Eze Uchechukwu Solomon V. Ihim Iheanacho Celestine & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the Ruling of the Election petition Tribunal Owerri, presided over by Hon; Justice Umeokoyo E. Essang (Chairman), Hon. Justice A. M. Yakubu and Hon. Justice A. O. Salihu (members) delivered on 26th September, 2011.

On Monday 15th August 2011, the petition came up at the Tribunal for hearing of the application and commencement of the pre-hearing session. The Petitioner (now Appellant) and his counsel were absent at the Tribunal without any letter or information explaining their absence. The 1st and 2nd Respondents counsel were both at the Tribunal and both applied for the dismissal of the petition. The Tribunal invoked the provisions of paragraph 18 (11) (a) of the First schedule to the Electoral Act, 2010 as amended and dismissed the petition. The petitioner (now Appellant) filed a motion on 19/8/2011 seeking to set aside the order of the Tribunal made on 15/8/2011 dismissing the petition and to relist the petition in the cause list. The Tribunal in a considered Ruling delivered on 26/9/2011 dismissed the said motion. This appeal is the subject matter of the Tribunal’s Ruling of 26/9/2011.

The Appellant formulated four issues, namely:

1. Whether the Lower Tribunal was right in declining jurisdiction to set aside their earlier judgment dismissing the petition pursuant to paragraph 18 (11) (a) of the First schedule to the Electoral Act 2010 (as amended).
2. Whether the Lower Tribunal was right in holding that the Counter Affidavit deposed to by Barrister Ugochukwu Enyinnaya Chionye who is a legal practitioner in the petition and not a party (litigant) in the election petition was competent.
3. Whether by the provisions of paragraph 18 (11) (a) the Lower Tribunal was “functus officio” once it makes an order of dismissal and denied itself of the jurisdiction to set aside the order and whether it is not discriminatory unfair and unjust to hold that the said paragraph only availed a Respondent and not a petitioner.
4. Whether the Lower Tribunal was right in holding that the petitioner cannot be heard to complain that he was not aware of the date his case came up when in fact his assertions that he was misled by the Tribunal secretary stood alone, unchallenged and uncontradicted.

The 1st and 2nd Respondents on the other hand formulated two issues, namely

1. Whether by the combined effect of the provisions of paragraph 18(3) (4) (5) and 18 (11) (a) (b) (12) (13) of the First schedule to the Electoral Act 2010 as amended a petition dismissed as an abandoned petition or dismissed as a result of the failure of the petitioner and his counsel to attend the pre-hearing session can be re-listed.
2. Whether the petitioner can avail himself of the provisions of paragraph 18 (12) (13), to set aside an order dismissing his petition for failure to attend the pre-hearing session.

In this appeal, it is pertinent to point out that the complaint of the appellant is in respect of the refusal of the Lower -Tribunal to set aside the Ruling in which it dismissed the petition. The present appeal, perhaps unfortunately is not against the Ruling in which the petition itself was dismissed.

The above distinction between the two Rulings rendered by the Lower Tribunal is important. The consequence being that this appeal is limited to the rightness or otherwise of the Ruling of 26/9/2011 wherein the Tribunal refused to set aside its previous Ruling dismissing the petition. By this observation, any or all of the legal or factual circumstances leading to the dismissal of the Appellant’s petition are irrelevant and of no moment to the consideration of this appeal. Grounds 1 and 3 of the Appellant’s Notice and Ground of Appeal and issues 2 and 4 consequent thereon were not based on the Ruling of 26/9/2011 and are accordingly struck out. The real and sole issue that i consider relevant in this appeal is as stated in Appellant’s Issue No. 1.

“Whether the Lower Tribunal was right in declining jurisdiction to set aside their earlier judgment dismissing the petition pursuant to paragraph 18 (11) (a) of the First Schedule to the Electoral Act 2010 (as amended).”

In the absence of any appeal of the Appellant on the first ruling of the court in which the petition itself was dismissed, the obvious and only answer to the sole issue for determination in this appeal is in the affirmative. In other words, the Lower Tribunal was indeed right in declining jurisdiction to set aside their earlier judgment dismissing the petition pursuant to paragraph 18(11) (a) of the First Schedule to the Electoral Act 2010 (as amended).

In my opinion, the provision of paragraph 18 (12) of the First schedule to the Electoral Act dealing with setting aside can only apply to the situation of a Respondent who judgment has been entered against under the provision of paragraph 18 (11) (b) and does not apply, to a petition dismissed under paragraph 18 (11) (a) of the First Schedule.

The provision of paragraph 18 (11) and (12) of the first schedule to the Electoral Act 2010 as amended are in pari materia to the provision of paragraph 3 (11) and (12) of the Election Tribunal and Court Practice Directions 2007 which was authoritatively interpreted by the court of Appeal in the case of ANPP VS R.E.C. AKWA IBOM STATE & ORS (2008) 8 NWLR (Pt.1090) 453 at 523. In that case, Saulawa, JCA who read the lead judgment of a full court of the Court of Appeal had this to say at pages 522 – 523

“In order to fully comprehend and appreciate the intendment of the provisions of paragraph 3 (12) (supra) both sub-paragraph 3 (11) (supra) have been reproduced in verbatim above. Firstly, a calm but dispassionately critical appraisal of the said paragraph 3 (11) (supra) would reveal that paragraph 3(11) (a) relates to a situation whereby a petition is dismissed on ground of a petitioner’s non attendance (non appearance), disobedience, or un-preparedness to participate in the pre-hearing session. Thus, it affects only the petitioner. The Tribunal simply delivers a ruling (and not judgment) dismissing the petition, in limine. This is so because it would be unjust to the respondent to determine the petition in the absence of the petitioner.The present case falls within this category.

Secondly, paragraph 3 (11) (b) (supra), on the other hand envisages a situation where by the respondent happens to be the defaulting or recalcitrant party. Justice demands that the petitioner shall be entitled to judgment in limine. This is akin to what is generally known in the Civil Procedure Rules and practice of the High courts as judgment in default of appearance or default judgment, for short. See order 15 rule 11 of the Federal High Court (Civil Procedure) Rules (supra. Civil Procedure in Nigeria by Fidelis Nwadialo, SAN, 1990 at page 372.

It is rather obvious that paragraph 3 (12) (supra) applied only to a situation whereby a judgment is entered against a defaulting respondent as expressly provided in paragraph 3 (11) (b) (supra). That is to say, paragraph 3 (12) (supra) does not apply to the present case which falls within the first category i.e. paragraph 3 (11) (a) supra. This is obviously so, because the petition having been dismissed in pursuant to the said paragraph 3 (11) (a) supra, the tribunal has become functus officio, thus lacking the vires or power to set aside the order of dismissal, talkless of relisting the dismissed petition in question.”