RTD. CAPT. AHMED HALADU BICHI & ANOR. V. ALH. IBRAHIM MUAZZAM & ORS
(2010)LCN/3567(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of February, 2010
CA/K/EP/NA/32/07
JUSTICES
MOHAMMED L. GARBA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
THERESA N. ORJI – ABADUA Justice of The Court of Appeal of Nigeria
Between
1. RTD. CAPT. AHMED HALADU BICHI
2. THE PEOPLES DEMOCRATIC PARTY Appellant(s)
AND
1. ALH. IBRAHIM MUAZZAM
2. THE RETURNING OFFICER, BICHI
FEDERAL CONSTITUENCY
3. THE RESIDENT ELECTORAL
COMMISSIONER FOR KANO STATE
4. THE INDEPENDENT NATIONAL
ELECTORAL COMMISSIONER Respondent(s)
RATIO
WHETHER OR NOT THE COURT OF APPEAL CAN DETERMINE A CASE THAT HAS BEEN STRUCK OUT
Because the petition was/is the sub-stratum of this appeal, the decision of the Court stricking it out has effectively taken the life out of the appeal. There are as a result, no live issues left for decision in the appeal because its basis and foundation no longer exist to sustain it. The appeal has for all meaningful and practical purposes been overtaken by the decision of the court stricking the petition from which it enured.
For reasons of being lifeless, spent and overtaken by the order. PER GARBA, J.C.A.
MOHAMMED LAWAI GARBA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal arising from a ruling delivered on the 24/8/07 in the course of the trial of the Appellants’ petition before the National Assembly Election Tribunal sitting at Kano (herein after to be called the Lower tribunal). The Appellants had sought an amendment of their petition vide a motion filed on 13/7/07 in the terms set out on the face of their motion paper. In its said ruling, the Lower/tribunal granted the amendment in part and the Appellants were dissatisfied with the refusal of the other part of the amendments and so filed this appeal against same. Meanwhile before a determination of the appeal, the Lower/tribunal proceeded with the trial of the petition and delivered its judgment therein on the 15/1/08 in favour of the appellants. As to be expected, the Respondents herein and in the Lower/tribunal, were dissatisfied with decision contained in the judgment and so filed Notices of Appeal against same in this Court. The 1st Respondent filed two (2) Notices of appeal dated 30/1/08 and 31/1/08 while the 2nd – 4th Respondent’s Notice of Appeal was dated the 1/2/2008. The latter appeal was registered as appeal No. CA/K/EP/NA/14/08 and the 1st Respondent’s appeal was registered and assigned appeal No. CA/K/NA/14A/08. It is by now clear that from the above state of events, this appeal and the other two appeals mentioned above arose from the same set of facts and between the same parties. A brief statement of the facts that eventually led to the Appellants’ petitions, would be expedient at this stage. At the election held on the 12/4/07 by the 2nd-4th Respondents in the Bichi Federal Constituency of Kano State for the House of Representatives of the National Assembly, the 1st Appellant sponsored by the 2nd Appellant and the 1st Respondent were candidates among others who contested. At the end of the election, the 1st Respondent was declared and returned as the winner of the election by the 2nd – 4th Respondents. Being dissatisfied with the return, the Appellants presented an election petition before the Lower/tribunal on the sole ground that the 1st Respondent was not duly elected by a majority of lawful votes cast at the election. It was on this ground that the Lower tribunal eventually nullified the return of the 1st Respondent as the winner of the election, declared and returned the 1st Appellant herein as the winner having scored the majority of the valid votes cast at the election.
As required by the provisions of Order 17 Rules 2 and 4 as well as Order 7 Rule 10 (1) of the Court of Appeal Rules, 2007, briefs of argument were filed by learned Counsel for the respective parties.
With the leave of court, the Appellants brief filed on 13/2/2009 was deemed properly filed on the 25/5/09 on which day the 1st Respondent’s brief was filed, along with a notice of preliminary objection argued therein. The 2nd and 4th Respondents brief was filed on the 27/5/2009 when the Appellants’ Reply brief to the 1st Respondent brief was also filed. The briefs of argument were adopted and relied on by learned counsel at the hearing of the appeal on 7/10/2009 as the submissions in support of their respective positions in the appeal.
This appeal was heard on the same day with the appeals Nos. CA/K/EP/NA/14/2008 and CA/K/EP/NA/14A/2008 and judgments in them were reserved to be delivered on the 10/12/09. In the course of preparing the judgments, the Court observed that because of the date of the declaration of the result of the election indispute and the date the petition was filed or presented before the Lower tribunal, there was the need to invite Learned Counsel for the parties to address the Court on the competence of the petition which was an issue that goes to the jurisdiction of the Lower tribunal to entertain it and consequently that of the court to entertain the appeal. Because it is the law that it is never too late to raise the issue of jurisdiction by either of the parties or the court, we invited Learned Counsel to address the Court on the issue on the 10/12/2009.
The issue was fully addressed by the respective Learned Counsel for the parties and in the ruling of the Court thereon, it was held that by the current and binding position of the law, the petition filed by 1st and 2nd Appellants herein and 1st and 2nd Respondents in appeal No. CA/K/EP/NA/14/2008 was filed outside and after the expiration of the thirty (30) days period prescribed and limited by the mandatory provisions of Section 141 of the Electoral Act, 2006. The petition was thereby held to have been statute barred, incompetent and consequently struck out in appeal No.CA/K/EP/NA/14/2008.
Because the petition was/is the sub-stratum of this appeal, the decision of the Court stricking it out has effectively taken the life out of the appeal. There are as a result, no live issues left for decision in the appeal because its basis and foundation no longer exist to sustain it. The appeal has for all meaningful and practical purposes been overtaken by the decision of the court stricking the petition from which it enured.
For reasons of being lifeless, spent and overtaken by the order stricking out the petition from which this appeal emenated, it is hereby dismissed since it has been argued.
Parties should bear their respective costs of prosecution the appeal.
JOHN INYANG OKORO, J.C.A: I was obliged a copy of the judgment of my learned brother, GARBA, JCA just delivered and I agree that this appeal has become lifeless, spent and overtaken by the order striking out the petition in appeal No. CA/K/14/2008 delivered earlier today 11th February, 2010. Since the appeal had been argued, I hereby dismiss same. I abide by all consequential orders made in the lead judgment. I also order that parties should bear their respective costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A: I had read before now, the leading judgment of my learned brother, M.L. Garba, J.C.A., in this appeal which I entirely agree with.
In view of the decision of this Court in the substantive appeal No. CA/K/EP/NA/14/08 that Petition No. EPT/KNS/HR/29/07, which was the springboard of the said appeal, and, the present interlocutory appeal, was statute barred as at the time it was filed on 21/5/2007, this appeal is doomed to failure. Consequently, the appeal is hereby dismissed by me. I abide by the orders made regarding cost in the leading judgment.
Appearances
K.B. OLAWOYIN AND J.B. SALEH (MISS) for the Appellants.For Appellant
AND
N. JIMOH for the 1st Respondent.
N. H. AUTA for the 2nd – 4thl RespondentsFor Respondent
