Congress For Progressive Change V. Independent National Electoral Commission & Ors. (2012)

LAWGLOBAL HUB Lead Judgment Report

CHUKWUMA-ENEH, J.S.C.

The appellant in this matter has appealed to this court against the unanimous decision of the Court of Appeal Yola Division given on 6/1/2012 dismissing the appellant’s appeal in this matter for lack of merit. The appeal to the lower court is against the decision of the Taraba B State Governorship Election Tribunal that has as well dismissed the appellant’s petition. The petitioner has been the appellant in the proceedings in this court and before the two lower courts. The appellant (C.P.C) and the 3rd respondent (P.D.P.) as political parties have sponsored respectively one Engineer Ahmed Yusuf and the C 2nd respondent as candidates for the position of governorship position for Taraba State in the general election of 2011. The 1st, 4th and 5th respondents have returned the 3rd respondent as duly elected governor of Taraba State.

The parties herein have filed and exchanged their respective D briefs of argument; the same have been adopted and relied on at the oral hearing of the appeal before us in this court on 1/3/2012; and to save the instant appeal from elapsing by effluxion of time (i.e. 60 days from the decision of the Court of Appeal as per Section 285(7) supra) the judgment of this court in the instant matter has E been fixed for 5/3/2012. The appellant’s case in its brief of argument has been predicated on 3(three) issues raised for determination to wit:

“1. Whether considering the provisions of section 285(8) of the Constitution of the Federal Republic of Nigeria p 1999 (as amended) the Court of Appeal has the jurisdiction to deliver judgment in the this case and reserve its reasons to a later date.

(2) Whether the Court of Appeal was right when it affirmed the decision of the Trial tribunal that since witnesses did not lead evidence in support of the documents tendered will not look at them.

(3) Whether considering that election petition is sui generis, the Court of Appeal was right in holding that since the relief sought by the appellant are declaratory the burden is fixed on the appellant to prove its case notwithstanding the fact that the 2nd respondent admitted substantial part of the petition.”

The 1st, 4th and 5th respondents have filed a joint brief of argument in this matter and have raised similar issues for determination as encapsulated in the appellant’s brief of argument that I see no need repeating them. The 2nd respondent however has in his brief of argument formulated the issues for determination as follows:

“(1) Whether the decision made by the Court of Appeal on 6/1/2012 dismissing the appeal of the appellant in this case is unconstitutional or invalid simply because the court stated thus in the course of its judgment. “I will elaborate on this on a later day” having regard to Section 285(7) and (8) and 294(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999?

(2) Whether the Court of Appeal was wrong when it upheld as unassailable the decision of the governorship Election Petition Tribunal Taraba State that it could not be called to supply the evidence which the appellant failed to do from the recess of its chambers in order to assist the appellant prove his allegation of corrupt practices against the respondents?

(3) Whether the Court of Appeal was wrong in holding that the burden of proving his allegation of corrupt practices and establishing entitlement to declaratory reliefs sought lay on the appellants?”

The 3rd respondent has raised a preliminary objection in which it has maintained that the appeal is incompetent as the court has no jurisdiction to hear the same under Section 285(7) of the 1999 Constitution (as amended). It has relied on 7 grounds of objection which on the whole have raised the simple question of whether the court can remit the appeal for hearing before another panel of justices of the Court of Appeal after the expiration of 60 days provided in section 285(7) of the 1999 Constitution (as amended). The appellant has not reacted to the objection as no reply brief has been filed by the appellant in that regard. Having considered the objection cum the grounds in expatiation, I think the issue raised therein is coterminous with the issues to be resolved in the main appeal itself and so not a matter which can be taken at an interlocutory stage. The objection is most unnecessary in the light of the issues raised for determination even by the 3rd respondent in its brief of argument. I therefore overrule the same as it amounts to using two similar processes to achieve the same purpose which in my view is even then an abuse of process.

Furthermore, it is my view that the objection has to be taken at one fell swoop with the appeal itself in order to obviate unnecessary repetition of the parties’ entrenched positions in this matter. The 3rd respondent has also enuciated its arguments in the appeal in its brief of argument in the event of its objection being overruled.

The 3rd respondent’s brief of argument filed in this matter has raised three issues for determination which in content and substantiality are very similar to the issues raised by the other respondents in this appeal. I see no need repeating the issues all over again as I go ahead to review its case in this matter.

The 3rd respondent has submitted that the Court of Appeal decision has determined the merits or otherwise of the appellant’s appeal and therefore the inadvertence in referring to section 285(8) (supra) is a mere surplusage and has not occasioned a miscarriage of justice. It has D relied on a number of decided cases of this court in support of the point. See Ihesi v. Arinze & Anor. (2007) 5 NWLR (Pt. 1027) 241 at 251; INEC v. Musa & Ors. (2002) 9/11 SCNJ 1 at 6, (2002) 17 NWLR (Pt. 796)412.