Independent National Electoral Commission (Inec). V. Admiral Murtala Nyako & Ors (Consolidated) (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

On the 7th April, 2011, the appeals Nos.: CA/A/117/2011; INEC v. ADM. MURTALA NYAKA (GOVERNOR OF ADAMAWA STATE) & ANR.,

CA/A/113/2011; INEC v. SENATOR LIYEL IMOKE, CA/A/119/2011; INEC v. CHIEF TIMIPRE SYLVA & 4 ORS. CA/A/115/2011; INEC v. ALH. IBRAHIM IDRIS (GOVERNOR OF KOGI STATE) & ANR & CA/A/118/2011; INEC V. ALH. MAGATAKARDA WAMAKKO & ANR, & ANR., and

CA/A/128/2011; ATTORNEY-GENERAL OF THE FEDERATION v. INEC & 4 ORS. were with the agreement by all learned Counsel for the parties therein, consolidated and heard by the Court. Although there are no rules of Court which provide for consolidation of appeals it is an established and accepted judicial practice to consolidate actions or as the case may be, appeals in which the same issues are raised by parties that are substantially the same against one or same decision of a lower Court for convenience and also save time in arguing them piece meal or separately. For that reason, consolidated appeals though heard at the same time, would retain their distinct and separate identities for the purpose of determination and so the law requires that there be separate pronouncement by the Court on each of them.

JINADU v. ESURONIBI-ARO (2005) 14 NWLR (944) 142 at 175; ABANA v. OBI (2004) 10 NWLR (881) 319.

HARUNA v. MODIBBO (2004) 10 NWLR (900) 487. With this position in mind, I intend to consider each of the consolidated appeals on its own identity, but in so doing I would attempt not to merely repeat arguments on the same issues in the appeals as canvassed in the different briefs of arguments by the learned Counsel. I would rather refer to arguments on issues which are distinct to each of the appeals and determine them accordingly. However issues which are common to all or some of the appeals once decided in one would effectively determine the issues in the others without the need to waste verbiage by mere repetition of same or similar arguments and determination. Luckily, all the appeals emanated from and are against the same decision of the Federal High Court Abuja delivered on the 23/2/11 in the consolidated suits filed by the Respondents therein against INEC; who is Appellant. I intend to deal with the appeals in the order they were argued by the learned Counsel.

CA/A/117/2011

Two notices of appeal were filed by the Appellant; the first one on the 2/3/11 which appears at pages 247-257 of the initial record of appeal and the one on the 25/3/11 contained at pages 101-105 of the Supplementary record of appeal transmitted to the Court on the 4/4/2011. In line with requirements of the Rules of Court, parties filed briefs of argument in support of their respective positions in the appeal.

The Appellants’ brief settled by A. B. Mahmoud, SAN, was filed on the 25/3/11, the 1st Respondent’s brief was settled by Kanu G. Agabi (CON) SAN and filed on the 1/4/11. Chief Olusola Oke prepared the 2nd Respondent brief which was filed on 30/3/11 while the Appellant’s Reply to the 1st Respondent’s brief was filed on 6/4/11 to complete the filing and exchange of the briefs in the appeal. The briefs were duly adopted and relied on by the learned Senior and other Counsel for the parties as their submissions in support of their respective positions at the oral hearing of the appeals. We were urged to allow or dismiss the appeal as the case may be. However the learned Senior Counsel for the Appellant, Mahmoud had said he relied on the notice of appeal filed on the 25/3/11 and abandoned the one filed on the 2/3/11 which in consequence is hereby struck out.

From the 3 grounds contained on the notice of appeal filed on 25/3/11 the learned Senior Counsel, for the Appellant had submitted three (3) issues for determination in the appeal.

They are as follows:-

“i. Whether the learned trial judge was right in holding that the tenure of office of the in Respondent as Governor of Adamawa State commenced from the date he assumed office after taking the Oath of Allegiance and the Oath Office on 5th of April, 2008, after the the re-run election conducted on 28th March, 2008.

ii. Whether the learned trial judge was right in holding that the Amendment to Section 180 of the 1999 Constitution was inapplicable to the position of the 1st Respondent who was elected into office of Governor of Adamawa State under the 1999 Constitution prior to the 2010 Amendment.

iii. Whether the learned trial Judge was right in holding that the Constitution as amendment cannot apply retrospectively to affect rights which have been acquired under the 1999 Constitution prior to the amendment.”