SUNDAY ASETUBODE V. EVANS BAPAKAYE BIPI (2011)

SUNDAY ASETUBODE V. EVANS BAPAKAYE BIPI

(2011)LCN/4874(CA)

In The Court of Appeal of Nigeria

On Thursday, the 3rd day of November, 2011

CA/PH/EPT/26/2011

RATIO

PRELIMINARY OBJECTION: POSITION OF THE LAW WHERE A PRELIMINARY OBJECTION TO THE COMPETENCE OF AN APPEAL IS FILED

The law is firmly settled that where a preliminary objection to the competence of an appeal is filed, same shall be considered and determined before any further step is taken to dispose of the appeal. This is so because is the objection is upheld, it terminates the appeal. See Odu v. Agbor – Hemesou (200) 1 NWLR (Pt. 802) 624 at 637 paragraph B-C. PER PAUL ADAMU GALINJE, J.C.A

GROUNDS OF APPEAL: POSITION OF THE LAW WHERE A GROUND OF APPEAL IS NOT RELATED TO AND DOES NOT CHALLENGE THE DECISION OF THE COURT APPEALED AGAINST

Grounds of appeal against a decision of a court must relate to that decision and should be a challenge to the ratio of the decision. Where a ground of appeal is not related to and constitutes a change to the decision appealed against, it becomes incompetent. See a Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 207, Adesanya v. President of Nigeria (1981) 2 NCLR 358; Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546, Int’l Offshore Const. Ltd. v. S.L.N. Ltd. (2003) 16 NWLR (Pt. 845) 157. PER PAUL ADAMU GALINJE, J.C.A

JURISDICTION OF ELECTION TRIBUNAL: EFFECT OF THE FAILURE OF EITHER PARTY TO AN ELECTION PETITION TO APPLY FOR A PRE-HEARING NOTICE ON THE JURISDICTION OF THE COURT OR TRIBUNAL

By the provision of paragraph 18(4) of the 1st schedule to the Act, which connotes mandate, the Tribunal was deprived of the jurisdiction to hear the petition. See Okereke v. Yar’Adua [supra], where the supreme court heard at page 118 that failure to apply for pre-hearing notice by either party to a petition touched on the jurisdiction and competence of the court to hear an-election petition. Jurisdiction of a court or tribunal is the foundation upon which the hearing of any matter rests. Where a court has no jurisdiction, whatever it does is a nullity. PER PAUL ADAMU GALINJE, J.C.A

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

SUNDAY ASETUBODE Appellant(s)

AND

EVANS BAPAKAYE BIPI Respondent(s)

PAUL ADAMU GALINJE, J.C.A (Delivering the Leading Judgment): On the 13th of October 2011 I dismissed this appeal and reserved my reasons for doing so.
I now give reasons for my decision today.
The appeal herein is against the decision of the National and State Houses of Assembly Election Tribunal Sitting at Port Harcourt which was delivered on the 18th august 2011, in which the Appellant’s petition was dismissed on the ground that his application pre-hearing notice was made outside the prescribed period.
Being dissatisfied with that decision, the appellant has brought this appeal. His notice of appeal dated 29th August 2011 and field on the 6th September 2011 contains five grounds of appeal.
Parties filed and exchanged briefs of argument. The appellant formulated two issues for determination of this appeal. These issues are reproduced hereunder as follows:
1. Whether the court below had jurisdiction to hear and determine the application of the 1st Respondent outside the pre-hearing session.
2. Whether having regard to the facts and the state of pleadings between the parties, the court below was justified in dismissing the petition in limine.
For the 1st Respondent, a notice of preliminary objection was issued on the 30/09/11 challenging the competence of grounds 3, 4 and 5 of the grounds of appeal Argument is respect of the preliminary objection is incorporated at pages 3 paragraphs 3.00 to 5 paragraphs 3.09. Thereafter the 1st Respondent formulated two issues for determination of the appeal. These issues are also reproduced hereunder as follows:
1. Whether the lower tribunal was right to have entertained and determined the 1st Respondent’s motion on notice to dismiss the petition before the pre-hearing session.
2. Whether the Honourable Tribunal was right to have dismissed the petition and treat same as abandoned when the condition for activating the pre-hearing notice had occurred and the appellant failed to do so within the period stipulated by law.
The 2nd respondent merely adopted the two issues formulated by the Appellant, while the 3rd Respondent formulated the following issues:
1. Whether the court below had jurisdiction to hear and determine the application of the 1st Respondent outside the pre-hearing session.
2. Whether having regard to the facts and the state of pleadings between the parties, the court bellow was justified in dismissing the petition in limine.
The appellant’s reply brief to the issues raised in the preliminary objection is dated and filed on the 7/10/11.
Now, before I consider the argument put forward by parties, it is pertinent to set out in brief the facts of this case which is straight-forward and simple. Elections were held throughout Nigeria on the 26th of April 2011 for the office of members of the States Houses of Assembly in Ogu/Bolo State constituency in Rivers State, the Appellant contested that election under the platform of Action Congress of Nigeria (ACN) white the 1st Respondent contested the same election under the platform of the Peoples Democratic Party, the 2nd respondent herein. The 3rd Respondent, a body responsible for conducting, national elections in Nigeria, conducted the election aforesaid, while the 4th and 5th respondents were responsible for providing security during the elections.
At the conclusion of the elections, the 1st Respondent was declared the winner and returned as the elected member representing Ogu/Bolo State constituency of Rivers State. The appellant is dissatisfied with the result of the erection and therefore filed a petition at the Tribunal on the 17/5/2011 challenging the victory of the 1st Respondent. The petition was served on the 1st Respondent on the 13th of June 2011. The 2nd, 3rd and 4th Respondents were served with the petition on the 31/5/2011, 23/5/2011 and 6/6/2011 respectively. Record shows that the 5th Respondent was served with a copy of the petition by pasting same on the notice board of the tribunal’s registry on the 6/6/2011 the 1st and 3rd Respondents filed their replies on the 30th of June 2011 and 9th June 2011 respectively, while the 2nd, 4th and 5th respondents did not file any reply. However, before the 1st Respondent’s reply which was filed within time and after the 3rd Respondent’s reply, the appellant by a letter dated 23/6/2011, addressed to the secretary of the tribunal applied for pre-hearing notice as in form TF007. Being conscious of the fact that this application was not made after the 1st Respondent’s reply, the Appellant again made another application, this time by a motion on notice for the issuance of pre-hearing notice on the 18/7/11. By a motion on notice dated 19th July 2011 and filed on the 21/7/11 the 1st Respondent asked the Tribunal to dismiss the petition on the ground that the application for issuance of pre-hearing notice by the Appellant were in competent, pre-emptive, premature and or filed out of time. This motion was heard and in a reserved and considered ruling the Tribunal dismissed the petition.
The 1st Respondent issued a notice of preliminary objection to the competence of the 3rd, 4th and 5th grounds of appeal on the ground that the matters raised their from were obiter dictum as such there can be no valid grounds of appeal which do not attack the ratio decidendi and that the grounds have been abandoned since the 2nd issue for determination of the appeal which is alleged to have been distilled from the grounds does not seem to arise from the said grounds. The law is firmly settled that where a preliminary objection to the competence of an appeal is filed, same shall be considered and determined before any further step is taken to dispose of the appeal. This is so because is the objection is upheld, it terminates the appeal.See Odu v. Agbor – Hemesou (200) 1 NWLR (Pt. 802) 624 at 637 paragraph B-C. Since the objection is against the 3rd, 4th and 5th grounds of appeal, it is pertinent to set out the set grounds of appeal for clarity. The grounds are hereby set out without their particular as follows:-
3. The honourable tribunal below misdirected itself on (sic in) law when it held that the failure to serve the 5th Respondent with the petition was due to the fault of the appellant.
4. The honourable tribunal below erred in law when it held that the 5th respondent (the Nigerian Army) is not a juristic person.
5. The honourable tribunal below erred when it failed to take into account or act on the affidavit of non-service deposed to by its bailiff and the application for leave to serve the 5th respondent by substituted means.
The ratio decidendi in the decision of 18th August 2011 is that the petition of the appellant was abandoned because the appellant failed and or neglected to apply for pre-hearing notice as provided for under paragraph 18 of the 1st schedule to the Electoral Act 2010 [as amended].
The 3rd, 4th and 5th grounds of appeal don’t seem to complain against the ratio of the decision.
Grounds of appeal against a decision of a court must relate to that decision and should be a challenge to the ratio of the decision. Where a ground of appeal is not related to and constitutes a change to the decision appealed against, it becomes incompetent. See a Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 207, Adesanya v. President of Nigeria (1981) 2 NCLR 358; Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546, Int’l Offshore Const. Ltd. v. S.L.N. Ltd. (2003) 16 NWLR (Pt. 845) 157.
Apart from the fact that the three grounds of appeal do not constitute a challenge to the decision; the Appellants 2nd issue as formulated for the determination of this appeal does not seem to arise from the three grounds of appeal. The appellant indicated that the 2nd issue for determination of the appeal is distilled from grounds 2-5, while grounds 2 and 5 may be competent grounds 3, 4 and 5, under a single issue, has rendered the issue under which they are argued incompetent. It is clearly not the dug of this court to separate argument in respect of the competent grounds from the incompetent ground of appeal. I therefore agree with learned counsel for the first respondent that the 2nd issue on the authority of Atologu v. Agu (1998) 1 NWLR (Pt. 532) 129 at 143 paragraph A-E same and all the argument canvassed thereupon out.
With the striking out of the 1st issue for determination of this appeal, I will now consider the argument canvassed in respect of the only surviving 1st issue. I have reproduced that issue elsewhere in this judgment.
In his argument in support of the sole issue, Mr. C. N. Eke, learned counsel for the appellant submitted that the Tribunal was wrong to have heard the motion for dismissal of the petition outside the pre-hearing session since there was no evidence of the existence of extreme circumstance as provided for under paragraph 47 (2) of the 1st schedule to the Electoral Act 2010 (as amended). Learned counsel cited the authority in Okereke v. Yar’Adua (2008) 12 NWLR (pt. 1100) 95 at 120 paragraph E-H where the Supreme Court held thus:-
“The paragraph above (i.e. paragraph 6) has made an outright prohibition of moving before the tribunal or court except if it is at the pre-hearing session or where extreme circumstances are shown and leave of the court was sought and obtained. From the record of appeal I fail to trace where such extreme circumstances where shown or where the court’s leave was sought and obtained.”
And contended that apart from showing that there exists extreme circumstance, a person seeking to move a motion outside the pre-hearing session must first of all seek and obtain the leave of the court in order to move such application. According to the Learned Counsel, the 1st respondent did not place sufficient facts or materials warranting the grant to him of such leave, even though the motion contained a prayer for leave. Learned counsel cited the authority in Kwasau V. Maaji (2006) All FWLR (Pt. 295) 767 in aid and urges this court to resolve this sole issue in his favor.
For the 1st, 2nd and 3rd respondents, it is argued that the 1st Respondent properly sought for an obtained the leave of the Tribunal to move the motion for the dismissal of the petition outside the pre-hearing session and that the failure of the parties to apply for a pre-hearing notice within the prescribed period deprived the tribunal of the requisite jurisdiction to hear the petition. It is further argued for the respondents that the issue of jurisdiction is extreme circumstance, and that even if no such application for the dismissal of the petition was made, the tribunal was bound to dismiss the petition suo-motu in accordance with paragraph 18 (4) of the 1st schedule to the Electoral Act.
The motion for the dismissal of the petition dated 19/7/11 and filed on the 21/7/11 is at page 181 of the printed record of this appeal. The two prayers on the motion aforesaid read thus:-
1. An order for leave to hear this preliminary objection before the pre-hearing session.
2. An order of this Honourable Tribunal, dismissing this petition same having been abandoned, for failure of the petitioner to apply to this Tribunal for issuance of pre-hearing notice as in form TF007.
The Tribunal at page 277 of the record of this appeal held:-
“We now consider that the extreme circumstance for the moving of this application before or outside the pre-hearing session has been proved or shown and thus we hereby grant leave for the moving of this instant application before the pre-hearing session”
For the Appellant to argue before this court that there was insufficient fact of or material before the tribunal for a grant of leave to the 1st respondent to argue the motion at the stage it did is tantamount to arguing the motion afresh, a procedure which is inappropriate. From the record the first respondent sought for and was granted leave to move the motion outside the pre-hearing session.
Paragraph 18(4) of the 1st schedule to the Electoral Act 2010 (as amended) provides that 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.
The grounds for the application to dismiss the petition where that the application for issuance or pre-hearing notice dated 23/6/2011 was made before the 1st respondent filed his reply and the motion filed on the 18/7/11 was so filed out of time. There was therefore no application for pre-hearing notice 7 days after the 1st respondent filed his reply. By the provision of paragraph 18(4) of the 1st schedule to the Act, which connotes mandate, the Tribunal was deprived of the jurisdiction to hear the petition. See Okereke v. Yar’Adua [supra], where the supreme court heard at page 118 that failure to apply for pre-hearing notice by either party to a petition touched on the jurisdiction and competence of the court to hear an-election petition.
Jurisdiction of a court or tribunal is the foundation upon which the hearing of any matter rests. Where a court has no jurisdiction, whatever it does is a nullity. So therefore I am of the firm view that lack of jurisdiction on the part of a court or tribunal is an extreme circumstance which can sustain the hearing of a motion outside the pre-hearing session as contemplated by paragraph 47(1) of the 1st schedule to the Electoral Act 2010 [as amended]. For the reasons I have set out herein, this issues is resolved against the appellant, and the ground of appeal from which it is formulated is hereby dismissed.
Having resolved the 1st issue against the appellant and with the 2nd issue struck out, this appeal shall be, and it is hereby dismissed. Each set of the respondents are entitled to the cost of this appeal, which I assesses at N30, 000.00 per set, excluding the 4th and 5th Respondents.