CORAM

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MUHAMMED LAWAL SHUAIBU JUSTICE OF THE COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU JUSTICE OF THE COURT OF APPEAL

JAMILU YAMMAMA TUKUR JUSTICE OF THE COURT OF APPEAL

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PARTIES

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1. HON. EKWUEME UZUAMAKA PRECIOUS

2. ALL PROGRESSIVE GRAND ALLIANCE [APGA]

 

APPELLANTS 

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1. INDEPENDENT NATIONAL ELECTORAL COMMISSION

2. THE RESIDENT ELECTORAL COMMISSIONER, IMO STATE

3. DIBIAGWU EUGENE OKECHUKWU

 

RESPONDENTS 

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AREA(S) OF LAW

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

 

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SUMMARY OF FACTS

Election Tribunal had in its schedule of hearing assigned three days to the petitioner for the presentation of her case. On the first day fixed for hearing, neither the Petitioner nor her witnesses were present in Court but counsel for the petitioner who was in Court prayed for an adjournment to the next day. However, upon the objections of counsel to the Respondents the Tribunal in a bench ruling dismissed the petition relying on paragraph 46 (1) and (3) 1st Schedule to the Electoral Act. The Appellants were dissatisfied with the Tribunal’s decision and therefore appealed to this Court

 

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HELD

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Appeal allowed

 

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ISSUES

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Whether or not the Hon. Tribunal was correct to have dismissed the petition of the Appellants?

 

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RATIONES DECIDENDI

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ELECTION PETITIONS – THE NATURE OF ELECTION PETITIONS

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There is no doubt that election petitions are sui generis which means that an election petition is not the same as ordinary civil proceedings. It is a special proceedings because of the peculiar nature of elections, a deliberate policy is put in place to enhance urgency and devoid of procedural clog. In UKECHUKWU V. OBIANO (2020) & NWLR (p.t 1726) 276 at 311, the apex Court has held that one of the important provisions in all the laws relations to election petitions Tribunal is essentiality of time. The issue of time to complete filing of all processes relating to hearing and determination of an election petition was uppermost in the mind of the legislators. Thus, the enactment stretches itself further afield to do away with tardiness and waste of time and endeavours to constrict the time of doing a particular act within a time frame. See also ORUBU V. N.E.C (1988) 5 NWLR (p.t 94) 590. – Per M. L. Shuaibu, JCA

 

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FAIR HEARING – RIGHTS OF PARTIES TO BE AFFORDED FAIR HEARING

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The Provisions of Section 36 (1) of the 1999 Constitution as amended on its part provides that whenever the need arises for the determination of the civil rights and obligations of any citizen, the person shall be entitled to a fair hearing within reasonable time by a Court or Tribunal established by law. – Per M. L. Shuaibu, JCA

 

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APPEARANCE – THE DIFFERENT WAYS A PETITIONER IS ENTITLED TO APPEAR

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Suffice is to say that, a petitioner is entitled to appear either in person or by counsel. Thus, the appearance of counsel in my respectful view is sufficient for the purpose of hearing the petition under the relevant schedule to the Act. In CEEKAY TRADERS LTD V. GENERAL MOTORS COMPANY LTD (1992) LPELR 834 (SC) Per KARIBI – WHYTE JSC (page 27), para D: “A Plaintiff is entitled to appear either in person or by counsel. This is sufficient appearance for the purpose of the rule.” Again, in FALOMO V. BANIGBE & ORS (1998) LPELR 1237 (SC), it was held that once counsel announces appearance in Court whether he is holding brief for another or not, the Court takes it that he is fully mandated and or authorized to conduct the case on behalf of his principal or client. If he is not in a position to proceed with the case, it is his duty to apply for an adjournment, stating his reasons for the application and upon a consideration of such reasons, the Court shall decide whether or not the case should in the interest of justice adjourn or proceed with the hearing of the matter. Generally, the purpose of granting an application for adjournment is to enable hearing and determination of the questions between the parties but an adjournment is not granted for the purpose mere delay. – Per M. L. Shuaibu, JCA

 

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PETITION – WHEN A PETITIONER FAILS TO APPEAR IN PERSON OR THROUGH COUNSEL – CONDUCT OF COURT IN STRIKING OUT OR DISMISSING A PETITION FOR FAILURE OF PETITIONER TO APPEAR

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Paragraph 46 (1) (2) and (3) of the First Schedule to the Electoral Act 2022. The relevant paragraph 46 (1), (2) and (3) thereof read as follows:-

“1. When a petition comes up for hearing and neither party appears, the Tribunal or Court shall unless there are good reasons to the contrary, strike out the petition and no application shall be brought or entertained to relist it.

2. When a petition comes up for hearing, if the petitioner appears and the Respondents does not appear, the petitioner may prove his petition so far as the burden of proof lies upon him and the Tribunal or Court shall enter a final judgment in the petition.

3. When a petition comes up for hearing, if the Respondents appears and the petitioner does not appear, the Respondent shall be entitled to final judgment dismissing the petition.’’ Contrary to the submission of counsel to the Appellants the use of word “shall” in paragraph 46

(3) above is mandatory as it admits no discretion whatsoever. In appeal no. CA/S/EPT/HR/ZM/02/2023 between Hon. SANI UMAR DAN GALADIMA & ANOR V. AMINU SANI DAJI, delivered on Monday 17th July, 2023, I reaffirmed the already settled position that when the petition comes up for hearing and neither the petitioner nor his counsel was in Court, the Respondent shall be entitled to have the petition dismissed pursuant to Paragraph 46 (3) of the First Schedule to the Electoral Act, 2022. The foregoing notwithstanding, before a Tribunal or Court strikes out or dismisses a petition on ground that neither the petitioner nor his counsel appeared when it was called for hearing, the Tribunal or Court is bound in law and in conscience to ascertain if there were good or not, reasons for their absence. Thus, if there were, the Tribunal or Court ought not to strikes out or dismisses the petition. If there are none, the petition shall be struck out or dismissed as the case may be. See ETTAH & ORS V AKIBA & ORS (2011)LPELR – 4522 (CA). – Per M. L. Shuaibu, JCA

 

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APPEARANCE – WHEN COUNSEL APPEARS FOR PETITIONER

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I have started elsewhere in this judgment that though the petitioner in the present case was absent on the first day of the three days slated for hearing, her counsel was not only present but also moved the Tribunal to grant him an adjournment which was turned down by the Tribunal, holding that there was no good reason for the absence of the petitioners. I have also held the view that appearance of counsel is sufficient appearance for the plaintiff/petitioner. Furthermore, the fact that election petitions are to be speedily or expediously tried and determined, is not a licence to sacrifice justice and equity on that platform. – Per M. L. Shuaibu, JCA

 

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DISCRETION – CONDUCT OF APPELLATE COURT TO MATTERS/ISSUES OF DISCRETION

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Similarly, the proper role of a Court of Appeal where there is a proper exercise of discretion is not to interfere with the decision. – Per M. L. Shuaibu, JCA

 

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APPEARANCE – WHEN A PETITIONER DOES NOT APPEAR ON A DAY FIXED FOR HEARING

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Paragraph 46 (3) of the 1st Schedule to the Electoral Act, 2022 stipulates as follows: “46 (3) When a petition comes up for hearing, if the respondent appears and the petitioner does not appear, the respondent shall be entitled to final judgment dismissing the petition.” The above provision empowers the Electoral Petition Tribunal to dismiss a petition if on the day fixed for hearing the petitioner is absent. – Per U. A. Ogakwu, JCA

 

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APPEARANCE – WAYS A PARTY CAN APPEAR

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It is rudimentary law that a party can appear in person or by counsel and it is sufficient appearance by a party if his counsel is present in Court. See CEEKAY TRADERS LTD vs. GENERAL MOTORS CO. LTD (1992) LPELR (834) 1 at 27, AKINNULI vs ODUGBESAN (1992) 3 NWLR (PT. 258) 172 and KEHINDE vs. OGUNBUNMI (1967) LPELR (25374) 1 at 6. In the words of Muhammad, JSC(later CJN) in VAB PETROLEUM INC. vs. MOMAH (2013) LPELR (19770) 1 at 26: “I think the law has for long been settled that where a party to a proceeding before a Court is represented by a counsel of his choice, his physical appearance to conduct the proceeding by himself is no longer necessary except where for good reasons, the Court conducting theM proceedings, orders otherwise.” – Per U. A. Ogakwu, JCA

 

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DISCRETION – CONDUCT OF APPELLATE COURTS TO EXERCISE OF DISCRETION BY LOWER COURTS

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Even though an appellate Court is loath to interfere with the exercise of discretion at nisi prius, when as in this matter the discretion has not been properly exercised, an appellate Court is duty bound to interfere. NGWU vs. ONUIGBO (1999) 13 NWLR (PT. 636) 512 at 524-525, T. S. A. IND. LTD vs. KEMA INVESTMENTS LTD (2006) 2 NWLR (PT 964) 300 and GBENEYEI vs. ISIAYEI (2014) LPELR (23216) 1 at 19. – Per U. A. Ogakwu, JCA

 

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EVIDENCE – CONDUCT OF TRIBUNAL WHEN PETITIONERS HAVE ADDUCED EVIDENCE

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The Appellants having adduced documentary evidence, the Tribunal is enjoined by Paragraph 46 (4) of the 1st Schedule to decide the matter on the merits by evaluating the said documentary evidence and ascribing probative value thereto. The said Paragraph 46 (4) of the 1st Schedule reads: “46 (4) Documentary evidence shall be put in and may be read or taken as read by consent, such documentary evidence shall be deemed demonstrated in open Court and the parties in the petition shall be entitled to address and urge argument on the content of the document, and the Tribunal or Court shall scrutinize or investigate the content of the documents as part of the process of ascribing probative value to the document or otherwise.” – Per U. A. Ogakwu, JCA

 

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CASES CITED

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NOT AVAILABLE

 

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Electoral Act, 2022

 

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