Hon. Chudi Offodile V. Chief O. C. Egwuatu & Ors (2005)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

This is an appeal against the decision of the National Assembly Election Tribunal, Awka made on 14th July, 2004 wherein the tribunal dismissed the appellant’s motion for an order to allow him to give evidence, call witnesses and recall witnesses of other parties for cross-examination in the consolidated petitions No. EPT/AN/NA/5/2003 and EPT/ AN/NA/1/2003 the appellant was the 5th respondent before the tribunal in EPT/AN/NA/5/2003. In the course of the proceedings the appellant secured an order at the Federal High Court, Enugu prohibiting the tribunal from continuing the hearing and determination of the petition suit No. EPT/AN/NA/5/2003. The tribunal, as a court of concurrent jurisdiction set aside the order of prohibition made by the Federal High Court as a nullity. The tribunal thereafter continued hearing and determination of the consolidated petition. The appellant was in court when the tribunal made this order. He made no move to appeal against the order of the tribunal setting aside the order of prohibition, but thereafter decided to stay away from the proceedings of the tribunal thereafter.

Regardless of the fact that the tribunal had categorically pronounced that the prohibitive order given by the Federal High Court to stop the tribunal from further hearing in the petition was done without jurisdictions. The Court of Appeal confirmed this stand of the tribunal on appeal. The appellant appealed against the judgment of the Court of Appeal to the Supreme Court. He also filed a motion to stay execution of the decision of the Court of Appeal. Meanwhile, and in the circumstance prevailing, the appellant brought this application before the tribunal to allow him to give evidence, call witnesses and re-call witnesses for cross-examination. The appellant filed this application after completion of evidence in EPT/AN/NA/1/2003 and EPT/AN/NA/5/2003 was nearing completion save for the evidence of the 9th respondent. The application was to allow the appellant to recall seventeen witnesses. The appellant opposed the deconsolidation of the petitions. The tribunal in its considered ruling dismissed the application. Being dissatisfied with the decision of the tribunal, the appellant appealed to this court. Parties exchanged briefs. The appeal was argued on the appellant’s brief filed 25/8/04, appellant’s reply brief filed 1/12/04 and the respondents’ brief deemed filed 15/2/05. In the appellant’s brief, only one single issue was distilled for determination as follows:-

“Whether the tribunal was right to have dismissed the application dated 17/6/04?”.

The respondent in the brief adopted the sole issue for determination formulated by the appellant.

In the argument in favour of this issue the appellant outlined the reasons relied upon by the tribunal to refuse the application and dismissed them as lacking in merit as the correct position of the law now is that an order of court is valid until set aside. It is therefore wrong of the tribunal to hold that the judgment of the Federal High Court in suit No. FHC/EN/CS/220/2003 is void ab initio and treat it as such. A court can only set aside a judgment, which is a nullity ex debito justitiae. but this must be effected by a motion or an application invariably by the party or parties affected by the order. There was no motion before the tribunal to set aside the order of the Federal

High Court, but the tribunal did so suo motu without hearing the parties. The appellant further argued that the appellant decided to obey the order of court by staying away from the proceedings of the tribunal because until the order is set aside, it is binding on him as well as the tribunal. The tribunal was wrong to hold that the appellant could not open his case because parties have concluded their evidence, though trial had not been concluded and he could still be accommodated in the interest of fair hearing. It is extremely untenable in law for the tribunal to use his opposition to deconsolidation as his basis for refusing his application as the tribunal could rule on the issue of deconsolidation in the interest of justice. The application was neither meant to be an abuse of court process nor meant to delay or frustrate the proceedings at the tribunal because, as at the time the application was brought, the hearing in the petition had not been concluded and there was opportunity for the appellant to give evidence and call witnesses. The petition has not been adjourned for judgment. The applicant cited the cases of – Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314 at 339; Babatunde v. Olatunji (2000) 2 NWLR (Pt.646) 557 at 568, Nwangwu v. Ofoegbu (2003) 7 NWLR (Pt. 820) 496 at 513, A.-G., Federation v. ANPP (2003) 18 NWLR (Pt. 851) 182, Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550, Daggash v. Bulama (2004) 14 NWLR (Pt.892) 144 at 191 amongst others in support of his application.

The respondents however urged this court to dismiss this appeal and see it as a means employed by the appellant to frustrate the hearing of the petitions that touch on the Federal House of Representatives, seat which carries a four year term of which the appellant had already spent one and half years. The reasons are that:-

(1) The application brought by the appellant did not disclose sufficient facts on why the witnesses should be recalled and what the appellant intend to put to the witnesses.

(2) The application was bereft of the necessary ingredients, which can persuade the tribunal to exercise its discretion in favour of the appellant.

(3) The appellant exercised his option not to participate in the proceedings and deliberately refused to avail himself of the opportunity given by the tribunal for him to be heard.

(4) The application was an abuse of the tribunal process.

(5) The appellant deliberately intend to delay the proceedings to his advantage as he was enjoying a seat at the Federal House.

(6) The appellant has not provided sufficient materials in his application to enable the tribunal grant the order for re-call of witnesses, and the application has not been brought in good faith.