Nasko & Anor V. Bello & Ors (2020)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C.

This appeal is against the judgment of the lower Court, Abuja Division delivered on 16/11/2019, which affirmed the decision of the trial Governorship Election Petition Tribunal of Niger State, which affirmed the declaration and return of the 1st Respondent as the duly elected Governor of Niger State by the 3rd Respondent. It is the issue that the lower Court having declared the judgment of the trial Tribunal a nullity, still went ahead to affirm the judgment it declared a nullity. Dissatisfied, the Appellants have appealed to this Honourable Court seeking for the reliefs contained in the Notice of Appeal.

Sequel to the election conducted by the 3rd Respondent on 9/3/2019 for the office of the Governor of Niger State, the 1st Respondent, who won the election was duly declared and returned as the winner of the said election. Dissatisfied, the Appellants petitioned the 1st Respondent on 27/3/2019 challenging his return. The grounds of the petition are:

1. The 1st Respondent was at the time of the Governorship Election of 9th March, 2019 in Niger State, disqualified to contest the said election.
2. The 1st Respondent submitted to the 3rd Respondent an affidavit, FORM CF001, containing false information and forged documents in furtherance of his qualification to contest the Governorship Election of 9th March, 2019.
3. The 1st Respondent was not duly elected by majority of the lawful votes cast at the Governorship Election of 9th March, 2019.
4. The election and return of the 1st Respondent is invalid by reason of corrupt practices.
5. The election and return of the 1st Respondent is invalid by reason of non-compliance with the provisions of the Electoral Act, 2010 (as amended) and Guidelines.

After the trial, the Tribunal in its final judgment on 18/9/2019 dismissed the petition, hence the appeal to the lower Court and then this Court by the Appellants.

In seeking the determination of the appeal before this Court, the Appellants distilled these issues:

1. Whether the lower Court was right when it upheld the decision of the trial Tribunal that because the 3rd Respondent (INEC) was or never in possession of the originals of documents submitted to it by the 1st and 2nd Respondents, documents annexed to

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Exhibits B1 and B2 admitted evidence, cannot be certified by the 3rd Respondent and where certified, it cannot tantamount to the proof required of allegation of giving false information and presenting forged documents by a candidate.

2. Whether the 1st Respondent’s affidavit of correction dated 18th November, 2018 and another Declaration of Age dated 18th November, 2018 can correct the false/forged Declaration of Age dated 14th August, 2018 submitted to INEC and acted upon by INEC since the 9th of November, 2018.
3. Whether the Court was right to uphold the evaluation of evidence by the trial Tribunal which failed to properly consider, evaluate and pronounce on all the evidence tendered and placed before it and thus breached the Appellants’ right to fair hearing and occasioned a miscarriage of justice.
4. Whether the Court having found that the judgment of the trial Tribunal did not meet the constitutional requirement had an obligation to consider the records and grant the reliefs sought by the Appellants in the Petition based on the principle of jus ibi remedium,

The 1st Respondent in responding distilled two issues for the

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determination of the appeal:

1. Whether the learned Justices of the Court of Appeal were correct to upheld/sustained(sic) the decision of the trial Tribunal that rejected the Exhibits tendered by the Appellants and to dismiss the Appellants’ petition for lacking in merit?
2. Whether the learned Justices of the Court of Appeal were right to have affirmed the declaration return of the 1st Respondent as the duly elected Governor of Niger State as found by the trial Tribunal despite the fact that they declared the judgment of the trial Tribunal a nullity?

The 2nd and 3rd Respondents separately filed their briefs and prayed this Court to dismiss the appeal filed by the Appellants.

PRELIMINARY OBJECTION:

The 1st Respondent by an application dated 9/12/2019 and filed on 12/12/2019 objected to the competence of the Appellants’ appeal vide a Preliminary Objection that this Honourable Court does not have the jurisdiction to hear this appeal. Having argued same in his brief at pages 2-9, filed on same 12/12/2019, the 1st Respondent’s learned senior Counsel, J.S. Okutepa, SAN, listed the grounds of his objection as follows:

a. Appellants herein in

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the notice and grounds of appeal before the lower Court ground 9 thereof and issue 4 distilled therefrom challenged the judgment of the trial Tribunal and argued thereto that because each member of the trial Tribunal did not express their opinion separately in the judgment of the Tribunal delivered on 18th day of September, 2019, the judgment so delivered was a nullity.

b. The Court below resolved the issue raised in the notice and ground of appeal in ground 9 and issue 4 in favour of the Appellants and thus declared the judgment of the trial Tribunal a nullity.

c. By the judgment of the Court below declaring the judgment of the trial Tribunal, a nullity at the instance of the Appellants and against which there is no appeal, it means the trial Tribunal did not deliver its judgment within 180 days as required by Section 285(6) of the 1999 Constitution as amended and aforetiori the further appeal by the Appellants before this Hon. Court constitutes an academic exercise,

d. This Hon Court has no jurisdiction to hear and determine appeal that raised academic questions.

It was the argument of the 1st Respondent that this Court has no

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jurisdiction to entertain an appeal that is academic. He submitted that the Appellants in issue 4 culled from ground 9 challenged the judgment of the Tribunal because each member of the Tribunal could not express his opinion separately in the judgment delivered on 18/9/2019, thereby making the said judgment a nullity. Consequently, the Court below agreed with the Appellants and declared the Tribunal’s judgment a nullity. Thus, that by the judgment of the lower Court declaring the Tribunal’s judgment a nullity at the instance of the Appellants, against which there is no appeal, it means invariably that the Tribunal did not deliver its judgment within 180 days statutorily required by Section 285(6) of the 1999 Constitution (as amended), and that aforetiori the further appeal by the Appellants to this Court constitutes an academic exercise, abuse of Court process and an incompetent appeal. He relied on MUSTAPHA V. GOVERNOR OF LAGOS & ORS (1987) LPELR-1931(SC), ABUBAKAR & ORS V. NASAMU & ORS (2012) LPELR-7826(SC), LADOJA V. INEC (2007) LPELR-1738 (SC). He submitted that since the said judgment was a nullity, the instant appeal is academic and has no

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utilitarian benefit to the Appellants. He referred to UGBA V. SUSWAM (2014) 14 NWLR (PT. 1427) AT 313-314, ABUBAKAR V. YAR’ADUA (2008) ALL (PT.404) AT 1437, OKE V. MIMIKO (NO.1) (2014) 3 NWLR (PT. 1388) AT 265. It is his contention that the 180 days Constitutionally given within which to conclude arm election petition having lapsed, since the petition was filed on 27/3/2019, it is consequent that the instant appeal has become academic with no live issue in it. He therefore prayed for the dismissal of this appeal.

The Appellants in their reply to the Preliminary Objection filed on 18/12/2019 submitted that the Appellant’s ground 6 of the Appellants’ Notice of Appeal complained against the decision of the lower Court declaring the Tribunal’s judgment a nullity. He placed reliance on NWOSU V. PDP & ORS (2018) LPELR-44386. Finally, that the issue of not delivering judgment within 180 days was not an issue canvassed at the lower Court and this Court cannot take appeal from the trial Court. He citedJULIUS BERGER & ÄNOR V. TOKI RAINBOW COMMUNITY BANK LTD (2019) LPELR-46408(SC). He therefore urged for the dismissal of the Preliminary Objection and consideration of the appeal on its merit.

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Where the issue of jurisdiction of a Court is raised and questioned, especially in a Preliminary Objection or otherwise as in the instant appeal, utmost and primal attention must be accorded it before other matters or the substance thereof can be considered.

Where the issue of jurisdiction of a Court is challenged that Court must first and foremost assume jurisdiction to determine whether it has jurisdiction to hear the case on the merits. Jurisdiction is a crucial issue of competence; it is either the Court has jurisdiction to hear a case or it has not.

See Per ADEKEYE, JSC in OGBORU & ANOR v. UDUAGHAN & ORS(2012) LPELR-8287(SC).

The 1st Respondent a fortiori challenged the jurisdiction of this Court to hear the Appellants’ appeal vide a Preliminary Objection. Preliminary objection, if upheld would render further proceedings before the Court impossible or unnecessary. Generally, the Rules of this Court allow a Respondent to rely on a preliminary objection to the hearing of an appeal. The purpose of this is to bring the appeal to an end having been discovered to be incompetent and or

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fundamentally defective. It will therefore be unnecessary to continue with an appeal once an objection is raised without disposing of same. In other words, the Court is expected to deal with and dispose of a preliminary objection once raised by a Respondent before taking any further step in the appeal. See Per ARIWOOLA, JSC in UDENWA & ANOR v. UZODINMA & ANOR (2012) LPELR-22283(SC).

A party cannot approbate and reprobate at the same time. The Appellants cannot seek or ask for one thing at the lower Court and be asking for another incongruent, unparallel and impossible thing in this Court. The Appellants had their prayer answered in the lower Court but are now seeking for a different proposition! One cannot eat his cake and have it back again. In other words, can the law permit him to blow hot and cold at the same time? Or, can he approbate and reprobate? See also Per MUHAMMAD, JSC in NYAKO v. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR-41822(SC).

At the lower Court, the Appellants herein in their Notice and Grounds of Appeal (Ground 9 and Issue 4 distilled therefrom) challenged the judgment of the trial Tribunal that because each

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member of the trial Tribunal did not express their opinion separately in the judgment of the Tribunal delivered on 18th day of September, 2019, the judgment so delivered was a nullity.

The lower Court in its judicial wisdom and sagacity, after considering the facts and the law, granted the prayer of the Appellants that the judgment so delivered on 18/9/2019, was indeed a nullity. In lines 2-9, the lower Court emphatically held thus:

“…it would appear that it became incumbent on all the Judges that sat in the trial Tribunal to have expressed their individual opinion in writing at the time the judgment under review was delivered and failure of the two other Judges of the trial Tribunal to comply with the requirement of Section 294(2) of the Constitution as interpreted by the Supreme Court in the case of: Nyesom vs. Peterside (supra) renders the judgment delivered by the trial Tribunal 18th September, 2019, a nullity. It is equally trite that no party can claim any benefit from a judgment which is a nullity …”

It is observable that from the onset, it is the Appellants who took up this fight to have the judgment of the Tribunal

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voided for the reason afore-stated. They got the seal and stamp of the lower Court, who agreed with them and gave judgment in their favour to that effect. Are they now appealing to this Honourable Court to void the judgment they prayed to be declared a nullity and has been so declared a nullity? Do they have a right to appeal a judgment that is nullity and void ab initio? I think not.

It is settled that where an order (including a judgment of a Court) amounts to a nullity, the Court that made that order in its inherent jurisdiction is empowered to set the same aside and all appeal is not necessary for the purpose. See Per ONU, JSC in MENAKAYA V. MENAKAYA (2001) LPELR-1859(SC), ADEGOKE MOTORS LTD V. ADESANYA (1989) 3 NWLR (PART 109) 250.

A nullity in law is a void act, an act which has no legal consequence. A proceeding, decision or judgment which has been declared a nullity is void and without legal effect or consequence whatsoever. It does not confer any legal right whatsoever, or it does not impose any obligation or liability on anyone. In the instant appeal, once the judgment from which it emanated was nullified, there is nothing left before this Court

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upon which the appeal can be based. See Per ADEKEYE, JSC in ABUBAKAR & ORS V. NASAMU & ORS (2012) LPELR-7826(SC), OKAFOR V. A.G ANAMBRA STATE (1991) 6 NWLR (PT.200) 659.

This appeal by the Appellants is eminently an abuse of Court process since an appeal is not necessary in this instance.

Furthermore, the Constitution, by Section 285 provides that election petition be disposed within 180 days from the date filed. This petition having been filed since 27/3/2019 has since lapsed. What benefit or gain will this judgment be to the Appellants if the case is decided in their favour? It is nothing but pursuing the winds and shadows! This appeal is nothing but hypothetical and academic since nothing good can come out of it. It is trite that when an issue becomes academic or hypothetical in nature, a Court of law will have no jurisdiction to hear or determine it. See Per MUNTAKA-COOMASSIE, J.S.C in DREXEL ENERGY & NATURAL RESOURCES LTD & ORS V. TRANS INTERNATIONAL BANK LTD & ORS (2008) LPELR-962(SC), ZENITH PLASTIC INDUSTRIES LTD. V. SAMOTECH LTD (2007) 16 NWLR (PT. 1060) 315 AT 314.

I must by the force of the law decline authority to

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entertain the main appeal since this Court does not have the jurisdiction to entertain an appeal that is academic. Since I am not bound to consider and delve into the merit of the appeal in the other issues since this is the final Court (Per MOHAMMED, JSC in ELELU-HABEEB & ANOR V. AG FEDERATION & ORS (2012) LPELR-15515(SC), I will boldly uphold the Preliminary Objection and dismiss the appeal forthwith.

The Preliminary Objection of the 1st Respondent filed on 12/12/2019 against the hearing of the Appellants’ appeal is hereby sustained. The appeal filed by the appellants is thus dismissed. Parties are to bear their costs.

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SC.1446/2019