Alhaji Kashim Shettima & Anor V. Alhaji Mohammed Goni & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C

Appeal Nos. SC/332/2011 and SC/333/2011 are against the ruling of the Court of Appeal, Holden at Jos delivered on the 19th day of September, 2011 in appeal No. CA/J/EPT/GOV/151/2011 staying the ruling and proceedings of the Borno state Governorship Election Tribunal while No SC/352/2011 is against the decision of the said lower court delivered on the 26th day of September, 2011 in which the court adjourned the appeal pending before it sine die following the entry of appeal Nos. SC/332/2011 and SC/333/2011 at the Supreme Court of Nigeria.

The appellants in SC/352/2011 are the petitioners before the Borno state Governorship Election Tribunal, Holden at Maiduguri, in petition No.BO/EPT/GOV/1/11 filed on the 17th day of May, 2011 challenging the return of the 1st, 2nd and 3rd respondents in SC/352/2011 who are also the appellants on SC/332/2011 and SC/333/2011 respectively.

Due to serious security challenges the venue of the tribunal was relocated to Abuja from Manduguri in Borno state.

At the conclusion of pleadings the 1st – 3rd respondents in SC/332/2011 filed a motion Ex-Parte on the 29th day of June, 2011 at the Tribunal seeking the issuance of Pre-Hearing Notice and Pre-Hearing Information Sheets pursuant to paragraph 18(1) and (2) of the 1st schedule to the Electoral Act, 2010 (as amended) and order 26 Rule 8 of the Federal High Court (Civil Procedure) Rules, 2009. The issue was raised as to whether the application ought to have been made by Motion on Notice instead of the Motion Ex-Parte.

In a considered ruling on the 10th day of August, 2011 the tribunal struck out the Ex-Parte motion for failure to comply with the provisions of paragraph 47(2) of the 1st schedule to the Electoral Act, 2010 (as amended) which provisions the tribunal considered mandatory.

The 1st – 3rd respondents were aggrieved by the ruling and consequently appealed against same on 12th August, 2011 and, in addition filed a motion on Notice on 11th August, 2011 for extension of time within which to apply for Pre-hearing Notice.

The appellant and 4th and 5th respondents in SC/332/2011 filed processes at the Tribunal seeking a dismissal of the petition on the ground that same be/is deemed abandoned for failure of 1st – 3rd respondents to file their application for Pre-Hearing Notice in compliance with paragraph 18(1) of the 1st schedule to the Electoral Act, 2010 (as amended) and the ruling thereon was adjourned to 20th September, 2011 after arguments on 2nd August, 2011.

Meanwhile the appeal filed by the 1st – 3rd respondents challenging the decision of the Tribunal on the Ex-parte application was rescheduled for 19th September, 2011 from 21st September, 2011.

On the 19th day of September, 2011 learned senior counsel for the 1st – 3rd respondents who are also appellants in SC/352/2011 informed the lower court that there was a pending ruling in applications to dismiss the petition adjourned to 20th September, 2011 and urged the court to invoke its powers under section 15 of the court of Appeal Act, 2004 to protect/preserve its jurisdiction to hear and determine the appeal, which application was opposed by the other parties including the appellant in SC/332/2011. The lower court acceded to the request of senior counsel for the 1st – 3rd respondents and made an interim order arresting or staying the delivery of the pending ruling of the Tribunal scheduled for 20th September, 2011. Appeal Nos. SC/332/2011 and SC/338/2011 are against that ruling. Following the appeal against the ruling of 19th September, 2011, the appellants also filed an application for stay of the proceedings of the lower court pending the determination of the appeals before this court.

On the 26th day of September, 2011 when appeal No. CA/J/EPT/GOV/151/2011 came up for hearing at the lower court, learned senior counsel for the respondents therein objected to the hearing of the appeal on the grounds, inter alia, that appeal Nos. SC/332/2011 and SC/333/2011 had been entered at the Supreme Court etc as a result of which the lower court adjourned the appeal sine die.

Appeal No. SC/352/2011 is challenging the decision of the lower court in so adjourning the appeal sine die.

A common issue therefore links the two set of appeals which issue is whether the lower court has the power or jurisdiction to arrest a ruling/stay proceedings/adjourn proceedings sine die in an election matter having regards to the state of the law and nature of election matters. At the hearing of the appeals on the 24th day of October, 2011 this court consolidated the three appeals upon application by both counsel and heard same accordingly after which they were adjourned to today, 31st October, 2011 for judgment.

The issues for determination in SC/332/2011, as formulated by leading learned senior counsel for the appellants, YUSUF ALI ESQ, SAN in the appellants brief filed on 12th day of October, 2011 are as follows:-