Hon. Joel Okechukwu Okeke & Anor V. Mr. Romanus Obi & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This appeal was decided and judgment pronounced on 6/1/12 with reasons reserved. I now give my reasons.

This is an appeal against the ruling of the Tribunal delivered on 11/11/2011 wherein the Tribunal struck out the petitioners’/Appellants petition on the basis that it had less than 24 hours to conclude hearing of the petition wherein the Respondents had yet to lead evidence, addresses yet to be filed and adopted and judgment to be given.

The Appellants appealed against the ruling of the trial Tribunal as aforesaid and challenged the whole decision. The Appellants filed 4 grounds of appeal and distilled three issues therefrom in their brief filed on 14/12/11. They are set out below

1. Whether the trial Tribunal was right in striking out the petition peremptorily not minding the fact that there were almost two days left before the expiration of the 180 days (Ground 1)
2. Whether the electoral act empowers the tribunal to streamline the number of witnesses to be called by each party so as to meet up with the 180 days and thus decide the petition on its merits (Ground 2)
3. Whether the tribunal having seen there is serious question or issue to be tried in the petition did well in striking same out rather than making a sacrifice or intensify effort to determine the question and deliver its judgment to do substantial justice (Grounds 3 & 4).

The 1st and 2nd Respondent filed their brief on 19/12/11 and incorporated arguments in respect of the preliminary objections raised. The 3rd-22nd Respondents filed a notice of preliminary objection separately on 19/12/11 and incorporated arguments in respect of same in their brief filed on 19/12/11.

The main thrust of the objection raised by the Respondents is that the grounds of appeal particularly grounds B and C are incompetent and the issues raised therefrom are likewise incompetent.

Learned counsel for the 1st and 2nd Respondents argued that ground “B” and “C” raise fresh issues not raised at the trial Tribunal for which leave was not first sought and obtained to argue in this court and that these grounds are therefore incompetent. He cited Okafor v. INEC (2010) 3 NWLR (Pt.1180) Pg 1 at Pg. 25-26; Salami v. Wema Bank Nig. Plc. Pt.1190 Pg. 341 at 356.

He further contended that the issues raised in paragraphs 2.24-2.28; 4.01-4.02; 4.16, 4.18; 4.22; 4.24; 4.25, 4.30; 4.37, 4.38, 4.40; 4.43; 4.46, 4.48 (ii) (iii) (iv); 4.50, 4.52; 4.53, 5.05; 5.06, 5.07, 5.08; 5.11; 5.12, 6.02 and 6.03 of the Appellants brief were predicated on matters not borne out from the ruling appealed against. He argued that no party has the right to predicate an argument in his brief on facts which were not contested before the trial court. He cited Arhor v. Adejoh (2010) 6 NWLR Pt.1191.

The 3rd-22nd Respondents also objected to the same grounds and argued that the issues raised in B and C did not arise from the decision of the trial Tribunal. He also cited authorities to the effect that such grounds must be struck out as incompetent.

Learned Senior counsel to the Appellants in the reply brief based his argument on the merit of the grounds of appeal and reargued the issues already adumbrated in the Appellants brief. In my humble view the Appellants could not relate the grounds with the proceedings at the trial Tribunal.

The two grounds of appeal objected to are as follows and set out seriatem as B and C.

3B “The learned trial Tribunal erred in law when it abdicated its responsibility in not stream-lining the number of witnesses to be called by each party to meet up with the 180 days and thus decide the petition on its merit”

(3C) The tribunal erred in law when after allowing the Respondents to go on a wild frolic of calling as many as 8 witnesses and still wanted to call some more, the Tribunal got choked and it held thus:

“Judgment should be delivered tomorrow 12/11/2011, which is 180 days from the 17/5/2011 wherein the petition was filed… Yesterday 10/11/2011 the trial continue (sic) with 1st set of Respondent opening their case and adjourned today for continuation… and come up with a considered judgment by tomorrow 12/11/2011”