Labour Party V. Yahaya Bello & Ors (2016)
LawGlobal-Hub Lead Judgment Report
ITA G. MBABA, J.C.A.
This is an appeal against the Ruling of the Kogi State Governorship Election Petition Tribunal, delivered on the 9th day of March 2016, wherein the Tribunal dismissed the petition filed by the Appellant, who was the petitioner, against the 3rd Respondent (INEC) on the ground that Appellant did not file application for pre-hearing session of the petition separately and independently before the final close of pleadings between the parties. The appeal is also against the decision of the said Tribunal on the main petition, delivered on 8th June, 2016, whereof Appellant, as petitioner, had challenged the return of the 1st Respondent (Yahaya Bello) as the winner of the election conducted by the 3rd Respondent on 21st November, 2015 and 5th December, 2015 to the office of the Governor of Kogi State, notwithstanding (according to Appellant) that he (1st Respondent) did not participate in all the elections and in all stages of the elections.
The facts of the case at the Lower Tribunal revealed that the 3rd Respondent (INEC) conducted election to the office of Governor of Kogi State. Appellant, being a Registered Political Party in Nigeria, sponsored a candidate (Mr. Philip Omeiza Salawu) to contest the election on 21/11/2015 and 5/12/2015. The 1st Respondent who was sponsored by the 2nd Respondent in the election was declared winner of the election by the 3rd Respondent. Dissatisfied Appellant, as petitioner, filed petition No. EPT/KG/GOV.O4/2015 at the lower Tribunal in Kogi State (which petition was later transferred to Abuja for hearing and determination.
Upon the filing of the Petition on 24/12/2015, the 3rd Respondent was served with the petition on 29th December, 2015 and it filed a Reply on 14th January, 2016 and served same on Appellant on 15th January, 2016. The 2nd Respondent was served with the Petition on 04/01/2016 and it filed a Reply on 23/01/2016 and served Appellant with same on 25/01/2016, thereafter, on 29/01/2016. Appellant filed his reply on 29/01/2016. The 1st Respondent was served with the petition by substituted means, that is by pasting, on 26/01/2016 and he filed a Reply on 01/02/2016 and served same on Appellant on 02/02/2016. Appellant filed a Reply to 1st Respondents Reply on 05/02/2016, which was the last Reply filed by the Appellant at the Lower Tribunal and it immediately filed an application for pre-hearing session on the 05/02/2016 and served it on the parties.
Upon the filing and service of the Appellant™s Reply to the 2nd Respondent on 29/01/2016. Appellant had, on 31/01/2016, filed an application for pre-hearing session and served all the parties. The last competent Reply of Appellant was served on the 1st to 3rd Respondents on the 8th of February, 2016 and upon this final service of the last Reply on the 1st to 3rd Respondents, Appellant having closed the final pleading, applied for the pre-hearing session. See pages 815 -818 of the Records. And upon the application to set down the petition for pre-hearing session between Appellant and the 1st to 3rd Respondents, the 3rd Respondent (INEC), claimed that the petition was separate as per the parties; that Appellant should have brought pre-hearing application against INEC (3rd Respondent), separately and independently, before the final close of pleading between the 1st “ 3rd Respondents. It, thereafter, filed a motion on 15/02/2016 seeking dismissal of the petition for incompetence. Appellant filed a counter-affidavit and a written address on 20/02/2016 to oppose the said motion.
On 09/03/2016, the various preliminary objections, by the Respondents came up for hearing, during the pre-hearing session. After hearing the said motions, including that of 3rd Respondent, which sought the dismissal of the petition, for failure to comply with paragraph 18(1) of the 1st Schedule to the Electoral Act, as amended, the Tribunal reserved ruling in respect of motions filed on 26/02/2016, 09/02/2016 and 22/02/2016 respectively, opting to deliver same alongside the judgment in the main petition. See page 1006 of the Records (Volume II).
The Tribunal, thereafter, went on to resolve the 3rd Respondent™s motion, filed on 15/02/2016 against the Appellant. It held on page 1014 “ 16:
œ¦. Where there are several respondents as in the instant petition, the petitioner is obliged to filed (sic) separate application for pre-hearing notice in respect of each respondent at the close of its pleadings with the respective respondents. See the cases of Oseke & Anor Vs INEC & others (2011) LPELR CA/PH/EPT/25/2011, MR. UCHENNA MBAM NSHI Vs HON. SYLVESTER OGBAGA & 2 ORS CA/E/EPT/09/ 2015 of 15/09/2015 ¦.. it is elementary to state that INEC is a necessary party to any election petition and therefore a respondent ¦ the inevitable conclusion which this tribunal reaches in the instant application is that the failure of the petitioner to file an application for pre-hearing notice in respect of the 3rd Respondent is fatal to his case against the 3rd Respondent.Consequently, the tribunal finds and holds that this petition is deemed abandoned against the 3rd respondent.
The above ruling was also delivered on 09/03/2016 when the tribunal also refused Appellants application, filed on 08/02/2016, for an order extending the time within which to file witness statement on oath of three of its witnesses, in reply to the 1st respondent™s new issues, raised in its reply to the petition.
On 10/03/2016, Appellant appealed against the said Ruling of the Tribunal delivered on 09/03/2016 (pages 1025 to 1034 of the Records). But on 05/05/2016 the said appeal was struck out by this court, and Appellant, in his brief, says that this court, in a full panel, directed and advised Appellant to incorporate the interlocutory decision/ruling of the lower tribunal with the main appeal; that in compliance with that directive, it filed grounds 1 to 4 of the grounds of appeal, herein, together with the appeal against the judgment of 08/06/2016 in the main petition.
The decision of the lower tribunal delivered on 08/06/2016 (in the main petition) was also against the Appellant. As the Tribunal said:
œIn the light of our painstaking analysis of the facts and circumstances of this petition, we come to the conclusion that the petition has failed in its intent. It is not competent either in itself or by the Labour Party that filed it without locus standi. One would have thought that the Labour Party would have fore borne to file the petition. For one thing, it performed miserably in the election in view. The fact that its flag bearer resiled from lending his dignity to its agitation in this petition is a minus. The petition has not prayed for its flag bearer to be declared winner or elected in the stead of 1st Respondent herein. And when the Chairman of the party PW1 in answer to cross examination by Counsel to 1st Respondent said:
œI have no document to show that Chief Salau Omeiza Philips has expressed intention to participate in a re-run election if ordered one equally wonders to what end this petition has clamoured for a fresh election to be ordered by this tribunal. In the same vein, all the points raised by respective Respondents on their preliminary objection are upheld, save for their insistence that this tribunal must hear and determine their preliminary objections without recourse to trial of the petition on the merits
The arguments of counsel to the petitioner against those objection are accordingly dismissed for lacking in merit¦. Consequently, none of the reliefs prayed for in the petition is probable. They are accordingly dismissed. (See pages 1327 “ 1328 of the Records).
Those are the decisions Appellant appealed against, as per the Notice of Appeal on pages 1329 to 1359 of the Records of Appeal, which disclosed 21 grounds of Appeal. Appellant file its Brief of argument on 08/07/2016 and donated 8 Issues for the determination of the appeal, as follows:
1) Whether the Hon. Tribunal had jurisdiction when it entertained and determined the 3rd Respondents (a nominal and neutral party) Motion on Notice (Grounds 3 and 4).
2) Whether the Juctices of the Lower Tribunal were right when they held that the 3rd Respondent (INEC) is a necessary party and the Appellants ought to have filed application to set down the petition for pre-hearing on the 3rd Respondent separately and independently (Ground 2).
3) Whether the Tribunal was right in its interpretation of paragraphs 18(1), (3) and (4) of the 1st Schedule to the Electoral Act 2010 (as amended) in dismissing the Appellant™s Petition as abandoned against the 3rd Respondent (Ground 1).
4) Whether the 1st Respondent was not disqualified to contest the election into the office of Governor of Kogi State, not having personally nominated another candidate as his associate for the office of Deputy Governor and not being a candidate of Kogi State Governorship election conducted on 21st of November, 2015, can be regarded as an internal affair of the 2nd Respondent as held by the Tribunal (Grounds 5, 6, and 7).
5) Whether the Hon. Tribunal was right in holding that the 1st Respondent who did not participate in all the elections and in all the stages of the elections was duly returned as the candidate who secured majority of lawful votes cast in the election, on the ground that votes cast in the election of 21st November, 2015 are for the 2nd Respondents (sic) not for the joint ticket of Late Prince Abubakar Audu and His running mate (James Abiodun Faleke) (Grounds 8, 9, 10, 11 and 12).
6) Whether the Tribunal was right in upholding the preliminary objections of the Respondents that the Appellant™s Petition is not competent either in itself or by Labour Party that filed it, without locus standi (Grounds 15 and 16).
7) Whether in the peculiar circumstances of this case, the Tribunal was not wrong in its interpretation of non- compliance with the provisions of the Electoral Act 2010, as amended (Grounds 13, 14, 17 and 18)
8) Whether the Tribunal was right in dismissing the petition as lacking in merit on the ground that votes cast at an election belonged to only the political party and not the candidate, notwithstanding the overwhelming and unchallenged evidence adduced by the Appellant in support of the Petition (Ground 19 and 20).
The 1st Respondent filed his brief on 13/07/2016 and formulated 6 issues for the determination of the appeal, namely:
1) Whether the Hon. Tribunal was properly constituted in law when it heard and determined the 3rd Respondent™s application filed on 15/02/2016 seeking to dismiss the petition against the 3rd Respondent for failure to comply with the mandatory provisions of paragraph 18(1) of the 1st schedule to the Electoral Act, 2010 (Issue No.1) (Ground 3 and 4).
2) Whether the Hon. Tribunal was right when it dismissed the petition against the 3rd Respondent for failure of the Appellant to comply with the mandatory provisions of paragraph 18(1) 1st Schedule to the Electoral Act, 2010 (Issue 2) (Ground 1 and 2).
3) Whether the Issue of the 1st Respondent being unqualified or disqualified from participating in the Kogi State Governorship elections on account of alleged lack of nomination of Deputy Governorship as raised by the Appellant is correct both in law and infact and whether the lower Tribunal could be faulted for resolving the issue against the petitioners? (Issue 3) (Grounds 6, 7, and 8).
4) Whether the lower Tribunal could be faulted in the way and manner it resolved the issues raised, on locus standi, sponsorship and nomination, particularly when it held that the 1st Respondent was properly and lawfully substituted for the deceased Prince Abubakar Audu? (Issue 4) (Ground 5, 15, 19 and 20).
5) Whether or not the trial tribunal was right in holding that the 1st Respondent participated in all the stages of the Election and was duly returned, having scored the majority of lawful votes in the Kogi State Gubernatorial Elections held on 21/11/2015 and the 05/12/2015 respectively. (Issue 5) (Ground9, 10, 11 and 12).
6) Having regard to the facts and circumstances of the case, whether the lower tribunal dismissing the petition can be faulted in the way and manner it resolved the substantive claims of the petitioners, such as alleged non-compliance with the provisions of the Electoral Act and that the 1st Respondent did not win the election by a majority of lawful votes? (Issue 6) (Grounds 13, 14, 16, 17 and 18).
The 2nd Respondent filed its Brief on 15/02/2016 and in it incorporated a preliminary objection (pages 1 to 5 therefore). The preliminary objection sought the striking out/dismissal of the appeal and/or grounds 1, 2, 3 and 4 of the appeal, together with the issues distilled therefrom, on the grounds that:
a) the instant appeal is an academic exercise;
b) the grounds of appeal (together with the issues formulated therefrom) based on the Ruling of the Hon. Tribunal delivered on 09/03/2016 are incompetent because they were presented out of time stipulated by law;
c) the time stipulated by the Constitution of the Federal Republic of Nigeria for the hearing and determination of the appeal based on the Ruling of the Hon. Tribunal delivered on the 09/03/2016 has lapsed and, therefore no longer cognizable in law.
In the alternative, the 2nd Respondent too raised 6 Issues for the determination of the appeal, as follows:
1) Whether the Hon. Tribunal acted within jurisdiction when it sat as a penal of 3 Juctices to hear and determine the 3rd Respondent™s motion on notice of 15/02/2016 (Grounds 3 and 4).
2) whether the Tribunal was right in its interpretation of the paragraph 18(1) (3) and (4) of the 1st Schedule to the Electoral Act, 2010 (as amended) in dismissing the Appellant™s Petition as abandoned against the 3rd Respondent (Grounds 1 and 2)
3) Whether the Tribunal was not right when it dismissed the petition on the ground that the Appellant (sic) lacked the locus standi to challenge the nomination sponsorship and substitution of the 1st Respondent.
4) Whether the tribunal was not right when it held that the 1st respondent was qualified to contest the election into the office of the Governor of Kogi State (Grounds 6, 7 and 19).
5) Whether the tribunal was not right when it held that the 1st Respondent was deemed to have participated in all the stages of the gubernatorial elections of Kogi State (Grounds 8, 9, 10, and 12).
6) Whether the Tribunal was not right in holding that the Petitioners (sic) failed to prove the allegations of corrupt practices and non “ compliance with the provisions of the Electoral Act 2010 in the conduct of the election. (Grounds 13, 14, 16, 17, 18, 20 and 21).
The 3rd Respondent too filed a Notice of Preliminary objection on 15/07/2016, challenging the competence of the grounds 1 to 4 and 15, 16 of the Appeal and the Issues distilled from them and argued in the Appellant™s brief. He urged us to strike out the said grounds and issues and/or dismiss the entire appeal.
His grounds for this were three:
1) Grounds 1, 2, 3 and 4 of the Appeal are against the Ruling of the trial Tribunal delivered on 09/03/2016 and by virtue of this fact are statute barred, same having not been heard and determined within 60 days as required by section 285(7) of the Constitution (as amended).
2) In the likely event that 3rd Respondent™s objection challenging the competence of the Appellant™s Ground 1, 2, 3 and 4 is upheld, the entire appeal becomes an academic as the judgment in this appeal, if in favour of the Appellant would not be able to be enforced in the absence of the 3rd Respondent, same having been struck out in the substantive petition at the trial.
3) Grounds 15 and 16 of the Appellant™s Notice of Appeal filed on 27/06/2016 are against the obiter and not the ratio of the trial Tribunal™s judgment.
In the alternative too, the 3rd Respondent filed its brief on 15/07/2016 and donated 6 Issues for the determination of the Appeal, as follows:
1) Whether the Hon. Tribunal was not right when it dismissed the petition against the 3rd Respondent for failure of the Appellant to comply with the mandatory provision of paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) (Grounds 1, 2 and 4).
2) Whether or not the composition and quorum of the Hon. Tribunal was formed when it heard and determined the interlocutory, application with respect to the Appellant™s petition as required by section 285(3) and (4) of the 1999 Constitution (as amended) (Ground 3).
3) Whether the Honourable Tribunal was not right when it held that the Appellant™s Petition relates to the sponsorship, nomination and substitution of candidate for election by a political party, which bothers on intra-party affairs of the 2nd Respondent, which the Appellant lacked the locus standi to challenge (Grounds 5, 6, 7, 15 and 19).
4) Whether the Hon. Tribunal was not right considering the facts and circumstances surrounding the case before it to have held that the 1st Respondent was validly substituted for the late Prince Abubakar Audu was qualified to contest election into the office of Governor of Kogi State and that votes cast at the election belonged to political parties and not candidates (Grounds 9, 10, 11, 12, 18, 20 and 21.
5) Whether the Hon. Tribunal was not right when it held that the Appellant has failed to justify the allegations of corrupt practices and non-compliance with the Electoral Act 2010 (Grounds 13 and 16).
6) Whether the trial tribunal failed to determine the issues raised by the Appellant in its petition, and assuming, without conceding, that the trial tribunal failed to determine the said issues, the Appellant suffered any miscarriage of Juctice. (Grounds 8, 14 and 17).
Appellant, surprisingly, failed to file any Reply to the Respondents™ brief or reaction to the two preliminary objections.
When this appeal was heard on 27/07/2016 parties adopted their briefs and urged us accordingly. Appellant admitted being duly served with the preliminary objections and having failed to react to them.
RESOLUTION OF THE PRELIMINARY OBJECTION
As is usual, we have to consider the preliminary objections first, being a threshold issue since the success of the same can resolve the issues in the appeal in limine.
The two preliminary objection are basically on the same issue, that Appellant cannot raise any appeal against the Ruling of the Tribunal made on 09/03/2016 to the effect that Appellant™s failure to file separate notice of pre-hearing session upon the filing of reply by the 3rd Respondent on 14/01/2016 and served on the Appellant on 15/01/2016 was fatal. It was the position of the trial Tribunal that, after the Appellant had filed a response to the 3rd Respondent™s Reply, that signaled close of pleadings between the Appellant and 3rd Respondent, and so Appellant was bound to apply for issuance of pre-hearing notice between it (Appellant) and the 3rd Respondent within 7 days from 15/01/2016, which period expired on 21/01/2016; the tribunal was of the view that, where there are several respondents, the petitioner is obliged to file separate application for pre-hearing notice in respect of each respondent at the close of its pleading with the respective Respondents, that failure to do so, amounts to non-compliance with the paragraph 18(1) of the 1st Schedule to Electoral Act, 2010, as amended.
Of course, the concern of this preliminary objection is not on whether the learned lower Tribunal was right or wrong that Appellant should have filed separate pre-hearing Notice to call for pre-hearing session as per each Respondent, when a particular Respondent filed his Reply. It is rather that the time to appeal had lapsed.
There are, however, recent decisions to the effect that a Petitioner, who has filed application for pre-hearing Notice in response to requirement to signal close of pleadings between him and a respondent who was prompt in filing his reply, need not file such process again in respect of another Respondent in the case, who filed his processes, belatedly, as the petitioner need not wait for all the Respondents or the last Respondent, to file reply, before applying for the pre-hearing processes, to avoid being caught by the trap of non-compliance with paragraph 18(1) of the 1st Schedule to the Electoral Act : See the case of Onyereri Vs Nwadike & others (2015) 8 CAR 117, where my lord, Ige JCA held that where there are more than one respondent in a petition, pleadings will not close until the expiration of the time limited in the 1st Schedule, particularly paragraph 16, thereof.
What is obvious in this appeal is that, after the decision on 09/03/2016, Appellant failed to appeal against the said interlocutory decision and waited till the final judgment of the Tribunal in the petition on 08/06/2016, to appeal on 27/06/2016 (See page 1329 of the Records of Appeal).
Counsel for the 3rd Respondent had argued that grounds 1, 2, 3 and 4 (from which issues 1, 2 and 3 by Appellants were distilled) are challenging the decision of the Tribunal, delivered on 09/03/2016, striking out the name of 3rd Respondent from the Petition; that Appellant, having not appealed against the said decision, and the appeal thereon, having not been heard and determined within 60 days, as required by law (section 285(7) of the 1999 Constitution, as amended), the said grounds of appeal should be struck out for incompetence. Counsel relied on the case of Amadi Vs INEC (2013) 4 NWLR (part 1345) 595; Alor Vs Ngene (2007) 17 NWLR (part 1062) 163; Shettima Vs Goni (2011) 18 NWLR (part 1279) 413; Ahmed Vs Makarfi (2012) 2 LRECN 252; Uba Vs APGA (2012) 2 LRECN 128.
The 2nd Respondent also argued in the same vein and relied on the case of Ugba Vs Suswan (2014) 14 NWLR (part 1247). He added that, by paragraph 6 of the Election Tribunal and Court Practice Direction, 2011, Appellant had 21 days within which to file appeal against a decision of the Tribunal, and that is counting from the date of the decision appealed against. He relied on Salik Vs Idris (2014) 15 NWLR (part 1429) 36 to say that a court™s decision includes it ruling. Referring to the Records of Appeal, pages 1329 to 1359, 2nd Respondent said that the Notice of this appeal, against the said interlocutory Ruling of the Tribunal, was filed on 27/06/2016, that is, 110 days, after the date of the decision (09/03/2016). Thus, the grounds 1 to 4 of the Appeal, founded on the said interlocutory Ruling, should be struck out for violating the law. He relied on Okechukwu Vs INEC (2014) 17 NWLR (part 1436) 255.
There is no doubt that Appellant ran fowl of the express provisions of the law by making the appeal agaist the said interlocutory Ruling of the Tribunal, delivered on 09/03/2016, part of the decisions appealed against in this appeal, whereof grounds (1) to (4) and issues 1, 2 and 3 are predicated. Apart from raising such appeal, belatedly, after about 110 days of the ruling appealed against, the constitutional provision that such appeal “ Appeals in election matters, be heard and determined within 60 days of delivery, would be compromised. See section 285(7) of the 1999 Constitution, as amended.
Appellant had, however, advanced reasons to justify why he brought the appeal against the interlocutory appeal together with the appeal against the final judgment. It said it had earlier filed appeal on 10/03/2016 against the interlocutory ruling (See pages 1025 “ 1033 of Records) but later abandoned that appeal. Appellant™s Counsel, at the hearing of this appeal, on 27/07/2016, claimed that this court, when the interlocutory appeal came up earlier, had directed Appellant to go back to the Tribunal, and await the final decision of the Tribunal, and take up the interlocutory appeal, together with the final decision. He admitted such evidence was not carried by the Records.
Sadly, those claims were not borne out on the Records of Appeal and Appellant cannot canvass any position on appeal, which is not supported by the printed Records before the Appellate court. See Orok Vs Orok (2013) LPELR “ 20377 CA; Garba Vs Omokhodion (2011) 15 NWLR (part 1269) 145; Haske Vs Magaji (2008) 1 LPELR “ 8330; (2009) All FWLR (part 461) 887.
Appellant had also argued that the decision of the tribunal on the interlocutory application made on 09/03/2016 had survived the final judgment, that is, the issue determined by the interlocutory ruling still remained live at the final judgment on 08/06/2016.
It is difficult to appreciate that argument, considering the fact that the 3rd Respondent ceased to be a party to the suit from 09/03/2016, upon the interlocutory ruling, which saw the striking out of 3rd Respondent from the case.
But the purport and application of pre-hearing Notice proceedings, are clearly stated by the law and by decided cases, to suggest that it was not intended to serve the role applied by the trial Tribunal.
By paragraph 18(1) of the 1st Schedule to the Electoral Act 2010, (as amended) a petitioner in an election petition is required to apply for issuance of pre-hearing notice as in form TF 007, upon the close of pleadings, as regulated in paragraphs 10, 11, 12(1) 16(1) and 18(1) of the 1st Schedule to the Electoral Act.
Paragraph 18(1)(2) states:
1) œWithin 7 days after the filing and service of the petitioner™s reply on the respondent or 7 days after the filing and service of the Respondents reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.
2) Upon application by a Petitioner under sub- paragraph (1) of this paragraph, the tribunal or court shall issue to the parties or their legal practitioners (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in Form TF 008, for:
a) the disposal of all matters which can be dealt with on interlocutory application;
b) giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions;
c) giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need for the expeditious disposal of the petition; and
d) fixing clear dates for hearing the petition.
3) The respondent may bring the application in accordance with sub paragraph (1), where the petitioner fails to do so, or by motion, which shall be served on the petitioner and returnable in 3 days, apply for an order to dismiss the petition.
Going by the above purport of filing the application for issuance of pre-hearing notice and for the pre-hearing session, namely, to signal close of pleadings and cause the Tribunal (Registry) to issue to the parties invitation to come for pre-hearing session, for the purpose of disposing of all interlocutory matters, and to give direction as to the future of the course of the petition, with regards to the just, expeditions and economical way of disposing of the petition, order of call of witnesses and tendering of documents, as well as fixing date for hearing of the petition, I cannot understand why such application (for issuance of pre-hearing notice) should be done by a petitioner more than once in a case, such that he is expected to do so (file the application) in respect of each Respondent in the same Petition, the moment each Respondent files a Reply (or the petitioner responds to the Reply by each respondent).
See the case of Sa™eed & Anor Vs Yakowa (2013) 7 NWLR (part 1352) 124 at 164 “ 165. on the purport of pre-hearing notice where the Apex court, per Ngwuta, JSC, stated that:
œThe purpose of pre-hearing notice is to inform the parties of the impending hearing and to ensure attendance at the hearing. If for any reason or by any means this purpose is achieved without formal application for issuance of pre-hearing notice, a party who had taken part in the proceedings cannot be heard to argue that the rule has not been complied with, more so, when there is no allegation of miscarriage of Juctice from the non-compliance. See Ipinlaiye II Vs Olukotun (1996) 6 SCNJ 74 at 88; (1996) 6 NWLR (part 453) 148; Akhiwu Vs Principal Lotteries Officer Midwest (1972) 1 All NLR (part 1) 229 at 238; Okwechime Vs Philip Igbinadolor (1964) NMLR 132.
In absence of anything showing to the contrary, the appeal sought to be struck out for non-compliance with paragraph 18(1) of the 1st Schedule to the Act in the petition from which the appeal arose comes within the warm embrace of the saving provisions in paragraph 53 of the said 1st Schedule to the Act. The Rules as the handmaids of the law cannot constitute obstacles on the paths of substantial Juctice under the law.
It sounds really absurd, in any view, to expect the Petitioner to file separate pre-hearing notice to each Respondent (on the claim that separate petition is filed against each respondent). In that case, will the Tribunal invite parties, each time, calling for separate pre-hearing sessions with each Respondent, separately, and issue separate directions in the same petition? That does not appear to be the case and it does not make much sense to me.
I agree with the reasoning of my learned brother, P. O. Ige JCA in the case of Onyereri Vs Nwadike (2015) 8 LAR 117 when he said:
œ¦where you have more than a Respondent in a petition, pleadings will not close until the expiration of the time limited in those paragraphs of the schedule, particularly 16 thereof. In effect, an Appellant must wait for the time frame or period of time allocated to the parties to file Replies before the Appellant can take out Form TF 007 within 7 days of the service of the Respondents Reply, filed within time permitted under paragraph 12(1) of the 1st Schedule, on the Appellant. Paragraph 16(1) applies mutatis mutandis to each and every Respondent to this petition, otherwise it will be a breach of section 36(1) of the 1999 Constitution of Nigeria, as amended¦
Appellant had applied for the pre-hearing process at the close of pleadings in this case, but the 3rd Respondent felt the Appellant should have also applied for the pre-hearing notice when it filed its Reply!
It should also be stated that an election petition, being sui generis, whereof the respondents usually delight in laying ambushes and employing of dilatory games against a petitioner, it would be dangerous for a petitioner to wait until the last Respondent files a Reply, before he (Petitioner) applies for issuance of pre-hearing process. This is because, the petitioner may wait in vain and/or to his detriment, where a respondent elects not to file any reply, and by the time he (petitioner) notices this, he is already out of time to activate the pre-hearing process, in respect of the Respondent who had filed a Reply. See the case of Ikechi Patrick Anya & Anor. Vs Egworonu O. Egworonu & others CA/OW/EPT/HA/13/2015, delivered on 08/09/2015 where this court, on the need to avoid undue technicalities in relation to the whole essence of paragraph 18(1) of 1st Schedule to the Electoral Act, 2010, said:
œI am always worried about a situation in which a Tribunal or court, gleefully, applies, or relishes in applying or invoking, or goading a party to invoke procedural law or rule of court, as a tool, to deal a technical knockout of a suit (or on an aggrieved party, to frustrate and/or dismiss a party™s substantive claim) not on the merits, and contrary to the party™s rights, protected by substantive law or constitution of the Federal Republic of Nigeria. The Rules of procedure of court, as always said, are to serve as only a handmaid of the law, to assist the court to do Juctice. See Ibrahim Vs Deputy Sheriff & others (2014) LPELR 23472; Bello and others Vs Attorney General of Oyo State (1986) 5 NWLR (part 45) 828; where the Supreme Court, per Oputa JSC said:
œLaw and all its technical rules ought to be but a hand maid of Juctice, and legal in-flexibility (which may be becoming of the law) may, if strictly followed, only serve to render Juctice grotesque or even lead to outright in Juctice. The court will not endure mere form or fiction of law, introduced for the sake of Juctice should work a wrong contrary to the real truth and substance of the case before it. See also Akirikwen Vs PDP (2012) All FWLR (part 617) 689.
However, in the circumstances of this appeal, the above reasoning and considerations are merely gratuitious, in the face of the naked truth that Appellant in this case had abandoned the appeal he raised earlier against the decision of the lower tribunal reached on 09/03/2016, and had elected to incorporate same into the final decision of the Tribunal, reached on 08/06/2016, thereby bringing appeal against the interlocutory ruling, about 110 days after it was made, by which time the decision (ruling on the interlocutory application) has become stale and offensive, polluting everything that came with it:
By paragraph 6 of the Election Tribunal and Court Practice Directions, 2011:
œAppellant should file in the Registry of the Tribunal his Notice of Appeal within 21 days from the date of the decision appealed against.
That means, the appeal against the Ruling of 09/03/2016, should have been filed at the lower Tribunal within 21 days from the 9th March, 2016. And by section 285(7) of the 1999 Constitution, as amended, appeal against any decision of the Election Tribunal must be heard and determined within 60 days, from the date of that decision. The Supreme Court™s position on the strict interpretation and application of the stipulated time frame to hear and determine a petition, and appeal therefrom, has become a rock “ the rock of Gibraltar, in firmness. See the case of Shettima Vs Goni; (2011) 18 NWLR (part 1279) 413; ANPP Vs Goni (2012) 7 NWLR (part 1298) 147 at 182 “ 183; CPC Vs INEC (2011) 18 NWLR (part 1279) 493; Ugba Vs Suswan (2013) 4 NWLR (part 1345).
In his interpretation of section 285(6) (7) of the Constitution, My Lord, Onnoghen JSC in that case of ANPP Vs Goni (supra) said, concerning the 180 days or 60 days for delivery of judgment in election matter/appeal:
œCourts do not have the vires to extend the time assigned by the Constitution. The time cannot be extended or expanded or elongated, or in any way enlarged. The time fixed by the Constitution is like the rock of Gibraltar or Mount Zion, which cannot be moved, if what is to be done is not done within the time so fixed, it lapses as the court is thereby robbed of the jurisdiction to continue the matter. See also Marwa Vs Nyako (2012) 6 NWLR (part 1296) 119.
Thus, Appellant could not validly raise any appeal against the said interlocutory ruling of the Tribunal made on 09/03/2016, on 27/06/2016, when it brought this appeal, as the said appeal should have been heard and decision reached within 60 days, from 09/03/2016. This legal contraption called œappeal is, therefore, a complete nullity and incompetent, having been brought about 110 days, after the ruling, and therefore barred.
The 3rd Respondent also raised a crucial point in the preliminary objection, to the effect that the entire appeal is an academic exercise, in that, the 3rd Respondent having ceased to be a party to the petition, from 09/03/2016 when its name was struck out of the suit, it ceased to be a party to the petition and by extension, to the Appeal against the final decision made on 08/06/2016. Thus, even if (and without conceding) the appeal were allowed, it cannot be enforced against the 3rd Respondent who was not a party to the petition at the time of that judgment, and so it would enure no benefit to any party. I agree with that reasoning and submission, completely.
Upon my holding that Appellant cannot appeal against the interlocutory ruling of 09/03/2016 on 27/06/2016, the same being statute barred, and striking out the grounds 1 to 4 of the appeal, the 3rd Respondent, therefore, ceased to be a party or credible party to the rest of the grounds of this appeal, which relate to the decision of 08/06/2016, whereof the 3rd Respondent was not a party.
An appeal is said to be academic, where the outcome of it would bring no benefit to any party, except perhaps the mental or sensual satisfaction to that party or parties who brought it. In the case of Kayode Vs Abdulfatai & others (2012) 33 WRN 145; (2012) LPELR “ 7874 CA, this court said:
œA case is said to amount to an academic venture, where œThere cannot be said to be live issue in a litigation, if what is presented to the court for a decision, when decided, cannot affect the parties thereto in anyway, either because of the fundamental nature of the reliefs sought or of Changed circumstances since after the litigation started, so that in the end, an appeal may become academic at the time it is due for hearing see the case of Attorney General of the Federation Vs ANPP (2004) LRCN 2671;
See also Odedo Vs INEC (2008) 17 NWLR (part 117) 554, where it was held:
œA suit is academic, where it merely makes empty sound and 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. An academic issue or question is one which does not require answer or adjudication by a court of law because it is not necessary to the case at hand ¦. (it) could be a hypothetical or moot question (and)¦. does not relate to the live issues in the litigation, because it is spent as it will not enure any right or benefit on the successful party. See also Tanimola Vs Mapping Godatta Ltd. (1995) 6 NWLR (part 403) 617; Nwodoshi Vs ACB (1995) 6 NWLR (part 404) 658; Ogbonna Vs President Federal Republic of Nigeria (1997) 5 NWLR (part 504) 281; Ndulue Vs Ibezim (2002) 12 NWLR (part 780) 139.
It can be noted that part of the reliefs sought by Appellant in this appeal was:
œ2) An order of this Honourable court pursuant to section 15 of the court of Appeal Act 2004 to rehear the petition against the 1st to 3rd Respondents.
3) An order for the full participation of the 3rd Respondent (INEC) in the proceeding before this Honourable court on the merit.
4) To grant the reliefs sought by the Appellant in the petition, namely ¦..
Of course, such orders/reliefs cannot be made by this court even if this court were to see merit in the appeal, as to do so would violate the Constitutional provisions in section 285(6), confining the hearing and determination of election petition within 180 days, from the date of declaration of result. The case law on this had been earlier referred in this judgment, showing that Constitutional provision in the similitude of a rock or mountain that cannot be moved. ANPP Vs Goni (2012) 7 NWLR (part 1298) 147 at 182 “ 183; Marwa Vs Nyako (2012) 6 NWLR ( part 1296) 199.
That, in my view, further demonstrates the academic nature of this appeal, that even if it were allowable, will not and cannot be implemented, as the petition can no longer be entertained, after the expiration of 180 days allowed for its hearing and determination.
I, therefore, come to the conclusion that, there is merit in the preliminary objections, raised by the 2nd and 3rd Respondents (separately) and the same are hereby upheld. The result is that grounds 1 to 4 of the grounds of appeal, are hereby struck out, and the effect of that is fatal to the entire appeal, as the rest of the grounds and issues distilled therefrom, would amount to pursuing an academic venture, as highlighted above, if considered.
The appeal is accordingly, struck out for incompetence.
In the circumstance, I do not consider it necessary to determine the rest of the issues raised in this appeal. See the case of Ikechukwu Vs FRN (2015) IPELR “ 24445 SC, where my Lord, Nweze JSC, said:
œIt cannot be gainsaid that as a general rule, an intermediate court, like the Lower Court, has a duty to pronounce on all the issues before it, Federal Ministry of Health Vs Comet Shipping Agencies Ltd (2009) 9 NWLR (part 1145) 193; Samba Petroleum Ltd and others Vs UBA Plc & others (2010) 6 NWLR (part ¦.) 530,531, Brawal Shipping Vs Owonikoro (2000) 6 SCNJ 508, 522; Adeogun Vs Fasogbon (2011) 8 NWLR (part 1250) 427; Ovunwo Vs Woko (2011) 17 NWLR (part 1277) 522.
(But) ¦.. where the said court, as an intermediate court, decides that it lacks jurisdiction in an appeal before it, it, then, becomes unnecessary to consider other issues once it has taken a decision on the question of its jurisdiction, FCDA Vs Sule (2994) 3 NWLR (part 332) 256, 282; Oro Vs Falade (1995) 5 NWLR (part 396) 385, 407; Ifeanyi Chukwu (Osondu) Ltd Vs Soleh Boveh Ltd (2000) 5 NWLR (part 656) 322, 352. It means, therefore, that, where, as was the case at the Lower Court, a preliminary objection challenging the competence of an appeal is upheld, it will be unnecessary to consider the arguments in support of the issues for determination, distilled by the parties to the appeal, Onigemeh Vs Egbochualam (1996) NWLR (part 448) 255; NEPA Vs ANGO (2001) 15 NWLR (part 757) 627; Uwazurike & others Vs Attorney General Federation (2007) LPELR “ 3448 SC (2007) 8 NWLR (part 1035) 1.
Parties shall bear their respective costs.
But as a post script, I think it is necessary to further regulate the exercise of right of petition/appeal in election matters, to ward off frivolous and unnecessary applications brought by Counsel for pecuniary gains or by parties for mischief, to frustrate their opponents. Such frivolous and unnecessary applications/ petitions/ appeals result in complicated processes in Tribunal court, that buy into the limited time meant to hear and determine genuine petitions/appeals.
I think where a petitioner did not finish as a runner up, or one with the 2nd largest votes at election, and is not complaining of undue exclusion in the elections, or that the person returned as the winner of the elections, was not qualified to stand election, the same should be discouraged or barred from the judicial contest, as it may amount to mere fruitless or academic exercise.
Also where parties had fought, together, on the same side as petitioners or Respondents (with common interest) or had common interest in the petition/defence at the Tribunal (for example a political party and its candidate at the election “ as Petitioners or Respondents), they should not be allowed to split the appeal arising from the decision of the Tribunal. This may further sift the processes and weed off frivolous actions to reduce the amount of workload at the Tribunal/Appellate courts, considering the limited time available to hear and determine election petitions and appeals.
Other Citations: (2016)LCN/8972(CA)
