Ikechi Emenike V. Chief T. A. Orji & 20 Ors (2008)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
This is an appeal against the decision of the Abia State Governorship and Legislative Houses Election Tribunal (henceforth to be referred to as the Tribunal) which was delivered on the 6th of October, 2007.
On the 14th day of April, 2007, Gubernatorial Elections were held in all the 36 States of the Federal Republic of Nigeria by the Independent National Electoral Commission (INEC). The Appellant herein was a candidate sponsored by the All Nigeria Peoples Party (ANPP) in that election in Abia State. The 1st and 2nd Respondents were also candidates in the said election, under the platform of Progressive Peoples Alliance. They contested for the position of Governor and Deputy Governor respectively.
At the conclusion of the election, the 1st and 2nd Respondents were declared duly elected as Governor and Deputy Governor of Abia State by INEC, the 21st Respondent herein, filed a petition at the Tribunal in which he challenged the election result.
The relief sought by the Petitioner reads thus: –
“That the 1st Respondent’ whose election is; hereby questioned was at the time of the election not qualified to contest the said election and not eligible to hold the office of, or to be elected as Governor of Abia State.”
The grounds upon which the Petitioner founded his petition are set out at pages 3-5 of the record of this appeal. The Respondents filed replies to the grounds of the petition. Issues having been joined the Petition proceeded to trial. At the end of the trial and in a reserved and considered judgment, the Tribunal dismissed the Appellant’s petition and affirmed the declaration and return of the 1st and 2nd Respondents as duly elected Governor and Deputy Governor of Abia State.
Aggrieved by this decision, the Appellant appealed to this Court. His notice of appeal dated 22nd October, 2007 and filed on the 23rd October, 2007 contains three grounds of appeal which I reproduced hereunder without their particulars as follows: –
“1. The Tribunal erred in law in its conclusion that the 1st Respondent was at the time of the election into the office of Governor of Abia State on 14th April, 2007 qualified to contest the said
election.
- The Tribunal erred in law when it held: –
“We are also in agreement with the submission of the learned silk of counsel to the 3rd to 21st Respondents in paragraphs 3.45 and 3.46 of his address wherein he stated that since the process leading to exhibit “A” has been declared a nullity, it will be idle to challenge the qualification of the 1st Respondent to contest the said election on the purported indictment contained in Exhibit “A”.
- The judgment is against the weight of evidence.”
In line with the relevant rules governing election appeals in this Court, parties filed and exchanged briefs of argument.
From the three grounds of appeal, the Appellant distilled two issues for the determination of this appeal in his brief of argument dated 10th November, 2007 and filed on the 22nd November, 2007. The two issues read as follows: –
“(i) was the tribunal correct in its conclusion that the 1st Respondent was at the time of the election into the office of Governor of Abia State on 14th April, 2007, qualified to contest the said election.
(ii) Did the tribunal breach the Petitioner/Appellant’s right to a fair hearing by failing to consider a fundamental ground on which his case was based.”
In their joint brief of argument, dated 28th November, 2007 and filed on the 3rd December, 2007, the 1st and 2nd Respondents distilled only one issue for the determination of this appeal and it reads thus: –
“Whether the Tribunal below was right when it decided that the 1st Respondent was at the time of the questioned election not disqualified to contest the said election and that the Petitioner/Appellant had failed to prove otherwise.”
The 3rd -21st Respondents also filed a joint brief of argument on the 18th January, 2008. By the order of this Court, the said brief was deemed filed and served on the 21st of January, 2008. Only one issue was formulated on their behalf and it reads: –
“Whether the Tribunal was right in holding that the 1st Respondent was at the time of the questioned election not disqualified to contest the said election.”
Appellant finally filed a reply brief on the 11th January, 2008.
The issues raised by the parties in their respective briefs are similar.
However after a careful consideration of the submissions of learned counsel for the parties, I am of the firm view that the only issue calling for the determination of this appeal is: –
“Whether the indictment of the 1st Respondent in a white paper, exhibit “A” can be a reason for the disqualification of the said 1st Respondent after same exhibit “A” had been set aside and quashed by an order of a competent Court.”
Mr. O. A. Obianwu, learned senior counsel for the Appellant who settled the Appellant’s brief of argument forcefully submitted in argument that the 1st Respondent herein was indicted by a Government White Paper on the Report of the Administrative Panel of Inquiry on Alleged Corrupt Practices by some Public Officers and other Persons, Exhibit A, which was published in February 2007 for fraud and embezzlement. According to the learned senior counsel, the publication of the white paper is a conclusive prove that the Federal Government had accepted the report of the Administrative panel which it had earlier appointed.
In a further argument, learned senior counsel submitted that the 1st Respondent did not personally file any suit to vacate the indictment as such he stands disqualified to contest for any elective office, by virtue of Section 182(1) (i) of the 1999 Constitution of the Federal Republic, of Nigeria and Section 145 (i) of the Electoral Act 2006.
Learned senior counsel made reference to the view of the Tribunal at page 388 of the record of this appeal, where the Tribunal referred to the case of Action congress & 1 OR. V. INEC(2007)12 NWLR(pt.1048)22 and concluded that exhibit ‘A’ cannot stand, and contended that the Tribunal was wrong. According to the learned senior counsel, the words used in the sections of the constitution and the Electoral Act above are clear, precise and unambiguous as such they are in line with the fundamental principle of constitutional interpretation which this Court is urged to give effect to. In a further submission learned senior counsel further contended that where words used in an enactment or instrument are clear and unambiguous, the Court will give those words their natural meaning. In aid the following authorities were cited: -Chief Chukwuemeka Ojukwu v. Chief Olusegun Obasanjo & 3 Ors (2006) 2 EPR 242; Attorney General Bendel State v. Attorney General of the federation (1981) SC 1; Horizon Fibres (Nig) Plc v. M. V. Baco Liner & 3 Ors (2002) 8 NWLR (pt.7690) 488 at 489 ratio 18; Dr. Patrick Nwangwu & Anor v. Barr. John Duru (2002) NWLR (pt.751) 265 at 281 ratio 8.
While arguing the 2nd issue, the Appellant admitted the existence of exhibit “B’, which is a judgment of the Federal High Court Kaduna. In that judgment, the White Paper exhibit ‘A’ and the report of the Administrative panel upon which exhibit ‘A’ was founded were set aside and quashed. The argument of the learned senior counsel however is that the Tribunal did not consider the effect of exhibit ‘C’ on which the Appellant hinged his case and that the 1st Respondent was not a party to the case which gave rise to exhibit ‘B’. For that reason, learned counsel says the 1st Respondent cannot take the benefit of exhibit ‘B’. It is to be noted that exhibit ‘C’ is the injunction which the Federal High Court Kaduna granted to restrain INEC from giving effect to exhibit ‘B’.
In a further argument, learned senior counsel insisted that the Respondents herein are strangers to exhibit ‘B’ and that the injunction which was granted to restrain INEC from giving effect to exhibit ‘B’, had put exhibit ‘B’ on hold and so exhibit ‘B’ was no longer enforceable. In aid the following authorities were cited: –
Fawehinmi v. N.B.A. (No.1) (1989) 2 NWLR (pt.105) 494; Coker v. Sanyaolu (1979) 9-10 SC 203 at 223; Ikpeazu v. ACB (1965) NMLR 374: Obasanjo v. Buhari (2003) 17 NWLR (pt.850) 510.
Finally learned senior counsel submitted that the Federal High Court Kaduna was perfectly entitled to make the preservative order in exhibit ‘C’ in order not to render the appeal nugatory and that exhibit ‘C’ was so vital and crucial to the Appellant’s case and the Tribunal was in error in ignoring it. In conclusion learned senior counsel urged this Court to allow the appeal. In reply to the Appellant’s argument, Chief Udechukwu learned senior counsel for the 1st and 2nd Respondents submitted that the Tribunal was right when it inquired into the validity of exhibit “A”. Learned senior counsel urged the court to confine itself to a consideration of exhibit A, B and C for the purpose of resolving the lone issue formulated by the 1st and 2nd Respondents as it is to these exhibits that the law must be applied in order to gauge the correctness vel non of the decision of the Tribunal. In a further argument, learned senior counsel submitted that exhibit “A” does not qualify as an indictment within the con of S. 182 (1) (i) of the 1999 Constitution read in conjunction with Section 32 (4) (5) and (6) of the Electoral Act 2006 and Section 132 (1) of the Evidence Act as well as Section 2 of the Criminal Procedure Act.
Learned senior counsel then dwelt extensively on the definition of indictment and then concluded that exhibit “A” did not amount to an indictment and therefore is incompetent and its acceptance by the Federal Executive Council was an incompetent Act. Still in argument, learned counsel submitted that President Obasanjo who set up the Administrative Panel whose recommendations led to exhibit “A” which he accepted was an interested party and that the acceptance of the indictment by the Federal Government should not have been restricted to the Executive council alone, as the National Assembly is also part of the Federal Government. Learned senior counsel made reference to the historical antecedent of exhibit “A” and concluded that the said exhibit had been quashed by the judgment of the Federal High Court Kaduna, which was admitted as exhibit “B” at the Tribunal and there is no evidence that that judgment has been reversed.
Learned senior counsel cited several authorities and concluded by urging the Court to dismiss the appeal. Mr. Livy Uzoukwu, learned counsel for the 3rd -21st Respondents in his argument restricted himself to the fact that exhibit “A”, which was a product of an administrative panel which was set up by the Federal Government was quashed by exhibit “B” which is a judgment of the Federal High Court, Kaduna Division. The effect therefore is that exhibit “A” is null and void and of no effect. In a further argument, learned counsel submitted that the 1st Respondent did not need to be a party to the matter in which exhibit “B” was delivered in order to take the benefit accruing to the decision, since the said exhibit “B” is a judgment in rem. On exhibit “C”, learned counsel submitted that same is incapable of nullifying exhibit “B” which had declared exhibit “A” a nullity or rendering it void or stripping it of legal status or effect. According to the learned counsel, nullification is a state or condition of being void, without legal effect or status and such condition is incapable of being put on hold, as there is nothing to hold.
Finally, learned counsel urged this Court to dismiss the appeal.
At page 388 of the record of this appeal, part of the judgment of the tribunal in which the learned Chairman and Members of the Tribunal questioned the validity of exhibit ‘A’ is reproduced hereunder as follows’ –
“The Tribunal has read through exhibit ‘A’ and ‘B’ in evidence before it, (sic) is aware of the modus operandi of the Investigation Panel by which Exhibit ‘A’ was arrived at, and the dissatisfaction of the 1st Respondent which led to exhibit ‘B’. In view of what was held in the case
of ACTION CONGRESS & 1 OR Vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION (Supra) we hold that exhibit ‘A’ cannot stand.”
In a further comment, the Tribunal held again as follows: –
“We wish to pause here and add that as the Tribunal is aware of the non compliance with the provisions of the constitution with regard to fair hearing in Section 36 (5) and (6), it will not be legally right for this Tribunal to ignore the Supreme Court judgment in the case of ACTION CONGRESS (AC) & ANOR VS. INEC where the Supreme Court justice (sic) advocated and urged Courts of law that are shouldered with the responsibility for laying offenders to always endeavour to comply with the aforesaid provisions of the constitution on fair hearing’ What is expected is that where such investigation panel by what ever name it is called, if called upon to conduct investigation, it ought to conduct its affairs in accordance with the relevant provisions of the constitution in relation to fair hearing.”
With these remarks, the Tribunal held that exhibit ‘A’ was effectively nullified by exhibit ‘B’ as a result, the 1st Respondent was not disqualified at the time of the questioned election’ The question as to whether the Administrative Panel whose report formed the basis of exhibit ‘A’, accorded fair hearing to the 1st Respondent, and whether the Federal Government improperly accepted the report of the Administrative Panel are not within the competence of the Tribunal. The issue before the Tribunal is whether the 1st Respondent was disqualified by virtue of the indictment contained in exhibit ‘A’.
One of the provisions of S.145 (1) of the Electoral Act, 2006 is that an election may be questioned on the ground that a person whose election is questioned was, at the time of the election’ not qualified to contest the election. S. 182 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999, set out in detail the circumstances under which a person seeking for election to the office of the Governor of a State shall stand disqualified. For the purpose of this appeal, the relevant provision is set out at S. 182 (1) (i) of the Constitution as follows: –
“No person shall be qualified for election to the office of Governor of a State if 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 Tribunals of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government.”
It is common ground between parties that exhibit “A”, the White paper which indicted the 1st Respondent was set aside and quashed by the Federal High Court, Kaduna in its judgment which is exhibit “B” in the record of this appeal. What then is the effect of the judgment of the Federal High Court which set aside exhibit “A”.
In Alhaji Surakatu Amuda & Ors v. Taiye Oshoboja for Oshoboja family (1984) NSCC 531, the Supreme Court held that a judgment of a Court in any civil or criminal proceeding including all questions of law and fact decided by that Court is valid and effective until same is set aside by an appellate Court. See also Salaudeen v. Oladele (2003) 3 NWLR (Pt. 806) 29 at 44 paragraph F.
In that judgment, exhibit “B”, the Applicant Progressive Peoples Alliance, a political party sought for the following prayers: –
” 1 . An order of certiorari bringing into this court the proceedings of and the White Paper on the report of the Administrative Panel of Inquiry of alleged corrupt practices by some public officers and other persons No S.14/11/124 of 12th and 13th of February 2007 (attached herewith as Exhibit “A”) as it affects (i) ORJI UZOR KALU, PPA’S President Candidate (ii) T. A. Orji, PPA’s Government CANDIDATE ABIA STATE (iii) C. C ELECHI Esq. PPA Abia State House of Assembly Candidate, Abia State; for the purpose of being quashed for bias, abuse of legal process, denial of fair hearing and lack of jurisdiction.
- Consequential Order – A declaration that the said candidates of PPA (i) Orji Uzor Kalu, PPA’s presidential candidate (ii) T. A. Orji, PPA’s Governorship candidate Abia State
(iii) C. C. Elechi, Esq P.P.A. Abia House of Assembly candidate, Abia State; are the bona fide respective candidates of the PPA as presented to Independent National Electoral Commission and are free from any indictment of THE WHITE PAPER ON AND THE REPORT OF THE ADMINISTRATIVE PANEL OF INQUIRY OF ALLEGED CORRUPT PRACTICES BY SOME PUBLIC OFFICERS AND OTHER PERSONS NO: CM 217/S.14/11/124 OF 13TH FEBRUARY 2007.
- AND any other order or orders as the Honourable Court may deem fit to make in the circumstances.”
Liman J. who heard the application made the following order in the judgment which he delivered on the 19th of March 2007 as follows: –
“The cumulative effect of these vices renders the entire process a nullity. In the circumstances, the proceedings of Administrative Panel, its findings, its recommendation indicting –
i. Orji Uzor Kalu PPA’s Presidential candidate.
ii. T. A. Orji PPA’s Governorship candidate Abia State.
iii. C. C. Eledu Esq. PPA’s Abia House of Assembly candidate, and
iv. Barrister Obasi Agu PPA’s House of Assembly candidate. Abia State.
And the White Papers on them are hereby brought into this Court and are accordingly quashed and I also make a consequential order in the terms of relief No. 2.”
Clearly exhibit “A” was decisively dealt a blow by exhibit “B”. Any document that is set aside and quashed by an order of a competent Court, such a document in law no longer exist.
The question now is, was this judgment, exhibit “B” put on hold by the Federal High Court Kaduna in its ruling of 5th April 2007, which is exhibit “C” in the record of this appeal. Although a glance at the ruling’ one will have the impression that the Progressive Peoples Alliance, the party in favour of whom the judgment exhibit “B” was delivered is the applicant. I think the arrangement of the parties in the ruling is an error. The 1st – 4th Respondents brought an application to the Federal High court Kaduna to restrain INEC from given effect to the judgment of the Court wherein exhibit “A” was quashed. The application was heard and in a considered ruling Liman J. granted an injunction in which INEC was restrained from given effect to the judgment. The further question now is, whether the injunction granted against INEC has the effect of invalidating the judgment of the court. I do not think so. An injunction is not the same thing as ‘setting aside the judgment of a Court. An injunction is a Court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury. It is a judicial process operating in personam and requiring a person to whom it is directed to do or refrain from doing a particular thing’ See Gainsburg vv. Dodge 193 Ark 473.
This process is a preventive and protective remedy, aimed at future acts and is not intended to redress past wrongs. Clearly the order of injunction was directed at INEC, which refused to obey the Court’s order, and instead conducted an election in which the 1st Respondent participated and went on to win. There is no evidence that the judgment of the Federal High Court, which is exhibit “B” was put on hold or set aside on appeal.
The white paper Exhibit “A” having been set aside and quashed by an order of a competent Court, there is nothing left upon which the 1st Respondent could be said to have been indicted. The Appellant forcefully argued that the 1st and 2nd Respondents cannot take the benefit of exhibit ‘B’, since they were not parties to the proceedings’ Even though the 1st Respondent was not a party to the proceedings in exhibit ‘B’, the order made therein specifically mentioned his name as one of the beneficiaries of the judgment, exhibit ‘B’. The said judgment has not been set aside on appeal.
The lower court was therefore right when it held that the 1st and 2nd Respondents are qualified to take benefit of the judgment aforesaid, the Lagos State High court in its ruling which was delivered on the 28th day of November 2006, set aside the report of the Administrative Panel of Inquiry on the EFCC Investigation Report dated 24th August 2006 together with any other recommendations, approvals based on it and now contained in the Federal Government Official Gazette dated 6th September 2006. Although the Appellant failed to give the exact date when the Administrative Panel was set up and when the Federal Government accepted the report, it is assumed that the report which he claimed indicted the 1st and 2nd Respondents is the same report that was set aside by the Lagos State High Court.
An order of Court remains an order of that Court and subsists until it is set aside on appeal. It does not matter whether the order is regular or irregular, valid or invalid, same must be obeyed’ Where a party forms an opinion that the order is not valid, the proper procedure to follow is to take steps to have the order set aside. See P. P. M. C. Ltd v. Delphi Pet. Inc (2005) 8 NWLR (Pt. 928) 458: Integrated Builders v. Domzag vent (Nig) Ltd (2005) 2 NWLR (pt.909) 97 and Oshiomhole v. F.G.N. (2005) 1 NWLR (907) 414.
Once a competent Court declares a piece of legislation or document null and void, such legislation or document cannot be operated against any person, even though such a person was not a party to the proceeding in which the declaration was made. Once a thing has been declared null and void, or when a decision has been set aside and quashed, in law such a thing no longer exist.
Blacks Law Dictionary 8th Edition defines ‘set aside’ as follows: – “to annul or vacate judgment or order”. The same Dictionary also defines Quash to mean, “to annul or make void; to terminate.” From the reasons I have given here, I am of the firm view that the Tribunal was right when it held that exhibit ‘A’ had been nullified by the Federal High Court Kaduna and that the 1st Respondent was not disqualified from contesting the Governorship election in Abia State. In the final analysis therefore I resolve the only issue in favour of the Respondents.
Having resolved the issue in favour of the Respondents, this appeal shall be and it is hereby dismissed.
The Appellant shall pay the sum of Thirty Thousand Naira (N30,000.00) to each set of Respondents.
Other Citations: (2008)LCN/3044(CA)
