Legalpedia Citation: (2024-03) Legalpedia 60773 (CA)

In the Court of Appeal

Holden At Abuja

Fri Mar 1, 2024

Suit Number: CA/ABJ/EP/GOV/KG/01/2024

CORAM

Joseph Olubunmi Kayode Oyewole JUSTICE, COURT OF APPEAL

Adebukunola Adeoti Ibironke Banjoko JUSTICE, COURT OF APPEAL

Abba Bello Mohammed JUSTICE, COURT OF APPEAL

PARTIES

AHMED USMAN ODODO

APPELLANTS

1. YAKUBU MURTALA
2. SOCIAL DEMOCRATIC PARTY (SDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. ALL PROGRESSIVES CONGRESS (APC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

By an ex-parte application, the 1st and 2nd Respondents on the 25th November, 2023 obtained various orders from the trial Tribunal in respect to the inspection of the electoral materials used by the 3rd Respondent for the conduct of the Governorship election held on the 11th November, 2023 into the office of Governor of Kogi State.

Unhappy at this development, the Appellant approached the trial Tribunal via a motion on notice filed on the 9th January, 2024 contesting the grant and claiming not to have been served/notified.

The said motion was vigorously contested by the 1st and 2nd Respondents and after considering the contentions of the various parties, the trial Tribunal in a considered ruling found no merit in the application and dismissed it accordingly.

Dissatisfied, the Appellant invoked the appellate jurisdiction of this Court.

HELD

Appeal allowed in part

ISSUES

1. Whether there was personal or substituted service of the Court order for inspection exhibit ODO1 on the Appellant and if answered negatively whether having regard to the express term of the said order mandating the presence of the parties at the inspection, the later exercise carried out in the absence of a valid service should not have been vacated by the Tribunal?
2. Whether ab initio, the grant by the Kogi State Governorship Tribunal of the order of inspection, copying, scanning, and forensic analysis of the election materials used in the said election was not a nullity in the terms of Exhibit ODO1 was not a nullity and outside the statutory powers of the Tribunal to so grant under the Constitution and the Electoral Act 2022?

RATIONES DECIDENDI

RECORD OF APPEAL – THE IMPORTANCE OF A RECORD OF APPEAL – CONDUCT OF THE REGISTRAR OF THE LOWER COURT OR APPELLANT IN COMPILING A RECORD OF PROCEEDINGS

The importance of a complete and accurate record of appeal comprising the processes and proceedings of the lower Court, to an appellate Court saddled with the responsibilities of determining an appeal from that lower Court, cannot be overestimated. A complete and accurate record of appeal is imperative to the fair and proper exercise of appellate jurisdiction. It should not however be misconstrued that the record of appeal must contain every process and document filed before the lower Court. Relevance in this regard is circumscribed within the precincts of all the materials on which the decision appealed was predicated. See MAKU VS SULE (supra). Order 8, Rule 8 of the Court of Appeal Rules, 2021 is instructive in this wise and it provides thus:

The Registrar of the lower Court or the Appellant in compiling the Record of Appeal shall endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not relevant to the subject matter of the appeal and generally to reduce the bulk of the Record of Appeal as far as practicable, taking special care to avoid duplications of documents and unnecessary repetition of headings and other merely formal parts of documents; but the documents omitted to be copied shall be enumerated in a list at the end of the Record of Appeal and where part or only parts of any lengthy document is directly relevant to the subject matter of the appeal, it shall be permissible to omit to copy such part of the document as are irrelevant to the subject matter of the appeal nor necessary for the proper understanding of the part or parts that are so relevant.

The appeal herein is against a decision of the Trial Tribunal in respect of orders made prior to the filing of any petition. Any process filed subsequent to the decision of the trial Tribunal presently on appeal could not have formed part of the materials upon which the trial Tribunal based its decision – Per J. O. K. Oyewole, JCA

ELECTION MATTERS – WHETHER THERE IS A DUTY ON THE SECRETARY OF AN ELECTION TRIBUNAL TO INVITE THE RESPONDENTS TO SETTLE RECORD

Election Judicial Proceedings Practice Directions, 2023, Paragraph 8…

What is evident from the plain consideration of Paragraph 8(b) above is that no duty was placed on the Secretary of the Tribunal or the Appellant to invite the Respondents to settle records. This accords with the nature of election matters which are time-bound in nature and cannot afford the latitude available to regular appeals. This much was observed by this Court per BOLAJI-YUSUFF, JCA in IZE-IYAMU VS ADP (supra). – Per J. O. K. Oyewole, JCA

ACADEMIC EXERCISE – WHEN AN APPEAL IS CONSIDERED AN ACADEMIC EXERCISE

An appeal is said to constitute an academic exercise when the success thereof would not confer any legal benefit on the successful party. See LONGTERM GLOBAL CAPITAL LTD & ANOR VS STANBIC IBTC BANK PLC (2022) LPELR-58907(SC). – Per J. O. K. Oyewole, JCA

SERVICE – THE IMPORTANCE OF SERVICE

Service is fundamental to the exercise of jurisdiction as it goes to the fairness of the entire proceedings. Service accords the necessary opportunity for the adverse party to be aware of the proceedings against him in order to afford an opportunity to put forward his own side of the case. See DR. N. E. OKOYE & ANOR v. CENTRE POINT MERCHANT BANK LTD (2008) 11 SCM 152 at 162 to 163, United Nigerian Press Ltd & Anor v. ADEBANJO (1969) 6 NSCC 395 at 396. Any step taken therefore without serving the adverse party is liable to be set aside as the exercise of jurisdiction would have been severely impugned. See MARK VS EKE (supra).

It must however be stated ab initio that what is in issue here is not an originating process or a motion on notice but an order for inspection of election materials under Section 146 of the Electoral Act (supra). This distinction is necessary to distinguish cases referred to by the Appellant where the issue involved adversarial steps taken without service of originating processes. – Per J. O. K. Oyewole, JCA

INSPECTION ORDER – THE IMPLICATIONS OF AN INSPECTION ORDER MADE PRIOR TO THE FILING OF A PETITION

In this instance, the said order for inspection made by the trial Tribunal was made prior to the filing of any Petition in respect of the Kogi State Governorship election held on the 11th day of November, 2023. It therefore comes within the class of inspection envisaged by Section 146(1) of the Electoral Act, 2022 as inspection order required for instituting an election petition. A further implication of this is that order of inspection may be made after the filing of the petition to maintain it and could emanate at the instance of a Respondent for the purposes of defending the petition. – Per J. O. K. Oyewole, JCA

SERVICE – THE ESSENCE OF SERVICE – WHERE A PARTY NOT SERVED WAS AWARE OF AN ORDER OR PROCEEDING

The Appellant herein however cannot contest being aware of the said orders, that will certainly be inconsistent with letters and depositions contained in the record of appeal. The Appellant is arguing that he was not formally served with the said order. According to the Apex Court per AUGIE, JSC:

It is settled that the object of service is to give notice to the Defendant of the claims against him, so he may be aware of them, and take steps to resist, if he wants to – United Nigeria Press V. Adebanjo (1969) LPELR-25571(SC). The essence is to bring the Court process to the attention of the Party served and to have a detrimental effect, the said Party must show what miscarriage of justice he suffered – Akeredolu V. Abraham (2018) 10 NWLR (Pt. 1628) 510. See ABIOYE V. ISMAIL & ORS (2023) LPELR-59828(SC) at 30.

The Appellant who was not only aware of the order for inspection in issue but had participated in the meeting called for the purpose of discussing modalities for the implementation thereof, even if under protest as claimed by counsel, cannot be justifiably heard to complain of non-service of the said order on him without showing what he suffered from not having been formally served. To consider otherwise would in my considered view amount to paying needless Courtesy at the feet of the false god of technicality. – Per J. O. K. Oyewole, JCA

EXECUTION OF COURT ORDERS – WHERE THE COURT HAS GIVEN SPECIFIC DIRECTIONS IN HER ORDERS

A sticky point however is whether in executing the orders for inspection steps were taken to ensure the presence of the Appellant. This goes beyond service or awareness of the order. This goes towards executing the said orders as directed by the Court. On page 61 of the record of appeal in paragraph 1.04 of the written address before the trial Tribunal, the learned counsel for the 1st and 2nd Respondent asserted that the inspection started on the 4th of January and before us in their 1st and 2nd Respondents’ brief of 9th February, 2024 it was asserted in paragraph 4.35 on page 20 thereof that the inspection exercise had been completed. Unless the Appellant directly shunned involvement in the execution, failure to take steps to ensure his presence or representation will invalidate the outcome of such execution. While the Learned Senior Counsel for the Appellant asserted in the 1st and 2nd Respondents’ exhibit 4 on page 58 of the record of appeal that they did not receive any further communication on the execution of the order for inspection, nothing was shown countering it and indicating that the Appellant was made aware of the inspection exercise said to have been conducted and concluded in the premises of the 3rd Respondent in Abuja. This amounts to an attempt to foist a fait accompli on the Court. This is unacceptable. It is beyond any party to deviate from the manner a Court has directed the execution of its orders. See APC & ORS VS. KARFI & ORS (2017) LPELR-47024 (SC) and INEC VS. ILIYA & ORS (2023) LPELR-61536 (CA). The failure to take steps to notify and ensure the presence of the Appellant at the execution of the said order for inspection as ordered by the trial Tribunal at the instance of the 1st and 2nd Respondents invalidates the exercise said to have been carried out. – Per J. O. K. Oyewole, JCA

ORDER FOR INSPECTION – WHEN AN ORDER FOR INSPECTION COULD BE MADE – WHETHER AN ORDER FOR INSPECTION COULD BE MADE AT THE INSTANCE OF ANY PARTY TO AN ELECTION PETITION – CONDUCT OF COURTS IN INTERPRETING THE UNAMBIGUOUS WORDS OF A STATUTE

The jurisdiction conferred on the Court by the Legislature in enacting Section 146 of the Electoral Act (supra) is clearly discernible from the plain words of the said enactment. Afterall, the position of the law remains sacrosanct that unambiguous words of a statute are to be given their ordinary grammatical meanings. See UBN VS. OZIGI (1994) 3 NWLR (PT 333) 385 and OWONIBOYS TECHNICAL SERVICES LTD. VS UBN LTD. (2003) 15 NWLR (PT 844) 545. The words of the Section 146(1) are that an order for inspection of a polling document or any other document or packet in the custody of the Chief National Electoral Commissioner or any other officer of the Commission may be made by an Election Tribunal or a Court of competent jurisdiction if it is satisfied that the order required is for the purpose of instituting, maintaining or defending an election petition. (underlining mine). It goes without saying that if inspection could be to enable a party to institute an election petition then a fortiori it could be ordered prior to the filing of the said election petition. The provisions also envisage that the order for inspection could be to maintain an election petition which implies that the order of inspection could come after the election petition has been filed. Finally the provisions envisage that an order for inspection could be at the instance of a Respondent to the election petition for the purpose of defending an election petition. – Per J. O. K. Oyewole, JCA

JURISDICTION – WHETHER THE JURISDICTION OF AN ELECTION TRIBUNAL CAN BE EXPANDED BEYOND THE SCOPE OF THE ELECTORAL ACT AND THE EVIDENCE ACT

However, the jurisdiction conferred on the election petition Tribunal in this regarded cannot be expanded beyond the scope of the ambits of Section 146 thereof and in compliance with the provisions of the Evidence Act as regards the legal requirements of certified true copies being secondary evidence of public documents. This much was stated by this Court in UZODINMA VS IZUNAZO & ORS (supra) and ABUBAKAR & ANOR VS INEC & ORS (supra). The radical conclusion in this regard therefore is that while it is within the jurisdictional competence of the trial Tribunal to grant the orders for inspection in issue, it cannot go beyond the ambits of the express provisions of Section 146 of the Electoral Act (supra) in doing so. – Per J. O. K. Oyewole, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022
3. Federal High Court (Civil Procedure) Rules, 2019
4. Election Judicial Proceedings Practice Directions, 2023.
5. The Practice Direction, 2023
6. Court of Appeal Rules, 2021
   

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