OJOJE EDACHE REUBEN & ANOR. V. OGBOLE JOSHUA & ORS.
(2011)LCN/4860(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of October, 2011
CA/MK/EPT/16/2011 (REASONS)
RATIO
GROUND OF APPEAL: WHETHER A GROUND OF APPEAL CHALLENGES THE RATIO DECIDENDI
A ground of appeal challenges the quintessence of the reasons for a court’s decision which is otherwise known as ratio decidendi. PER UCHECHUKWU ONYEMENAM, J.C.A.
APPEALS AGAINST THE DECISION OF AN ELECTION TRIBUNAL: EFFECT OF A PROCEEDING CONDUCTED IN RESPECT OF AN APPEAL AGAINST THE DECISION OF THE TRIBUNAL AT THE EXPIRATION OF 60 DAYS
Accordingly, any proceeding conducted in respect of an appeal against the decision of the Tribunal at the expiration of 60 days is conducted without jurisdiction and amounts to an act in futility same being a nullity. PER UCHECHUKWU ONYEMENAM, J.C.A.
GROUND OF APPEAL: INSTANCES WHERE A GROUND OF APPEAL IS SAID TO BE ACADEMIC AND HYPOTHETICAL
A ground of appeal is said to be academic and hypothetical when it is theoretical, speculative, conjectural, suppositional and having no practical or useful significance. Such ground of appeal is hanging and is of no legal benefit to the appellant in the event that the court gives judgment in his favour based on issues distilled from the said ground. See Merriam – Webster dictionary; see also Plateau State v. Attorney-General of the Federation (2006) ALL FWLR (Pt.305) 590 at 646 – 647; also reported in (2006) LPELR – SC. 113/2004 at Pp. 76 – 77, paras G – C; Per Tobi JSC opined thus: “A suit is academic where it is merely theoretical, 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 situations of human nature and humanity. A suit is speculative if it is based on speculation – A suit is speculative if it is not supported by facts or very low on facts but very high in guesses.” PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICE
MOHAMMED LADAN TSAMIYA justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM justice of The Court of Appeal of Nigeria
Between
1. OJOJE EDACHE REUBEN
2. ACTIION CONGRESS OF NIGERIA (ACN)Appellant(s)
AND
1. OGBOLE JOSHUA
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)
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.
The Notice of Appeal reads thus: “TAKE NOTICE that, the petitioners having been dissatisfied with the decisions of the National/State House of Assembly Election Petition Tribunal holden in Makurdi, in petition No. NSHA/EPT/BN/33/2011, which decisions are dated 05/08/2011 and 15/8/2011, doth hereby appeal to the Court of Appeal on grounds set out in paragraph 3 and will at the hearing of the Appeal seek the reliefs set out in paragraph 4.
Grounds 1 and 2 of the grounds of appeal in paragraph 3 of the Notice of Appeal, without their particulars state as follows:
“1. The Honourable Election Petitions Tribunal erred in law when it dismissed the petitioner’s application for the issuance of pre-hearing notice filed on the 28/06/2011 on the grounds that, it was filed before pleadings were deemed to have closed on the 11/07/2011 when the 1st respondent’s reply filed on the 13/06/2011 was served on the petitioners.
2. The Honourable Elections Petition Tribunal erred in law when it first considered the application of the petitioners for the issuance of pre-hearing notice filed on the 28/06/2011 and dismissed it, before considering the application of the 1st respondent filed on the 23/07/2011 seeking to have the petition dismissed, on the grounds that, there was no application for pre-hearing and that the application for pre-hearing filed on 28/06/2011 was prematurely filed in view of the fact that the petitioners were served with the 1st respondent’s reply which was filed on the 13/06/2011, on the 11/07/2011. And the petitioners’ application filed on the 29/07/2011 seeking to have the 1st respondent’s reply filed on the 13/06/2011 struck out for incompetence.”
The following 2 issues were distilled from grounds 1 and 2 of the grounds of appeal reproduced above.
1. “Whether or not the election Petition Tribunal was right in dismissing the application of the petitioners/appellants for the issuance of pre-hearing notice, on the ground that it was filed before pleadings were deemed to have closed considering the facts that, the competence of the reply of the 1st respondent to the petition was being challenged, and that the said reply which was filed on 13/06/2011 was served on the petitioners/appellants on the 11/07/2011 when the time of the 1st respondent to file his reply extinguished on the 09/06/2011 and the time of the 2nd and 3rd respondents to file their replies to the petition was extinguished on the 27/06/2011.
2. Was the Tribunal right to have considered and dismissed the application of the appellants for pre-hearing notice filed on the 28/06/2011, before considering the applications of the 1st respondent filed on the 23/07/2011, praying the Tribunal to dismiss the petition on the ground that there was no application for pre-hearing notice and the application by the appellants challenging the competence of the reply of the 1st respondent which was being used as the basis for dismissing the appellants petition?
Mr. Okutepa’s objection is predicated upon the fact that grounds 1 and 2 of the Grounds of Appeal are attacks on the ruling of the Tribunal on 5/8/2011 which is one of the rulings appealed against. Learned counsel contends that, by the Provisions of Section 285(7) of the 1999 Constitution, (as amended) this court lacks the jurisdiction to consider and deliver judgment on grounds 1 and 2 of this appeal. In determining whether grounds 1 and 2 of the Grounds of Appeal are attacks on the ruling of the Tribunal on 5/8/2011: I will reproduce the bench ruling of the Tribunal on 5/8/2011, which is the subject of this appeal. See Pages 427 – 429 of the record.
“TRIBUNAL. We have seen the motion ex-parte before the Tribunal. We have seen the affidavit in support of the motion. Paragraph 3(a), (b) and (c) of the affidavit avers as follows:
“3(a) The petition of the petitioner was served on the 1st respondent on the 27th of May, 2011 and on the 2nd and 3rd respondents on the 6th June, 2011.
(b) The respondents have not served on the petitioners any reply to the petition of the petitioners.
(c) The proofs of service of the petitioners on the respondents are contained in the petition file of the Tribunal”.
We have observed from the file of the Tribunal cited above that the pleadings in this case closed on the 11th day of July, 2011 when the reply of the 1st respondent was served on the petitioners.
Paragraph 18(1) of the First Schedule to the Electoral Act provides that:
“18(1) within 7 days after the filing and service of the petitioner’s reply on the respondents 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″
The instant application applying for the issuance of the pre-hearing notice as in TF 007 was filed on the 28th day of June, 2011.
As noted above, pleadings in this case closed with the filing of the reply of the 1st respondent, 2nd respondent did not enter appearance. His motion to file a reply has just been dismissed. Can it then be said that the petitioner applied for the issuance of the pre-hearing notice as stipulated by the Electoral Act, 2010?
The answer to this question would be in the negative going by the date of the filing of the application for the issuance of pre-hearing notice as in form TF 007 and the note above that pleadings closed on the 11th day of July, 2011 when the reply of the 1st respondent was served on the Petitioners.
In the circumstance therefore, we hold that this application for the issuance of pre-hearing notice was filed prematurely before the close of pleadings in this case. In the circumstance just narrated, there is no compliance with the Electoral Act particularly Paragraph 18(1) of the First Schedule thereof. The application is consequently refused. It is dismissed accordingly”
The appellants motion ex-parte for the issuance of Pre-hearing notice dated and filed 28/6/2011 was dismissed on 5/8/2011 for non-compliance with paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended), in that it was filed by the appellants prematurely before the close of pleadings. A careful examination of grounds 1 and 2 of the Grounds of Appeal shows that those two grounds are directly challenging the decision of the Tribunal dismissing the appellants’ application for the issuance of pre-hearing notice. This was the decision of the Tribunal on 5/8/2011. It is certainly not the ratio decidendi of the decision of the Tribunal on 15/8/2011. Granted, that the Tribunal made copious references to the import of its decision on 5/8/2011, this does not make it part of the Tribunal’s decision of 15/8/2011 nor unified them as to juxtapose the two decisions so that an appeal against one means an appeal against the other. There is no provision for such in our legal system.
A ground of appeal challenges the quintessence of the reasons for a court’s decision which is otherwise known as ratio decidendi. It is never everything that is uttered by the trial judge in the course of arriving at a decision that is binding. The Tribunal’s reasoning while in motion to strive at its decision of 15/8/2011 gathered many imports, some which merely helped him in the decision making process and some which are of no moment. At best the references of the Tribunal at pages 440, 441 and 433 quoted and relied on by the appellants’ counsel relating to its decision of 5/8/2011 are considerations that merely helped it in arriving at its decision of 15/8/2011 and not the ratio decidendi. The decisions of 5/8/2011 and 15/8/2011 are in my humble view quite distinct and not in any way unified. I therefore do not agree with Mr. Wayo that the ruling of the Tribunal on 15/8/2011 incorporated its decision of 5/8/2011 to the extent that, it has become diametrically impossible to divorce the two. Accordingly, I hold that grounds 1 and 2 of the Grounds of Appeal are attacks on the decision of the Tribunal on 5/8/2011. The effect of this holding is the novel of the objection of the 1st respondent which he has hinged on the following 6 grounds;
1. “Grounds 1 and 2 of the Notice of Appeal and issues 1 and 2 distilled there from in the Appellants’ brief of argument complains of the ruling of the Tribunal delivered on the 5/8/2011
2. By S.285(7) of the 1999 Constitution (as amended) this Hon. Court has 60 days to give its judgment in an appeal from an election Tribunal.
3. That the last day of 60 days from the 5/8/2011 when the decision complained of in grounds 1 and 2 of the Notice of Appeal and issues 1 and 2 in the Appellants’ brief of argument could be decided was 4/10/2011.
4. That by the operation of S.285 (7) of the 1999 Constitution (as amended) the time within which this Hon. Court con deliver judgment on this appeal arising from the ruling of 5/8/2011 has lapsed.
5. That upon the failure of grounds 1 and 2 of the Appeal, ground 3 becomes on academic issue.
6. That this Hon. Court does not have the jurisdiction to hear and decide academic questions “.
The learned counsel for the 1st respondent’s contention is that grounds 1 and 2 of the Grounds of Appeal relating to the ruling delivered by the Tribunal on 5/8/2011, with arising issues 1 and 2, can no longer be heard and determined by this court the time having lapsed by reason of section 285(7) of the 1999 Constitution (as amended). Consequently, Grounds 3 and 4 and issues stemming from them have become academic and hypothetical. This on the whole, robs the Court the jurisdiction to hear and deliver judgment in this appeal.
Section 285(7) of the constitution (supra); provides:
“An appeal from a decision of an election Tribunal or Court of Appeal in the election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the Tribunal or Court of Appeal.
The provisions of section 285(7) (supra) is borne out of the fact that in the determination of election petitions, public policy behest that time is of the essence, it therefore requires that in the shortest given time parties affected and the entire populace should know the footing of the contestants. By section 285(7) of the constitution, every appeal from the tribunal must be heard and disposed off within 60 days from the date of the decision appealed against. The wordings of this section are unambiguous and as such must be interpreted literally. The court is only allowed to interpret the provision of a clear and unambiguous statute by giving the plain words their ordinary interpretation without concerning itself with the effect of the interpretation. In other words the Court is not permitted to allow its sympathy for a party who the legislation would work hardship on to interfere with its duty of interpreting the statute to give effect to the intention of the legislature. I gain support for this view by the Supreme Court decision in Kraus Thompson Organization v. NIPPS (2004) 17 NWLR (Pt.901) 44 at 60 – 61, Abubakar & Ors. v. Yar’Adua (2008) LPELR – SC 72/2008 per Mukhtar P. 205, Paras. B-F. The cases of ANPP V. R.E.C. Akwa Ibom State (2008) 8 NWLR (Pt.1090) 453 is of no moment.
Accordingly, any proceeding conducted in respect of an appeal against the decision of the Tribunal at the expiration of 60 days is conducted without jurisdiction and amounts to an act in futility same being a nullity. The ruling of the Tribunal appealed against was delivered on 5/8/2011. By the day the appeal was heard on 13th October, 2011, the mandatory 60 days had extinguished. So the hearing and determination of grounds 1 and 2 of the Grounds of Appeal and issues 1 and 2 distilled from them will be outside the 60 days allowed by section 285(7) of the constitution (supra).This, to my mind will amount to an exercise in futility since the constitution which empowered this court to hear this appeal has by the provisions of section 285(7) withdrawn its backing for the reason that the ruling of the Tribunal of 5/8/2011 appealed against is outside 60 days. Resultantly, I therefore hold that by the operation of Section 285(7) of the 1999 Constitution (as amended), the time within which this Court can hear and deliver judgment on the appeal arising from the ruling of 5/8/2011 has lapsed. Accordingly, this Court lacks the jurisdiction to hear and determine grounds 1 and 2 of the Grounds of Appeal and issues 1 and 2 as they arise from the Tribunal’s ruling of 5/8/2011.
In sum this court declines jurisdiction to hear and determine issues 1 and 2 distilled from Grounds 1 and 2 arising from the ruling of the Tribunal on 5/8/2011.
Mr. Okutepo of counsel, had urged the court to hold that grounds 3 and 4 of the Notice of Appeal are clearly futile and can serve no useful purpose if the court declines jurisdiction to entertain grounds 1 and 2 and the issues distilled from them. The appellants’ counsel did not respond to this in the appellants’ reply brief.
A ground of appeal is said to be academic and hypothetical when it is theoretical, speculative, conjectural, suppositional and having no practical or useful significance. Such ground of appeal is hanging and is of no legal benefit to the appellant in the event that the court gives judgment in his favour based on issues distilled from the said ground. See Merriam – Webster dictionary; see also Plateau State v. Attorney-General of the Federation (2006) ALL FWLR (Pt.305) 590 at 646 – 647; also reported in (2006) LPELR – SC. 113/2004 at Pp. 76 – 77, paras G – C; Per Tobi JSC opined thus:
“A suit is academic where it is merely theoretical, 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 situations of human nature and humanity. A suit is speculative if it is based on speculation – A suit is speculative if it is not supported by facts or very low on facts but very high in guesses. As courts of law are not established to adjudicate on guesses but on facts, such actions are struck out – A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a “mirage” to deceive the defendant and the court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought”.
6rounds 3 and 4 of the Grounds of Appeal are attack on the dismissal of the petition and the fact that the Tribunal’s decisions are against the weight of the affidavit. The petition was dismissed on 15/8/2011 by the Tribunal while ruling on the 1st respondent’s application dated 20/7/2011. The Tribunal in its ruling at Page 441 paragraph 2 lines 4 – 7 stated thus:
“In this case, it stands to reason that there was no application for Pre-Hearing Notice to be served as in Form TF007 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”.
The Tribunal relying on Okereke v. Yar’Adua (2008) 12 NWLR (Pt.1100) 95 at 118; Riruwai v. Shekarau (2008) 12 NWLR (Pt.1100) 142 at 162 – 163; Paragraph 18(4) of the First Schedule to the Electoral Act 2010 (as amended); dismissed Petition No. NSHA/EPT/BN/HA/33/2011 for failure of the petitioners to apply for issuance of pre-hearing notice consequent upon their earlier ruling on 5/8/2011 dismissing the petitioner’s application for issuance of pre-hearing notice. The ruling of 5/8/2011 subsists. The implications are that: there is no pending application for issuance of pre-hearing notice for the petition filed on 17/5/2011; by paragraph 18(4) the Tribunal shall dismiss the petition as abandoned Petition and no application for extension of time to take that step shall be filed or entertained. Meanwhile, the appellants have urged the court to dismiss the preliminary objection and hear the appeal on its merit; this presupposes: the determination of grounds 3 and 4 and issues stemming from them and most importantly, setting aside the Tribunal’s decisions dismissing both the appellants’ application for issuance of Pre-Hearing Notice and the Petition.
I had earlier in this judgment held that this court lacks the jurisdiction to entertain the appeal challenging the dismissal of the appellants’ application for issuance of pre-hearing Notice for the simple fact that the hearing and determination of the appeal does not abide section 285(7) of the constitution (supra). Reiterating the fact that the said decision of 5/8/2011 has not been set aside, the effect is that the petition of the appellants is deemed abandoned and liable to be dismissed. See paragraph 18(4) of the First Schedule to the Electoral Act. This court cannot therefore hear and determine grounds 3 and 4 as well as the issues that ensure as they have become academic and their determination will offer no legal benefit to the appellants. The issues if resolved in favour of the appellants and the decision of the Tribunal dismissing the Petition set aside, the appellants’ would not have moved a step further from their position today because there is no pending application for the issuance of pre-hearing Notice. Put in another way, the abandoned and dead petition will still remain same even when I set aside the Tribunals’ decision dismissing the appeal. Of what use then will the determination of this appeal be, if it has no legal asset. The decision of this court will merely be academic, roaming in search of a petition and parties to abide. Not only that the courts have no jurisdiction to make futile decisions, the constitution has not enabled the courts with the jurisdiction to either hear and determine academic appeals or make academic decisions.
In sum, I hold that grounds 3 and 4 of the Grounds of Appeal and the issues that stem from them are academic and hypothetical. Accordingly, I uphold the preliminary objection for being meritorious, this court lacks the jurisdiction to hear and determine this appeal. The appeal fails and is hereby dismissed. I make no order as to costs.
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Appearances
B.I. WayoFor Appellant
AND
O.O. Okutepa
E.P. Echor holding brief of N.D. Ter (Mrs.)For Respondent
