Alhaji Akinola Sikiru Alli & Anor. V. Hon. Adegoke Saheed Adewale & Ors. (2002)
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ADZIRA GANA MSHELIA, J.C.A.
This is an appeal against the decision of the National and State Houses of Assembly Election Petition Tribunal sitting at Ibadan delivered on 13th December, 2011 dismissing the application of the Appellants.
The background facts leading to this appeal could be summarized thus:
The Independent National Electoral Commission (3rd Respondent) conducted an Election into the Oyo state House of Assembly seat for Ibadan South East State constituency 11, Oyo State on the 26th Day of April, 2011 and upon the conclusion of the said election declared the result and returned Alhaji Akinola Sikiru Alli, the 1st Appellant who contested on the platform of Action Congress of Nigeria, (A.C.N.) as winner. Not satisfied with the results declared, the 1st and 2nd Respondents as petitioners challenged the result of the election by filing a petition before the trial tribunal. The petition which was filed on the 18th May, 2011 is as set out on pages 2-54 of the record of appeal.
The petition had earlier on been dismissed pursuant to an application of the Applicants as 1st and 2nd Respondents before the trial Tribunal on the premise that the petitioners (1st and 2nd Respondents herein) failed to apply for the issuance of pre-hearing notice within 7 days of close of pleadings as mandatorily required by paragraph 18 (1) of the first schedule to the Electoral Act 2010 (as amended).
The said dismissal did not go down well with the 1st and 2nd Respondents who then appealed on the ground that the application which resulted into the said dismissal of their petition was heard and determined by a 3 man panel of the trial Tribunal instead of the chairman of the Tribunal sitting alone as envisaged by paragraph 27 (1) of the First Schedule to the Electoral Act, 2010 (as amended).
The order of dismissal was set aside by this court on the ground that a 3 man panel of the trial Tribunal, sat on the application contrary to the provision of paragraph 27 (1) of the First schedule to the Electoral Act, 2010 (as amended). This court held that only the chairman could entertain interlocutory applications and in consequence remitted the case back for re-trial de-novo before another panel of the trial Tribunal.
After the re-constitution by the new panel, the Appellants filed motion on notice dated 2nd December, 2011 and sought for a number of reliefs. On 13th December, 2011 the Appellants herein moved the said motion on notice. The appellants alleged that while Appellants counsel was still addressing the court in reply, the court there and then dismissed the application without deciding it on merit hence this appeal.
Dissatisfied with the decision of the lower Tribunal made on the 13th day of December, 2011, Appellants lodged an Appeal to this court vide their Notice of Appeal dated 23rd Day of December, 2011 and filed on same date.
In accordance with the practice of this court, parties filed and exchanged briefs of argument. Appellants’ brief of Argument dated 24th January, 2012 was filed on 25th January, 2012. The 1st and 2nd Respondents brief of Argument was dated 7th February, 2012 and filed 8th February, 2012. The 3rd Respondent’s brief of Argument undated was filed on 7th February, 2012. A reply brief dated February, 2012 was filed on same date: when the appeal came up for hearing all counsel adopted their respective briefs of argument.
Appellants’ counsel Michael F. Lana Esq. urged the court to allow the appeal; while 1st and 2nd Respondents’ counsel D. O. Titilola Esq. urged the court to dismiss the appeal. The 3rd respondent’s counsel B. O. Oyedepo Esq. urged the court to allow the appeal.
Appellants formulated three issues for determination as follows:-
(i) whether the failure of the lower Tribunal to hear and determine the issues in controversy in the Appellants’ application is not a denial of fair hearing.
GROUND 1
(ii) Whether in the circumstances the lower Tribunal ought not to have struck out the Petitioners’ Reply to the 1st and 2nd Respondents Reply when same was statute barred.
GROUND 2
(iii) Whether the lower Tribunal ought not to have dismissed the petition when there was no valid Prehearing Notice which could confer jurisdiction on the said Tribunal.
GROUND 3.
The 1st and 2nd Respondents also formulated three issues for determination thus:-
i. Whether the lower Tribunal failed to hear and determine the issues raised in the Appellants’ application and if not, whether the procedure adopted by the learned trial chairman of the lower Tribunal occasioned any miscarriage of justice in determination of electoral dispute.
ii. Whether the Appellants can still be heard to complain against the granting of the consent orders of 6th July, 2011 and compiled with since 8th July, December, 2011.
iii. Whether there was no valid pre-hearing notice in view of the pre-hearing notice dated 20th June, 2011.
The 3rd Respondent on its part adopted the three issues formulated by the Appellants.
The complaint of the Appellants under issue 1 relates to denial of fair hearing. Learned counsel submitted that the Appellants’ Application before the lower Tribunal is a challenge to the competence of (i) the Petitioners’ Reply to 1st and 2nd Respondents’ Reply and paragraph 1 (a) to their Reply to 3rd Respondent’s Reply and (ii) the Pre-hearing Notice. Learned counsel referred to the decision of the lower Tribunal quoted in the brief of argument. Learned counsel contended that the trial Tribunal dismissed the application without determining the issues canvassed therein. That it is the law that the court has a duty to hear and determine all applications properly filed.
Reliance was placed on the case of Onyekwuluje v. Animasaun (1996) 3 NWLR (Pt 439) 633. It was
contended that the error complained about is a clear denial of fair hearing as enshrined in section 36 of the constitution. That having filed and argued the application, it was incumbent on the lower Tribunal to make specific, pronouncement on each of the prayers in the application. That none of the parties challenged the jurisdiction of the Tribunal to hear and determine the application. Learned counsel urged the court to allow the appeal on this ground.
The 1st and 2nd Respondents’ counsel Mr. Titilola in response submitted in the brief of argument that there is in abundance on record that appellants were heard on their application, contrary to their allegations that they were not heard. The hearing of the application is contained in pages 197-199 of the record. The Appellants’ counsel argued his motion on 13th December, 2011 wherein he relied and adopted his written address and he amplified orally, as well. The 1st and 2nd Respondents as well as the 3rd Respondent were equally given fair hearing. See pages 200-202 of the record.
As to whether the lower Tribunal failed to determine the issues in Appellants’ application, learned counsel submitted that in the determination of an interlocutory application, it is either the application is granted or refused. That the application leading to this appeal was determined by its, refusal and consequential dismissal. It was submitted further that the contention of Appellants’ counsel that the issues were not determined is erroneous. Learned counsel submitted that being an electoral dispute where time is of essence, the arguments of appellants’ counsel that the lower Tribunal was to make specific pronouncement on each of the prayers in the application is over-stretching. Learned counsel submitted that assuming without conceding that, the ruling did not make specific findings in respect of the numerous prayers in the application, or that the ruling is brief and scanty, such error did not cause any miscarriage of justice to the Appellants. See:-
N. D. D. C. V. Precision Association Ltd. (2006) 15 NWLR (Pt 1005) 527 at 562 ratio 19.
The 3rd Respondent on the other hand adopted the issues and legal arguments proffered in support of all the three issues formulated by the Appellants as its own. However, 3rd Respondent further commends to the court the following case. Law authorities to convince the court that this appeal is meritorious and that they are conceding to it, Learned counsel referred to the cases of Newswatch Comm. Ltd v. Aita (2006) All FWLR (Pt. 378) page 580 at 598 para c-d and Riruwai v. Shekarau (2009) All FWLR (Pt. 461) 975 at 988 para h to support the contention that the trial Tribunal was bound to hear and determine the issues in controversy in the Appellants’ application. Failure to do so amounts to a denial of fair hearing he argued and urged the court to resolve issue 1 in favour of the Appellants.
I have considered the arguments of counsel proffered in respect of issue 1 raised by the Appellants. In order to resolve the issue raised I think it is necessary to review briefly what transpired before the court on 13/12/2011. See pages 197-203 of the record. The Appellants filed a motion on notice on 2/12/11 seeking for the following reliefs:-
(1) An order striking out the Petitioners Reply to the 1st and 2nd Respondents Reply on the ground that it was statute barred.
(2) An order striking out paragraphs (a) of the Petitioners Reply to the 3rd Respondent’s Reply on the ground that the Petitioners Reply to the 3rd Respondent’s Reply raised new issues of fact thereby constituting an amendment to the petition.
(3) An order setting aside the Pre-Hearing Notice issued herein on the ground that the application for its issuance was filed outside the 7 days provided by paragraph 18 (1) of the 1st schedule to the Electoral Act 2010 as amended.
(4) An order dismissing the petition on the ground that there was no valid application for the issuance of pre-hearing notice within the time stipulated by Electoral Act 2010 as amended.
Appellants filed written address, 1st and 2nd Respondents filed a counter-affidavit and a written address.
It is clear from the record that Appellants’ counsel argued this motion wherein he relied and adopted his written address and he amplified orally as well. The 1st and 2nd Respondents counsel as well as the 3rd Respondent’s counsel were equally given opportunity to respond. Appellants’ counsel concluded by Replying on point of law.
After hearing each counsel in respect of the application the trial Tribunal at pages 202-203 of the record had this to say:
”if there is authorities that is in the body of the application, it is only a procedural irregularity it does not go to the jurisdiction of the Tribunal and the application of learned counsel to the applicant is hereby dismissed. Having held that the Tribunal has jurisdiction I state quite categorically that the Tribunal shall take any application freshly as the word denovo has been interpreted on the case Agboola vs. Dr. Okediran a ruling delivered by the Tribunal on 27th November, 2011. What is more the supreme court per Hon. Justice Bode Rhodes Vivour has rested all the issue in Abubakar vs. Nasamu’s case, I recommend same to the counsel.
I rest my case. This is my Ruling. All application for interlocutory and pre-hearing notice shall be filed and exchanged before the 6th January, 2012. And same shall be taken same date.”
It is evident from the record that Appellants’ counsel was given opportunity to present his case. There is nowhere in the record which showed that Appellants’ counsel was not allowed to reply on point of law.
The record indicated the submission made by Appellants’ counsel while replying on point by law. The case of Onyekwuluje v. Animashaun relied upon by Appellants’ counsel is not applicable. In that case the court failed to disclose its decision in respect of the preliminary objection raised as to the competence of certain grounds of appeal. The Supreme Court held thus:-
”It is a cardinal principle of administration of justice to let a party know the fate of his application whether properly or improperly brought before the court. It will amount to unfair hearing to ignore an objection raised by a party or his counsel against any step in the proceedings.”
In the instant case, it cannot be said that the trial Tribunal ignored the application of the Appellants. The application was taken and a decision was given appearing on pages 203-204 of the record reproduced supra.
The complaint of the Appellants’ counsel that he was not allowed to complete his argument while replying on point of law is not correct as such the issue of want of fair hearing did not arise.
As to whether the trial tribunal pronounced on the issues raised, I wish to state that looking at the decision made on pages 202-203 of the record, it appears the Tribunal did considered the issues raised. The trial Tribunal identified the fact that issues raised in the application relates to procedural irregularity which is correct but the only flaw is that the Tribunal did not differentiate between mere procedural irregularity and one that is fundamental. For instance relief 4 relating to pre-hearing notice sought by the Appellant in their application is not a mere procedural irregularity.
The issue therefore is not that the trial Tribunal did not pronounce on the issues raised but it failed to appreciate the nature of the reliefs sought. We could have given a decision one way or the other on the pronouncement but we do not want to engage in academic exercise.
See Plateau State v. A.G. Federation (2006) All FWLR (pt. 305) 590 at 646 paras H-A and Habib Nig, Bank Plc. v. Gifts Unique Nig. Ltd (200%) All FWLR (pt, 247) 234 at 260 paras E-F. This is because we observed from the record that after the trial Tribunal dismissed the Appellants’ application an order was made that all applications for interlocutory and pre-hearing notice shall be filed and exchanged before the 6th January, 2012 and same shall be taken same date. See page 203 of the record. This order directly affects issues ii and iii formulated by the Appellants. Apparently there is no ground of appeal filed by the Appellant challenging the order made by the trial Tribunal. There is no prayer asking us to set it aside. As it is, the order is subsisting since there is no appeal against it. In effect or consequence, the said order, stands or subsists. It is trite that findings of fact or order as in this case not challenged on appeal become binding on appeal. See:- Okuoja v. Ishola (1982) 7 SC 314; Ejiwhomo v. Edet-Eter Mandillas Ltd (1986) 5-9 SC 41 at 47; Adejumo v. Ayantebe (1989) 6 SC (Pt..1) 96; (1989) 3 NWLR (Pt.110) 417; Dr. Alakija & Ors vs. Alhaji Abdullai (1989) 5 SC 1; (1998) NWLR (Pt 552) 1 at 24 and and Dabo v. Alhaji Abdullahi (2005) 2 SC (Pt 1) 75; (2005) 7 NWLR (Pt 923) 181. The order become binding an appeal. In the circumstance this court cannot interfere or pronounce on it. See: – Alhaji Usman V. Garbe (2003) 7 SC 33 and Alhaji Adeyemi & Anor v. Chief Olakunri & 10 Ors (1999) 14 NWLR (Pt 638) 304 at 221. Accordingly, all the issues are resolved against the appellants.
It is for these reasons that I dismissed this appeal on the 10th day of February, 2012. Appeal dismissed. The Ruling of the lower Tribunal delivered on 13th December, 2011 is affirmed. Parties to bear their own costs.
Other Citations: 2002)LCN/1172(CA)