Ojoje Edache Reuben & Anor. V. Ogbole Joshua & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A. (REASONS FOR THE JUDGMENT)

On 14th October, 2011, I delivered the judgment in this appeal and reserved my reasons. I shall herein make my reasons known.

On 14th October, 2011, I delivered the judgment in this appeal and reserved my reasons. I shall herein make my reasons known.

In his argument in support of the 1st respondent’s notice of preliminary objection, Mr. Okutepa submitted that this Court lacks the requisite jurisdiction to hear and determine grounds 1 and 2 of the Notice of Appeal and the issues distilled from them. He contended that grounds 1 and 2 of the Notice of Appeal relating to the ruling of the Tribunal delivered on 5/8/2011 could no longer be determined by this Court for want of jurisdiction. Learned Counsel urged the Court to hold that the time within which to consider and deliver judgment on the ruling of 5/8/2011 has been extinguished and to decline jurisdiction to hear and decide on said grounds 1 and 2 of the Notice of Appeal and issues 1 and 2. He relied on: Kraus Thompson Organization v. NIPPS (2004) 17 NWLR (PT.901) 44 at 60 – 61.

Mr. Okutepa further submitted that grounds 3 and 4 of the Notice of Appeal arising from the Tribunal’s ruling of 15/8/2011 must fail if this Court upholds the 1st respondent’s objection on grounds 1 and 2. Learned counsel’s contention is based on the fact that, having dismissed the application for pre-hearing notice on 5/8/2011 the petition became abandoned and rendered the Tribunal incapable of taking any other motion or process by the petitioners aimed at saving the petition. he referred to: paragraph 18(1), (2), (3) and (4);

Peoples Democratic Party v. Prof. Steve Torkuma Ugba & Ors. unreported Appeal No. CA/MK/EPT/10/2011 delivered on 16/9/2011. On this premise, the learned counsel submitted that grounds 3 and 4 of the Notice of Appeal and issues distilled from them are futile, they cannot serve any useful purpose and as such academic and hypothetical. He cited: Yar’Adua v. Abubakar (2009) All FWLR (Pt.460) 672 at 677; Plateau State v. Attorney-General of the Federation (2006) ALL FWLR (Pt.305) 590 at 646 – 647; Sambo v. Aliero (2010) ALL FWLR (Pt.541) 1589, paras C – E; Odedo v. INEC (2008) 17 NWLR (Pt.1117) 554.

Finally on the preliminary objection learned counsel urged the Court to hold that grounds 3 and 4 of the Notice of Appeal have become academic and to dismiss the appeal in its entirety.

In reply, Mr. Wayo for the appellants, submitted that the ruling of the Tribunal on 15/8/2011 incorporated its decision of 5/8/2011 comprehensively and to that extent, it has become diametrically impossible to divorce the two. He referred to page 433 of the record and also quoted from pages 440 and 441 of the record as reproduced hereunder.

440 “The petitioners filed in application for pre-hearing Notice on the 28th day of June, 2011, was this application filed after close of pleadings in this case? The answers to these questions are simple. As at 28th day of June, 2011 when the petitioners applied for pre-hearing notice, pleading had not closed. No other application was filed after pleading had closed.”

441 “In this case, it stands to reason that there was no application for pre-hearing notice to be served as in Form TF 007 as the only application was filed on the 28th day of June, 2011 when pleadings had not closed and there was no valid application filed after pleadings had closed.

Learned counsel thereafter submitted that the effect of the ruling of 5/8/2011 was on the decision of 15/8/2011 where the Tribunal despite its earlier ruling of 5/8/2011 reconsidered copiously the application of the appellants.

Finally, he submitted that, the decision of the Tribunal being a decision not based on the merit, the Court of Appeal is not bound by the stipulations of time either in the Constitution or the Practice Direction ANPP V. R.E.C. Akwa Ibom State (2008) 8 NWLR (Pt.1090) Pg. 453 at 541 – 542, paras D – C; 534, paras B – G; 535 – 536, paras B – G.

Mr. Wayo, of counsel urged the Court to dismiss the objection as being totally misconceived.

The question that this preliminary objection raises is whether in the circumstances of this appeal, this Court has the jurisdiction to hear and determine same.