Gideon Nwaeze & Anor V. Ethelbert Nnana Eze & Ors (1999)
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IGE, J.C.A.
This is an appeal before this court against the judgment of the Local Government Council Election Tribunal of Imo State sitting at Owerri dated 8th February, 1999. Two petitions were before the tribunal numbered LGEP/IM/1/98 and LGEP/IM/47/98.
The parties in LGEP/IM/1/98 were as follows:-
Ethelbert Nnana Eze PETITIONER
V.
- Dr. Gideon Nwaeze
- Independent National Electoral Commission
- Ephraim Onuzulike (Oguta Local Government Area Returning Officer)
- Ndu Okonkwo (Mgbala/Uba Ward) Returning Officer) RESPONDENTS
- Patrick Nwabueze (Supervisor Mgbala/Uba Ward)
The parties in LGEP/IM/47/98 were as follows:-
Barrister Francis U. Unyimadu PETITIONER
v.
- Bro. Gideon Nwaeze
- E. Onuzulike (Returning Officer Oguta Local Government Area)
- Samuel Odunukwe
(Electoral Officer, Oguta Local Government Area) RESPONDENTS
- Independent National Electoral Commission (INEC)
In the petition No. LGEP/IM/98 Ethelbert Nnana Eze stood election for the office of Chairman of Oguta Local Government Council on the platform of the People’s Democratic Party along with others namely Gideon Nwaeze of the APP, Francis Unyimadu of the UPP, Engr. Azuogu of MDJ and R.S. Okeke of the AD.
At the end of the elections, INEC the 2nd respondent declared 1st respondent, Dr. Gideon Nwaeze of the APP as the winner on 6/12/98 and returned him as Chairman-elect of Oguta Local Government.
The petitioner was dissatisfied with this result hence he filed an election petition before the Local Government Tribunal of Imo State.
In the petition No. LGEP/IM/47/98 Unyimadu stood election for the office of Chairman of Oguta Local Government on the platform of the United Peoples Party, UPP along with 3 others namely: Nnana Eze of the PDP, R.S.M. Okereke of the AD and D. Azogu of MDJ.
At the end of the elections, INEC, the 4th respondent declared the 1st respondent Dr. Gideon Nwaeze of the APP as the winner on 6/12/98 and returned him as Chairman-elect of Oguta Local Government.
The petitioner was dissatisfied with this result hence he filed an election petition before the Local Government Tribunal of Imo State.
At the trial/hearing of the two petitions, the petitioner in LGEP/IM/47/98 applied to the Election Petition Tribunal for a consolidation of the two petitions. The tribunal granted the application and made an order consolidating the two petitions together for trial on 13/1/99.
The trial began on 21/1/99 with the petitioner in LGEP/IM/1/98 calling 4 witnesses and tendering one document.
The petitioner in the second petition LGEP/IM/47/98 opened his own case on 26/1/99 by adopting PW1 in the earlier case as his witness and calling 5 other witnesses.
At the close of both petitioners’ case, the appellant who was 1st respondent in the tribunal called 8 witnesses and tendered several documents on behalf of INEC and other respondents. Counsel called 4 witnesses and the case closed on 3/2/99. After ordering for written addresses from counsel the tribunal adjourned the case for judgment on 8/2/99. Before that date, counsel for the 1st respondent i.e. 1st appellant in this appeal filed a motion asking that the two petitions be struck out on the grounds that they were brought contrary to the provisions of section 82 of Decree No. 36 of 1998 and also that the tribunal lacked jurisdiction to hear the said petitions.
After hearing arguments on both sides, the tribunal dismissed the application and proceeded with the hearing of the petitions.
At the end of the day, the tribunal delivered its judgment on 8/2/99 as recorded on pages 163-181 of the records.
The tribunal gave one judgment but made different and separate pronouncements in respect of each of the petitions. This is evident on pages 180 and 181 of the judgment. The petitioners are dissatisfied with the judgment of the tribunal hence they have appealed to the Constitutional Court, i.e. Court of Appeal by filing their notices of appeal and grounds of appeal as stated in the records.
Before the appeal was to be heard, the 1st petitioner brought a motion to amend his notice and grounds of appeal already filed. He later withdrew the application and same was accordingly struck out by this court.
The counsel for the 1st respondent Ethelbert Nnana Eze filed a notice of a preliminary objection under Order 3 rule 15 of the Court of Appeal Rules on the ground that the appeal is incompetent and that the brief of argument and the appeal are based on incompetent amended notice and grounds of appeal.
In his submission, counsel stated that the two petitions were consolidated in the tribunal for purposes of trial, and judgment was entered for the two petitions. He submitted that the appellant needed to file 2 separate notices of appeal for the 2 petitions involved at the trial of consolidation of the 2 cases. He referred the court to the brief filed by the appellant’s counsel as referring to quite a different appeal from the one filed under his notice of appeal on page 184 of the records. He also referred to the motion earlier withdrawn by counsel for the appellant and connected it with the contents of the appellant’s brief. In other words, the appellant envisaged he would be granted his application for amendment hence he had already reflected the amendment in his brief of argument.
In his response, Chief Ikeazor the learned S.A.N. for the appellant stated that the judgment of the tribunal dealt with two petitions and gave only one judgment. He submitted that normally two notices of appeal should have been filed but election petitions being sui genleris, such technicalities are overlooked. He referred to the case of Orubu v. N.E.C. (1988) 5 NWLR (Pt. 94) 323 al 347 and also Schedule 5 of the Decree No. 36. He further referred to Order 7 rule 3 of the Court of Appeal Rules with regard to prosecution of appeal in spite of non-compliance with the rules.
He then asked the court to refuse the preliminary objection. The learned S.A.N. later circulated a provision in the Schedule 5 to Decree No. 36 of 1998 which permitted consolidation of two or more election petitions. This is set out in paragraph 47 of Schedule 5.
Counsel stated that the effect presented by paragraph 47 of Schedule 5 to the Decree is in consonance with section 86(1) of the Decree which talks of “an appeal – since the effect of paragraph 47 has reduced many election petitions consolidated and heard together as “one petition”.
I agree with the submission of the learned S.A.N. that paragraph 47 of Schedule 5 provides for consolidation of two or more petitions to be heard together if they relate to the same election or return. The tribunal complied with this provision at the trial of the petitions. They reiterated this in their judgment at page 168 of the records.
Now let us look at what and what is involved in consolidation of actions.
Consolidation of actions has been described as and it is a process whereby two or more actions pending in the same court are by order of court joined and tried together at the same time. The actions though separate and distinct are tried simultaneously in the same proceeding. See the case of Nasr v. Complete Home Enterprises (Nigeria) Ltd. (1977) 5 SC. 1.
Furthermore, although consolidated actions are tried and determined in the same proceeding, each remains a separate and distinct action and has its own judgment given separately at the end of the common trial – See also Nasr v. Complete Home Enterprises (Nigeria) Ltd. (supra).
In the present case, the tribunal rightly consolidated the two petitions LGEP/IM/1/98 and LGEP/IM/47/98 and heard them together. The learned S.A.N. submitted that the effect of paragraph 47 of Schedule 5 means that only one judgment should be given. I do not buy that submission at all in view of what the law says with regard to the nature of consolidated actions. The Supreme Court has made it very clear in the case of Toriola v. Williams (1982) 7 SC 27 and also in Attah v. Nnacho (1965) NMLR 28 that where suits are consolidated, each of them retains separate and individual existence. Accordingly, at the end of the proceedings, judgment should be given in respect of each suit. The court cannot and should not determine one suit and ignore the other.
It is my view that these same conditions apply in the case of consolidated election petitions regardless of their being sui generis.
Now let us examine carefully the judgment of the tribunal whether or not it has complied with the law that each petition was given its Own judgment.
After a dispassionate consideration of the evidence in support of the two petitions on both sides the tribunal ruled separately in its judgment concerning LGEP/IM/1/98. I quote the relevant portion thus:-
“We have carefully perused the reply of the 1st respondent and are convinced that nowhere was the fact of the petitioner’s non-qualification pleaded in the evidence of RW1 and RW3 on the issue,it therefore goes to no issue. In view of the foregoing findings we find and declare the chairmanship election held on 5/12/98 for Oguta Local Government in which results from Oru Ward consisting of 20 booths were not returned and announced as inconclusive. We note further that both sides in this matter are to a certain extent agreed that the election for Oru Ward was cancelled. We confirm that and order that the Independent National Electoral Commission (INEC) should appoint a new date to complete the said election by conducting a fresh election in Oru Ward alone between the original contestants to determine who emerges as the Chairman of Oguta Local Government Council. Petition No. LGEP/IM/1/98 is therefore allowed.”
Then the judgment went on to consider petition LGEP/IM/47/98 thus I quote:
“As we have stated earlier petition No. LGEP/IM/47/98 was consolidated and heard together with No. IM/1/98. In paragraphs 6(a)(1),7, 8(1)-(c), 9, 12, 13, 14 and 15 of petition No. 47 one Barrister Unyimadu hereinafter referred to as petitioner in petition No.47 stated the facts in support of his petition whilst the 1st respondent filed a 22 paragraph reply. The 2nd-4th respondents did not file any replies. The effect is that the facts contained in the petition No. 47 are taken as established. However, the reply filed by the 1st respondent has a little problem. We note that paragraphs 2, 3, 4 and 7 thereof had earlier been struck out for the reasons earlier given. Issues were however joined on the petitioner’s paragraphs 6(a)-(1), 7, 8(a)-(c), 9, 12-15 with 1st respondent’s paragraphs 6, 8-22 …
“This lapse gave rise to massive introduction of unauthorised ballot papers into the ballot boxes and multiple voting master minded by the 1st respondent’s agents. There is evidence in the form of testimonies from both sides showing that Form E.C 8A was not provided and that 4th respondent directed presiding officers to record results on plain sheets. We find that fact as established. We have carefully examined the testimonies of all the witnesses that have testified before us but are unable to find support for the statements contained in sub-paragraphs (a)(b) and (c) of paragraph 8, as well as paragraphs 9 and 10 and 11 of petition No. 47. There is however, evidence which we believe to be supportive of paragraph 13 of the petition. See testimony of R.W. 9 who testified as PW6 in petition No. 47 and to that end we make the same order as in petition No.1. The INEC is hereby ordered to make arrangement for fresh election in Oru Ward between the original contestants so as to determine who emerges as the Chairman, Oguta Local Government Council.”
Although one judgment was given by the tribunal yet one is left in no doubt that each petition was given its own judgment by the Election Tribunal which consolidated the two petitions.
It is pertinent to add here that consolidation of actions is purposely made to save costs and time. By consolidation too, multiplicity of actions is also avoided, see the case of Obiekweife v. Unlimma (1957) SCNLR 331 and Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5.
Having settled the question of whether or not two separate petitions have been adjudicated upon and separate pronouncements have been made in respect or each of them, we shall now look into the notice of appeal filed by the appellants in this appeal. The appellant filed only 1 notice of appeal – see p. 184 of the records of appeal. A notice of appeal is the foundation of an appeal. It is the constitutional signal of dissatisfaction against the judgment complained of. Where a notice of appeal is fundamentally defective there is no foundation for the appeal and therefore, there is no appeal before the court. The appeal collapses for lack of necessary foundation. See the cases of Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350. N.B.N.W. v. N.E. T. (1986) 3 NWLR (Pt. 31) 667 and Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267.
In the instant case, the notice of appeal as filed by the appellant on p. 184 of the records refers to Dr. Gideon Nwaeze as appellant against 7 respondents – namely Ethelbert Nnana Eze, Independent National Electoral Commission, Ephraim Onuzulike (Oguta L.G. Returning Officer), Idu Okonkwo (Mgbala/Uba Ward), Patrick Nwabueze (Supervisor Mgbala/Uba Ward), Barrister Francis U. Unyimadu and Samuel Odurukwe (Electoral Officer Oguta L.G.A.).
In his notice also the appellant is complaining of “the whole decision”.
The names exhibited in the notice are not all the names of the parties involved in the 2 petitions heard by the tribunal. The persons directly affected by the appeal are also not all named in the notice. Looking carefully at the orders made by the tribunal in respect of each petition all the parties before it are directly affected by the decisions. These parties include those affected or aggrieved or likely to be aggrieved by the proceedings before the tribunal. See the case of Jadesimi v. Okotie-Eboh; In re Lessey (1989) 4 NWLR (Pt. 113) 113 at 125.
Moreover, the appellant is supposed to file 2 separate notices one for each decision on each petition.
All of the above also applied to the notice of appeal filed on pages 198-205 by M.N. Amamasi, Director of Civil Litigation – Counsel to 2nd-5th respondents.
Order 3 r 2(1) of the Court of Appeal Rules 1981 as amended clearly sets out what a notice of appeal shall contain.
Order 3 rule 2(1) provides that notice of appeal which is to be filed in the Registry of the court below shall set forth:
“(i) The grounds of appeal
(ii) shall state whether the whole or part only of the decision is complained of, and
(iii) the names and addresses of all parties directly affected by the appeal”
I am afraid the appellants in this case have failed to comply with the fundamental requirements of the law by filing incompetent and defective notice of appeal hence this Constitutional Court cannot determine the appeals as they are presently filed.
In view of the foregoing, I uphold the preliminary objection of the 1st respondent that the appeal is incompetent. The two appeals are hereby dismissed with N2,000.00 costs to the respondent against each set of appellants. The judgment delivered by the election tribunal on 8/2/99 is hereby confirmed.
Other Citations: (1999)LCN/0505(CA)
