DAME PAULINE TALLEN & ORS v. DAVID JONAH JANG & ORS
(2011)LCN/4804(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of September, 2011
CA/J/EP/GOV/144B/2011
RATIO
JURISDICTION OF THE COURT: WHETHER A PARTY CAN WAIVE A MATTER RELATING TO THE PROCEDURAL JURISDICTION OF THE COURT
From a long line of authorities it is unarguable that while the substantive jurisdiction of the court cannot be waived, a party by his conduct, can waive a matter relating to the procedural jurisdiction of the Court. PER CLARA BATA OGUNBIYI, J.C.A
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. DAME PAULINE TALLEN
2. ARC. PAM DUNG GYANG
3. LABOUR PARTY (LP) Appellant(s)
AND
1. DAVID JONAH JANG
2. IGNATIUS LONGJAN
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
CLARA BATA OGUNBIYI, J.C.A (Delivering the Leading Judgment): This cross-appeal challenges the Ruling of the Plateau State Governorship Election Tribunal, sitting in Jos delivered on 25th July, 2011.
The 1st – 3rd Respondents had brought a motion on notice dated 14th July, 2011 and filed 15th July, 2011 seeking for a total of 4 reliefs from the Tribunal.
The motion was heard on 25th July, 2011 and Ruling delivered same day.
The Cross-Appellants being dissatisfied with the part of the decision of the Tribunal referred to in paragraph 2.14 of the Cross-Appellants’ brief has cross-appealed; see page 3 of cross-appellants’ brief. Cross-Appellants filed their notice and grounds of appeal.
Counsel for both parties filed and served their briefs of arguments as required by the rules. The senior counsel for the Cross-Appellants in their brief formulated 3 issues for determination. The 1st – 3rd Cross-Respondents in their brief distilled 2 issues from the grounds of appeal while the 4th Respondent filed no brief.
The appeal was heard today the 21st September, 2011. The 1st – 3rd Cross-Respondents had a Notice of Preliminary Objection which argument was incorporated in their briefs and were allowed time to highlight salient points in their briefs. Thereafter the court rose to consider the arguments before it so as to pronounce its judgment. Reasons for the court’s judgment shall be made known on a later date. See Section 134 (4) of the Electoral Act No.6 of 2010.
In considering and determine this appeal we shall adopt the two issues as formulated by the Cross-Respondents. The issue are:
”1. Was the lower Tribunal wrong when it held that waiver does not apply to jurisdiction issue particularly as the petition has not proceeded to hearing? Grounds 1 and 2.
2. Was the lower Tribunal wrong when it extend time for the 1st to 3rd Respondents to apply to set aside the order of the Tribunal directing the Secretary of the Tribunal to issue on the parties or their counsel a pre-hearing sheet? Ground 3”.
We have dutifully considered the oral arguments of both senior counsel and the submissions in parties’ respective briefs with relevant authorities.
We find the preliminary objection unmeritorious. It is accordingly dismissed.
Issue No.I
Our answer to issue 1 is that the Tribunal arrived at the wrong conclusion due to its inability to distinguish between two desperate concepts namely; substantive and procedural jurisdiction. What was in issue was actually the question of procedural jurisdiction. From a long line of authorities it is unarguable that while the substantive jurisdiction of the court cannot be waived, a party by his conduct, can waive a matter relating to the procedural jurisdiction of the Court. By taking steps in the proceedings, the 1st – 3rd Cross-Respondents had waived the procedural irregularity.
In answer to issue No. 2. we hold that the Tribunal ought to have refused the application for extension of time for the 1st- 3rd Respondents to apply to set aside the order of the Tribunal directing the Secretary of the Tribunal to issue on the parties or their Counsel a pre-hearing notice.
In all, the cross-appeal succeeds and is allowed.
CHIMA CENTUS NWEZE, J.C.A.: I agree.
UCHECHUKWU ONYEMENAM, J.C.A.: I agree.
Appearances
KOLA AWODEIN (SAN) and PASCHAL MAMMOFor Appellant
AND
O.I. OLORUNDASE (SAN) S.T. OLOGUNORISA (SAN), S.G. ODEY ESQ. B. ISHAAKU. D.M. DAKOGOL A.M. MAYIMI AND A.T. BALOGUN (MISS)For Respondent
