Egwuuoyibo Okoye V. Independent National Electoral Commission (INEC) & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED L. TSAMIYA, J.C.A,

In this ruling, the applicant (herein) was the petitioner before the Election Tribunal 1 (herein referred as Tribunal 1) sitting at Awka in Anambra State, while the respondents (herein) were respondents in the petition. The applicant petitioned against the return of the 4th respondent by the 1st – 3rd respondents in the General election held on 28/4/2007 in the Nnewi South Constituency, as the winner. The petition No. EPT/AN/SAE/85/2007 was on 3/6/2008 dismissed by the said Tribunal, 1.

Dissatisfied with the decision, the applicant quickly filed his notice of appeal on 12/6/2008. Then after the receipt of the judgment he filed and served the respondent another notice of appeal dated 23/6/2008 and filed on 24/6/2008. Thereafter, the appellant/applicant and 4th respondent each filed an application.

For clarity the application filed by the appellant/applicant mainly is for:

(a) Leave to withdraw the notice and grounds of appeal dated and filed on 12/6/2008;

(b) Leave to argue the appeal based on the notice and grounds of appeal dated 23/6/2008 and filed on 24/6/2008; and

(c) An order compelling the respondents to obey the order made by this Court on the 21/1/2008 in appeal NO.CA/E/155/2007.

And for the 4th respondent, his application is:

“Seeking an order of this court dismissing the appellant’s Notice and Grounds of Appeal dated and filed 12/6/2008, copied at pages 1286- 1289 of the record for want of diligent prosecution.

In situations such as this, the court must decide which of the two applications should be determined first.

In any case, since amongst the two applications before us, is an application seeking, inter-alia, leave to withdraw the notice and grounds of appeal, and to argue appeal on the other notice and grounds of appeal filed, which if successful would defeat the 4th respondent’s application seeking “to dismiss the said notice and grounds of appeal as well as the entire appeal for lack of diligent prosecution”, the practice for quite a long time in our courts, is to determine, first, the application that would save the appeal if successful.

I must observe that in the days when counsel obtain what is regarded as technical justice the application seeking to dismiss would have been heard and determined first. If successful, the case would abate and that would be the end of the matter, notwithstanding the fact that the other application if determined first could have abated the other application to dismiss.

The aim of the courts, for quite a long time, and now has been to do substantial justice between the litigants. The days of technicality on technical justice have gone forever. See Bello vs. A.G. Oyo State (1986) 12 S.C. 1. Determining first, the application that would save the substantive action to proceed is founded on the reasoning that, if the application succeeds then the other application ‘to dismiss’ may not be heard. I will now proceed to determine the appellant’s/applicant’s application filed on 4/11/2008.

In his application, as I have said above in this ruling, the appellant/applicant prayed mainly for the following orders:

1. Order granting leave to withdraw the notice and grounds of appeal dated and filed on the 12/6/2008.
2. Order granting leave to argue the appeal based on the notice and grounds of appeal dated 23/6/2008 and filed on 24/6/2008.
3. Order compelling the respondents to obey the order made by this Honourable Court on 21/1/2008 in Appeal No. CA/E/155/2007.

The grounds for the application are as follows:

(a) The Federal High Court Enugu Division In suit No. FJC/EN/CS/80/2007 and Court of Appeal Enugu Division in appeal No. CA/E/155/07 made an order of mandatory injunction directing the 1st to 3rd respondents/respondents to restore the appellant/applicant as Peoples Democratic Party’s candidate. The judgments of both courts arc in pages 162 to 163, 234 to 238, 1202 of record of appeal.

(b) In spite of the clear judgment of Federal High Court holden at Enugu delivered before the election and the clear judgment of Court of Appeal Enugu delivered after the election, the 4th respondent claimed to have contested the election as a candidate of PDP and refused to vacate office as ordered by this honourable court.

(c) The court cannot grant any relief to respondents who on their own unashamed admission purported to have disobeyed orders of court.

(d) The 1st – 3rd respondents contrary to the court order issued certificate of return to the 4th respondent whom the court had ordered not to contest the said election. The certificate of return is contained in page 233 of record of appeal.

(e) Section 24 of Supreme Court Act and Section 17 of Court of Appeal Act provides that Appeal SHALL not operate as a stay of execution.

(f) Section 287 (3) of the constitution of Federal Republic of Nigeria 1999, enjoined this court to enforce the order of injunction against the respondents.

(g) No court should hold the order of a court of competent jurisdiction to disdain by an act that condones its disobedience.

(h) A party in disobedience through refusal to implement subsisting court order has no right to be neither heard, nor entitled to a hearing or to take a proceeding in the cause for his own benefit where such refusal impedes the course of justice.

(i) The notice and grounds of appeal were filed within time.

In support of the application are the following affidavits:

A. An affidavit in support, containing 15 paragraphs and 6 annextures marked exhibits 1 – 6. The relevant paragraphs are 2 – 14 paragraphs which read:

1. That I appealed against the judgment of the National Assembly Governorship and legislative Houses Election Petition Tribunal of Anambra State (which judgment was delivered on Election Petition No. EPT/AN/SAE/2007 on 3/6/2008) vide notice of appeal dated 12th June, 2008 before a copy of the judgment was released to me. The notice of appeal is attached and marked exhibit 1.
2. After I received the said copy of the judgment, I filed and served the respondents another notice and grounds of appeal dated 23rd day June, 2008 and at the hearing of the appeal, I shall base my argument on the notice of appeal dated 23 of June, only. The notice of Appeal is attached and marked exhibit 2.
3. Exhibit 1 and Exhibit 2 were filed within time.

4a. That the registrar of the lower tribunal duly compiled and transmitted to the Registrar of the Court of Appeal copies of the record of appeal as prescribed by the practice direction No.2 of 2007. I was duly served with the record of appeal on the 11th August, 2008, and both notice and grounds’ of appeal are contained in the record of appeal.

4. That consequent upon the facts deposed to, supra, the appeal was duly entered as appeal No. CA/E/EPT61/08.
5. On the 15th day of August, 2008, I filed the appellant’s brief and on the 18th day of August, 2008, the said appellant’s brief was served on the applicant.
6. The appellant’s brief stated that I have abandoned the notice of appeal dated 12th June, 2008. The appellant’s brief is attached and marked exhibit 3.
7. That the applicant has filed his respondent’s brief based on the notice and grounds of appeal dated 23rd day of June, 2008.
8. That I have not filed appellant’s brief on the notice and grounds of appeal dated and filed 12th June, 2008 because I abandoned same for the notice and grounds of appeal dated 23rd day of June, 2008.
9. In spite of the clear judgment of the Federal High Court holden at Enugu in which the 4th respondent was asked not to contest the election, he claimed to have contested the election as a candidate for PDP in the said election even though he was present when the said judgment was delivered. The order of Federal High Court in suit No,FHC/EN/CS/2007 is attached and marked Exhibit 4.
10. 1st – 3rd respondents whom the orders were against did not appeal against the orders.
11. Against the order of court, the 1st – 3rd respondents issued certificate of return to the 4th respondent who accepted same contrary to the said order. The said certificate of return is attached and marked Exhibit 5.
12. The Court of Appeal Enugu Division in Appeal No. CA/E/155/2007 made an order of mandatory injunction directing 1st – 3rd respondents to restore the applicant as PDP candidate for the said election. The said order has not been obeyed by 1st – 3rd respondents. The said order is attached and marked Exhibit 6.
13. That it is in the interest of justice that orders of court are obeyed by the respondents.

B. Further affidavit of 3 paragraphs and one annexture marked Exhibit 7 filed.

The relevant paragraph is paragraph 2 which reads:

“2. The Supreme Court on the 3rd day of February, 2009 dismissed the 4th respondent’s appeal against exhibit 6 and confirmed the appellant/applicant as the candidate of Peoples’ Democratic Party in the questioned election. The enrolled order of Supreme Court is hereby annexed and marked Exhibit 7.”

C. 2nd Further affidavit of 9 paragraphs with 3 annextures marked Exhibits 8 – 10 filed. The relevant paragraphs are 4- 8 and they read as follows:

“4. The candidacy of the appellant/applicant having been confirmed by the courts was brought to the notice of the acting clerk of the House of Assembly who by a letter dated 2nd March, 2009 refused to comply with the order of this honourable court. The said letter is annexed and marked Exhibit 8.

5. The 1st – 3rd respondents have refused also to comply with the order of this honourable court.
6. The People Democratic Party won in the said election in The Nnewi South II State Constituency.
7. That while this appeal was pending Mike Okoye Esq And the 4th respondent by a publication in the Daily Independent on the 3rd day of March, 2009 canvassed reasons why the said court order should not be complied with. The said newspaper publication is annexed and marked Exhibit 9.
8. That Governorship/National Assembly and Legislative House Election Tribunal Holden at Awka on the 23rd day of August, 2007, confirmed by its ruling in petition No. EPT/AN/SAE/85/2007 that the appellant/applicant was a candidate in the election. This ruling has not been set aside. It is annexed and marked Exhibit 10.”

The 1st – 3rd respondents did not file any counter affidavit in opposition but opposed the application on point of law, while the 4th respondent in opposition filed two separate counter affidavits – “4th respondent’s counter affidavit” and “4th respondent’s 2nd counter affidavit”. The relevant paragraphs in the two counter affidavits are 3 – 16 of the former and 3 – 12 of the latter counter affidavits. Paragraphs 3- 16 of the former counter affidavit read:

(3) That we have read the motion filed by the appellant seeking inter alia the withdrawal of the Notice and Grounds of Appeal he filed on June 12, 2008 against the decision of the Election Tribunal at Awka.

(4) That the Appellant had filed a petition to the Election Tribunal seeking an order to be declared the winner of the election based on the judgment of the Federal High Court and the Court of Appeal in a pre-election matter.

(5) That the Election Tribunal after hearing the matter, in its considered judgment held that the Appellant did not win the Election and accordingly dismissed his petition.

(6) That aggrieved with decision of the Election Tribunal the Appellant filed his Notice and Grounds of Appeal on June 12, 2008.

(7) That the Appellant failed, refused and neglected to tile his Appellant Brief against his Notice and Grounds of Appeal of June 12, 2008 as prescribed by the practice Direction No.2 of 2007 and Court of Appeal Rules 2007.

(8) That because of the failure of the Appellant to file his brief as prescribed by law, the 4th Respondent through his counsel filed an application to dismiss the said Notice and Grounds of Appeal for want of prosecution. The Appellant joined issues with the 4th Respondent by filing his Counter Affidavit. Both counsel also filed their written argument in support and against the said application. The Appeal and the said Application was therefore set down for hearing on October 27, 2008.

(9) That when the Appeal and Application came up for heating on October 27, 2008, the Honourable Court, could not take the matter and with the consent of all counsel in the matter, the Appeal and the Application was adjourned to January 28, 2009 by the Registrar for hearing.

(10) That the Appellant’s counsel thereafter applied that the date be brought forward to the 20th of November. While the lead counsel Mr. Mike Okoye handling this matter personally also wrote that he would be unavoidably absent from November 18th to the 30th of November 2008 because he would be in Europe for medical attention which appointment had been earlier fixed. (11) That withdrawals of Appeal in the Court of Appeal is governed by Order 11 of the Court of Appeal Rules 2007 and the effect of a withdrawal of an appeal by the Appellant is to act as a bar to further proceedings in the Appeal, same effect as an appeal dismissed for want of prosecution.

(12) That the Application for the withdrawal of this Notice and Grounds of Appeal is brought in bad faith in that the Appellant filed no Notice of withdrawal within the time prescribed for the filing of Appellants brief and before the time fixed for the hearing of the Appeal and after the 4th Respondent had filed a motion to dismiss this said notice and grounds of Appeal for want of prosecution.

(13) That no notice to the effect that the Appellant does not intend to prosecute the Appeal any further was filed and no consent of the Respondent to the withdrawal of the Appeal was sought The 4th Respondent does not give his consent and would oppose the withdrawal.

(14) That the Appellant requires no leave of this Honourable Court to argue his second Notice and Grounds of Appeal. That leave of this Honourable Court can not cure the effect of the Appellants withdrawal of his Notice and Grounds of Appeal.

(15) That this Honourable court is without jurisdiction to enforce the judgment of the Federal High Court and the Court of Appeal in a pre-election matter before the hearing and determination of this Appeal and without the Appellant succeeding in this Appeal.

(16) That the Application for the withdrawal of the Notice of Appeal, Leave to argue the second Notice of Appeal and an Order of this Honourable Court enforcing the judgment made by the Federal High Court and the Court of Appeal in a pre-election matter is made in a bad faith and in preemption of this Honourable Courts decision in the Application filed by the 4th Respondent to dismiss the Appellant appeals for want of prosecution.

The relevant paragraphs 3 – 12 of the “4th 2nd respondent’s counter-affidavit” read:

4. That I have read the further affidavit filed by the Appellant
5. That the further affidavit is misleading and not in good Faith.
6. That the appellant applied to the Supreme Court for an order compelling INEC to issue him with a Certificate of Return based on the judgment of the Federal High Court and Court of Appeal. A copy of the said application is hereby attached and marked Exhibit A.
7. That the appellant applied to the Supreme Court for an order compelling INEC to issue him with a Certificate of Return as the winner of the election.
8. That Honourable Justice Onnoghen JSC asked counsel that since the Appeal Court is functus officio of the matter without granting consequential orders. Why did they not cross appeal against the decision of the Court of Appeal? Counsel stated that it was a mistake that they did not cross appeal.
9. That at this stage the presiding Justice Honourable Justice Musdapher JSC informed counsel that the Supreme Court is without jurisdiction to make such an order and accordingly ordered that the appeal having been withdrawn is dismissed.
10. That this appeal before the Court of Appeal having been withdrawn, this Honourable Court has no jurisdiction to further entertain this appeal.
11. That the appellant Notice of Appeal withdrawn is a competent Notice of Appeal.
12. That this Honourable Court has no jurisdiction to re-visit its judgment in a different Appeal.
13. That while this Appeal was pending, the appellant applied to the Clerk of the House, that he be sworn in as the winner of the election. A copy of the said letter is hereby attached and marked Exhibit ‘B’.

In his oral argument on prayers 1 and 2, learned silk for the appellant/applicant submitted that both notices of appeal were filed within time and that the appellant/applicant’s brief of argument was filed on 15/8/2008 also within time and same was served on the respondents. That the appellant’s/applicant’s brief filed was based on the notice of appeal filed on 24/6/2008 as he intends to abandon the notice of appeal filed on 12/6/2008, for which he applied in this application to withdraw. He argued that he has a competent appeal even if his prayer no. 1 is granted.

The learned senior counsel from the opening of his oral submission said that he adopted and relied upon their affidavits and annextures, and urged the prayers to be granted.

He finally urges this to grant the application.

Mr. S.O, Ibrahim, Esq. learned counsel for the 1st – 3rd respondents, though did not file any counter affidavit to oppose the application, he opposed the application on point of law. He submitted that both prayers 1 and 2 should not be granted on ground that there is no competent appeal before this court, upon which the application could stand on, and if no competent appeal then also no competent application upon which the two – prayers could stand since the two notices of appeal filed are without leave.

He further argued that the applicant is relying on the two notices of appeal to say that he has appealed. That, filing two notices of appeal against the same Judgment/Ruling of the said court is an abuse of Court’s Process and in that situation the court should dismiss the appeal and the entire application. He cited the case of Nat. Ins Comm. Vs. Acen Ins. Co. Ltd & Ors (2007) 6 NWLR (Pt.1031) 587 at 602.

Mr. Okoye, learned counsel for 4th respondent, though filed two separate counter affidavits in opposing the application, in his oral submission, he informed this court that he was not opposing the grant of prayer I on the application but prayers 2 and 3. He vehemently opposed all the two prayers for lack of sufficient materials being deposed in the appellant’s/applicant’s affidavits, to warrant the grant. He further urged this court that if prayer I is granted, the provisions of order 11 rules 5 of the Court of Appeal Rules 2007 should be invoked to dismiss the appeal in it entirety as there is no brief filed for it. He also submitted that the application to withdraw the said notice and grounds of appeal is brought mala-fide as it is not brought within time.

Having heard the submissions of both counsel to the parties on prayers 1 and 2, I will now examine the merit of the application with regards to prayer 1 and 2.

From the tone of the affidavit in support, it is deducible that the appellant/applicant filed two separate Notices and Grounds of appeal against one and same decision of 3/6/2008 – vide Notices and Grounds of appeal dated and filed on 12/6/2008 and that of dated 23/6/2008 and filed on 24/6/2008.

It is important to note that appeals are heard on briefs of argument filed by the parties. Any notice and grounds of appeal not supported by brief of argument is not entitled to be heard. In the instant case and from the affidavit in support, the two separate notices and grounds of appeal were filed within time, therefore the appeal No.CA/E/EPT/61/2008 was duly entered. See paragraphs 2, 3, 4 and 5 of the supporting affidavit. Similarly, the appellant/applicant filed his brief of argument which was served on the respondents and the brief was based on the second Notice and Grounds of Appeal filed on 24/6/2008. Both, in his affidavit and Brief: the appellant/applicant indicated that he is abandoning the earlier Notice and Grounds of appeal filed on 12/612008 and would be relying on the second notice of appeal filed on 24/6/2008. See paragraphs 6 – 9 of the supporting affidavit. All these facts were not denied by the respondents. This, appellant/applicant, is entitled to do. Consequently, I am of the view that there is a competent appeal before us, even if prayer 1 on the motion papers is withdrawn. The argument to the effect that no competent appeal before us, is misconceived and is discountenanced.

On the argument that if prayer 1 is granted i.e. notice of appeal dated and filed 12/6/2008 is withdrawn, the appeal is incompetent because the withdrawal of that notice is to act as a bar to the further proceedings in the appeal based on notice of appeal filed on 24/6/2008. I disagree with this argument, because, an appellant is entitled to withdraw one of his two notices of appeal and then proceed to argue his appeal on the other remaining notice of appeal. See S.B.N. vs. C.B.N. (2009) 6 NWLR (Pt.1137) 237 at 267 para E; and Tukur vs. Government of Gongola State (1988) 1 NWLR (Pt.68) 39.

On order 11 rule 5 of the Court of Appeal, I wish to point out that the said rule 5 of Order 11 (supra) deals with the withdrawal of a substantive appeal based only on one notice of appeal. In otherwords, it deals with the withdrawal of appeal filed and based on one particular Notice and Grounds of appeal. In the instant case, the issue is on withdrawal of one of the notices of appeal filed, which to my view, the appellant can validly withdraw, but not on withdrawal of appeal. So the rule is not applicable. Similarly, we are referred to Order 6 rules 5 of the Court of Appeal Rules 2007. This rule deals with an application for amendment of notice of appeal. Therefore, this rule also is not applicable in this situation because the issue involved here is not on amendment of notice of appeal but on withdrawal of one of the notices. On the case of Nat. Ins. Comm, Vs. Acen Ins. Co. Ltd. (supra) which we were also referred to, this case also is not applicable because it relates to an issue of whether an appellant who is out of time can properly file Notice of Appeal before leave to appeal is first sought and obtained, and whether, in such situation, trinity prayers are mandatory or not.

On whether filing two notices and grounds of appeal amounts to an abuse of Court Process, then the question is – what’ Abuse of Process’ is?

This concept i.e. ‘Abuse of Process’, has been defined, on page 10 of the “Words and Phrases Legally Defined” Vol. 1, A – C; 2nd Edition, as “a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexatious or oppressive.” However, the concept has also been defined by a number of jurists in several judicial authorities. In Isreal Amaefule & Ors vs. The state (1988) 2 NWLR (Pt.75) 156 at 177, Oputa J.S.C. described the concept, inter-alia, as, “an abuse of Legal procedure or improper use of legal process”. In David Ogbu Onuoha vs. National Bank of Nigeria Ltd & Anor (1999) 13 NWLR (Pt.636) 621 at 627 Sanusi, J.C.A’ defined it, as “an instituting a multiplicity of actions on the same subject matter against the same opponent and on the same issue.” In Bibejiok vs Abubakar & 2 Ors. (2001) 19 WRN, 119 at 121; Obadina J.C.A described the concept, as “an improper use of the process and procedure of Court by a litigant.”

From the various definitions of the concept, one may say that, it is an abuse of process of Court to institute multiplicity of actions between the same parties over the same subject matter in different courts. In such situation the second suit will, ordinarily, be vexatious, and equate to an ‘abuse of the process of Court’. See Harriman vs. Harriman (1989) 5 NWLR (Pt.119) 6. Indeed, I would like to remind the learned counsel that, abuse of court’s process in his realm has got nothing to do with filing of more than one notice of appeal by an appellant in the same appeal.

The next question is whether it is improper to file more than one notice of appeal in respect of same matter.

The learned silk for the appellant submitted that it is not illegal to file many notices of appeal in the same matter. He stressed that it has never been. He submitted that an application to withdraw one and rely on the other can be made as no rule prohibits the filing of more than one notice of appeal, while the respondents counsel have contrary view.

I regret to disagree with the learned counsel for the respondents. It is clear from the legal authorities available that to file many notices of appeal in the same matter is not illegal and it has never been improper or illegal. See Tukur vs. Government of Gongola State (1988) 1 NWLR (Pt.68) 39 at 42. Nothing stops an appellant from filing more than one notice ex-abun dantia cautela. Where more than one notice of appeal is filed, as in this case, the others may be superfluous but not invalid. I have already stated in this Ruling that an appellant can validly withdraw one of the two notices of appeal and then proceed to argue his appeal based on the other remaining notice of appeal. The Rules of this court did not prohibit the filing of more than one notice, and an appeal is not incompetent because of filing more than one notice of appeal. See Akeredolu & Ors vs. Akinremi & Ors. (No.2) (1986) 2 NWLR (Pt.257) 710; and Iteshi Onwe vs. The State (1975) 9-11 S.C. 23.

It is important to note that the appellant in this case has a constitutional right to appeal which, from the evidence before us, he did, and there is nothing sustainable in the respondents’ opposition, that can take away that right. This Court, and all other courts in this country, are courts of law but may the day never come when they cease to be courts of justice. Substantial justice cannot be done unless courts of Justice strain to ensure that appeals are heard on their merits.

The learned counsel for the 4th respondent argued that the application for withdrawal of the Notice and Grounds of Appeal filed on 12/6/2008 is brought mala-fide – in bad faith – since the appellant filed no Notice of withdrawal within time prescribed for filing of appellant’s brief and before the time fixed for hearing of the Appeal and waited until after the 4th respondent had filed a motion to dismiss the said notice and grounds of appeal for want of prosecution. See Paragraphs 12, 13 and 16 of the 4th respondent’s counter affidavit.

The concept of mala-fide has been defined to mean-Bad-faith. Bad faith – opposite of good faith, and generally implies or involves actual or constructive fraud or a design to mislead or deceive another or neglect or refusal to fulfill some duty or some contractual Obligation, not prompted by an honest mistakes as to one’s right or duties but some interested on sinister motive; while the term, ‘Bad faith” implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. See Black’s Law Dictionary, 6th Ed. P. 139.

The appellant/applicant deposed in paragraphs 2- 9 of his affidavit in support, of the claims of events that warranted him to ask the relief in prayer 2 on the Motion papers, and was confirmed by paragraph 6 of the 4th respondent’s counter affidavit.

Considering the appellant’s/applicants affidavits evidence and documentary exhibits attached to this application, the question is, could bad faith be established or interred? From the affidavit evidence it is deposed that, the appellant/applicant filed two notices of appeal within time, out of which he abandons one and intends proceeds on the other, which I have said he can validly do so. It was also deposed that he filed his brief of appellant’s argument within time find the brief was based on the 2nd notice of appeal filed on 24/4/2008 and same was served on the respondents and each respondents filed response. Also deposed was the fact, that the appellant is withdrawing the first notice of appeal filed on 12/6/2008 so that he will proceed with the second notice of appeal filed on 24/6/2008 upon which he has filed his brief. Accordingly, the appellant/applicant is exercising his Constitutional right to appeal as of right which cannot be denied by the respondents and at the same time to exercise his right to withdraw one of the notices of appeal, which also has the right to do.

Considering the above, therefore, I am of the view that the application to withdraw one of the notices of appeal, i.e. notice of appeal filed on 12/6/2008, was not brought in Bad faith.

On prayer no.3, it was submitted by the learned silk for the appellant/applicant that since exhibit 6 (the enrolled order of this Court) confirmed the candidature of the appellant/applicant under PDP, and not the 4th respondent, he should be allowed to step into the shoes of the 4th respondent who invalidly, ab initio, and unconstitutionally purportedly substituted for the appellant/applicant. That the judgment of this court in Appeal No. CA/E/155/2007 is binding on all the parties to this case including the Election tribunal 1, against whose judgment the appellant/applicant appealed before this court. And by virtue of section 287 of the 1999 Nigerian Constitution, the judgment is enforceable by all forces and in any part of his country. In support of his submission, the learned silk cited the cases of Ojo vs. INEC (2008) 13 NWLR (PT.1105) 577 at 628 paras B – C; and Ameachi Vs. INEC (2008) 5 NWLR (Pt.1080) 227.

In opposing prayer No 3, on point of law, the learned counsel for the 1st – 3rd respondents submitted that since it forms part of relief sought in the substantive appeal now pending before this court, it is improper to grant it. He relied on Adeleke VS. Ogbonda (2006) 18 NWLR (Pt.1012) 506.

Learned counsel for the 4th respondent in opposing has argued that since the appellant/applicant failed to ask prayer no.3 as a consequential relief as at the time the appeal no. CA/E/155/2007 was argued, and that the 4th respondent has already been sworn in as a member for PDP in the State House of Assembly, the appellant/applicant cannot at this stage, in a different matter, asks this court for any consequential order/relief arising from different matter i.e. pre-Election matter not before this court. He cited the cases of Jang vs. Dariye (2003) 15 NWLR (Pt.843) 436 at 460.

He also argued that the prayer is vague since there are more than one orders made, and that the appellant/applicant did not specify the order required to be compelled for its obedience, therefore it cannot be granted. Moreover, this prayer is also one of the prayers sought in the appeal and once granted, the main appeal then becomes abated and would dispose of the substantive issue in the appeal.

It is true that this Court made orders contain in exhibit 6. These orders are subsisting having not been set aside by the Supreme Court. Consequently, they are binding on all the parties thereto and should not be ignored by the parties. The parties thereto remain bound and must comply. Among the orders, I think the appellant/applicant is more concern with is the order which directed the respondents to restore the appellant/applicant as duly nominated candidate of PDP for election into the State House of Assembly in respect of Nnewi South 2 State Constituency of Anambra State. Notwithstanding this order of this Court, the compliance was not done for the reason best known to the respondents. Being anxious to enforce this order the appellant/applicant brought this application praying the relief in this prayer 3.

All the respondents opposed the grant of this prayer 3 and argued that once the order is granted literally it took the wind of the main appeal, in that it emptied the argument of the main issue in controversy when the appeal had not yet proceeded to argument on its merit.

I have perused the reliefs sought in the appeal under paragraph 6.01, where lhe appellant/applicant urges this court, inter-alia, to declare the appellant/applicant the winner of the election of 28/4/2007 into the Anambra State House of Assembly in Nnewi South Constituency 2 and order that he be sworn in as a member immediately for reasons stated therein.

While the intendment of prayer No.3 sought by the appellant/applicant was to the effect that the 4th respondent should ceased to be a member for PDP in the State House of Assembly for Nnewi South 2 Constituency of Anambra State, and in stead, the appellant/applicant should step into his shoes (notwithstanding there is appeal pending on that issue) until the final determination of the main appeal. To resolve the main issue in the appeal this Court shall determine, whether it was right to return the appellant/applicant as winner of the election which the appellant/applicant ought to contest instead of the 4th respondent who was return as winner, and whether the Election Tribunal was wrong in dismissing his petition against the declaration in favour of the 4th respondent.

It therefore becomes easily discernable that, only a very thin line existed between what was to be canvassed and determined in the main appeal, and what was prayed for in this interlocutory application. To grant prayer No.3 at this stage can be understood to mean that 4th respondent was not deemed a rightful candidate though perhaps true.

In entertaining the relief of which this Court is called upon to grant, it is important to take care that it did not led itself to temptation that would be obvious in the sense of not keeping a proper balance between what is sought in the main appeal, and in the interlocutory application. In Globe Fishing Industries Ltd & Ors vs. Chief Folarin Coker (1990) 7 NWLR (Pt.162) S.C. 265 at 294, Nnameka Agu, J.S.C. said:

“For the whole approach the main application for an order of interlocutory injunction should always take into account the clear implication that the court is not to try issues in contention in the case twice, first while considering the application for interlocutory injunction and secondly during trial. Once the Court is faced with a situation where it may have to do that in order to give consideration to the application to the correct thing to do is to stop hearing the application and accelerate the trial of the substantive suit…. ”

The main appeal will be fought on who should be a candidate to be returned as winner of the election in dispute by the 1st – 3rd respondents, and this will determine whether the respondents i.e 1st – 4th respondents, were in breach. If this court holds that it is the applicant, the appeal wins. If he is not then appeal might fail. Should this court at this stage grant the order sought in prayer No.3?

I am of the opinion that wherever a court is faced with an application for an interlocutory relief pending the determination of the substantive case on its merits, but there exist factors which might appear that if the application is granted at that stage, the meat of the main case might be compromised as determined, the only option open to the court is not to proceed further with interlocutory application, but to accelerate the hearing of the substantive case, so that full determination of the matters could be made. In the instant case, I believe this court would adopt this procedure so as to not appear to pre-empt the main sustenance appeal.

Before I finally conclude this Ruling, I need to point out that 1st – 3rd respondents’ opposition to grant this application is baseless, because it is only the 4th respondent that could genuinely opposed this application, as he is the only one that really could claim to be an aggrieved party. The 1st – 3rd respondents are nominal parties who would have no stake out of the case. It is non of their business to decide the person whom the electorates elect and consequently declared by the court to be the winner and person to be returned. The primary functions of INEC and its staff, and Police, alike as opined by Abdullahi P.C.A. in Agagu vs. Mimiko (2009) 7 NWLR (Pt.1140) 342 at 441 paras. A – D:

“Are to ensure that there is fairness and security at the election. Public policy demands that the two Institutions do not descend into the arena, and theirs are to tend the rope in the interest of peace and stability in the land. They should learn to remain neutral and strive to attain the aura of neutrality bestowed on them by the Constitution of the Federal Republic of Nigeria.”

For what I have stated above I am of the view that this is the case in which this court can exercise its discretion in favour of the appellant/applicant.

Having reached this decision, I think it is not necessary to examine the merit, of the 4lh respondents/applicant’s motion filed on 25/8/2008 in which he prayed this court for an order dismissing the appellant’s Notice and Grounds of Appeal dated and filed 4th June 2008. The said 4th respondents/applicant’s application is accordingly struck out.

In the final, the appellant/applicant’s application herein granted in the following terms:

1. That leave to withdraw the notice and grounds of appeal dated and filed on the 12th day of June, 2008, is granted.
2. That leave to argue the appeal based on the notice and grounds of appeal dated 23rd day of June, 2008, and filed on the 24th day of June 2008 is granted,
3. Prayer no 3 is refused, and dismissed.
4. No order as to costs.

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Other Citations: (2009)LCN/3353(CA)