Hon. (Engr) Eme Mukoro & Anor V. Hon. Taleb Avwerosuo Okpako Tebite & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Lead Ruling)

The motion of the Respondents/Applicants (hereafter simply referred to as “the Applicants”) dated 13/3/2013 and filed on the same date has been brought pursuant to Sections 6(6), 36, 246(3), 285(7) and 295(3) of the 1999 Constitution (as amended), Section 15 of the Court of Appeal Act, Cap. C 36 Laws of the Federation of Nigeria, 2004, Order 4 Rules 1 and 3, Order 7 Rules 1 and 10 of the Court of Appeal Rules, 2011 and under the Inherent jurisdiction of this Honourable Court.

In the said motion on notice the Applicants pray for an order of this Court “Referring the questions set forth in the Schedule to this Motion on Notice to the Supreme Court for the decision of that court upon the said question.”

The two questions which the Applicants want this Court to refer to the Supreme Court, as set out in the Schedule to the motion (supra) are as follows: –

“1. Whether this election-related appeal can be heard by the Court of Appeal outside the statutory period of Sixty (60) days within which election appeals and such related matters can be determined as provided by the mandatory provisions of Section 285(7) of the 1999 Constitution (As Amended) and the case of SHETTIMA V. GONI (2011) 18 NWLR (PT.1279) S.C. PAGE 413 AT PAGES 451.452, PAMS. H-C; 471-472, PAMS. F-A amongst others.

2. Whether this Honourable Court, now sitting as a regular Court of Appeal, can be called upon again by the Appellants/Respondents to re-visit and adjudicate over its judgment delivered in its capacity as an Election Petition Appeal Tribunal on Monday, 19th December, 2011 in Appeal No. CA/B/EPT/DT/374/2011 – HON. TALEB A. O. TEBITE & ANOR V. MARVIN OJIGHO & 3 ORS, in utter violation and contravention of the clear, express and mandatory provisions of Section 246(3) of the 1999 Constitution (As Amended), the authority of EGHAREVBA V. ERIBO (2010) 9 NWLR (1199) (sic) PAGE 411 AT PAGE 441 PARAS. B-D and the decision of the Supreme Court in Appeal No.SC.479/2011 – DEMOCRATIC PEOPLES PARTY & ANOR. V. HON. TALEB AWEROSUO OKPAKO TEBITE & ORS. delivered on Thursday, the 9th day of February, 2012.”

The grounds of the application as set out in the motion (supra) are: –

“(1) By a Notice of Appeal dated and filed on the 18th day of July, 2012, the Appellants/Respondents herein are challenging the judgment of the Federal High Court delivered on Friday, the 29th day of June, 2012 dismissing the Appellants/Respondents’ suit in its entirety for lack of jurisdiction.

(2) By grounds 1 and 2 (amongst other grounds) of the said Notice of Appeal, the Appellants/Respondents are challenging the validity of the judgment of this Honourable Court delivered on Monday, 19th December, 2011 as an Election Petition Appeal Tribunal in Appeal No. CA/B/EPT/DT/374/2011 – HON. TALEB A. O. TEBITE & ANOR V. MARVIN OJIGHO & 3 ORS.

(3) This appeal, which is an election petition-related appeal, is challenging the decision of this Honourable Court delivered on Monday, 19th December, 2011 as an Election Petition Appeal Tribunal in Appeal No. CA/B/EPT/DT/374/2011 – HON. TALEB A. O. TEBITE & ANOR V. MARVIN OJIGHO & 3 ORS. well outside the statutory period of sixty (60) days as provided by the mandatory provisions of Section 285(7) of the 1999 Constitution (As Amended) as enunciated by the Supreme Court in the case of SHETTIMA V GONI (2011) 18 NWLR (PT.1279) S.C. PAGE 413 AT PAGES 451-452, PARAS. H-C; 471-472, PARAS. F-A amongst other enabling laws in that regard.

(4) By this appeal, which is an election petition-related appeal, the Appellants/Respondents are inviting this Honourable Court now sitting as a regular Court of Appeal, to re-visit and adjudicate over its judgment delivered in its capacity as an Election Petition Appeal Tribunal on Monday, 19th December, 2011 in Appeal No.CA/B/EPT/DT/374/2011 – HON. TALEB A. O. TEBITE & ANOR V. MARVIN OJIGHO & 3 ORS. in utter violation and contravention of the clear, express and mandatory provisions of Section 246(3) of the 1999 Constitution (As Amended) and the Supreme Court decision in Appeal No.SC.479/2011 DEMOCRATIC PEOPLES PARTY & ANOR. V. HON. TALEB AVWEROSUO OKPAKO TEBITE & ORS. delivered on Thursday, the 9th day of February, 2012.

(5) From the peculiar facts and circumstances of the Appellants/Respondents’ case, vis-a-vis the briefs of arguments filed by the parties to this appeal, the Appellants/Respondents appeal has raised recondite and Constitutional points of law which require the construction and interpretation of the provisions of Sections 246(3) and 285(7) of the 1999 Constitution (As Amended) amongst other enabling laws in that regard.

(6) It will serve the interest of justice, fair hearing and advancement of the law for this Honourable Court to refer these recondite and Constitutional points of law to the Supreme Court by way of case stated for the resolution of same by the Supreme Court as guaranteed under the provisions of Section 295(3) of the 1999 Constitution (As Amended).

(7) The resolution of these recondite and Constitutional points of law by the Supreme Court will determine whether or not the instant appeal is competent before this Honourable Court for this Honourable Court to re-adjudicate over the judgment of this Honourable Court delivered in its capacity as an Election Petition Appeal Tribunal on Monday, 19th December, 2011 in Appeal No. CA/B/EPT/DT/374/2011-HON. TALEB A. O. TEBITE & ANOR V. MARVIN OJIGHO & 3 ORS. which is the subject matter of this appeal.”

Given the contentious nature of the motion as evinced by the filing of a counter affidavit therein by the Appellants/Respondents (hereafter simply referred to as “the Respondents”), the Court on 15/4/2013 ordered the parties to file and exchange written addresses within a specified time frame and they duly complied with the order of Court in this regard.