987) 3 N.W.L.R. (Pt. 59) 111 at 123-114, Osafile v. Odi (No.1) (1990) 3 N.W.L.R. (Pt. 137) 130 at 156. In his reply, the learned senior counsel for the respondent submitted that the court below was justified in striking out issues 2 and 3 in the appellant’s brief since having indicated in his motion for departure from the rules that he was relying on only one issue, he cannot approbate and reprobate stressing that there was no breach of fair hearing and for these contentions the cases of Odiase and Anor. v. Aghor and Ors. (1972) 1 All NLR 170 and Ibori v. Agbi & Ors. (2004) 6 NWLR (Pt. 868) 78 at 122-123 were referred to. It was further canvassed that as the two issues in question were subsumed under issue one, they were considered by the court below and therefore no miscarriage of justice had occurred and for this contention, the case of Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270 at 285 was alluded to.
I am entirely in agreement with the submissions of learned senior counsel for the respondent. The court below categorically stated, and this has not been refuted or challenged, that appellant’s issues two and three were subsumed in his first issue which the court elaborately considered. The implication, in my view, is that the questions raised under those two issues were dealt with while considering issue one of the appellant’s brief in the court below. The striking out of the two issues in question was of no consequence. It is a sweeping statement by the appellant to say that the striking out of those two issues was a breach of his right to fair hearing. With profound respect, the learned senior counsel for the appellant has not been able to pinpoint at or identify any important point he canvassed under the two issues under consideration which the court below did not adequately address in its consideration of the first issue. As I had earlier observed, the central question running through all the appellant’s three issues in the court below is the disqualification or eligibility of the respondent to contest the 2003 general election having regard to the provisions of section 66(1)(h) of the 1999 Constitution. The court below appreciated this when at p. 264 of the record it observed thus:-
“With respect, in the circumstances of this case, the issue for determination in this appeal can be put succinctly thus:-
From the facts disclosed in the originating summons before the lower court, is the 1st defendant disqualified for election into the National Assembly under section 66(1)(h) of the Constitution of the Federal Republic of Nigeria, 1999.”
In consideration of that issue, the court below dealt comprehensively with all the relevant issues canvassed by the appellant. Furthermore, although a court is bound to consider all the issues properly before it, the failure to do so is not necessarily fatal to the judgment appealed against. In the case of Balogun v. Labiran (1988) 3 NWLR (Pt. 80) 66 at 80, this court agreed with the submission of counsel that the Court of Appeal was obliged to consider and pronounce on all grounds of appeal filed and argued before it but that failure to do so however is not necessarily fatal to the judgment if the failure to do so had not occasioned a miscarriage of justice. The case of Obi Nwanze Okonji and 4 Ors. v. George Njokanma and 2 Ors. (1991) 7 NWLR (Pt. 202) 131 and 146 is authority for the view that when a party submits an issue for determination, the court must make a pronouncement on that issue except where the issue is subsumed in another issue. Again, in the case of Alhaji Oladoja Sanusi v. Oreitan Ishola Amoyegun (1992) 4 N.W.L.R. (Pt. 237) 527 at 550-551, this court, opined that an appellate court may not consider all the issues raised before it by parties if the only issue considered by the appellate court is not raised in the alternative but cumulatively with other issues and the consideration of that issue makes it unnecessary for other issues raised to be considered. In the instant appeal, being of the view that notwithstanding that the court below struck out appellant’s issues 2 and 3, this court, nevertheless, considered along issue 1 the questions, germane to issues 2 and 3 and consequently the appellant’s right of fair hearing had not been compromised. I resolve issue 1 in the, present appeal against the appellant.
The 2nd issue for determination which I reframed has already been set out. At the risk of repetition, it is reproduced hereunder:” Whether the Court of Appeal was correct in considering the applicability of the provisions of sections 59-64 of the Local Government (Basic Constitutional and Traditional Provisions) Act, Cap. 213, Laws of the Federation of Nigeria, 1990 in relation to the eligibility of the respondent to contest the 2003 general election into the National Assembly and in concluding that section 66(1)(h) of the 1999 Constitution is not operative to disqualify him”
On this issue, the learned senior counsel for the appellant referred to a passage of the judgment of the court below on pages 246-266 of the record where it considered the punishment imposed on a person convicted of offences under sections 59 to 63 of Cap. 213, L.F.N., 1990 as disqualifying such a person during the period of three years after the date of the conviction of the offence from voting in any Local Government election in any state or being elected as a member of a Local Government Council and observed that the period of the bar imposed by the said law under which the respondent was convicted in 1991 had long expired in March, 1994. It was submitted that that was a misdirection because what the appellant relied upon in seeking to nullify the primary election of the respondent was his indictment by a tribunal for embezzlement or fraud as provided by section 66(1)(h) of the 1999 Constitution. He canvassed that the misdirection had occasioned a miscarriage of justice by misleading the court below into affirming the wrong interpretation of the said section 66(1)(h) of the 1999 Constitution by the trial court. On the proper interpretation of that section, counsel referred to the canons of interpretation of statutes as enunciated in the cases of Rabiu v. The State (1980) 2 NCLR 293; (1980) 8-11 SC 130 at 148-149 and Ifezue v. Mbadugha (1984) 1 SCNLR 427 at 447 and submitted that the provision of section 66(1)(h) of the 1999 Constitution is unambiguous stressing that by the words “a tribunal set up under any other law by the Federal or State Government” appearing in the provision, the categories of tribunals contemplated are not limited. Therefore, he submitted that the election tribunal set up under section 70(1) of Cap. 213, L.F.N., 1990 which in 1991 indicted the respondent for double registration and voting twice at any election comes within the purview or contemplation of the section adding that it was not necessary to prove acceptance by the Government of the decision of the election tribunal by white paper or Gazette publication because the decision of the election tribunal has a binding force by virtue of section 76(1) of Cap. 213, L.F.N., 1990 and that, in any case, appellant’s averment of Government’s acceptance in the affidavit in support of the originating summons was uncontradicted. Learned senior counsel further referred to the case of Onuoha v. Okafor (1983) 2 SCNLR 244 which he concedes is the leading authority for the proposition that a court has no jurisdiction to entertain a claim over which candidate of a political party should be sponsored for an election into a political office as that involves a political question. He submitted that the principle in Onuoha’s case supra was wrongly applied to the instant case, as the facts in the two cases are not on all fours. The case of Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (Pt. 105) 558 at 650 was alluded to. He drew attention to the fact that reliefs 3, 4 and 5 had been withdrawn submitting that the remaining reliefs are justiciable adding that by virtue of section 21(1)-(5) of the Electoral Act, 2002 the court has jurisdiction to entertain the appellant’s claim.
In reply to the above submission, the learned senior counsel for the respondent adverted to the 1st relief in the originating summons which shows that the appellant was contending that a person indicted for fraud by the Bendel State Local Government Counsel Election Tribunal set up under Cap. 213, L.F.N., 1990 is disqualified to contest the election the subject-matter of the suit by virtue of section 66(1)(h) of the 1999 Constitution. He, therefore, submitted that the court below was eminently justified in considering, as it did, the applicability of the provisions of the two laws in relation to the eligibility of the respondent to contest the election, stressing that it was a misconception by the appellant to canvass that the court below was misdirected or misconceived as to the case put forward by him (appellant) and that it was not his case that the respondent was convicted of an offence against any of the provisions of sections 59 to 63 of Cap. 213, L.F.N., 1990. It was further submitted that assuming but without conceding that there was a misdirection, it is not in all cases where there is a misdirection that an appeal will be allowed, pointing out that the court below by reference to the provisions of sections 59 to 64 of Cap. 213, L.F.N., 1990 was at best, giving additional reason in affirming the judgment of the trial court. The case of U.B.A. Ltd. v. Achoru (1990) 6 NWLR (Pt. 156) 254 at 274-275 was alluded to. Dealing with the interpretation of section 66(1)(h) of the 1999 Constitution, learned counsel submitted that the court below was justified and on a strong wicket when it affirmed the judgment of the trial court to the effect that the election tribunal is not one of the bodies or tribunals contemplated under section 66(1)(h) of the 1999 Constitution adding that apart from the description of the categories of tribunals and bodies mentioned therein, the indictment of a person by such tribunals or bodies must be accepted by the Federal or State Government as the case may be and that in the instant case there was no evidence of such acceptance. On the use of the word “any” in the expression “A tribunal set up under any other law by the Federal or State Government” appearing in the section, learned counsel submitted that the word must be construed ejusdem generis to mean any panel of inquiry or tribunal specifically set up to investigate or try persons for allegations of embezzlement or fraud and that an election tribunal must have its terms related to an election petition not to embezzlement or fraud. The cases of Texaco (Nig.) Plc. v. Lukoko (1997) 6 N.WL.R. (Pt. 510) 651 at 664 and Shell v. F.B.I.R. (1996) 8 NWLR (Pt.466) 256; (1996) 970 SCNJ 231 at 262 and section 76(1) of Cap. 213, L.F.N., 1990 were referred to.
Finally, we were urged to follow the principle distilled in Onuoha v. Okafor (1983) 2 SCNLR 244 as reaffirmed in Dalhatu v. Turaki (2003) 15 NWLR (Pt. 84 3) 310.
A perusal of the appellant’s first prayer in the originating summons shows clearly that in seeking the disqualification of the respondent to contest the elections the subject matter of the suit, reference was made to, inter alia section 66(1)(h) of the 1999 Constitution and Cap. 213, L.F.N., 1990. That being the case, it was not out of place for the court below to consider the provision of section 66(1)(h) and the pertinent provisions of Cap. 213, L.F.N., 1990, to wit sections 59 to 64 therein. Even if it was not necessary to consider the latter provisions in the determination of the disqualification, at best, the reference to them in the judgment of the court below was a mere surplusage or a superfluity. I accept it as a correct statement of the law that it is not in all cases that a misdirection leads to allowing of an appeal. A misdirection which does not lead to a miscarriage of justice is of no consequence. Where the judgment of the court is right but the reasons therefore are wrong the appellate court does not interfere. It is only where the misdirection has led the court to a wrong conclusion that the appellate court will interfere: Abaye v. Ofili (1986) 1 N.WL.R. (Pt. 15) 134 at 179, Emmanuel Ayeni and others v. William Sowemimo (1982) 5 SC 60 at 73, Ojengbede v. Esan (2001) 18 N.WL.R (Pt. 746) 771 at 780-79, Agbaje v. Ajibola (2002) 2 NWLR (Pt. 750) 127 at 145, Ukejianya v. Uchendu (1950) 13 WACA 45. It was contended in the instant case on behalf of the appellant that the alleged misdirection had misled the court below in incorrectly construing section 66(1)(h) of the 1999 Constitution being the main provision relied upon by the appellant for the disqualification of the respondent. The contention is debunked by counsel for the respondent who asserted that the interpretation of the provision by the court below is correct. The factual basis upon which the provision of section 66(1)(h) was invoked is not disputed.
In 1991, the Bendel State Local Government Council Election Tribunal nullified the election of the respondent as the Chairman of Bomadi Local Government Council on the ground of double registration and voting twice at the said election. It is this stigma that the appellant wants to visit on the respondent to disqualify him from contesting the 2003 general election into the National Assembly pursuant to section 66(1)(h) of the 1999 Constitution. The section ordains:-
“66(1) No person shall be qualified for election to the Senate or the House of Representatives if –
(h) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunal of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government respectively.”
(Italics for emphasis)
As vigorously agitated by both sides, the bone of contention is whether the Bendel State Local Government Council Election Tribunal which in 1991 nullified the election of the respondent as the Chairman of the Bomadi Local Government Council for electoral malpractice and which was established by section 70(1) of Cap. 213, L.F.N., 1990 is within the contemplation of section 66(1)(h) of the 1999 Constitution quoted above. According to the canons of interpretation of statutes, it is a cardinal principle that where the ordinary plain meaning of the words used in a statute are very clear and unambiguous, effect must be given to those words without resorting to any intrinsic or external aid: See Awolowo v. Shagari (1979) 6-9 SC 73, Adejumo v. Military Govemor, Lagos State (1972) 3 SC 45, A.-G., Bendel State v. A.-G., Federation (1982) 3 N.C.L.R.
- It is also a recognised principle of interpretation of statutes that statutes which encroach on the rights of the subject whether as regard person or property are construed as penal laws fortissime contra proferentes, that is, strictly in favour of the subject: Bello v. Diocesan Synod of Lagos (1973) 3 SC 103, A.-G Bendel State v. Aideyan (1989) 4 NWLR (Pt. U8) 646; Abioye v. Yakubu (1991 5 NWLR (Pt. 190) 130; Din v. A.-G .. of the Federation (1988) 4 N.W.L.R. (Pt. 87) 147, Peenok Investments Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR 122.
Another recognised canon of interpretation is the ejusdem generis rule which provides that where particular words are followed by general words, the general words are limited to the same kind as the particular words, unless, of course, there be something to show that a wider sense was intended: Allen v. Emmerson (1944) 1 K.B. 362, Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 at 536, Shell v. F.B.I.R. (1996) 8 NWLR (Pt.466) 256; (1996) 970 SCNJ 231 at 262.
Bearing the above principles of interpretation in mind and being of the view that a law which seeks to disqualify a person from contesting an election on ground of indictment for embezzlement or fraud imposes a disability and ought to be interpreted strictly, it is therefore my view that the expression “or any other (tribunal) by the Federal or State Government” appearing in the section must be interpreted to be restricted to the tribunals or inquiry or bodies mentioned in the section which were set up to investigate a person of allegations of embezzlement or fraud and whose report of indictment of such person in that regard has been accepted by the Government. It seems to me that by this interpretation, the aforesaid Bendel State Local Government Election Tribunal is not contemplated firstly, because though set up under a Decree or Act of the Federal Government, it was set up to hear election petition and not allegations of embezzlement or fraud, and more relevantly, its decision is not subject to government’s acceptance by virtue of its enabling law as lightly conceded by the learned senior counsel for the appellants. In his contribution to the judgment of the court below, Oguntade, J.C.A., as he then was, hit the nail at the head when His Lordship rightly observed thus:-
“Now, it is settled law that a statute which imposes a penalty on a citizen ought to be interpreted strictly: See Okure v. Federal Board of Inland Revenue (1974) 4 S.C. 93. There is no doubt that the purpose of section 66(1) of 1999 Constitution is to deny to some citizens the right to contest to be member of the National Assembly if they had at one time or the other done certain things. The provision imposes a disability. It is therefore penal in nature.
Interpreting section 66(1)(h) strictly as I should, I ask myself the question whether the judgment of an election tribunal given in 1991 is by the force of section 66(1)(h) of the 1999 Constitution able to disable a citizen from being elected a member of the National Assembly. I think not. The provision cannot be stretched to include a court judgment. This is because the judgment of a court does not derive its validity from an acceptance by the Federal or State Government as section 66(1)(h) conveys. The judgment of the election tribunal given in 1991 in W/ET/1I90 does not in my view fall within the category of tribunals under section 66(1)(h) of the 1999 Constitution.”
The above reasoning is sound and cannot be faulted. Consequently, I hold that the court below was correct in its interpretation of section 66(1)(h) of the 1999 Constitution and that the alleged misdirection complained about by the appellant did not occasion any injustice.
With respect to the appellant’s contention that the principle in Onuoha’s case supra has been misapplied in the instant case, and that the appellant’s claims could be entertained under section 21(1)-(5) of the Electoral Act, 2002, I find myself unable to express any opinion thereon. This is so, because there is no ground of appeal and issue on which those complaints can be entertained. There is no ground of appeal alleging error in law by misapplication of the principles in Onuoha’s case in the instant case nor was the applicant’s claims based on section 21(1)-(5) of the Electoral Act, 2002. When an issue for determination has been formulated, it is, with respect, improper for counsel to canvass matters which do not fall within the scope or ambit of the issue so formulated. Even with the wider scope of issue No.2 as redrafted by me and from the appellant’s amended grounds of appeal there is no room for canvassing that Onuoha’s case was misapplied in the instant case or that the appellant’s claims are cognisable under section 21(1)-(5) of the Electoral Act, 2002. The two lower courts found, rightly in my view that on the authority of Onuoha’s case supra, the appellant’s claims being of a political nature was not justiciable. There is no appeal against that finding. It is trite law that a finding against which there is no appeal remains binding and conclusive: see Alakija v. Abdulahi (1998) 6 NWLR (Pt. 552) 1 at p. 24, Odiase v. Agho (1972) All NLR (Pt. 1) 170; Foreign Finance Corps. v. L.S.D.PC. (1991) 1 N.S.C.C 520, P N. Udoh Trading Co. Ltd. v. Abere (2001) 11 N.WL.R. (Pt. 723) 114 at 146, Yesufu v. Kupper International N. V (1996) 5 N.WL.R (Pt. 446) 17, Nwabueze v. Okoye (1988) 4 N.WL.R. (Pt. 91) 664.
In view of the foregoing, all the paragraphs of the appellant’s brief dealing with the matters under consideration are hereby struck out. On the crucial question about the proper interpretation of section 66(1)(h) of the 1999 Constitution there was a concurrent finding of the two courts below that the Bendel State Local Government Council Election Tribunal does not come within the contemplation of the said section and that its decision in suit No. W/ET/1/90 did not operate to disqualify the respondent to contest the 2003 general election into the National Assembly. I see no reason to disturb these findings. I will also resolve the second issue for determination against the appellant.
It now remains for me to consider the cross-appeal. As noted earlier, the appellant’s appeal is the product of the 1st preliminary objection in the trial court by the respondent challenging the jurisdiction of that court to entertain the appellant’s claims on the ground, inter alia, that it raised a political issue. That objection was upheld by the two lower courts. The cross-appeal arose from a second preliminary objection in the court below by the same respondent who also challenged the jurisdiction of the court below on another angle to hear the appeal before it on the ground that since the respondent had contested the election into the National Assembly and was duly returned as elected, only an election tribunal and not the regular court was vested with jurisdiction to entertain a petition to nullify the election.
With profound respect to the learned senior counsel to the respondent, the 2nd preliminary objection, the subject matter, of the cross-appeal is puerile and academic, for its determination one way or the other cannot add to, nor detract from, the decision on the appellant’s appeal. Courts of law are not established to deal with hypothetical and academic questions, rather, they are established to deal with matters in difference between the parties: see National Insurance Corporation v. Power & Industrial Engineering Co. Ltd. (1990) NWLR (Pt. 129) 697, Bamgbaye v. University of Ilorin (1999) 10 N.W.L.R. (Pt. 622) 290. The 1st preliminary objection having been resolved in favour of the respondent, the need for the 2nd preliminary objection does not arise.
In conclusion, since the two issues canvassed in the appellant’s appeal have been resolved against him, the appeal lacks merit and is accordingly dismissed. The respondent’s cross-appeal being of academic nature is incompetent and is hereby struck out. Both parties having failed and succeeded, it is hereby ordered that costs shall remain permanently where they were incurred.
SC.197/2003
