Alhaji Ibrahim Hassan Dankwambo V. Jafar Abubakar & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal sitting in Yola delivered on 10th September 2015, setting aside the ruling of the Governorship Election Tribunal in the consolidated application in petition No. EPT/GMB/GOV/2/2015 delivered on 3rd August 2015 and remitting the case to the Tribunal for expeditious hearing and determination of the petition on its merits.

The appellant who was 1st respondent at the court below dissatisfied with the decision and has appealed to this court via notice of appeal filed on 16/9/2015 containing 4 grounds of appeal.

The brief facts that gave rise to the appeal are as follows: on 11th April 2015, elections were conducted into the office of Governor of Gombe State by the 4th respondent. The 1st respondent contested the election on the platform of the AFRICAN DEMOCRATIC CONGRESS (ADC), while the appellant and the 2nd respondent contested on the platform of the PEOPLES DEMOCRATIC PARTY (PDP), the 3rd respondent in this appeal. Other political parties also fielded candidates. At the conclusion of the election, the 4th respondent

declared the appellant as having won the majority of lawful votes cast at the election and he was duly returned as the elected Governor of Gombe State. The appellant polled 285,369 votes as against 848 votes scored by the 1st respondent.

Dissatisfied with the return of the appellant, the 1st respondent filed a petition before the Governorship Election Tribunal sitting at Gombe challenging the return of the appellant. After the close of pleadings, the 1st respondent applied for the issuance of pre-hearing conference notice pursuant to Paragraph 18(1) of the 1st Schedule of the Electoral Act 2010 (as amended). At the conclusion of the pre-hearing session, the trial Tribunal issued a report of the pre-hearing and fixed the petition for hearing.

At the hearing, the appellant herein, as 1st respondent filed an application urging the court to strike out the petition on the ground that the petition was signed by one SAM KARGBO ESQ. whose name is not on the Roll of Legal Practitioners permitted to practice law in Nigeria. The 1st respondent herein in response to the application filed a counter affidavit wherein it was averred, inter alia, that SAM KARGBO is the same

person as SAMUEL PETER KARGBO whose name appears on the Roll of Legal Practitioners. Several exhibits were attached to the counter affidavit in support of the averments.

In a ruling delivered on 9th July 2015, the Tribunal agreed that SAM KARGBO is very different From SAMUEL PETER KARGBO and held that the name SAM KARGBO, which is not on the Roll of Legal Practitioners, cannot validly sign the petition. It however held that as the petition was signed by both SAM KARGBO and the petitioner himself, the petition could not be declared incompetent. In other words, it was saved by the signature of the petitioner.

Hearing of the petition was to commence when the 2nd and 3rd respondents herein filed similar applications urging the Tribunal to dismiss the petition on the ground that SAM KARGBO who represented the petitioner at the pre-hearing session is not a name on the Roll of Legal Practitioners and therefore the proceedings at the pre-hearing session ought to be expunged from the record. In a consolidated ruling delivered on 3/8/2015, the Tribunal upheld the submissions of the 2nd and 3rd respondents and dismissed the appeal.

The 1st respondent was dissatisfied with

the ruling and filed two notices of appeal at the lower court within time on 3rd August 2015 and 19th August 2015 respectively. The notice of appeal filed on 3rd August 2015 was subsequently struck out. On 9th September 2015 the court below allowed the appeal in part. It set aside the judgment of the trial Tribunal dismissing the 1st respondent’s petition and remitted the matter to the Tribunal for hearing.

Dissatisfied with the judgment of the lower court, the appellant filed this appeal before this court on four grounds of appeal. Significantly, the 1st and 2nd respondents also filed appeals against the judgment.

Altogether, six appeals were filed bearing Appeal Nos:

(i) SC.706/2015: Alh Ibrahim Hassan Dankwambo v. Jafar Abubakar & 3 Ors;

(ii) SC.707/2015: Alh. Ibrahim Hassan Dankwambo v. Jafar Abubakar & 3 Ors;

(iii) SC.730/2015: Peoples Democratic Party v. Jafar Abubakar & 3 Ors;

(iv) SC.731/2015: Peoples Democratic Party v. Jafar Abubakar & 3 Ors;

(v) SC.732/2015: Alh. Ibrahim Hassan Dankwambo v. Jafar Abubakar & 3 Ors; and

(vi) SC.733/2015: Alh. Ibrahim Hassan Dankwambo v. Jafar Abubakar & 3 Ors.

At the hearing of the appeal on 20th October

2015, it was agreed by learned Counsel representing the parties that the decision of this court in the present appeal, SC.732/2015 shall bind all the other appeals, the parties and issues therein being the same.

It is acknowledged that briefs of argument were filed and fully exchanged in all the appeals.

At the hearing of the appeal, learnedsenior Counsel, IBRAHIM ISIYAKU, SAN adopted and relied on the appellant’s brief filed on 28/9/2015 and urged the court to allow the appeal.

MR.SAMUEL PETER KARGBO, learned Counsel for the 1st respondent adopted and relied on the 1st respondent’s brief filed on 2/10/2015. He urged the court to dismiss the appeal.

SOLOMON UMOH, SAN learned senior Counsel for the 2nd respondent relied on his brief of argument filed on behalf of the appellant in SC.706/2015 and SC.707/2015 and urged the court to allow the appeal.

MR. AYODELE, SAN urged the court to allow the appeal relying on the brief filed in SC.730/2015 and SC.731/2015. He also urged the court to be guided by its decision in FBN PLC v. MAIWADA (2013) 5 NWLR (pt.1348) 444.

MR. I.M. DIKKO, learned Counsel for the 4th respondent relied on his brief filed on 2/10/2015 and stated

that the 4th respondent concedes the appeal.

The appellant raised two issues for the determination of the appeal. They are:

1. Whether the petitioner’s solicitor can, in conducting the petition, prepare, sign and file court processes and conduct court proceedings using, as his name, an alias other than his name on the Roll of Legal Practitioners, and, if he cannot, what is the validity of the said processes and proceedings(Grounds 1, 2 and 3)
2. Whether the appeal to the lower court from the decision of the Governorship Election Tribunal was competent.(Ground 4)

The 1st respondent formulated three issues as follows:

1. Whether the Court of Appeal was right in holding that the Trial Tribunal misapprehended and misapplied the stipulations of the Legal Practitioners Act when it held that the proceedings conducted at the pre-hearing by Sam Kargbo are to be expunged because the name Sam Kargbo is not on the Roll of Legal Practitioners, without having been shown that the person who conducted the proceedings as Sam Kargbo is not a Legal practitioner, since what the Act seeks to avoid is have impostors carry out duties as legal practitioners. (Grounds 1 and 2)
2. Whether

from the facts and circumstances of this case the Court of Appeal was right in setting aside the Ruling of the Tribunal in the consolidated applications in petition No. EPT/GMB/GOV/2/2015 delivered on 3rd August, 2015.(Ground 3)

3. Whether the appellant has established a case before this Honourable Court to warrant this Honourable Court to question the competence of the appeal to the lower court from the Tribunal.(Ground 4)

The 4th respondent adopted the issues formulated by the appellant. Having examined the issues formulated by the parties, I am of the view that the two issues formulated by the appellant will adequately dispose of the issues in contention in this appeal.

I shall however rephrase issue 1 by using the word “abbreviation” in place of the word “alias”. I shall state my reasons in the course of the judgment.

I shall therefore adopt the appellant’s issues for the resolution of this appeal, as amended.

ISSUE 1

Whether the petitioner’s solicitor can, in conducting the petition, prepare, sign and file court processes and conduct court proceedings using, as his name, an abbreviation other than his name on the Roll of Legal Practitioners, and, if he cannot,

what is the validity of the said processes and proceedings(Grounds 1, 2 and 3)

The crux of this issue is whether the lower court was right in holding that SAM KARGBO who signed processes and conducted proceedings before the Tribunal on behalf of the 1st respondent could not validly do so when the said names “SAM KARGBO” are not on the Roll of Legal Practitioners permitted to practice law in Nigeria.

IBRAHIM ISIYAKU, SAN, learned senior counsel for the appellant, submitted that upon a proper interpretation of Section 2(1) of the Legal Practitioners Act Cap. L11 LFN 2004 and Section 24 thereof, the only permissible name by which a Legal practitioner may prepare, sign and file processes in court and conduct proceedings is the name as it appears on the Roll of Legal Practitioners. In his view, it is not permissible to use an alias. Learned senior counsel conceded that an affidavit was deposed to on behalf of SAM KARGBO to the effect that he is the same person as SAMUEL PETER KARGBO whose name appears on the Roll of Legal Practitioners with photocopies of his Call to Bar Certificate and other documents attached thereto. He argued that the said counter affidavit does

not avail him as the attached documents were uncertified and did not contain the passport photograph of the said SAMUEL PETER KARGBO to show that he is the SAMUEL PETER KARGBO whose name appears on the Roll.

He argued that the authorities of REGISTERED TRUSTEES OF APOSTOLIC CHURCH v. AKINDELE (1967) ALL NLR 118: OKARIKA v. SAMUEL (2013) 7 NWLR (Pt.1352) 19 and HAMZAT v. SANI (2015) 5 NWLR (Pt.1453) 486 relied upon by the lower court in reaching its decision are not applicable to the facts of this case, as those decisions were in respect of the invalidity of processes filed the name of a firm and not the use of an alias.

Learned senior counsel submitted that the provisions of Section 2(1) of the Legal Practitioners Act creates two possible scenarios:

1. Where a person was not called to the Nigerian Bar and is not a lawyer permitted to practice in Nigeria; and
2. Where a person was called to the Nigerian Bar but without showing any reasonable cause e.g. change of name as in adoption of husbands name after marriage, resorts to an alias to prepare, sign and file court processes and also to conduct court proceedings.(Emphasis mine)

He submitted that Section 2(1)

and 24 of the Legal practitioners Act do not sustain the use of an alias by a Legal practitioner other than the name on the Roll except where there is reasonable cause to do so. He argued that none of the exceptions was shown to be the case here. He contended that where a person who has been called to the Bar jettisons his name as it appears on the Roll and resorts to an alias, even though the commission of a crime may not be in issue, the processes prepared and signed by him and the proceedings conducted using an alias are liable to be expunged. He argued that to allow the processes and proceedings to survive is to grant license to lawyers to resort to all manner of names and in different cases.

Learned senior counsel identified processes signed and filed on behalf of the petitioner by different counsel who were being led by SAM KARGBO. He also identified proceedings conducted by the said SAM KARGBO. He argued that the lower court was wrong to have held that the said processes and proceedings were valid. He contended that the effect of a person signing processes and conducting proceedings in a name other than the name on the Roll is the same as where processes

are signed by a law firm even though it is a registered business name and the partners are known lawyers.

He submitted finally, that even if SAM KARGBO is a known lawyer, processes signed and proceedings conducted by him in that name would be invalid if SAM KARGBO is not a name on the Roll.

In reaction to the submissions on behalf of the appellant, SAMUEL PETER KARGBO, learned counsel for the 1st respondent contended that the resolution of the issue depends upon a proper appreciation of Sections 2(1), 8(1) and 24 of the Legal Practitioners Act. He submitted that on a proper examination of the provisions, the lower court was right to have held that the provisions are in respect of the PERSON and refer to the PERFECT who shall be entitled to practice as a legal practitioner in Nigeria and not the name. He contended that the name is not an entity and that it is not the name that requires the requisite quantification of call to the Bar and enrolment at the Supreme Court but the person who bears the name. He submitted further that it is the person who bears the name that is obligated to pay practicing fees. He submitted that where, as in the instant case the

qualification of counsel is not in issue, it would amount to the worst kind of misapprehension and misapplication of the provisions of the Legal Practitioners Act to expunge processes filed by him because he subscribed the name SAM KARGBO against his signature, nullify proceedings in which he announced himself as SAM KARGBO and deny him the right of audience.

Learned counsel argued that the contention of learned senior counsel for the appellant that SAM KARGBO is an alias is misconceived. He submitted that SAM KARGBO is not an alias but an abbreviation of SAMUEL PETER KARGBO. He submitted that an alias on the other hand, as defined in Blacks Law Dictionary 8th Edition, is a fictitious name.

Learned counsel noted that learned senior counsel for the appellant in his brief alluded to certain circumstances in which it would be permissible for a person to practice in a name other than his name as it appears on the Roll. He argued that this negates the strict interpretation being advanced by the said senior counsel. He argued that the strict interpretation canvassed by learned senior counsel would defeat the purpose of the Legal Practitioners Act by punishing

legal practitioners rather than protecting them.

He urged the court to take judicial notice of the Fact that on a daily basis learned counsel announce their appearance in court in their abbreviated names or use their initials. He submitted that being a person called to the Bar, enrolled at the Supreme Court and having paid his practicing fees, learned counsel for the 1st respondent has unhindered audience before the Tribunal and can sign processes as SAM KARGBO. He submitted that learned counsel for the 1st respondent did not in any way breach any of the provisions of the Legal Practitioners Act by abbreviating his name.

He argued that in the circumstances the trial Tribunal was wrong to have expunged the pre-trial proceedings and processes filed for and on behalf of the petitioner/1st respondent, and worse still, to have dismissed the petition. He urged the court to resolve this issue in the 1st respondent’s favour.

As noted earlier, no briefs were filed on behalf of the 2nd and 3rd respondents in this appeal, as they had filed briefs in their separate appeals also challenging the decision of the lower court on grounds similar to those advanced by the appellant

herein.

I.M. DIKKO, ESQ, on behalf of the 4th respondent concedes the appeal.

In order to resolve this issue it is necessary to consider the relevant provisions of the Legal Practitioners Act, namely Sections 2(1) , 8(1) and 24 thereof. Also relevant is the definition of the words “alias” and “abbreviation”.

The Oxford Advanced Learner’s Dictionary New 8th Edition defines “alias” (noun) as “a false or different name, especially one that is used by a criminal.”

“alias” (adverb) used when a person, especially a criminal or an actor, is known by two names: Mick Clark, alias Sid Brown, Hercule Poirot, alias David Suchet.

Black’s Law Dictionary, 8th edition at page 79 defines “alias” as an assumed or additional name that a person has used or is known by – also termed assumed name; fictitious name.

“Abbreviate” – to make a word, phrase or name shorter by leaving out letters or using only the first letter of each word” – Oxford Advanced Learners Dictionary (ibid).

From the above definitions it is evident that what was in issue at the trial Tribunal was not the use of an “alias” or fictitious name

as contended by the appellant but the use of an abbreviated form of a name. Where a name is abbreviated, the name is either shortened by removing some letters or by the use of initials. In the instant case, it is contended on behalf of the 1st respondent that the name SAM KARGBO in which learned counsel signed court processes and conducted proceedings is an abbreviation of the name SAMUEL PETER KARGBO which appears on the Roll of Legal practitioners.The issue is therefore not the use of an alias but of abbreviation.

I now return to the provisions of the Legal Practitioners Act. The relevant Sections provide as follows:

Section 2(1): “Subject to the provisions of this Act, a person shall be entitled to practise as a barrister and solicitor if, and only if, his name is on the roll.”

(Emphasis mine)

Section 8(1): “Subject to the provisions of the next following subsection and of any enactment in force in any part of Nigeria prohibiting or restricting the right of any person to be represented by a legal practitioner in proceedings before the Supreme Court or the Sharia Court of Appeal or any Area or Customary Court, a legal practitioner shall have the right of

audience in all courts of law sitting in Nigeria.”

Section 24: “In this Act, unless the con otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say –

“legal practitioner” means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.”

The appellant’s main emphasis is on the words “if and only if” used in Section 2(1) of the Legal Practitioners Act above.

As rightly stated by learned senior counsel for the appellant, the golden rule of interpretation of statutes is that where the words used in a statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. It was held inter alia, in the case of IBRAHIM v. BARDE (1996) 9 NWLR (Pt. 474) 513 @ 517 B – C per Uwais, CJN (as he then was) that if the words of the statute are precise and unambiguous, no more is required to expound them in their natural and

ordinary sense.

He held further that the words of the statute alone in such circumstances best declare the intention of the lawmaker. See also OJOKOLOBO v. ALAMU (1987) 3 NWLR (Pt. 61) 377 @ 402 F – H; ADISA v. OYINWOLA & ORS (2000) 6 SC (PT. II) 47; UWAZURIKE & ORS v. ATTORNEY GENERAL FEDERATION (2007) 2 SC 169.

It is important to note that the caveat to the literal construction of statutes as stated in the authorities referred to above is that such literal interpretation must not lead to absurdity or inconsistency with the rest of the statute.

Considerable emphasis has been laid on the decisions of this court in OKAFOR v. NWEKE (2007) 10 NWLR (Pt.1043) 521: FIRST BANK OF NIG. PLC v. MAIWADA (2013) 5 NWLR (Pt. 1348) 444 on the interpretation of Sections 2(1) & 24 of the Legal Practitioners Act. In both cases, this court stated in no uncertain terms that for accountability, responsibility and for the protection of the profession, legal practitioners must comply with the law as enacted. This is certainly good law and holds true till today.

However, the law is trite that cases are decided on their peculiar facts and in light of the applicable law and

therefore every case is an authority for the facts, which it decides. See: DINGYADI & ANOR v. INEC & ORS (2011) 10 NWLR (Pt. 1255) 347 @ 391 A – B: EMEKA v. OKADIGBO (2012) 18 NWLR (Pt.1331) 55 @ 96 H: ALBION CONSTRUCTION CO. LTD. v. R.A.O. INV. & PROP. LTD. (1992)1 NWLR (Pt. 219) 583.

It was further held in EMEKA v. OKADIGBO (supra) at 96 H that the rules of stare decisis do not allow the courts to apply the ratio of a case across the board with little regard to the facts of the case before them.

The issue in contention in NWEKE v. OKAFOR (supra) and F.B.N. PLC v. MAIWADA (supra) was the validity of a legal process signed in the name of a firm, a non-juristic person. In interpreting Sections 2 (1) & 24 of the Legal Practitioners Act, the court held that a law firm is not a legal practitioner and cannot therefore practice as such by filing processes in Nigerian Courts. In F.B.N. PLC v. MAIWADA (supra) @ 483 C – D, this court per FABIYI, JSC stated thus:

“It is not in doubt that in deserving cases, purposive interpretation should be employed by the court. The purpose of a legislation is a paramount factor. The purpose of Sections 2(1) & 24 of

the Act is to ensure that only a legal practitioner whose name is on the roll of this court should sign court processes. It is to ensure responsibility and accountability on the part of a legal practitioner who signs a court process. It is to ensure that fake lawyers do not invade the profession.

“He went further to state at 483 G:

”The literal construction of the law is that legal practitioners who are animate personalities should sign court processes and not a firm of legal practitioners, which is inanimate and cannot be found in the roll of this court.”(Emphasis mine)

The issue that has arisen in this appeal is not as regards the signing of court processes by a non-juristic person but the signing of processes and the conduct of proceedings by an animate person whose name must be on the roll of Legal Practitioners.

In resolving this issue the lower court per OGAKWU, JCA held at page 2216 of the record:

“It seems to me that the issue of whether somebody who has announced appearance in court as a legal practitioner, is indeed a legal practitioner, is whether in fact the person is a legal practitioner and not as simplistic as whether the name announced is as it

appears on the Roll. May the day never come when a legal practitioner would be denied audience in court or the proceedings he conducted in court be set aside and expunged, not because he is not a legal practitioner but because he did not announce appearance in exactly the names in which he enrolled. Banish the thought Verily may that day never come.

Per OGUNWUMIJU, JCA at page 2226 of the record:

Precedents are followed on the basis of facts and law they interpreted. It is a restrictive and punitive interpretation of Section 2 of the Legal Practitioners Act to hold that the only person whose appearance can be countenanced by the court must be the same person who signed processes and whose names appeared on the Roll as SAMUEL PETER KARGBO and that the contemplation of the Legal Practitioners Act is that counsel must only file processes and announce appearance only as exactly as their names appear on the Roll leaving no room for abbreviation of such name.

……The purpose of Section 2 and Section 24 of the Legal Practitioners Act is to exclude anyone from practicing as a Barrister and Solicitor who had not been called to the Bar and whose name had not

been enrolled as a Solicitor and Advocate of the Supreme Court of Nigeria. There was no doubt that the counsel who appeared before the Tribunal was a Barrister and Solicitor duly enrolled to practice law before the courts in Nigeria. Counsel’s affidavit to that effect was never countered.”(Emphasis mine)

In my view, the opinions expressed by the lower court reproduced above are unassailable. The focus and intendment of Sections 2 (1) and 24 of the Legal Practitioners Act is to prevent any person not called to the Nigerian Bar from practicing law in any court in Nigeria.

Section 7 (1) of the Legal Practitioners Act provides:

7 (1) “Subject to the provisions of this Section a person shall be entitled to have his name enrolled if, and only if-

(a) he has been called to the Bar by the Benchers; and

(b) he produces a certificate of his call to the Bar to the Registrar.

It follows that only a person who has complied with these provisions is entitled to have his name enrolled at the Supreme Court as a legal practitioner. If such a person after enrolment proceeds to use an abbreviated form of his name to sign processes and conduct proceedings, I am of the view that

it would be stretching the literal interpretation of Section 2(1) too far to hold that processes signed in the abbreviated name and proceedings conducted with such abbreviated name are invalid.

The requirement of the law is that only a person whose name is on the roll is entitled to practice as a barrister and solicitor before the courts in Nigeria.

Learned senior counsel for the appellant himself concedes that there are circumstances such as change of name by married female members of the Bar that may be an exception to the literal interpretation of Section 2(1) of the Act. This is a concession that the Section is concerned with the animate person who has been called to the Bar.

In the instant case, as held by the court below, the appellants counsel produced documentary evidence before the trial Tribunal proving that he was enrolled at the Supreme Court of Nigeria on 16th July 1992 and a receipt showing that his practicing fee, which entitles him to practice in all courts, including the Election Tribunals in Nigeria had been paid up to date. The said affidavit was not controverted.

It was not proved that the person who signed processes and conducted proceedings

as SAM KARGBO is not a legal practitioner or that he is not the same person as SAMUEL PETER KARGBO that appears on the Roll.

I agree with learned counsel for the 1st respondent that there is nothing in Section 2(1) of the Legal Practitioners Act that prohibits the use of an abbreviation of one’s name or initials in signing documents and/or conducting proceedings in any court of law in Nigeria. In my view, to construe Section 2(1) of the Legal Practitioners Act in the strict sense urged by learned senior counsel for the appellant would be inconsistent with the intendment of the provision, which is to protect the legal profession from impostors and charlatans. Such an interpretation would amount to enthroning technicalities at the expense of substance and would certainly lead to a miscarriage of justice as has occurred in the instant case. It cannot be the intendment of the statute to punish a legal practitioner who has genuinely been called to the Bar simply because he signs processes and conducts proceedings using an abbreviation of his name as it appears on the Roll.

This issue is accordingly resolved against the appellant.

ISSUE 2

The contention of learned

senior counsel for the appellant under this issue is that the decision of the trial Tribunal was not related to the substance of the petition or the election.

He submitted that the jurisdiction of the Election Tribunal and the appellate Courts in election matters is statutory. He referred to Section 285(2) of the 1999 Constitution (as amended) to the effect that the Governorship Election Tribunal has exclusive jurisdiction to hear and determine petitions as to whether a person has been validly elected to the office of Governor or Deputy Governor of a State. He also referred to Section 246(1)(c)(ii) of the Constitution (as amended).

Relying on several authorities, including DANGANA v. USMAN (2013) 6 NWLR (Pt.1349) 50 at 93 B D; AMADI v. INEC (2013) 4 NWLR (Pt.1345) 595 at 633 D – F; 634 – 635 H C and ADISA v. OYINWOLA (2000) 10 NWLR (pt.674) 116 at 202, he submitted that in the interpretation of provisions of the Constitution, effect must be given to every word in the Section and that where the words used are clear and unambiguous, they must be given their plain, ordinary meaning. He submitted that from the provisions of Section 246(1)(c)(ii) of

the Constitution (as amended) it is only an appeal on a question as to whether a person has been validly elected to the office of Governor or Deputy Governor of a State that lies as of right to the Court of Appeal from an Election Tribunal. He contended that any appeal on any other issue must be with leave.

He argued further that Paragraph 55 of the 1st Schedule to the Electoral Act, which relates to matters of practice and procedure in civil appeals cannot extend to matters in respect of which an appeal may lie as of right since jurisdiction is conferred by substantive provisions of the law and not by Rules of practice and procedure.

He submitted that Section 241 of the Constitution (as amended) is only applicable to appeals that lie as of right to the Court of Appeal from decisions of the High Court of a State or the Federal High Court in matters other than election matters and that Section 242 relates to appeals that lie with leave in similar circumstances.

He referred to the rule of interpretation to wit: express unius est exclusion alterius (the express mention of one thing implies the exclusion of the other) and contended that if it was intended to include

appeals from Election Tribunals, Sections 241 and 242 of the Constitution would have so provided. He submitted that the exclusion of the Election Tribunal must be taken as deliberate. He referred to: ATTORNEY GENERAL LAGOS STATE v. ATTORNEY GENERAL FEDERATION (2014) 9 NWLR (Pt.1412) 217 @ 275 D – H. He submitted that without any provision in Section 246 to the effect that appeals shall also lie as of right from decisions of the Governorship Election Tribunal on any decision finally disposing of the rights of the parties in the petition, or any decision involving questions of law alone, the appeal herein, not being in respect of a decision as to whether a person has been validly elected to the office of Governor or Deputy Governor of a State, is incompetent and the lower court had no jurisdiction to entertain it.

In reaction to the submissions of learned senior counsel for the appellant, learned counsel for the 1st respondent was at a loss as to how the decision, which dismissed the petition and thereby affected the status of the appellant to prosecute the petition could be described as a decision not related to the substance of the petition or even the

election. He referred to the decision of this court in AWUSE v. ODILI (2003) 18 NWLR (pt.851) 116 @ 154 wherein it was held that appeals lie to the Court of Appeal from decisions of Election Tribunals in an election petition whether interlocutory or on the merits. He noted that the appellant did not challenge the grounds of appeal or the Notice of Appeal but anchored his argument wholly on his interpretation of the term and purport of Section 246 of the Constitution.

As observed earlier, the crux of the appellants complaint in respect of this issue is that the decision appealed against has nothing to do with the question as to whether a person has been validly elected to the office of Governor or Deputy Governor of a State and therefore the appellant cannot appeal as of right to the court below. In other words, that leave to appeal ought to have been sought and obtained, and that failure to do so renders the appeal incompetent.

The law is well settled that jurisdiction is a creation of statute or the Constitution. The jurisdiction of the Election Tribunal and the Court of Appeal in respect of Election petitions is derived from the 1999 Constitution (as

amended). It is therefore both statutory and constitutional. See ANPP v. GONI (2012) LPELR – 7830 6A (SC) at 29-30 G-A.

Section 285(2) of the 1999 Constitution (as amended) provides:

285(2): “There shall be established in each State of the Federation an Election Tribunal to be known as the Governorship Election Tribunal which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State.”

The provisions are clear and unambiguous and must be given their ordinary meaning. It is not in dispute that the 1st respondent’s petition before the lower court is for the determination of the question as to whether the appellant herein and the 2nd respondent were validly elected to the office of Governor and Deputy Governor of Gombe State.

It is also not in dispute that the said petition was dismissed by the Tribunal on 9th July 2015 and that it is the said dismissal that gave rise to the appeal before the lower court.

Section 246 (1)(c)(ii) of the Constitution provides:

“(1) An appeal to the Court of Appeal shall lie as

of right from-

(c) decisions of the Governorship Election Tribunals on any question as to whether-

(ii) any person has been validly elected to the office of Governor or Deputy Governor

(2) The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other court of law or Tribunal established by the National Assembly.

Again, the words used are clear and unambiguous and must be given their plain and ordinary meaning.

With the greatest respect to learned senior counsel for the appellant, I am unable to agree with him that the appeal before the lower Tribunal has nothing to do with the substance of the petition or the election. The rule of interpretation express unius est exclusion alterius is inapplicable in the present circumstances. Indeed as held by this court in Awuse v. Odili (supra) at 154 – 155 H-A, the word ”decision” as defined in Section 318 of the 1999 Constitution (as amended) includes decision against a ruling in any proceeding and therefore includes an interlocutory ruling in a proceeding. See also BUHARI v. OBASANJO (2003) 17 NWLR (pt. 841) 446.

The effect of the dismissal of the

1st respondents petition by the Tribunal is that his right to have the question as to whether the appellant and 2nd respondent were validly elected to the office of Governor and Deputy Governor of Gombe State determined has been truncated. Learned senior counsel for the appellant conceded as much at the hearing of this appeal on 19/10/2015. The 1st respondent was entitled to appeal as of right against that decision pursuant to Section 246(1) (c) (ii) of the 1999 Constitution (as amended). This issue is also nearby resolved against the appellant.

In conclusion, the appeal fails and is accordingly dismissed. The judgment of the Court of Appeal sitting at Yola, delivered on 10th September 2015 is hereby upheld. The petition of the 1st respondent is remitted to the trial Tribunal for expeditious hearing. The five other appeals namely; SC.706/2015, SC.707/2015, SC.730/2015, SC.731/2015 and SC.733/2015 on the same facts & law and between the same parties are also accordingly dismissed, as agreed by all learned counsel.

There shall be no order for costs.

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SC.732/2015