Barrister Handel Okoli & Anor V. Hon. (Dr.) Okechukwu Udeh & Anor (2007)

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OLUFUNMILOLA OYELOLA ADEKEYE, J.C.A.

The Respondent/Cross-Appellant Hon. Dr. Okechukwu Udeh as plaintiff initiated a suit NO.FHC/ABJ/CS/188/07 at the Federal High Court Abuja by way of Writ of Summons challenging his substitution by his party – Peoples Democratic Party, 2nd appellant/cross-respondent, with the name of the 1st Appellant/Cross-Respondent Barrister Handel Okoli. In the Writ of summons and the penultimate paragraph of the statement of claim before the trial court the Respondent/cross-Appellant claimed against the Independent National Electoral Commission, Barrister Handel Okoli and the Peoples Democratic Party as defendants jointly and severally as follows:-

(1) Declaration that the option of changing or substituting a candidate whose name is already submitted to the 1st defendant INEC by a Political Party is only available to a Political Party and/or INEC under the Electoral Act 2006 if the candidate is qualified by a court order.

(2) Declaration that under Section 32(5) of the Electoral Act 2006 it is only a court of law by an order that can disqualify a duly nominated candidate of a Political Party whose name and particulars have been published in accordance with Section 32(3) of the Electoral Act 2006.

(3) Declaration that there are no cogent and verifiable reasons for the 1st and 2nd defendants to change the name of the plaintiff with that of the 2nd defendant as the candidate of the Peoples Democratic Party (PDP) for the April 2007 election into the Federal House of Representatives for Orumba North and South Federal Constituency in Anambra State.

(4) Declaration that it is unconstitutional, illegal and unlawful for the 1st and 3rd defendants to change the names of the plaintiff with that of the 2nd defendant as the Federal House of Representatives candidate of the Peoples Democratic Party (PDP) for Anambra State in the forth coming National Assembly Election in Anambra State after the plaintiff has been duly nominated and sponsored by the People Democratic Party as its candidate and after the 1st Defendant has accepted the nomination and sponsorship of the plaintiff with a clearance certificate issued by the 3rd Defendant and published the name and particulars of the plaintiff in accordance with Section 32(3) of the Electoral Act 2006, the 3rd defendant having failed to give any cogent and verifiable reasons and there being no High Court Order disqualifying the plaintiff.

(5) Declaration that the decision to substitute or the substitution of the name of the plaintiff who has acquired a vested right and without being afforded a hearing before the decision to substitute his name is null and void for violating the provision of Section 36 of the 1999 Constitution which guarantees the plaintiff’s right to fair hearing.

(6) An order setting aside the purported steps taken by the 1st and 3rd defendants purporting to substitute the name of the plaintiff with that of the defendant as the candidate of the Peoples Democratic Party (PDP) for the April 21st 2007 general election into the Federal House of Representatives for Orumba North and South Federal constituency in Anambra State

(7) An order for mandatory Injunction compelling the 1st Defendant, its Agents, privies or howsoever called to recognize the plaintiff as the candidate of the Peoples Democratic Party for the April 21st 2007 General Election into the Federal House of Representatives for Orumba North and South Federal Constituency in Anambra State.

(8) An order of perpetual Injunction restraining the defendants jointly and severally by themselves, their agents, privies or assigns from changing or substituting the name of the plaintiff as the Anambra State Peoples Democratic Party National Assembly candidate for the April 2007 Anambra State Federal House of Representatives Election unless or until a court order is made disqualifying the plaintiff and/or until cogent and verifiable reasons are given as required under Section 34(2) of the Electoral Act 2006.

The defendants filed their defence, however the 2nd defendant/appellant/cross-respondent in addition to his defence filed a counter-claim on 5/4/07 (vide pages 35-41) of the Record of Appeal. The counter claim reads:-

(a) A declaration that having been indicted by a judicial panel and such indictment having been re-accepted by Anambra State House of Assembly who impeached him the plaintiff 2nd defendant is not qualified to contest the April 21st Election into the Orumba North and South Federal Constituency of Anambra State.

(b) An order restraining the INEC the 2nd defendant in the counterclaim from accepting the plaintiff as candidate for the elections or changing the name of the counter-claimant with that of the plaintiff.

In view of time constraint the court acceded to accelerated hearing in the matter by waiving filing of briefs, the matter was heard on written addresses and deposition of witnesses. The facts of this case in brief are that the 1st Respondent/cross-appellant emerged the winner in the primaries conducted by the peoples Democratic Party to select the candidate to be nominated and sponsored to contest the election into the Orumba North/South Federal Constituency of Anambra State. His name was forwarded to INEC 1st Respondent/cross-Respondent and published at Local Government level – The latter gave birth to a number of petitions challenging the eligibility of the 1st Respondent /cross- appellant to contest in the election. The party 2nd appellant/cross-Respondent submitted the name of the 1st appellant/cross-Respondent to INEC to beat the dateline for submission of names of candidates. The party on the other hand investigated the substance of the petitions against its candidate which were premised on his activities during his tenure as Deputy Governor Anambra. The strong issues raised were those of his impeachment, his purported pardon by the Governor of Anambra State and the subsequent

MISSING PAGE

(II) Whether the letter of 20th of February 2007 has any probative value.

The 2nd Respondent in the brief filed on 15/5/07 did not identify any issue for determination rather it gave a blanket two pages argument whereupon it explained the Commissions role in the conduct of the elections and as a principal actor in the electoral process – it is prepared to comply with any order made by this court as an independent and impartial body.

The 1st Respondent filed a brief of argument to the 2nd appellant’s brief of argument on 11/5/07 where it gave an indication of adopting the contents of the brief of the 1st Respondent filed on 11/5/07 inclusive of the preliminary objection.

The 1st appellant filed an Amended Notice of Intention to contend that judgment should be affirmed on grounds other than those relied on by the court below – pursuant to Order 3 Rules 14(3) of the court of Appeal Rules. The grounds on which the 1st Appellant/cross-Respondent intends to Rely upon are as follows:-

(1) That the Respondent/cross-appellant was disqualified from contesting the April 21st 2007 elections by virtue of Section 66(1)(h) of the 1999 Constitution of the Federal Republic of Nigeria.

(2) That 1st Respondent/cross-Appellant was also disqualified from contesting the April 21st 2007 Elections by virtue of his indictment by the Administrative Panel of Enquiry set up by the Chief Judge of Anambra State pursuant to the Resolution of the Anambra State House of Assembly. The said Panel indicted the 1st Respondent/cross-Appellant for violating the provisions of the 1999 Constitution of the Federal Republic of Nigeria.

MISSING PAGE

(1) Grounds 4 is an omnibus ground raised on issue of law

(2) There is no exceptional circumstance that may warrant lack of particulars for ground 4.

(3) Issue NO.3 raises new issue on appeal without leave of this Honourable Court.

(4) The arguments canvassed by the 1st appellant in his brief of argument do not emanate from the judgment of the court and the printed record before this Honourable court.

(5) Issue No.3 is not supportable by Ground 4 of the appeal hence it is formulated in nibibus and liable to be struck out.

(6) Ground 4 of the Appeal in itself has not furnished the particulars needed.

(7) It is odd and Impermissible for a party to change the case he has made at the trial court.

(8) Ground of Appeal must relate to the decision.

(9) The complaint of the Appellant in ground 4 is one in law and requires particulars.

(10) The right to the Respondents Notice is not available to the appellant.

(11) The Notice of intention to contend is meant to serve the same purposes as that of the Respondents notice.

(12) The said notice of intention to contend is an abuse of court process.

(13) There is nothing left in the judgment of the lower court which the appellant has not appealed against.

(14) No argument is canvassed by the appellant in support of the ground of the said Respondent’s Notice.

(15) An abuse of process of court is always sanctioned by the coercive order of court for dismissal under Section (6) (6) (c) of the 1999 Constitution.

In pursuance of the preliminary objection, the learned senior counsel for the 1st Respondent submitted that Issue NO.3 formulated by the 1st Appellant having not been covered by any ground of Appeal is incompetent. The 1st appellant cannot cover it with omnibus ground which is ground four of the ground of appeal.

An issue of law must be raised as a separate ground of appeal and not made an adjunct to the omnibus ground. Since issue No.3 is not formulated from any ground of appeal it is liable to be struck out for being incompetent.

Ground 4 has no particulars. The issue raised as to Article 48(f) of the Electoral Guideline and powers of the National Executive Committee and National Working Committee of the 2nd appellant was not part of its case before the trial court.

A party cannot canvass on appeal a different case for what was presented before the trial court. Ground 4 in the circumstance of this case must have particulars.

The 1st Respondent relied on the undermentioned cases.

Ben V State 2006 16 NWLR pt 1006 pg 582 at pg 602

Chime V Chime 2001 3 NWLR pt 701 pg 527 at pg 550

Ojeme V Momodu 1994 1 NWLR pt 323 at pg 705

Ogba V Onwuzo 2005 All FWLR pt 275 pg 883

Auneziri V Okenwa 2000 15 NWLR pt 691 pg 526

Ochi V Ekpechi 2005 5 NWLR pt 656 pg 225

By way of reply to the submission of the 1st Appellant/Cross-Respondent, on Issue One the 1st Respondent learned senior counsel submitted that the name of the 1st Respondent was published in accordance with Section 32 (4) of the Electoral Act 2006, in the absence of any order of court disqualifying the 1st Respondent from contesting the election as contemplated by the provisions of section 32 (4) and (5) of the Electoral Act 2006, the 1st Respondent has acquired a vested right – which cannot be divested without strict compliance with the provisions of Section 34 (2) of the Electoral Act and Section 36 of the 1999 Constitution. The substitution of the 1st Respondents name was not done according to the dictates of Section 34 of the Electoral Act- which gave the four elements required as;-

(1) 60 days time limit

(2) Application

(3) Cogent reasons

(4) Verifiable reasons

The letter relied upon was that dated 19th February 2006 – where the reason was given as “without enough information.” The letter dated 20th of February 2007 would not have been in existence as the 2nd Respondent did not refer to it in its statement of defence filed on the 3rd of April 2007 or that the 2nd appellant did not avail the 2nd Respondent of it until the 8th of April 2007 when it was brought along for certification. The letter came to the knowledge of the 2nd respondent only 26 days before the date of the rescheduled election, and this fell short of the requirement of time limit of 60 days. The court is urged to resolve this issue in favour of the 1st Respondent Cross/appellant. Reference was made to cases-

NDAYAKO V. DANTORO 2004 13 NWLR PT 889 PG. 187 AT 216-217.

AFOLABI V. GOVERNOR OYO STATE 1985 2 NWLR PT 9 PG. 734.

C. C. B. (NIG) V. ONWUCHEKA (1998) 8 NWLR PT 562 PG. 395.

The substitution was purportedly done without giving cogent and verifiable reasons hence it should be declared null and void. This contention is supported by the case of ARARUME V. INEC (unreported decision of the Supreme Court in suit No SC/63/01 delivered on 9th of April 2007.

In the 1st Respondents Reply to the 2nd Appellant – the 1st Respondent adopted its submission to the 1st Appellant on Issue One.

The 2nd Respondent submitted that it cannot as an independent body be expected to run the affairs of the 3rd Respondent by imposing a candidate on the party as substitution of names of candidates is an intra party affair of the party, so far such substitution is done in strict compliance with the provisions of Section 34(2) of the Electoral Act 2006 which is that the political party must furnish a cogent and verifiable reason. The reason given by the Political Party in the instant case for the substitution of the 1st Respondent is that it earlier submitted the name of the 1st Respondent/Cross-appellant without enough information. The 2nd Respondent however confirms that it is under a duty to obey the order or pronouncement of this court in respect of the appeal before it as an impartial body.

ISSUE TWO

Whether there was any dispute as to the signature of Col. Ahmadu Ali GCON, the National Chairman of the 3rd Respondent, and if so, whether the signature on the letter of 20th February 2007 is not consistent with the signature on Exhibit 8 in the Appellant’s deposition i.e. letter dated 19th February 2007 and that on Exhibit C of the 1st Respondent’s deposition.

The learned senior counsel submitted on this issue that the source of confusion at the lower court was the fact that after signing his signature on Exh 8 of the Appellants deposition – the National Chairman went further to write his name in long hand. The learned trial judge raised the issue suo motu. In the letter forwarding the name of the 1st Respondent Exh C, and the letter dated 20th February 2007 Exh 9 – the signature is consistent and remained so with the one on the letter dated 19th February 2007. The conclusion of the learned trial judge would have been different if she had not misconceived the signature of the National Chairman.

The 2nd Appellant submitted that Article 50 exists so as to avoid a situation where submission of names of candidates is made without the authority of the party. The letter dated 20th of February 2007 signed on behalf of the Secretary is deemed to be the act of the secretary until he repudiates same.

The letter dated 20th of February 2007 is in furtherance of the letter dated the 19th February 2007 hence both letters must be read conjunctively.

The substitution of the cross/appellant with the 1st Appellant/cross- Respondent is in substantial compliance with article 50 of the party’s Electoral Guideline and in strict compliance with the Electoral guideline.

The 1st Respondents learned senior counsel submitted that this issue relates to the admissibility and probative value that may be ascribed to the letter of 20th February 2007. The letter suffers some fundamental defects of non-compliance with the law and violation of the Evidence Act Article 50 conveys the simple meaning that the full signature of the National Chairman and National Secretary is compulsory on documents. Exh 9 runs foul of that mandatory provision. The learned trial judge was right in declaring the letter of 20th February null and void for non-compliance with Article 50. The signatures on the two letters dated 19th and 20th of February are not the same in substance and form.

The letter of the 20th of February 2007 is a worthless document which falls short of any probative value as to its propriety on the issue of substitution of the 1st Respondents name. A critical look at the letter of 20th February 2007 leads to the unshakeable conclusion that:-

(1) The letter was not signed by the National Secretary but by an anonymous person giving impression that he was signing for the National Secretary

(2) The column for signature for the National Chairman is bereft of what qualifies as signature of the National Chairman comparing it with the letter of 19th of February 2007.

(3) In the signature column for the National Secretary the name of either the Secretary – Ojo Maduekwe or that of his unsolicited anonymous agent was missing.

(4) The two signatures appearing on the letter of 20th February are unknown to the electoral guidelines of the PDP in so far as the submission of candidate’s name for the election is concerned. The issue of compliance with electoral guideline is legal in nature and INEC as a statutory body and the Court of Law must ensure compliance. The letter was made In the course of proceedings before the lower court hence it is of no evidential value and should not be admitted in evidence.

The learned senior counsel further submitted that the counter-claim of the 1st appellant was declaratory and as such he must succeed on the strength of his own case by adducing credible evidence. The letter of 19th February was relied on by the 2nd Respondent in substituting the name of the 1st Respondent with that of the appellant. The learned senior counsel submitted that on the state of pleadings the issues were joined on all material facts inclusive the letter of the 20th February 2007. Parties in their respective submissions before the lower court argued strenuously on the issue of signature. It is the rule of pleadings that only material facts on which a party relies for his case need be pleaded and not evidence in respect thereof.

The Appellant has the burden to convince the court that the point so taken suo motu is substantial and has led to a miscarriage of justice against the appellant. This burden placed by law on the appellant has not been discharged.

In the reply to the 2nd appellant – the 1st Respondent adopts the foregoing submission.

ISSUE THREE

Whether the judgment is consistent with the evidence before the court.

It was the contention of the 1st appellant that the judgment of the court with respect to the part of judgment complained of is against the weight of evidence that was before the lower court. It was the evidence of the 3rd Appellant given through its legal adviser Mark Jacob Nzama at pages 667-670 of the Record at paragraph 16 that the decision of the National Executive Committee of the party which overrides the party’s guidelines is that in the absence of the Chairman and the secretary any other member of the National Working Committee can sign on their behalf. Article 48(f) confirms the supremacy of the National Executive Committees over both the party guidelines or any other rules or regulations laid down by the 3rd Respondent. Exh 9 is in strict compliance with Article 50 of the guidelines. The learned trial judge failed to advert her mind to this piece of evidence hence she came to the wrong conclusion.

The 2nd appellant submitted that it was not in breach of Article 50 of its electoral guideline in substituting the plaintiff with the 2nd defendant Electoral guideline is purely for internal control within the party to regulate its primary elections. It is intended by article 50 to avoid a situation where submission, of names of its candidates is made without the authority of the party. The authority of the National Executive of the party overrides the Electoral guidelines see Article 48 (f) of the guideline and Exh F at page 334 of the Record. The signature on the letter of the 20th February 2007 is deemed to be that of the secretary. Once a rule of procedure does not occasion miscarriage of justice the court will not hesitate in over looking the technicality.

The 1st Respondent submitted on Issue Three that the judgment of the lower court in respect of the plaintiffs case before the lower court was consistent with the evidence before it and the issues of unchallenged deposition did not arise as all issues were joined by the parties and the issues for determination narrowed down to whether the substitution of the 1st Respondent’s name was done in compliance with the provisions of Section 34 of the Electoral Act 2006. Issue NO.3 does not arise from any of the competent grounds of appeal. Ground 4 which is without particulars cannot sustain it. Section 48(f) is irrelevant in the consideration of the propriety of letter of 20th February 2007.

Articles 48(f) and 50 of the Electoral guidelines govern separate and distinct subject-maker. (sic)

The court is urged to dismiss the appeal and the findings of the lower court.

The 1st appellant confirmed in the reply brief that the parties at all material times agreed that by the letter of the 19th of February 2007 the 2nd appellant applied to substitute the 1st Respondent who was previously nominated without enough information, and followed it up with the letter of 20th February which provides the information subsequently required. The 2nd Respondent relied upon this letter of the 20th February 2007 as it provided it with the cogent, verifiable and acceptable reasons for substitution.

The 1st appellant contended that a candidate sponsored by a political party to contest an election does not require any legal right to so contest as against the party sponsoring him as his sponsorship is under the law at the mercy of the party – who can withdraw the sponsorship under Section 34 of the Electoral Act without the requirement of fair hearing.

The right acquired by the 1st Respondent in the circumstance can best be described as a right created by statute – the Electoral Act and is only exercisable subject to and in strict compliance with the provisions of the Act. A person does not become a candidate until the provisions of Section 34 and 35 are complied with. The issue of back-dating or front dating the letter dated the 20th of February which the 2nd defendant relied upon was not contested before the lower court and cannot be raised for the first time on appeal without leave of court. The 1st appellant cited cases like –

Abinabina V Enyimadu 1953 12 WACA 171

Ejofodoni V Okonkwo 1982 11 SC 74 at 93-98

IBWA V Imano 1988 3 NWLR pt … pg 633

The document by which the 1st Respondent’s name was submitted to the 2nd appellant Exhibit C was signed by the chairman in exactly the same way as he signed on the letter of the 20th February 2007. The 1st Respondents locus stand/to institute this action is derived from the fact that his name was submitted to the 2nd Respondent on a document signed by the Chairman of the 2nd appellant alone in breach of Article 50 of the party’s guideline The 1st Respondent is estopped from challenging the genuiness of the signature of the chairman as contain in the letter of the 20th February 2007.

Non-compliance with Article 50 would not nullify the act of the 2nd Respondent, who was under a duty to verify cogent reasons and not to verify the signatories for the purpose of validating the letter of the 20th February 2007. Article 48(f) overrides the provision of Article 50 of the Electoral Guidelines.

As a reply to the preliminary objection the 1st Appellant contends that an omnibus ground is not an issue of law but an attack on the findings of fact alleging that the judgment is against the weight of the evidence adduced at the trial. That omnibus ground does not admit of particulars. The term omnibus connotes the lumping of two or more things together. The need for particulars will negate the very concept of an omnibus ground of appeal.

Issue No.3 does not raise a new issue as it was pleaded that the decision of the National Executive Committee override the party’s guideline and led in evidence by the legal adviser of the 2nd appellant – Mark Jacob Nzama (vide pages 667-670).

Furthermore – Issue number 3 which is an attack on the evaluation of the evidence before the court is related to the omnibus ground of appeal.

Issue three was properly distilled from ground four in the notice of appeal.

The 1st appellant further submitted that the 1st Respondent erroneously held that the right to file a Respondent Notice is not available to the appellant, A Respondent Notice is only available to a Respondent on appeal as the Appellant is a Respondent to the cross-appeal filed herein – he is entitled to file a Respondents notice. The preliminary objection raised by the 1st Respondent lacks merit and should be dismissed.

I have given painstaking consideration to the submission of parties in this appeal. I find it appropriate to consider the preliminary objection raised by the 1st Respondent/cross-Appellant before delving into the substance of the appeal.

In the preliminary objection the 1st Respondent challenged the jurisdiction of this court as follows:-

(1) To entertain the ground 4 of the ground of Appeal.

(2) Issue No.3 formulated from ground 4 of the grounds of appeal.

(3) Notice of Intention filed by the 1st Appellant to contend that judgment should be affirmed on grounds other than those relied on by the court dated 7th of May 2007.

On the first ground of objection the 1st Respondent/cross-appellant contended that ground 4 is an omnibus ground on issue of law – and the Appellant did not state the exceptional circumstances that may warrant not furnishing particular thereto.

The 1st appellant portrayed ground 4 as an omnibus ground of appeal and as such does not admit of particular under any circumstance.

The 1st appellant’s grounds of appeal are as reflected on pages 724-726 of the Records of Appeal.

Ground four of the grounds of appeal on page 726 reads:-

“Ground Four – Error in Law

The judgment is against the weight of weight.”

The meaning of the phrase judgment is against the weight of evidence in a civil case is when an appellant complains that a judgment is against the weight of evidence adduced by him as balanced against that adduced by the Respondent, the judgment given in favour of the Respondent is against the weight, which should have being given to the totality of the evidence before the court. In civil cases which are decided on the preponderance of evidence, the omnibus ground is couched as in ground four in the ground of appeal on page 726 of the Record of Appeal, without the caption Error-in-Law.

Bodi V Agyo 2003 16 NWLR pt 846 pg 305

Mogaji V Odofin 1978 4 SC 91

Abisi V Ekwealor 1993 6 NWLR pt 372 pg 643

Adelusola V Akinde 2004 12 NWLR pt 887 pg 295

Akibu V Opaleye 1974 11 SC pg189

An omnibus ground of appeal does not have particulars attached to it.

The appellant on page 726 of the Record captioned ground four of the grounds of appeal – Error in law. This is a grave misconception in that when a complaint is against the weight of evidence, the complaint is of necessity against the totality of the evidence adduced before the court and not on a finding of fact on a specific issue or document as the case may be. An omnibus ground cannot be used to raise issues of or errors in law.

This is because the complaint in an omnibus ground of appeal questions the appraisal and evaluation of all the evidence adduced and not the weight to be attached to any particular piece of evidence. Where the complaint is on a finding of fact on a specific issue or document as the case may be the finding should be raised as a substantive ground of appeal. An omnibus ground is usually a ground of fact.

Ajibona V Kolawole 1996 10 NWLR pt 476 PO22

B.P (West Africa) Ltd V Allen 1962 1 All NLR 645

Olusosi V Oyelusi 1986 3 NWLR pt 31 pg 634

Anyaoke V Adi 1986 3 NWLR pt 31 pg 731

Edet V Eyo 1999 6 NWLR pt 605 P9 18

Calabar East Co-operative Thrift & Credit Society Ltd. V Ikat

1999 14 NWLR pt 638 pg 225 at P9 246

The 1st Respondent went further in the preliminary objection to hold that Issue No.3 of the appellant’s brief does not arise from ground 4 of the grounds of appeal and should therefore be struck out. The 1st Respondent further alleged that Issue No.3 raises a new issue on appeal without leave of court. The 1st appellant however replied that all the evidence adduced in support of letters requesting for substitution dated 19th and 20th of February 2007 and on the probative value of the letter 20th of February relating to the substitution of the 1st Respondent, and the evidence of the 2nd appellant adduced by its legal adviser, Mark Jacob Nzama as to propriety of the signature signed on behalf of its National secretary in view of Article 50 of the party’s guideline, were pleaded. Since pleadings are facts and not evidence, the legal adviser led evidence in support of the pleadings. Vide pages 667-670 of the Record of Appeal.

Issue NO.3in the brief of the 1st appellant/cross-Respondent at page 6 of the Appellants brief of argument filed on 7/5/07 reads:-

“Whether the evidence is consistent with the evidence before the court.”

Ground four of the appellant’s grounds of appeal is an omnibus ground which calls to question the learned trial judges evaluation of the evidence led in the trial before her.

It is glaringly apparent that Issue No.3 is distilled from this ground of appeal. It is trite that issues formulated in a brief must of necessity arise and be related to the grounds of appeal filed, while the grounds of appeal must derive or flow from the decision appealed against. It is not permissible for a party to an appeal to canvass arguments on an issue having no bearing on any of the grounds of appeal filed.

Okpala V Ibeme 1989 2 NWLR pt 102 pg 208

Egbe V Alhaji 1990 1 NWLR pt 128 pg 546

Kano ile Plc V. G&H (Nig) Ltd. 2002 2 NWLR pt 751 pg 420

I do not agree that issue No three raises a fresh issue on appeal requiring the leave of this court before it can be raised more so when the substance of the complaint in that issue was that the lower court failed to consider an issue raised before it both pleaded and led in evidence by the 2nd appellant in the deposition of Mark Jacob Nzama the Legal Adviser of the 2nd appellant at pages 667-670 of the Record of appeal.

Onwuka V Maduka 2002 18 NWLR pt 799 pg 586

Lastly the 1st Respondent/cross-appellant submitted that the right to the Respondents Notice is not available to the appellant as Notice of Intention to contend is meant to serve the same purpose as that of Respondents Notice. There is nothing left in the judgment of the lower court which the appellant has not appealed against. The Notice of Intention to contend now in the circumstance of this case becomes an abuse of court.

The simple and straight forward reply of the 1st appellant/cross-respondent is that he is a Respondent to the cross-appeal filed herein and is entitled to file a respondents Notice.

In the cross-appeal filed by the 1st Respondent/cross-appellant – the 1st Appellant/cross-Respondent reacted by filing the cross-Respondent’s brief and filed an Amended Notice of intention to contend that judgment should be affirmed on grounds other than those relied on by the court below – pursuant to Order 3 Rule 14(3) of the Court of Appeal Rules

The ground on which the 1st appellant/cross-Respondent intends to rely is as follows:-

(1) “That the 1st Respondent/cross-Appellant was disqualified from contesting the April 21st 2007 elections by virtue of Section 66(1) (h) of the 1999 Constitution of the Federal Republic of Nigeria.

(2) That 1st Respondent/cross-Appellant was also disqualified from contesting the April 21st 2007 elections by virtue of his indictment by the Administrative Panel of Enquiry set up by the Chief Judge of Anambra State pursuant to the Resolution of the Anambra State House of Assembly. The said panel indicted the Respondent/cross-Appellant for violating the provisions of the 1999 Constitution of the Federal Republic of Nigeria.”

Order 3 Rule 14(1) of the Court of Appeal rules 2002 reads:-

Order 3 Rule 14(1)

“A respondent who not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event, or in the event of the appeal being allowed in whole and in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make or to make In that event as the case may be.

Order 14(2)

A Respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court must give notice to that effect specifying the grounds of that contention

Order 14(3)

Except with the leave of the court, a Respondent shall not be entitled on the hearing of the appeal to contend that the decision of the court below should be varied upon grounds not specified in a notice given under this rule to apply for any relief not so specified or to support the decision of the court below upon grounds not relied upon by that court or specified in such notice.”

The 1st appellant is cross-Respondent in the cross-appeal. He did not cross-appeal but still remains a cross-Respondent. He filed the requisite Notice asking for leave to file Notice to contend which this court granted.

A Respondents notice applies only where the Respondent intends to retain the judgment appealed against but at the same time wants it varied. The Respondents Notice will apply only where a particular point in the appeal is stretched by the respondent who contends for its maintenance but proposes a variation of it, if it is the only means by which he would be enabled to retain it or if on the fact and the law the decision of the Court appealed against will in any event be affirmed.

A Respondents Notice Is the notice you give when as a Respondent you do not wish to appeal properly but to contend that the judgment of the lower court be varied under Order 3 Rules 14(1) and (2) of the Court of Appeal Rules 2002. The application is predicated on the Respondents brief deemed filed 24/5/07.

Ibe V Onuorah (1999) 14 NWLR pt 638 pg 430

Ntuks V N.E.PA. 2000 4 NWLR pt 654 pg 639

Ogbeide V Osula 2003 15 NWLR pt 843 pg 266

In defining the distinction between a cross-appeal and a Respondents Notice I must specify that they are opposed to each other.

There are different reasons for filing a Notice of Appeal or a respondents Notice. Order 3 Rule 14 of the Court of Appeal Rules 2002 shows that a Respondents Notice is to be invoked in lieu of filing a Notice of Appeal or vice versa. A respondent has an option of invoking whichever one will be more beneficial in the circumstances of his case. A Respondents notice has been used in cases with simple and straight forward uncomplicated judgment.

Pacers Multi-Dynamic M V Dancing Sister (2000) 3 NWLR pt. 648 pg 241

Ibe V Onuorah (1999) 14 NWLR pt 638 pg 430

Anyaduba V N.R.T.C. Ltd. 1990 1 NWLR pt 127 pg 379

Ntuks V N.E.PA. 2000 4 NWLR pt 654 pg 639

The 1st appellant/cross Respondent has not cross-appealed he reserves the right to file Respondents Notice in the cross-appeal for which he had applied for leave and was granted.

In effect the preliminary objection lacks merit and is consequently struck out.

In the main appeal, the 1st appellant distilled three issues for determination as highlighted earlier on this judgment (vide page 6 of the 1st appellant/cross-Respondent’s brief). I intend to consider issues one and two together which on their combined reading I shall summarise as the core Issue for consideration and determination of this court. Whether going by the letters dated the 19th and 20th of February 2007 and Article 50 of Exh. F the 2nd appellant’s Electoral guideline-the substitution of the 1st Respondent with the 1st appellant was effectively carried out in accordance with the provision of Section 34(1) and (2) of the Electoral Act 2006.

Before the lower court two issues raised for determination are as follows:-

(1) Whether the plaintiff has been properly substituted in accordance with Section 34 of the Evidence Act.

(2) If positive whether he has been properly fielded fulfilling in him all requirements of the Constitution. An eligibility to run election vis-a-vis Section 66(c) of the Constitution 1999.

In her considered judgment the learned trial judge after microscopic examination of the written addresses of parties, their pleadings, affidavit and counter-affidavit, decided as follows:-

(a) Substitution and reasons thereof are not in compliance with Section 34 of the Electoral Act. The first letter does not contain cogent and verifiable reasons and the substitution was set aside.

(b) The learned trial judge found that there was an impeachment of the 1st respondent by an appropriate authority and further that the procedure of granting him pardon for the impeachment was ultra vires of the power of the Governor of Anambra State and these disqualified him from participating in the election of the 21st of April 1999 under Section 66(c) of the Constitution.

In the 1st appellants assessment of the judgment he said that:-

“It is therefore a huge contradiction for the trial Judge in one breadth to hold that the 1st Respondent is disqualified by reason of his indictment which is the reason adduced by the party for his substitution and at the same time hold that there was no verifiable reason on the ground only that the letter conveying the reason was not signed by all the authorized signatories.

Section 34(1) and (2) of the Electoral Act 2006 reads:-

Section 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.

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

I adopt the definition of cogent and verifiable as stated in the case of Ararume V INEC & 20rs (An unreported decision of the Court of appeal Abuja delivered on the 20th of March 2007 in suit NO. CA/N49/07 and confirmed by the Supreme Court in Suit NO. SC/63/07 delivered on the 5th of April 2007.

The two letters relied upon for the substitution of Barrister Handel Okoli 1st Appellant/cross-Respondent for Hon. Dr. Okechukwu Udeh are dated 19th and 20th of February 2007. In order to effect the substitution of 1st Respondent’s name in accordance with Section 34 of the Electoral Act 2006 the three steps to be taken are as follows:-

(1) 60 days time limit

(2) Application in writing to INEC

(3) Cogent and verifiable reasons supplied

In the scenario preceding the substitution the 1st Respondent won the party’s primaries with 688 votes.

He was issued clearance certificate to this effect and his name was submitted to the 2nd Respondent INEC as the candidate for the Orumba North and south Federal constituency for Anambra State for he April 21st 2007 election which was rescheduled and held on 28th April 2007. The name of the 1st Respondent was published on INEC’s Notice Board.

The 2nd Appellant relied on the letters dated 19th and 20th February 2007 to INEC to substitute the name of the 1st Respondent.

30

The probative value of the letter dated 20/2/07 was vigorously contested before the lower court for non-compliance with Article 50 of the PDP, Electoral guideline.

Article 50 of the Electoral Guideline reads:-

“All submissions to the Independent National Electoral Commission with respect to party candidates must carry the full signatures of the National Chairman and National Secretary. Any submission to INEC not carrying the said signatures shall be null and void.”

INEC the 2nd Respondent in this appeal acted on the two letters dated the 19th and 20th of February 2007 to effect the substitution of the 1st Respondent/cross-appellant with the appellant in this case. The cruxial question to be resolved by this court is whether the substitution was effected according to the provision of Section 34(1) and (2) of the Electoral Act. In answering this question the lower court faulted the application for substitution made by the 2nd Appellant PDP for non-compliance with its own Electoral guidelines Exh F in the Article 50 as the letter giving reasons for the substitution did not carry the full signatures of the National Chairman and Secretary of the party as required by Article 50 of Exh F. This is the letter dated 20th of February 2007. The 1st Respondent/cross-appellant urged this court to nullify this letter as the two signatures appearing on it are unknown to the electoral guidelines of the 2nd Appellant as far as the submission of names of candidate for election is concerned. It has no probative value and cannot be relied upon for the substitution of the 1st Respondent’s name.

What in effect does the party Electoral guideline stand for? According to the 2nd Appellant – the Electoral guideline is intended to regularize the internal workings of the party and to ensure internal control. The guideline is not intended to override the Constitution. According to Article 48 F of the Electoral Guideline in the internal affairs of the party – the decision of the National Executive Committee of the party and the National Working committee can override the Electoral guideline. The power to make the Electoral guideline derives from Article 12.72(J) of the constitution of the Peoples Democratic Party. There is evidence in the deposition of the 2nd appellant that Article 50 exists to avoid a situation where submission of names of candidates is made without the authority of the party.

Exh C dated the 19th February 2007, applying for substitution of candidates for Orumba North/South Federal Constituency Anambra State complied with Article 50 of the Electoral guidelines. The letter bore the names of the two candidates who are the central figure in the substitution. Vide page 261 of the Record. Letter dated 20th February 2007 written as follow up to the letter dated 19th of February 2007, which gave reasons for the substitution does not in my view require the full signatures of the National chairman and Secretary. It is suffice that the letter emanates from the necessary organ of the party. I am sure that the intendment of the party did not require that every correspondence which does not contain or reflect names of candidate for the election must carry the full signature of the National chairman and National Secretary. The contents of both letters must be read conjunctively and I have no doubt that they both carry the authority of the party to substitute the 1st respondent/cross-appellant.

The 2nd appellant has not repudiated the letter of substitution Exh D dated 20th February 2007 written to INEC to effect substitution of its candidate. The letter Exh D at page 262 of the Record was written within the 60 days time limit stipulated in Section 34(1) of the Electoral Act.

The party gave reasons in the letter and attached document – the PDP electoral panel Report.

The Report declared the nomination of the 1st Respondent as legally controversial in view of legal suits then sub judice challenging his qualification to contest the election.

His party the PDP considers it politically expedient to substitute Dr. Okey Udeh with barrister Handel Okali. I agree with INEC 2nd Respondent that there were cogent and verifiable reasons available to effect the substitution – vide the unreported decision of the Court of Appeal Abuja in the APPEAL CA/A/49/07 Senator Ifeanyi Ararume V INEC and 2 ors delivered on the 20th of March 2007, confirmed in the unreported decision of the Supreme court in APPEAL NO SC/63/07 Engineer Charles Ugwu & 1 Anor V Senator Ifeanyi Ararume & 1 Anor delivered on the 5th of April 2007. Issues One and Two are resolved in favour of the appellants.

Issue three challenged the evaluation of evidence by the learned trial judge. The relevant factors in determining weight of evidence and which the court must consider are as follows:-

(a) Admissibility

(b) Relevance

(c) Credibility

(d) Conclusiveness

(e) Probability of the evidence of both parties is determined.

Onwuka V Ediala 1989 1 NWLR pt 96 pg 182

Mogaji V Odofin 1978 4 SC 91

The 2nd appellant under its Constitution adopted Electoral guidelines as a form of internal control over its affairs in the conduct of the elections. Once steps taken are ratified by the party it would be contrary to the main purpose of the Electoral guideline to interpret its contents against the interest of the party or to stultify the provisions of the statute and the Constitution. The lower court was technically wrong to have decided not to act on the letter dated the 20th of February 2007 by interpreting the Electoral guideline as a weapon against interest.

The PDP Electoral guideline Exh. F is not a Constitutional or Statutory document. It is a document meant for the electoral process convenience of the party. Section 48(f) gives the National Executive Committee of the party power to rise above the provisions so as to avoid a situation where they will work against the interest of the party – the author.

In effect the appeal succeeds, and the substitution of Dr. Okechukwu Udeh is confirmed. The judgment of the lower court is hereby set aside. No order as to cost.

CROSS-APPEAL

In the Cross-Appeal filed by Hon. Dr. Okechukwu Udeh on the 8th of May 2007, the cross-appellant raised two Notices with their respective grounds of appeal. Since the cross-appellants brief was predicated on the Notice of Cross-appeal filed on 8th of May 2007, the Cross/appellants notice of cross/appeal with five grounds was thereby struck out. In the summary of the facts relevant to the cross-appeal, the cross-appellant won the primaries conducted by the Peoples Democratic Party for the Orumba North/South Federal Constituency of Anambra State with 688 votes while the 2nd Respondent/cross-respondent came second with 584 votes. The name of the Cross-Appellant was forwarded to INEC the 1st Cross-Respondent by the 3rd Cross-Respondent Peoples Democratic Party as the Party’s candidate for the Orumba North/South Federal Constituency of Anambra State. The 1st cross-Respondent published the personal particulars of the cross-Appellant in his constituency. After the publication an action was filed pursuant to Section 32(4) of the Electoral Act challenging the qualification of the cross/appellant to contest for the election. The suit filed before the Federal capital Territory High Court – was based essentially on the ground of his Indictment by a seven man judicial panel leading to his impeachment as the Deputy Governor of Anambra State. On the 19th of February 2007, the 3rd Respondent sought to change the name of the cross-Appellant with that of the 2nd Respondent as its candidate for the election in respect of the Federal constituency. The 1st cross-Respondent also forwarded another letter on the 20th of February 2007. The Cross-Appellant filed an action at the Federal High court to determine the legality of his substitution. The 2nd Respondent barrister Handel Okoli raised a counter claim to challenge the qualification of the plaintiff to contest the election for the Orumba North/South Federal Constituency. The claim and counter-claim went to trial. The learned trial judge found for the cross-appellant on his main claim nullified the substitution, and retained the cross-appellant as the candidate of the 3rd Respondent for the Orumba North/South Federal Constituency of Anambra State.

The learned trial judge granted the counter-claim of the 2nd Respondent and restrained the 1st Respondent INEC from allowing the cross-appellant to contest.

Being dissatisfied with the decision of the Federal High Court the Cross-Appellant lodged an appeal to this court. In the cross-appellants brief filed on 11/5/07 two issues were settled for determination from the eight grounds of appeal filed as follows:-

(a) Whether the learned trial judge was not in serious error in granting the counter-claim of the 2nd Respondent to the effect that plaintiff/cross-Appellant was not qualified to contest election.

(b) Whether the learned trial judge had jurisdiction to determine whether Anambra State Governor can lawfully pardon the plaintiff for any offence/indictment arising from Impeachment when:-

(I) When such a complaint is not justiciable before the Federal High court.

(II) There was no claim challenging the exercise of power by the Executive Governor of Anambra

State and

(III) Anambra State who is a necessary party to determine the propriety of the order was not joined.

(c) Whether the learned trial judge evaluated the piece of evidence before him in coming to his decision on the counter-claim.

(d) Whether grant of reliefs 6, 7 and 8 of the appeal does not automatically mean the defeat of the counter-claim

(e) Whether the counter-claim is not an abuse of processes.

In the counter-claim, the counter-claimant claims as follows:-

(a) A declaration that having been indicted by a Judicial panel and such indictment having been reaccepted by Anambra State House of Assembly who impeached him, the plaintiff/2nd defendant is not qualified to contest the April 21 election into the Orumba North/South Federal Constituency of Anambra State

(b) An order restraining the INEC i.e. the 2nd defendant (in the counter-claim) from accepting the plaintiff as candidate for the elections and changing the name of the counter-claimant with that of the plaintiff.

ISSVE NO. ONE

A declaration that having been indicted by a Judicial panel and such indictment having been reaccepted by Anambra State House of Assembly who impeached him, the plaintiff/ 2nd defendant is not qualified to contest the April 21 election into the Orumba North/South Federal Constituency of Anambra State.

The 1st Appellant/Cross-Respondent in the brief deemed filed on 24/5/07 referred to the Amended Respondent’s Notice filed on 12/5/07 seeking an affirmation of the judgment of the lower court granting the counter- claim.

The 1st Appellant/Cross-Respondent adopts the issues formulated by the 1st Respondent/Cross-Appellant. This court shall in the circumstance rely on the issues formulated by the 1st Respondent/Cross-Appellant for the purpose of this Appeal.

ISSUE ONE

Whether the learned trial judge was not in serious error in granting the counter-claim of the 2nd Respondent to the effect that plaintiff/cross-Appellant was not qualified to contest election.

The learned senior counsel for the 1st Respondent/Cross-Appellant in his submission in support of this issue made reference to paragraph 26(a) of the counter-claim at page 370 of the Record of Appeal which reads:-

“A declaration that having been indicted for fraud by the judicial panel and such indictment having been reaccepted by Anambra State House of Assembly who impeached him, the plaintiff/2nd defendant is not qualified to contest the April 21 election into the Orumba North/South Federal Constituency of Anambra State”

He claimed that with the foregoing the counter-claimant has sought for a declaration that the 1st Respondent/Cross-Appellant indictment, having been reaccepted by Anambra State House of assembly is not qualified to contest the election. A person who seeks for a declaration has the burden to prove all relevant facts by presenting cogent materials to establish his entitlement to the declaration. He must succeed on the strength of his case and not on the weakness of the defence. The counter-claimant now 1st Appellant/Cross-Respondent failed to plead and prove that the Cross-Appellant was at anytime under a sentence of death, imprisonment or fine as required to prove Section 66(1)(c) of the 1999 Constitution relied upon to disqualify the Cross-Appellant from contesting the election by the trial court. The finding of the lower court is thereby perverse and should be set aside. No known law has made impeachment a criminal offence neither has the 1999 Constitution made it one. This court is urge to set aside the reasoning of the lower court that impeachment is a criminal offence and resolve Issue One in favour of the appellant. The learned senior counsel supported the foregoing submission with cases-

Saka Owoade V Omitola 19882 NWLR pt 77 pg 413

PDP V Abubakar 2007 3 NWLR pt 1022 P9 515

NEPA V Alli 19928 NWLR pt 259 pg 279

FRN V Ifegwu 2001 13 NWLR pt 729 pg 131

The learned senior counsel for the 1st Appellant/Cross-respondent replied on this Issue that the fact that the 1st Respondent/Cross-Appellant was indicted by a Judicial Panel of Inquiry as an accomplice in forging and uttering a forged letter of resignation from office of the Governor of Anambra State and his subsequent impeachment with Respect thereof was fully established before the trial court. It is the 1st Appellant/Cross-Respondents case that by reason of this fact the 1st Respondent/Cross-Appellant is disqualified by the provisions of Section 66(1) (h) of the 1999 Constitution from standing for election into the Orumba North/South Federal Constituency. The 1st Respondent/Cross-Appellant was impeached by the State House of Assembly based on the report of the Judicial Panel of Inquiry. This court is urged to see the insertion of the word “reaccepted” into the claim made by the 1st Appellant/Cross-Respondent in the counter claim as an ordinary grammatical error, and exercise its discretion thereupon to enter a proper grammatical construction for its own purpose. This court cannot set aside the judgment of the lower court for accidental slip as the penalty for a finding of guilt for misconduct as provided for by the Constitution is impeachment going by Sections 188(1) and (2) of the 1999 Constitution,

ISSUE TWO

Whether the learned trial Judge had Jurisdiction to determine whether Anambra State Governor can lawfully pardon the plaintiff for any offence/indictment arising from impeachment when:-

(a) When such a complaint is not justiciable before the Federal High court.

(b) There was no claim challenging the exercise of power by the Executive Governor of Anambra State and

(c) Anambra State who is a necessary party to determine the propriety of the order was not joined.

The learned senior counsel for the Cross/Appellant contended that the issue seeks to question the jurisdiction of the learned trial judge to make a finding that the Executive Governor of Anambra State has no power under the Constitution to grant State pardon to the Cross-Appellant because impeachment as an offence is not created by a State Law,

The claim on which the counter-claim is predicated is as contained in paragraph 26 of the statement of defence. It never challenged the power of the Executive Governor of Anambra State to grant free or state pardon on a matter relating to impeachment. The finding of the learned trial judge on this point is perverse and should be set aside. Furthermore this is not an issue that can be entertained by the Federal High Court; Necessary parties were not joined in the suit like the Anambra State House of Assembly and the Executive Governor who gave the free pardon. This court is urged to resolve this issue in favor of the Cross-Appellant

The Cross-Respondent submitted by way of reply to this issue that the Cross-Appellant submitted the issue of pardon as exculpating evidence – the trial court was duty bound to make a finding as to whether that was actually the position or whether the defence is sustainable in law. The specific findings of the Judicial Panel of Inquiry under Section 188(5) of the 1999 Constitution was never pardoned or nullified as the offences of fraud and dishonesty are provided for by different laws. The Federal high Court has power to determine whether the issue of impeachment affects the qualification of the Cross-Appellant by virtue of Section 32(4) of the Electoral Act 2006. INEC as party in the suit brings the matter within the contemplation of the Federal High Court by virtue of Section 251(1) (P) and (R) of the 1999 Constitution.

The Cross-Respondent submitted extensively on the allegation of fraud and dishonesty leveled against the cross-appellant in the counter-claim, and that these crimes bring him within the ambit of Section 66(1) (h) of the 1999 Constitution. The learned senior counsel cited the case

Alhaji Nurudeen Olufunmise V Mrs. Ablola Labinjo Falana 19903 NWLR pt 136 pt 1 at pg16

ISSUE THREE

Whether the learned trial judge evaluated the piece of evidence before him in coming to his decision on the counter-claim.

Under this issue the learned senior counsel for the Cross-appellant referred this court to the thrust of the case in the counter-claimant which is that the Anambra State House of Assembly had impeached the Cross-Appellant. The Cross-appellant tendered a document Exh G at page 224-231 of the Record of Appeal to show that the issue of impeachment is non-existent.

The document is a certified true copy of the Hansard of Anambra State House of Assembly. The issue of impeachment was no longer in existence at the time it was raised and decided upon by the trial court. The learned trial judge did not consider and evaluate Exh G. This court is urged to evaluate Exh G and come to the conclusion that the complaint relating to impeachment is nonexistent and the conclusion of the learned trial judge on same is to be re-visited.

The 1st Appellant/Cross-Respondent replied that since the impeachment proceedings were conducted in strict compliance with the provisions of Section 188 of the 1999 Constitution which Section has not been made subject to any of its other provisions any action or step taken outside its provisions will be void.

In short the Resolution of the Anambra State House of Assembly formally expunging the impeachment of Hon. Dr. Okechukwu Udeh as Deputy Governor of Anambra State is without Legal effect and ultra vires as the state House of Assembly lack the power to do so under any taw or the Constitution of the Federal Republic of Nigeria 1999. The Cross-Respondent cited the cases of-

Ajuta V Ngene 2002 1 NWLR pt 748 pg 300

Ojong V Duke (2003) 14 NWLR pt 841 pg 618

ISSUE FOUR

Whether the grant of reliefs 6, 7 and 8 of the does not automatically mean the defeat of the counter-claim

The learned senior counsel for the Cross-Appellant submitted that the two reliefs in the counter-claim have in effect nullified the reliefs 6, 7, and 8 in the main claim. The trial court had ordered the 3rd Cross/Respondent to recognize the plaintiff/Cross-Respondent as its candidate and had perpetually restrained the 1st Cross/Respondent from changing or substituting the Cross-Appellant as candidate for PDP. The same court in the counter-claim of the same suit restrained INEC from accepting the Cross/Appellant as candidate for the election. The judgment is not only conflicting but equally contradictory the lower court cannot sit as an appellate court over its own judgment. This court is to set aside the decision of the trial judge and dismiss the counter-claim which is contradictory to the relief already granted in favour of the Cross-Appellant. The Cross-appellant relied on cases-

Akibu V Race Auto Supply Co. Ltd. (2004) 14 NWLR pt 686 pg 190 at pg 204

Race Auto Supply Co. Ltd. V Akibu (2006) 13 NWLR pt 997 pg 333 at pg 352

The 1st Appellant/cross-respondent replied that the 1st Respondent/cross-appellant in construing the effect of the judgment of the lower court, failed to note the proviso contained in the judgment of the lower court, which subjected the enforcement of the judgment obtained by the 1st Respondent/Cross-appellant to any order of court disqualifying him. What was contemplated by the proviso was achieved by the success of the counter-claim. The Cross-Respondent drew distinction between the suit before the Federal Capital Territory High Court NO 11 and the Federal High Court relating to the disqualification of the Cross-Appellant to contest the election. The cross-appellant can only set up the suit by Perpetus Ezechukwu Nwankwo if it was Res judicata to the issues which were to be addressed in the counter- claim. No defence estoppel or Res judicata is available to the 1st respondent/cross-appellant with regards to his indictment by the seven-man Judicial Panel of Inquiry. The Cross-Respondent cited the cases-

Udoh V Obot 1989 1 NWLR pt 95 pg 59 at pg 77

Ajuwon V Adeoti 1990 2 NWLR pt 132 page 271 at pg 286

ISSUE FIVE

Whether the counter-claim is not an abuse of processes.

It is the conclusion of the Cross-Appellant on this issue that the counterclaim is an abuse of court process. He submitted that there is a pending application for leave to appeal as a party interested against judgment in suit NO FCT/HC/CV/411/2007. The proposed Notice and grounds of appeal are at pages 568 or 571 of the Record. The essence of the appeal is to challenge the qualification of the cross-appellant and set aside the decision of the trial court. That application is still pending. The counter claim challenged the qualification of the Appellant/cross-Respondent to contest election into Orumba North/South Federal constituency as a result of his alleged impeachment by the Anambra State House of Assembly. If the leave to appeal is granted and the appeal succeeds there will be no need to file the counter-claim. But to have the application hanging and still proceed with the counter-claim constitutes abuse of court process. He defined what amounts to an abuse of judicial process with references to cases;-

Attahiru V Bagudu 1998 3 NWLR pt 543 pg 656 at pg 666

Idoko V Ogbeikwu 2003 7 NWLR pt 819 pg 275 at pg 288.289

Arubu V Aiyeleru 1993 3 NWLR pt 280 pg 126

The Cross-Respondent adopted his submission in support of Issue four and concluded that no abuse of court process is occasioned as the two suits relate to different matters. A finding on merit in an appeal against the appellant at Abuja High court will rest upon entirely different grounds which arise from offences created by the Constitution.

On the other hand a finding on merit in the judgment of the lower court in this case will rest upon offences created by the Criminal Code. This court is urged to dismiss the Cross-Appeal and affirm the judgment of the trial court granting the counter-claim.

I have carefully considered the submission of counsel for the parties in support of the issues raised for determination in this appeal. For the purpose of clarity and understanding the scenario culminating into this appeal it is imperative to specify the claim before the lower court in the counter-claim as follows:-

(a) A declaration that having been indicted for fraud by the Judicial panel and such indictment having been reaccepted by Anambra State House of Assembly who impeached him, the plaintlff/2nd defendant is not qualified to contest the April 21 election Into the Orumba North/South Federal Constituency of Anambra State

(b) An order restraining the INEC i.e. the 2nd defendant (in the counter-claim) from accepting the plaintiff as candidate for the elections and changing the name of the counter-claimant with that of the plaintiff.

The germain aspect of the case of the counter claimant now cross/respondent is that, the Anambra State House of Assembly had impeached the cross/appellant following the report of the Judicial Panel of Inquiry established pursuant to Section 188(5) of the constitution of the Federal Republic of Nigeria 1999, and accepted by the State house of Assembly whereupon a vote of impeachment pursuant to Section 188(9) of the 1999 constitution was passed. The foregoing has consequently disqualified him from contesting any election on the 21st of April 2001 into the Orumba North/South Federal constituency in Anambra State. The case of the 1st appellant/Cross-respondent was premised on the fact that the 1st respondent is disqualified by the provisions of Section 66(1) (h) of the 1999 Constitution from standing election based on his indictment by a Judicial Panel of Inquiry for fraud.

At the trial before the lower court the cross-appellant tendered documentary evidence Exh G – a certified true Copy of the Hansard of Anambra State House of Assembly, to show that the issue of his impeachment was no longer a live issue at the time the party sponsored his nomination as a candidate to contest for the Orumba North/South federal constituency in Anambra State. The House of Assembly in Exhibit G at pages 228-229 of the Record resolved that:-

“This Honourable House hereby annuls the impeachment of the Hon. Dr. Okechukwu Udeh as Deputy Governor of Anambra State and hereby discharge him in respect thereof and this Honourable House thereby formally expunges from her Record book the entire proceedings connected with the impeachment of the Hon. Dr. Okechukwu Udeh as Deputy Governor of Anambra State.”

This issue was raised in addition to other pieces of evidence before the lower court as embodied in the pleadings, affidavit and counter-affidavit, submission of counsel written address, exhibits and other processes.

The court identified two issues for her determination in the suit as follows:-

(a) Whether the plaintiff has been properly substituted in accordance with Section 34 of the Electoral Act

(b) If positive whether he has been properly fielded fulfilling in him all requirements of the Constitution on eligibility to run election vis-a-vis the provision of 66(c) of Constitution 1999.

Vide pages 716-717 of the Record of Appeal on issue (b) the lower court made finding as follows:-

“I have taken judicial notice of section 74(m) of the Evidence Act; court should take judicial notice of processes before it. I cannot close my eyes to processes in the court file and counter-claim of 2nd defendant.

I see the report of panel on investigation to misconduct against plaintiff, also the certified true copy of pardon granted by former Governor of Anambra State Mrs. Eliabat, that there was an impeachment of the plaintiff by an appropriate authority. The Anambra State Government granted pardon in Exh H attached to plaintiff deposition and nullified the effect of the said Impeachment.

I have scrutinized this pardon and vis-a-vis the provision of Section 66(c) of the 1999 Constitution-

66(1) – No person shall be qualified for election to the senate or the House of Representative if:-

(c) He is under a sentence of death imposed on him by any competent court of law or Tribunal in Nigeria Dr a sentence of imprisonment or fine for any offence involving dishonesty or fraud by whatever name called on any other offence imposed on him by such a court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court.”

The Impeachment was misconduct under the Constitution and it was an allegation of criminality thereof. It is only a court of superior record that can set aside the impeachment. Section 212(1) of the Constitution vests powers on Governor to grant pardon to either free or subject to law condition to any person concerned with or connected to any offence created by the law of a state. The impeachment for misconduct is not an offence created under the penal laws of state and therefore the governor cannot validly grant pardon unless it is set aside by a competent authority under the Constitution. For this reasons therefore the plaintiff is also disqualified from participating in an election under Section 66(c) of the 1999 Constitution.

The court consequently made an order to restrain the 1st Cross-Respondent INEC from accepting him as a candidate for the election.

Besides the appeal by the Cross-Appellant, the 1st Appellant/Cross-Respondent filed notice to contend that the judgment of the court should affirmed on grounds other than those relied upon by the court below Order 3 Rules 14(3) of the court of Appeal Rules.

Grounds are as follows:-

(1) That the 1st Respondent/Cross-Appellant was disqualified from contesting the April 21st 2007 elections by virtue of Section 66(1)(h) of the 1999 constitution of the Federal Republic of Nigeria.

(2) That the 1st Respondent/Cross-Appellant was also disqualified from contesting the April 21st 2007 elections by virtue of his indictment by the Administrative Panel of Inquiry set up by the Chief Judge of Anambra State pursuant to the Resolution of Anambra State House of Assembly. The said panel indicted the Respondent/Cross-appellant for violating the provisions of the 1999 Constitution of the Federal Republic of Nigeria.

The provisions of Section 66(1) (h) of the 1999 Constitution of the Federal Republic of Nigeria reads as follows:-

66(1) – No person shall be qualified for election to the Senate or the House of Representative if:-

(h) He has been indicted for embezzlement or fraud by a panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act or 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 respectively.

The Court of appeal will invoke its powers to contend that the judgment of the lower court should be affirmed on grounds other than those relied upon by the lower court only where it has satisfied itself that there is evidence on printed record to that effect, and that the trial court has Failed to seize the singular opportunity of its advantageous position of seeing and observing witnesses give oral evidence and it determine their credibility from their demeanour and behaviour before it. In the instant case where the learned trial judge’s judgment is based on printed Record, the written address, deposition of witnesses, affidavit evidence, documentary evidence the court will not interfere with the finding of fact by a trial court save in exceptional circumstance such as where

(a) The finding is perverse

(b) Not supported by evidence

(c) Had occasioned a miscarriage of justice.

It is not the business of the appellate court to substitute its view of the evidence for that of the trial court. Miscarriage of justice will result from adopting such course of action which an appellate court must avoid by all means.

Woluchem V. Gudi 1981 5 SC 261

Akinloye V. Eyiyola 1968 NMLR 92

Mogaji V. Odofin 1978 4 SC 91

Ebba V. Ogodo 1984 1 SCNLR 372

Maja V. Stocco 1968 1 All NLR 141

Section 16 of the court of Appeal Act however gives the Court of Appeal ample and wide powers to deal with any case before it on appeal, and the powers include the jurisdiction of a Court of first instance. The Section confers wide powers on the court to enable it make orders which the High Court would have made in a matter.

The Court of Appeal can in order to settle completely and finally the matters in controversy between the parties to an appeal and in order to avoid multiplicity of legal proceedings concerning any of those matters grant all such remedies as any of the parties may appear to be entitled to.

A party will appear to be entitled to such a remedy only after a claim to it has been plainly made out and dealt with according to the relevant principles governing such a claim.

Okoya V Santili 1990 2 NWLR pt 131 pg 172

Darko V Agyakwa 1943 9 WACA 15

Ejowhomu v Edok-Eter Mandilas Ltd 1986 5 NWLR pt 39 pg 1

Jadesimi V Okotie Eboh 1986 1 NWLR pt 16 pg 264

Oshoboja V Amuda 1992 6 NWLR pt 250 pg 690

A-G Anambra State V Oloike 2002 12 NWLR pt 782 pg 575.

Adeleke V Oyo state house of Assembly 2006 16 NWLR pt 1006 pg 608

Balonwu V Obi 2007 5 NWLR pt 1028 pg 488

Cappa D Aiberto Ltd. V Akintilo 2003 9 NWLR pt 824 pg 49

The court does not exercise this power to re-hear on printed record on every occasion. Certain fundamental conditionality must be met and such conditions in the instant case is the availability of necessary materials to consider and adjudicate in the matter.

Is Section 66(1) (h) of the 1999 Constitution applicable in the instance of this case? Was the Cross-Appellant at any-time indicted for embezzlement or fraud by a panel of Inquiry?

These are constitutional issues the court being the primary custodian of the Constitution must not treat their interpretation lightly. It is therefore the duty of the court to adhere strictly to Rules governing the interpretation of the Constitution al provisions, so as not to defeat the intendment of the lawmakers and the role of the Constitution in the governance of the Country. The primary function of the court is to search for the intention of the law makers in the Interpretation of the Constitution.

Awuse V. Odili 2003 18 NWLR pt 851 pg 116

A.G Bendel State V. A-G Federation 1981 pg 10 SC1

Ishola V. Ajiboye 1999 6 NWLR pt 352 pg 306

Yusuf V. Obasanjo 2003 16 NWLR pt 847 pg 532

Abaribe V. Speaker Abia State House of Assembly 2002 14 NWLR pt 788 pg 466

There is no doubt about it-

(a) That there was a Judicial Panel of Inquiry established pursuant to section 188(5) of the 1999 Constitution

(b) A report was submitted and accepted by the Anambra State Government that is the State House of Assembly

(c) The Report of the Panel was legally adopted by the State House of Assembly

(d) It was followed by the Impeachment of the Cross-Appellant as Deputy governor of Anambra State Vide Sections 188(7-9) of the 1999 Constitution.

The next vital questions are the terms of reference and the findings of the Judicial Panel of Enquiry. The procedure invoked is for the removal of a Deputy Governor.

The terms of reference for the Judicial Panel is to establish whether the holder of the office of Deputy Governor is guilty of allegation of gross-misconduct. Section 188(1) and (2) of the 1999 Constitution. What amounts to gross misconduct under Section 188(11) for the purpose of Removal of the Deputy Governor according to the Constitution means:-

“A grave violation or breach of the provisions of this Constitution or misconduct of such a nature as amounts in the opinion in the house of Assembly to gross misconduct.”

In the case of Inakoju V Adeleke 2007 4 NWLR pt 1025 pg 423 at pg 588 paragraph D-E Tabi JSC defined gross misconduct as a follow up to the Constitutional meaning as:-

Grave violation or breach of the Constitution means:-

(a) Interference with the constitutional functions of the legislature and Judiciary by an exhibition of overt Constitutional executive power.

(b) Abuse of fiscal provisions of the Constitution

(c) Abuse of the Code of Conduct for Public Officers

(d) Disregard and breach of Chapter IV of the Constitution on fundamental rights

(e) Interference with local government funds and stealing from the funds or pilfering of the funds including monthly subventions for personal gains or for the comfort and advantage of the State Government

(f) Instigation of Military rule and Military government

(g) Any conduct which is directly or indirectly inimical to the major sectors of the Constitution

(2) Acts which may amount to misconduct.

In opinion of the house of Assembly are:-

(a) Refusal to perform Constitutional functions

(b) Corruption

(e) Abuse of Office or Power

(d) Sexual harassment

The judiciary panel of Inquiry under Section 188(5) of the Constitution is one set up for a particular or specific purpose under the constitution while the indictment under the circumstance is not criminal in nature so as to be followed by a criminal sanction under our criminal laws. Section 66(1) (h) is not meant to be applicable to this case while the Cross-Appellant can therefore not be disqualified to contest election under the Section. The conclusion in the Panels Report according to Exhibit MX1 reads:-

“After careful and sober consideration of the totality of facts available to this panel in the course of this investigation, the panel has come to the conclusion that allegation of gross misconduct against the Deputy Governor His Excellency Dr. Okey Udeh has been proved to the satisfaction of the Panel.”

Neither the counselor court has the power to read any criminal acts into Section 188. In the interpretation of statute the main object is to discover the intention of the law makers which is deducible from the language used. Once the language is clear and unambiguous the court will give an ordinary or literal interpretation to it. The literal construction must be followed unless that would lead to absurdity and inconsistency with the provision of the statute as a whole. The court of law in the exercise of its interpretative jurisdiction must stop where the statute stops.

Awolowo V. Shagari 1979 6.9 SC 51

Buhari V. Obasanjo 2003 15 NWLR pt 843 pg 236

Buhari V. Yusuf 2003 14 NWLR pt 841 pg 446

A.G Ondo State v A.G Ekiti State 2007 17 NWLR pt 743 pg 706

In the Cross-Appeal the claim is for declaration based on indictment for fraud by a judicial panel of Inquiry.

Sections 188 (1) to 188(11) of the 1999 Constitution must be read together to search for the intention of the lawmakers.

The counter claim is calculated to establish that the cross-Appellant was indicted for fraud by a judicial panel which disqualifies him to stand for election because of the re-acceptance of the recommendation and his impeachment.

The clog there is that a party who seeks a declaratory relief in the Constitution must show that he has a constitutional interest to protect and that the interest is violated or breached to his detriment and the interest must be substantial, tangible, not vague or speculative. The sum total of the relief in the suit before the court is to establish that the cross-appellant is disqualified to contest in the elections of April 21st.

A suit to this effect under section 32(4) of the Electoral Act 2006 was filed before Federal capital Territory High Court Abuja sitting at Zuba by one Perpetus Ezechukwu Nwankwo. On the 9th of February 2007 the court pronounced judgment that the Cross-Appellant is qualified to contest election. That judgment is still valid and subsisting until set aside on appeal. The lower court Federal High Court delivered its judgment on the 19th of April 2007 disqualifying the Cross-appellant on the issue of the Constitutionality of the revocation of his impeachment by the state governor. There are two flaws in the judgment:-

(1) The court has no jurisdiction, as it was duty bound to confine its decisions to the issues raised by the parties. A court has no power to formulate cases for the parties otherwise it might find itself descending into the arena and thereby covered by the dust of the conflict. It was not an issue in the suit.

Oshatoba V Olujitan 2000 5 NWLR pt 655 P9 159

Ekpeyong V Hyong 1975 2 SC 71

Dyktrade V Omma (Nig.) Ltd. 2000 12 NWLR pt 680 P9 1

(2) The Federal High Court cannot adjudicate on matter or matters concerning a State Government. The Federal High Court has limited jurisdiction under Section 251 of the 1999 Constitution, while the power of the State High Court under the Constitution by virtue of Section 272 (1) of the 1999 Constitution covers unlimited jurisdiction to hear and determine any proceedings in which the existence or extent of a legal right, power, duty, liability privilege, interest, obligation or claim is in issue.

The issue of propriety of the executive Governor of a State granting pardon is a state matter which cannot be entertained by the Federal High Court Gafar V Govt. of Kwara State 2007 4 NWLR pt 1029 pg 375.

The order made by the FCT high court on the 9th of February was made by a court with concurrent jurisdiction to the Federal High Court. The Federal high court cannot make an order that will have an effect of sitting on appeal on the earlier valid and subsisting order of the FCT High court.

I will not hold that the trial of the lower court is an abuse of court process which should have been my order under ordinary circumstance. The lower court went on a voyage of discovery in arriving at its decision.

The Judicial Panel of Inquiry set up by the Anambra State Chief Judge under Section 188(5) of the Constitution is in the fulfillment of the Constitutional procedure preceding impeachment. The contents of the Report have no bearing with Section 66(1) (c) or 66(1) (h) of the 1999 Constitution.

Impeachment is not categorized as an offence under our criminal jurisprudence. It will be unconstitutional to treat impeachment perse as a criminal offence or any procedure precedent to same. I agree with the pronouncement of Niki Tobi JSC in his leading judgment in the case of Inakoju V. Adeleke 2007 4 NWLR pt 1025 pg423 at pg 588 that impeachment is a political weapon which the House of Assembly must use in appropriate cases to remove a Deputy Governor for gross-misconduct. The lower court erred to have invoked Section 66(1) (c) of the 1999 Constitution to disqualify the Cross/appellant from participating in the April Election.

In the final analysis, I find merit in the cross-appeal. The judgment of the lower court and the order disqualifying the Cross-appellant from contesting in the election is set aside.

No order as to costs.

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Other Citations: (2007)LCN/2402(CA)