Prof Steve Torkuma Ugba & Anor V. Gabriel Torwua Suswam & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the interlocutory decision of the Governorship Election Petition Tribunal, Holden at Makurdi, in Petition No. GET/BN/02/2011, delivered on 13/2/12 [Coram: Hon. Justice H.S. Mohammed (Chairman), Hon. Justice M. A. Degbola (Member) and Hon. Justice E. S. Chukwu (Member)]. Appellant, at the Lower Tribunal, had filed a motion on 28/1/12, praying the Lower Tribunal, among other reliefs, for:

“(a) ….

(b) An order setting aside its decision granting 1st and 3rd Respondents’ application in its ruling delivered on 23rd January 2012, since same was delivered without jurisdiction and is consequently a nullity.

(c) An Order Restoring Ground Three of the petition and hearing and determining same on the merits pursuant to the directive order of the Supreme Court

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(d) An Order Entering Judgment against the 1st, 2nd and 3rd Respondent in respect of Ground 3 of this Petition in favour of the petitioners,

(e) such further order(s) …..”

Upon hearing the application, the learned Tribunal, in a considered Ruling, held for the Appellant (Applicant) in respect of prayers (a) (b) and (c) and restored the Ground 3 of the petition for hearing; “that ground 3 of the petition still subsist (sic) and this still forms part of this petition”. But in respect of prayer (d) the Tribunal held at page 983 of the records, as follows:

“Haven (sic) held so, can we give judgment to the petitioners on their Relief? We had reproduced in extenso the various depositions and further oral submissions of learned Counsels to the parties on this issue as to what is a traverse, the proper traverse and improper traverse. We have also reproduced the submission of Counsel on the fact that declaratory relieves cannot be granted even when there is no pleadings. It is clear that any attempt by us to digest any of the issues raised above leads to delving into the substantive case. We find such a trap at dragging us to pronounce on the substratum of this petition at this stage unattractive. We therefore make bold to state that we resist the seeming attractive temptation… The application … for judgment per ground D is accordingly refused. We shall hear this petition on the merit.”

That is the decision Appellants have appealed against in this appeal as per the Notice and grounds of Appeal filed on 22/2/12, raising one ground of appeal, as follows:

“The learned Tribunal erred in law in refusing to enter judgment against the Respondent in favour of the Appellant when:

(a) There was unchallenged and uncontroverted evidence adduced by the Petitioners;

(b) There was, on authorities and the law no proper traverse on the relevant averments by the Respondents to the relevant paragraphs of the petition.