By Edmund Onyechere

The judgment of the Court of Appeal in the Governorship election petition appeal for Abia State was delivered on the 11th day of February, 2009. The hearing of the appeal was concluded on 26th November, 2008 when the Briefs were adopted. Exchange of briefs was concluded in May, 2008.

The panel of the Court of Appeal who heard the appeal were Hon. Justices , S.A. . Ibiyeye, C.B. Ogunbiyi, P.A. Galinje, O. Ariwoola and G.O. Shoremi. The hearing notice, for the judgment was issued on February 2, 2009 for a judgment date of February 11, 2009. In effect, the panel had enough time to deliver a type-written judgment. The inordinate delay in the hearing of the appeal was at the instance of the Appellants.

When the judgment was final delivered, it was not in any way different from what the P.P.A. members had earlier boasted of.1. (a)  The typed judgment stated at pages 5 to 6 thereof that the petitioners pleaded that the result of the election was announced on 15/4/07 by E. C. Enabor and that if that announcement of the result by E.C. Enabor is valid then the result was announced on April 15, 2007. (b) At page 6 of the judgment the court reflected the pleading in the petition that the certificate of return dated April 15, 2007 signed by Mr. Solomon Soyebi is pleaded.

(a) At page 7 of the judgment the court reflected the alternative pleading in the petition that the election is void being that it was not conducted in substantial compliance with the Electoral Act 2006 inter alia. (b)  At page 9 of the judgment the court reflected the prayer of the petitioners that the result irregularly announced be set aside. But at page 55 of the judgment the court held that declaration of the result by a person who was not the appropriate Returning officer means that no result has been announced. The Court relied on S.28 of the Electoral Act, 2006.

Comment

If this conclusion is right then since the declaration of the result by the wrong person was nominated in the petition as an act of substantial non-compliance, then the duty of the court should be to hold that the result be set aside as the election was inconclusive.

The petitioners prayed in the alternative that the election be set aside. A complete election consists of the process which commences with accreditation and ends with announcement of the result. See also Section 147(1) of the Electoral Act, 2006 and paragraph 27 (1) of the first schedule to the same Act.

But instead of applying its decision to set aside the result which he held that its announcement by a person other than the appropriate Returning Officer is void the Court chose to rely on that decision to hold that the petition is not competent. See page 55 of judgment.

But the judgment of the court read by Hon. Justice Clara Bata Ogunbiyi in Appeal No. CA/PH/EPT/197A/2008 held that the petition was not rendered incompetent by the pleading that the result was not announced by the appropriate Returning officer. See page 29 of that judgment. Most strangely Justice Saka Ibiyeye agreed with this decision which was pronounced in the same sitting with his earlier decision to the contrary. 2.(a) At page 23 of the judgment, the court noted that 1st and 2nd Appellants filed two sets of appeal against the judgments in petition No. ABS/GOV/EPT/4/2007 and No. ABS/GOV/EPT/9/2007 on the same date on 11/3/2008. (b) On the same page 23 of the judgment the court noted that the 1st and Appellants filed a joint brief of argument in respect of petition No. ABS/GOV/EPT/4/2007 without any brief of argument filed in respect of the judgment delivered in petition No. ABS/GOV/EPT/9/2007. The Court held that it is fatal for an Appellant in particular to raise grounds of appeal. The Court then held that the consequence is that such grounds of appeal are deemed abandoned.(c)  The court further held at page 24 of the judgment that Appellants in petition N. ABS/GOV/EPT/9/2007 did not intend to rely on any brief of argument. The court then held finally that the grounds of appeal in petition No. ABS/GOV/EPT/9/2007 are deemed abandoned. The court struck out all the grounds of appeal.

The effect of this decision is that there is no subsisting appeal against the decisions/judgment in petition No. ABS/GOV/EPT/9/2007. (d) Curiously the same court proceeded at pages 74 to 75 of the judgment to strike out the petition No. ABS/GOV/EPT/9/2007. The question is whether the court has the competence and jurisdiction to rely on a brief filed in support of an appeal against the judgment un one petition to dismiss the other petition against which that appeal was not filed?

Conclusion
This judgment has thrown up so much confusion. The confusion which exposes the Court of Appeal of disrepute includes: (a)  The judgment persistently ignored the clear and express decisions of the Supreme Court on issues which are germaine to the appeal.(b) The judgment contradicts itself in many material particulars; (c)  The judgment misrepresented the trial Tribunal on the points of: (i) Whether the entire evidence of the PWl is hearsay for al purposes; (ii) Whether the trial Tribunal held that the Appellants scored the majority of lawful votes in the election.

What the Tribunal held is that the Petitioners failed to prove that they scored the majority of lawful votes; (iii) whether the offices of the Appellants as Chief of Staff and Commissioner were pleaded; (iv) The decision at page 85 of the judgment that the Petitioners never asked in their petition to be returned as Governor and Deputy Governor of Abia State . See pages 285-286 of the printed record.  (d) The intemperate language of the court at pages 85 and B8 in its attack on the trial tribunal.

The judgments in CA/PH/EPT/197/08, CA/PH/EPT/197A/08, CA/PH/EPT/197D/08 and CA/PH/EPT/197Dl/08 are materially in conflict and contradict and one another on the issue of the competence of the petition in BS/GOV/EPT/4/07 and ABS/GOV/EPT/9/07. Therefore the said judgments are a nullity as the court lacked the jurisdiction to deliver contradictory decisions in the same cause. The Justices after unanimous agreeing that the petition was incompetent in appeal no. CA/PH/EPT/197/08 and CA/PH/EPT/197B/08 is not incompetent. 2. The court having struck out all the 23 grounds of appeal filed by the 1st and 2nd Appellants in respect of the judgment of the trial tribunal in ABS/GOV/EPT/9/07, the legal effect or consequence is that there was no appeal by the 1st and 2nd Appellants against the decision of the trial Tribunal in respect of ABS/GOV /EPT /9/07. Accordingly therefore the trial Tribunal’s decision in ABS/GOV /EPT /9/07 subsists. All the Judges unanimously agreed to this. Having regard to the fact that the court had unanimously struck out all the grounds of appeal in ABS/GOV/EPT/9/07, the subsequent judgment delivered by Hon. Justice C.B. Ogunbiyi was without jurisdiction and a nullity.

3. The dismissal of Petition No. ABS/GOV/EPT/9/07 which was the subject mater of CA/PH/EPT/197A/08 without hearing the 1st Respondent (POP) was in breach of the 1st respondent’s right to fair hearing and therefore the judgment purportedly delivered by the court on 11/2/09 in respect of CA/PH/EPT/197/08 was delivered without jurisdiction and therefore a nullity.

4. The court openly contradicted itself by holding in one breadth at page 55 of its judgment that there was no valid declaration of the result of the election yet at page 92 of tile same judgment it concluded with an order that the results of the election as declared on behalf of INEC on April 15, 2007 is upheld. The pronouncement by the court at page 55 of the judgment is produced hereunder as follows:  “I am of the strong view that the import of the alleged inadvertence on the part of INEC is that that declaration of result was not within the contemplation of paragraph  (JL), (a), (b) and (c) of the 1st Schedule to the Electoral Act, 2006.

The consequence was that there was no declaration of the result of the election that took place on  April 14, 2007 “Their pronouncement on page 92 of the judgment is reproduced as follows: “That the 1st and 2nd Appellants are returned in keeping with the announcements made in behalf of the 4th Respondent (INEC) on April 15, 2007 as the Governor and Deputy Governor of Abia State respectively.”

This contradictory finding is the main plank on which the court stood to hold that the Appellants did not need leave of court or extension of time to appeal against the interlocutory decision of the trial tribunal. The dismissal of the Respondents’ preliminary objection number 1 was predicated on this self-contradictory decision. The question now is whether the judgment of any court, including this appellate court is valid or a nullity when the judgment is manifestly self-contradictory.

The simple answer is that the judgment is a nullity. By the same token, we had demonstrated that the grounds of disqualification created in 5.182(1)(g) and (h) of the 1999 Constitution are within the jurisdiction of the election tribunal by virtue of 5. 145(1)(a) of the Electoral Act, 2006 and S. 285(2) of the 1999 Constitution. This jurisdiction was eloquently upheld in the case of AC vs INEC(supra) which is a decision on the Electoral Act, 2006.

The dismissal of all the grounds of the preliminary objection by the Court of Appeal on this wrong statement of the law was clearly and deliberately designed to save the appeal.  The Supreme Court had held in Abubakar v. Yar’adua (supra) that an Appellant had the right to appeal against interlocutory decisions; but must do so timorously or otherwise, needed extension of time to do so.

The Appellants never sought any extension of time and no leave was granted them. The Court of Appeal in this appeal chose to circumvent the mandatory duty of the Appellants to seek for an extension of time and the fatal effect of their failure to do so by holding that the only opportunity of the Appellants to validly appeal on any ground in an election matter is only after the final judgment. They therefore, deliberately but wrongly dismissed the preliminary objections which would have finally settled the appeal.

The same error manifested on their treatment of the Appellants’ failure to clearly set out the portions of the judgment of the trial Tribunal which they alleged to constitute a misdirection. On February 11, 2009 the Chairman of the Panel,. Justice S. A. Ibiyeye announced publicly in the open court that “This judgment is hand-written for obvious reasons” That judgment was the judgment in respect of Appeal No. CA/PH/EPT/197/08.

All the other Justices in that Panel publicly announced that they agreed with that judgment. None of the Justices dissented on any issue at all.
The right of the parties to be given a copy of that hand_written judgment is constitutional by virtue of Section 36(3) and 294(1) of the 1999 Constitution.