Hon. Chukwumaeze M. Nzeribe V. Barrister Vitalis C. Okafor & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI J.C.A (Delivering the Lead Ruling)

The Applicant herein who was respondent in appeal No CA/E/EPT/57/2008 which was heard by this court and judgment delivered on 9/7/09 while the 1st respondent herein was the appellant in the said appeal. The 2nd to 4th Respondents are INEC and its officials who conducted the election which gave rise to the appeal mentioned above. On the 7th day of July, the applicant herein, filed a motion on notice dated same day before this court seeking the under mentioned reliefs.

(a) An order of court disqualifying Hon. Justice Olu Ariwoola from presiding over the Motion on Notice dated and filed on the 17th day of July 2010 by OSUAGWU UGOCHUKWU Esq. of Victory and Rose Associates in that he cannot preside over his own judgment that is sought to be set aside.

(b) An order of this Honourable Court constituting a full panel of Justices of Court of Appeal to hear and determine the said motion on notice such that it raises substantial constitutional issues.

(c) And any other order or orders that the court may deem fit to make in the circumstance.

The motion is supported by a seven paragraph affidavit sworn to by the applicant himself. When served with a copy of the motion, the learned counsel for the 1st Respondent opposed the application by filing a 19 paragraph counter affidavit on 12th July 2010 dated same day. Some of the relevant averments in the affidavit supporting the motion are set out below.

Paragraph –

“2. That there was a judgment in this Suit wherein I was the Respondent which was written and read by HON. JUSTICE OLUKAYODE ARIWOOLA JCA delivered on 9th day of July 2009.

3. That I was dissatisfied with the said judgment and engaged the services of Victory & Rose Associates, a law firm, to file a motion on Notice to set aside judgment and which motion on notice is dated and filed 17th day of July 2010.
4. That Hon Justice Olukayode Ariwoola JCA who wrote and read the said judgment can not be heard or seen to preside over the Motion on Notice to set aside his own judgment and he cannot possibly be a judge in his own cause
5. That my counsel informed me and I verily believe him that the motion on notice bothers on substantial constitutional issues and which requires a full panel of Justices of court of Appeal”

The learned counsel for the 1st respondent responded to the averments in the supporting affidavit set out supra by also making the averments below in his counter affidavit. These include-

Paragraphs –

7. That on 2-6-2010 O. Anumuonye Esq for the Applicant applied for an adjournment as he informed the court that he was not aware of the days fixture and the matter was then adjourned to 28-6-2010.
8. That on 28-6-2010 O. Anumonye Esq. appeared for the Applicant JTU Nnodum SAN for the 1st Respondent while Osaze Uzzi Esq was for the 2nd to 4th Respondents.
9. That the motion was fully argued on this date by counsel for each of the parties before the ruling was reserved for a date to be communicated to the parties or their counsel, with Ariwoola, Aboki and Lokulo-Sodipe JJCA as coram
10. That the applicant’s counsel did not raise any objection to the composition of the panel of the court that, was about to hear his application.
11. That on 30-6-2010 one of the counsel in our chambers received a telephone call from the registry of the Honourable Registry of the Honourable Court informing him that the ruling on the motion argued on 28-6-2010 would be read on 1-7-2010, and there was not enough time to serve hearing notice on the learned SAN.
12. That on 1-7-2010, the Applicant’s Counsel (O Anumuonye Esq) who was in court when the matter was called up for ruling informed the court, that he did not receive any notice of the ruling and consequently this motion was adjourned to 12-7-2010 for ruling.
13. That on Friday 9-2-2010 at about 4pm our law firm was served with Motion on Notice dated 7/7/2010 and filed the same sate praying this Honourable Court amonth other reliefs, to disqualify Hon. JUSTICE OLUKAYODE ARIWOOLA JCA from presiding over the motion dated and filed on 17/7/2009.
14. That I strongly believe that the constant motion on notice of 7-7-2010 is a clear case of abuse of court process as the motion on Notice of 17-7-2009 had already been argued and fixed for ruling.
15. That there was no basis to seek to disqualify Hon. Justice Olukayode Ariwoola from presiding or hearing the said motion on notice since the judgment sought to beset aside was delivered by three justices namely HON. JUSTICE AMIRU SANUSI JCA, HON. JUSTICE S.S. ALAGOA JCA and HON. JUSTICE OLU ARIWOOLA JCA.
16. That there was no need to constitute a fresh panel of justices to hear the motion on notice since the said motion was heard on the merit and ruling fixed for 12-7-2010.”

It is pertinent to say at this stage, that as could be gleaned from the averments in counter affidavit which were not controverted by the Applicant, it was the motion on notice dated and filed on 17/7/2009 that perhaps triggered the filing of the instant application by the applicant. In that motion, the applicant is seeking the indulgence of this court to set aside the judgment delivered in appeal No. CA/F/EPT/57/2008 which said judgment was delivered on 9th July 2009.

On 12-7-2010 we set to hear the instant motion and the learned counsel for the applicant V.O. Isebor Esq while arguing his motion submitted, inter alia, that Hon. Justice Olukayode Ariwoola JCA who prepared the lead judgment in the appeal should be disqualified from presiding over the motion on notice dated and filed on 17/7/2009, having delivered the judgment he (the applicant) sought to be set aside because his client, the applicant herein, is dissatisfied with that judgment. The learned applicant’s counsel however conceded that the said motion on notice to set aside the judgment of this court had already been heard by this court and fixed for ruling. Learned counsel for the applicant further submitted that the learned counsel who argued the motion on behalf of the applicant herein on 28/6/2010 argued it without the consent or instruction of the Applicant, his client. He said the learned senior counsel who argued the said motion without the consent of the applicant, was Dr. O. Ikpeazu SAN. He said had it been he was in court on that day i.e 28/6/2010, he would have vehemently objected to the appearance of the learned senior advocate for the applicant and protest on his arguing the motion on behalf of the applicant because he, the learned silk had no instruction, consent or authority of the applicant to move such motion on his behalf. He finally urged this court to grant the instant application.

Although we noted that the allegation made by Mr. V. Isibor against Dr, O. Ikpeazu SAN regarding the alleged want of consent of applicant was not contained in the supporting affidavit to the motion, we felt since the learned counsel for the applicant was speaking from the Bar and considering the serious nature of the allegation he made against the learned senior advocate, we deemed it proper and apposite to refer the accusation of the applicant to him to respond or defend himself. To that effect, this court ordered that the learned silk, be summoned to appear on 14/7/2010 to respond to the allegation made against him. I will later come to the explanation given by the learned silk.

Now in his reply to the application, the learned counsel for the 1st respondent submitted inter alia, that the applicant is not entitled to be granted the reliefs sought because the motion dated and filed on 17/7/09 had already been argued on 28/6/2010 and reserved for ruling. He said on that day O. Anumuonye Esq. of counsel for the applicant argued the motion on behalf of the applicant and in the presence of the latter. He said on that day, neither the learned applicant’s counsel nor the applicant protested or objected to the composition of the panel that took the motion and none of them opposed the inclusion of Hon. Justice Olukayode Ariwoola JCA. He also submitted that on 1/7/2010 when the case was slated for delivery of ruling, the applicant’s counsel was present in court but also did not protest on the composition of all panel but merely stated that he was not aware or served with hearing notice that the ruling was going to be delivered on that day hence this court further adjourned it to 12/7/2010 for the ruling. He said he was surprised when served with the present application on 7/7/2010. He said this is a clear case of abuse of court or judicial process, adding that it was irregular and that the application was brought mala fide by the applicant and was calculated at over reaching the respondents and it was bought to the annoyance of this court. On these submissions, he placed reliance on the cases of Nyah vs Mfoah (1024) (2007) 4 NWLR (Pt, ) at 379 Para 320 at 339/340, Abubakar vs B.O & AP Ltd (2007) 18 NWLR (Pt 1066) 319 at 377 Para F to H.