Barr. (Mrs.) Amanda Peters Pam V. All Nigeria Peoples Party & Ors (2007)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

By an Originating Summons, the 2nd Respondent, Nasiru Muhammad instituted an action against the Appellant, Austen Peters Pam Amanda I. as 3rd defendant with the following determination.

1. Whether the letter by the 2nd Defendant/All Nigeria Peoples Party (ANPP) dated 19th February to the 1st Defendant (Independent National Electoral Commission (INEC) applying for the substitution of the Plaintiff with Austen Peters Pam Amanda I. gave any reason for the application for substitution.
2. Whether the withdrawal/substitution form CF004A dated 12th February 2007 purporting to substitute the Plaintiff with the 3rd Defendant is valid having not been signed by the plaintiff.
3. Whether the application for substitution of the Plaintiff with the 3rd Defendant (Austen Peter Pam- Amanda I.) as contained in the letter by the 2nd Defendant dated 19th February 2007 to the 1st Defendant ought to give reasons for the application.
4. Whether the letter dated 19th February 2007 purportedly signed only by the Secretary of the 2nd Defendant and addressed to the 1st Defendant seeking to substitute the Plaintiffs name earlier is valid and lawful.

WHEREAS the Plaintiff seeks the following reliefs:-

1. A declaration that the 2nd Defendant’s letter of 19th February 2007 to the 1st Defendant applying to substitute the plaintiff Nasiru Muhammad as the 2nd Defendant’s candidate for the April 2007 Abuja Municipal Area Council (AMAC) BWARI Federal House of Representative Election is Illegal, Null, void and of no effect whatsoever.
2. A Declaration that the 1st Defendant cannot in law act upon the 2nd Defendant’s application as contained in the letter of 19th February, 2007 to effect a substitution of the plaintiff with 3rd Defendant as the 2nd Defendant’s candidate for the April 2007 AMAC/BWARI Federal House of Representations Election.
3. A Declaration that by virtue of the provision of Section 34(2) of the Electoral Act 2006, the letter dated 19th February, 2007 written by the 2nd Defendant to the 1st Defendant seeking to substitute the plaintiff’s name does not provide any cogent and verifiable reason sufficient in law to warrant a substitution of the Plaintiffs name by the 1st Defendant.
4. An Order of injunction restraining the 1st Defendant from acting, carrying into effect or doing anything whatsoever based on the 2nd Defendant’s/application for substitution as contained in the letter of 19 February, 2007 to the 1st Defendant as same is illegal, null, void and of no effect whatsoever.
5. AN ORDER setting aside anything and everything done by the 1st Defendant pursuant to the letter of 19/2/07 for the 2nd Defendant to the 1st Defendant.
6. AN ORDER setting aside the substitution form purported to have been filed by the plaintiff as illegal, null, void and of no effect whatsoever.
7. AN ORDER against the 1st Defendant by itself, its agents, privies, servants or however described directing a retention of the plaintiff’s name as the duly nominated candidate of the 2nd Defendant for the AMAC/BWARI Federal Capital Territory April, 2007 Election into the Federal House of Representatives.
8. An ORDER quashing and nullifying the purported substitution of the plaintiff by the letter dated 19th February 2007 purporting to have been issued by the 2nd Defendant.
9. AN ORDER quashing, nullifying and setting aside the FORGED FORM CF004A purportedly signed by the plaintiff in favour of the said AUSTEN PETER PAM AMANDA 1.
10. AN ORDER affirming the plaintiff as the legitimate and bona fide candidate of the 2nd Defendant for the April, 2007 Election into the Federal House of representations in respect of the Abuja Municipal Area Council BWARI Federal Constituency.

The Grounds of Appeal without the particulars are as follows:-

1. The Honourable Court lacked the jurisdiction to entertain and or hear the suit because the appellant’s fundamental rights of fair hearing was violated.
2. The Honourable Court erred in law and fact when it held that the 3rd Defendant (now appellant) was served with Court processes but refused to appear before the court or be represented by counsel.
3. The judgment was obtained upon fraud and or misrepresented facts as the 1st respondent lacked the locus standi to institute the action. The suit was therefore an abuse of court process.
4. The Honourable Court erred in law and misdirected itself when it admitted in evidence and or acted on secondary evidence of public documents without complying with the provisions of the law in that regard.

The Court having earlier ordered that oral arguments would take the place of Briefs being filed and argued, in order to save time in view of the need for the expeditious handling of a matter such as this.

In arguing the Appeal, Chief Ngige SAN for the Appellant referred to Appellant’s Notice of Appeal at pp. 222 – 224 of the Record which is against the judgment of the Federal High Court Abuja delivered by Abubakar J. He stated that in the said judgment the substitution of the 1st Respondent with the 3rd Defendant/Appellant which substitution was nullified by the trial Judge for which the Appellant is now appealing.

Learned counsel for the Appellant gave a brief of the facts in the court below to be as follows:-

“The first judgment which nullified the substitution was made on 5/4/07 and was later set aside by the trial Judge. See page 184 of the Record. It is against the judgment of the 18/4/07 that this appeal is lodged because of the irregularity in the proceedings that brought it about”.

Chief Ngige went on to state that there are two issues for determination from the grounds of Appeal and they are:-

1. Whether the proceedings initiated by the plaintiff/1st Respondent is one that can be commenced by Originating Summons having regard to the Rules of the Federal High Court.
2. Whether the Appellant was given fair hearing in the judgment appealed against.

Learned counsel stated that from the Record the Court will find that the plaintiff/1st Respondent built his case on forgery and many forgeries. Learned counsel for the Appellant asked if a case based on forgeries can be determined without trial since it was commenced by originating summons. That Appellant had raised that issues at the trial and was overruled. He referred to Order 2 Rule 2(a) & (b) Federal High Court Civil Procedure Rules. He said these Rules clearly provide that where the facts are likely to be disputed the matter ought not to be commenced by originating summons but by a writ of summons. He cited Peoples Democratic Party (PDP) & 2 others v. Alhaji Atiku Abubakar (2007) 3 NWLR (pt. 1022) p. 515 per Uwa JCA.

Mr. Dodo SAN for the 1st Respondent stated that at page 104 of the Record is seen the letter of Expulsion served on 1st Respondent. He said the first fallacy in the case of the Appellant is the statement by counsel that the Appellant was a candidate of the ANPP for the Federal House of Representatives.

Learned counsel for the 1st Respondent said the Appellant was never a candidate at the primaries. He cited page 12 of the record which shows the result of the aspirants at the primaries and there were two aspirants or candidates. That it is an error to say the Plaintiff/1st Respondent’s case was built on forgery. He referred to page 215 of the Record. That the proceedings took place on the 18/4/07, three days to the Election and so the matter of giving the Appellant eight days to file her process cannot arise in view of the time factor. He cited page 92 of the Record wherein it was shown that Appellant became aware of the proceeding of 5/4/07 on the 9/4/07 but she took no steps to set aside the judgment of 5/4/07 until the 17/4/07 which was a strategy to score a point, therefore her distress was self induced.

Mr. Adesina learned counsel for the 2nd Defendant/cross-Appellant adopted the submission of counsel for the Appellant.

Mrs Nma Ngbor learned counsel for the 2nd Respondent adopted the submissions of Mr. Dodo for 1st Respondent.

For a clearer picture of what is before court it is necessary to restate some of the salient paragraphs of the Affidavit in Supporting of Originating Summons of the Plaintiff/1st Respondent. It was deposed to by Jibrin Habu, a Senior Litigation Clerk of the Law Firm of D.O. Dodo & Co. of Counsel as follows:-

3. That I was informed by Mallam Nasiru Muhammed (the Plaintiff) in our office on the 15th march 2007 at about 1.30pm of the following facts and I verily believe him to have stated them correctly and truthfully:-

(a) That the Plaintiff is a Chartered Accountant with office at NO.4 Toamanson Street off Kolda Link off Adetokunbo Ademola Crescent Wuse Abuja.

(b) That the Plaintiff is a registered and bona fide member of the All Nigeria people’s Party, the 2nd Defendant herein, attached herewith is a copy of plaintiff party membership card marked Exhibit HAS 1

(c) By virtue of the Plaintiff’s membership of the 2nd Defendant, he contested the 2nd defendant’s party primaries for the Abuja Municipal Area Counsel (AMAC)/BWARI National Assembly Elections and won and was duly sponsored by the 2nd Defendant to the 1st Defendant as a House of Representative candidate for the April 2007 House of Representative Elections for the AMAC/BWARI Federal Constituency. Attached herewith is a copy of the Summary of Results for the Primary Elections 2006 is annexed herewith as Exhibit NAAS 2.

(d) That upon the submission of Plaintiff’s name by the 2nd Defendant to the 1st Defendant, the 1st Defendant as required by law published his name both at its Headquarters and his constituency as the authentic candidate of the 2nd defendant for the April 2007 Federal House of Representatives Election.

(e) That upon the submission of his name for the 1st Defendant by the 2nd Defendant he participated in the 1st Defendant’s verification exercise and was confirmed to contest the Federal House of Representatives Election for the AMAC/BWARI Federal Constituency in the forth coming April 2007 National Assembly Elections. Copy of the Acknowledgement (form CF 001) issued by the 1st Defendant is annexed herewith as Exhibit NAS 3.

(f) That surprisingly by a letter dated 19th February 2007, the 2nd Defendant wrote the 1st Defendant applying to substitute the plaintiff with the 3rd Defendant (Austen Peter-Pan Amanda 1) as the 2nd Defendant’s candidate for the April 2007 National Assembly Elections. A copy of the 2nd Defendant’s letter dated 19th February 2007 to the 1st Defendant is attached herewith marked Exhibit NAS 4.

(g) That the 2nd Defendant’s application as contained in the said letter to the 1st Defendant dated 19th February, 2007 gave no reason for the application to substitute the Plaintiff with Austen Peters- Pam Amanda I. as the 2nd Defendant’s candidate for the April 2007 National Assembly Election and notice of the purported attempt of substitution came very late to the plaintiff.

(h) That he did not at anytime withdraw his candidature in favour of the said AUSTEN PETER PAM AMANDA I. as he had no reason whatsoever to do so. That the signature appearing on form CF.004 A is a forgery consistent with the scanned (instead of original) passport photograph appearing on said form. Copy of the said Form CF.004A is annexed herewith marked Exhibit GORGERY I

(i) That the said letter of 19/2/07which was signed only by the Secretary of the Party is contrary to the requirements of the 2nd defendant’s party constitution Copy of the Party Constitution is annexed herewith marked Exhibit NAS 4.

(j) That if effect is given to the said letter dated 19th February, 2007 it is going to cause the Plaintiff server damage mentally, physically, psychologically and financially, which no monetary compensation can assuage.

(k) That pursuant to his sponsorship by the 2nd Defendant Plaintiff has commenced intense political campaign for the upcoming April, 2007 National Assembly Elections in the AMAC/BWARI Federal Constituency.

For the 3rd Defendant/Appellant it was deposed in counter affidavit inter alia by Ifeanyi M. Nrialike legal practitioner in the law firm of solicitors to Appellant as follows:-

Paragraph 4:

That she is the House of Representative Candidate of ANPP for the Abuja Municipal Area Council/Bwari Federal Constituency of the FCT in the forth coming National Assembly Election stated for 21st April 2007.

5. That the plaintiff was expelled from the ANPP the 2nd defendant on the 2nd of February 2007 and is not a member of the party, the letter of expulsion is marked Exhibit A1 and this fact was communicated to the 1st defendant.
6. That the Plaintiff was duly substituted with 3rd defendant having been expelled from the All Nigeria Peoples Party.
7. That EXHIBIT FORGERY I – Form CF004 A is not forged by the 3rd defendant or any other person but duly signed by the National Chairman and Secretary of the 2nd Defendant. A letter to this effect written to the Chairman of INEC by the Chairman of ANPP FCT, Abuja is marked Exhibit A 2.
8. That the National Secretary as the Chief scribe of the 2nd defendant in the absence of the National Chairman has authority to write correspondence and letters on behalf of the 2nd defendant.
9. That the National legal adviser is not a person with authority under the Constitution of the 2nd defendant particularly Section 16.16 to write correspondences/letter on behalf of the 2nd defendant.
10. That the substitution of the plaintiff with the 3rd defendant was not obtained by forgery and fraud.
11. That the 3rd defendant was duly used to substitute the plaintiff who at 2nd February 2007 was not a member of the 2nd defendant by an application dated 9th February 2007 and marked exhibit A 3.

The learned trial Judge considered the questions raised in the originating summons, the supporting and counter affidavits, submissions and exhibits and came to the following conclusion:-

“I think the only issue to be resolved is whether the substitution of plaintiff by the 3rd defendant as candidate for 21st April Election is proper or not.

Section 34(1) and (2) of the Electoral Act provides as follows:-

”34(1) A political party intending to change any of its candidates for any election shall inform the commission of such change in writing not later than 60 days to the election.

34(2) any application made pursuant to subsection (1) of this Section shall give cogent and verifiable reasons”.

Chambers dictionary defines “cogent” as “powerful or convincing”, verifiable” or “to check that something is true and to confirm”.

The learned trial Judge stated on:-

“This brings me to exhibit NAS 4 letter from ANPP to INEC dated 19th February, 2007. The letter said:-

”I am forwarding herewith details of approved substitution in respect of the National Assembly Candidates for your necessary action please.

Yours faithfully,

For All Nigeria Peoples Party

Signed:

Sentator Saidu Umar Kuma

Garkuwa Gambe

National Secretary”.

The learned trial Judge went on:

“Now the question is, has this letter presented cogent and verifiable reasons for substitution?

I say NO. This action therefore succeeds”.

The learned trial Judge then proceeded to grant all the reliefs and declarations sought and that the Appellant had appealed to this court to set aside that decision and the reliefs granted.

I believe I would have to take a look at some of the judicial authorities cited and correlate to the facts and circumstances I have before me.

In the case of Abdulkadir v. Mamman (2003) 14 NWLR (pt.839) it was held by the Court of Appeal.

“1. The practice of the court is not to run associations corporations and unincorporated associations – for members

2. The rule in Foss v. Harbotle (1843) 2 Have 461 which is also known as the majority rule, postulates that disputes between members of an association must be resolved by a majority decision of the members.
3. The rule in Foss v. Harbotle applies to all associations, whether they be companies, clubs, trade unions or political parties.
4. Intra – party governance is entirely within the province of the relevant party. In other words, the internal affairs of political parties are exclusive to the parties and therefore not within the competence of the court. Consequently, the court does not have jurisdiction to make appointments of persons to hold party offices, represent a party in elections, or to determine any dispute arising from the internal affairs of a political party. In the instant case, the subject of the complaints and claims of the 1st to 3rd respondents are related to the internal affairs of a political party viz the party officers in issue. In the circumstance, the trial court had no jurisdiction to determine same and ought to have struck out the suit. See Onuoha C. Okafor (1983) 2 NCLR 244; Bakam v. Abubakar (1991) 6 NWLR (pt. 199) 564; Musa v. PRP (1981) 2 NCCR 763; Ibrahim v. Gaye (2002) 13 NWLR (pt. 784) 267; Abdulkadir v. Mamman (2003) 14 NWLR (pt. 839).”

“The question of which candidate a political party will sponsor is more in the nature of a political question which the courts are not qualified to deliberate upon and answer. This is because the court in doing so would be deciding political questions which it is ill-fitted to do. In the instant case, from the Constitution of the Alliance for Democracy, that political party like any other corporation operates within the guidelines, the powers and duties set out in its Constitution All its members and bound by the provisions set out in the party’s Constitution. Their respective rights and obligations created by their constitution can be remedied, if breached by any or its members as provided for in that constitution”. Per Oduyemi JCA. In Abdulkadir v. Mamman (supra)

On the issue of setting aside the decision of the court as canvassed by the Appellant on the ground that the matter was such that originating summons would not in the present case be appropriate.

The distinction, though very fine, has always been made between procedural irregularity and a nullity. A judgment may be set aside for irregularity where the irregularity consists of noncompliance with the rules. Where there is such non-compliance which is fundamental, it vitiates all acts resulting in a nullity. A nullity is in law, a void act, an act which has no legal consequence. The act is not only bad, it is incurably bad. See Okafor v. A.G. Anambra State (1991) 6 NWLR (pt.200) 659; Saleh v. Moguno (2003) 1 NWLR (pt. 801) 221.

I would want to get myself properly advised in the words of this court as to when a dispute is so weighty and must necessarily need to be initiated by writ of summons or where the dispute though contestable can be appropriately dealt with in an originating summons procedure. See Jimoh v. Olawoye (2003) 10 NWLR (pt.828) 307 at 346 – 347 per Onuoghen JCA (as he then was).

”It is however very important to note that the law does not envisage a situation of no dispute at all in a proceeding commenced with originating summons but that of absence of substantial dispute. In other words, there can be disputed facts but such dispute must not be substantial. Where the disputed facts are substantial then originating summons procedure is inappropriate, the proper mode of commencing such an action is by writ of summons so that pleadings can be filed and exchanged to determine the issue in controversy between the parties. When you look at the facts, it is very clear that the facts as presented by the respondent in the supporting affidavit; there was no counter affidavit by the appellants, cannot be said to be in substantial dispute since it is agreed that the respondent was at the material time the Chairman of Ifelodun Local Government and was suspended from office”.

Having stated these judicial authorities and principles enunciated above I do not see why I should depart from what propelled the learned trial Judge in identifying only one issue before him and that is if the substitution was within the Electoral Act S.34(1) & (2) or not. Furthermore the issue is not such that must be brought under a writ of summons and not an originating summons since the affidavit evidence and documents exhibited said all that was necessary and needed in proof. Therefore I resolve this issue in favour of the 1st Plaintiff/2nd Respondent. Also I agree totally with the finding by the trial judge that no reason for the substitution was proffered and so that substitution failed the statutory requirement of Section 34 (2) of the Electoral Act and therefore was a void act, of no effect whatsoever.

ISSUE NO 2

Chief Ngige stated that the Appellant was not given an opportunity to present her case in the same manner that the plaintiff/1st Respondent was allowed to present his case. That the first judgment of 1/4/07 having been set aside the Appellant was entitled to 8 days to respond after service since the first judgment was set aside for non-service and no time was set for the hearing of the case. That the matter was pre-election cannot hold as an argument in view of the attitude of the Supreme Court. He referred to Saleh v. Monguno (2003) 1 NWLR (pt. 801) 221 at 232 to 234, 248 – 249.

Mr. Dodo for 1st Respondent said the proceedings took place on the 18/4/07 three days to the Election and so the question of giving the Appellant eight days to file her process cannot arise in view of the time factor and the fact that the Appellant had the opportunity and did in fact file a counter-affidavit and a reply which was appreciated in open court by Mr. Nwankwo counsel who represented her. That Appellant cannot complain of not having enough time to respond since on becoming aware of the proceedings which took place on 5/4/07 on the 9/4/07 chose to do nothing until the 17/4/07, a ploy to get an advantage. That this issue of a lack of fair hearing should be resolved against the appellant.

Mr. Adesina learned counsel for 2nd defendant/cross appellant in identifying with the Appellant said hardship was visited on the Appellant and so had been denied fair hearing. He cited Okeke v.Iche Otika Nwokoye (1999) 13 NWLR pt. 635 p. 495 at 510; Agboju v. Adichie (2003) 2 NWLR(pt. 805) 509 at 536.

Chief Ngige SAN in reply on point of law said the proceedings as far as the Appellant is concerned commenced on 18/4/07 and anything that happened prior to that date is non sequitur.

From the Records and from the review of the learned trial Judge the Appellant was given a fair hearing or equal opportunity to present her side of the story. In fact from the counter-affidavit of the Appellant she on her own volition chose to limit her time of response being aware of the threat to her political fortune and stayed away only to surface to claim her statutory time for response.

Where a party fails to appear in court, the court owes it as its duty to examine its records to determine whether the party was served with hearing notice but deliberately absented himself, including his counsel from court and did not take the opportunity of being heard. See Ogundoyin v. Adeyemi (2001) 13 NWLR (pt,. 730) 403 at 422 – 423.

It must be noted that the court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an appellant the opportunity of obtaining substantial Justice in the sense of his appeal being granted a fair hearing or even in the court below. This is because of the need that in granting the hearing on the merits no in Justice is done to the other party where that opportunity or fair hearing existed in the court below, the appellate court has no business interfering. See University of Lagos v. Aigoro (1985) 1 NWLR pt. 1 page 142; Ogundoyin v. Adeyemi (2001) 13 NWLR (pt. 730) 403 at 421.

The very essence of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 is a hearing which is fair to both parties to the suit, be they plaintiffs or defendants or prosecution or defence. The section does not contemplate a standard of Justice which is biased in favour of one party and to the prejudice of the other. Rather, it imposes an ambidextrous standard of Justice in which the court must be fair to both sides of the conflict. The hearing must be fair and in accordance with the twin pillars of Justice, read as pillars of Justice, namely audi alteran partem and nemo judex in causa sua. Per Onu JSC at 421. See also Ndu v. State (1990) 7 NWLR (pt. 164) 550. A party who will be affected by the result of a judicial inquiry must be given an opportunity of being heard, otherwise, the action taken following the inquiry will be unconstitutional and illegal. See Ogundijun v. Adeyemi (2001) 13 NWLR (pt. 730) 403 at 423 per Onu JSC. See also Atande v. State (1988) 3 NWLR (pt. 85) 681.

In the light of the above I have no difficulty in resolving this issue of fair hearing or not against the Appellant. Therefore this appeal lacking in merit is hereby dismissed.

CROSS-APPEAL

In the cross-appeal filed by the All Nigeria Peoples Party (ANPP) also the Respondent in the Appeal/Cross-Appellant in the Grounds of appeal stated and I would recant without the particulars:-

A. The learned trial Judge erred in law when the failed to resolve the issue of legal representation of the cross-appellant raised before him.

B. The learned trial Judge erred in law when he proceeded in the suit without a legal representation for the cross-appellant.

C. The learned trial Judge erred in law when he held that the only issue to be resolved in the suit was whether the substitution by the r Defendant as candidate was proper.

D. The learned trial Judge erred in law when he Assured jurisdiction to adjudicate on the matter when service had not been effected on the cross-appellant.

E. The learned trial Judge erred in law when he failed to hold that the plaintiff in the lower court was not a member of the All Nigeria Peoples Party and therefore could not stand elections on behalf of the party.

F. The learned trial Judge erred in law when he delivered the said judgment which does not flow from the weight of evidence considered by the Hon. Judge.

The Cross-Appellant sought that the Court of Appeal allows this cross-appeal and sets aside the judgment of the Lower Court.

Mr. Adesina learned counsel for the cross-appellant stated that the cross-appeal is based on the Notice of Cross-appeal dated 4/6/07 and that it is from the 6 grounds of appeal that they have formulated three issues which are:-

1. Whether the Lower Court was not wrong in holding that the Plaintiff had locus standi thereby assuring jurisdiction in the face of an unchallenged and uncontroversial affidavit and documentary evidence
2. of expulsion of the Plaintiff by the Cross-appellant before the Lower Court.
3. Whether the lower court was right in refusing to resolve the issue of representation of the 2nd defendant in the face of the clear challenge of counsel to appear for the defendant.
4. Whether the proceedings before the Lower Court accorded with the principles of fair hearing.

The issues were however argued together which was neat in the circumstances.

Mr. Adesina for the Cross-Appellant referred to page 121 of the Record the Plaintiff was held to have shown sufficient interest and so was allowed access to the court, That it is conceded that the case of the plaintiff was predicated on whether or not the substitution of her name with the 3rd defendant conformed with Section 34 of the Electoral Act. That in paragraphs 3 (b) & (c) of the affidavit the plaintiff predicated his claim on his membership of the party and having contested the party primaries, He referred to pp 101 – 104 of the Record. That it was shown in counter affidavit that the plaintiff was no longer of the 2nd defendant party having been expelled from the party on the 2nd February 2007 which letter of expulsion can be found at page 104 of the Record which expulsion predated the institution of this case and also it was before the substitution of the candidate which gave the cause of action to the plaintiff. That these averments in counter affidavit were not challenged and no reply filed to join issues with the counter affidavit. Learned counsel for Cross-Appellant said no matter how forensic or elegal the legal arguments of counsel are they cannot take the place of positive assertion of the facts. That those assertions not having been challenged the contents of the counter-affidavit as relating to the fact of the expulsion remain unchallenged and are therefore admitted. He cited Falobi v. Falobi (1976) 9 – 10 SC 1.

Learned counsel for the Cross-Appellant further contended that the membership of the plaintiff in the ANPP is a condition precedent to challenge what goes on within the party including what went on 19/2/07 the Plaintiff having been expelled on the 2/2/07. He cited the Constitution of ANPP on discipline. Also Section 221, 65 (2) (b) of the 1999 Constitution of the Federation. That by Section 132 (1) Electoral Act 2004 as amended only a political party can sponsor a candidate into an office as the mandate is to the political party and not to the candidate. He referred to pages 71 – 72 contained in the counter affidavit of INEC wherein they deposed getting the substitution and acting on it. That the Plaintiff/Respondent/Cross-Respondent lacked the locus standi to bring the suit, his expulsion having taken place before the institution of the action.

Mr. Adesina went on to say that on the matter of legal representation there was a challenge to Mr. Tola to appeal for the 2nd Defendant/Cross appellant. That the court ought to have raised a hearing notice as to whether that counsel was proper before court to represent 2nd defendant and that failure of the lower court to do so was fatal. He cited E. I. B. Ltd. V. Adebayo (2003) 11 NWLR (pt. 832) 497. That the failure of the lower court to resolve the matter of legal representation resulted in lack of fair hearing. He referred to Order 14 Rules 2 and 3 of the Rules of Federal High Court.

Mrs. Ngbor of counsel said they are bound by whatever the orders of this court since they are a nominal party.

Chief Ngige for the appellant in the main appeal associated themselves with the submissions in this cross-appeal of the Cross-Appellant and said that the so-called counsel’s appearance was a virus which afflicted the entire proceedings.

Mr. Dodo SAN for the 1st Cross-Respondent said on the issue of locus standi that the onus that a person’s name has been submitted to INEC as was done in the case of 1st Respondent that person acquired a vested right which the court would protect when they go as far to back dating letters to back their position. He referred to page 192 of the Record where that letter was challenged and also there is no evidence that that letter of expulsion was served on the Plaintiff. Also that letter was not sent to INEC or referred to in the letter of substitution and so that letter was contrived to frustrate the right of the Plaintiff/1st Cross-respondent. That at pages 61, 62, 63 of the record can be seen documents in conflict with the said expulsion.

Mr. Dodo further stated that on the issue of representation Mr. Tola confirmed the letter of page 63 and so he cannot be said not to have the necessary authority. That there was no miscarriage of Justice since the lower court did not rely on what Mr. Tola said assuming he did not have the proper authority. That there was no other lawyer brought by the ANPP as the proper counsel and so this cross-appeal should fail.

Considering that the three issues were argued together the points raised would have to be taken as they arise. I would however refer to some of the decided cases referred to me.

In C.C.S. (Nig.) Ltd. V. Mbakwe (2002) 7 NWLR (pt. 765) 158 per Ikongbeh JCA.

“The issue of the competence of the trial court is so fundamental that it can be raised at anytime even in the Supreme Court for the first time. This is so because the issue of locus standi is an indirect questioning of the jurisdiction of the court to adjudicate on the matter. Adefulu v. Oyesile (1989) 5 NWLR (pt. 122) 377”.

Ordinarily, where a defendant defends an action knowing that the plaintiff had not been authorised to do so by the third party alleged by the defendant to be the rightful plaintiff he might not, under the general law, be heard to complain later of the plaintiff’s want of locus standi as he would ordinarily be deemed to have waived his right to complain about such want of locus standi. This will not constitute an absolute waiver however as an objection to lotus standi goes to the jurisdiction of the court. Thus, a defendant cannot be held to have waived his right to object to the locus standi of the plaintiff merely because he did not raise it in the trial court.

This is because the issue of locus of the plaintiff is fundamental to the exercise of the judicial powers conferred on the court. P. 175. 176 of C. C. B. (Nig.) Ltd. V. Mbakwe (2002) 7 NWLR (Pt. 765) 158 at 175.

Where a party exercised his undoubted and fundamental right to engage a counsel to represent him in a trial, the court has no business into inquiring whether the counsel was regularly or properly briefed. The court must allow the counsel to represent the party without any restriction or any procedural requirement; because there is no rule of law or practice that limits the number of counsel to be engaged by a party in any adjudication. See Nigerian Union of Railwaymen v. Nigerian Railway corporation (1996) 9 (NWLR) pt. 473) 490 at 502 per Mudsdapher JCA (as he then was); Nigerian Union of Railwaymen v. Nigerian Railway Corporation (1996) 9 NWLR (pt. 473) 490.

By Section 33 (1) of the constitution of the Federal Republic of Nigeria 1979, for the determination of his civil rights and obligations, a citizen has the fundamental fight to counsel of his own choice. The right to represent one’s case at a hearing before a court of law involves the right to brief and instruct any counsel or a number of counsel a litigant may wish to engage. The court cannot validly exercise any discretion to curtail the fundamental right of a litigant to a trial within the meaning of Section 33 of the Constitution. This is moreso when any law restricting the method or mode of exercise of fundamental right guaranteed by the Constitution will be inconsistent with the Constitution. See Ntukidem v. Oko (1986) 5 NWLR (pt. 405) 91; Ebele v. Ikweki (No.2) (1995) 7 NWLR (pt. 405) 91; Osagie v. Ogbemudia (1973) 4 SC77.

A litigant is free at all times to change his counsel. He can do so personally in court by announcing it or through any counsel of his choice. The court cannot intervene in any form under the guise that it was exercising a discretion to approve or disprove as the court has no such discretion to give leave to a litigant to change his counsel. If such a discretion were to exist, it would also imply that the court could refuse such leave and that would be odious in the extreme both to the litigant and the legal professions. See N.U.R. v. N.R.C. (1996) 9 NWLR (pt. 473) 490 per Uwaifo JCA (as he then was).

The rights of a party to engage counsel or change counsel having been stated above and what he decides to do with this right to a great extent if not all is not within the ambit of the powers of court. If he being represented at various dates and time in court chooses to sit by and do nothing as has happened in this case in reference to Mr. Tola who represented the cross-appellant at the trial in the court below. That counsel appeared severally, up to the time of judgment without cross-appellant doing anything. The cross appellant has fallen into what this court in the case of: C.C.B (Nig.) Ltd. V. Mbakwe (2002) 7 NWLR (pt. 765) 158 at 175 per Ikongbeh JCA had warned against:-

“Where the law makes provision in favour of a person such a person can waive his right under the law. Even where the provisions involve the fundamental rights of the person concerned, he can in appropriate circumstances, waive the rights. Thus, if the beneficiary of the statutory provisions waives his rights, or is deemed to have waived them, he cannot be heard later to complain about the violation of those rights. see Umenwa v. Umenwa (1987) 4 NWLR (pt.65) 407; Ariori v. Elenwo (1983) 1 SCNLR 1; Adejunwo v. David Hughes & Co. Ltd. (1989)5 NWLR (pt. 120) 146”.

Just like in the cases above cited the cross-appellant has by their conduct acquiesced to the representation of Mr. Tola and it is too late to complain.

When counsel appears in court and states that he is instructed, the court will not inquire into the authority to appear and he need not apply in writing for leave to appear. See Bob-Manuel v. Briggs (1995) 7 NWLR (pt. 409) 537; Tukun v. Government of Gongola State (1988) 1 NWLR (pt. 68) 52; Adewunmi v. Plastex Ltd. (1986) 3 NWLR (pt. 32) 767.

It may be postulated that the cross-appellant as litigant should not be punished for the sin of counsel. See Agbogi v, Adiche (2003) 2 NWLR (pt. 8905) 509 at 523; Dohenty (1964) 1 All NLR 299; Akinyede v. The Appraiser (1971) 1 All NLR 162, Ahmadu v. Salami (1974) 1 All NLR (pt. 11) 318.

Courts do not normally punish a litigant for the mistake or inadvertence of his counsel when the mistake or inadvertence is in respect of procedural matters. In such a case, the discretion of the court, although, always required to be exercised judicially, would be exercised with a leaning towards accommodating the party’s interest and a determination of the case on the merits. See Iroegbu v. Okwordu (1990) 6 NWLR (pt.159) 643; Bowaje v. Adediwura (1976) 6 SC 143; Akinyede v. The Appraiser (1971) 1 All NLR 162; Ahmadu v. Salawu (1974) 1 All NLR (pt. 2) 318; Akanbi v. Alao (1989) 3 NWLR (pt. 108) 118.

It can be seen from the records before court that what occurred in the court below was not a mistake of counsel or inadvertence for which the Cross-Appellant would not take responsibility. The Cross-appellant having the opportunity of having their action defended with the excellence they now want to demand ought to have utilised their right to change counsel. They have no one to blame but themselves. Floating the idea of a lack of fair hearing now cannot avail them, there being no evidence that there was a denial of fair hearing in the court below.

I would here refer to the case of: Saleh v. Monguno (2003) 1 NWLR (pt. 801) 221.

The term “fair hearing” involves a situation where, having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all parties to the proceedings. It also means a trial conducted according to all the legal rules formulated to ensure that Justice is done to all the parties to a cause or matter. Fair hearing also connotes the impression given to an ordinary reasonable person watching the proceedings. If he goes with the impression that a person has not been treated fairly, then there is a breach of fair hearing. See Okafor v. A.-G., Anambra State (1991) 6NWLR (Pt. 200) 659; Ogba v. State (1992) 2NWLR (Pt. 222) 164; Mohammed v. Kano Native Authority (1968) 1 All NLR 424.

In view of what transpired in the court below the principles of fair hearing stated above is not available to the cross-appellant since fair hearing as defined was present.

The cross-appellant had also strenuously pursued the view of the 1st cross-respondent not being with the locus standi to sue in the first instance as cross-appellant said he had been expelled by their party and so lacked the necessary standing to institute the action in the court below. Also that the trial court should have upheld that position. That being without standing the suit was an abuse of process.

Abuse of court process consists of the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of Justice such as instituting actions between the same parties simultaneously in different courts even though on different grounds. See Shell Trustees (Nig.) Ltd. v. Imani & Sons Ltd. (2000) 6 NWLR (Pt. 662) 639 at 660; Okorodudu v. Okoromadu (1977) 3 SC 21; Oyegbola v. Esso West Africa Inc. (1966) 2 SCNLR 35, (1966) 1 All NLR 170; Shell Trustees (Nig.) Ltd. v. Imani & Sons Ltd. (2000) 6 NWLR (Pt. 662) 639 at 659 – 660.

An abuse of process may lie in both a proper or improper use of the judicial process in litigation. The employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of Justice. This will arise in instituting a multiplicity of actions between the same parties in a most disturbing manner. Thus, the multiplicity of actions on the same matter between the same parties even where there exists a right to institute the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se. See Okorodudu v. Okoromadu (1977) 3 SC 21; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156; Oyegbola v. Esso West Africa Inc. (1966) 2 SCNLR 35, (1966) 1 All NLR 170.

This exotic argument of a lack of standing and abuse of process on the part of the 1st cross-appellant is here misplaced as the cross appellant has not done much to prove that point in the prevailing circumstances of the records. In fact, what the cross-appellant is relying on could very much be taken to buttress or strengthen the case of the 1st cross-respondent and lend weight to his position that what was being relied upon by the cross-appellant were merely contrived for the purpose of saving their case.

This cross-appeal cannot be sustained by anything in the record and I do not hesitate in dismissing it.

In conclusion, as I said earlier the appeal lacked merit and I dismiss it. This cross-appeal being another way of reviving that dead appeal cannot equally stand and it is also dismissed. I affirm the decision and orders of the court below. Parties are to bear their own costs.

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Other Citations: (2007)LCN/2465(CA)