Barrister Emmanuel Bako Kantiok & Anors. V. Kantiok Iriya Ishaku & Ors (2008)
LawGlobal-Hub Lead Judgment Report
ABUBAKAR ABDULKADIR JEGA J. C. A.
In this appeal, the Appellant Barr Emmanuel Bako Kantiok presented Petition No. EPT/KD/H/003/2007 before the Governorship and Legislative Houses Election Tribunal kaduna on the 10/5/07. The petition has two grounds which are stated as follows:-
“(I) That the 1st Respondent was at the time of the election, not qualified to contest the election; and
(II) That the 181 Respondent was not duly elected by majority of lawful votes cast at the election.”
The grounds of the petition are based on Section 106(d) of the 1999 Constitution and section 145(1) (a) & (c) of the Electoral Act, 2006.
The 1st & 2nd Respondents did not enter appearance or file their Reply to the petition within time and they were shut out by the Ruling of the Tribunal delivered on 9/7/07. The petition was served on the 3rd & 4th respondents on 15/05/2007 and 16/05/07 respectively but they did not enter appearance within time and therefore had 21 days to file their Reply to the petition on the 15/06/2007 a period far more than 21 days they filed a Reply without leave of Tribunal and kept quiet.
The 1st & 2nd Respondents filed a Notice of preliminary objection dated. 04/06/07 challenging the competence of the petition. On the 26/7/20 the Tribunal delivered its Ruling and struck out the petition on the ground that it is incompetent.
Dissatisfied with the Ruling of the Tribunal delivered on 26/7/07, the Appellants appealed to this Hon Court vide Notice of Appeal dated and filed on 15/8/2007.
The appeal was heard on the 17/4/08 learned counsel for the Appellants, Mr. G.A. Alley informed the court that their brief of argument is dated 30/8/07 and filed on 31/8/07 they also filed a Reply brief dated and filed on 11/12/07 learned counsel adopt the two briefs of argument and urged the Court to dismiss the Notice of preliminary objection and allow the appeal.
Mrs. S.O. Omoloba for the 1st & 2nd Respondents informed the court that their brief or argument is dated 13/9/07 and deemed filed on 29/11/07. That, they also filed a Notice of preliminary objection dated 12/9/07 and filed on 13/9/07 learned counsel adopt the brief of argument and urged the Court to allow the Notice of preliminary objection and I dismiss the appeal.
Mr. M.I. Komolafe for the 3rd to 4th Respondents informed the court that 3rd & 4th respondents’ brief of argument is dated 17/11/07 and deemed filed on 29/11/07 he adopts the brief and urged the Court to dismiss the appeal with costs.
In his brief of argument, learned counsel the Appellants formulated the following issues for determination:-
“1. Whether the Tribunal did not deny the Appellants their right to fair hearing contained in Section 36(1) of the 1999 Constitution of Nigeria, when it ignored and did not consider the Appellants’ written Address with accompanying counter affidavit which they filed and used in opposition to the 1st & 2nd Respondents’ motion dated 4/6/07, but proceeded to strike out the Appellants’ petition on the grounds that the said 1st & 2nd Respondents’ motion had no counter and was unchallenged and uncontradicted.
- Whether the Tribunal did not cause a miscarriage of justice, when it struck the Appellants’ petition filed on 10/5/07 which has two grounds and is not related to pre-election matters or any person called Hon Francis Madaki Duniya, upon hearing the 1st & 2nd Respondents’ motion dated 04/06/07 which had complaints against the Appellants’ petition but against a different petition filed on 18/05/07 which has only one ground (1) and is not related to pre-election matters and one Hon I Francis Madaki Duniya.
- Whether the Tribunal is not, and its decision is not perverse when it held that Paragraphs A3 and A4 of the petition are premised on pre-elections issues and that paragraph E and F of the petition are incongruous in setting and incompatible, and concluded that the petition is incompetent even though the 1st and 2nd Respondents had admitted the facts of the said Paragraphs which complied with Section 106(d) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 145(1) (a) & (G) of the Electoral Act, 2006 and are seeking appropriate relief against the 1st & 2nd Respondents.
- Whether the Tribunal is not wrong, and did not cause a miscarriage of justice, when it held that it is not mandatory under the provisions of the Electoral Act 2006 for a Respondent to file a Memorandum of Appearance before making a preliminary objection to a petition and concluded that the 1st & 2nd Respondents’ motion dated 04/06/07 was competent.”
On his part, learned counsel for the 1st and 2nd Respondents formulated two issues for determination the issues are:-
“1. Whether having regards to the grounds of Appeal which are complaints against the exclusion of a person who is not a party to the petition, do the Appellants (then petitioners) had locus standi to maintain the petition.
- Whether the Appellants were denied their Constitutional tight to fair hearing.”
On his part learned counsel for the 3rd and 4th Respondents formulated two issues determination. The Issues are:-
“1. Whether from the grounds and reliefs sought, it could be said that Petition NO.EPT/KD/HA/003 is competent.
- Whether in the absence of memorandum of Appearance and Reply to petition, the Respondents can validly raise a preliminary objection challenging the competence of Petition NO.EPT/KD/H/003.”
The issues as formulated by the Appellants will adequately dispose this appeal accordingly the issues so formulated will be use in the determination of the appeal.
Learned counsel for the 1st and 2nd respondents filed a Notice of preliminary titled NOTICE BY THE 1ST AND 2ND RESPONDENTS OF INTENTION TO RELY UPON PRELIMINARY OBJECTION (ORDER 3 RULE 15). The notice read thus:-
- “The Ruling appealed against has not decided the the validity of the election of any of the parties to the petition, contrary to section 246(1) of the constitution of the Federal Republic of Nigeria 1999.
- No leave to appeal has been sought for or obtained before the appeal was lodged.”
In moving the Notice of preliminary objection learned senior counsel for the 1st and 2nd respondents submitted that by virtue of section 2 46(1) (b) of the constitution of the Federal Republic of Nigeria, 1999, an appeal only lies as of right where the trial Election Tribunal might have decided the validity or otherwise of a party who had contested the election.
Learned senior counsel further submits that the ruling appealed against has not attempted to decide the validity or otherwise of any of the parties to the petition. It only held that the petitioners lacked the locus standi to complain on behalf of a third party and to bring the petition thus that makes the petition Incompetent.
Further learned senior counsel argues that in such a circumstance any aggrieved party to that ruling needs the leave of the court below (before the appeal was entered) or that of this Honourable Court. Reference made to OKON. V. BOB (2004) NWLR (PT 854) 373 at 3174.
Learned senior counsel contended from the list of authorities available, it is obvious that striking out an election petition does not fall within the provision of section 246 (1) (b) as there was no decision as whether any one was elected into the National Assembly, that is, the determination of an election petition.
Although it is a final decision in the sense that it determined the petition, but, it is a decision made in the cause of an election petition proceedings, and the constitution does not confer any right of appeal on the appellant reference made OROBO. V. NEC (1988) 5 NWCR (PT 94) 323.
In reply to the submissions of the 1st and 2nd Respondents to the preliminary objection, learned counsel to the Appellants submitted that the preliminary objection of the 1st and 2nd respondents is misconceived, because the appeal lies as of right to this Honorable Court from the ruling of the Tribunal below by virtue of section 246 (1) (b) (i) of the 1999 constitution of the Federal Republic of Nigeria. Learned counsel further submitted that the cases of OKON V BOB (2004) NWLR (PT 854) 378 and OROBO V NEC (1985) 5 NWLR, (PT 94) 323, cited on behalf of the 1st and 2nd Respondents, in support of their argument for their preliminary objection are no longer good law. Learned counsel referred to the decision of this court in the case of CHIEF EVARIST UBA V. DR. OKEY ENEMDO AND ORS (2006) ALL FWLR (PT 311) 1451 at 1960. AWUSE V. ODILI (2003) 18 NWLR.
Further learned counsel for the Appellants argues that appeals lie to this Honourable Court from the interlocutory decisions of the lower Tribunals hence the provision of paragraph 10 of the practice Direction NO.2.of 2007, thus:
“10- An interlocutory appeal shall not operate as a stay of proceedings, nor form a ground for a stay of proceedings before a Tribunal.”
Learned counsel urged us to hold that the 1st and 2nd Respondents’ preliminary objection is grossly misconceived, urged us to dismiss the preliminary objection and hold that this appeal is competent, and hear the same on its merit.
Learned senior counsel for the 1st and 2nd respondents relied on section 2 46(1) (b)(1) and the cases of OKON V BOB (supra) OROBO.V.NEC (supra) to contend that an appeal only lies as of right where the ,trial Election Tribunal might have decided the validity or otherwise of a party who had contested the election. In determining the issue raised in the preliminary objection, it is appropriate to produce the provisions of Section 246(1)(b)(i) of the constitution of the Federal Republic of Nigeria, 1999 provides as follows:
“246 (1) An appeal to the court of Appeal shall lie as of right from-
(b). decisions of the National Assembly Election Tribunal and Governorship and Legislative Houses Election Tribunals on the Question as to whether
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under the constitution”
The cases of OKON V BOB (supra) and OROBO V NEC cited on behalf of the 1st and 2nd Respondents in support of their argument for their preliminary objection are no longer the current law; see CHIEF EVARIST UBA V. DR OKEY ENEMUO AND ORS (2006) All FWLR (PT 311) 1951.
These decisions relied upon as the basis of the preliminary objection was extensively considered by the supreme court in the case of AWUSE. X. ODILI (supra) on the issue whether the appeal lies under section 246(1) (B) to the Court of Appeal from an election petition: in respect of interlocutory decision of the Tribunal.
The apex Court held in unmistaken terms in AWUSE V ODILI (supra) per Kutigi, JSC (as then he was) that appeals lie to the Court of Appeal from decisions of Election Tribunals in an election petition whatever interlocutory or on the merits.
Mohammed JSC at page 154 stated thus:-
“Now returning to the case in hand, it is plain that the relevant law that governs the process of appeal from the decision of the National assembly, Governorship and Legislative Houses Election Tribunal is section 246C1)(2) and (3) of the 1999 constitution. By that provision, the decision of the Court of Appeal in respect of appeals arising from elections shall be final. The appellant’s counsel has argued that this appeal concerns an interlocutory decision and not a final decision on the merit. An answer to this submission is the recent decision of this court in the case of MOHAMMADU BUHARI AND 2 ORS V CHIEF OLUSEGUN OBASANJO AND ORS. SUIT NO. SC 194/2003(unreported) delivered on 23rd September, 2003. In that case the full panel of this court ruled that “decision” as has been defined under section 318 of the 1999 constitution of the Federal Republic of Nigeria included (interlocutory) ruling in any proceedings”
I must respectfully hold that the decision of OKON V BOB (supra) and the interpretation placed on section 246(1)(B) by the Court of Appeal per OPENE JCA is wrong because the decision of the Supreme Court in AWUSE V. ODILI (supra) and BUHARI. V. OBASANJO (supra) was not considered nor cited to the Court of Appeal in OKON V BOB (supra).
This Court, the Court of Appeal under the doctrine of stare decisis is bound by the interpretation placed on section 246 (1) (B) by the Supreme Court in AWUSE. X. ODILI (supra) and BUHARI. X. OBASANJO (supra).
Besides, this court has, in a plethora of decisions in election petition Tribunals, entertain interlocutory appeal pursuant to the interpretation of section 146 (1) (B) of 1999 constitution. See SIR BENSON NWALU. V. NJIDEKA EZEIGWE AND ORS (unreported ) appeal No CA/E/EPT/19/2003 delivered on 25/3/2004. CHINEDU OLISAMEKA OKAFOR. V. JOY EMORDI AND ORS (unreported) appeal No. CA/E/EPT/25/2003 delivered on 17/5/2004; UZODIMMA. V. UDENWA (2004) All FWLR. (PT. 213) 1813.
Again it is clear from the provisions of paragraph 10 of the practice Direction NO.2. of 2007, appeals lie to the court of Appeal from interlocutory decisions of the lower Tribunals. The paragraph states thus:-
10- “An interlocutory appeal shall not operate as a stay of proceedings, nor form a ground for a stay of proceeding before a tribunal”
From the foregoing I find and hold that the 1st and 2nd Respondents’ preliminary objection is grossly misconceived and it is hereby dismissed. This appeal is competent.
Issue NO.I
Whether the Tribunal did not deny the Appellants their right to fair hearing contained in section 36 (1) of the 1999 constitution of Nigeria, when it ignored and did not consider the Appellants written address with its accompanying courts affidavit which they cited and used in opposition to the 1st and 2nd Respondents motion dated’ 04/06/2007, but proceeded, to strike out the Appellants petition on the grounds I that the said 1st and 2nd Respondents motion had no counter – affidavit and was unchallenged and uncontradicted .
Learned counsel for the Appellants submitted that the 1st and 2nd Respondents filed a conditional memorandum of Appearance of the Tribunal in 04/09/2007 and accompanied it with a motion on Notice dated ’04/06/2007 made pursuant to paragraph 6(2) and (3) of the Election Tribunal and court practice Directions 2007. That the Appellants as respondents to the 1st and 2nd Respondents motion dated 04/06/2007, opposed the motion by their written address dated 11/06/2007 filed on 12/06/2007 and accompanied same with a counter-affidavit, pursuant to paragraph 6(4) of the Election Tribunal and court practice Directions 2007. Learned counsel for the Appellants contends that on the 17/07/2007 when counsel on behalf of the 18t and 2nd Respondents moved the said motion dated 04/06/2007 at the Tribunal, counsel on behalf of the Appellants (as .petitioners counsel) opposed the motion and referred to the written address and the counter-affidavit.
Learned counsel for the Appellants submitted that in its Ruling on 26/07/2007 that Tribunal held as follows:-
“We have earlier on review and opined that there is no counter to the Applicant’s motion of 04/06/2007. This means that the preliminary objection stands unchallenged and uncontradicted and that being so it will be taken as proof of the facts in Issue… It is for the above stated reasons that we are of the view that this petition is incompetent and it is accordingly struck out.”
Learned counsel to the Appellants submitted that the Tribunal denied the Appellants the right to fair hearing when it ignored and did not consider the Appellants’ written Address with its accompanying counter-affidavit which they filed and used in opposition to the 1st and 2nd Respondents’ motion dated 04/06/2007 but proceeded to strike out the Appellants’ petition on the ground that the said 11st and 2nd Respondents’ motion had no counter and was unchallenged and uncontradicted – reference made to HON. MICHAEL DAPIANLONG AND ORS V. CHIEF (DR) JOSHUA CHIBI DARIYE & ANOR (NO.1) (2007)ALL FWLR (PT.373)1 AT 37-38. On this issue, learned counsel to the Appellants urged us to nullify the Ruling of the Tribunal delivered on 26/07/2007 for not observing the basic principle of audi alteram partem.
In his reply to the submissions of learned counsel to the Appellants, learned senior counsel for the 1st and 2nd Respondents submitted that the Appellants’ counsel in his submissions at page 8 of his brief of argument referred the Tribunal to a counter affidavit to the 1st and 2nd Respondents’ motion to dismiss the petition is not true. That no counter-affidavit was never filed in opposition to the said motion, that this was brought to the attention of the trial Tribunal by the 1st and 2nd Respondents’ counsel and same affirmed by the Tribunal having painstakingly looked through their various files and found no counter-affidavit to the motion of the 1st and 2nd Respondents – to that extent learned senior counsel for the 1st and 2nd Respondents contends that the Court of Appeal decision of DAPIALONG & OR$ V DARIYE & ANOR (supra) heavily relied upon by the Appellants is distinguishable and inapplicable to the facts, law and circumstances of this appeal.
It is further submitted by the learned senior counsel for the 1st and 2nd Respondents that even if the Tribunal did not consider the alleged counter-affidavit, the facts used in deciding whether or not, the Appellants had the locus standi to file the petition in their grounds of the petition as before the Tribunal which grounds were considered in its ruling now appealed against the unproved existence of a counter-affidavit. The failure has not occasioned any miscarriage of justice this is because the discretion to strike out the petition was baser upon the grounds of the petition. That an affidavit or want of it could not have saved an incompetent cause of action where non-exists from the pleadings – reference to H.R.H COL HASSAN YAKUBU (RTD) V GOVERNOR OF KOGI STATE & ORS (1995) 8 NWLR (PT.44)386 learned senior counsel urged us to resolve Issue NO.1 against the Appellants.
Learned counsel for the 3rd and 4th Respondents did not proffer any submission on this issue under consideration in their brief of argument.
The complaint of the Appellants in this issue is that the trial Tribunal did not consider their counter-affidavit to the motion of the 1st and 2nd Respondents dated 04/06/2007 before the Tribunal and the Tribunal decided the motion against the Appellants on the grounds that the preliminary objections stands unchallenged and uncontradicted and that been so it will be taken as proof of the facts in issue and based In that the Tribunal adjudged the petition of the Appellants incompetent and struck it out.
I have carefully perused the record of proceedings before the court and at pages 122-127 I found that a written address and counter-affidavit was filed in opposition to the 1st and 2nd Respondents’ motion on notice dated 04/06/2007. Also at pages 248 to 251 learned counsel to the petitioners (now Appellants) referred the Tribunal to his written address and counter affidavit in opposition tot he motion on Notice dated 04/06/2007. At pages 248 to 249 of the printed record learned counsel to the petitioners now Appellants stated thus:-
“We are opposing the 1st & 2nd Respondents Motion on Notice dated 4th June 2007. We filed a written Address in opposition to the motion dated 11th June 07 and filed on l2th June 07. It has annexed to it a counter affidavit of 4 paragraphs sworn to on 12th day of June 2007.”
In its Ruling on 26/07/2007 at page 264 of the printed Record the Tribunal held as follows:-
“We have earlier on reviewed and opined that there is no counter to the Applicants’ motion of 04/06/2007. This means that the preliminary objections stand unchallenged and uncontradicted and it will be taken as proof of the facts in issue… It is for the above stated reasons that we are of the view that this petition is incompetent and it is accordingly struck out.”
It is crystal clear from the foregoing that the learned trial Tribunal arrived at the conclusion that the Appellants petition is incompetent and accordingly struck it out based on its opinion after reviewing the matter before it that there it no counter-affidavit which according to it means that the preliminary objections stand unchallenged and uncontradicted and that being so it will be taken as proof of the facts in issue.
The counter-affidavit which the learned Tribunal ruled was not filed is at pages 126-127 of the printed record, the said counter affidavit was sworn at the Registry of the Tribunal on the 12/6/07. In the said counter-affidavit the petitioners (now Appellants) joined issues with the 1st & 2nd Respondents as raised in their affidavit in support of the motion dated 04/06/2007 the said affidavit is at pages 49 to 51 of the printed record. The trial Tribunal is in grave error when it ruled that there was no counter affidavit and thereby ruled that the preliminary objections stand unchallenged and uncontradicted and that being so will be taken as proof of the facts in issue. The learned trial Tribunal totally did not take into consideration the evidence adduced by the petitioners (now Appellants) before, arriving at the conclusion that their petition is incompetent. This is a clear breach of their right to fair hearing as contained in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.
The issue of fair hearing in a proceeding is fundamental as the lack of it in any given trial or proceeding before a Court or Tribunal vitiates the trial or proceedings in its entirety. In HON MICHAEL DAPIANLONG & ORS V CHIEF (DR) JOSHUA CHIBI DARIYE & ANOR (SUPA) AT PAGES 37 TO 38 PARAS H-C this Court stated thus:-
“The principle as entrenched in the 1999 Constitution to be more precise, Section 36(1) thereof is a basic and fundamental principle of law that requires that person whose legal rights or obligations are been questioned be given the liberty and opportunity by the Courts or Tribunals to defend such rights or obligations. The scenario is that he be heard before any adverse decision is made against him. In order to be fair and just, the adjudicating authority must give all the parties before it an opportunity of being heard before arriving at its decision. When this rule is not adhered to, an appellate court will nullify the proceedings”
This is the stand taken by appellate courts and cases had been nullified for not observing the basic principle of audi alteram partem. See F.C.S.C. v. LAOYE (1989) 2 NWLR (PT. 106) 652; SALEH V MUNGNO (2002) ALL FWLR (PT.87)671; MOHAMMED V KANO N.A. (1968)1 ALL NLR; ELIKE V NWAKWOALA (1984) 112 SC 301; ORUGBO V UWA (2002) ALL FWLR (PT. 127)1024; NDUKAUBA V KOLOMO (2005) 1 ALL FWLR (PT.248)1602.
In the instant appeal it is very glaring from the printed record before the court that the trial Tribunal denied the Appellants their right to fair hearing contained in Section 36(1) of the 1999 Constitution of Nigeria, then it ignored and did not consider the Appellants’ written address with its accompanying counter-affidavit which they filed and used in opposition to the 1st and 2nd Respondents’ motion dated 04/06/2007, but proceeded to strike out the Appellants petition on the grounds that the said 1st & 2nd Respondents motion had no counter and was unchallenged and uncontradicted, accordingly Issue NO.1 is resolved in favour of the Appellants against the Respondents.
Issue of fair hearing is fundamental as the want of it vitiate the entire proceedings and the outcome of the proceedings be it judgment or ruling, accordingly the ruling of the Tribunal delivered on 26/07/2007 is nullified for not observing the basic principle of audi alteram partem. With the resolution of Issue No.1 in favour of the Appellants and the nullification of the Ruling of the Tribunal delivered on 26/7/07, Issues No.2, 3 and 4 becomes otiose and it will be needless to canvass them in this appeal.
In conclusion this appeal succeeds and it is hereby allowed. The Ruling of the trial Tribunal delivered on 26th July 2007 is hereby nullified. An order is made directing the Honourable Tribunal to hear and determine Petition No. EPT/KD/HA/003/ 2007 entitled Barrister Emmanuel Bako Kantiok & Anor v. Kantiok Irmiya Ishaku & 2 Ors on its merit.
The Appellants are entitled to costs, a costs of thirty thousand Naira (=N=30, 000.00) is awarded to the Appellants against the 1st & 2nd Respondents.
Other Citations: (2008)LCN/2895(CA)
