➥ CASE SUMMARY OF:
Dr. Nnamdi Eriobuna & Ors. V. Ikechukwu Obiorah (CA/E/77/99, 24 May 1999)
by Branham Chima.
➥ SUBJECT MATTER
Election petition competence;
Mandatory compliance with the electoral decree;
Bias on a judge;
➥ CASE FACT/HISTORY
Elections to the senate took place throughout the country on 20th February, 1999. The 1st appellant contested the election of the Anambra South Senatorial Zone in the platform of the peoples Democratic Party (PDP) and won. The 1st Respondent felt aggrieved and initially filed a motion in the High Court, Abuja which was heard by Auta, J. The action was later filed in the National Assembly Election Tribunal, Awka. He asked the Tribunal to determine that the appellant was not duly elected and returned and that the 1st respondent was the person that was duly elected and ought to have been returned. He asked in the alternative that the election be nullified.
The case of the 1st respondent, in a nutshell is that there were three contestants at the PDP primary election in which he scored the highest votes of 937. The 1st appellant followed with 77 votes and Mrs. Uju Ozoka came third and last with 3 votes. The party Electoral Panel, according to paragraph 12 (c) of the petition “forwarded the name of the 1st respondent in error to INEC instead of the petitioner as the winner and nominated candidate of PDP for Anambra south senatorial Zone.”
After hearing evidence from the parties and obtaining written address of counsel, the Tribunal gave judgment in favour of the 1st respondent, as petitioner. The learned Chairman of the Tribunal, Auta, J. said in the final paragraph of the judgment: “Therefore, on a totality of the evidence, it is the finding of the Tribunal that the petition has merit. It therefore succeeds. The Tribunal hereby declares that the 1st respondent was not duly elected or returned. The petitioner was the person who, having been duly presented, screened and cleared, contested the election, was duly elected candidate, and ought to have been returned. He is hereby declared the duly elected candidate on the platform of the PDP in the National Assembly Elections held on 20/2/99 for the senate seat of Anambra south senatorial Zone.”
Aggrieved, the 1st respondent as 1st appellant has come to this court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the election petition is competent for failure to state the returned winner of the election, raw figures, and date of the election?
RESOLUTION: IN APPELLANT’S FAVOUR. (The petition did not comply with the mandatory provision of the of the decree).
[PARAGRAPH 5(1)(C) OF THE DECREE WAS NOT COMPLIED WITH
‘I think not. Although Decree No.5 of 1999 does not define the word “election”, I am of the view that the Decree anticipates or envisages an election duly conducted by the Independent National Electoral commission (INEC) within the provisions of part II, sections 42 to 91 of Decree No.5 of 1999. If I am correct (and I think I am) then the deposition in paragraph 12 of the petition does not satisfy the provision of paragraph 5(1) (c) of Schedule 5 to the Decree. This is because paragraph 12 deposed to scores obtained by the 1st respondent, the 1st appellant and Mrs. Uju Ozoka at the primary election. In my humble view, a primary election is not an election within the meaning of paragraph 5(1) (c) of Decree No.5 of 1999 and in fact the generality of the provisions of Part II of the Decree. The law is elementary that where a petition does not comply with the mandatory requirements of the Decree, a court or tribunal of competent jurisdiction is entitled to strike out the petition.’
‘In view of non-compliance with the mandatory provision of paragraph 5(1)(C) of Schedule 5 to Decree No.5 of 1999 I hold that the petition filed by the 1st respondent on 19th March, 1999 is null and void ab initio.’]
II. Whether Honourable Justice Auta was competent to preside over the matter at both the Federal High Court Abuja and the National Assembly Election Tribunal, Awka?
RESOLUTION: IN APPELLANT’S FAVOUR. (The judge was not competent as he was he had foreknowledge of the case).
[THE JUSTICE AUTA HAD FOREKNOWLEDGE OF THE CASE TO PRESIDE OVER THE MATTER
‘The law recognises quite a number of causes of bias. I should confine myself to only one and that is the one relevant to this appeal. It is fore-knowledge or previous knowledge of the case. This arises when the Judge at one time or the other, had done something in the matter to the extent that he cannot be said to be a completely neutral person or stranger to it. See Oyelade v. Araoye (1968) NMLR 46; Kujore and Otubanjo (1974) 9 NSCC 424. In Oni v. Odeyinka and others (1998) 8 NWLR (Pt.562) 425, the Court of Appeal (Ibadan Division) held that the Chairman of the Appeal Tribunal should have refrained from taking part in the appeal in view of his past involvement with the NCPN party – the party of the 1st respondent in the interest of justice to obviate the likelihood of raising an impropriety. Mukhtar, JCA, correctly said at page 431: “This is a typical situation where recourse will be had to the legal adage; justice must not only be done, but must be seen to have been done. As much as possible any imputation to the impartiality of an umpire must be avoided.”’
JUSTICE AUTA OUGHT NOT TO SIT AS THE CHAIRMAN OF THE ELECTION TRIBUNAL
‘Is the judicial conduct of Auta, J. consistent with the position of the law? Why did the learned Judge sit over a case as Chairman of a Tribunal, a case he had heard earlier as a Judge of the Federal High Court? Why did he refuse to take the motion challenging or contesting his membership, better, chairmanship of the Tribunal? What law supports a court declaring a person who did not contest an election winner of that election? In other words, why did the Tribunal declare the 1st respondent as the “duly elected candidate on the platform of the PDP in the National Assembly Elections held on 20/2/99 for the senate seat of Anambra south senatorial Zone”? There are many more questions but I can stop here. It is clear from the Record of Appeal and the submissions of counsel that Auta, J. the Judge who gave the interim orders and the order transferring the case to an “appropriate tribunal”, went beyond his judicial functions when he sat as Chairman of the Election Tribunal and determined the same matter. I have serious temptation to agree with the very serious submission of learned counsel for the 2nd to 6th appellants that by sitting at the Election Tribunal, the trial Judge “sought to implement his ruling in the Federal High Court”. Although I will not fall into that temptation, I must say that the judicial conduct was not the best.’
JUSTICE AUTA ADMITTED THE CASE FILE FROM HIS FHC PROCEEDING
‘Let me pause here to refer to page 189 of the Record where Udon Akpan Davids, the Assistant Chief Registrar of the Federal High court, Abuja gave evidence as PW1 before the National Assembly Election Tribunal at Awka. The following is part of the proceedings: “PW1 sworn on Bible and states in English. My names are Udon Akpan Davids. I am Assistant Chief Registrar, Federal High court Abuja. I am on supeona. Petitioner – I seek to tender. 1st Respondent – No objection. 2nd to 6th Respondents – No objection. I have come with the record of proceedings FHC/ABJ/CS/39/99. This is it. It has a covering letter, ref. No. FHC/ABJ/15/99/41, 1/4/99 signed by me. Petitioner – I apply to tender it. 1st Respondent – Though the document is pleaded it is not relevant … 2nd to 6th Respondents – No objection … Tribunal: Objection is overruled. It is pleaded and it is relevant to this case. The file is admitted as Exhibit ‘B’. What type of thing is this! It is most strange to me, strange in the sense that Auta, J. sat on the panel and admitted the case file which arose from the proceedings he held at the Federal High Court, Abuja in his capacity as a Judge of that Court. It is this type of thing that makes the Hausa man exclaim “Haba”! And the Ibo man says (Ewoi). While I will not so exclaim, I must express my worry and I must say that I have never come across this type of procedure in all my little experience in the profession.’
THE PARTICIPATION OF JUSTICE AUTA IN THE HEARING OF THE PETITION NULLIFIED THE PROCEEDINGS
‘The simplest decision that Auta, J. should have taken was to withdraw from the case and he needed no prompting from counsel. That was the most honourable step to take but he refused to take the step. On the contrary, he begged the issue by making the statement at page 248 of the Record. I have no difficulty in coming to the conclusion that the participation of Auta, J. in the Election Tribunal which heard the matter before this court, nullified the entire proceedings and I so hold.’]
‘This appeal is allowed. I hereby set aside the decision of the National Assembly Election Tribunal delivered by Auta, J. on 4th May, 1999 in which four other Judges of the panel signed in agreement. In the circumstances, I order the return of the 1st appellant as the peoples Democratic Party candidate who contested and won the election in the Anambra south Senatorial zone. I award N2, 000 to each set of appellants.’
➥ FURTHER DICTA:
⦿ APPEALS ARE NOT WON BASED ON PROLIFERATION OF ISSUES
As is the practice, briefs were duly filed and exchanged. The 1st Appellant formulated eight issues for determination, the 2nd to 6th appellants, four and the 1st respondent, five. This Court and the Supreme Court have said it times without number that appeals are not won by the quantity of issues but by their quality. It is not by formulating large number of issues as it is in this case, that appeals are won. With respect, I do not see the place of eight issues in this appeal. They are prolix and repetitive. It is not my intention to reproduce the issues formulated by the parties. — Niki Tobi, JCA.
⦿ ELECTION PETITION SHOULD STATE THE DATE OF THE ELECTION, RETURNED WINNER, AND RAW FIGURES
As it is, the sub-paragraph provides for three requirements: (a) That the election was held. In this respect, the petitioner is expected to depose to the fact that the election was held and the date on which it was held. (b) The scores of the candidates who contested the election. Here, the petitioner is under a legal duty to indicate the official scores of INEC and not what he thinks or thought should be the scores. He can reserve what he thinks or thought should be the scores to any subsequent paragraph or paragraphs in the petition. All that paragraph 5(1) (c) requires is the raw official figures of INEC. (c) The person returned as the winner of the election. Again, all that the petitioner is expected to state is the person officially declared by INEC as the winner of the election. In other words, paragraph 5(1) (c) enjoins the petitioner to name the candidate who won the election as declared by INEC. Again, he can contest the result of INEC in any subsequent paragraph or paragraphs in the petition to the effect that he was in law the winner of the election. — Niki Tobi, JCA.
⦿ AN ARGUMENT IS PERFECTED WHEN LEGAL AUTHORITY IS PROVIDED TO BACK IT UP
And so by his judgment quoted above, the learned trial Judge repeated the same position. While the learned trial Judge did not cite any case in his Abuja Federal High Court Ruling, he did so in his judgment as chairman of the Tribunal. And that case is Komolafe v. Omole (supra). And so he perfected his legal argument on the issue that INEC has no power to foist on a party a candidate. — Niki Tobi, JCA.
⦿ ISSUE NOT RAISED AT THE TRIAL CANNOT BE RAISED ON APPEAL WITHOUT LEAVE
Learned counsel for the 1st respondent in a preliminary objection, raised the issue of filing the process on a public holiday. With respect, I entirely agree with learned Senior Advocate that that issue was not raised at the tribunal. It cannot therefore be raised on appeal without leave of this court. Unfortunately for the 1st respondent, no such leave was sought. And what is more, the tribunal did not advance the reason that the motion could not be taken because it was filed on a public holiday. — Niki Tobi, JCA.
⦿ A TRIBUNAL HAS A LEGAL DUTY TO DECIDE ALL APPLICATIONS FILED BEFORE IT
A court of law or a tribunal has a legal duty in our adjectival law to hear any court process, including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of court process. The court must hear the Party or parties and rule one way or the other. A Judge, whether of a court of law or tribunal, has no jurisdiction to come to a conclusion by resorting to his wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a Judge in our adversary system of adjudication. The failure on the part of the learned tribunal to hear the motion of the 1st appellant filed on 1st May 1999 is against the provisions of section 33(1) of the 1979 Constitution on fair hearing, and particularly the natural justice rule of audi alteram partem. See generally Otapo v. Aunmonu (1987) 2 NWLR (Pt.58) 587; Onwumechili v. Akintemi (1985) 3 NWLR (pt. 13)504; Adene v. Dantumbi (1988) 4 NWLR (pt. 88) 309; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Alfa v. Atanda (1993) 5 NWLR (pt. 296) 729. — Niki Tobi, JCA.
⦿ A JUDGE IS EXPECTED TO BE STRAIGHTFORWARD IN HIS JUDICIAL EXERCISE
A Judge by the nature of his position and professional calling is expected to be straightforward, upright, diligent, consistent and open in whatever he does in court and in any other place of human interaction and human endeavour that he happens to find himself. This is because his character as a Judge is public property. He is the cynosure of the entire adjudication in the court, and like caesar’s wife of Ancient Rome, he is expected to live above board and above suspicion, and he must live above board and above suspicion, if the judicial process should not experience any reverse or suffer any detriment. A Judge should know that by the nature of his judicial functions, he is persistently and consistently on trial for any improper conduct immediately before, during and immediately after the trial of a case. In Bakare v. Apena and others (1986) 4 NWLR (pt. 33) 1, Obaseki, JSC said that “a trial Judge ought to know that he is on trial for any improper conduct during the trial of a case before him and immediately thereafter”. By his judicial functions, a Judge is expected to hold the balance in the litigation process and he must be overtly seen as holding the balance evenly. — Niki Tobi, JCA.
⦿ A CHARGE OF BIAS ON THE JUDGE
A charge of bias arises when a Judge shows an act of partiality, see Akinfe v. The State (1988) 3 NWLR (pt.85) 729. Etymologically, bias means slant, personal inclination or preference; a one-sided inclination. It also means a pre-conceived opinion, a pre-disposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. Bias creates a condition of mind which sways judgment and renders a Judge unable to exercise his functions impartially in a particular case. There is another expression and it is likelihood of bias. When a party in an action contends that there is likelihood of bias, he is anticipating that the Judge will be biased in the judicial process. The act of bias is not formalised. The act of bias is not concretised, but by the generality of the conduct of the Judge, the possibility of bias is overt. And the possibility is substantial. See generally LPDC v. Chief Fawehinmi (1985) 2 NWLR (Pt.7) 300. In a charge of bias, the integrity, honesty or fidelity of purpose and the Judge’s traditional role of holding the balance in the matter are questioned. He is branded or seen as one who leaves his exalted, respected and traditional arena of impartiality to descend unfairly on one of the parties outside all known canons of judicial discretion. The Judge is said to have a particular interest, a proprietory interest which cannot be justified on the scale of justice, as he parades that interest recklessly and parochially in the adjudication process to the detriment of the party he hates and to the obvious advantage of the party he likes. The Judge, at that level, is incapable of rational thinking and therefore rational judgment. His thoughts are blurred against the party he hates. He is poised for a fight, an uninstigated fight in which he is the main participant. The conduct of the Judge invariably and unequivocally points to one trend and it is that he will give judgment to the party he favours at all cost, come day or night, come rain or sunshine. Such is the terrible state of mind of the biased Judge or one who is likely to be biased. — Niki Tobi, JCA.
⦿ DETERMINATION OF LIKELIHOOD OF BIAS IS OBJECTIVE TEST TO BE APPLIED
In the determination of a likelihood of bias the test is not subjective but objective. In other words, it is from the point of view of a reasonable man who happened to be present in the court and watched the proceedings. In Chief Abiola v. Federal Republic of Nigeria (1995) 7 NWLR (pt.405) 1, the Supreme Court referred to its earlier decision in Deduwa v. Okorodudu (1976) 1 NMLR 236 in which the court cited with approval what Lord Denning said in Metropolitan properties Co. Ltd v. Lannan and Others: “In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, and then he should not sit. And if he sits, his decision cannot stand … The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘The Judge was biased.” The moment right-minded or right-thinking people are of the view that the Judge was biased or there was likelihood of bias so much violence is done to the fair hearing principles as contained in section 33(1) of the 1979 constitution. This is because the Judge in his biased mind has closed the frontiers of fair hearing against the party he hates as he opens the door to accommodate the case of the party he favours. That is injustice and a court of Law should not be involved in it. — Niki Tobi, JCA.
⦿ A JUDGE SHOULD BE SOBER
It has always been my considered view that sobriety should be the first watch-word for anyone who, per chance, finds himself in the exalted position of a judge. A judicial officer should not be talkative or loquacious. Indeed, he should not be boisterous. He should be polite to witnesses and lawyers who appear before him. Above all, a judge should not be biased under any guise. It needs no further gain-saying that Auta J. should watch his steps in the discharge of his judicial functions. My Learned brother has said it all. I also allow the appeal and abide by all consequential orders including that relating to costs in the lead judgment. — John Afolabi Fabiyi, JSC.
Dr. Nnamdi Eriobuna & Ors.
➥ LEAD JUDGEMENT DELIVERED BY:
Niki Tobi, J.C.A.
⦿ FOR THE APPELLANT(S)
Chimezie Ikeazor SAN, for 1st Appellant.
Ibrahim Bawa Esq., for 2nd – 6th Appellant.
⦿ FOR THE RESPONDENT(S)
Mr. Adetokunbo Kayode, for 1st Respondent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ FAILURE TO COMPLY WITH MANDATORY PROVISION OF THE ELECTORAL DECREE WILL WARRANT A STRIKE OUT
The case of Chatjok v. Kato and others is relevant. The appellant was the petitioner at the Election Tribunal. In his petition, the petitioner claimed that the 1st and 2nd respondents were not qualified to contest the chairmanship election of Kachia Local Government council, Kaduna State in that the 1st respondent was still a public servant in the employment of Kaduna state Ministry of Works and Transport while the 2nd respondent was an ex-convict. The 2nd respondent was alleged by the appellant to have been convicted of the offence of house-breaking by Area Court I Zonkwua. During the hearing of the petition, a preliminary objection on point of law was raised on behalf of the 1st and 2nd respondents that the appellant’s petition did not comply with the requirements of paragraph 5(1) (c) of schedule 5 to Local Government (Basic constitutional and Transitional provisions) Decree No.36 of 1998 and as such the petition was defective and a nullity. Learned counsel to the appellant conceded to the objection and urged the tribunal to exercise its discretion and strike out the petition without costs. The petition was therefore struck out under the provision of paragraph 5(6) of schedule 5 to the Decree. The Court of Appeal held that where an election petition does not state the scores of the candidates as required under paragraph 5(1) (C) of Decree No.36 of 1998, the Election Tribunal has the discretion to strike out the petition. This is more so when the petitioner cannot amend the petition.
➥ REFERENCED (OTHERS)