James Aemberga Gbande & Anor V. Christopher Afaor & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

The appellants had participated in the general election conducted by the 3rd respondent to the office of the member representing Kwande East Constituency in the Benue State House of Assembly on 26th April, 2011. The 1st respondent contested on the platform of the 2nd respondent whilst the 1st appellant contested in the same election on the platform of the 2nd appellant. The 1st respondent was said to have won the election, so he was returned and declared as duly elected by the 3rd respondent. The appellants did not accept the result of the said election, so they filed a petition No: NSHA/BN/HA/34/2011 at the National and State Houses of Assembly Election Petition Tribunal holden at Makurdi Benue State, on 17th May, 2011.

The parties filed and exchanged their respective pleadings on the petition. The respondents filed preliminary Objections to the competency of the petition and the same was argued. The Lower Tribunal which first was seised of the petition, in her ruling on the preliminary objections, dismissed the petition on 29th September, 2011. Not unnaturally, the petitioners/appealed to this court and on the 18th November, 2011 the court, allowed the appeal and ordered that the petition be heard on its merits, but by another panel.

The newly constituted panel of the lower Tribunal started proceedings on the petition and after the completion of the prehearing session, the petition was fixed for hearing. Then, the 1st and 2nd respondents, filed separate applications, to the effect that the lower tribunal had no jurisdiction to entertain the petition again, because according to them, the petition had become spent having not been determined within 180 days as stipulated under Section 285 (6) of the 1999 Constitution of the federal Republic of Nigeria. However, the said application was not moved by the respondents/applicants.

At the resumed hearing of the petition on 22nd February, 2012, the lower tribunal suo motu, raised the issue of her-jurisdiction to entertain and determine the petition in view of the decisions of the Supreme Court, in the consolidated appeals in SC.1/2012 – All Nigeria Peoples’ Party Vs Alhaji Mohammed Goni & 4 ors and SC.2/2012 – Alhaji Kassim Shettima & Anor Vs Alhaji Mohammed Goni & Ors, delivered on 17th February, 2012. Learned counsel for the parties were invited by lower tribunal to address her on the implications of the decisions of the Supreme Court in appeals No SC.1/2012 and SC.2/2012 of 17th February, 2012. In a considered ruling, the Lower tribunal struck out the petition on the premises that the petition had lapsed by effluxion of time.

This appeal is against ruling of the Lower Tribunal dated 22nd February, 2012. The appeal was erected on two grounds, to the effect that the lower tribunal erred in law for terminating the life of the petition which derived its fresh life from the order of retrial made by this court on 18th November, 2011 and secondly, that the lower tribunal erred in law for striking out the petition without hearing it on its merits and this amounted to a breach of fair hearing,

The appellants, in their brief of argument dated 30th March, 2012 but filed on 3rd April, 2012, identified and formulated a sole issue for determination thus:

“Whether the decision in Appeal No.SC1/2012, SC2/2012 ANPP V. MOHAMMED GONI, SHETIMA VS MOHAMMED GONI delivered on the 17th February, 2012 can be sustained and relied upon having due recourse to the mandatory proviso to Section 234 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and whether the trial tribunal had not breached the petitioners’ fundamental right to fair hearing as guaranteed under Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)”

The 1st respondent, on his part had first filed a notice of preliminary objection to the hearing of this appeal and at the hearing of the appeal on 18th April, 2012, learned counsel to the 1st respondent, informed us that the same preliminary objection predicated on three grounds, has been argued at paragraphs 3.0 – 3.3.3. of his brief of argument, dated 13th April, 2012 and deemed properly filed and served vide the order of this court made on 17th April, 2012. And at paragraph 4.0 of the same brief of argument, the 1st respondent distilled two issues for determination, to wit:

“1. Whether or not the tribunal rightly struck out the petition on 22/02/2012, going by Section 285(6) of the 1999 Constitution and the unreported decision of the Supreme Court in consolidated Appeal No.SC. 1/2012 and SC.2/2012 dated 17/02/2012 (distilled from ground one of the appeal).

2. Whether or not the striking out of the petition as incompetent amounted to a breach of the appellants’ right to fair hearing (distilled from ground two of appeal)”

The 2nd respondent, in her brief of argument, dated 4th April, 2012 and filed on 5th April, 2012 at paragraph 3.00 thereof, indicated a notice of Preliminary Objection, to the competence of the issue formulated in this appeal for determination as the 1st leg of the said issue does not arise from the decision of the tribunal appealed against and that the said issue is not a matter that this court has the jurisdiction to entertain. There are three grounds in support of the 2nd respondent’s preliminary objection. At paragraphs 5.00-5.01, the 2nd respondent, in her brief of argument identified and formulated a sole issue for determination of the appeal, inter-alia,

“Whether the National/state House of Assembly Election Petition Tribunal still has jurisdiction to hear and determine petition No: NSHA/EPT/BN/HA/34/2011 which was filed on 17th May, 2011 in view of the mandatory provision of Section 285 (6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and whether the Appellants were denied fair hearing when the tribunal denied jurisdiction to continue to hear the Petition No: NSHA/EPT/BN/HA/34/2011. (Grounds 1 and 2).”

The third (3rd) respondent’s brief of argument, dated 7th April, 2012 was filed on 16th April, 2012. In it a sole issue for determination was identified to wit:

“Whether the Honourable Tribunal was right when it held that is has no jurisdiction to entertain Petition No: NSHA/EPTIBN/HA/34/2011 outside the 180 days after filing of the petition in the light of the Supreme Court’s judgment in the application of Section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria, as amended.”