Usani Uguru Usani V. Donald Duke & Ors. (2005)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE, J.C.A.

I must admit painfully that this matter has suffered a terrible chequered history. The case was twice before the National Assembly/Governorship and Legislative Houses Election Tribunal Calabar. This is also the second time the matter is coming before the Court of Appeal.

It goes like this: There was an election petition in respect of the National Assembly/Governorship and Legislative Houses Election pending. The petition was in respect of the Governorship election of the Cross River State, held on the 19th of April, 2003 at the Election Tribunal, sitting at Calabar hereinafter referred to as the lower tribunal.

That petition was actually filed by one Usani Uguru Usani, who contested the same Governorship election under the platform of New Democrats (N.D.) and lost. He contested together with Mr. Donald Duke, who contested under the platform of the Peoples Democratic Party (P.D.P.) At the close of the Election, the Independent National Electoral Commission (INEC) declared Mr. Donald Duke the winner of the said election. The petitioner in that Tribunal insisted that the respondents were wrong in returning Mr. Donald Duke at the said election, since he, the 1st respondent, was not qualified to even contest the said election. The petitioner, consistently claimed to have a right to be returned or elected at the said election.

It is to be noted that what actually prompted the presentation of this petition was the declaration by the 2nd – 21st and 24th respondents of Mr. Donald Duke as the winner.

The petitioner being dissatisfied with the declaration, filed a petition to the 1st election Tribunal, sitting at Calabar, challenging the return of Mr. Donald Duke, the 1st respondent as elected.

After the rudimentary proceedings appeared to be settled giving way to the hearing in earnest of the petition the petitioner then filed a motion on notice containing two prayers, namely:

(a) Stay of proceedings of the Tribunal; and

(b) Leave to appeal against the earlier ruling of the Tribunal on the 1st of July, 2003.

The 1st respondent’s Counsel objected to the granting of those prayers. The Tribunal upheld the objection and refused to grant the said prayers on 7/7/2003. Consequently, the 1st respondent’s Counsel applied to move its pending motion dated 17/6/2003 for an order striking out the petition on the ground that the petitioner had withdrawn his candidacy even before the election was conducted.

The petitioner, the respondent in that application, who filed no counter affidavit to the application, sought for an adjournment which was turned down. There and then the learned Counsel for the petitioner Dr. Tony Ukam, orally applied to bow out from the Tribunal’s proceedings. This was also refused on account of failure by the petitioner to come by formal application to withdraw his representation of his client and for lack of due notice to his client of that line of action.

The 1st respondent’s application was then moved and granted whilst the petitioner’s counsel left the court un-ceremoniously and later filed an appeal against the ruling of the Tribunal delivered on 7/7/2003 to the Court of Appeal.

The panel of the Court of Appeal came down to Calabar and heard the appeal. Judgment was delivered in which it unanimously agreed with the petitioner’s counsel and allowed the appeal and ordered for hearing de novo by a reconstituted Tribunal. Hon. Justice Amina Augi J.C.A. who delivered the leading judgment on 5/11/2003 held thus:

” … The end result of the foregoing is that the appeal succeeds and is allowed. The decision of the Tribunal striking out the petition in its ruling delivered on the 7th day of July 2003, is declared null and void and it is hereby set aside. The petition is remitted to the Tribunal to be re-constituted by the President of this court for hearing de novo.”

See page 176 of the record.

The reconstituted Tribunal started hearing in earnest, the petition de novo, as directed by the Court of Appeal. The petitioner called nine (9) witnesses who testified on his behalf. The respondents equally called nine(9) witnesses who testified for them. The 2nd to 21st and 24th respondents called a total of four, (4) witnesses.

Throughout the proceedings, one thousand and eighty six (1086) exhibits were tendered and admitted in court.

In the course of the proceedings some un-complimentary statement involving counsel to the petitioner and member of that Tribunal and a bailiff took place. Two days after the Tribunal was served with a copy of the petition addressed to the President of the Court of Appeal by the petitioner’s Counsel.

Before then, further hearing of the petition was at the instance of the petitioner’s Counsel and adjourned for continuation to 7/4/2004 to allow the Director of NYSC to testify. Consequently, the petitioner’s Counsel did not show up in court. The Tribunal then foreclosed the petitioner’s case for them and ordered the defence to open its case. The Tribunal has this to say on page 376 of the record of proceedings:-

“Notwithstanding the fact that this petition was adjourned to 7-04-05 at the instance of Dr. Ukam to enable him put up a witness, the Director of NYSC whom he said promised to be in Calabar on the 7-04-05, this Tribunal waited up to 10.00 a.m. Dr. Tony Ukam failed to show up in the Tribunal. Since the petition was not addressed to us, there were no reasons advanced by learned Counsel to the petitioner why he was not before the Tribunal, so upon application by counsel to the 1st respondent and that of the 2nd – 21st and 24th respondents that the matter be either dismissed or struck out, this Tribunal instead deemed the case for the petitioner closed, thereafter, the case was adjourned to enable the respondents to open their defence.

There were attempts by Mr. Paulinus Asuquo one of the counsel appearing with Dr. Tony Ukam for the petitioner on the 20th, 22nd and 26th of April, 2005 to make some applications. The applications were either struck out for want of diligent prosecution or for lack of jurisdiction.

It was after these attempts that both counsel to the petitioner abandoned this petition. Mindful of the fact that there is no order for stay of proceedings, we had no option left but to proceed to hear the respondents’ side of the story.”

The reconstituted Tribunal received the respective addresses of all the counsel in this matter, considered the pleadings and evidence and held in effect that they agreed that in each of the Wards and Local Government where the petitioner’s witnesses alleged that no election took place, the respondents led credible evidence from both registered voters and the 2nd respondent’s respective electoral offices to show that election actually took place in the areas referred and that the results were properly collated in accordance with Electoral guidelines. They believed the pieces of evidence as embodied in exhibits RB – RB 16; RC and RD showing the collated results of all the Local Government Areas of Cross River State as well as the summary of all the electoral votes in the state as valid and credible the evidence they agreed is authentic.

Learned Tribunal further stated in their holding that a petitioner who alleges falsity of election results can only succeed in proving his allegation if he produces two sets of results the one that is correct and the other that is false. In this case, the Tribunal held that this was not done therefore the petition on this point must fail. They therefore believe the respondents. The reconstituted panel has finally on 20/5/2005 held on pages 396-397 as follows:

“Having discountenanced the evidence of the witness called by the petitioner, there is no any evidence to which the evidence of the respondent (sic) could be tested with the final being as rightly concluded by VI. Udoh Esq. that the petition fails for reasons of the combination of factors which we have discussed in this case. That is to say, the petitioner having led no evidence to show that the 1st respondent was unqualified to contest the 19th April, 2003 elections, the petitioner having failed to prove beyond reasonable doubt the allegation of irregularities and corrupt practices allegedly perpetrated by the respondents and failure to prove any non-compliance with the provision of the Electoral Act is fatal. The implication of what we have been saying is that the lone issue raised is hereby resolved against the petitioner. The petition for all we have said having failed, it is hereby dismissed.

The petitioner being aggrieved by the above decision appealed to this court on a notice of appeal containing four grounds of appeal filed on 26th May, 2005. The grounds of appeal are, without their particulars, reproduced hereunder:

“Ground One:

The learned Trial Tribunal Chairman and members erred in law in descending into the arena on the issues of the subpoenas and the disobedience to the subpoenas issued to petitioner’s witnesses.

Ground Two:

The learned Trial Election Petition Tribunal Chairman and members erred in forcefully and prematurely closing the petitioner’s case suo motu without let, quorum or jurisdiction whatsoever.

Ground Three:

The learned Trial Election Petition Tribunal Chairman and members erred in striking out the motion on notice filed and dated 12/4/05.

Ground Four

The learned Trial Election Petition Tribunal Chairman and members erred in law when they proceeded with the case to conclusion without the petitioner and his counsel and delivered judgment on Friday, 20th May, 2005 despite lack of jurisdiction.”

Parties then filed their respective briefs of argument. The appellant filed his brief of argument on 25/8/2005 in which three issues were formulated thus:

“2.1 Whether the learned trial Tribunal Chairman and members misdirected themselves when they discerned (sic) into the arena to excuse the subpoenaed witnesses for disobeying the subpoenaed issued to them.

2.2 Whether the learned trial Tribunal Chairman and members erred in law, when they foreclosed the petitioner’s case/witnesses, and struck out petitioner’s motions calling for a rescission of the foreclosure orders.

2.3 Whether the learned trial tribunal erred in law to have ignored the challenge of their jurisdiction, when it was called to question by the petitioner, and to have continued other proceedings without resolving the question of confidence and jurisdiction first.”

The respondents in turn filed their respondents brief of argument deemed filed on 14th November, 2005, after withdrawing their preliminary objection in their application dated 4/8/2005 filed on 5/8/2005, which application was struck out by this court on 14/11/2005 together with all the arguments therein.

The appellant, on service of the joint respondent brief on them, filed their reply brief on 8/9/2005.

The respondents’ counsel Chief Olanipekun SAN filed their brief containing two issues formulated by him for determination thus:-

(i) Upon a dispassionate consideration of the surrounding circumstances, the prayer(s) of respondents’ counsel and the attitude of the petitioner and his counsel to the prosecution of petitioner’s case, whether the decision of the lower tribunal on 7th April, 2005, deeming the case of the petitioner closed was not proper grounds 1, 2 and 3.

(ii) Whether the petitioner Counsel’s letter/petition dated 6th April, 2005 and addressed to the Honourable President of the Court of Appeal constitutes a challenge to the jurisdiction of the lower tribunal to wanrant a stay of its proceedings – Ground 4.”

Now, I shall deal with the issues as contained in the appellant’s brief of argument, I shall thereafter, or in the course of dealing with same juxtapose and compare the issues raised by the respondents.

Issues one and two are going to be dealt with together:

“2.1 Whether the learned Trial Tribunal Chairman and members misdirected themselves when they descended into the arena to excuse the subpoenaed witnesses for disobeying the subpoenaed issues to them.

2.2 Whether the learned Trial Tribunal chairman and members erred in law when they foreclosed the petitioner’s case/witnesses, and struck out petitioner’s motions calling for a rescission of the foreclosure orders.”

For the argument of these issues learned Counsel for the appellant Dr. Ukam submitted through argument in his brief that his main complain is the Tribunal’s inclination to support unlawfully the attitude of the witnesses subpoenaed to speak for them.

Accordingly, the learned Counsel contended forcefully that there are no cogent reasons why the following witnesses should disobey the directive contained in the various subpoena: The remaining witnesses are:

1. First respondent, i.e. The Governor of the State
2. Director General of NYSC
3. Chairman INEC
4. The Resident Commissioner of INEC in Cross River State
5. The General Manager of N.T.A. Calabar; and
6. The General Manager of Cross River State Broadcasting Corporation.

Learned Counsel was again furious by the position taken by the Tribunal. In that, sufficient money was deposited in the Registry to take care of the transport costs of the subpoenaed witnesses and this was uncontroverted. It was never the requirement of the law that such transport cost should be delivered to the said witnesses by petitioner or his counsel. Nonetheless the Tribunal held thus:

” … while there is proof of service on some of witnesses subpoenaed there is no proof that the sum prescribed by the law was tendered to any of them for his expenses.”

The Tribunal was very much concerned with whether or not the provisions of section 229 of Evidence Act as been complied with by the petitioner to warrant the issuance of bench warrant against the subpoenaed witnesses.

Learned Counsel considered the action of the chairman and members of the lower Tribunal as descending into the arena to answer on behalf of the disobedient witnesses vis-a-vis the reasons why they failed to answer the subpoena. He contended that the learned Tribunal should have exercised some patience and make full enquiries about the action of the bailiff or secretary to the Tribunal, all for the need to respect the long term principle of giving the other party a hearing. In a nutshell, if I understand the counsel very well, he is aiming at reminding us that no court shall take it upon itself, the duty of making a case for any party – Doukplolagha v. Alamieyesigha (1999) 6 NWLR (Pt. 607) 502.

The decision of the lower Tribunal to the effect that “this is a provision providing for penalty against the persons so subpoenaed and must be strictly construed. That we do not consider the mere deposit of money with the secretary of the Tribunal as sufficient compliance with the provision. Since that vital part of section 229(2) of the Evidence Act has not been complied with, no warrant can be issued against any of the subpoenaed witnesses that had been duly served. In the circumstance the application is hereby refused.” This ruling was highly condemned by the learned Counsel for the petitioner as highly technical. See page 208 of the records.

I do not wish to go on and on over the comments of the learned Counsel for the appellant orally and in their brief, since we were advised by him on the hearing date not to consider what had happened in the Tribunal seriously and in fact he urged us to forget it. I think ours as Judges is to be patient all the time. We will not comment on whatever anybody will consider as adverse comments emanating from any party.

I must begin by stating the obvious that since the learned Counsel for the respondents decided to withdraw his preliminary objection and this court struck it out on 14/11/2005, nothing was said about it. I will not refer to anything stated by the learned Counsel on the preliminary objection, be it the respondent’s counselor the appellant’s counsel in his reply brief. This is basic and trite, that needs no authority to support it.

Even though election petition proceedings were said to be sui generis I consider it always to be all important in deserving some respect by all the stakeholders, learned Counsel inclusive. Let us take the bull by the horn. Learned Counsel for the appellant Dr. Ukam right from the initial stage did not take this matter seriously. I kept wondering what might have caused this type of lukewarm attitude personally? I cannot comprehend a brilliant Counsel like Dr. Ukam could allow his vision to be beclouded by some other considerations other than legal issues. It is unfortunate that this happened. I believe that every opportunity has been granted for the appellant to be heard but for one reason or another failed to utilize same such persons cannot therefore be heard to complain of lack of fair hearing. One can only lead a horse to a river but cannot force it to drink water. I do not think it is fair to a Tribunal or Court to be held to ransom.

I have considered the proceedings of the lower Tribunal and what transpired before it closely. I have actually admired the amount of patience exhibited by the learned Chairman and the members of that Tribunal. I salute their patience and mental dexterity employed to do justice in the matter. I do not honestly think we can improve on it.

Consistently with the above, and without much ado that the decision of the lower Tribunal to close appellant’s case on 7th April, 2005, when he and his client choose to stay away from the Tribunal’s sitting is imminently un-impeachable and correct in law. The learned Counsel cannot dictate or set a pace to be followed by any court or Tribunal outside the legal framework.

I cannot see how a learned Counsel of Dr. Ukam’s caliber could allow himself, his client and his witnesses to be absent and then claimed lack of fair hearing. This attitude should be condemned by all and sundry. How can a Counsel who suddenly became “a nursing father” use it in a court of law to seek for an adjournment and worse still, the Tribunal which is liberal to the hilt will oblige him an adjournment in an important matter like election petition? There are so many instances where the Tribunal, with respect, obliged the same counsel on these flimsy reasons which cannot find support in law.

I hold as held by the Supreme Court in Scott-Emuakpor v. Ukaibe (1979) 1 SC 6 that:-

“When a party in a legal duel receives a hearing notice, but decides to be absent the obvious conclusions is that he has chickened out.

I must but agree with the submissions of the learned Counsel to the respondents, Olanipekun SAN in his brief of argument deemed filed on 14/11/2005. I have the suspicion that learned appellant’s Counsel never came to Court prepared for the reason best known to him. His client might have been left in darkness. I agree entirely with Chief Olanipekun SAN that there is no lack of fair hearing in this matter, they are only crying “wolf where there is none.”

The decision of the Tribunal on 7th April, 2005, deeming the case of the petitioner closed was the best option that could happen under the circumstances of this case. I am fortified by the authorities cited by the respondent’s counsel which are apposite, namely:

(1) Abubakar v. INEC (2004) 1 NWLR (Pt.854) 207;

(2) Mankanu v. Salman (2005) 4 NWLR (Pt. 915) 270

(3) L.S.D.P.C v. N.L. and S.F. Ltd. (1992) 5 NWLR (Pt.244) 653/672 and 673.

In the above case at p. 672 – Olatawura JSC in a similar situation has this to say:-

” …then the absence of a counsel who was duly notified of a further address appears to me a calculated act of disrespect which borders on misconduct. A Counsel who is unable to attend the court owes it a duty to arrange for another counsel to hold his brief. It is discourteous and impolite for a counsel to turn down the invitation of this court to address it further on any issue. If counsel appreciates he is first and foremost an officer of the court, his duty as an officer is to show utmost respect and not in the passage treat the process of court with levity. Mr. Olufote should regard this observation about his conduct as a warning which he must not be repeated.”

So also the cases of Onadeko v. U.B.N. Plc (2005) 4 NWLR (Pt.916) p. 440 at p. 469 paras A-B per Adekeye, JCA.

I do not think, with all sense of responsibility it is right for anybody to lay all the blames of the learned Counsel at the door step of the lower tribunal over the palpable failure to measure up. Where any counsel in any court or tribunal fails to render a skilful and professional service expected of him without any hindrance he has himself to blame and never shift the blame on the Tribunal. That being the case issues one and two formulated by the appellant are resolved against him. The learned Tribunal Chairman and his members are correct in their action and by so doing did not descend into any arena. We so hold. Both issues therefore failed.

It must be noted from the onset that none of the grounds of appeal filed by the appellant challenged the findings and decisions of the lower Tribunal. Rather, the grounds of appeal merely challenged the procedure adopted by the Tribunal in completing its assignment, i.e. the determination of the petition. Hence, this appeal is on technicality which has no bearing to the merit or otherwise of the lower Tribunal’s decision. It is trite that the findings and decisions of the lower Court not appealed against is valid and subsisting.

On the 3rd and last issue formulated by the learned Counsel for the appellant which reads thus:

“2.3 Whether the learned Trial Tribunal erred in law to have ignored the challenge of their jurisdiction, when it was called to question by the petitioner, and to have continued other proceedings without resolving the question of confidence and jurisdiction first.”

The main grouse of the petitioner/appellant was that the petition that challenged the jurisdiction of the Tribunal, which was handed over to the chairman in the morning of 7/4/2005 was not a faceless one. Instead of the Tribunal to timeously consider the challenge of their jurisdiction and to act accordingly the Tribunal suspended their sitting for one year. Again, according to the petitioner it was on the same 7/4/2005 that the respondents’ Counsel lavishly castigated the leading counsel to the petitioner for refusing to come to court. The Tribunal was allegedly misled on the same date into foreclosing petitioner’s case. It was his submission therefore that, the Tribunal was wrong to have proceeded to hear evidence and adjudicate on the matter without ascertaining whether it has jurisdiction to proceed or not.

In the respondents’ brief at page 27, it was argued that the so called petition has raised nothing but unfounded, spurious and lifeless allegation against a Judge of a superior court and coming as it were from the appellant’s counsel himself does not equate or amount to a challenge on the jurisdiction of the Tribunal. This is because that was not how the jurisdiction of a court or Tribunal should be challenged.

On another occasion, the appellant’s Counsel submitted that one of the counsel who appeared for the appellant at the Tribunal was bamboozled and stampeded upon to withdraw his over one hour submission. Learned Counsel for the respondents contended that this submission is misleading and unsupported by records. See Anuka Community Bank (Nig.) Ltd. v. Olua (2000) 12 NWLR (Pt.682) 641.

I have to state at this stage that the argument of both counsel to the 1st and 2nd-21st as well as 24th respondents were taken into consideration in preparing this judgment. Mr. Osazi-Ozzi relied heavily on the preliminary objection filed and argued. I must agree that where particulars supplied under the grounds of appeal are a complete prose, repetition, argument and prolix the grounds may be bad. The fact that issues must be related to ground or grounds of appeal is basic. In view of what is contained in the 1st respondent’s brief which is in the same line with the position taken by the 2nd-21st and 24th respondents, I will now consider them together and treat them as one. In view of the fact that I was outraged by the attitude of Dr. Ukam, learned Counsel for the appellant, I do not intend to give a detailed result on the preliminary objection, I will rather go direct to the main appeal.

A party who failed to submit his case for consideration by reason of his absence in court cannot complain of a breach of fair hearing.

The Supreme Court in Oyeyipo v Oyinloye (1987) 1NWLR (Pt. 50) 356; (1987) 2 SCNJ 53 at 63, stated the position as follows:

“I agree that the rules of natural justice are applicable to hearings of the Court, whether sitting in chambers or in open Court. Where the rules of natural justice are properly applicable, a violation of the rules will result in the nullification of the proceedings. However, the rules are applicable to a party whose case is properly before the court and not where a party has not satisfied the conditions of being heard. In my opinion where the party, as in this case the applicant, has not satisfied the conditions required for hearing his case, the court will not be competent to hear him. See Madukolu and others v. Nkemdilim & Ors. (1962) 2 SCNLR 341; (1962) 1 All NLR 582.

The right to be heard, having not been earned, cannot be exercised. In my opinion, there is no question of the breach of a non-existent right. This court has pointed out in Onwuren v. Modern Sugar Nig. Ltd. (supra), that a party who has failed or neglected to submit his case for consideration, cannot complain of a denial of hearing.

The failure to or neglect per se tantamounts to an abandonment of the appeal.”

Applying this principle as enunciated above in this case, when the appellant and his Counsel failed to appear in Court to prosecute the case, for whatever reason, they are deemed to have abandoned the case and they cannot thereafter, complain of breaching of a nonexistent right to fair hearing. A right not earned cannot be exercised.

Having considered the appellant’s brief of argument, I found that there is no serious challenge to the position taken by the learned Chairman and members of the lower Tribunal. I tend to agree with the submission of the Counsel to the 2nd – 21st and 24th respondents on page 12 of their brief when it submitted that:

“It is a misnormal and, indeed, an inspid (sic) insipid disregard for judicial officers, for appellant’s Counsel to use rabid and intemperate language against the judges of the Tribunal in his brief, rather than address issues and leave their Lordships of this court to draw conclusions based on facts and evidence on the record before them. This is rather unfortunate and condemnable.”

Learned Counsel to the 1st respondent Chief Olanipekun SAN in the same vein stated on page 29 of their respondents’ brief has this to say:-

“It is undoubtedly incompetent for the appellant’s counsel to use and or employ harsh and unpolished language in appellant’s brief against or in criticism of the esteemed personalities of members of the lower Tribunal and Counsel to the respondents.”

See Mokwe v. Williams (1997) 11 NWLR (Pt.528) 309 at 312- 313; Alon v. Dandrill (Nig.) Ltd. (1997) 8 NWLR (Pt.517) 495 at 502 503; and Eriobuna v. Ezeife (1992) 4 NWLR (Pt.236) 417 at 433. I noted with concern what this court and the Supreme Court stated over this type of unfailing trend. In Igiehon v. Omoregie (1993) 2 NWLR (Pt.276) 398 at 405, this court (Benin Division) per Adio JCA as she then was of blessed memory, cautioned Counsel to desist from criticizing trial Judges or accusing them unduly and without any concrete reason or ground establishing bias or prejudice. In the Supreme Court, it was held in effect that an allegation of bias against a Judge cannot be founded on mere conjectures but on concrete and real evidence.

On the issue of bias as raised by the appellant’s Counsel, I will refer to the recent decision of the Supreme Court in the case of Okacets Azuokwu v. Tasie Nwokanma & Anor. (2005) 11 NWLR (Pt. 937) 537 at 551; (2005) 5 SCNJ 192 at 202 – 203 where Kalgo JSC stated the legal position thus:

‘Bias, in relation to a court or tribunal, is an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules and the likelihood of bias may be drawn or surmised from many factors such as corruption, partisanship, personal hostility, friendship, group membership or association and so, towards or involving a particular party in a case.

Also, in a case where bias is being alleged against a court or Judge, it is not the real likelihood that the court or Judge could or did favour one side at the expense of the other that is important, it is that any person looking at what the court or Judge has done, will have the impression in the circumstances of the case, that there was real likelihood of bias.”

See also the following cases:

1. Metropolitan Properties Co. Ltd. (F.G.C.) v. Lannon (1969) 1 QB. 577;
2. Olue & Ors. v. Enenwali & Ors. (1976) 2 SC. 23; and
3. Kenon and Ors. v. Tekam & Ors. (2001) 14 NWLR (Pt.732) 12; (2001) 7 SCNJ 620 at 634 -633.

I have carefully gone through the proceedings in this case, and applying the principles of law as stated above, I have not seen where the lower Tribunal could be said to be biased. The proceedings, in my view, were conducted in accordance with the rules of procedure and Provisions of Evidence Act; and there was no likelihood of the lower Tribunal being biased in this case.

My Lords, I think you should pardon me not to condemn the appellant’s Counsel through and through. I was overwhelmed by his oral statement in court on the 14/11/2005 to the effect that on a sober reflection, he realized the futility of his action and all my members and my humble self accept his posture. We all agree that what Dr. Ukam did in that letter under reference, even though he appears to be disassociating: himself from its authorship, is most unfortunate and condemnable we should say no more on that.

In the result, this appeal completely lacks merit. Same is hereby dismissed.

For the avoidance of any possible doubt the appeal fails.

The decision of the lower Tribunal is un-assailable and correct in law. Appeal lacks merit and same is dismissed. The Executive Governor of Cross River State Mr. Donald Etim Duke shall remain the elected governor. The 2nd – 21st and 24th respondents’ action in returning him as elected was in order and correct. There shall be an end to litigation. Cost of Ten Thousand Naira is awarded in favour of all the respondents, including the Executive Governor.

Other Citations: (2005)LCN/1861(CA)