Dr. Emmanuel Andy Uba V. Dame Virgy Etiaba & Ors (2008)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
This is a consolidated appeal against the ruling of the Governorship/National Assembly and Legislative Houses Election Tribunal sitting in Awka, Anambra State delivered on the 19th of July, 2007.
The facts of the case briefly are that the Governorship and Legislative House Election were held throughout the country on the 14th of April, 2007. The candidate sponsored by the People Democratic Party Dr. Emmanuel Andy Uba was returned by INEC as the person who won the election to the office of governor of Anambra State. Other contestants being aggrieved by this declaration of result by INEC headed to the Election Petition Tribunal to air their grievance. The petitions filed and the parties were as follows:-
EPT/AN/GE/1/2007 ANPP & 1 Or. v. Prince Nicholas Ukachukwu & 3 Ors.
EPT/AN/GE/2/2007 Action Congress & 2 Ors. v. INEC & 3 ors.
EPT/AN/GE/3/2007 Victor Osita Dinma Ezenwa v. Dr. Emmanuel Uba & 3 Ors.
EPT/AN/GE/5/2007 Emeka Okafor & 1 Or. v. INEC & 3 ors.
EPT/AN/GE/6/2007 Dr. Alex Obiegbolu & 1 Ors. v. Dr. Emmanuel Andy Uba & 25 Ors.
EPT/AN/GE/7/2007 Mrs. Njideka Obiegbolu & 1 Or. v. Dr. Andy Emmanuel Uba & Ors.
EPT/AN/GE/4/2007 Dame Virgy Etiaba v. INEC & 647 Ors.
While the petitions and cross/petitions were pending before Election Petition Tribunal, Awka, on the 14th June, 2007, the Supreme Court delivered a judgment in Peter Obi v. INEC (2007) 11NWLR (Pt. 1046) pg. 565 which changed the fate of these petitions and cross petitions. In the 19th April, 2003 election to the office of Governor of the States of the Federation both Chris Ngige on the platform of Peoples Democratic Party and Mr. Peter Obi on the platform of All Progressive Grand Alliance (APGA) contested in Anambra State. INEC declared Dr. Chris Ngige winner and this sent Mr. Peter Obi to the Election Petition Tribunal to contest the result. The Election Petition Tribunal declared Mr. Obi winner and this was affirmed by the Court of Appeal Enugu on the 16th of March, 2006. He assumed office on the 17th of March, 2006. He did not contest the 2007 elections on the basis that his four-year tenure had not expired. Meanwhile INEC conducted gubernatorial election in Anambra State on the 14th of April, 2006. Mr. Peter Obi commenced a suit against INEC at the High Court by an originating summons whereupon he sought the determination of the following questions:-
1. Whether having regard to section 180(2)(a) of the 1999 Constitution the tenure of office of a governor first elected as governor begins to run when he took the oath of allegiance and oath of office.
2. Whether the Federal Government of Nigeria through the defendant being its agent can conduct any governorship election in Anambra State in 2007 when the incumbent governor took oath of allegiance and oath of office on 17th of March, 2006 and has not served his four year tenure as provided under section 180(2)(a) of the 1999 Constitution. Mr. Obi then sought reliefs as follows:-
(a) A declaration that the four year tenure of office of the plaintiff as the Governor of Anambra State began to run from the date he took the oath of allegiance and oath of office being the 17th day of March, 2006,
(b) A declaration that the Federal Government through the defendant being its agent cannot lawfully conduct any governorship election in Anambra State in 2007 in so far as the plaintiff as the incumbent Governor has not served his four year tenure of office commencing from when he took oath of allegiance and oath of office on 17th March, 2006.
(c) Injunction restraining the defendants by themselves their agents, servant, assigns and privies or howsoever from in anyway conducting any regular election for the governorship of Anambra State until the expiration of a period of four years from the 17th day of March, 2006 when the plaintiff’s tenure of office will expire.
The Federal High Court and Court of Appeal declined jurisdiction on the basis that the suit was related to electoral matter and therefore fell within the jurisdiction of the Election Petition Tribunal. Mr. Peter Obi appealed to the Supreme Court, which held that it had jurisdiction to interpret section 180(2) (a) of the 1999 Constitution by invoking Section 251(1)(q) and (r) which gave the court jurisdiction to interpret any provision of the Constitution or the law. In a unanimous decision of the court, with Aderemi, JSC delivering the leading judgment said:-
“In the final analysis for all I have been saying which explains the reasons for my decision on the 14th of June, 2007 it is my judgment that this appeal is meritorious. It must be allowed and I hereby allow the appeal. I set aside the judgment of the two courts below.
In their place I make the following declarations and orders which the justice of this case demands; they are:
(1) That the Office of the Governor of Anambra State was not vacant as at 29th May, 2007.
(2) That the tenure of office of the appellant (Peter Obi) as the governor of Anambra State which is for four years certain will not expire until 17th March, 2010 for the reason of the fact that he being a person first elected as Governor under the 1999 Constitution took oath of office on the 17th of March, 2006.
(3) It is hereby ordered that the 5th respondent (Dr. Andy Uba) should vacate the office of the governor of Anambra State with immediate effect to enable the plaintiff/appellant (Mr. Peter Obi) to exhaust his term of office.”
The appellant Dr. Andy Uba who had on the 29th of May, 2007 took oath of allegiance and oath of office was inaugurated into the office as governor of Anambra State. However, after the judgment of the Supreme Court on the 14th of June, 2007, the appellant vacated office for Peter Obi. In the Election Petition Tribunal, after the judgment of the Supreme Court the tribunal requested the counsel appearing for the parties to address it on the effect of the judgment. The tribunal gave its judgment commencing from page 726 – 728 of the record of proceedings as follows:
“We have considered addresses of learned counsel for all the parties both written and oral, we entirely agree with. Emeka Ngige learned Senior Advocate for the petitioners in petition Nos. 2 and 5 that this tribunal is enjoined to look at the judgment of the Supreme Court in their entirety. In the said judgment the Supreme Court said:-
The four year term of office of Peter Obi would start running from 17th of March, 2006 only to terminate on 17th March, 2010. Section 178(2) of the Constitution of Federal Republic of Nigeria 1999 provides as follows:-
(2) An election to the office of governor of a State shall be held on a date not earlier than sixty days and not later than thirty days before the expiration of the term of office of the last holder of that office.
We entirely agree with Chief Ahamba learned Senior Advocate that 14th April, 2007 to 17th March, 2010 is more than 30 days. Therefore the election held on 14/4/07 by INEC was unconstitutional and therefore void.
We also agree with Chief Ahamba that under the doctrine of lis pendens the election having been conducted when the case of Peter Obi v. INEC was pending was a nullity see page 39 of the Supreme Court judgment. Since the gubernatorial election in Anambra State on the 14/4/07 was a nullity in the light of the Supreme Court judgment referred to above we hereby declared this said gubernatorial election – the subsequent inauguration and any steps taken in furtherance of the said election a nullity. We further hold that the petition of the petitioners including the cross-petition, all processes in these petitions and cross-petitions a nullity and hereby struck out. Security for costs paid by petitioners and cross/petitioners shall be refunded to them. No order as to costs.”
Being aggrieved by the foregoing judgment of the lower tribunal the appellant Dr. Emmanuel Andy Uba appealed to this court. In the petition EPT/AN/GE/4/2007 now CA/E/EPT/7/2007 the appellant filed an amended notice of appeal with three grounds of appeal. In the appellant’s brief deemed filed on 15/1/08 the appellant identified three issues for determination of the grounds of appeal filed as follows:-
(i) Whether the tribunal acted outside and beyond its jurisdiction under section 145 and 147 of the
Electoral Act, 2006 having regard to the reliefs sought in the election Petition No. EPT/AN/GE/2/07 before it.
(a) To declare the inauguration of the appellant and any steps taken in furtherance of his election a nullity.
(b) To rely on section 178(2) of the 1999 Constitution not raised in the election Petition.
(c) Rather than simply striking out the election petition on the basis of the Supreme Court judgment without annotating that judgment.
(ii) Whether lis pendens is a doctrine applicable to an election petition so as to make it relevant to the elections petition before the tribunal.
(iii) Whether it was a valid exercise of judicial authority for the tribunal to give single judgment for nine consolidated election petitions.
Chief Osigwe learned counsel to the 1st respondent adopted and relied on the 1st respondents brief filed on 20/11/07 and settled three issues for determination as follows:
(i) Whether the tribunal was right to raise and determine the issue of the competence of the petition and cross petition filed in respect of the Governorship election purportedly held in Anambra State on 14/4/07 in view of the Supreme Court judgment delivered in appeal No.SC. 123/2007 Peter Obi v. Independent National Electoral Commission (INEC) & 7 0rs. on 14th June 2007.
(ii) Whether the tribunal can make consequential orders made in the matter.
(iii) Whether the issue raised by the appellant are not mere academic view of the decision of the court.
Chief Amaechi Nwaiwu (SAN) learned senior counsel for the 2nd – 653rd respondents adopted their first brief filed on the 17th of January, 2008. Three issues were formulated for determination as follows:-
(1) Whether tribunal acted outside its jurisdiction under sections 145 and 147 of the Electoral Act having regard to the reliefs sought in the petition No. EPT/AN/GE/4/2007 before it and when without hearing the parties on the substantive petition before it, proceeded to deliver judgment declaring the gubernatorial election, the subsequent inauguration any steps taking (sic) in furtherance of the said election a nullity.
(2) Whether the tribunal was right in holding that the governorship election in Anambra State was a nullity under the doctrine of lis pendens since the case as Peter Obi v. INEC was pending.
(3) Whether the judgment of the tribunal is invalid, when after consolidating nine petitions before it gave one single judgment in respect of all, instead of nine separate judgments?
Issue No. 1
Whether the tribunal acted outside and beyond its jurisdiction under sections 145 and 147 of the Electoral Act, 2006 having regard to the reliefs sought in the election petition No EPT/AN/4/2007.
The learned senior counsel submitted that by virtue of section 145 of the Electoral Act, 2006, an election may be questioned on any of the following grounds:-
(a) That a person whose election is questioned was at the time of the election, not qualified to contest the election.
(b) That the election was in valid by reason of corrupt practices or non-compliance with the provisions of this Act.
(c) That the respondent was not duly elected by majority of lawful votes cast at the election,
(d) That the petitioner or its candidate nominated but was unlawfully excluded from the election.
The foregoing are only ground and parameters upon which an election petition tribunal can adjudicate over an election petition to reach a decision.
The tribunal can also consider the provisions of sections 177 and 182(1) of the constitution to decide on the person who shall be qualified or disqualified for the office of the Governor of a State, Thereupon section 147(1) and (2) provides as follows:-
“147(1) Subject to subsection (2) of this section if the tribunal or court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground the tribunal or court shall nullify the election.
(2) If the tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the election tribunal or court, as the case may be shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirement of the constitution and this Act.”
The tribunal can only reach a decision to nullify an election when acting under section 147(1) and to declare as elected a candidate who has scored the highest number of votes acting under section 147(2) of the Electoral Act, 2006. That is the jurisdiction conferred generally on the election tribunals. The learned senior counsel gave the definition of jurisdiction and cited the cases – National Bank (Nig.) Ltd. v. Shoyoye (1977) 2 SC 181 at 191; A-G Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) pg. 552 at pg. 602; Ejike v. Ifeadi (1990) 4NWLR (pt.142) pg. 89 at 107; Halsbury’s Laws of England, Vol. 10, paragraph 715 pg. 323, 4th Edition.
He further submitted that the tribunal was in grave error and went outside and beyond its own jurisdiction when it made pronouncement or decision declaring the election of the appellant as well as his inauguration into office as governor of Anambra State and any steps taken in furtherance of his election a nullity.
The tribunal was also in error to declare the appellants election invalid on section 178(2) of the 1999 Constitution, the Section in question or facts in support not having been raised and relied upon in the election petition in question.
The gravamen of the submission of the counsel before the lower court was that the cause of action no longer existed since there was nothing the tribunal could adjudicate upon and each of the petitions should have been struck out. The right order to make by the tribunal was to strike out as that was the only option open to the tribunal. The judgment of the Supreme Court did not make an order of nullification. The tribunal could not amend the judgment of the Supreme Court by adding what it did not contain. By so doing the tribunal acted outside and beyond its jurisdiction which makes it invalid. The appellant cited cases in support – Sule v. Nigerian Cotton Board (1985) 2 NWLR (pt.5) pg. 17 SC; Ojokolobo v. Alamu (1987) 3 NWLR (pt.61) pg. 377 SC; Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) pg. 517.
The learned counsel for the 1st respondent submitted that counsel to the appellant and all the petitioners were heard on the legal implications of the judgment of the Supreme Court before the lower tribunal delivered its judgment. All the sections of the Constitution considered were necessary for the determination of the issues raised by the tribunal. The learned counsel submitted that the judgment of the Supreme Court in Peter Obi v. INEC & Ors. Nullified the election of the appellant – it will amount to a mere academic exercise to re-consider it. No other court or tribunal in Nigeria should revisit or pretend to adjudicate on the same subject-matter as the said judgment settles the matter forever. Since the Supreme Court had made its pronouncement the tribunal lacks the competence to entertain the petitions and cross petitions arising from the said election. The judgment of the Supreme Court has removed the substratum from the petitions and cross-petitions and has therefore deprived the tribunal of jurisdiction. The tribunal following the judgment of the Supreme Court made consequential orders it considered appropriate in the circumstance of the case in the interest of justice.
The tribunal has power to nullify election and make orders as the justice of the case demands under section 147 of the electoral Act 2006.
The appellant cannot be heard to complain that he is aggrieved by the said decision of the lower tribunal.
Chief Amaechi Nwaiwu, SAN submitted on behalf of the 2nd – 653rd respondents and restated the declaration and order of the Supreme court in the judgment of Peter Obi v. INEC & 7 Ors. (2007) 11 NWLR (Pt. 1046) pg. 565 at pg. 645 H to pg. 646 A-B.
When the Governorship petitions came up before the lower tribunal on 9/7/07, the tribunal adjourned the petitions to 19/7/2007 for the learned counsel to address the court on whether the gubernatorial petitions should be heard in the light of the judgment in Peter Obi v. INEC & 7 Ors. Counsel to the parties addressed the court. The tribunal gave judgment which nullified the election and subsequent inauguration and any steps taken in furtherance of the said election.
The learned senior counsel submitted that the judgment of the lower tribunal was itself a nullity as it was decided outside its jurisdiction and powers under sections 145 and 147 of the Electoral Act, 2006. The learned senior counsel thereafter adopted and associated himself with the legal submission of the appellant. The lower tribunal had no power to declare an election a nullity without hearing the parties. The failure of the tribunal to hear the parties on the substantive petitions before delivering its judgment is against the requirement for a valid adjudication. It amounts to breach of fair hearing and the judgment a nullity. The learned senior counsel made reference to the cases – Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt.58) pg. 539; Onyemeh v. Egbuchulam (1996) 5 NWLR (Pt.448) pg. 255; Enigwe v. Akaigwe (1992) 2 NWLR (Pt.225) pg. 515.
I have painstakingly considered the brilliant and highly academic submission of learned senior counsel and counsel appearing for the parties in this appeal. The gravamen of the appeal is the interpretation of the order of the Supreme Court judgment in the case of Obi v. INEC (2007) 11NWLR (pt.1046) pg. 565 SC delivered on the 14/6/07 and its effect on the petitions filed before the Governorship/National Assembly/and Legislative Houses Election Tribunal Awka Anambra State at the time the judgment was delivered, on the one hand. Also the validity of the order made in respect of the petitions and cross petitions based on the foregoing judgment. I shall for the avoidance of doubt and sake of emphasis restate the order of court at pg. 645-646 paragraphs G-H and A – B which reads:-
“I make the following declarations and orders which the justice of this case demands they are:-
(1) That the office of Governor of Anambra State was not vacant as at 29th May 2007.
(2) That tenure of office of the appellant Peter Obi as governor of Anambra State which is for four years certain will not expire until 17th March, 2010 for the reason of the fact that he being a person first elected as Governor under the 1999 Constitution took oath of allegiance and oath of office on the 17th of March, 2006.
(3) It is hereby ordered that the 5th respondent (Dr. Andy Uba) should vacate the office of the Governor of Anambra State with immediate effect to enable the plaintiff/appellant (Mr. Peter Obi) exhaust his term of office.”
In applying the foregoing to the petitions and cross petitions pending before the Governorship Election Tribunal – the lower tribunal gave the counsel representing the parties ample opportunity to address the court on what are the appropriate steps to take in the petitions in view of the judgment. In the final judgment of the tribunal after taking into consideration the opinion of counsel the lower tribunal gave order as follows:- Vide page 730 of the record of proceedings:-
“That since the gubernatorial election in Anambra state on the 14/4/07 was a nullity in the light of the Supreme court judgment in Peter Obi v. INEC & Ors. the tribunal hereby declares that the said gubernatorial election” the subsequent inauguration and any steps taken in furtherance of the said election are a nullity.
It is further ordered that the petitions of the petitioner including the cross petitions all process in the petitions and cross petitions are a nullity are hereby struck out. It is finally ordered that the security cost paid by the petitioners and cross petitioners shall be returned to them.”
The 1st issue raised in the appeal is whether the tribunal acted outside and beyond its jurisdiction under section 145 and 147 of the Electoral Act, 2006 having regard to the reliefs sought in the election petition No. EPT/AN/4/2007 before it.
All courts in Nigeria are bound by the decision of the Supreme Court of Nigeria which is the highest court of the land. This follows the doctrine of stare decisis which is fully entrenched in the Nigerian jurisprudence to ensure certainty of the law. It is a well settled principle of judicial policy which must be strictly adhered to by all lower courts. However the lower courts must follow the principle of law or order upon which a particular case is binding such a principle is called the ratio decidendi. A statement made in passing by a judge which is not necessary to the determination of the case in hand is not a ratio decidendi of the case but an obiter dictum. It is very vital to be able to draw the line of distinction between them for the purpose of judicial precedent.
Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt.312) pg. 382 Atolagbe v. Awuni (1997) 9 NWLR (Pt.522) pg. 536 NAB. v. Barri Engineering (Nig.) Ltd. (1995) 8 NWLR (Pt.413) pg.257
Concord Press Nigeria Ltd. v. Olutola (1999) 9 NWLR (Pt.620) pg.578
Comptroller of Nigeria Prison v. Adekanye (1999) 10 NWLR (Pt. 623) pg. 400.
In adopting the decision of a higher court one must not rewrite it so as to give it another meaning or interprete it in a way to suit a particular purpose or situation not envisaged by the judgment.
This takes me to consider the issue of jurisdiction. Jurisdiction is defined as a term of comprehensive import embracing all kinds of judicial action. It is basically the legal right by which Judges exercise their authority including the power to hear and determine the subject-matter in controversies between parties to a suit. It is the basis, foundation and conduct of access to court in adjudication under the Nigerian Legal System.
Ogunmokun v. Milad. Osun State (1999) 3 NWLR (Pt. 594) pg.261
N.D.I.C. v. S.B.N. Plc (2003) 1 NWLR (Pt.801) pg. 311 183
Oloriode v. Oyebi (1984) 1 SCNLR 390
Skenconsult v. Ukey (1981) 1 SC pg. 6.
The determination of courts competence depends on the peculiar circumstance of each case. Furthermore in determining the jurisdiction of a court the enabling laws vesting jurisdiction on it has to be examined in the light of the reliefs sought. This is so because courts are creations of statutes and their jurisdiction therefore confined, limited and circumscribed by the statute creating them. Courts cannot in essence give themselves or expand their jurisdictional horizon by misappropriating or misconstruing statutes.
African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) pg. 137
Onwudiwe v. F.R.N. (2006) 10 NWLR (Pt.988) pg. 382
The Election Petition Tribunal constituted under section 285 of the 1999 Constitution is vested with exclusive jurisdiction to hear and determine election petitions under the Electoral Act 2006. It has original jurisdiction to hear and determine petitions to the exclusion of any court or tribunal as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house. By virtue of section 285(2) of the 1999 Constitution – an Election Petition Tribunal is not an all purpose court that can entertain all sorts of claims or reliefs. It is created for election matters alone. That is why election petitions are sui generis- because the suits are in a unique and peculiar class of their own.
They are neither civil or criminal. The right of access to court is as provided by the law guiding the conduct of the election – the Electoral Act, 2006. An election tribunal is bound by the averments in an election petition and must limit itself to them when determining the suit between the parties.
The poser now is whether the Election Petition Tribunal has any power to nullify the election held in 2007 in Anambra State following the judgment extending the tenure of office of Mr. Peter Obi as the Governor of Anambra State to 2010.
The tribunal nullified the election and all related matters thereby like inauguration and swearing on oath of the appellant. The latter cannot obviously be part of the reliefs claimed by the petitioners.
Election petitions are sui generis accordingly the general principle of law may not be applicable.
Buhari v. Yusuf (2003) 14 NWLR (Pt.841) pg. 446
The tribunal can only exercise its powers to nullify as stipulated under section 147 of the Electoral Act, 2006 after a proper contest between the parties based on the grounds for questioning an election based on section 145(1) of the same Electoral Act, 2006.
Nullification under section 147(1) of the Electoral Act, 2006 follows a process of contest between parties to an election.
The Electoral Act provides for striking out of a petition in section 147(3). The judgment of the Supreme court in Peter Obi v. INEC is not only declaratory it is self executory, the parties complied with the order immediately – INEC, the incumbent governor and the appellant in this appeal.
The tribunal has no jurisdiction to nullify an election without hearing the parties in the petition or even go further to make consequential orders.
Sections 178(1) and (2) of the Constitution 1999 are in respect of the election of a governor – the Sections stipulates as follows:”
178(1) An election to the office of governor of a state shall be held on a date appointed by the Independent National Electoral Commission.
(2) An election to the office of governor shall be held on a date not later than sixty days and not later than the days before the expiration of the term of office of the last holder of that office.”
The foregoing sections obviously serve as a guide to INEC in the conduct of the election to the office of a governor of state. The lower tribunal lacks the jurisdiction to rely on same to pronounce that a gubernatorial election and subsequent inauguration and any steps taken in furtherance of the said election are a nullity. The lower tribunal also declared the petitions and cross petitions and all processes in the petitions and cross petitions because of the judgment of the Supreme Court a nullity before striking them out which is another wrong order. Section 178(2) was not considered by the Supreme Court and did not form part of the issues raised in the petitions of the parties. I find that nullifying the petitions and cross petitions, the inauguration and the taking of oath of the appellant was procedurally defective and the tribunal could not confer such jurisdiction on itself, which is not in the Constitution, section 285 or the Electoral Act, 2006.
Issue No.2
Whether lis pendens is a doctrine applicable to an election petition so as to make it relevant to the elections petition before the tribunal.
The appellant submitted that the tribunal held that because the governorship election was conducted while the case of Peter Obi v. INEC was pending the said election was a nullity. The appellant disagree with the application of the doctrine of lis pendens and regard same as erroneous.
The doctrine does not apply to every suit but applies to a suit which the object is to recover or assert title to a specific property, a real property but has no application to personal property.
The tribunal acted in error to have held that the election of the appellant was a nullity when it relied on the inapplicable doctrine of lis pendens to reach the decision.
The court is urged to reverse the decision.
The appellant’s learned senior counsel referred to case: Bellamy v. Sabline (1857) 261 INS Equity Reports 797; Barclays Bank Ltd. v. Ashiru (1978) 6-7 SC 99 at 122-129; Wigram v. Buckley (1894) 3 Ch. 483 at pg. 486; Ikeanyi v. A.C.B. Ltd. (1991) 7 NWLR (Pt.205) pg. 626 at 638
Chief Osuigwe learned counsel to the 1st respondent submitted that the Supreme Court had been using the doctrine of Lis pendens to preserve the subject-matter of dispute and not foist a fait accompli on the court and the power of the court to reverse action taken pendente lite. Learned counsel cited the cases of: Peter Obi v. INEC (2007) 11 NWLR (Pt.1046) pg. 565.
Chief Nwaiwu for the 2nd – 653rd respondents associated himself with the submission of counsel for the appellant. Lis pendens means a pending law suit. It is a Latin expression used to give a notice required to warn all parties that certain property is subject matter of litigation and that any interest acquired during the pendency of the suit must be subject to the outcome of the litigation. The doctrine of Lis pendens operate to prevent the effective transfer of any property in dispute during the pendency of the dispute. The doctrine is designed to prevent the vendor from transferring any effective title to a purchaser by depriving him the vendor of any rights over the property during the pendency of the suit.
Osagie v. Oyeyinka (1987) 3 NWLR (Pt.59) pg. 144
Abhulimen v. Namme (1992) 8 NWLR (Pt.258) pg. 202
Combined Trade Ltd. v. ASTB Ltd. (1995) 6 NWLR (Pt.404) pg. 709
Umoh v. Tita (1999) 12NWLR (Pt.631) pg. 427
I must add that the Supreme Court as the Apex Court has taken the doctrine from the realms of real property and invoked same in ordinary cases where parties have a duty to preserve the subject-matter of dispute and not foist a fait accompli on the court and the power of the court to reverse action taken pendente. Parties to proceedings pending in court ought not to do anything which may have the effect of rendering nugatory the judgment of the court. A party may not alter to his advantage or disadvantage of his opponent issues in contest in a pending suit. By the doctrine of stare decisis the decision of the Apex Court is binding on all other lower courts. Obi v. INEC (2007) 11 NWLR (Pt.1046) pg. 565
Issue No.3
Whether it was a valid exercise of judicial authority for the tribunal to give single judgment for nine consolidated election petitions.
The learned senior counsel for the appellant submitted that consolidated suits retain their separate identities consolidation is the procedure adopted for the convenience of trial of suits which are believed to have some similarities which the same evidence may cover although each suit must be considered on its merits. The single judgment the tribunal gave in respect of the nine consolidated election petitions was not only wrong but invalid.
The learned senior counsel referred to the cases – Enigwe v. Akaigwe (1992) 2 NWLR (Pt.225) pg. 505 at pg. 535 Ume v. Ifediorah (2001) 8 NWLR (pt.714) pg. 35 at pg. 43
In the final analysis this court is urged to allow this appeal and set aside the judgment of the lower tribunal.
The learned counsel to the first respondent Chief Osuigwe reacting to this submitted that failure of the lower tribunal to deliver separate judgments in the consolidated petitions has not adversely affected the appellant. The sole judgment handed down by the lower tribunal was sufficient to dispose of all the petitions and cross-petitions. No injustice was done or has been occasioned to the appellant.
Any judgment which does not decide a living issue is academic and hypothetical and same shall be liable to be struck out. The court is urged to dismiss this appeal for lacking in merit and being purely academic. The 1st respondent relied on the case of –
Uzoho & Ors. v. N.C.P & Anor. (2007) 10 NWLR (Pt.1042) pg.320
The appellant in this issue attacked the procedural defect in the judgment of the lower tribunal- by which the lower tribunal delivered a single judgment in respect of nine consolidated election petitions which it had before it for consideration. I shall resolve this issue by quoting from the judgment of this court in the case of Ume v. Ifediora where the court said:-
“Consolidation of actions, in essence, facilitates the joinder and trial at the same time, consequent upon the court’s order of two or more pending actions. The actions so joined persist in their separateness and distinctiveness inspite of the simultaneous trial in a single proceeding. It follows naturally therefore that judgment must be given in respect of each action that had gone into seeming fusion.”
The submission of the appellant is that the judgment is invalid.
A party who has a complaint about consolidation of action must show that miscarriage of justice resulted from the single judgment. Balonwu v. Ikpeazu (2005) 13 NWLR (Pt.942) pg. 479
In the consolidated election petitions and cross petitions – the lower tribunal was wrong not to have treated the petitions and cross petitions distinctly and separately and pronounce on each of them in its judgment.
Section 46 of the 1st Schedule to the Electoral Act, 2006 grants the power of consolidation to the tribunal in order to do justice in the proceedings. The effect of the procedural blunder committed by the lower tribunal will cause serious concern if it has frustrated the parties particularly the petitioners from reaping the fruits of their action. The petitions here were not decided on their merit.
The wrong order of the lower tribunal can only be invalidated.
An invalid order is an order that is legally inoperative, not legally binding and can only be struck out.
In sum issues one and three are resolved in favour of the appellant. This is a situation in which the lower tribunal has exercised. Its discretion not judiciously or judicially having made an order which in the circumstance of the case it has no jurisdiction to make going by section 285 of the Constitution and the provisions of section 147(1)of Electoral Act. Where the decision of a tribunal is substantially based on the exercise of discretion, an appellate court will not interfere with the decision unless the tribunal has failed to exercise its discretion judiciously or judicially or has exercised same frivolously or arbitrarily.
ACME Builders Ltd. v. K.S.W.B. (1999) 2 NWLR (Pt.590) pg. 288
Chigbu v. Tonimas Ltd. (1999) 3 NWLR (Pt.593) 115
Ngwu v. Onuigbo (1999) 13 NWLR (Pt. 636) pg. 512
University of Lagos v. Olaniyan (1985) 1NWLR (Pt.1) pg. 156
This court examined the address and submission of counsel before the lower tribunal after the judgment of the Supreme court in the case of Obi v. INEC & 7ors. and now considers it appropriate in the circumstance of this case to invoke the legal powers conferred on it under section 16 of the Court of Appeal Act, that is to make any order which the lower court could have made in the interest of justice.
By virtue of Section 16 of the Court of Appeal Act this court hereby orders as follows:-
This court hereby orders by invoking Section 16 of the Court of Appeal Act:-
(1) That the orders of nullification made by lower tribunal on the 19th of July, 2007 as they affect each of the consolidated appeals in the Governorship/National Assembly and Legislative Houses Election Petition Tribunal Anambra State sitting in Awka are hereby revoked and discharged.
(2) Since there is no live issue in the petitions and cross/petitions filed against the election of the appellant Dr. Emmanuel Andy Uba as Governor of Anambra State before the lower tribunal which now lacks jurisdiction to hear them on the merits in view of the decision of the Supreme Court in the suit – Obi v. INEC & 5 Ors. (2007) 11 NWLR (Pt. 1046) pg. 565 delivered on the 14th of June, 2007, the petitions and cross petitions are accordingly struck out.
(3) This appeal is meritorious and is hereby allowed.
(4) No order as to costs.
Appeal allowed.
Other Citations: (2008)LCN/2666(CA)
