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Home » Nigerian Cases » Supreme Court » Dr Umar Ardo V. Independent National Electoral Commission & Ors (2017) LLJR-SC

Dr Umar Ardo V. Independent National Electoral Commission & Ors (2017) LLJR-SC

Dr Umar Ardo V. Independent National Electoral Commission & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

This Appeal relates to the gubernatorial election conducted by the 1st Respondent [INEC] in Adamawa State on 28/2/2015. The Appellant, as an indigene of Adamawa State and a Politician, who registered to vote and be voted for in the State, instituted an action by way of Originating Summons at the Federal High Court, Abuja [trial Court], wherein he submitted the following question for determination-

Whether having regards to Subsections 178(2) and 180(2) (sic) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the 1st Respondent i.e., [INEC] can Legally conduct Governorship election in Adamawa State on Saturday,28 February 2015

He also sought the following reliefs against the thirteen Defendants –

  1. A DECLARATION that having regard to Subsection 178(2) and 180(2) of the Constitution (as amended) the tenure of office of Barrister Bala James Ngilari who took Oath of Allegiance and Oath of Office, as Deputy Governor, of Adamawa State on 13/2/2012, and in that capacity, assumed office as Governor of Adamawa State after the impeachment of the

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Governor, Admiral Muritala Nyako, expires on 12/2/2016.

  1. A DECLARATION that having regard to Subsection 178(2) of the (1999) Constitution – – (as amended), the 1st Respondent cannot legally conduct Governorship election in Adamawa State on a date earlier than one Hundred and Fifty days before 12-2-2016 when the tenure of office of Barrister Bala James Ngilari expires as Governor of Adamawa State
  2. A DECLARATION that the Governorship election scheduled by the 1st Respondent to hold on Saturday, 28/2/2015, is a breach of Subsection 178(2) of the Constitution – (as amended).
  3. AN ORDER OF INJUNCTION restraining the 1st [Respondent] from conducting Governorship election in Adamawa State on 28/2/2015 which is a date earlier than one hundred and fifty days from 12/2/2016 when the tenure of office of Barrister Bala James Ngilari expires as Governor of Adamawa State.

The Originating Summons filed on 5/2/2015, was supported by a 24-paragraph Affidavit, and 11-paragraph Further and Better Affidavit wherein it was averred as follows in paragraph 7 thereof that –

The 1st [Respondent]’s deposition in its Counter-Affidavit to the

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Originating Summons that Admiral Murtala Nyako (Rtd.) and Barrister Bala Ngilari took the Oath of Allegiance and Oath of Office as Governor and Deputy Governor respectively on 8/2/2012 is correct.

The Originating Summons was initially taken out against INEC and twelve Political Parties, which included the 2nd to 5th Respondents, as the 2nd, 3rd, 10th and 13th Defendants. The 6th Respondent, who was then the Governor-Elect of Adamawa State, applied to the trial Court and was subsequently joined as the 14th Defendant, to the said Suit. Whereupon, the Appellant filed an Amended Originating Summons, containing the same reliefs and orders sought in the original process.

In addition to their Counter-Affidavits, the Respondents filed Preliminary Objections to the Originating Summons to the effect that the Appellant had no locus standi to bring the action; that the action is merely academic; and that it constitutes an abuse of Court process.

In his Judgment delivered on 17/7/2015, the learned trial Judge, Chukwu, J., noted that what is in the Preliminary Objection is what is canvassed in the Counter-Affidavits so determining the Objection will

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“also mean a determination of the Counter Affidavits and without equivocation will mean a determination of the substantive Suit.”

In upholding the objections, he agreed with the Respondents that the Appellant “does not have a locus standi to institute this case”, and proceeded to reprimand him in very strong language as follows –

Let me state the obvious that, the claim as framed by the Plaintiff is an affront on the judicial processes to wit it is an unbridled act of impunity having in mind the decisions of the Apex Court in the cases of Ladoja v. INEC (2007) 12 NWLR (Pt. 1047) 115, FRN V. Dariye (2011) 13 NWLR (PT. 1265) 521 and Marwa v. Nyako (2012) 6 NWLR (PT. 1296) 199. The afore-stated Supreme Court decisions are unequivocal that the term of a governor is for 4 years, even if one is criminally and illegally impeached, his tenure is calculated from when he took the oath of office and not a day will be added to replace or respite the period he was illegally impeached. It is obvious that the Plaintiff was aware of the time the said Nyako and his proxy Ngilari took Oath of office and that by 2015 their tenure had elapsed even with the extra time they

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claimed in their first tenure. So the Plaintiff by instituting this suit is obviously abusing the Court process and any contrary opinion or decision from me may amount to introducing or courting anarchy which the Apex Court had labelled judicial rascality. I don’t want to be addressed as one who had committed serious act or judicial impatience. — I dismiss this Suit for being a violent abuse of the judicial process.

Dissatisfied with the trial Court’s decision, the Appellant appealed to the Court below with a Notice of Appeal filed on 22/7/2015, and apart from the 4th Respondent, the other Parties filed Briefs of Arguments.

The 1st, 2nd and 6th Respondents filed objections to the competency of the Appeal. But the 2nd Respondent, in particular, prayed for –

AN ORDER dismissing and/or striking out the Appellant’s Notice of Appeal as well as the Appellant’s Brief of Argument for being incompetent

The Grounds of the 2nd Respondent’s Preliminary Objection are that –

  1. The appellant’s Notice of Appeal dared 22/7/2015 and filed on the same date as well as the Appellant’s Brief of Argument filed on 4/8/2015 do not have affixed Nigeria Bar

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Association’s Seal contrary to Rule 10 of the Professional Conduct for Legal Practitioners, 2007; and

  1. The failure to affix the Seal on the notice of Appeal and appellant’s brief knocks the bottom of the appeal purportedly filed by the appellant.

At the hearing of the Appeal on 10/11/2015, learned counsel for the 2nd Respondent raised and argued the Preliminary objection that was not argued in its Brief of Argument since it was filed after the brief.

Learned counsel for the Appellant urged the Court to consider Order 10 Rule 1 of its Rules. “as it prescribes what is expected of a Respondent to raise a preliminary objection” He went on to say –

We are entitled to at least – three days. Even though we are entitled to three days, we waive the requirement of time needed. We refer the Court to Mega Progressives Peoples Party v. INEC, which we intend to supply after sitting today. The case is unreported. The earlier decision was not considered in the latter case it can be said to be overruling where the earlier case was considered. if not it cannot be said to have overruled it. Section 8 of the Legal Practitioners Act provides for the right of audience

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of the legal practitioner. A subsidiary legislation cannot take away a right given by a main legislation. We urge the Court to discountenance the objection sighted (SIC), we can take the appeal today.

Learned counsel for 1st & 3rd Respondents aligned with the Appellant; Learned counsel for 5th & 6th Respondents aligned with the Objector.

As directed by the Court below, the appeal was taken along with the Preliminary Objection, and it, thereafter, reserved the Judgment.

This was on 10/11/2015, however, on 23/11/2015, the Appellant filed an Application praying the Court below for the following reliefs –

  1. An Order of Court extending time within which the Applicant may regularize his Notice of Appeal dated 22/7/2015 and filed on the same day without affixing the NBA Seal.
  2. An Order – – deeming the Notice of Appeal and Appellant’s Brief as properly filed and served on the Respondents the requisite fees having been Paid.

The Ground (sic) upon which the said Application is brought is that-

  1. The Supreme Court in Mega Progressive Peoples Party V. INEC & Others (Unreported) Suit No (sic) SC.665/2015 delivered on 12/10/2015 held

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that the requirement of seal affixed to Court processes is not mandatory

  1. On Friday, 14/11/2015, the Supreme Court gave reasons for its decision in All Progressive Congress V. General Bello Sarki Yaki (unreported) Suit No. (sic) SC.772/15 that the requirement for NBA Seal is mandatory.
  2. The Supreme Court advise that processes without seal may be regularized.
  3. The Applicant did not affix NBA Seal to his Notice of Appeal and Appellant’s Brief respectively.

The Judgment of the Court below was delivered on 4/2/2016, and the Supplementary Record compiled by the Appellant, which contains the proceedings of 4/2/2016 – the day of Judgment; reads as follows –

Alhassan Ahmadu, Esq – My Lords we have a Motion on Notice before this Hon. Court to regularise the Notice of Appeal and Appellant’s Brief.

COURT – We are not taking any motion now, you should have done it earlier; today is for judgment.

Alhassan Ahmadu, Esq.,- My Lords, the Motion is just to affix NBA Seal on the Notice of Appeal and Appellant’s Brief.

Court – Judgment delivered. Appeal struck out.

In the said Judgment, the Court below, per Aboki, JCA, held that –

There was

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no any formal application or even orally by the Appellant’s counsel to regularize the document/Notice of Appeal filed, even at the stage of proceedings and adoption of briefs of argument by the Parties on 10/11/2015 and the Appeal was adjourned for Judgment. In APC v. General Bello Sarkin Yaki (supra) Per Peter-Odili JSC said as follows-

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”A notice of appeal is the originating process at an appellate Court and the notice of appeal is clearly within the ambit of legal documents described in Rule 10 (2) as “any similar document” which must be signed, stamped and seal. Therefore a notice of appeal not found with these components is an incompetent notice of appeal depriving the Court of the jurisdiction to determine the appeal on the merit.— Therefore any non-compliance with the Rule 10 (2) of the RPC with the circular of the Chief Justice of Nigeria as a reiteration is visited with the sanction that the Process is without competence. It cannot be excused by taking of the inalienable right of a litigant to appeal as that right has to be exercised within the necessary prescribed Rules of

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Legal Practice.”

I adopt the above statement as mine in this Appeal. In whole the lone issues in the Preliminary Objection is resolved against the Appellant. Having resolved the preliminary Objection in favour of the 2nd Respondent it will amount to an academic exercise for me to consider other issues raised in the main Appeal.

The Appellant filed a Notice of Appeal in this Court on 18/2/2016. The Parties filed their Briefs of Arguments, but the 2nd Respondent also filed a Notice of Preliminary Objection praying this Court for –

An Order dismissing and/or striking out the Appellant’s Appeal filed on 18/2/2016 for lack of jurisdiction in that the issues arising from the subject matter are no longer live issues to be adjudicated upon by this Court.

The Ground of the Application (sic) is as follows –

  1. The Appellant’s claim at the Federal High Court is that the tenure of office of Governor Bala Ngilari, the immediate past Governor of Adamawa State expires on 8/2/2016 as against 28/5/2015.
  2. The Appellant’s claims and reliefs are no longer live issues which can be adjudicated upon by this Honourable Court.
  3. The Appeal has become otiose,

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academic and moot and no longer worthy of adjudication by this Court.

The Objection is supported by a 6-paragaph Affidavit, wherein it was averred that at the time this Appeal was filed on 18/2/2016, the tenure of office claimed by the Appellant to expire on 8/2/2016 had already expired thereby making the issues in this Appeal academic and moot – paragraph 4 (g) and (h). It submitted in its Brief that the issue is –

Whether having regard to the reliefs claimed by the Appellant at the trial Court, the issues submitted before this Honourable Court have not become academic and moot.

It referred this Court to the following authorities on the subject –

– Plateau State V. Att. Gen. Fed. (2006) 3 NWLR (Pt.967) 346

– Ogbonna V. President, FRN (1997) 5 NWLR (Pt. 504) 281

– Adepoju V. Yinka (2012) 3 NWLR (PT. 1288) 567 at 583

– Salik v. Idris (2014) 15 NWLR (PT. 1429) 36 SC at 54

And urged the Court to dismiss the Appeal, as it is a waste of its time.

The Appellant argued in his Reply Brief that the crux of his case is that INEC breached Section 178 and 180 of the Constitution and he used 8/2/2012 for the purpose of calculating the

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four year tenure of the incumbent Governor at the time it conducted the said election; and that if the said election, which produced 6th Respondent as Governor, is an infraction against the Constitution (as amended), it would be immaterial that the tenure of the incumbent Governor is now expired.

Furthermore, that this Court has the power and can revisit the entire process leading to the 6th Respondent’s election as Governor, and nullify the election conducted by 1st Respondent, if it conducted the election in breach of the 1999 Constitution (as amended); and that he commenced this suit on 5/2/2012, more than two months before the 1st Respondent conducted the said election, therefore, the suit is not academic, and the issues to be determined are alive and germane.

What is an academic question It is simply an issue that does not require answer or adjudication by a Court; hypothetical or moot question – see Agbakoba V. INEC (2008) 18 NWLR (Pt. 1119) 489, where this Court per Chukwuma-Eneh, JSC, further explained that-

An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when

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its determination holds no practical or tangible value for making a pronouncement, upon it; it is otherwise an exercise in futility. When an issue has become defunct, it does not require to be answered or controvert about and leads to making of bare legal postulations, which the Court should not indulge in; it is like the salt that has lost its seasoning. And like the salt in that state, it has no practical value to anybody and so also, a Suit in that state has none.

In simple terms, an academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on a successful party – See Odedo V. INEC (2008) 17 NWLR (Pt. 1117) 554 SC, Adeogun V. Fashogbun (2008) 17 NWLR (Pt. 1115) 149 SC and Plateau State V. Att. Gen. Fed. (supra) SC.

All these cases, except the last, dealt with pre-election matters, as in this case. In Agbakoba V. INEC (supra), the issue was whether the Court below was right to hold that the election conducted while the Appeal was still pending, rendered it a mere academic exercise. This Court held that the matter had not become an academic exercise because it was

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still within the jurisdiction of the Federal High Court, being a pre-election matter. Tabai, JSC, gave the reason as follows –

The Appellant challenged the propriety of his substitution with the 3rd Respondent and that remains a live issue until its determination by the final appellate Court, notwithstanding any act taken by the Respondents. I hold, therefore, that the Court below erred in law on this issue. Its jurisdiction remained intact. It has a duty to hear and determine the appeal presented there for adjudication.

Odedo V. INEC (supra), dealt with the same issue- substitution, and this Court arrived at the same conclusion. Tobi, JSC, insisted that –

The reliefs are not only capable of enforcement but can be enforced. If a Court of law comes to the conclusion that the substitution was not in compliance with Section 34 of the Electoral Act, 2006, it will declare it a nullity as was done in the case of Ugwu V. Ararume (2007) 12 NWLR (Pt. 1048) 367.

In Adeogun V. Fashogbun (supra), it was the same issue but this time the Court below refused the Application to strike out the Appeal. In dismissing the Appeal, this Court, per Tobi, JSC, pointed out that –

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Academic and hypothetical issues of questions do not help in the determination of the live issues in a matter. They are merely on a frolic or they are frolic-some; not touching or affecting the very tangible and material aspects in the adjudication process. As a matter of law, they add nothing to the truth searching process in administration of justice. This is because they do not relate to any relief.

The 2nd Respondent referred this Court to Plateau State V. Att. Gen. Fed. (supra), wherein Tobi, JSC, made the following observation –

A suit is academic where it is merely theoretical, makes empty sound, and is of no practical utilitarian value to the Plaintiff even if Judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity. A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high in guesses. As Courts of law are not established to adjudicate on guesses but on facts such actions are struck out. A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if

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it looks like a “mirage” to deceive the Defendant and the Court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought. With the above brief exercise in diction, I am of the firm view that the suit filed by the Plaintiffs is not academic, speculative or hypothetical. On the contrary, the suit clearly contains reliefs, which are actionable and which a Court of law is competent to decide one way or the other. The Defendants would appear to miss the declaratory nature of the reliefs and their effect on our adjectival law.

Apparently, the 2nd Respondent did not read the fine print because the decision in Plateau State’s Case (supra) can only lead this Court to the opposite track from where it wants the Court to go. ln that case, the Defendants raised a similar Objection, as in this case, that the Suit is devoid of any live issue. Kutigi, JSC (as he then was) aptly stated –

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I think the ground of objection misconceives the nature of the declarations and other reliefs sought in this case. The entire case simply put concerns the constitutionality and/or legality of the

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exercise of the emergency powers conferred on the President under Section 305 of the 1999 Constitution and which power he exercised in Plateau State from 18/5/2004 to 17/11/2004. — The emergency we all know ended or ceased to apply in that State on 17/11/2004. But the Constitution, including Section 305 thereof, is still with us. The powers are still here for the President to exercise if and when he deems it necessary. The Constitution is alive and so are the emergency powers therein alive. It is therefore of no adverse significance to the case that ”suspended structures and public officials” are now back to duty. Issue relating to the interpretation of a living Constitution; as in this case, cannot in my view be dead, academic or hypothetical.

Tobi, JSC, hammered this principle home, when he firmly held that-

A suit does not necessarily become spent merely because it was heard after the act or conduct, which gave rise to the action. It is clear from the case file that the action was filed on June 24, 2004, about thirty-six days after the declaration of the state of emergency in the State. That the matter was not heard until the expiration of

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the emergency is not the fault of the plaintiffs and it will be improper for this Court to throw out the suit on that ground. That will be doing injustice to the plaintiff and I am not prepared to do injustice to them.

The decision of this Court in the said case speaks directly to this case, and what it says is that the question substituted by the appellant in the originating summons, which touches on the interpretation of Sections 178(2) and 180 (2) of the Constitution, remains alive, and is not dead.

In other words, the Appellant is right; he commenced this action more than two months before the 1st Respondent conducted the said gubernatorial election in Adamawa State. He is seeking a declaration inter alia that having regard to the said Sections of the Constitution, INEC cannot legally conduct the election on a date earlier than one and fifty days before the tenure of the Governor expired on 8/2/2012.

It is the interpretation of those Sections of the Constitution that is in issue, and being constitutional provisions, they are alive and can never be pronounced as dead, otiose, moot, academic or hypothetical.

Besides, the Appellant cannot be

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blamed for the length of time it took the matter to climb to this Court from 5/2/2015, when he filed it, to 18/2/2016, when he filed the Notice of Appeal against the decision of the Court below. The fact that the said date – 8/2/2016 had come and passed while the matter was still traveling through the Courts is not his fault; it is not anyone’s fault, and he cannot be penalized for it. The Preliminary Objection lacks merit and it is, therefore, overruled.

The main Appeal itself hinges on a question of fair hearing and the Appellant formulated one issue for Determination, as follows –

Whether or not the refusal of the learned Justices of the Court of Appeal to hear and determine the appellant’s Motion on notice dated 20/11/2016 and filed on 23/11/2016 to regularize the appellant’s notice of appeal dated and filed on 22/7/2015 and appellant’s brief dated and filed on 4/8/2015 is not a breach of the appellant’s fundamental right to fair hearing in Section 36(1) of the [1999] Constitution– which renders the judgment of the Court delivered on 4/2/2016 void.

The 1st respondent also formulated one issue for determination i.e. –

Whether

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the refusal of the Court below to hear the appellant’s motion to regularize his position on the day of the judgment amounts to the breach of the appellant’s fundamental right of fair hearing.

The 2nd respondent formulated two issues for determination; that is-

  1. Whether the lower Court breached the appellant’s constitutional right to fair hearing by refusing to hear his oral application and motion on notice dated 20/11/2016 (sic) and filed on 23/11/2016 (sic) to regularize the appellant’s notice of appeal dated and filed on 22/7/2015 and appellant’s brief dated and filed on 4/8/2015.
  2. Whether this is a proper case in which this Court can invoke its powers under Section 22 of the Supreme Court Act.

The 3rd respondent formulated only one issue for determination i.e –

Whether or not the refusal of the Court of Appeal to hear and determine the Motion on Notice dated 20/11/2015 filed after the Court has reserved ruling/judgment in the appeal amounts to denial of the Appellant’s right to fair hearing.

The 4th and 5th respondents adopted appellant’s issue as formulated and 6th respondent formulated one issue for determination; that

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is –

Whether the refusal of the Court below to hear the appellant’s Motion on Notice dated 28/11/2016 and filed on 23/11/2016 to regularize the Appellant’s Notice of Appeal dated and filed on 22/7/2015 and filed on 4/8/2015 after full arguments had already been taken on the objection that the said Notice of Appeal is incompetent and Judgment reserved, is in breach of the Appellant’s right to fair hearing in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

In my view, the Parties are saying the same thing, and it boils down to whether the refusal of the Court below to entertain the Application filed after it had reserved Judgment, amounts to lack of fair hearing.

Naturally, the Appellant argued the said issue in the affirmative. He argued that it is trite that Parties must be given equal opportunity to present their cases and no Party should be given more opportunity or advantage in the presentation of his case; that a Court is duty bound to determine applications before it, no matter how inconsequential – Dandume LGA V. Alhaji Yaro (2011) 11 NWLR (Pt 1257) 159; and that the Court below disregarded the clear

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guide outlined for such purpose by this Court in APC V General Bello Sarki Yaki. (supra).

The 1st Respondent submitted that a calm reading of proceedings of 10/11/2015, which it set out, will reveal that he was accorded his full right of fair hearing; that a Party, who refused or failed to take advantage of the fair hearing process created by the Court, cannot turn around to accuse the Court of denying him fair hearing – lnakoju V. Adeleke (2007) NWLR (Pt. 1025) 423; and that his counsel not only waived his right of the time within which to respond to the Objection, he actively participated at the hearing, therefore, the Appellant cannot be heard to complain that his right of fair hearing had been breached – Ukachukwu V. PDP (2014) 17 NWLR (Pt. 1435) 134 SC.

Furthermore, that it was too late for him to attempt to move that Application on the day set for nothing else but delivery of Judgment, and what he sought to do was to arrest the Judgment – Amaechi V. INEC (2007) 18 NWLR (Pt.1065) 98, Ukachukwu V. PDP (supra) and that there was no proceeding upon which he can anchor the said Application, the Appeal having been argued and Judgment reserved.<br< p=””

</br<

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The 2nd Respondent also argued that he merely sought to arrest the Judgment of the Court below; that he waited until after arguments had been taken before he brought the Application; that the Appellant, who had vociferously argued that NBA seal was not needed suddenly made a volte face and saw reason 13 days later to affix a seal; that a Party is expected to be consistent in his case – N.A.C.H.P.N. & Ors V. M. & H.W.U.N. & Ors. (2008) 2 NWLR (PT. 1072) 575, and that the arrest of Judgments is unknown to our jurisprudence, citing Newswatch Communications V. Atta (2006) 4 SCNJ 282 at 307.

The 3rd Respondent, citing Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587 andNewswatch Communications Ltd. v. Atta (supra), conceded that a Court must hear and pronounce on every Motion in the interest of justice and fair hearing. But it argued that Appellant’s counsel waived his right to be served with the said Objection, and he did not apply for an adjournment to enable him regularize his process or orally apply to be allowed to affix the seal, rather Parties joined issues on that point and they were heard. It further submitted that –

It is trite that

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what the Court below is entitled to do is to deliver its Judgment whenever its judgment was ready and nothing more as it will be over-reaching the 2nd respondent’s objection by allowing an amendment without deciding the objection, one way or the other . The appellant having joined issues on the preliminary objection cannot be said to have been denied fair hearing when in fact he joined issues with the counsel and was heard by the Court on the issue. The appellant ought to swim or sink with his decision [He] opted to wave the magic wand of fair hearing or breach of the fundamental right with the main motive of developing a ground of appeal of in the event the judgment of the lower Court does not favour it.

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It referred this Court to the following authorities on fair hearing-

– Lagos Sheraton Hotel & Tower v. H.P.S.S.S.A. (2014) 14 NWLR (Pt. 1426) 45 at 71

– Inakoju v. Adeleke (supra) wherein this Court relied on its decisions in

– Orugbo v. Una (2002) 16 NWLR (Pt.792) 175, and Kaduna iles v. Umar (1994) 1 NWLR (Pt 319) 143

– Mbanefo v. Molokwu (2014) 6 NWLR (pt.1403) 377 at 418

– Newswatch Communications Ltd. v. Atta (supra)<br< p=””

</br<

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The 3rd respondent further submitted as follows –

The [said] motion filed — after the Court below has reserved judgment is — an attempt to overreach the objection filed and argued by 2nd respondent.

– The 2nd respondent equally is entitled to fair hearing, as well as all parties who joined issues with [him] on this point — The said motion can be described as a motion seeking to arrest the judgment of the Court of Appeal. That procedure is not known to be cognizable under the rules of the lower Court. — The Rules — do not make provision for an application to arrest a judgment — about to be delivered by a Court. Therefore an application not recognized by the rules of the Court cannot be described as a proper application and failure to allow it does not amount to denial of fair hearing.

The 4th Respondent argued that the Appellant is estopped by his conduct from challenging the refusal of the Court below to hear the said Motion; that it is not the law that the issue of fair hearing should become a sword to smash the cardinal objection of administration of justice i.e. attainment of justice – Adebayo v. Att. Gen. Ogun State (2008) 4 MJSC 80, E.B. Plc. Awo-Omama v.

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Nwokoro (2012) 14 NWLR (Pt. 1321) 488; and that the issue of denial of fair hearing he raised is not only scanty, peripheral but totally immaterial in contrast to facts and circumstances of his conduct and admission at the Court.

The 5th Respondent argued along the same lines as 4th Respondent.

But it cited Pam V. Mohammed (2008) 16 NWLR (Pt. 1112) 1 on the issue of fair hearing. It submitted that it is trite law that when Parties join issues on a subject matter, the only duty the Court is saddled with is to proceed to deliver the Judgment on those issues, citing Metal Construction (W.A) Ltd. & 2 ORS V. Migliore & Anor. (1979) 6-9 SC (Reprint) 118, IBWA Ltd. V. lmano Nig. Ltd. [2001] FWLR (PT. 44) AT 443; and Parties having joined issues on the propriety or otherwise of the non-affixing of NBA seal, the Court below was right to have proceeded to deliver its Judgment on the issue. It also cited – Newswatch Communications Ltd. V. Atta (supra), and Ukachukwu V. PDP (supra), on the issue of arresting Judgments. It also argued –

[That] while it is true that the Appellant could have regularized his Notice of Appeal by affixing the seal even

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orally that would not be allowed after joining issues with the Respondents that he does not require to affix the said stamp on the Notice of Appeal. If he had applied to regularize at that stage, his reliance on the opinion of His Lordship, Onnoghen, JSC in YAKI V. BAGUDU (SUPRA) would have sailed through.

The 6th Respondent toed the same line with the other Respondents – INEC and four Political Parties. He also says that the Court below was perfectly right in refusing to countenance the Appellant’s Motion. He argued that the Appellant could have brought the Application to the Court’s attention, even if by a letter, and apply for a hearing date before the date fixed for Judgment; and that the Courts frown at such Applications tending to arrest a Judgment -Nwankudu v. Ibeto (2010) LPELR 439 (CA), Newswatch Communications V. Atta [supra] and Bob Manuel V. Briggs (1995) 7 NWLR (PT. 409) 537.

He submitted, citing lkenta Best Ltd. V. Rivers State (2008) 5 NWLR (Pt. 1084) 612, that it is a well-established equitable maxim, that vigilantibus et non dormentibus jura subservient, – the law aids those who are vigilant, not those who are negligent over their

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rights; and that contrary to the Appellant’s contentions, the Court below gave him fair hearing during the arguments in respect of the said Objection, but the Appellant, who was faced with two options or choices chose to respond vigorously to the objection instead of applying to bring an Application whether orally or in writing to regularize his process.

It cited Bill Construction Co. Ltd. V. Imani & Sons Ltd. (2006) 19 NWLR (PT 1013) 1 @ 14 and Akinduro v. Alay (2007) ALL FWLR (Pt.381) 1653 @ 1672, on the subject of fair hearing, and cited the following authorities on when miscarriage of justice occurs –

– Nnajiofor v. Ukonu (1984) 4 NWLR (Pt 36) 505

– H. Okonkwo & Anor. V G. Udoh (1997) 9 NWLR (Pt. 519) 16.

– Prince John Okechukwu Emeka V Lady Margery Okadigbo &. Ors. (2012) 18 NWLR (Pt. 1331) 55, 94

He insists that the Appellant did not suffer any miscarriage of justice.

In a Joint Reply Brief to the Respondents’ Briefs, the Appellant disagreed with each and every argument proffered by the Respondents and that is to be expected. However, I have considered the arguments and there is no escaping the fact that this

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Appeal must be dismissed.

It is there, pomp and plain on the face of the Record of Appeal; learned counsel for the Appellant pointed out that the Appellant is entitled to at least three days to respond to the Preliminary Objection, but with the next breath he said – “we waive the requirement of time”, and with another breath, he added – “we can take the Appeal today”.

He did not think twice; he did not hesitate, and seemed sure that he was standing on a solid foundation when he urged the Court below “to discountenance the Objection”. A few days later, this Court gave reasons for its decision in APC V. General Bello Sarkin Yaki and contrary to the position he took at the Court below, the requirement for the said NBA Seal is mandatory, although it could be regularized.

That is when learned counsel for the Appellant ran back to the Court below with the Application filed after the Court below heard arguments on the said Objection and adjourned to write its Judgment. If every litigant did that; proffer arguments in Court on an issue, and while Judgment is being Written, discover he is wrong, and rush back to the Court with a Motion to change his tune,

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what will that portend

Absolute mayhem and that is why Courts deal firmly with what is known as arrest of Judgment, which is alien to our Rules of Court, and connotes brigandage and lawlessness; things abhorred by the law – Newswatch Comm. V. Atta (supra), Nwankudu V. lbero (supra).

In this case, waving the flag of fair hearing is of no moment. Fair hearing envisages that Parties to a case are given the opportunity by the Court of presenting their case from the beginning to the end – see Newswatch Communications Ltd. V. Atta supra. ln this case, I agree with the Respondents that the Appellant cannot complain that he was not given a fair hearing at the Court below. He chose to waive requirement of time, and was battle ready to take the Appeal that day.

To “waive” means to abandon, renounce or surrender a claim, privilege or right, etc., voluntarily, and “waiver” means the voluntary relinquishment or abandonment – express or implied of a legal right or advantage – see Black’s Law Dictionary, 8th Ed-, and Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) 227, where this Court held that –

The principle is to the effect that where an action was commenced by

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any irregular procedure and defendant took steps to participate in the proceedings — he cannot later be heard to complain of irregularity as a person will not be allowed to complain against an irregularity, which he himself has accepted, waived or acquiesced. [Aderemi, JSC]

In this case, the Appellant voluntarily chose to waive the time needed to respond to 2nd Respondent’s Objection. It was too late in the day, after the Court below had reserved Judgment, to expect anything else on the date of Judgment – 4/2/2016, than the delivery of the Judgment. Once an Appeal is argued, there is no other pending proceeding save delivery of Judgment by the Court – Ukachukwu v. PDP (supra).

In the circumstances, this Appeal lacks merit and is dismissed. The parties are to bear their respective costs.


SC.153/2016

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