Chief Great Ovedje Ogboru & Anor V. Dr. Emmanuel Ewetan Uduaghan & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C.

This is an appeal against the decision of the Court of Appeal, Benin, court below delivered on 5th January, 2012, wherein the court below dismissed the appeal of the Appellants. The reason for the judgment of the court below is in the supplementary record before this court.

The Appellants filed two Notices of Appeals, one dated 6th of January, 2012 and the other one dated 18th January, 2012. Both Notices of Appeals were argued by the Appellants in their briefs of argument.

The appellants’ main reason for the appeal was because the court below delivered its judgment on 5th January, 2012 and reserved its reason to a later date, which was subsequently delivered on the 27th day of January, 2012.

The background facts of the appeal as contained in the printed record of appeal are that the 1st appellant was the candidate of the 2nd appellant in the 26th April, 2011 Gubernatorial Election in Delta State. He lost the election in which the 1st respondent who contested the same election into the same office under the 2nd respondent, was declared by the 3rd respondent as the person who scored the majority of lawful votes, declared as validly elected and returned as Governor of Delta State.

The Appellants were dissatisfied with the decision especially the return of the 1st respondent as Governor. On 18th May, 2011, they filed a petition in the Registry of the Governorship Election Tribunal, holden at Asaba, Delta State [the tribunal] in which they prayed that the 1st respondent allegedly having not scored the majority of lawful votes in the Governorship Election of 26th April, 2011, in Delta State, was not validly elected and ought not to have been declared and returned as Governor.

The Appellants pleaded only a ground of the petition, which is section 138(1)(c) that is “that the Respondent was not duly elected by majority of lawful votes cast at the election”. However, in the pleading, the Appellants pleaded series of criminal allegations and a few paragraphs on alleged non-compliance with the provision of the Electoral Act and the manual of the election.

The main reliefs of the appellants were for a declaration that the 1st appellant ought to have been returned and should be returned as duly elected Governor of Delta State, having polled the highest number of votes cast at the election and not less than one quarter of all the votes in each of at least two thirds of all the Local Government Area in Delta State, where election were duly conducted. The implication of this is that the 1st appellant did not score one quarter of all votes cast in each of at least two thirds of all the Local Government Areas in Delta state as required by section 179 of the Constitution, on the face of the pleadings, the petition ought not to succeed by the appellants.

The Respondents took objections on the lack of cause of action and the lack of jurisdiction by the Tribunal to entertain the petition.

Issues were joined in the respective pleadings of all the parties. The respondents who denied the allegations of the appellants and maintained that elections into the Governor’s seat of Delta State, were validly held in all the areas against which the appellants directed their petition.

All the parties have called their witnesses either in proof of the averments in the petition or in rebuttal of same. Documents were also variously tendered and admitted in evidence as Exhibits.

After parties have closed their respective cases, written addresses were filed, exchanged and adopted on 2nd of November, 2011.

In its judgment, the Tribunal found that the appellants were unable to prove criminal allegations, even by their own admission as required by law. However, relying on the doctrine of severance of pleadings, the Tribunal found that the appellants proved lack of due process in some units in Delta State and nullified those units, but still held after deductions of nullified votes, that the 1st respondent scored majority of lawful votes.

The appellants appealed to the court below against the judgment, while the three respondents also filed Notices of Cross-Appeals. Briefs of argument were filed by all the parties after consideration of which the court below gave its judgment, dismissing the appeal and allowing the cross-Appeals. On 27th January, 2012, the court below gave its reason for the judgment.

Each of the respondents filed a Notice of Preliminary Objection against the competence of the appellants two Notices of Appeal; competence of the appellant’s brief and that the court below lacked jurisdiction to deliver reasons for its decision after sixty (60) days as stipulated by the constitution.

On the hearing date of this appeal, learned senior counsel for the appellants, Mr. Sagay, who had the leave of court for Dr. Nwobike, SAN to conduct the proceedings, moved his motion for an order consolidating the hearing and determination of the two (2) Notices of appeal filed. This order was granted as prayed.

After having carefully examined the Notices of the Preliminary Objections and the issues raised in the appeal, it appears to me that both the preliminary objections and the appeal are based, primarily, on almost the same thing that is competence of the appeal and whether the court below had jurisdiction to deliver its reasons for judgment outside the sixty (60) days granted by the constitution within which to decide the appeal. I will therefore, proceed to consider together the Preliminary objections of the 1st and 2nd respondents and I shall consider the 3rd respondent’s preliminary objection later.

It appears clear to me that the main points raised in the preliminary objections by the 1st and 2nd respondents appear to be on same subject matter, that is, the competence of some of the grounds/particulars of the grounds of appeal and some issues formulated by the appellant. I have had a look at the grounds of appeal and the issues attacked. I have gone through the submissions made in the matter and come to the conclusion that the attack on the grounds and their particulars was largely based on the format and not the substance of the appeal. I think I must be guided on this issue by what this court stated in the case of the MILITARY ADMINISTRATOR OF BENUE STATE VS. ULEGEDE (2001) 17 NWLR (Part 741) 193 at page 212 – 213, per Ayoola, JSC, that:

“Where the parties to an appeal and the court are not misled by the contents of a ground of appeal, complaint about its form becomes a technicality which does not occasion a miscarriage of justice and is inconsequential.”On the multiplicity of Notices of Appeal, I go along the submission made by learned SAN for the appellants in his replies to the preliminary objections (particularly to that of the 1st respondent) that in the absence of the elements of an abuse of process the combination of the notices aforesaid is not an abuse of process. I find support in several decisions of this court that an appellant can file two [multiple] notices of appeal, more so, when our court Rules do not prohibit that. See: ABBA-TUKUR VS. GOVERNMENT OF GONGOLA STATE (1988) ALL NLR 42 at page 49. In fact, Obaseki, JSC, was of the view, with which I agree, that:

“All the notices combined have been in exercise of a right of appeal in the cause matter. They are in exercise of one right of appeal. They may have stated different grounds which if permissible in law, gives validity and competency to the notice. Where several notices of appeal have been validly filed, I do not see any thing preventing an application for leave to consolidate them into one or for the withdrawal of all except one.”

On the hearing date of this appeal, learned senior counsel for the appellant moved his application, which was granted for the consolidation of the two notices of appeal. This is all with a view to allowing the appellant to exercise his constitutional right of appeal, which is the only way, in our adversarial system, wherein the appellant, as required by the constitution and our Rules of court, is obligated to file a Notice or notices of appeal. I think that is aright legal step taken by the appellant in order to save his appeal.

On the issues for determination, it is the law and practice that where the complaint is not that the issues do not flow from the grounds of appeal or that the issues proliferate, an appellate court accepts them to be valid and will tolerate its ill-drafting in order to ensure that justice is done to the parties. I accordingly overrule the preliminary objections of the 1st and 2nd respondents.

On the objection raised by the 3rd respondent, it is pertinent to set out in full the said objection which reads as follows:

1. Based on the appellant’s contention that the Court of Appeal lacked jurisdiction to deliver reasons for its decision after 60 days as the appeal against the decision had been entered at the Supreme Court, this appeal is incompetent.
2. This appeal constitutes an abuse of process for the reason that the appellants contention in this appeal are essentially the same as the contention in the Notice of Apneal filed by the appellants on a 6th and 18th January, 2012 respectively.
3. Based on the contention of the appellants that the Court of Appeal was bound to render the reasons for the decision along with its determination of the appeal and that the decision was therefore in breach of the constitution, the appeal from the decision of the Election Tribunal was not heard and disposed of within 60 days of the delivery of the judgment of the tribunal, and therefore, not lapsed.

Learned SAN for the 3rd respondent’s challenge on the notices of appeal, the grounds of appeal; their particulars and the issues, must suffer the same fate as befallen the 1st and 2nd objectors on same. That portion of the objection is more of technicality than on the substance of the appeal. That portion of the preliminary objection is hereby overruled.

On the 2nd segment of his objection, the learned SAN for the 3rd respondent made submissions in his brief to the effect that having regard to the submissions made by the learned senior counsel for the appellants at page 9 paragraph 5 – 14 of his brief of argument on the provision of section 285(7) and (8) of the constitution, [1999] as altered, that section 283(8) 285(8) of the constitution will be an exception rather than the rule which will only apply to all final appeals’ from an Election Tribunal will not apply to a Court of Appeal sitting over a Governorship election petition appeal. The SAN for the 3rd respondent stated that the foregoing clearly may be compelling. More compelling, however, is the logical effect of the argument. That effect is that for the reason that the Court of Appeal did not give the reason for the decision within the period of sixty days from the date of delivery of the judgment of the tribunal, it did not dispose of the appeal within the stipulated period. It then follows that the appeal lapsed not having been disposed of within that restricted time. Learned SAN for the 3rd respondent argued further that the term ‘MAY’ in the section ought not to be read as an option available to all the Courts for the reason that it was specifically fashioned to apply to all final appeals. He agrees with the appellants that non final decision is only valid when the court gives its decision along with the reasons for such decision. Based on that, he contended, the appeal lodged against the decision of the tribunal lapsed as neither the parties nor the court had the vires to extend the constitutionally prescribed limitation period. Learned SAN cited and relied on the recent decisions of this court in Appeals NO. SC.272/2011, SC.276/2011; Peoples Democratic Party (PDP) VS. Congress For Progressive Change (CPC) delivered on the 31st of October, 2011. He urged this court to dismiss the appeal.

In his reply brief [starting from page 7] the learned SAN for the appellants argued that the submission of learned Senior counsel for the 3rd respondent on the 60 days limitation placed by the Constitution pursuant to the provision of section 285(7), is only fanciful without any touch of law. Learned senior counsel for the appellants conceded that there is no dispute that on the 5th of January, 2012, the court below delivered its decision/judgment in the matter but went ahead to reserve the reasons for the said decision. Learned SAN submitted further and against the submission of the 3rd respondent that an appeal can be against the inaction of the court below. He referred to the case of BRAWAL SHIPPING LIMITED VS. F. I. NWADIKE CO. LTD. (2000) (1) NWLR (Part 678) 357 at 403. Learned SAN for the appellant submitted further that the 3rd respondent’s argument on the invalidity of the court below’s judgment as it was not given within the constitutionally prescribed period is untenable because it is not the contention of the appellants that the judgment of the court below of 5th January, 2012 is nonexistent. And that the appellants only gave constitutional reasons why the decision cannot stand including the so called reasons for the judgment given on the 27th of January, 2012. That as the 3rd respondent has already agreed with the appellants on the constitutional issue, it does not lie in its mouth to beat a detour, by giving a strained implication of the judgment of the court below. Learned SAN submitted that when the Court of Appeal has shirked its responsibility the Supreme Court will be in a tight position to act in the interest of justice and decide the appeal as if it was originally lodged therein, He cited section 26 of the Supreme Court Act. Learned SAN for the appellants contended that the so-called reasons for the judgment delivered by the court below on the 27th of January, 2012 [not the decision/judgment of 5th of January, 2012] is therefore null and void, a complete nullity having been given 18 days outside the 60 days limit prescribed by section 285(7) of the 1999 Constitution. He cited and relied on this court’s decisions given on the 28th of January, 2011 in SC.426/2011, at pages 9-10 of the judgment; SC.41/2011: SC.766/2011; SC.267/2011; SC.282/2011; SC.365/2011 and SC.357/2011 delivered on the 27th of January, 2011; SC.272/2011 and SC.276/2011 delivered on the 31st of October, 2011. The learned SAN for the appellants submitted further that the decision given by the court below on the 5th of January, 2012, but bereft of any reason(s) showing how the court arrived at the same is perverse and liable to be set aside. He cited AGBENELO VS. UBN NIG. LTD. [2007] 7 NWLR [part 666] page 534 at 547 D – E. Further submissions by the learned SAN for the appellants are that in a situation where paragraph 1 of the Practice Direction [Election Appeals to the Supreme Court] No.33 of 2011, FRN Official Gazette vol.98, limits 14 days for the appellants to file appeal against the court below’s decision of 5th of January, 2012, yet the reasons for that decision were deferred to 27th of January, 2012 when the appellants would have been out of time to appeal outside the 14 days period, is most prejudicial to appellants. The case of Congress For Progressive Change vs. Independent National Electoral Commission [supra] was cited in support. The learned SAN finally capped it all by stating that the judgment of 5th January, 2012, is a decision, and it is valid as it was given within the statutory sixty [60] days. It is immaterial, he argued, that the court below indicated in the judgment that it would give reasons at a later date which they could not do within the time prescribed by the constitution,

From the records of appeal before this court, [particularly vol. 5, page 7911], it is clear that the court below sat on the 5th day of January, 2012 to deliver its decision. That decision reads as follows:

“COURT: This is our decision: Having considered the preliminary objections against the main and Cross-Appeals, parties’ arguments for and against the various appeals as contained in parties’ briefs and orally by way of emphasis, this court decided as follows:

(a) All preliminary objections are unmeritorious and are accordingly overruled.

(b) The main Appeal lacks merit same is dismissed.

(c) All three Cross-Appeals having succeeded are hereby allowed.

(d) Reasons this [sic] decision as well as the costs of the Appeals shall be delivered on a subsequent date to be communicated to parties. ”

On the 27th day of January, 2012 the court below, constituted of same panel that gave the decision quoted above, sat to deliver [judgment] or rather, reasons for the judgment. The court below stated, inter alia:

“On 5/01/2012 this court made a pronouncement overruling the preliminary objections in this appeal, dismissing the cross-appeals. I now give reasons for the decision:”

Now, section 285(7) and (8) of the 1999 Constitution (as amended) made the following provisions:

“285(7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the, delivery of judgment of the tribunal or Court of Appeal.

(8) The Court, in all final appeals from an election tribunal or Court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date.” [Underlings supplied].

The 1999 Constitution [as amended] has dropped the definition given to the word “decision” by the former Constitution. The Electoral Act 2010 [as amended] however, has re-enacted the definition given to the word by the 1999 Constitution and it states:

“Decision, means in relation to court or tribunal, any determination of that court or tribunal and includes a judgment, decree, conviction, sentence, order or recommendation”

The above meaning, in my view, is so elastic to cover interlocutory and final decisions. And without being unnecessarily pedantic, a judgment, as defined ordinarily, refers to the official and authentic decision of a court of law upon the respective rights and claims of the parties to an action or suit therein, litigated and submitted for the court’s determination. In the case law, however, a judgment is that binding, authentic, official, judicial determination of the court in respect of the claim and action or suit before it. See: SARAKI V. KOTOYE [1992] 9 NWLR [Part 264] at 165; NDIC V. FEDERAL MORTGAGE BANK OF NIGERIA [1997] 2 NWLR [part 490] 746; OSAFILE V. ODI [1990] 3 NWLR [part 137] 130; OREDOYIN V. AROWOLO [1989] 4 NWLR [part 117] 595. In the Criminal Procedure Code [CPC] judgment is referred to as the entire reasoning culminating in the finding of guilt, the conviction and pronouncement of the punishment which is the sentence. It is not merely the conclusion of the trial judge. See: EJELIKWU V. STATE [1993] 7 NWLR [part 307] 562. Thus, every decision of a court of law should flow logically from the conclusions of facts and law made by the court. It must also be plainly seen to be a logical result of such an exercise See: OLUYEMI V. IREWOLE LOCAL GOVERNMENT [1993] 1 NWLR [part.270] 468. It has been repeatedly pronounced in several decided authorities that a judgment which is good is that one which:

[a] sets out the nature of the action before the court and the issue[s] in controversy;

[b] reviews the cases presented by the parties;

[c] considers the relevant laws raised and applicable to the case

[d] gives reasons for arriving at those conclusions. See: IMOGHEME V. ALOEWE [1995] 7 NWLR [part 409] 581; SANUSI V. AMEYOGUN [1992] 4 NWLR [part 237] 527.

It has been stated in ABACHA V. FAWEHINMI [2002] FWLR [part 4] 568 that, the substance of judgment of a court is embodied in its RATIO DECIDENDI or ration [s] in the case, that is, the reason or reasons for the decision [s] as against mere passing remarks. There is therefore, the need for a court particularly one whose decision is subject to appeal, to always give reasons why it exercises its discretion in a particular way, if only because every such exercise of its discretion is subject to review. See: EKWUNIFE V. WAYNE WEST AFRICA LIMITED [1989] 5 NWLR [part 122] 425 [1989] 12 SC 92; WILLIAMS V. VOLUNTARY FUNDS SOCIETY [1982] 1-2 SC 145. It is thus a general requirement even for a tribunal charged with the performance of judicial functions. This becomes more important where appeals lie from its decision to a higher court or tribunal. Even without the likelihood of appeal, it makes for open and even-handed justice for reasons to be given. To decide without giving reasons leaves room for arbitrariness and leaves the parties to grope in the darkness as to how the decision of the tribunal/court is arrived at. If judgments were to be delivered without supporting reasons, it will be an invitation to arbitrariness, a rule merely tossing the coin and likely to result in judicial anarchy See: AGBANELO VS. UBA [2000] 7 NWLR [part 666] 540.

Section 246[c] of the Constitution 1999 [as amended] has conferred the right of appeal on an aggrieved person from the decision of the Governorship Tribunal on any question as to whether:

[i] ……………………………..

[ii] any person has been validly elected to the office of a Governor or Deputy Governor.

The appellants as petitioners presented their petition to the tribunal, after hearing; disposed of the petition by dismissing it on 11th of November, 2011. The appeal to the court was dismissed on the 5th January, 2012, but reasons for the judgment was to be given later.

Now, from the provisions of the Constitution as set out earlier, has the court below the discretion/power, in an appeal on a Governorship election which has been litigated before it, to give its decision and reserve the reason[s] thereof to a later date I think before I answer this question, it is pertinent for me at this juncture to state that as of now, the Court of Appeal by the present political dispensation has, on matters of election, power to decide two types of election matters from [1] decisions of the National and State Houses of Assembly Election Tribunals and [2] from Governorship Election Tribunals. See section 246[1] [b] and [c]. With regard to the former, subsection [3] of the same section stipulates that the decisions of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly election petitions shall be final as it is the final court on those matters. On the other hand, in the latter’s case, although appeals on governorship elections go to the Court of Appeal from the Election Tribunal, they do not terminate there. Section 232 of the Constitution, 1999 [as amended] stipulates:

233[1] The Supreme Court shall have jurisdiction, to the exclusion of any court of law in Nigeria, to hear and determine appeals from the Court of Appeal

2] An appeal shall be from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases.

[a] ………………………..

[b] ………………………..

[c] ………………………..

[d] ………………………..

[e] decisions on any question

[i] ………………………..

[ii] ………………………..

[iii] ………………………..

[iv] whether any person has been validly elected to the office of Governor or Deputy Governor under this Constitution,

[iv] whether the term of office of a Governor or Deputy Governor has ceased.

[vi] whether the office of Governor or Deputy Governor has become vacant”

This provision is a novelty. It has now transferred the finality which the Court of Appeal had, on election matters involving a Governor of any of the States of the Federation. Now the slight problem that has been posed as per my observation by subparagraph 8 of section 285 of the Constitution is the phrase, “in all final appeals”. Final appeals from the tribunal to the Court of Appeal to my understanding, can be equated to a final decision as against interlocutory. Several decided authorities have distinguished a final judgment to be one which puts an end to the action declaring that that plaintiff has or has not entitled himself to the remedy he sued for, so that nothing remains to be done except to execute the judgment. It has disposed of the rights of the parties thereto. That is the final bus stop for that court as far as that case, issue, or matter is concerned. Nothing further can be done as there is no avenue for appeal. This set of cases affects matters on the election to state/National Assemblies. In this respect therefore, it is my humble view that all final appeals on such matters terminate at the Court of Appeal. Thus, a Court of Appeal sitting on appeal on a Governorship election from an Election tribunal, which now serves as an intermediate court [and not final], can only give its decision within time stipulated, along with reasons thereof. It has no power to defer giving reasons to a later date as both the judgment and its reason thereof have to be delivered at once within the stipulated time frame. See our recent decisions in BUBA MARWA & ANOR. v. NYAKO & ORS. Appeal No. SC.141/2011; SC.766/2011, SC.267/2011; SC.282/2011; SC.365/2011; SC.357/2011 [all delivered on the 27th of January, 2012] and PEOPLES DEMOCRATIC PARTY VS. CONGRESS FOR PROGRESSIVE CHANGE & ORS., the case of ABUBAKAR VS. NASAMU, APPEALS NO. 14, 14A AND 14B/2012 delivered on the 24th of February, 2012 consolidated appeals delivered on the 31st of October, 2011. In the instant appeal which hearing is being objected, it is clear that the trial tribunal delivered its judgment on the 11th of November, 2011. The Court of Appeal delivered its judgment with its reasoning on the 27th of January, 2012. A simple arithmetic will land us to find that there is from the 11th of November, 2011, to 27th of January, 2012, a period of about 72 days.

The provision of section 285 [7] stipulates that:

“An appeal from a decision of an election tribunal or the Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal.”

The appeal to the Court of Appeal emanated from the decision of the tribunal which was delivered on 11th November, 2011. The expiry date of 60 days from the day that decision was delivered [11/11/2011] would be the 10th day of January, 2012, within which both the judgment and reasons thereof must be delivered. There is no way one can separate decision/judgment from the reasons justifying the decision/judgment.

Therefore, as the reasons for the judgment of the court below were delivered on the 27th of January, 2012, outside the 60 days limited by the Constitution, there is no valid judgment worthy of pursuing on appeal. Accordingly, I declare the judgment of the court below delivered on the 6th of January, 2012, including its reasoning delivered on the 27th of January, 2012 as null and void. It amounts to a nullity.

I sustain the preliminary objection of the 3rd respondent. The appeal is accordingly struck out.

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SC.18/2012