CHIEF BEKINBO ALALIBO SOBEREKON & ANOR v. RT. HON. ROTIMI CHIBUIKE AMAECHI & ORS.
(2010)LCN/3721(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of April, 2010
CA/PH/EPT/391/2007
RATIO
APPEAL: PURPOSE OF A REPLY BRIEF
The purpose of a reply brief is to enable the appellant react to all new points arising in the respondent’s brief. See Order 17 Rule 5 of the Court of Appeal Rules 2007. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
PROCEDURE: ISSUE OF JURISDICTION; WHEN CAN THE ISSUE OF JURISDICTION BE RAISED
The law is of course well settled that the issue of jurisdiction can be raised at any time and at any stage of the proceedings, and even for the first time on appeal to the Supreme Court. It is equally well settled that once the issue of jurisdiction is raised it must be determined before any further step is taken in the proceedings. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
APPEAL: REQUIREMENT FOR FILING AN APPEAL THAT CANNOT BE FILED AS OF RIGHT
It is settled beyond paradvanture that where an appeal cannot be filed as of right, leave becomes a sine-qua non to a valid and competent appeal, for if no leave is sought when same is required, as in this case, the appeal, so filed without leave is incompetent. PER TIJJANI ABDULLAHI, J.C.A.
JURISDICTION: EFFECT OF LACK OF JURISDICTION BY COURT
A court that lacked jurisdiction to entertain a suit, either as a trial or appellate court, is incompetent to pronounce a judgment in respect of any aspect of the matter in controversy before it. Time never runs against a court to decide on the issue of jurisdiction. The consequence of a court continuing a case where it lacks jurisdiction is, as it were, like the court embarking on a frolic which would indisputably result in a nullity for which an appellate court so invited, would have no compunction whatsoever to declare null and void. Jurisdictional question, be it in criminal, or civil matter, has this same devastating consequence. An attack or question as to jurisdiction cannot be properly glossed over by any court once it is raised by the defendant or the respondent. The procedure by which such a fundamental issue is raised may not be in consonance with the stipulated rules of court for questioning a decision of the court, nevertheless, that will never be allowed to defeat the right to question the jurisdictional effect. To do so is unwittingly to postpone the doom’s day. See Owoniboy’s Technical Services Ltd. vs. John Holt Ltd. (1991) 6 NWLR (Pt. 199) 550. Ezomo vs. Oyakhire (1985) 1 NWLR (Pt. 2) 195, State vs. Onagoruwa (1992) 2 NWLR (Pt. 221) 33, Madukolu vs. Nkemdilim (1962) 1 All NLR 589 and Okafor v A-G. Anambra State (1991) 6 NWLR (Pt. 200) 659.
Achike, JSC, continued:
“It is necessary to caution that whenever there is a challenge to jurisdiction, the court should expeditiously attend to it in limine, particularly if the case is at the trial stage and even if the case is at the appeal stage, as is the case in the appeal at hand. Finally, it is important to state that jurisdictional issue being pivotal can be raised suo motu by the court so long as the parties are accorded the opportunity to react to the issue. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
ABUBAKAR ABDULKADIR JEGA Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. CHIEF BEKINBO ALALIBO SOBEREKON
2. ACCORD Appellant(s)
AND
1. RT. HON. ROTIMI CHIBUIKE AMAECHI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE RESIDENT ELECTORIAL COMMISSIONER, RIVERS STATE
4. THE RETURNING OFFICER, RIVERS STATE
5. LOCAL GOVERNMENT RETURNING OFFICERS
6. WARD RETURNING OFFICERS
7. PRESIDING OFFICERS AT POLLING STATIONS Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Governorship and Legislative Houses Election Tribunal sitting at Port Harcourt delivered on 13th August 2007 refusing to set: aside its ruling delivered on 18th July, 2007 dismissing the petitioner’s petition.
On 14th April 2007 elections were conducted to the office of Governor of Rivers State. The appellant herein was the sponsored candidate of the Accord Party for the election. On 16th April 2007, Celestine Ngozichim Omehia, who contested on the platform of the Peoples Democratic Party (PDP) was declared duly elected by the 2nd respondent. The appellants were dissatisfied with the return of Celestine Omehia and consequently on 14th May, 2007 filed a petition before the Governorship and Legislative Houses Election Tribunal sitting at Port Harcourt (hereinafter referred to as “the Tribunal”). The grounds of the petition were that the 1st appellant was unlawfully excluded from the election and that the election was marred by various acts of electoral malpractice and noncompliance with the provisions of the Electoral Act 2006. The appellants sought an order that the election be declared null and void on the ground that it was not conducted substantially in accordance with the provisions of the Electoral Act 2006.
Pursuant to the provisions of the Election Tribunal and Court’s Practice Directions 2007 (hereinafter referred to as the Practice Directions) the parties filed and exchanged pleadings and the matter was set down for pre-trial sessions. The pretrial sessions commenced accordingly. On 14/7/07, learned counsel for the petitioners wrote to the Tribunal requesting an adjournment of the pre-hearing session to 17/7/07. The matter was adjourned to 18/7/07. On 18/7/07, another letter was written to the Tribunal on behalf of the petitioners requesting a further adjournment on the ground that the lead counsel, Mike Okoye, Esq. was attending the NEC meeting of the NBA holding at Eket. The 1st and 2nd – 7th respondent’s counsel opposed the request for an adjournment. The Tribunal in a considered ruling delivered the same day held that no cogent reason had been given to warrant the exercise of discretion in favour of the petitioner. It refused the request for an adjournment and dismissed the petition as being abandoned pursuant to paragraph 3 (11) of the Practice Directions.
The petitioners then proceeded to file an application pursuant to paragraph 3 (12) of the Practice Direction for an order setting aside the dismissal of the petition. The respondents strongly opposed the application. In a considered ruling delivered on 13/8/07 (at pages 782 – 783 of the record) the Tribunal dismissed the application on the ground that the applicants failed to satisfy the mandatory requirements, which are conditions precedent to the grant of such an application.
The appellants were dissatisfied with the decision and filed a notice of appeal dated 31/8/07 containing two grounds of appeal.
It is also pertinent to note at this stage that on 25/10/2007 the Supreme Court in the case of Amaechi V. INEC Appeal No. SC/252/2007 reported in (2007) 18 NWLR (1065) 105 held that Rt. Hon. Chibuike Rotimi Amaechi of the PDP was the lawful candidate of the party at the election held on 14th April 2007. The Court ordered Celestine Omehia to vacate the seat of Governor of Rivers State immediately and ordered that Rt. Hon. Chibuike Rotimi Amaechi be sworn in immediately as Governor. The reasons for the judgment were given on 18th January 2008 in: Amaechi V. INEC (2008) 5 NWLR (1080) 227.
As a result of the Supreme Court judgment, the appellants herein filed an application for leave to substitute Rt. Hon. Chibuike Ratimi Amaechi for Celestine Omehia as the respondent in this appeal. The application was granted on 26th November 2008.
The parties in this appeal duly filed and exchanged their briefs of argument in compliance with the rules of this court. On 22/2/2010 when we heard this appeal, Prince Lateef Fagbemi, SAN drew the court’s attention to the preliminary objection filed by the 1st respondent to the hearing of the appeal, which has been argued in his brief. Chief A.S. Awomolo, SAN, adopted and relied on the appellant’s amended brief of argument dated 26/1/10 and filed on 27/1/10. He also adopted and relied on the appellant’s reply to the 1st respondent’s brief filed on 12/2/10 and reply to the 2nd – 7th respondent’s brief filed on 18/2/10. He urged the court to allow the appeal. As a consequential relief, he urged the court to exercise its powers under Section 15 of the Court of Appeal Act to order an accelerated hearing of the petition from day to day. On whether the Tribunal had jurisdiction to hear the application to set aside its ruling he referred to pages 788 lines 1-5 and 792 lines 25- 29 of the record.
Prince Fagbemi, SAN, adopted and relied on the 1st respondent’s brief dated 5/2/10 and filed on 8/2/10. He referred to the preliminary objection raised and argued in the said brief and adopted the arguments in respect thereof. He stated that the 1st respondent had also filed a separate notice of preliminary objection also dated 5/2/10 and filed on 8/2/10. He observed that the appellants did not address ground 2 of the preliminary objection in their reply and urged the court to find the said ground established. He submitted that parties cannot confer jurisdiction on the court by consent or acquiescence. He cited the case of: Uduma Vs Arunsi (2009) 17 NWLR (1170) 310 at 326 – 329. He however submitted that the case of Uduma v. Arunsi (supra) is inapplicable to the facts of this case with regard to whether or not there can be an appeal against the decision of the Tribunal. He urged the court to uphold the preliminary objection and strike out the appeal. Alternatively, on the merit of the appeal he urged the court to dismiss it.
Chief Kanu Agabi, SAN, adopted and relied on the 2nd – 7th respondent’s brief dated 10/2/10 and filed on 11/2/10. He stated that the 2nd – 7th respondents had also filed a notice of preliminary objection dated 29/10/08 and filed on 3/11/08, which had been argued at pages 2 – 11 of the brief. He adopted the arguments in support of the preliminary objection and urged the court to uphold it. He submitted that an, appellant whose appeal had been dismissed pursuant to paragraph 3 (11) of the Practice Direction could not ask for it to be relisted; that the option open to him is to appeal against the dismissal. He urged the court to dismiss the appeal.
Relying on points law, Chief Awomolo, SAN submitted that the respondents were not entitled to raise the issue of jurisdiction by way of a preliminary objection. He submitted that they could only raise the issue by way of a cross-appeal. He also argued that the decision in A.N.P.P. Vs R.E.C. Akwa Ibom State (2008) 8 NWLR (1090) 453 relied upon in the 1st respondent’s Brief is distinguishable from the instant case on the ground that the court did not consider “judgment” in terms of Section 318 of the 1999 Constitution. He also urged the court to consider the purpose of paragraph 3 (12) of the Practice Direction in light of the decision in Abubakar Vs Yar ‘Adua (2008) 4 NWLR (1078) 465 at 511.
Prince Fagbemi urged us to expunge Chief Awomolo’s oral submissions on points of law on the ground that he failed to utilise the opportunity of filing a reply brief to address the issues.
As the 1st and 2nd – 7th respondents have raised preliminary objections to the hearing of the appeal, it is prudent to consider the objections before delving into the merits of the appeal.
The grounds of objection of the 1st and 2nd-7th respondents are as follows:
1. Rt. Hon. Rotimi Chibuike Amaechi has not been reflected as a party on the Notice of Appeal and the court cannot adjudicate on a party not before it.
2. The appeal herein is incompetent in that the tribunal which entertained the application to set aside its order of dismissal of the petition had no jurisdiction to do so ab initio.
3. The decision of 13th day of August refusing to set aside its order of dismissal of 18th July 2007 was an interlocutory one which requires that an appeal be lodged within 14 days; and
4. No leave of court was sought and obtained to file this appeal.
5. Having regard to the provisions of Section 246 (1) (b) (ii) of the 1999 Constitution, the appellants do not have a right of appeal as the decision appealed against did not finally dispose of the petition on its merits.
6. That the 5th, 6th and in respondents as stated on the amended notice of appeal should be struck out as non-juristic persons as various electoral officers were lumped together.
The first four grounds were raised by the 1st respondent while grounds 5 and 6 were raised by the 2nd-7th respondents. The 2nd -7th respondent’s second ground of objection is the same as the 1st respondent’s ground 4. I shall consider all the grounds together.
The first ground of objection has been overtaken by events. By a motion on notice dated 5/3/10 and filed on 9/3/10, after the matter had been reserved for judgment, the appellants sought an order granting them leave to amend/correct the title of the amended notice of appeal dated 31/3/2008 to reflect the order made on 26/11/08 directing that Rt. Hon. Rotimi Chibuike Amaechi be reflected as the 1st respondent in the appeal. The application was heard and granted on 21/4/10.
On the second ground of objection learned Senior Counsel for the 1st respondent submitted that having regard to the provisions of paragraph 3 (11) (a) of the Practice Direction under which the petition was dismissed and paragraph 3 (12) thereof under which the application to relist the petition was filed, the Tribunal lacked jurisdiction to entertain the application ab initio. He relied on the case of: A.N.P.P. Vs R.E.C. Akwa Ibom State (2008) 8 NWLR (1090) 453 at 522 – 524 A – C and 544 – 545 H – B. He submitted that the Tribunal had become functus officio and lacked the vires to set aside the order of dismissal let alone to relist the dismissed petition. He submitted that the application to set aside is misconceived and incompetent ab initio and therefore assumption of jurisdiction by the tribunal was wrong. He argued that the appeal is incompetent and urged the court to dismiss it on this ground alone.
In reply to the submissions in respect of, the preliminary objection, Chief Awomolo, SAN replied generally to all the objections raised by submitting that by the combined provisions of Sections 246 (1) and 318 (1) of the 1999 Constitution, which were given judicial interpretation by the Supreme Court in the case of: Awuse Vs Odili (2003) 18 NWLR (851) 116, a right of appeal exists in respect of interlocutory decisions in an election petition. I must say, with due respect to learned Senior Counsel, that this submission does not address the issue as to whether the Tribunal had jurisdiction to entertain the application that gave rise to the ruling now appealed against. However it must be noted that an attempt was made at the hearing of the appeal to remedy the lapse when Chief Awomolo argued that the decision in A.N.P.P. Vs R.E.C. Akwa-ibom State (supra) did not take into account the meaning of decision as defined in Section 318 (1) of the 1999 Constitution. Prince Fagbemi had urged us to expunge the submission in that regard on the ground that the appellants ought to have responded to the issue in their reply brief but failed to do so.
The purpose of a reply brief is to enable the appellant react to all new points arising in the respondent’s brief. See Order 17 Rule 5 of the Court of Appeal Rules 2007. I therefore agree with learned Senior Counsel for the 1st respondent, that it was rather late in the day for learned Senior Counsel for the appellants to use the opportunity of oral address to make submissions on issues not addressed hitherto. However, as this is the final court in respect of election petition proceedings, I am of the view that the interest of justice would be best served by considering all the issues of law raised by the parties.
Chief Awomolo argued that the issue of jurisdiction of the Tribunal to entertain the application to set aside its ruling could not be raised by way of preliminary objection and that the 1st respondent ought to have filed a cross-appeal. Prince Fagbemi, sought and obtained leave of court to file an additional authority to counter this submission. The authority was supplied under cover of a letter dated 25/2/10 addressed to the Deputy Chief Registrar of this Court and copied to learned counsel for the appellants and the 2nd – 7th respondents. The Supreme Court decision relied on is: Galadima Vs Tambai (2000) 11 NWLR (677) 1 at 12 B – H.
The law is of course well settled that the issue of jurisdiction can be raised at any time and at any stage of the proceedings, and even for the first time on appeal to the Supreme Court. It is equally well settled that once the issue of jurisdiction is raised it must be determined before any further step is taken in the proceedings. In the interest of fair hearing, the important consideration is that none of the parties should be taken by surprise and they must be given an opportunity of addressing the court on the issue. The fact of the matter is that any proceedings conducted without jurisdiction would amount to a nullity. It is for this reason that the Supreme Court in Galadima Vs Tambai (supra) relied upon by learned counsel for the 1st respondent held the view that while it would have been neater if the respondents had filed a cross-appeal, raising the objection by way of preliminary objection achieved the same purpose. I find the authority applicable in the instant case. The preliminary objection raising the issue of jurisdiction is therefore competent.
I shall now consider Paragraph 3 (11) and (12) of the Practice Direction, which provide:
“3. (11) If a party or his legal practitioner fails to attend the pre-hearing session or obey a scheduling or pre-hearing order or is substantially unprepared to participate in the session or fails to participate in good faith the Tribunal or Court shall:
(a) in the case of the petitioner dismiss the petition;
(b) in the case of a respondent enter judgment against him.
(12) Any judgment given under subparagraph (11) above may be set aside upon an application made within 7 days of the judgment (which shall not be extended) with an order as to costs of a sum not less than N20, 000.00. The application shall be accompanied by an undertaking to participate actively the pre-hearing session jointly signed by the applicant and the Legal practitioner representing him.”
These provisions were considered in detail in the case of A.N.P.P. Vs R.E.C. Akwa Ibom State (supra) in the lead judgment at pages 522 D – 523 A Saulawa, JCA held thus:
“In order to fully comprehend and appreciate the intendment of the provisions of paragraph 3 (12) (supra), both sub-paragraphs must be read together. Firstly, a calm but dispassionately critical appraisal of the said paragraph 3 (11) (supra) would reveal that paragraph 3 (11) (a) relates to a situation where by a petition is dismissed on ground of a petitioner’s non-attendance (non appearance), disobedience or unpreparedness to participate in the pre-hearing session. Thus, it affects only the petitioner. The Tribunal simply delivers a ruling (and not judgment) dismissing the petition in limine. This is so because it would be unjust to the respondent’s to determine the petition in the absence of the petitioner. The present case falls within this category.
Secondly paragraph 3 (11) (b) (supra), on the other hand envisages a situation whereby the respondent happens to be the defaulting or recalcitrant party justice demands that the petitioner shall be entitled to justice in limine. This is akin to what is generally known in the Civil Procedure Rules and Practice of the High Court as judgment in detault of appearance or default judgment for short.
It is rather obvious that paragraphs 3 (12) (supra) applies only to a situation whereby a judgment is entered against a defaulting respondent as expressly provided in paragraph 3 (11) (b) (supra). That is to say paragraph 3 (12) supra does not apply to the present case which falls within the first category i.e. paragraph 3 (11) (a) supra. This is obviously so because the petition having been dismissed pursuant to the said paragraph 3 (11) (a) supra, the tribunal has become functus officio, thus, lacking the vires or power to set aside the order of dismissal talkless of relisting the dismissed petition in question…
In the circumstances, there is every reason to hold that the application filed by the appellants seeking an order to relist the dismissed petition was ab initio incompetent on the ground that the lower tribunal was functus officio and thus lacked the fundamental jurisdiction to relist same.”
In my contribution at pages 544 & 545 (supra), I concurred with this opinion.
In determining the applicability of paragraph 3 (12) of the Practice Direction to a petition dismissed pursuant to paragraph 3 (11) (a) thereof, it is important to consider the effect of a dismissal of the petition vis-a-vis the effect of judgment being entered against a respondent. Indeed, whereas a dismissal of the petition under paragraph 3 (11) (a) leaves the status quo unchanged, a judgment entered against a respondent under paragraph 3 (12) would result in a fundamental reversal of the status quo, as the election could be nullified and a fresh election ordered or the petitioner could be declared the duly elected candidate at the challenged election. This court in A.N.P.P. Vs. R.E.C. Akwa Ibom State (supra) also took the view that having regard to the provisions of paragraph 3 (4) and (5) of the Practice Direction, the consequences to a petitioner are fatal where he fails to take certain procedural steps. Paragraph 3 (5) thereof provides that the failure of either the petitioner or the respondent to bring an application for the issuance of pre-hearing notice pursuant to paragraph 3 (4) shall result in the petition being dismissed, which dismissal shall be final and the court shall be functus officio. I am of the view that Section 318 (1) of the 1999 Constitution would not have affected the decision reached. In the circumstances, I find no reason to depart from the decision of this court in A.N.P.P. V. R.E.C. Akwa Ibom State (supra). I hold that the Tribunal having dismissed the petition became functus officio and had no jurisdiction to entertain the application filed on 21/7/07 to set aside the dismissal of the petition on 18/7/07. The option open to the appellants was to appeal against the dismissal, which they have not done. I hold that the appeal is incompetent on this ground. I therefore find merit in this ground of objection and it is accordingly upheld.
The third ground of objection is that the appeal is incompetent upon the failure of the appellants to file it within the time allowed by law. It is the contention of the 1st respondent that the ruling of the Tribunal refusing to set aside its order of dismissal is an interlocutory decision. In support of his submission that an order refusing to set aside a judgment is interlocutory, Prince Fagbemi, SAN relied on: Dahuwa Vs Adeniran (1986) 4 NWLR (34) 264 at 269 E- H and 270 A. On the time within which to appeal against an interlocutory decision, learned Senior Counsel referred to Section 149 of the Electoral Act 2006, Paragraph 51 of the First Schedule to the Electoral Act, paragraph 1 of the Practice Direction No. 2 of 2007 and Section 24 (2) of the Court of Appeal Act. He submitted that the appeal in this case is not in respect of a decision of the Tribunal as to whether anyone has been validly elected as Governor or Deputy Governor or Rivers State and therefore Section 149 of the Electoral Act is inapplicable. Relying on the case of Buhari Vs Obasanjo (2005) 13 NWLR (941) 1, he submitted that in the absence of any provision in the Electoral Act stipulating the time within which to appeal from a decision that does not fall within Section 149 of the Act, recourse must be had, by virtue of paragraph 51 of the First Schedule to the Electoral Act to Section 24 (2) of the Court of Appeal Act, which prescribes 14 days within which to appeal against an interlocutory decision.
Applying the law to the facts of this case, learned Senior Counsel submitted that the ruling appealed against was delivered on 13th August 2007 while the appeal was filed on 31st August 2007, a period well outside the 14 days provided by the Court of Appeal Act. He submitted that having been filed outside the statutory period, the appeal is incompetent and should be dismissed. He relied on the case of: R.T.F.G.C.N. V. Okoisor (2007) 13 NWLR (1052) 471 at 483 – 484 B.
Learned counsel for the appellants did not address this issue in his reply brief.
I agree with the learned Senior Counsel for the 1st Respondent that having regard to the decision of the Supreme Court in Buhari Vs Obasanjo (supra), in the circumstances of this case, the relevant law for determining the time within which to appeal against the decision of the Tribunal under reference is Section 24 (2) of the Court of Appeal Act. This is because Section 149 (1) of the Electoral Act 2006 applies to appeals from decisions of the Tribunal where there has been a determination that a person returned as elected was not duly elected. Interpreting the provisions of Section 138 of the Electoral Act 2002, which is in pari materia with Section 149(1) of the Electoral Act 2006, the Supreme Court held that the said section does not provide for a situation where a petition is dismissed in limine without a determination as to whether the returned candidate was validly elected or not. It held that in such circumstances, pursuant to paragraph 51 of the First Schedule to the Electoral Act, recourse must be had to Section 27 (2) of the Supreme Court Act, which provided for three months within which to appeal against a final decision. In the instant case also, the petition was dismissed in limine. The provisions of Section 24 (2) of the Court of Appeal Act therefore become applicable by virtue of paragraph 51 of the First Schedule to the Electoral Act. Section 24 (2) provides for a period of 14 days within which to appeal against an interlocutory decision and three months within which to appeal against a final decision.
The issue that calls for consideration in this regard is whether the decision of the Tribunal refusing to set aside its order of dismissal is a final or interlocutory decision. In support of his contention that the decision was an interlocutory one and that the appellants ought to have filed their notice of appeal within 14 days of the decision appealed against Prince Fagbemi, SAN relied on the case of Dahuwa Vs Adeniran (1986) 4 NWLR (34) 264. In that decision, this Court relied on the decisions of the Supreme Court in Ojora Vs Odunsi (1964) NMLR 12 and Omonuwa V. Oshodin & Anor. (1985) 2 NWLR (10) 924 at 938. However in a later decision of the Supreme Court in Akinsanya Vs U.B.A. Ltd. (1986) 4 NWLR QSJ 273, the Court per Kayode Eso, JSC undertook a thorough review of the existing authorities on the issue, including the decision in Omonuwa Vs Oshodin (supra). It was held at page 296 that the decision in Omonuwa Vs Oshodin (supra) does not apply to decisions of the court of first instance. It was held that the proper approach in determining whether a decision is interlocutory or final is to consider the nature of the order made. The apex Court adopted the test laid down in the case of: Bozson Vs Altrincham (1903) 1 QB 574 namely. “Does the judgment or order as made finally dispose of the rights of the parties? If it does, then the order is a final order.” If it does not, it is interlocutory. In the instant case, I am of the view and I do hold that the order refusing to set aside the order dismissing the petition is a final order, as the petitioner had no further recourse to the Tribunal on the matter. In circumstances that are on all fours with the instant case, this court in: A.N.P.P. Vs R.E.C. Akwa Ibom State (supra) at 508 – 509 C – H; 535 – 536 H – C & 541 – 542 D – C held that the decision appealed against was a final decision and that pursuant to Section 24 (2) (a) of the Court of Appeal Act, the appellant had three months from the date of the decision within which to file his notice of appeal. On the time within which to appeal against final decisions of the Tribunal that do not fall within the purview of Section 149 (1) or (2) of the Electoral Act the decision in: A.N.P.P. Vs R.E.C. Akwa Ibom State (supra) was followed by this Court in: Sijuwade Vs Oyewole (unreported) in Appeal No. CA/I/EPT/HA/78/08 delivered on 25/3/09. See also Okoreaffia Vs Agwu (2008) 12 NWLR (11.00) 165 at 186 – 187 H – A; Alabi A. Kazeem Vs Oyejide Gbadebo Kola (unreported) in Appeal No, CA/I/EPT/HA/72/08 delivered on 25/3/09. The decision sought to be appealed against was given on 13th August, 2007 while the notice of appeal is dated and filed on 31/8/07. I hold, that the said notice was filed well within the period of three months prescribed by Section 24 (2) (a) of the Court of Appeal Act. This ground of objection is hereby overruled.
The next issue raised by both sets of respondents is that by virtue of Section 246 (1) of the 1999 Constitution, the appellant does not have a right of appeal against the decision of the Tribunal in this case. It was argued that the right of appeal only exists in respect of decisions of the National Assembly Election Tribunals and Governorship and Legislative House Election Tribunals on any question as to whether (i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under the Constitution; or any person has been validly elected to the office of Governor or Deputy Governor. It was argued that where the appeal does not come within the purview Section 246 (1) (b) (ii) of the 1999 Constitution, an appeal cannot be filed as of right and the appellant would require leave to appeal. It was argued that where leave is required, an appeal filed without leave would be incompetent. Prince Fagbemi, SAN relied on: Mohammed Vs Olawunmi (1990) 3 NWLR (133) 458 at 475 C – F. He submitted that in the present case, the appellant is not appealing against the dismissal of the petition for failure to comply with paragraph 3 of the Practice Direction but against the order refusing to set aside the dismissal. He referred to the decision of this Court in the unreported case of Prince Abubakar Audi & Anor. Vs INEC & Ors. Appeal No. CA/A/199/M/2008 wherein an appeal arising from the decision of the Tribunal relating to an application to scan and obtain certified true copies of ballot papers used in the conduct of the election was struck out.
Chief Kanu Agabi, SAN argued in the same vein on behalf of the 2nd – 7th respondents. On the distinction between “decision on an election petition” and “decision in an election petition” in the interpretation of Section 246 (1) (b) of the 1999 Constitution he referred to: Okokhue Vs Obadan (1989) 5 NWLR (120) 185; Okon Vs Bob (2004)1 NWLR (854) 378 at 396; Amgbare Vs Sylva (2007) 18 NWLR (1065) 1 at 22 & 23. In support of the contention that the appellants require leave to appeal against a decision that did not determine whether a person was validly elected or not he referred to the unreported decision of this Court in: CA/PH/EPT/9/2008: Hope Democratic Party Vs I.N.E.C. delivered on 14th April 2008.
In reply to the above submissions, Chief Awomolo, SAN referred to the judicial interpretation given to the provisions of Sections 246 (1) and 318 (1) of the 1999 Constitution in the case of: Chief Sergeant Chidi Awuse v. Dr. Peter Odili & Ors. (2003) 18 NWLR (851) 116. He also relied on: Rauf Adesoji Aregbesola Vs Olagunsoye Oyinlola & Ors. (2009) 14 NWLR (1162) 429 at 469; Kalu Igu Uduma Vs Prince Arua Arunsi & Ors. (2009) 17 NWLR (1170) 310 at 323.
It is instructive to note that in cases such as Okon V. Bob (supra) and Amgbare Vs Sylva (supra), the issue in contention was whether interlocutory decisions given in the course of election petition proceedings were appealable or whether only a final appeal on the merit was appealable. This Court held in those cases that interlocutory decisions were not appealable. However the Supreme Court in the case of Awuse V. Odili (supra), which was decided shortly after the decision in Okon Vs Bob (supra), held that the word “decision” as defined in Section 318 of the 1999 Constitution included interlocutory decisions in any proceeding. The decision in Amgbare vs Sylva (supra), which came after the Supreme Court decision in Awuse Vs Odili (supra) was therefore reached per incuriam. The cases of Aregbesola Vs Oyinlola (supra) and Uduma Vs Irunsi (supra) relied upon by learned Senior Counsel for the appellants followed the decision in Awuse Vs Odili by holding that interlocutory decisions reached in the course of election petition proceedings were appealable. The contention in the preliminary objection raised in the instant case is that the decision appealed against was not a determination as to whether any person had been validly elected or not so as to confer a right of appeal under Section 246 (1) of the 1999 Constitution. The issue is not whether the decision is appealable but whether it is appealable as of right or whether leave is required.
Section 246 (1) (b) of the 1999 Constitution provides:
246 (1) An appeal to the Court of Appeal shall lie as of right from:
(b) decisions of the National Assembly , Election Tribunals and Governorship and Legislative House Election Tribunals on any question as to whether-
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution;
(ii) any person has been validly elected to the office of Governor or Deputy Governor;
(iii)…
The provisions of the section are clear and unambiguous and must be given their natural and ordinary meaning. See: Ibrahim V. Barde (1996) 9 NWLR (474) 513 at 577 B-C; Ojokolobo Vs Alamu (1987) 3 NWLR (61) 377; Kuusu Vs Udom (1990) 1 NWLR (127) 42. It is abundantly clear from Section 246 (1) of the 1999 Constitution that any appeal in respect of a decision of an Election Tribunal other than a final determination as to whether any person has been validly elected as a member of the National Assembly, State House of Assembly, Governor or Deputy Governor would not be as of right and would require leave. See also Section 149 of the Electoral Act 2006 and the Practice Direction No. 2 of 2007. I have carefully examined the record and other processes filed in this appeal and found that the appellants herein failed to seek or obtain leave to appeal against the decision of the Tribunal made on 13th August 2007. In line with the unreported decisions of this Court relied upon by both learned counsel, viz: Prince Abubakar Audi & Anor. Vs INEC & Ors. Appeal No. CA/A/199/M/2008 (supra) and CA/PH/EPT/9/2008: Hope Democratic Party Vs I.N.E.C delivered on 14th April 2008 (supra), I hold that failure to seek and obtain leave to appeal against the decision renders the notice of appeal incompetent. This ground of objection is accordingly upheld.
The next objection raised is that the two grounds of appeal challenge the exercise of discretion by the Tribunal and are therefore grounds of mixed law and fact in respect of which leave is required from the Tribunal or from this Court. Reliance was placed on the case of Maduabuchukwu Vs Maduabuchukwu (2006) 10 NWLR (989) 475 at 495; Nalsa & Team Associates Ltd. Vs NNPC (1991) 18 NWLR (212) 652; Ayasina Vs Cooperative Bank Ltd. (1994) 5 NWLR (347) 742 at 754 & 755. It was submitted on behalf of both sets of respondents that where leave is required and not sought or obtained, the appeal is incompetent and liable to be struck out. The cases of: C.S.S. Bookshops Ltd. Vs R.T.M.R.S. (2006) 11 NWLR (992) 530 at 557; Odofin Vs Agu (1992) 2 NWLR (229) 350; Mosober Vs Abubakar (2005) 6 NWLR (922) 460; Metal Construction Ltd. Vs Migliore (1990) 1 NWLR (126) 299, were referred to and relied upon. The appellants did not react to this issue in their reply briefs.
Section 246 of the 1999 Constitution governs appeals to the Court of Appeal in respect of decisions of the National Assembly Election Tribunals and Governorship and Legislative House Election Tribunals. As held earlier in this judgment, an appeal against a decision of an Election Tribunal that falls within the purview of Section 246,(1) (b) (i) and (ii) of the appellants, I am of the respectful view that the final objection raised by the 2nd – 7th respondents has become academic.
In conclusion, I hold that the appeal is incompetent particularly having regard to the fact that the lower Tribunal, as held earlier, “had no jurisdiction to entertain the application to relist the petition, having dismissed same under paragraph 3(11) (a) of the Practice Direction for failure of the petitioner to participate in” the pre-trial proceedings. The appeal is accordingly struck out.
There shall be costs of N30, 000.00 in favour of each set of respondents against the appellants.
Constitution is appealable as of right, while an appeal against a decision of a Tribunal which is outside the purview of the said provisions, such as the instant case requires leave. Having found, in the course of this judgment that the present appeal is outside the purview of Section 246 (1) (b) (i) and (ii) and that the appellants failed to seek leave to appeal against the decision of the lower Tribunal thereby rendering the notice of appeal incompetent ab initio, the issue of whether the grounds of appeal raise issues of mixed law and fact or not becomes otiose. This ground of objection is accordingly discountenanced.
The final objection raised on behalf of the 2nd – 7th respondents is that the 5th, 6th and 7th respondents should be struck out for being non-juristic persons, as the appellants lumped presiding officers, local government returning officers and wards returning officers together, which is not within the contemplation of Section 144 (2) of the Electoral Act 2006. Reliance was placed on: Khalil Vs Yar’Adua. (2003) 16 NWLR (847) 446 at 484 and Uzor Vs Kalu (2004) 12 NWLR (886) 1 at 28. Once again, the appellants did not proffer any arguments in respect of this issue. However having resolved two of the objections, which involve the competence of the appeal in favour of the respondents and against the appellants, I am of the respectful view that the final objection raised by the 2nd – 7th respondents has become academic.
In conclusion, I hold that the appeal is incompetent particularly having regard to the fact that the lower Tribunal, as held earlier had no jurisdiction to entertain the application to relist the petition, having dismissed same under paragraph 3(11)(a) of the Practice Direction for failure of the petitioner to participate in the pre-trial proceedings. The appeal is accordingly struck out.
There shall be costs of N30, 000.00 in favour of each set of respondents against the appellants.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I have read in advance the judgment of my Learned Brother KEKERE-EKUN, JCA, just delivered. I totally agree with her reasoning and conclusions.
It is beyond dispute that having regard to the provisions of paragraph 3(11), (a) of the Practice Direction under which the petition was dismissed and paragraph 3(12) thereof under which the application to relist was filed, the Tribunal lacked jurisdiction to entertain the application ab initio. After the order, of the dismissal of the petition the Tribunal had become functus officio and lacked the vires to set-aside the order of dismissal let – alone to the relist the dismissed petition. In A.N.P.P. V. REC AKWA – IBOM STATE (2008) 8 NWLR (1090) 453, this court held that there is every reason to hold that the application filed by the appellants seeking an order to relist the dismissed petition was ab initio incompetent on the ground that the lower Tribunal was functus officio and thus lacked the fundamental jurisdiction to relist same.
By the state of the law the Tribunal having dismissed the petition became functus officio and had no jurisdiction to entertain the application filed on 21/7/07 to set aside the dismissal of the petition on 18/7/07. The remedy available to the appellants was to appeal against the dismissal, which they have not done.
There is no iota of doubt that the decision of lower Tribunal the subject matter of this appeal was delivered in complete absence of jurisdiction as the Tribunal, had become functus officio, accordingly, this appeal in its entirety is incompetent and ought to be struck out.
It is for the above reasons and the fuller ones in the lead judgment that I also uphold the preliminary objection of the Respondent in this appeal and strike out the appeal.
I abide by the order as to costs.
TIJJANI ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother KEKERE-EKUN, JCA, just delivered and I agree entirely with her reasoning and conclusions arrived thereat. However for emphasis and support, I add a few words.
This an appeal against the ruling of the Governorship and Legislative Houses Election Tribunal sitting at Port Harcourt, delivered on the 13th day of August, 2007 refusing to set aside its ruling delivered on the 1st day of July, 2007 dismissing the petitioners’ petition.
The Respondents (1st-7th) raised points of preliminary objection which they incorporated in their briefs. The 1st Respondent’s preliminary objection is anchored on four grounds as stated hereunder:
(i) Rt. Hon. Rotimi Chibuike Amaechi has not been reflected as a party on the Notice of Appeal and the court cannot adjudicate on a party not before it;
(ii) The appeal herein is incompetent, in that the tribunal which entertained the application to set aside its order of dismissal of the petition had no jurisdiction to do so ab initio;
(iii) The decision of 13th day of August refusing to set aside its order of dismissal of 18th July, 2007 was an interlocutory one which requires that an appeal be lodged within 14 days; and
(iv) No leave of court was sought and obtained to file this appeal.
The 2nd to 7th Respondent’s preliminary objection as can be gleaned from their brief is based on the following grounds:
1a. The Notice of Appeal and the Grounds of Appeal of the Appellants are incompetent.
b. That pursuant to section 246(1)(b)(ii) of the Constitution of the Federal Republic of Nigeria, 1999:
An appeal to the Court of Appeal shall lie as of right from the Decision whether:
(i) …
(ii) Any person has been validly elected to the office of the Governor or Deputy Governor.
c. That the decision appealed against did not determine the Petition on the merit in that it did not decide one way or the other whether any person has been validly elected to the office of Governor.
d. That section 246(1)(b)(ii) of the Constitution only provides for a right of Appeal as of right when a decision finally disposes of a petition on the merit.
2. The leave of Court is required by virtue of section 241 (1)(a) and (b) of the Constitution of the federal Republic of Nigeria, 1999, by, the Appellants to file their Notice of Appeal because Grounds 1, and 2 of the Notice of Appeal raise issues of mixed law and fact against the I interlocutory decision of the Tribunal dated 13th August, 2007 refusing to set aside the Ruling dismissing the petition.
3. The amalgamation of the persons listed as 5th, 6th and 7th Respondents by the Appellants thereby making them Non Juristic persons.
Counsel for the Respondents, needless to say, urged the court to uphold their preliminary objections and dismiss the appeal as being incompetent for the reasons stated in the said briefs spanning over several pages.
As can be gathered from the grounds of objection raised by the learned counsel for the 1st Respondent, Ground 4 of his objection as earlier stated is to the effect that the appeal is incompetent because no leave of court was sought and obtained before filing it. The question that must be asked and answered from the onset is, when can an Appellant file an appeal as of right against the decision of the Governorship and Legislative Houses Election Tribunals in respect to the office of the Governor or Deputy Governor? To answer this question, recourse had to be made to section 246(1)(b)(ii) of the 1999 Constitution, which provides thus:
“An Appeal to the Court or Appeal shall lie as of right from-
(a)…
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether-
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution;
(ii) any person has been validly elected to of Governor or Deputy the office Governor.”
It is pertinent at this stage to pause and state that the provisions of the constitution reproduced supra are unambiguous and self-explanatory and no aid is required for their interpretation. I am of the considered view that it is only when a Tribunal had decided whether any person had been validly elected to the office of Governor or Deputy Governor that an appeal can be filed as of right, in any other case the appeal can only be filed when leave is sought and obtained.
It is settled beyond paradvanture that where an appeal cannot be filed as of right, leave becomes a sine-qua non to a valid and competent appeal, for if no leave is sought when same is required, as in this case, the appeal, so filed without leave is incompetent.
For this reason and the ones lucidly seated in the lead judgment, I too hold the view that the appeal under consideration is incompetent and same hereby struck out on this ground. I abide by the order as to cost contained therein.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned sister K.M.O. KEKERE-EKUN JCA, I entirely agree with the conclusion that the appeal be struck out. It is my view that the lower Tribunal had no jurisdiction to hear an application to relist the Petition which was dismissed under paragraph 3(11) (a) of the Practice Directions for failure to obey a rescheduling order made to attend the pre-hearing session which had been adjourned at the instance of the Petitioner’s Counsel. The Appellant did not appeal against that decision to dismiss the petition, but has appealed against the decision refusing to relist the petition. That, in my view makes the appeal incompetent since this Court cannot have jurisdiction to hear the appeal against the decision not to relist when the lower Tribunal being functus officio had no jurisdiction ab initio to enteliain the application. That is to say that I agree into what the erudite interpretation of Saulawa JCA of Paragraphs 3(11) and 3 (12) of the 2007 Practice Directions as ably set out in ANPP v. REC AKWA IBOM STATE (2008) 8 NWLR Pt. 1090 Pg. 453. I adopt them as mine. I agree with the reasoning in the lead judgment on this point and for this reason, I hold that the appeal is incompetent. I abide by the order as to costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: This appeal arose from the Governorship Election held in Rivers State on 14th April 2007. On 14th May 2007, the appellants, that is Chief Bekinbo Alalibo Soberekon and Accord challenged the result of the election as declared by 2nd Respondent (INEC) in the Governorship and Legislative Houses Election Tribunal holding at Port Harcourt Rivers State.
At the pre-trial Session on 18/7/2007, the lower tribunal upheld the submissions of the learned counsel to the two sets of Respondents that the petitioners (now Appellants), who were absent in court and their counsel who wrote for an adjournment did not give a sufficient reason to allow the Tribunal grant their application for an adjournment.
Consequently, the lower Tribunal ruled that the letter of adjournment tendered by the petitioners/appellants by the letter dated 18/07/07 was not made in good faith, refused to grant an adjournment in the petition and accordingly dismissed the petition.
On 31/07/2007, the Petitioners/Appellants moved a motion for an order to set aside the Judgment/Ruling of 18/07/2007 which dismissed the Appellant’s petition on the ground that the Petitioners/Appellants and their counsel fail to attend the pre-hearing session of 18/07/2007.
In a considered Ruling delivered on 13/8/2007, the lower Tribunal dismissed the Petitioners/Appellants application to set aside the order of dismissal of the petition made on 18th July, 2007 as it found the application to be manifestly incompetent.
Dissatisfied with the Ruling which dismissed the application to set aside the Ruling of 18/07/2007, the Appellants filed a Notice of Appeal containing two (2) grounds of Appeal before this Court on 31/8/2007.
Meanwhile, by a considered Ruling of this Court delivered on 26th November 2008, the name of Rt. Hon. Rotimi Amaechi has been substituted with the name of Celestine Ngozichim Omehia as 1st Respondent in this appeal. Parties to this appeal filed and exchanged their briefs of argument.
The relevant briefs for this appeal are as follows:
1. Amended Appellant’s Brief of Arguments dated 26/1/2010 and liled on 27/01/2010 settled by Chief Adegboyega Awomolo, SAN.
2. 1st Respondent’s Brief of Argument incorporating Notice of preliminary objection dated 5/2/2010 and filed on 8/2/2010 settled by Lateef O. Fagbemi, SAN.
3. Appellant’s reply to 1st Respondent’s Brief of Argument filed on 12/2/2010 settled by Chief Adegboyega Awomolo, SAN.
4. 2nd – 7th Respondent’s Amended Brief of Argument incorporating Notice of Preliminary Objection dated 10/2/2010 and filed Oil 11/02/2010 settled by Kanu G. Agabi, SAN.
5. Amended Appellant’s Reply to 2nd – 7th Respondent’s Brief of Argument dated and filed on 18/2/2010 settled by Chief Adegboyega Awomolo, SAN,
In this appeal, the case of the Appellants shall be considered on one side of the scale while the cases of the 1st respondent and the 2nd-7th Respondents shall be treated on the other side as the case of the Respondents, this is, for reasons of the shared common interest between the 1st Respondent and the 2nd – 7th Respondents and also for convenience.
The 1st Respondent as well as the 2nd – 7th Respondents filed separate but identical Notices of Preliminary Objections to this appeal before proceeding to deal with the sole issue formulated by the learned counsel for the Appellants for the determination of the appeal.
The following in a nutshell are the grounds of objection raised by the 1st Respondent.
“(i) Rt. Hon Rotimi Chibuike Amaechi has not been reflected as a party on the Notice of Appeal and the Court cannot adjudicate on a party not before it.
(ii) The appeal herein is incompetent, in that the tribunal which entertained the application to set aside its order of dismissal of the petition had no jurisdiction to do so ab initio.
(iii)The decision of 13th day of August refusing to set aside its order of dismissal of 18th July, 2007 was an interlocutory one which requires that an appeal be lodged within 14 days; and
(iv) No leave of court was sought and obtained to file this appeal.”
The 2nd – 7th Respondent similarly raised preliminary objection to the competence of the appeal.
The ground upon which the objection is predicated are as follows:
“1a. The Notice of Appeal and the Grounds of Appeal of the Appellants are incompetent.
b. That pursuant to Sections 246(1) (b) (ii) of, the constitution of the Federal Republic of Nigeria, 1999.
An appeal to the court of Appeal shall lie as of right from the Decisions whether:
(i) …
(ii) Any person has been validly elected to the office of Governor or Deputy Governor
(c) That the decision appealed against did not determine the petition on the merit in that it did not decide one way or the other whether any person has been validly elected to the office of Governor.
(d) That Section 246(1) (b) (ii) of the Constitution only provides for a right of Appeal as of right when a decision finally disposes of a petition on the merits.
2. The leave of court is required by virtue of Section 241 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 by the Appellants to file their Notice of Appeal because Grounds 1 and 2 of the Notice raise issues of mixed law and fact against the interlocutory decision of the Tribunal dated 13th August 2007 refusing to set aside the Ruling dismissing the petition.
3. The amalgamation of the persons listed as 5th, 6th and 7th Respondents by the Appellants thereby making them Non Juristic persons.”
Pursuant to the above preliminary objection, the 2nd – 7th Respondents also urged this court to dismiss this appeal as being incompetent.
It is with this background that my learned brother Kekere-Ekun, JCA, who delivered the lead Judgment upheld the preliminary objection of the Respondents and struck out the Appellant’s appeal.
I agree with the conclusion in the lead Judgment upholding the Respondent’s preliminary objection and striking out the appeal solely for the reason of my conviction that whichever way one looks at the arguments of the parties to this appeal, the appeal is incompetent because it was based on an application to set aside the lower Tribunal’s earlier Ruling of 18/07/2007 on which the Tribunal itself lacked the necessary jurisdiction, to adjudicate upon.
Learned counsel to the appellant, Chief Adegboyega Awomolo, SAN, reacted to the above point in two important respects. The first is that having raised the question of jurisdiction before the lower Tribunal, the Respondents could no longer raise the issue of jurisdiction except by the process of a cross-appeal. And secondly, that the decision of the Court of Appeal in ANPP vs. REC. Akwa Ibom State (2008) 8 NWLR (Pt.1090) 453 did not take into consideration the definition of “decision” in Section 318 of the 1999 Constitution and perhaps therefore was reached per incuriam.
On the first point, it is trite that the question of jurisdiction can be raised at any stage of the proceedings even on appeal and indeed suo motu by the court itself. It follows logically that if the question of jurisdiction can be raised at any stage of a proceeding and can be raised suo motu, the filing of a cross-appeal to raise an issue of jurisdiction can only be a desirable practice and not that which could be mandatory as a requirement of the law.
The above point was well made in the supporting judgment of E.O. Ogwuegbu, JSC, to the lead judgment of S.M.A Belgore, JSC, in the case of Ma-aji Galadima v. Alhaji Adamu Tambai (2000) 6 SCNJ 190 at 199 – 200 that:
“It was submitted by the appellant’s counsel that the defendants/respondents should have cross-appealed and that order 3 Rule 15 (1) of the Court of Appeal Rules did not avail them because the notice of preliminary objection contemplated by Rule 15 (1) of order 3 can only affect the hearing of the appeal and cannot constitute the means by which the appeal can be heard and disposed of.”
Order 3 Rule 15 (1) under which the notice of preliminary objection was filed provides:
“15( 1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing setting out the grounds of objection, and shall file such notice together with seven copies thereof with the Registrar within the same time.”
I do not agree with the contention of Mr. Daudu, Senior Advocate of Nigeria, who is appearing for the appellant that the above rule applies only where a respondent intends to challenge the competence of an appeal. In a situation where the trial is a nullity because the trial court lacked the jurisdiction to adjudicate on the subject matter in dispute, I have no doubt that an appellate court which can raise the point suo motu if the parties failed to do so will not decline to entertain the question when raised in a notice of preliminary objection.”
Ogwuegbu, JSC, continued:
“The learned Senior Advocate of Nigeria further submitted that the respondents should have filed a cross-appeal. It would have been neater if they did so. However since the issue raised in the notice of preliminary objection was based on lack of jurisdiction of the trial court. I do not think that this court will object to the manner the question was brought before the court below since none of the parties was wronged by the order made by the court declaring the proceedings a nullity…”
The point that the respondent need not file a cross-appeal to raise the issue of jurisdiction was further explained by Achike, JSC, in the same case of Galadima v. Tambai (supra) at pages 203 – 204, basing his reasoning again on the fundamental nature of jurisdiction to any proceedings. He had this to say:
“The crux of the complaint in this appeal is that the trial Area Court No, 1 in Zaria City was the wrong venue for commencing the land suit. Clearly, it is a jurisdictional issue. Issue on the court’s jurisdiction is very pivotal and fundamental. Because of the fundamental nature, on the authorities, it can be raised at any stage of the trial or even on appeal and even before the apex court. The reason for this latitude to jurisdiction issue is obvious. A court that lacked jurisdiction to entertain a suit, either as a trial or appellate court, is incompetent to pronounce a judgment in respect of any aspect of the matter in controversy before it. Time never runs against a court to decide on the issue of jurisdiction. The consequence of a court continuing a case where it lacks jurisdiction is, as it were, like the court embarking on a frolic which would indisputably result in a nullity for which an appellate court so invited, would have no compunction whatsoever to declare null and void. Jurisdictional question, be it in criminal, or civil matter, has this same devastating consequence. An attack or question as to jurisdiction cannot be properly glossed over by any court once it is raised by the defendant or the respondent. The procedure by which such a fundamental issue is raised may not be in consonance with the stipulated rules of court for questioning a decision of the court, nevertheless, that will never be allowed to defeat the right to question the jurisdictional effect. To do so is unwittingly to postpone the doom’s day. See Owoniboy’s Technical Services Ltd. vs. John Holt Ltd. (1991) 6 NWLR (Pt. 199) 550. Ezomo vs. Oyakhire (1985) 1 NWLR (Pt. 2) 195, State vs. Onagoruwa (1992) 2 NWLR (Pt. 221) 33, Madukolu vs. Nkemdilim (1962) 1 All NLR 589 and Okafor v A-G. Anambra State (1991) 6 NWLR (Pt. 200) 659.
Achike, JSC, continued:
“It is necessary to caution that whenever there is a challenge to jurisdiction, the court should expeditiously attend to it in limine, particularly if the case is at the trial stage and even if the case is at the appeal stage, as is the case in the appeal at hand. Finally, it is important to state that jurisdictional issue being pivotal can be raised suo motu by the court so long as the parties are accorded the opportunity to react to the issue.
No doubt, the proper way for the respondents to question any aspect of a judgment that is substantially in his favour is to file a cross appeal or file a respondent’s notice with regard to the complaint. Be that as it may, it seems quite clear that a challenge to the courts jurisdiction is, as earlier noted, pivotally fundamental and can pass as sui generis in terms of the procedure adopted to raise it. In the instant case, the trial court’s jurisdiction was raised at the Court of Appeal rather irregularly by a preliminary objection.
The Court of Appeal appreciating the enormity of the jurisdictional issue raised, and did not allow it to be treated with such levity. Rather, the court ordered that the parties should file briefs of argument so that the serious issue of jurisdiction of the trial court would be copiously ventilated and adequately considered. In the circumstances, I am of the opinion that the Court of Appeal reached the right decision in dismissing the appeal before it. And from what I have said about the fate of this case when it wrongly originated at the Area Court No.1, Zaria City, it is also clear to me that the court lacked jurisdiction to entertain the suit. Consequently, all the proceedings in this case throughout its journey in the various courts were mere exercise in futility.”
On the second point, still on the issue of the inability of the lower Tribunal to refuse to set aside its ruling of 18/07/2007, it would be recalled that learned senior counsel for the respondents have submitted that the Tribunal had no business reviewing or refusing to set aside its decision of 18/07/07 dismissing the petitions it has become functus officio after the said earlier decision and as a result the appallants cannot properly bring an appeal upon the Tribunal’s decision declining or refusing to set aside the dismissal order of 18/07/07.
On this point, the respondents relied on the wordings of paragraph 3(11) (a) and 3(12) of the Practice Direction and the case of ANPP v. REG. Akwa Ibom State (supra).
For ease of reference, the provisions of paragraphs 3(11) and 3(12) of the Practice Direction, 2007, are reproduced hereunder:
“3(11) If a party or his legal practitioners fail to attend the prehearing session or obey a scheduling or pre-hearing order or is substantially unprepared to participate in the session or fails to participate in good faith, the tribunal or court shall:
(a) in the case of the petitioner dismiss the petition.
(b) in the case of a respondent enter judgment against him.
3(12) Any judgment given under sub-paragraph (11) above may be set aside upon an application made within 7 days of the judgment (which shall no be extended) with an order as to cost of a sum not less than N20,000. The application shall be accompanied by an undertaking to participate effectively in the pre-hearing session jointly signed by the applicant and the Legal Practitioner representing him.”
Now, and in support of the Respondent’s case, the Court of Appeal explained the purport of the above provision of the Practice Direction, 2007, in the case of ANPP & Ors. v. REG. Akwa Ibom State & Ors. (supra).
In the lead judgment of Saluawa, JCA, more particularly at pages 522 – 523, the following passages are relevant:
“In order to fully comprehend and appreciate the intendment of the provisions of paragraph 3(12) (supra), both sub paragraphs (11) and (12) must be read together. The provisions of paragraph 3 (11) (supra) have been reproduced in verbatim above. Firstly, a calm but dispassionately critical appraisal of the said paragraph 3 (11)(supra) would reveal that paragraph 3 (11) (a) relates to a situation whereby a petition is dismissed on ground of a petitioner’s non attendance (non-appearance), disobedience, or un-preparedness, to participate in the pre-hearing session. Thus, it affects only the petitioner. The Tribunal simply delivers a ruling (and not judgment) dismissing the petition, in limine. This is so because it, would be unjust to the, respondent to determine the petition in the absence of the petitioner. The present case falls within this category.
Secondly, paragraph 3 (11) (b) (supra) on the other hand, envisages a situation where by the respondent happens to be “the defaulting or recalcitrant party. Justice demands that the petitioner shall be entitled to judgment in limine. This is akin to what is generally known as the Civil Procedure Rules and Practice of the High Courts as judgment in default of appearance or default judgment, for short. See Order 15 rule 1 – 8 of the Federal High Court (Civil Procedure) Rule (supra) Civil Procedure in Nigeria, by Fidelis Nwadialo SAN, 1990 at page 372.”
Saluawa, JCA, continued as follows:
“It is rather obvious that paragraph 3(12) (supra) applies only to a situation whereby a judgment is entered against a defaulting respondent as expressly provided in paragraph 3(11) (b) (supra). That is to say, paragraph 3 (12) (supra) does not apply to the present case, which falls within the first category i.e paragraph 3(11) (a) supra. This is obviously so, because the petition having been dismissed in pursuant to the said paragraph 3(11) (a) supra, the tribunal has become functus officio thus lacking the vires or power to set aside the order of dismissal, talkless of relisting the dismissed petition in question.”
Saluawa, JCA, in the ANPP vs. REC, Akwa Ibom State case (supra) reasoned that a typical example uf the effect of an order of dismissal of a petition in limine, can be traced to the provisions of paragraphs 3 (4) and (5) of the said 2007 Practice Direction thus:
“(4) Where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.
(5) Dismissal of a petition pursuant to sub-paragraphs (3) and (4) above is final, and accordingly the tribunal or court shall be functus officio.”
In the circumstance, the learned Justice of the Court of Appeal concluded in reaction to the ANPP vs. REC, Akwa Ibom State (supra) that, there is every reason to held that the application filed by the appellants seeking an order to relist the dismissed petition was ab initio incompetent on the ground that the lower tribunal was functus officio and thus lacked the fundamental jurisdiction to relist same.
By way of recapitulation, the decision of the Court of Appeal in the ANPP vs. REC Akwa Ibom State (supra) is to the effect that the reference to “any judgment” in paragraph 3 (12) of the Practice Direction, 2007 is only in relation to a judgment entered against a respondent under the provision of paragraph 3(11) (b) of the Practice Direction and does not extend to an order for the dismissal of a petition In paragraph 3(11) (a) of the Practice Direction. Since such an order of dismissal would have rendered the court or tribunal functus officio and it could therefore not take any other further actions in respect of its order of dismissal not even to entertain an application to set aside or relist the petition. And that it is only the combined reading of the provision of paragraph 3(11) (b) and 3(12) that is comparable to what is generally known as “default judgment” under our regular Rules of Civil Procedure. The Appellants in this case however, introduced a new dimension by suggesting that the words “any judgment” in paragraph 3(12) of the Practice Direction must necessarily include an order or dismissal of a petition in paragraph 3(11) (a) of the 2007 Practice Direction. This according to the Appellants because the provision of Section 318 of the 1999 Constitution defined ‘decision’ to mean, in relation to a court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.” And therefore that the words “any judgment” in paragraph 3(12) of the Practice Direction covers an order of dismissal of petition in paragraph 3(11) (a) of the said Practice Direction.
With utmost respect to the learned counsel to the Appellants, this is argument is not tenable. The argument is an invitation to apply the provision of the interpretation section of the Constitution to circumstances, where the provisions are not relevant.
For ease of understanding the provision of Section 318(1) reads in fact as follows:
“318(1) In this constitution, unless it is otherwise expressly provided or the con otherwise required “decision” means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.”
The provision of the section permits of the following observations on its face.
‘Decision’ as equal to a determination of a court but wider than judgments and orders.
Furthermore, every construction of section 318 (1) relates to the meaning of the word “decision” in relation to a court in the con of the constitution itself as a statute or document.
Thus, while it is acceptable in the con of the constitution to equate the word “judgment” with a “decision” such an interpretation does not preclude the use of the word “judgment” in other statutes in a way in which it would not carry the same meaning as it is in the constitution.
In other words even if it is conceded that constitution as the used the word “Judgment” as to be equated with “decision” it is only for the purpose of the constitution and not for the interpretation of lesser statutes.
Therefore, for the submission of the learned senior counsel to the Appellants to be meaningful, one has to go back into the constitution itself to see if there is any provision outside the rights of appeal which either deals with the powers of a court or tribunal to set aside its own judgment or in any other way contradicts or nullifies the literal and unambiguous meaning given to the provision of paragraph 3(12) of the Practice Direction, 2007 in the case of ANPP vs. REC. Akwa Ibom State (supra).
In this respect, I have taken a careful and painstaking look at the provision of the 1999 Constitution and I did not see how the provisions of paragraph 3(11) and (12) of the Practice Direction 2007 conflict with the use of the word “decision” or “judgment” in relation to a court in the con of the constitution itself. Neither did I see any provision relating to a court to set aside its own decision which would have been contrasted with the provision of paragraphs 3(11) and (12) of the Practice Direction, 2007.
In these circumstances, I hold specifically that the provision of paragraphs 3(11) and (12) of the Practice Direction. 2007 is not in conflict with the provision of section 318(1) of the 1999 constitution or indeed any other provision of the constitution. And as a corollary, that the decision of the Court of Appeal in ANPP vs. REC Akwa Ibom State (supra) on this subject matter remains good law.
It is for the above reasons that I also uphold the preliminary objection of the respondents in this case and strike out the appeal.
Appearances
Chief A. S. Awomolo, SAN with K. Gbasam, Mrs. V. O. Awomolo, G. O. Tamuno, Miss Mary Obe, Miss Boma Dakoru, Ibiene C. Amachree and Emeka Ojota.
2nd Appellant present, represented by Hon. Castro N. Nwiakoro, State Chairman, Accord Party, Rivers State.For Appellant
AND
Prince L. O. Fagbemi, SAN with Chief Akin Olajimi, SAN, N. O. O. Oke, SAN, S. R. Dapaa Addo, H. O. Afolabi, K. O. Fagbemi, A. Akanbi, R. Isamotu, Emma Kalu, Miss J. J. Chukwu, Miss E. O. Atako, N. I. C. Wuche and T. I. Graham Douglas for the 1st respondent.
Kanu Agabi, SAN with I. E. Imadegbelo, SANI, N. F. Odihiri-Gaffar, Ayo Akam, U. Egbon and Mrs. U. A.. Somari-Pepple for the 2nd-7th respondentsFor Respondent
