Action Congress Of Nigeria V. Manu Yusuf & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment)

The notification of the Constitution of the panel was given to us on Thursday, the 15th day of September, 2011. Pursuant to that notification the panel coram: Ogunbiyi, Nweze, Onyemenam JJCA, sat for the first time on 19th September, 2011. Incidentally this appeal which was filed on 9th August, 2011 and determined by the lower Court (Tribunal) on 20th July, 2011 lapses today 19th September, 2011 by the provisions of section 285 (7) Amended Constitution of the Federal Republic of Nigeria (2nd Alteration Act).

The court, in order to avert the imminence of injustice which this state of affairs would have occasioned on the Appellant’s right of appeal decided to hear and determine it. Counsel for the Appellant and the 1st – 6th respondents adopted their respective briefs. They were even permitted indulgence of elaborating on the crucial aspects of their briefs as the occasion warranted. Upon close of argument on all sides the court rose to consider their submissions as contained in the briefs.

The Appellant’s brief which was filed on 26th August, 2011 identified 2 issues for the determination. These issues were couched thus:

1. Whether the Tribunal was right in holding that this petition is a pre-election matter and that the Tribunal has no jurisdiction to entertain it. (Ground 1 of the Notice of Appeal)

If issue one is in the negative, whether the tribunal was right to have dismissed the petition of the Appellant notwithstanding the weight of evidence proffered before the tribunal which nominated but Appellant’s candidate was validly nominated but unlawfully excluded from the Balanga/Billiri Federal Constituency election. (Grounds 2, 3, 4, 5 and 7 of the Notice of Appeal)

The 1st Respondent on his part formulated 3 issues for the resolution of the appeal. With the exception of the first ground which was distilled from the preliminary objection, issues 2 and 3 are basically same with the issues as formulated by the Appellant.

The 2 issues formulated by the 2nd Respondent, except for the variations in phraseology are essentially the same. The 2 issues formulated by the 3rd – 6th Respondents are basically the same with that of the Appellant. In essence therefore the court is required to resolve the issue in preliminary objection and finally the 2 issues common to all the briefs namely;

1. Whether the Tribunal was right in holding that this petition is a pre-election matter and that the Tribunal has no jurisdiction to entertain it. (Ground 1 of the Notice of Appeal)
2. If issue one is in the negative, whether the Tribunal was right to have dismissed the petition of the Appellant notwithstanding the weight of evidence proffered before the Tribunal which shows that the Appellant’s candidate was validly nominated but unlawfully excluded from the Balanga/Billiri Federal Constituency election (Grounds 2,3,4,5, and 7 of the Notice of Appeal)

First, the preliminary objection; “whether or not the grounds of appeal are competent.” The arguments on the preliminary objection span paragraphs 4.2 – 4.6 (pages 7 – 11) of the brief of argument of the 1st Respondent. In their reply to the 1st Respondent’s brief, the Appellant responded to the issues raised in the preliminary objection; see paragraphs 1.1 – 4.0 (pages 2 – 9) of the Appellant’s reply to the 1st Respondent’s brief filed on 8th September, 2011.

We have dutifully and conscientiously considered the kernel of the said objection, we take the view that it is unmeritorious. In the reasons for the judgment which shall be delivered later, relevant judicial authorities on which this decision is anchored shall be set out. In essence, we agree with the Appellant that the grounds of appeal are proper. That disposes of the preliminary objection.

Now, the main appeal, the substance of the 1st issue common to all the briefs simply comes to this; whether the Tribunal was right in holding that this Petition was a Pre-election matter and it had no jurisdiction to entertain it. The Appellant devoted paragraphs 3.1 – 3.2 (pages 4-9) of the Appellant’s brief in adumbrating the nuances of the questions germane to this issue. In the main, their case is that the Appellant as the Petitioner presented the Petition before the Tribunal pursuant to Section 138 (1) (d) of the Electoral Act, 2010 (as amended). The pleadings ample made averments which brought their case within the fore corners of Section 138 (1) (d) (supra), see paragraphs 8, 17, 18, 19, 20 of the Petition (pages 2 – 4) of the record.

The reliefs can be found in paragraphs 22.1 – 22.2 of the said Petition.

The Appellant also called 2 witnesses to substantiate these averments in the said pleadings. See pages 7 – 9, 41 – 43, 137 – 148 of the Record.

The crux of the argument of the 1st Respondent is that the Appellant was not duly nominated in accordance with Section 34 of the Electoral Act (as amended) see paragraph 4.8 of the 1st Respondent’s brief. Furthermore, that he failed to comply with section 85 of the Act (supra), that is to say that it failed to give the 3rd Respondent the 21 days notice of any convention etc. and that it also failed to comply with the provisions laid down in Section 87 of the Act (supra). Placing reliance on Section 87 (10) of the Act (supra) (Section 87 (9) in the new amended Electoral Act and a host of Supreme Court decisions he contended that this was a pre-election matter. In his view both the pleadings and evidence demonstrated without peradventure that this was a pre-election matter. In consequence the Tribunal was right in declining jurisdiction.

The 2nd Respondent dealt with this issue in their Paragraphs 4.1 – 4.4 (pages 6 -9) of the brief of argument deemed properly filed and served today. The arguments contained therein are patterned after the arguments of the 1st Respondent already referred to. In sum, placing reliance on the same authorities as the 1st Respondent it took the view that the Tribunal rightly declined jurisdiction.