Okafor Okoreaffia & Anor. V. Hon. Agwu U. Agwu & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Governorship and Legislative Houses Election Tribunal, sitting at Umuahia, Abia State, delivered on the 14th day of November, 2008. The Tribunal gave judgment in favour of the Respondents as the winner of the election held on the 14th April, 2007 into the Abia State House of Assembly for the Arochukwu State Constituency.

The facts that led to this appeal are as follows:

The 1st Appellant contested the election to the Abia State House of Assembly for the Arochukwu State Constituency held on the 14th day of April 2007 on the platform of the Peoples Democratic Party (PDP) while the 1st Respondent contested on the platform of the Progressive Peoples Party (PPA). There were other candidates on the ballot.

The Independent National Electoral Commission (INEC) sued herein as the 2nd-176th Respondents announced the 1st Respondent winner of the election with a total votes of 2,388 votes while the 1st Appellant was ascribed with 460 votes.

The Appellants were aggrieved by the announced result and as Petitioners filed a petition before the Tribunal on the 14th day of May 2007 challenging the announcement of the 1st Respondent by the Independent National Electoral Commission (INEC) as the winner of the election aforesaid.

The grounds for the petition were two in number as stated in paragraph 8 of the petition to wit:

“(i) That the 1st Respondent did not win the majority of lawful valid votes

(ii) That the declaration, election or return of the 1st Respondent is invalid by reason of corrupt practices and non-compliance with provisions of the Electoral Act 2006 as amended.”

The Appellants by Notice of Appeal dated the 1st day of December, 2008 and filed on the 3rd day of December, 2008, which can be found at pages 935-958 of the record challenged the judgment delivered by the Tribunal on the 14th day of November, 2008 dismissing their petition. The judgment is at pages 889-933 of the record. The Appellant’s brief dated 16/1/09 settled by N. U. Nwokocha-Ahaaiwe Esq was filed on 19/1/09. The 1st Respondent’ brief dated 5/3/09 settled by O. A. Obianwu Esq SAN was filed on 6/3/09. The 2nd-176th Respondents’ brief dated 4/3/09 settled by Chidozie Ogunji Esq was filed on 6/3/09. At the hearing of the appeal on 28/9/10, the Appellant’s counsel argued that the two sets of Respondents’ briefs were filed outside the time allowed by the rules of court and are incompetent and thus legally there is no Respondents’ brief before the court in accordance with Order 17 r 10 of the Court of Appeal Rules. Counsel also submitted that the 1st Respondent’s issues 1 & 2 are incompetent being derived from several grounds of appeal. It was also submitted that the 2nd-176th Respondents did not distill their issues from any of the grounds of appeal. In reply, learned senior counsel for the 1st Respondent argued that Order 17 r 5 & 9 of the Court of Appeal Rules, the Appellant must filed reply brief if he wishes to take issue with the Respondents’ brief. He submitted that all the arguments not supported by any brief of argument are untenable and must be discountenanced. He argued that the issues raised tantamount to laying ambush on the Respondents and is a breach of their right to fair hearing. Learned counsel for the 2nd-176th Respondents submitted that Order 19 r 5)1) enjoins a party seeking to strike out any process to file an application stating the grounds for such prayer.

Now, Order 19 r 5(1) provided as follows:

“5(1) An application to strike out or set aside for non-compliance with these Rules, or any other irregularity arising from the Rules of Practice and Procedure in this court, any proceedings or any document, judgment or order therein shall only be entertained by the court if it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”

I strongly feel that in the circumstances of this case, being an election matter, the Appellant should have made a timeous application to court praying the court to strike out the Respondents’ brief for being filed out of time. Having failed to do so and thus taking the Respondents’ by surprise, their complaints cannot be countenanced. I think this is an instance in which this court will call in aid its powers under Order 19 r(2) & (3) to depart from the rules and grant waiver in respect of any non-compliance on the part of the Respondents. No useful purpose would be served and time would be wasted in insisting that the Respondents seek for extension of time etc to refile their papers. Time is of essence. Counsel for the 1st Respondent O. A. Obianwu Esq. SAN and counsel for the 2nd-176th Respondents Chidozie Ogunji Esq. both raised and argued notices of preliminary objection in their respective briefs. It is the duty of the court to determine the competence of an appeal immediately the issue is raised by the Respondents. See MKPEN TIZA v. IORAKPEN BEGHA (2005) 5 SCNJ 168. Therefore, I will do so instantly.

At the hearing of the appeal, the 1st Respondent withdrew grounds 1 and 3 of the grounds of objection and adopted only the arguments in respect of the 2nd ground of objection. The 2nd ground of objection is that Grounds 1-16 in the notice of appeal are altogether prolix, narrative and argumentative contrary to Order 6 r 3 of the Court of Appeal Rules. Counsel urged us to strike out all the grounds of appeal and relied on the following cases. See CBN v. OKOJIE (2002) 8 NWLR Pt. 768 Pg. 48 at Pg. 61; AGBARA v. AMADI (1998) 11 NWLR Pt. 572 Pg. 16; CCB v. NWOKOCHA (1998) 9 NWLR Pt. 564 Pg. 98; KHALIL v. YAR’ADUA (2003) 16 NWLR Pt. 847 Pg. 446 at 478-479; OGE v. EDE (1995) 3 NWLR Pt. 385 Pg. 564 AT Pg. 577 and also the cases of BANK OF CREDIT & COMMERCE INTERNATIONAL v. STEPHENS INDUSTRIES LTD. (1992) 3 NWLR Pt. 232 Pg. 772; GIWA-AMU v. GUARDIAN NEWSPAPERS LTD. (1999) 8 NWLR Pt. 616 Pg. 568; AKUCHIE v. NWAMADI (1992) 8 NWLR Pt. 258 Pg. 138; IDAAYOR v. TIGIDAM (1995) 2 NWLR Pt. 377 Pg. 359.