Ikenna Amechi, Esq. & Anor. V. Mr. Egwuoyibo Okoye (2008)

LawGlobal-Hub Lead Judgment Report

TSAMIYA, J.C.A.

This is an appeal against the decision of the Federal High Court (hereinafter referred to as the trial court) Enugu Division, delivered on 27th April, 2007 in suit No. FHC/EN/CS/80/2007.

This case was commenced on 23/3/2007 in the trial court by one Mr. Emeka Festus Udoeme (the 1st plaintiff) against the INEC (1st defendant) on the originating summons in which he asked for the determination of 6 questions and claims 7 reliefs of the originating summons at pages 1 – 38 of the record of this appeal (herein refer to as the records). Upon the applications for joinder the following: Mr. Egwuoyibo Okoye, Mrs. Felicia Ngwubo, Mr. Gabriel Onuigbo, and Mr. Chukwudi Anieke, were joined as co-plaintiffs; while the following were joined as co-defendants. They were: Willian Okosi, Ikenna Amechi Esq, Joseph Okeke, Tim Egboka, Chinedu Muokwe and Peoples Democratic Party (PDP). Consequently, the 2nd – 5th co-plaintiffs individually took out an originating summons allegedly on the order of the trial court after fully being joined in the suit and the suits were consolidated.

In his own originating summons, the 2nd co-plaintiff like other co-plaintiffs asked for the determination of 6 questions and claims 6 reliefs as shown on the face of the originating summons at pages 310 – 313 of the records. However, it is pertinent to note that there was an earlier originating summons took out on 4th April, 2007 by the 2nd – 5th plaintiffs as shown on pages 118 – 123 of the records.

The reliefs sought by the 2nd co-plaintiff are as follows:

1. A declaration that the 1st defendant’s statutory power to substitute a nominated candidate of a political party, under section 34 of the Electoral Act, 2006, is qualified and not absolute.
2. A declaration that the 1st defendant has no power to substitute a candidate of a political party less than 60 days to the election when the candidate is not dead.
3. A declaration that the 7th defendant cannot substitute a nominated candidate of a political party in the absence of cogent and verifiable reasons.
4. A declaration that the substitution of the 2nd plaintiff by the 1st and 7th defendant as the duly nominated candidate of the Peoples Democratic Party (PDP) for election into the State House of Assembly in respect of Nnewi South 2 State Constituency of Anambra State in the manner it did is ultra vires, undemocratic, arbitrary, unlawful, illegal, unconstitutional, null and void.
5. An order setting aside the purported substitution, same being in excess of the statutory powers of the 1st and 7th defendants, is an abuse of power, breach of duty to act fairly, unreasonable, illegal, unconstitutional, null and void.
6. An order of mandatory injunction directing the 1st defendant to restore the 2nd plaintiff as the duly nominated candidate of the Peoples Democratic Party for election into the State House of Assembly in respect of Nnewi South 2 State Constituency of Anambra State.

No oral evidence was adduced by any of the parties at the hearing of this case. Instead, the case was contested on the affidavits; counter affidavits, as well as written addresses by both parties. The cases for the plaintiffs as deposed in the affidavits are as follows:

“The plaintiffs were all members’ of their political party – the 7th defendant. All were prospective candidates for the Anambra State House of Assembly election in various constituencies. After contesting and winning primaries, congratulatory letters issued to them respectively, and their names were duly forwarded to the 1st defendant by their party – the 7th defendant. They were issued with various INEC Forms to fill. Having complied with the requirements as stipulated by the 1st defendant, they filled and returned the said forms. Thereafter they were screened and each was certified as qualified to contest. After commencing electioneering campaign in their respective constituencies, and expend money, time and energy in the exercise, then suddenly they start to hear rumours that their party, intends to substitute them. The rumors became obvious when they discovered that their names were not in the list of candidates for elections in the constituencies they were supposed to stand for the election.”

This provoked them to file this action.

On their part, the 2nd – 5th defendants were the candidates whose names were to replace all the plaintiffs in the named constituencies.

On 26th April, 2007, the 2nd, 4th, 5th and 6th defendants filed their respective motions on notice asking the trial court for an order striking out/dismissing the suit filed by all the plaintiffs against them, on the ground that the trial court lacks jurisdiction to grant the reliefs sought by the plaintiffs.

After examining all the processes filed in this matter including the written addresses, submissions of counsel to the parties, the learned trial judge granted the order, and struck out the claims of the 1st, 3rd, 4th and 5th plaintiffs and entered judgment in favour of the 2nd plaintiff in the following terms:

“I have looked at the entire processes filed on behalf of the 3rd defendant and I hold that no cogent and verifiable reason was advanced for the purported substitution. Also, the facts shows that there were a breach of section 36 of the 1999 Constitution because there is no evidence that the 2nd plaintiff was heard before the substitution was made and this has been given judicial support in the case of Ararume v. Engr. Ugwu (supra) at page 16 where Adekeye, JCA hold inter-alia:

Moreover, a person whose right and interest are likely to be affected must be heard before the decision is taken against him, so as to not violate his constitutional right under section 36(1) of the 1999 Constitution’.

In all the circumstances, I answer all the questions posed in the originating summons in favour of the 2nd plaintiff against the 3rd defendant and all the reliefs sought are hereby granted to the 2nd plaintiff against the 3rd defendant.”

Being dissatisfied, the 3rd and 7th defendants (herein referred to as the appellants) appealed to this court against the decision granted in favour of the 2nd plaintiff (herein referred to as the respondent).

In accordance with the rules of this court, the appellants filed their joint brief of argument on 11th July, 2007 and identified 4 issues for determination as follows:

1. Whether the learned trial Judge was right in the instant matter to have refused to entertain the oral submission of the learned counsel for the 3rd and 7th defendants/appellants Dr. Onyechi Ikpeazu (SAN) at the court below on non-payment of filing fees in respect of the originating summons.
2. Was the originating summons filed by the 2nd plaintiff/respondent competent?
3. Whether the learned trial Judge was right to have held that no cogent and verifiable reason had been advanced by the 7th defendant/appellant for the substitution of the name of the 2nd plaintiff/respondent’s name with that of the herein 3rd defendant/appellant.
4. Whether the court below was right to have held that there was a breach of fair hearing in the process of substitution of the 2nd plaintiff/respondent for the 3rd defendant/appellant.

The respondent also filed a brief of argument on 30th October, 2007 and formulated issues for determination in this appeal. He also raised and incorporated in his brief, a preliminary objection against the hearing of this appeal. The grounds of the objection as stated at page 2 of the respondent’s brief are follows:

1. The appeal is merely academic exercise and serves no useful purpose since the election has been conducted and there is no live issue to be determined in the appeal.
2. The appeal is against the ruling of the Federal High Court in a pre-election dispute in respect of which an election has been conducted and the result of the election is being challenged before the election tribunal exclusively seized of jurisdiction in election disputes.

The appellants after being served with the respondent’s brief filed a reply brief on 2nd November, 2007 wherein he responded to the preliminary objection.

The respondent’s issues for determination read as follows:

1. Whether the Federal High Court was right in its judgment that substitution of the respondent by the 1st appellant was improper and invalid.
2. Whether or not court fees were paid.
3. Whether the Federal High court ought to have allowed the 1st appellant’s counsel to move a motion viva-voce.

During the hearing of this appeal on 5th November, 2007, the appellants orally raised objection against the preliminary objection of the respondent. He asked this court to discountenance it. The appellants’ counsel adopted their brief and asked this court to allow the appeal. The respondents’ counsel also, adopted their respondent’s brief and asked the court to dismiss the appeal and affirm the decision of the decision of the trial court.

Preliminary objections:

In support of the appellants’ objection, the appellants’ counsel contended that it offends Order 10 rule 1 of the Court of Appeal Rules, 2007 and as such it should be struck out. In his response, the respondents counsel submitted that their preliminary objection is in order having been raised and incorporated in the respondent’s brief.

Having stated the submission of the appellant’s counsel challenging the competence of the preliminary objection, the question now is whether the preliminary objection incorporated in the respondent’s brief without first filing a separate notice satisfied the requirements of Order 10 rule 1 (supra)?

Order 10 rule 1 says:

“Order 10 rule 1: A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registrar within same time.”

And Order 10 rule 3 also provides:

“Order 10 rule 3: If the respondent fails to comply with this rule the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit.”

Under the above mentioned rule, the respondent must give the notice and grounds of objection in writing and serve the appellant at least “three clear days” before hearing of the appeal. In Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285, it was decided that a preliminary objection to the competence of a grounds of appeal should be by notice before the hearing of the appeal so that argument on it can be heard by the court. Although notice of the objection may be given in the argument, it does not dispense with the need for the respondent to move the court at the oral hearing for the relief sought or prayed for.

The import of the above is that, respondent intending to challenge the competence of an appeal must give such notice thereof to the appellant not later than 3 clear days before the hearing of the appeal. It is well settled that the purpose of rule 15(1) of Order 3 of this court (now amended, and which is in pari materia with the existing Order 10 rule 1 of this Court’s Rules, 2007 and also similar to Order 2 rule 9 of the Supreme Court Rules) is to prevent to the opposite party, viz the appellant from being taken by surprise and to give him an opportunity during the hearing of the appeal. The court also has discretion to either refuse to listen to it – as in the case of Cesare Missilli v. Balogun (1968) 1 All NLR 318, or the court may adjourned the matter with costs to the appellant to afford the respondent an opportunity of giving the required notice to the appellant. See Oforkire v. Maduike (2003) 5 NWLR (Pt.812) 166 S.C.

When the purpose and essence of the rules of Order 10 rule 1 and 3 (supra) are taken into account, as well as their application by this court, it goes without saying that the contention of the appellants’ counsel seeking to knock down the objection raised in the respondent’s brief is misconceived. For notice of preliminary objection raised and incorporated in the respondent’s brief of argument not necessarily by motion, has been held by this court, to satisfy the requirement of separate notice, as envisaged by the rules and constitutes a sufficient notice. See: Odu v. Agbor-Hemeson (No. 2) (2003) 2 NWLR (Pt.804) 355. In Maigoro v. Garba (1999) 10 NWLR (Pt.624) 555 at 570-572. the Supreme Court, per Ejiwunmi (JSC) and Achike, JSC (of blessed memory), once more put to rest, provisions of Order 2 rule 9 (supra) will not derogate from the duty on this court to give consideration to the preliminary objection on its merit.”

However, in Agbaka v. Amadi (1998) 11 NWLR (pt. 572) 16, Ogwuegbu, JSC, puts the matter of the application of Order 3 rule 15(1) of this court which as I said in this judgment, is in pari material with Order 10 rule 1 (supra), so succinctly. He stated that, where the objection was incorporated and argued in the respondent’s brief and the brief was served (as, in this case), on the appellant who had the opportunity to re-act to it, it would be stretching, Order 3 rule 15 (supra) too far to insist on filing of a separate notice.

It is pertinent to note that in the instance appeal, the appellant was served with the respondent’s brief of argument filed on 30th October, 2007. He filed his reply brief on 2nd November, 2007. The appeal came up for hearing on 5th November, 2007, over 4 days after the notice of preliminary objection. The appellant therefore, was given enough opportunity to re-act to it and infact he did. For the appellant to insist on the filing of a separate notice means he is stretching order 10 rules 1 (supra) far. See Okolo v. Union Bank of Nig. Plc (2004) 3 NWLR (Pt.859) 87, where Uthman Mohammed, JSC, had this to say at page 24 lines 10-16 of the report as follows:

“With respect to the learned Justices, the respondent had raised the preliminary objection in the respondent’s brief and the learned counsel for the appellant had treated the issue in the plaintiff/appellants’ reply brief.

The court of Appeal is therefore wrong to say that the respondent did not comply with the provisions of Order 3 rule 15(1) of the Court of Appeal Rules.”

In the circumstances, and guided by the above authorities, I hold that the objection raised and incorporated in the respondent’s brief is competent. The objection raised by the appellants’ counsel for non-compliance with Order 10 rule 1 (supra) is overruled.

Now on the merits of the preliminary objection. In support of preliminary objection, the respondent’s counsel submitted that the appeal is merely an academic exercise which will serve no useful purpose since the election which the 1st appellant want to be allowed to contest has been conducted and as such there is no live issue to be determined in the appeal. Secondly, the appeal is against the decision of the trial court in a pre-election dispute in respect of which an election has already been conducted and the result of the said election is in dispute before the election tribunal exclusively seized of jurisdiction in elections dispute. The result of this appeal cannot nullify the election already held, as this appellate tribunal has no original jurisdiction over disputes as to the result of election. Reliance in support of this submission was made on: Agbakoba v. INEC & ors. (unreported. Appeal No.CA/E95/2007 delivered on 28/6/2007), and Odedo v. INEC & Ors. (unreported Appeal No.CA/E/97/2007, delivered on 12/7/2007).

In response, the appellants’ counsel submitted that it will not be out of place for the 1st appellant to seek this court’s determination on the judgment of the trial court which was given without jurisdiction especially when the respondent has gone to the election petition tribunal to ventilate his grievance for having not contested the said election.

Generally speaking, the court is not interested in determining academic questions, a favourable resolution of which would have no adverse effect on the decision of the lower court. See Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 478 at 500, B-C. So based on this authority, this court does not deal with or determine hypothetical or academic questions and will not, in this judgment deal with an appeal, which is academic.

Having gone through the record including the judgment of the trial court, I am of the view that the crux of the matter in this appeal, or the issue between the parties for the consideration of this court is, who is the candidate duly nominated and presented by 2nd appellant for election into the State Assembly to represent Nnewi South 2 constituency of Anambra State and whether there was a valid substitution of the respondent for the appellant. This is clearly a pre-election matter. The election into which this dispute arose has already been held and the result announced by INEC is presently being contested before the election petition tribunal. This appeal appears, as my learned brother, James Ogebe, JCA stated in Agbakoba v. INEC (supra) that “the mischief which the appeal seeks to avoid has already been done and this court cannot engaged in academic exercise to satisfy any party.” Courts follow well laid down principles, which must exist before any claim can be successfully sustained in a court of law. See A.-G., Anambra State v. A.-G., Federation (supra). Among such principle relevant to this appeal is that “courts are created to resolve disputes. It follows therefore that anyone coming before a court must show the existence of a dispute between him and the defendant in every action filed in court, and that he is not merely seeking for an answer to hypothetical or academic questions or an opinion on a matter in which there is yet no dispute.”

See Olaniyi v. Aroyehun (1991) 5 NWLR (Pt.194) 652 and A.-G., Fed. v. A.-G., Abia State (No.2) (2002) 6 NWLR (pt.764) 542. Having stated the above, it is my view, in line with the above decisions that this appeal is merely academic exercise because, it is going to be a theoretical making empty sound of no practical utilitarian value to the appellant even if judgment is given in his favour. The appeal, therefore having been found to be a mere academic exercise, is hereby struck out.

Assuming I am wrong I will now examine the appeal on its merit.

Looking at the issues as formulated by counsel to the parties in this appeal, it is very clear that the appellant’s issue and the respondent’s issues are substantially the same. Therefore, I adopt appellants’ issues, as they are sufficient to dispose of the appeal.

Issues 1 & 2:

These two issues were argued together. The complaints of the appellants under these issues are non-payment of filing fees and denial to raise objection vivo-voce on non-payment of the filing fees.

In their joint brief of argument, it was submitted that the respondent did not pay filing fees for the originating summons, while payment of filing fees is a condition precedent to the competence of the document to be used in court. Reliance was made on Fada & Ors. v. Maman Naomi (2002) 4 NWLR (Pt.757) 318.

On denial to oppose orally the said document on non-payment, it was submitted that it was for the trial court to refuse and/or decline to entertain their complain on non-payment of fees, and that, had the trial court heard them a while, it would have come to the conclusion that the action is incompetent. It was further submitted that the fee endorsed on the originating summons does not include the originating summons itself but only oath, mileages and annexures.

In response, it was submitted on behalf of the respondent that the fee payable in a suit depends on the subject matter and not on the number of plaintiffs upon which the appellant appear to base their argument on non-payment of fees. It was further submitted that the sum total of N440.00 paid, was paid pursuant to court’s order. That the assessment and collection of filing fees are the sole responsibilities of the registrar of the trial court, and the litigant plays no part. It was further submitted that non-payment of filing fees does not raise the issue of jurisdiction but merely an irregularity. Reliance was made on: A.B.C. v. Henshaw (1990) 1 NWLR (Pt.129) 646, and Eke v. Eluwa (2000) 14 NWLR (Pt.688) 560 at 562 para. 5 to support this contention.

On failure of the trial court to entertain the appellants’ objection viva-voce, it submitted that the appellants’ counsel merely asks for leave to raise the objection on non-payment of fees at the conclusion of argument and when the case was to be adjourned for judgment.

Issue 3:

This issue seems to have been complaining about evaluation of the evidence by the trial court.

Under this issue, it was submitted that the trial court was wrong to have decided that there was no cogent and verifiable reasons presented for substitution without showing clearly how it reached that decision. If the court believes on a state of affairs, then the said court must give reasons as the basis for that belief.

For the respondent, it was submitted that evaluation of evidence and ascription of probative values to it is within the jurisdiction of the trial court and its findings will not be upset by an appellate court unless it is shown that the trial court took irrelevant matters into consideration or omitted to take relevant matters into consideration which led to a miscarriage of justice. The appellants, however, failed to fault the findings of the trial court in their submissions.

Issue 4:

This issue complains of non breach of fair hearing. It was submitted on behalf of the appellants that there was no breach of fair hearing against the respondent since nomination and sponsorship of a candidate to contest the election is the exclusive responsibilities of the political party concerned. It is not, therefore, a matter for which the respondent should be heard if the party wants substitution, and to hold otherwise, will mean that the 1st defendant will set up a panel and then delve into the veracity of the reasons given by the 2nd appellant. That the right or civil right enshrined under section 36(1) of the 1999 Constitution does not apply in the circumstance of this case to require INEC to conduct a trial where section 36 of the Constitution (supra) will dictate the pace of such inquiry will be contrary to the clear and unambiguous language of section 34(1) and (2) of the Electoral Act, 2006. Where the language of the constitution is clear and unambiguous, the court will give it the plain and evident meaning. Reliance was on A.-G., Bendel State v. A.-G., Fed (1982) 3 NCLR 1.

It was further submitted that section 34(1) and (2) of the Electoral Act (supra) contains nothing which will import the application of section 36 of Constitution (supra) and to hold otherwise, will mean that INEC will be saddled with the responsibility of conducting extensive hearing by inviting candidates in the process of nomination on a matter left to the domestic competence of the political party. Also, it is evident that section 36 of the constitution (supra) cannot bind the political patty to hold hearing on a matter which is within its exclusive domestic competence, likewise, INEC, which has no function in the supply of the reason for alternative, should not be made to hold such a hearing.

The term verifiable cannot rightly be construed to compel a hearing by INEC.

It was also submitted that verification is not the same as holding a hearing. That the case of Ararume, is not applicable in the circumstance of this case because in the Ararume’s case, no reason was given at all for the substitution whereas in this case reasons were supplied for substitution.

In response on behalf of the respondent, it was submitted that this issue No.4 is a non-issue in view of the Supreme Court’s decision in Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 367 at 380 para. 1. Before I go into the merits of this appeal, let me say that the facts of this case are unfortunate. It shows betrayal of the trust between a political party and its member. One of the parties to this appeal must be a shameless liar. Whatever may be the result of this appeal, the pangs of conscience of the liar must continue to prick him. I say no more.

Let me start with the first arm of this issue which is non-payment of filing fees in respect of originating summons as postulated in issues 1 and 2 of the appellants’ brief of argument.

By the provisions of the Rules of Federal High Court, 2000, no court process on which a fee is payable shall be issued unless and until the appropriate fee payable on the process has been paid. See Appendix 5, Regulation 1 of order 53 therein. In Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252 at 292, per Iguh, JSC (as he then was) “….A court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived, or remitted by the court or such fees are payable by any Government Ministry or non-ministerial Government Department or Local Government pursuant to the provisions of said High Court Rules.”

Supreme Court in the case of Okolo v. Union Bank of (Nig) Plc (2004) 3 NWLR (Pt.859) 87 cited the above decision with approval.

In Eke v. Eluwa (2000) 14 NWLR (Pt.688) 560 at 568, the Kaduna Division of this court, decided that question of payment of adequate or inadequate filing fees on documents for use in court does not raise an issue of jurisdiction. In A.C.B. v. Henshaw (1990) 1 NWLR (Pt.l29) 640 at 650, per G. Oguntade, JCA (as he then was) said:

“Even if the defendant/respondent had not paid the requisite courts fees, this was a matter to be settled before the lower court that the appropriate fee or shortfall be paid. It certainly has nothing to do with the jurisdiction of the lower court to entertain the counterclaim.”

As a matter of practice in Nigeria, the rules of trial court require that an application for a summons (writ or originating) be made by the plaintiff to the registrar and the registry will assess the necessary fees, which shall be paid by the applicant. The assessment is the sole responsibility of the registry of the trial court while the role of a litigant is to pay the fees assessed. The assessment, to be emphasis here is not a matter within the power of a litigant to control, but a domestic affair of registry of the trial court. It certainly would be a matter of grave injustice to a litigant who delivers his application for assessment and which application was assessed (rightly or wrongly) and pays whatever was assessed, if he is deemed not to have paid necessary fees merely for some undisclosed reasons, it was not possible for the registry to correctly assess the process. In this circumstance, a litigant, in my view, cannot be held responsible for every other failure attributable to the official negligence of the staff of the court. It would have been a different matter/case, if the originating summons and other processes were assessed but a litigant defaulted in paying for them. This is, in my, view, the authority for the preposition too that any wrong assessment on the part of the registry will not be fatal to any proceedings once an application is submitted to the registry for the issuance of the summons, and assessment.

In the instant case, even though the respondent failed to pay the appropriate filing fees for the originating summons, it was not through his fault, and in my view, this is a proper case where the exception prescribed under Regulation 1 of Appendix 5, of Order 53 rule 2 (supra) should be invoked if the process has been issued i.e. the appropriate order to validate the originating summons should be made. In exercise of the power of this court conferred by section 16 of the Federal Court of Appeal Act, 1976, I hereby order that the appropriate fee for the originating summons be paid by the respondent in the court registry of the trial court. This may, of course, depends on the final result of this appeal.

I shall deal with the second arm of the issue in this appeal. The appellant raised, in their brief, the issue of failure by the trial court to be entertained viva-voce on non-payment of filing fees. What would be the effect of the learned trial Judge’s refusal to hear the appellants’ objection need not bother us here in view of what I intend to state here. Suffice it to say that it is when a point on procedural irregularity is timeously and properly raised that it becomes necessary for an appeal court and indeed a trial court to consider its merit.

It has since been established by a plethora of authorities that the appropriate time at which a party to proceeding should raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. If the party sleeps on that right and allows the proceedings to continue on the irregularity to finality, then the party cannot be heard to complain, at the concluding stage of the proceedings or on appeal thereafter, that there was a procedural irregularity, which vitiated the proceedings. See: C.FA.O. v. The Onitsha Industries Ltd. (1932) 11 NLR 102 at 103; Adebayo & Ors. v. Chief Shonowo & Ors. (1969) 1 All NLR 176 at 190, Ezomo v. Oyakhire (1985) I NWLR (Pt.2) 195 at 202-203. The only exception to this general rule is that the party would be allowed to complain on appeal if it can show that it had suffered a miscarriage of justice by reason of the procedural irregularity.

In the present case, it is not in dispute that the originating summons under attack was issued on 16/4/2007. The appellants’ counsel asked the learned trial Judge on 27/4/2007 after addresses, to allow him to address the court orally on non-payment of filing fees. The learned trial Judge refused and adjourned for judgment.

See p. 619 of the record. It is on record that the 1st appellant filed his written address of his defence on 26/4/2007, so also his counter-affidavit against the respondent. The record shows that the 1st appellant was represented in this case on the following days.

1. 27/3/2007
2. 4/4/2007
3. 5/4/2007
4. 11/4/2007
5. 23/4/2007
6. 27/4/2007

In view of the above facts, I find no fault on the learned trial Judge when he refused to entertain the oral application opposing the respondent’s originating summons on non-payment of filing fees.

The issue was not raised timeously and properly for the court to entertain the appellants’ objection.

Having reached this decision, I hold that issues 1 and 2 together with their grounds of appeal failed and dismissed in favour of the respondent.

Issue 3:

The appellants’ complain under this issue is, whether on the facts disclosed in the affidavit (including counter affidavits) and documentary evidence (i.e. exhibits 1 and 2) put forward by the parties, the trial court was right in holding that there was no cogent and verifiable reason advanced for the purported substitution.

In the appellants’ brief of argument, it was submitted that in giving judgment for the respondent the trial court failed to properly evaluate the evidence tendered by the appellants.

I should say that evaluation of the evidence (mainly documentary) is not within the preserve of the trial Judge. Both the trial Judge and the appellate Judge have equal right to evaluate a documentary evidence. This is because, unlike oral evidence which an appellate Judge does not see, he sees like the trial Judge, the document as exhibited. Therefore, where finding of a trial Judge on documentary evidence is perverse an appellate Judge will easily see the perversion and employ his appellate powers to correct it. See Shell B.P Petroleum Dev. Co. of Nigeria v. H.H. Perecole & Ors. (1978) 3 SC 183.

In their submission, the appellant relied heavily on exhibits 1 and 2 attached to the 1st appellants counter affidavit.

It is necessary to recapitulate that this case was essentially predicated on submission arising from exhibits 1 and 2 which emanated from 2nd appellant.

From the two exhibits relied on by the appellants, it could be seen that they are apparently inconsistent in the sense that signatories are in contrast with each other. Exhibit 1 purportedly been signed by the National Chairman and National Secretary of the party, while exhibit 2 has been signed only by the National Chairman. There was no any evidence to show why it has only one signature of the Chairman instead of two signatories, Chairman and National Secretary.

By paragraph 7 and 16 of the 1st appellant counter-affidavit on pages 518-519 of the record, the 1st appellant averred that any letter from the party (2nd appellant) to be effective must be signed by both the National Chairman and National Secretary of the party. By this averment, one would not be in fault if he rejects exhibit 2 as ineffective or not written from the national office of the party. The conclusion then will be that exhibit 1, which has the signatures of the chairman and the National Secretary does not carry any reason for substitution.

Similarly exhibit 2, it is clear that the 2nd appellant stated therein as follows:

“…following the allegation of intimidation, unauthorized changes of delegates list, vote buying which resulted to the inconclusiveness of the party primaries of November 18, 2006, a panel was set up to conduct an extensive inquiry. The panel after an extensive inquiry and due to want of time to conduct another primary recommended that IKENNA AMECHI be the consensus PDP candidate for the above constituency. The purpose of this letter is to affirm that Ikenna Amechi is the party candidate for Nnewi South II Constituency, Anambra State.

Sgd.

Senator (Dr.) Amudu Ali, G.C.O.N.

National Chairman.”

When the above content of exhibit 2 is fully examined, it is of three paragraphs. The first paragraph discloses the reasons for the in conclusiveness of the primaries of 18th November 2006 conducted by the 2nd appellant. It also shows the reasons for the setting up a panel of inquiry to investigate those allegations named therein.

The second paragraph of exhibit 2 contains the “recommendation” of the panel that Mr. Ikenna Amaehi was the consensus candidate for the party in the said constituency. The paragraph of exhibit 2 contains the statement that, it is definitely true that Ikenna Amaechi was the true party’s candidate for Nnewi South II Constituency.

From the above analysis, it could be rightly concluded that there was no any cogent and verifiable reasons given for the substitution in exhibit 2.

The expression ‘cogent’ and ‘verifiable’ have been defined in the Shorter Oxford Dictionary. The former is stated to be, “constraining, powerful, forcible, having power to compel assent, convincing, while the latter expression, is defined as ‘that can be verified or proved to be true, authentic, accurate or real, capable of verification’. In Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 367 at 465, the Supreme Court, per Oguntade, JSC, said, the expression, “cogent and verifiable reasons” can only mean a reason self-demonstrating of its truth and which can be checked and found to be true. The truth in the reason given must be self evident and without any suggestion of untruth. The reason given must be demonstrably true on the face of it so as not to admit of any shred of uncertainty.

In the light of the above and given the fact that the 2nd appellant wrote to INEC saying that, Mr. Ikenna Amaechi “was recommended by the panel of inquiry as the consensus candidate for the party in the named constituency,” does not in my view, qualify to be a ‘cogent and verifiable reason’. The reason given for the substitution, therefore, is patently clear not cogent and verifiable and must be dismissed with a wave of the hand. The inevitable conclusion I reach here, is that there is no any cogent and verifiable reason given for the substitution to deprive the respondent of his right to contest as the candidate in Nnewi South II Constituency in Anambra State.

The substitution lacked the character required under section 34(2) of Electoral Act, 2006. Issue no.3 and its ground of appeal therefore lacked merit and are dismissed.

With the above reasons in mind, I hold that the decision of the trial court that no cogent and verifiable reason was given for substitution and the substitution was invalid and ineffective, is perfectly correct.

Issue 4:

Under this issue, it was the contention of the appellants’ counsel that since it was the political party itself that indicated the existence of anomaly in the primaries – vide exhibit 2 – by confessing that its system was ineffective and therefore flawed, the respondent is not entitled to be heard. It was further contended that section 34 of the Electoral Act, 2006 contains nothing, which will import, the application of section 36 of the 1999 Constitution of Nigeria with fair hearing. And to hold otherwise will mean that INEC will be saddled with the responsibility of conducting extensive hearing by inviting candidates in the process of nomination which is a matter left to the domestic competence of the political party. That the said section 36 of the Constitution cannot bind the political party to hold a hearing on a matter, which is within its exclusive domestic competence. It was finally contended that where no allegation was made against the person whose name was being altered, the necessity for such hearing cannot and should not arise. Reliance was made on Kurfi v. Mohammed (1993) 2 NWLR (Pt.277) 602 at 620 paras. E-F, and Ugwu v.Ararwne (2007) 12 NWLR (Pt. 1048) 367.

In response, the learned Senior Advocate of Nigeria, in the respondent’s brief submitted that this issue No.4 is a non-issue in view of the standing of the constitution to the laws of the country, because the Supreme Court in Ugwu v. Ararume (supra) at page 380 para. 1 stated that the Electoral Act and the Constitution of political parties must be seen to be complementing the constitution of the Federal Republic of Nigeria in formulating broader rules, regulations and operational mechanism for both INEC and the political parties for administrative convenience. Where any of such enactment, rules, or policy comes in conflict with any section of the Constitution, that enactment, rules, or policy must surrender to the Constitution. He finally urges this court to dismiss this appeal.

The crux of the appeal under this issue is whether in the process of substitution of the respondent for the 1st appellant, there was a breach of fair hearing and whether the fundamental right breach comes within the provisions of section 36 of the Constitution of Nigeria, 1999.

In the instant case, it is not in dispute that an Investigation Panel was set up to conduct an extensive inquiry with respect to certain prescribed allegations. Also from the contents of exhibit 2, the wrongs disclosed in exhibit 2 as having been committed by the perpetrator are:

(a) intimidation,

(b) unauthorised changes of delegates list, and

(c) votes buying, which result to the inconclusiveness of the party’s primaries of 18th November, 2006.

It was in respect of those found to have participated in the alleged wrong doings that the 2nd appellant decided to take and infact took a disciplinary action against the respondent.

From the facts and surrounding circumstances of this case, it is very clear that the respondent must be taken as having been participated in the alleged wrong activities. If so, was he heard by the investigation panel? It is very clear that there was nothing to show that the respondent ever been informed by the investigation panel of any such accusation against him, or was ever confronted with the witness who identified him as having participated in such wrongs. After the panel had possibly received evidence against the respondent and so identified him as among the perpetrators, he was never been invited to the Disciplinary Committee of the party and given a last chance to answer those serious allegations. It goes without saying that he did not infact know the full case that was made against him to engender his defence.

It is trite law that anybody or tribunal acting judicially in the determination of a decision that is likely to affect the civil lights and/or obligations of a person, be it administrative or judicial tribunal, is bound and enjoined to observe the rules of natural justice. See Adedeji v. Police Service Commission (1968) NMLR 102, Akibu v. Oduntan (2000) 13 NWLR (Pt.685) 446, and Kenan v. Tekam (2001) 14 NWLR (Pt.732) 12. Borrowing a leaf from the dictum of Eso, JSC (as he then was) on the demand of natural justice in Adigun v. A.-G. Oyo State (1987) 1 NWLR (Pt.53) 678-721 said, “Natural justice demands that a party must be heard before a case against him is determined. Even God (the Almighty) gave Adam (peace be upon him) an oral hearing despite the evidence supplied by his acts of covering his nakedness before the case against him …” (words in brackets are mine).

From the facts and surrounding circumstances of this case, it appears to me that the investigation panel, to which the 2nd appellant seemed to have delegated its powers of discipline found the defendant guilty of the wrongs alleged in exhibit 2, and on that findings, the 2nd appellant being satisfied with it, sent exhibit 2 to INEC for substitution of the respondent for the 1st appellant. The powers of the 2nd appellant to discipline the respondent was not put in evidence, but it is not in doubt that the act of substitution of the respondent amounted to an exercise of disciplinary power.

When the 2nd appellant assumed the disciplinary power under its constitution, it became a tribunal established by law acting in a quasi-judicial capacity. In the same vein, when it delegated its disciplinary power to the said investigation panel set up, that panel became a tribunal and is bound to observe all the rules of natural justice. In my view, however, when the panel undertook to investigate the alleged wrong acts, as in this case, and identify those involved, those who participated, and their rules and apportioned blame and recommend a suitable disciplinary action to be taken against them, the panel obviously was carrying out judicial functions.

Having assumed judicial functions, the panel became bound to pass the qualification test to assume the judicial functions and was bound to set judicially and must comply with the constitutional requirements of fair hearing. See Legal Practitioners Disciplinary Committee v. Gani Fawehinmi (1985) 2 NWLR (Pt.7) 300 at 305. The right to fair hearing in its full plenitute must carry with it the right to know the case and evidence preferred by one party against the other party. See Aiyetan v. NIFOR (1987) 3 NWLR (Pt.59) 48.

It is necessary also, after the investigation panel completed its investigation, each of such members against whom disciplinary action was contemplated must be informed of the available evidence against him. In the exercise of its disciplinary powers against the respondent, it is also necessary that the 2nd appellant must observe the principle of impartiality and fairness. There was nothing of the sort throughout the process, which led to the substitution in dispute.

Exhibit 2 emanated against the respondent, as well as behind his back and he has no opportunity of knowing what the Investigation Panel or the 2nd appellant said against him.

It is settled that the rules of natural justice entrenched in section 36(1) of the 1990 Constitution extends to any decision – maker who determines questions affecting the right or legitimate expectations of an individual. See Egwu v. University of Port Harcourt (1995) 8 NWLR (Pt.414) 419 and Obot v. Central Bank of Nigeria (1993) 8 NWLR (Pt.310) 140.

Basically, section 36(1) 1999 Constitution of Nigeria, provides that:

“In the determination of his civil right and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing, within a reasonable time by a court or tribunal established by law, and constituted in such manner as to secure its independence and impartiality.”

To constitute a fair hearing whether before the regular courts, tribunal or Inquiry Board, the person accused should know what is alleged against him and to react to it, and that evidence should not be given behind his back, See Garba v. Universiry of Maidugiri (1986) 2 S.C. 128; (1986) 1 NWLR (Pt.18) 550; Kanda v. Mil. Govt. of Malaya (1962) AC 332; and Hart v. Military Governor of Rivers State (1976) 11 S.C. 211.

Has the right of fair hearing of the respondent been breached?

It is manifest from the record of this appeal that he was not present when the investigation panel was carrying its investigation, he was not present when some witnesses testified, (if at all there was any), before the panel and that the respondent had no opportunity of knowing what the witnesses said against him, and worse of all the respondent was not even aware of the whole process leading to the substitution.

Once it is shown that there is an infringement of the principle of natural justice as enshrined in section 36(1) of the Constitution of Nigeria 1999, against a person, he needs to show nothing more. The finding that there is an infringement of the principle is sufficient to grant him remedy, See Adigun v. A.-G., Oyo State (supra). The breach of the constitutional right to a fair hearing in any trial or investigation and any decision taken thereon is a nullity. The decision must be declared to be no decision. See E.D. Tsokwa & Sons Ltd. v. C.F.A.O. Nig. Ltd. (1993) 5 NWLR (Pt.291) 120 at 128. Therefore, I am of the view that the respondent’s right to fair hearing enshrined under section 36(1) of the Constitution has been breached in the process of the substitution. The substitution recommended in exhibits 1 and 2 was in total violation of the respondent’s right to fair hearing as the said two exhibits, particularly exhibit 1, was not brought to his notice and was not even aware of the full case against him to engender his defence.

I think before I conclude this judgment, it is important that the point should be made that, by this decision in this appeal, we are not condoning the gross misconduct, if at all committed at any given time, by the respondent or any party member, nor are we curtailing the powers of political parties to deal effectively with any misconduct of its members. Rather, we are stressing that in dealing with members under such situation, the proper procedure ought to be followed with due regard to the provisions of the Constitution and other laws of the land. No political party has legal right to restrict or deny the fundamental rights of its members as enshrined in the Constitution.

For all the reasons above stated, and the authorities cited, issue No.4 in the appellant’s brief and the ground of appeal attached to it failed and are hereby dismissed.

The appeal therefore lacks merit and is hereby dismissed too.

The judgment of the trial court delivered on 27/4/2007 in suit No. FHC/EN/CS/O/2007 is hereby affirmed. The sum of N30, 000.00 as costs, in favour of the respondent is hereby awarded.

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Other Citations: (2008)LCN/2632(CA)