ADELEKE APAPA & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2011)LCN/4948(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of December, 2011
CA/I/EPT/SH/5/2011
RATIO
PRELIMINARY OBJECTION: WHETHER A PRELIMINARY OBJECTION RAISED AGAINST THE HEARING OF AN APPEAL MUST BE TAKEN FIRST
The law is settled that where a Preliminary objection is raised against the hearing of the appeal, same must be taken first. See: Jaiye v. Abioye (2003) 4 NWLR (pt. 810) 397 at 414 paras. E-F and Osun State Government V. Olami (Nig.) Ltd. (2003) 7 NWLR (pt. 818) 72 paras. D-E. PER ADZIRA GANA MSHELIA J.C.A.
GROUND OF APPEAL: EFFECT OF THE GROUND OF APPEAL THAT IS NOT BASED ON THE FINDING OF THE COURT
It is trite that where a ground of appeal is not based on the finding of the court such a ground will be declared incompetent. See: Egbe v. Alhaji (1990) NWLR (pt. 128) 546 at 590; Adesanya v. President of Nigeria (2001) FWLR (pt. 46) at 859 and Adegoroye v. Ajayi (2003) FWLR (pt. 171) at 1591-1600 and Akpan v. Julius Berger Nig. Ltd. (2003) FWLR (pt. 182) at 1827 page 1838 paras B-E, PER ADZIRA GANA MSHELIA J.C.A.
PARTICULARS OF ERROR: ESSENCE OF PARTICULARS OF ERROR IN LAW
It is settled that the essence of particulars of error in law is to project the reason for the ground in point. The fact that a particular is inelegantly drafted does not invalidate the ground from which it flows. See N.N.B. Plc. V. Imonikhe (2002) 5 NWLR (pt. 760) 241 at 310 and D. Stephens Industries Ltd & Anor. v. Bank of Credit and Commerce International (Nig.) Ltd (1999) 11 NWLR (pt. 625) 29 at 3101. PER ADZIRA GANA MSHELIA J.C.A.
ISSUE OF JURISDICTION OF COURT: WHETHER THE ISSUE OF JURISDICTION OF A COURT CAN BE RAISED AT ANY STAGE OF THE PROCEEDINGS AND EVEN FOR THE FIRST TIME ON APPEAL
It is trite that issue of jurisdiction being a threshold issue can be raised at any stage of the proceedings and even for the first time on appeal. It also requires no leave before same is raised. There are plethora of cases decided by the apex court and this court on this issue. PER ADZIRA GANA MSHELIA J.C.A.
INTERPRETATION OF STATUTE : IMPLICATION OF THE WORD ‘MAY’ WHEN USED IN A STATUTE AS REGARDS THE INTERPRETATION OF THE PARAGRAPH 27 (1) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010 AS AMENDED, WHETHER THE CHAIRMAN OF THE TRIBUNAL MUST SIT ALONE IN DETERMINING ALL INTERLOCUTORY QUESTIONS AND MATTERS IN AN ELECTION PETITION
The provision under consideration is paragraph 27 (1) of the 1st schedule to the Electoral Act 2010 as amended. Paragraph 27 (1) provides:- “All interlocutory questions and matters may be heard and disposed of by the chairman of the tribunal or the presiding Justice of the court who shall have control over the proceedings as a Judge in the Federal High Court.” Following the decision of the Supreme Court in Amasike v. Reg. Gen. C.A.C. (2010) 13 NWLR (pt. 1211) 337 at 399 the word ‘May’ when used in a statute may be interpreted as directory or permissive or may be interpreted as imperative depending on the context in which it is used. The apex court in Amasike V. Reg. Gen. C.A.C. (supra) had this to say:- “Word may when used in a statute may be interpreted as directory or permissive or may be interpreted as imperative depending on the context in which it is used. The context in which may appears in a statute must be looked into because it is the controlling factor whether the word is mandatory or directory.” In construing paragraph 27 (1) of the 1st schedule to the Electoral Act reproduced (supra) this court interpreted the word ‘may’ as imperative or mandatory. See the cases of Hon. Ayo Adeseun and Another v. Chief Luqman Oyebisi Ilaka and others (unreported) Appeal No. CA/I/EPT/NA/3/11 delivered on 12/9/2011 and Dr. Wale Okediran v. Agboola Hosea Ayoola & 2 others (unreported) Appeal No CA. 15/EPT/NA/I/2011 delivered on 26/9/2011. His Lordship Alagoa JCA in the case of Hon. Ayo Adeseun & Another v. Chief Luqman Oyebisi Ilaka & others (supra) observed at page 9 thus:- “What does paragraph 27 (1) of the 1st schedule to the Electoral Act seek to achieve? Judicial Notice is taken of the fact that proceedings before the Federal High court are before a single Judge sitting alone and reference to a single judge of the Federal High court in paragraph 27 (1) of the 1st schedule to the Electoral Act as amended with respect to interlocutory applications cannot mean otherwise than that with respect to the hearing and determination of interlocutory applications before the election tribunals, the chairman alone should so sit and determine such interlocutory applications to the exclusion of the other members?” In the same vein His Lordship Ikyegh JCA in the unreported case of Dr. Wale Okediran Agboola Hosea Ayoola & 2 others (supra) stated at page 40 thus:- “With full respects, the word “May” as used in the said enactment has compulsory meaning as held by us in the yet, unreported case of Adeseun v. Ilaka (supra).” The decision of this court in Omeh v. Okoro & others (1999) 8 NWLR (pt. 615) 356 at 368 was equally followed. PER ADZIRA GANA MSHELIA J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
OFR Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. ADELEKE APAPA
2. PEOPLES DEMOCRATIC PARTY (P.D.P) Appellant(s)
ADZIRA GANA MSHELIA J.C.A. (Delivering the Leading Judgment): This Appeal was allowed on the 4th day of November, 2011 and reasons for allowing the appeal was reserved until today, pursuant to S. 285 (8) of the constitution of the Federal Republic of Nigeria 1999 (as amended). I now give my reasons.
This is an appeal, against the Ruling of the National and State Houses of Assembly Election Petition Tribunal Holden at Ibadan, Oyo State of Nigeria delivered on 9th September, 2011 wherein the Tribunal dismissed the petition of the petitioners on the ground that the petitioners filed their application for issuance of pre-hearing notice out of time.
The facts leading to this appeal are that: On the 26th day of April, 2011, the 1st Respondent conducted election into the Oyo State House of Assembly seat for Akinyele 2 State constituency. The 1st Appellant and the 3rd Respondent were candidates amongst other candidates that also contested the said election. At the end of the election under reference the 3rd Respondent was returned as elected by the 1st Respondent having scored the highest lawful votes of 26,757 as against the 1st Appellant who scored 6,192 votes.
Aggrieved with the result declared, the appellants presented a petition against same at the National and State Houses of Assembly Election Tribunal on 17th May, 2011, on the grounds that:
12.1. The 3rd Respondent was at the time he contested the 26th day of April, 2011 House of Assembly Election, Akinyele 2 State Constituency got qualified to contest the said election and/or was not a fit and proper Person to offer himself for election into the House of Assembly Akinyele 2 State Constituency for not possessing the academic qualifications he claimed to have possessed in his nomination form 12.2. The 3rd Respondent was not duly elected by majority of lawful votes cast at the election.
Parties filed and exchanged pleadings (Petition and replies). After the service of the petition on the 2nd and 3rd Respondents, they filed a joint Respondent’s reply on 16/6/2011. The Petitioners/Appellants by a letter dated 7/7/2011 applied for issuance of pre-trial conference information sheet and on 15/7/2011 filed Form TF 008. The 2nd and 3rd Respondents filed their pre-hearing information sheet on 18/07/2011. On that same 18/07/2011 2nd and 3rd Respondents brought a motion on notice challenging the jurisdiction of the court based on failure of the Petitioners/Appellants to file FORM TF 008 within time. The said motion was argued and the lower Tribunal delivered its Ruling on 15/08/2011 striking out the motion on ground of incompetence. On the 22nd August, 2011 the 2nd and 3rd Respondents filed another motion challenging the jurisdiction of the Lower Tribunal. The motion was argued and the Lower Tribunal in its ruling dismissed the petition of the Appellants for noncompliance with provision of paragraph 18 of the 1st schedule to the Electoral Act. See: pages 108 – 118 of the record. The petitioners/Appellants being dissatisfied with the ruling of the Tribunal lodged an appeal to this court against the Ruling on 22/9/2011 containing seven grounds of Appeal. On 31/10/2011 Appellants sought and obtained leave to amend the notice of appeal which now contains 8 grounds of appeal.
Parties filed and exchanged briefs of argument. Appellant’s amended brief is dated 31/10/2011 and filed on 1/11/2011. While 1st Respondent’s amended brief is dated 2/11/2011 and filed same date. The 2nd and 3rd Respondents’ brief of argument is dated 2/11/2011 and filed same date. At the hearing of the Appeal on 3/3/11, 2nd and 3rd Respondents’ counsel adopted the argument canvassed in their brief in respect of the preliminary objection raised as to the competence of the Notice of Appeal and Grounds of Appeal. Appellants’ counsel adopted and relied on the brief of argument and urged the court to allow the appeal. 1st Respondent’s counsel adopted the 1st Respondent’s brief and urged the court to dismiss the appeal. While the 2nd and 3rd Respondents’ counsel adopted their brief of argument and similarly urged the court to dismiss the appeal.
Appellants distilled seven issues from the eight grounds of appeal for determination of this court. The issues read thus:-
(i) whether or not the Lower Tribunal was functus officio and or competent to consider the 2nd and 3rd respondents’ motion on notice dated 22nd August, 2011 (GROUND 1).
(ii) whether or not the Lower Tribunal was functus officio and right to dismiss the petition when it had issued pre-hearing notices to all the parties in the petition which were never set aside or annulled nor any application made to that effect (GROUND 3).
(iii) whether or not the 2nd and 3rd Respondents were right to turn around to apply for dismiss (sic) of the petition having themselves filed answers to the pre-hearing notice before the Lower Tribunal (Ground 2 & 3).
(iv) whether or not the Lower Tribunal was right to allow technicality to defeat substantive justice (Ground 6).
(v) whether or not the Lower Tribunal has jurisdiction to entertain the reply to the petition and the 2 (two) applications of the 2nd and 3rd respondents dated 16th June, 2011, 18th July, 2011 and 22nd August, 2011 respectively.
(vi) whether or not the Lower Tribunal was right in employing cost as a punitive measure against the Petitioners (Ground 7)
(vii) Whether or not the Honourable Tribunal erred in law and acted without jurisdiction when all the three members head the 2nd and 3rd Respondents application dated 22nd August, 2011 and jointly ruled on same on 9th September, 2011 (Ground 8).
The 1st Respondent formulated two issues for determination in this appeal as follows:-
(i) Whether the dismissal of the Petitioners petition by the Trial Tribunal was justified when regard is had to the circumstances of the petition and the applicable law thereto.
(ii) whether the decision of the Honourable Tribunal dismissing the petition of the Appellant is a final decision or interlocutory in nature.
The 2nd and 3rd Respondents also formulated four issues for determination in this appeal in the event the court does not accede to their request. The issues are:-
(1) whether the Lower Tribunal was Funtucs Officio by its ruling of 15/08/2011 to consider the 2nd and 3rd Respondents’ application dated 22/8/2011, Covers ground 1.
(2) whether the Lower Tribunal was right in its dismissal of the petition of the Petitioner for non compliance with paragraph 18 of the 1st schedule to the 2010 Electoral Act as amended, Covers ground 2, 3, 4, 5 and 6 of the Notice of Appeal.
(3) Whether the cost as awarded by the Lower Tribunal was punitive in nature Ground 1.
(4) Whether having regard to the circumstances of this case and the provisions of the Act and paragraph 18 of the 1st schedule to the Electoral Act 2010, the Petition and the Appeal of the Appellants should be dismissed.
The 2nd and 3rd Respondents challenged the competence of the Grounds of Appeal filed by the Appellants. Arguments in respect of the Preliminary objection are incorporated in their brief of argument. The law is settled that where a Preliminary objection is raised against the hearing of the appeal, same must be taken first. See: Jaiye v. Abioye (2003) 4 NWLR (pt. 810) 397 at 414 paras. E-F and Osun State Government V. Olami (Nig.) Ltd. (2003) 7 NWLR (pt. 818) 72 paras. D-E. The 2nd and 3rd Respondents while arguing the objection in their brief of argument contended that grounds 1, 2, 3, 4, 5 and 7 are incompetent and ought to be struck out. Their grouse is that ground 1 does not contain concise particulars of the error alleged. Reliance was placed on the case of
National Bank of Nigeria v. Opoola (1994) 1 NWLR (pt. 319) at 126 and Alhaji Kashim Ibrahim Imam v. Senator Ali Modu Sherif & Ors (2005) 4 NWLR (pt. 914) 80 paras 132 – 133. It was also contended that grounds 2-6 do not flow from the decision of the lower Tribunal. It is trite that where a ground of appeal is not based on the finding of the court such a ground will be declared incompetent. See: Egbe v. Alhaji (1990) NWLR (pt. 128) 546 at 590; Adesanya v. President of Nigeria (2001) FWLR (pt. 46) at 859 and Adegoroye v. Ajayi (2003) FWLR (pt. 171) at 1591-1600 and Akpan v. Julius Berger Nig. Ltd. (2003) FWLR (pt. 182) at 1827 page 1838 paras B-E, The 2nd and 3rd Respondents contended that there is nowhere in the ruling of the lower Tribunal contained at pages 108-118 to show that the issue of waiver was raised nor did the Tribunal give a ruling on waiver. As regards ground 7 learned counsel submitted that the issue of award of costs involves the discretion of the court as such he requires leave of court as required by S. 241 (1) (2) (C) of the constitution of the Federal Republic of Nigeria 1999, before he could raise and argue the ground. He urged the court to strike out same as it is incompetent. Finally 2nd and 3rd Respondents’ counsel urged the court to strike out the incompetent grounds of appeal and the issues formulated there from.
Appellants did not file a reply brief responding to the objection raised.
I have carefully examined the grounds of appeal referred to by the 2nd and 3rd Respondents. As regards ground 1, I am of the view that the ground is competent. The ground is clear enough to put the 2nd and 3rd respondents on notice as to the complaint raised therein. The ground also emanates from the decision of the lower Tribunal.
It is settled that the essence of particulars of error in law is to project the reason for the ground in point. The fact that a particular is inelegantly drafted does not invalidate the ground from which it flows. See N.N.B. Plc. V. Imonikhe (2002) 5 NWLR (pt. 760) 241 at 310 and D. Stephens Industries Ltd & Anor. v. Bank of Credit and Commerce International (Nig.) Ltd (1999) 11 NWLR (pt. 625) 29 at 3101.
I entirely agree with the submission of learned counsel to the 2nd and 3rd Respondents that grounds 2-6 are incompetent. The grounds as rightly contended do not flow from the decision of the lower Tribunal delivered on 9/9/2001. Where a ground of appeal is not based on the finding of the court such a ground will be declared incompetent. It is trite that a ground of appeal against a decision must not only relate to the decision but should further be a challenge to its ratio – decidendi. Karibi-whyte J.S.C. in Saraki & Ors V. Kotoye (1997) 3 N.S.C.C. 331 stated this rule thus:
“It is a well established preposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.”
See also C.C.B, Ltd v. Nwokocha (1998) 9 NWLR (pt. 564) 98, Attorney. Gen. Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (pt. 192) 1, Republic Bank Ltd. V. C.B.N. (1998) 13 NWLR (pt, 587) 306; Adegoroye v. Ajayi (2003) FWLR (pt. 171) 1571-1600 and Akpan V. Julius Berger Nig. Ltd. 2003 FWLR (pt. 182 1827 at 1838 B-E.Consequently, grounds 2-6 are hereby struck out along with issues 2, 3 and 5 formulated there from. Similarly, I hold that ground 7 of the Notice of Appeal is incompetent as rightly submitted by 2nd and 3rd Respondents’ counsel. The issue of costs involves the discretion of the court, therefore the ground is of mixed law and fact. Appellant is required to obtain leave of court before arguing same. The provisions of S. 241 (2) (c) of the 1999 constitution (as amended) is very clear and unambiguous. Appellant ought to have sought and obtained leave of this court before arguing ground 7 of the Notice of Appeal.
Having failed to do so I would in the same vein strike out ground 7 and issue 6 distilled there from for being incompetent. As regards ground 8 the sustenance of ground 1 has made same to be acceptable as competent ground of appeal, otherwise it would have been struck out if the objection succeeded in respect of all the original grounds of appeal. The 2nd and 3rd Respondents’ counsel had argued that Appellant did not obtain leave before raising and arguing ground 8 of the Amended Notice of Appeal. I do not agree with the submission of 2nd and 3rd Respondents’ counsel on this issue. Ground 8 raised issue of jurisdiction. It is trite that issue of jurisdiction being a threshold issue can be raised at any stage of the proceedings and even for the first time on appeal. It also requires no leave before same is raised. There are plethora of cases decided by the apex court and this court on this issue. I hold that ground 8 is competent.
Finally, I hold the view that the Preliminary Objection is sustained on grounds 2-7 of the Amended Notice of Appeal. While the objection fails in respect of grounds 1 and 3 of the amended Notice of Appeal.
Having struck out issues 2, 3, 4, 5 and 6 appellant is left with issue 1 and 7. In determining the substantive Appeal I will adopt appellants’ issues 1 and 7. Respondents’ issues will be treated along with the two issues raised by the appellant.
I will resolve issue 7 first since it touches on the competence of the Tribunal to hear the motion dated 22nd August, 2011 and filed the same date. For clarity issue 7 read thus:-
“Whether or not the Honourable Tribunal erred in law and acted without jurisdiction when all the three members heard the 2nd and 3rd Respondents application dated 22nd August, 2011 and jointly ruled on same on 9th September, 2011.
Appellants’ counsel while arguing this issue submitted that the lower Tribunal failed to comply with paragraph 27 (1) & (2) of the first schedule of the Electoral Act 2010 as amended and also the lower Tribunal failed to comply with paragraphs 23 of the Federal High Court Act, 2004. That by paragraph 27 (1) of the 1st schedule to the Electoral Act, 2010 as amended and section 23 of the Federal High Court Act, 2004, taken together with the cases of Galaudu V. Kamba (2004) 15 NWLR (Pt. 895) 32 at 52, Awuse v. Odili (2004) 8 NWLR (pt. 876) 481 at 512 and Madukolu v. Nkemdilim (1962) All NLR (pt. 2) 581 at 589, the plural composition of the lower Tribunal consisting of the chairman and two members when it heard and determined the interlocutory application that led to the threshold demise of the petition, in the ruling delivered by one of the members the lower Tribunal (Ajileye J.) was done without jurisdiction. This is so because only the chairman of the lower Tribunal sitting alone as a judge in the Federal High Court was required by the specific and mandatory stipulation in paragraph 27 (1) of the first schedule to the Electoral Act (supra) and section 73 of the Federal High Court Act (supra) to hear and dispose of all interlocutory questions and matters. Counsel submitted that paragraph 27 (1) of the 1st schedule to the Electoral Act is mandatory and same flows with the decision in Madukolu v. Nkemdilim (supra) Learned counsel contended that the members ought to have assumed passive roles but the reverse is the position when this interlocutory application was determined. It was further argued that issue of jurisdiction can be raised at any stage of the proceedings. See: Access Bank Plc, v. Uzo consult Ltd. (2009) 121 NWLR (pt. 1156 534 at 554. The issue of jurisdiction cannot also be waived. Counsel contends that the three members of the panel signed the ruling which offends S. 27 (1) and (2) of 1st schedule to the Electoral Act 2010 as amended and paragraph 23 of the Federal High court Act 2009. Counsel also urged the court not to depart from its earlier decision in the yet unreported cases of Hon. Ayo Adesun and another v. Chief Lugman Oyebisi J. Laka and others in Appeal No. CA/I/EPT/NA/3/11 decided on 12/09/2011 and Dr. Wale Okediran v. Agboola Hosea Ayoola & 2 Ors decided on the 26th day of September, 2011 wherein this court held that by paragraph 27 (1) of the first schedule to the Electoral Act, (supra) only the chairman of the lower Tribunal was competent to sit alone and hear and dispose of all interlocutory questions and matters in an election petition. Counsel urged the court to allow the appeal by resolving this issue in favour of the Appellants.
1st Respondent responded to this issue under its issue 2. The contention of 1st respondent’s counsel is that the word ‘May’ used in paragraph 27 (1) of the 1st schedule to the Electoral Act should be interpreted as merely directory and not mandatory. He placed reliance on the definition of the word ‘may’ as stated in Black’s Law Dictionary, 6th Edition at page 979 and the Supreme Court case of Amasike v. Reg. Gen. C.A.C. (2010) 13 NWLR (pt. 1211) 337 at 399. Counsel contended that in the con of the Electoral Act, the word may confers a discretion on the chairman to either sit alone or sit with all members of the tribunal. Counsel referred to S.140 (4) of the Electoral Act but conceded that there seemed to be a disharmony between paragraph 27 (1) of the schedule to the Act and Provisions of S. 140 (a) of the Principal Act. It was argued that all matters or questions that can be settled or determined before the final conclusion or decision on an Election Petition are Interlocutory questions and matters. Learned counsel was also of the view that the application of the 2nd and 3rd Respondents upon which the petition of the Petitioners was dismissed is by nature of the relief sought therein capable of disposing off the rights of the Petitioners and the Respondents finally as such it is not an interlocutory application envisaged under paragraph 27 (1) of the 1st schedule to the Electoral Act. Rather it is a final decision. Reliance was placed on the cases of AIB Ltd. V. Packoplast (Nig.) Ltd. (2004) All FWLR (pt. 234) page 1863 of 1875 – 1875 and Odutola v. Oderinde (2004) All FWLR (pt. 217) page 615 at page 623 paras (7).
The 2nd and 3rd Respondents in their response conceded that they are aware of the unreported decision of this court in the case of Dr. Wale Okediran v. Agboola Hosea Ayoola & 20 others, suit No. CA/I/EPT/NA/I/2011 delivered on the 26th day of September, 2011 and that they are not advocating that the decision was given per incuriam. Learned counsel however, urged us to invoke S. 15 of the Court of Appeal Act and assume jurisdiction in determining the pre-objection of the 2nd and 3rd respondents to the competence of the Appellants’ petition. Counsel relied on the case of Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423 at 612614. Learned counsel contended that the application which led to the present appeal does not require the taking of evidence, as it is predicated on ‘hard’ facts, that is, motion dated 22nd August, 2011, contained on page 87 to 94 of the record of proceedings. Counsel urged us to follow the decision of the Supreme Court in Okereke v. Yar’adua 12 NWLR (pt. 1110) 95 at 118 and dismiss the petition and this appeal for non compliance with paragraph 18 of the 1st schedule.
The provision under consideration is paragraph 27 (1) of the 1st schedule to the Electoral Act 2010 as amended. Paragraph 27 (1) provides:-
“All interlocutory questions and matters may be heard and disposed of by the chairman of the tribunal or the presiding Justice of the court who shall have control over the proceedings as a Judge in the Federal High Court.”
Following the decision of the Supreme Court in Amasike v. Reg. Gen. C.A.C. (2010) 13 NWLR (pt. 1211) 337 at 399 the word ‘May’ when used in a statute may be interpreted as directory or permissive or may be interpreted as imperative depending on the con in which it is used. The apex court in Amasike V. Reg. Gen. C.A.C. (supra) had this to say:-
“Word may when used in a statute may be interpreted as directory or permissive or may be interpreted as imperative depending on the con in which it is used. The con in which may appears in a statute must be looked into because it is the controlling factor whether the word is mandatory or directory.”
In construing paragraph 27 (1) of the 1st schedule to the Electoral Act reproduced (supra) this court interpreted the word ‘may’ as imperative or mandatory. See the cases of Hon. Ayo Adeseun and Another v. Chief Luqman Oyebisi Ilaka and others (unreported) Appeal No. CA/I/EPT/NA/3/11 delivered on 12/9/2011 and Dr. Wale Okediran v. Agboola Hosea Ayoola & 2 others (unreported) Appeal No CA. 15/EPT/NA/I/2011 delivered on 26/9/2011. His Lordship Alagoa JCA in the case of Hon. Ayo Adeseun & Another v. Chief Luqman Oyebisi Ilaka & others (supra) observed at page 9 thus:-
“What does paragraph 27 (1) of the 1st schedule to the Electoral Act seek to achieve? Judicial Notice is taken of the fact that proceedings before the Federal High court are before a single Judge sitting alone and reference to a single judge of the Federal High court in paragraph 27 (1) of the 1st schedule to the Electoral Act as amended with respect to interlocutory applications cannot mean otherwise than that with respect to the hearing and determination of interlocutory applications before the election tribunals, the chairman alone should so sit and determine such interlocutory applications to the exclusion of the other members…”
In the same vein His Lordship Ikyegh JCA in the unreported case of Dr. Wale Okediran Agboola Hosea Ayoola & 2 others (supra) stated at page 40 thus:-
“With full respects, the word “May” as used in the said enactment has compulsory meaning as held by us in the yet, unreported case of Adeseun v. Ilaka (supra).”
The decision of this court in Omeh v. Okoro & others (1999) 8 NWLR (pt. 615) 356 at 368 was equally followed.
It is also worthy of note that the present case arose from the determination of an interlocutory question or matter whether the appellant applied for issuance of pre-hearing notice out of time contrary to paragraph 18 (1) of the 1st schedule to the Electoral Act and the Okediran case (supra) also dealt with an interlocutory question or matter which incidentally is on all fours with the case at hand. I am therefore bound to follow the earlier decision of this court in the two unreported cases referred to (supra). I can only depart if the facts and circumstances are distinguishable.
The 1st Respondent’s counsel had argued that S. 140 (4) of the Electoral Act 2010 as amended being a substantive law overrides the provision of paragraph 27(1) of the 1st schedule which are rules of procedure for election petition. For clarity I will reproduce S. 140 (4) hereunder as follows:-
“Subject to the provision of paragraph 53 (2) of the first schedule to this Act on the motion of a respondent in an election petition, the Election Tribunal or Court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this part of this Act, or the provisions of first schedule of this Act.”
I have carefully examined the provision of section 140 (4) referred to (supra). It is my considered view that section 140 (4) of the Act is a procedural rule since it relates to the 1st schedule to the Act. It is not a substantive provision as contended by 1st respondent’s counsel as such it cannot override paragraph 27 (1) of the 1st schedule which is also a procedural rule. As could be observed subsection 4 of S.140 of the Electoral Act is a general provision, while paragraph 27 (1) of the 1st schedule is a specific provision. The law is elementary that where the constitution or a statute contains a general provision, as well as a specific provision, the specific provision will prevail over the general provision. See Inakoju v. Adeleke (2007) 4 NWLR (PT. 1025) 433 at 629 paras C-E and Obi V. INEC (2007) 11 NWLR (pt. 1046) at 558 paras. A-G. By the provision of paragraph 27 (1) of the 1st schedule the chairman is given power to, hear and dispose of interlocutory questions and matters and to have control, over the proceeding as a judge in the Federal High Court. See section 23 of the Federal High Court Act 2004. I follows therefore that the chairman in hearing and determining interlocutory questions and matters and having control of the proceedings as a Judge of the Federal High Court must act alone and not in conjunction with others.
In the instant case when the chairman and two members heard and determined the interlocutory application that led to the demise of the petition, in the ruling delivered by one of the members of the Tribunal (Ajileye J.) it was done without jurisdiction as rightly submitted by Appellants, counsel. It is trite that when a statute provides a procedure for performing a duty that procedure alone must be adopted otherwise the act will be a nullity. See Gataudu v. Kamba (2004) 75 NWLR (pt. 895) 37 at 55.
It is also trite that a court has Jurisdiction when it is inter alia properly constituted as regards members and qualification of members of the bench and no member is disqualified for one reason or the other. See Madukolu v. Nkemdilim (1962) All (pt. 2) 581 at 589. It is therefore evident that the lower Tribunal was not properly constituted as regards members to determine the interlocutory application of the 1st and 2nd respondents as only the chairman was competent to determine the interlocutory questions and matters sitting alone. The hearing and disposal of the 1st and 2nd Respondents’ application by the Tribunal, i.e. the entire members of the Tribunal sitting together as the Tribunal is contrary to paragraph 27 (1) of the 1st schedule to the Electoral Act and is therefore null and void, and of no effect. Jurisdiction is the lifeline in all trials. Where there is any defect in competence, it is fatal to the proceedings and the proceedings are a nullity however well conducted and decided. See Madukolu v. Nkemdilim (supra); A.G. Anambra v. A.G. Federation (1993) 6 NWLR (pt. 302) 692; Petrojiesica Enterprises v. Leventis Technical Company Ltd. (1992) 5 NWLR (pt. 244) 675 and Ojokolobo v. Alanni (7987) 3 NWLR (pt. 87) 372 at 397. The 2nd and 3rd Respondents had urged the court to invoke its powers under section 15 of the court of Appeal and dismiss the petition, and appeal instead of remitting it back for retrial. As rightly observed this court in appropriate cases can invoke its powers under S. 15 of the Court of Appeal Act and assume jurisdiction over the matter as the trial court.
However, where evidence has not been taken in the matter by the court or Tribunal of first instance and the credibility of witnesses is likely to be in issue as in the instant matter, the court would be slow to invoke S.15 of the Court of Appeal Act. In election matters time is of the essence. Having regard to the facts and circumstances of this case I think it will not be appropriate at this stage to invoke the powers of the court under S.15 of the Court of Appeal Act.
Issue 7 is accordingly resolved in favour of the appellants. The determination of issue number seven in favour of the appellants being issue of Jurisdiction terminates the whole appeal. In my humble view it is unnecessary to resolve issue No. 1 raised by the appellants as it would amount to academic exercise.
In the result I hold that the Appeal is meritorious and same succeeds. Appeal allowed. The ruling of the lower Tribunal delivered on 9th day of September, 2011 dismissing the Appellants’ petition is hereby set aside. I hereby make an order, remitting the petition for adjudication before another panel of the Election Petition Tribunal to be constituted by the Honourable President of the Court of Appeal. Parties to bear own costs.
STANLEY SHENKO ALAGOA, J.C.A.: This appeal was allowed on the 4th November, 2011 and reasons for allowing the appeal were reserved until today. I endorse the reasons given in the lead judgment delivered by my learned brother Adzira Gana Mshelia (JCA) and abide by the orders contained in the said judgment including order on costs.
MODUPE FASANMI, J.C.A: I had the advantage of reading in advance the judgment just delivered by my learned brother, A.G. MSHELIA J.C.A. I agree with her reasoning and conclusion that the appeal has merit and should be allowed. I also allow same and remit the petition back for adjudication before another panel of the Election petition Tribunal to be constituted by the Hon. President of the Court of Appeal.
I abide by the order as to cost contained in the lead judgment.
Appearances
Adeniyi Oyekule for appellants with Dare Adebayo Esq. and J.B. Apapa EsqFor Appellant
AND
W.A. Olajide for 1st Respondent with Omoniyi Fayanju Esq. and C.I. Akinbiyi (Mrs).
Kazeem A. Gbadamosi for 2nd and 3rd Respondents with Bolaji Agoro Esq. Yakubu A. Fadare Esq, Ayodeji Adeyemi Esq and Omoniyi Odeyemi Esq.For Respondent
