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.

While elaborating on the foregoing, the respondents cited the cases of Alabi v. Alao (1989) 5 SCNJ 1 at 15, Babatunde v. Olatunji (2000) 2 NWLR (Pt. 646) 557 at 568; Folbod Investment Ltd. v. Alpha Merchant Bank Ltd. (1996) 10 NWLR (Pt. 478) 344 at 349, Jonason Triangles Ltd v. CM & P Ltd. (2002) 15 NWLR (Pt.789) 176 at 193 -194; Madumma v. Jambo (2001) 15 NWLR (Pt.736) 461 at 476, Ndigwe v.Nwude (1999) 11NWLR (Pt. 626) 314 at 339, Okosun v. CBN (1996) 2 NWLR (Pt. 428) 77 at 88, Zekeri v. Alhassan (2002) 14 NWLR (Pt. 786) 52 at 74.

I have carefully considered the submission of the parties. I find it convenient to consider the issues involved in this appeal by first and foremost examining the status of the National Assembly Election Petition Tribunal, Awka and the Federal High Court, Enugu which made the order prohibiting the tribunal at Awka from continuing the hearing and determination of the petition No. EPT/AN/NA/5/2003.

The Federal High Court was set up by section 251 of the 1999 Constitution, and the tribunal by section 285 of the 1999 Constitution. Both are creations of the 1999 Constitution. Each has its jurisdiction specifically defined under the section. Section 251 of the Constitution creates no supervisory jurisdiction over the tribunal defined in it. Both courts apply the Federal High Court (Civil Procedure) Rules. Both courts directly appeal to the Court of Appeal. In effect, there is no constitutional provision or statutory provisions giving the Federal High Court a superior status over and above an Election Petition Tribunal. The Election Petition Tribunal Awka was right to hold that the order of prohibition made by the Federal High Court in suit No. EPT/AN/NA/5/2003 was made ultra vires its jurisdiction. The order having been made by a court of concurrent jurisdiction was set aside by the tribunal. The tribunal went on appeal to the Court of Appeal, Enugu for an opinion of this issue and the opinion of tribunal was rightly confirmed, vide suit No. CA/E/6/2004.

It is settled Law that an order of court which is made without jurisdiction can be set aside ex debito justitiae by the court who made the order or a court of concurrent jurisdiction – Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203, Igwe v. Kalu (2002) 14 NWLR (Pt. 787) 435, Olorunfemi v. Asho (2000) 2 NWLR (Pt. 643) 143; Ogueze v. Ojiako (1962) 1 SCNLR 112.

Ordinarily and except in certain defined and specified circumstances, no court of concurrent jurisdiction has the power or the jurisdiction to review or set aside an order made by another court or Judge of concurrent jurisdiction, as once a judgment is pronounced and enrolled, the court becomes functus officio – Igwe v. Kalu (2002) 14 NWLR (Pt. 787) 435; Oboroh v. Oghuvwu (2000) 3 NWLR (Pt. 647) 120, Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501.

It is the contention of the appellant that the tribunal is very wrong to have purportedly set aside the order of the Federal High Court because it is not the court that made the order and further more that there was no application before it to set aside the said order and was therefore wrong for it to do so without hearing the parties. The appellant relied on the case of Babatunde v. Olatunji (2000) 2 NWLR (Pt.646) 557 at 568.

I do not consider it necessary to re-open this issue or even dare to make any order to contradict the Court of Appeal’s pronouncement in suit No. CA/E/6/2004 where the prohibition order made by the Federal High court was considered and declared a nullity as the court lacked the jurisdiction to make such pronouncement. The court was thereupon directed to take necessary action on the petition duly filed before it. The tribunal meanwhile having declared that the Federal High Court had no jurisdiction over its proceeding had rightly continued with the hearing of the petition. It would have constituted the greatest injustice to the petitioner or against public policy to delay trial in the suit because of an order, which was void ab initio.

The tribunal had to avert its mind to the peculiar attribute of election petitions more particularly that, more than anything, time is of essence – Orubu v. NEC (1988) 5 NWLR (Pt. 94) 323 at 347, Abdullahi v. Elayo (1993) 1 NWLR (Pt. 268) 171 at 179; Buhari v. Yusufu (2003) 14 NWLR (Pt. 841) 446. The appellant complained that he was denied the opportunity to recall witnesses when the petitions have not been adjourned for judgment. I have already stressed the need to dispose of election petitions speedily. The appellant sees the refusal of the application as denial of fair hearing as he was denied the opportunity of being heard.

It has been settled in a number of decisions that a hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his witnesses or call evidence Military Governor of Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490) 675.

The right of fair hearing is a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria, 1999, and a breach of it particularly in trials, vitiates such proceedings rendering same null and void – Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt. 200) 659 at 678 – 679; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290.

I have to look into the circumstance prevailing when the application was heard and refused so as to determine whether he was actually deprived of his constitutional right, which he has the right to guard jealously. At the time the tribunal made the order setting aside the order of prohibition counsel for the appellant was in court.

There was no appeal against the order of the tribunal. The appellant stopped appearing before the tribunal while he pursued an appeal against the judgment of the Court of Appeal to the Supreme Court. The tribunal, in short gave adequate warning to the appellant that it would continue with hearing of the petition, which the appellant disregarded. The appellant abandoned the tribunal and did not show up for any subsequent hearing of the tribunal. The appellant is a party in the petition No. EPT/AN/NA/5/2003 that was consolidated with EPT/AN/NA/1/2003 in which he is not a party. The appellant did not appear to give evidence as the 5th respondent in the petition No. EPT/AN/NA/5/2003. The tribunal finished hearing of evidence in that petition and went over to the other petition. The petitioner and the respondents have given their evidence except the 9th respondent, when the appellant re-appeared before the tribunal with the current application. There were seventeen witnesses to be re-called if the application had been granted. This is a situation where the appellant opted not to appear before the tribunal as a matter of choice as he was present in court when the tribunal announced that it would continue with the hearing of the petition. Against this background, the appellant is complaining about breach of fair hearing when the tribunal refused his application to recall witnesses. I shall not hesitate to invoke the dictum of the Supreme Court in the case of Folbod Investment Ltd. v. Alpha Merchant Bank Ltd. (1996) 10 NWLR (Pt. 478) 344 at 349 that –

“Although a litigant should not be deprived of an opportunity of a hearing, yet a litigant who by misjudgment or deliberate decision does not avail himself of the opportunity of a hearing cannot complain”.

Also in the case of S & D Construction Company v. Chief Bayo Ayoku & Anor. (2003) 5 NWLR (Pt. 813) 278 at 286 it was held that:

“Where in the course of hearing, a party had the opportunity to present his case but failed to utilise the opportunity afforded him to ventilate his case, he cannot thereafter blame his adversary or the court for his failure as he had been afforded a fair hearing”.

I hold that the tribunal afforded the appellant ample opportunity to defend the petition; he failed to make use of same. The appellant allowed himself to be blinded by technicalities in the pursuit of justice. The mere fact that he held on tenaciously that cases must be consolidated where he had no direct interest cannot but be interpreted as a ploy to delay hearing in the petitions. The way and manner he conducted his case, particularly bearing in mind that it is an election petition where the issue of hearing must be granted priority, one cannot but conclude that the steps taken by the appellant in the conduct of his case is an abuse of court process. I cannot but emphasise also that granting of this application is an exercise of judicial discretion of the tribunal or court, which has to be done judicially and judiciously. In the case of Green v. Green (1987) 3 NWLR (Pt.61) 480 the court gave a reminder that when a suit is filed, the trial court becomes duminus litis, and he assumes the duty and responsibility to ensure that the proceedings agree with the Justice of the case. The tribunal has the discretion to regulate and conduct hearing in the matters before it and in this task it cannot be subject to the whims and caprices of a litigant.

Finally, the attitude of the appellate court to the exercise of discretion by the trial court is properly expressed in the case of Jonason Triangles Ltd. v. CM & P Ltd. (2002) 15 NWLR (Pt. 789) 176 at 193-194 where it was held that:

“It must be remembered that it is part of the duty of a Judge to see that everything is done to facilitate the hearing of an action pending before him. In so doing, he has to exercise his discretionary power, which undoubtedly belongs to the trial Judge. The exercise of this discretionary power to facilitate the hearing of the action pending before him may however be challenged on appeal. But it is a settled principle that a Court of Appeal has to be very slow indeed to interfere with the discretion of a trial Judge”.

The grounds or reasons for interfering with any judgment or order based on the discretion of court are well and properly specified in a plethora of cases as follows:-

(a) Where the trial court acted under a misconception of the law.

(b) Misapprehension of the facts in that it gave weight to irrelevant or unproved matters.

(c) Where it omitted to take into account matters that are relevant.

(d) Where the discretion is exercised on wrong or inadequate materials.

(e) Where it is in the interest of justice to interfere to prevent miscarriage of justice. Odutola v. Lawal (2002) 1 NWLR (Pt.749) 633; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143, UBN Plc. v. Sparkling Breweries Ltd. (1997) 5 NWLR (Pt. 505) 344; Ogar v. James (2001) 10 NWLR (Pt. 722) 621.

None of the foregoing factors is applicable to the exercise of the discretion of the tribunal in the instant application.

This court therefore has no reason to interfere with the ruling of the lower tribunal. The appeal lacks merit and it is dismissed accordingly. The ruling of the trial tribunal is affirmed. N5,000 costs against the appellant in favour of the respondents.

Other Citations: (2005)LCN/1691(CA)