ALL PROGRESSIVES CONGRESS & ANOR v. PEOPLES DEMOCRATIC PARTY & ORS
(2019)LCN/13692(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of July, 2019
CA/C/NAEA/267/2019
RATIO
PRELIMINARY OBJECTION: DEFINITION AND IMPORTANCE
A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. Unilorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225. For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v. Amadi (2011) 14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2012) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa?eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2017) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. PER OBANDE FESTUS OGBUINYA, J.C.A.
JURISDICTION: DEFINITION
Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Society Bic S.A. v. Charzin Ind. Ltd. (2014) 4 NWLR (Pt. 1398) 497; Garba v. Mohammed (2016) 16 NWLR (pt. 1537) 114; A. ? G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641)1. PER OBANDE FESTUS OGBUINYA, J.C.A.
JURISDICTION: WHEN A COURT HAS JURISDICTION
A Court of law is invested with jurisdiction to hear a matter when: ?1. it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction?, see Madukolu v. Nkemdilim (2006) 2 LC 208/(1962) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar? Adua (2008) 12 NWLR (Pt. 1100); Saraki v FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. PER OBANDE FESTUS OGBUINYA, J.C.A.
DATE IN LAW : IMPORTANCE
In law, it is the date of filing a process that is cognisable in adjudication, see Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) 506. It is decipherable from the face of the mountainous record, that it was transmitted to this Court on 28th June, 2019. The appellants, through their learned senior counsel, conceded, at page 5 of the appellants reply brief, that they received ?the record of proceedings from the Registry of the lower Tribunal before it was transmitted to the Court of Appeal. The significance of this is not far-fetched. The date of service of the record on the appellants predated that of transmission. PER OBANDE FESTUS OGBUINYA, J.C.A.
WHAT IS A CONCESSION
The concession, in the mind of the law, constitutes an admission which: ?is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action?, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (supra); N.A.S. Ltd v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421; AlaHassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It represents a concession against the interest of a party making, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. In the view of the law, an admitted fact does not need any proof, seeOur Line v. S.C.C. Nig. Ltd. (2009) SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; AlaHassan v. Ishaku (supra); Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542; Cole v. Jibunoh PER OBANDE FESTUS OGBUINYA, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. ALL PROGRESSIVES CONGRESS (APC)
2. EDIDIONG IDIONG, ESQ. Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY
2. MR. EMMANUEL UKPONG UDO
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER UYO, AKWA IBOM STATE Respondent(s)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal queries the correctness of the decision of the National and State Houses of Assembly Election Tribunal, sitting in Uyo, Akwa Ibom State (hereinafter addressed as ?the Tribunal?), coram judice: I. M. Ijohor, J (Chairman), B. L. Dalyop, J. (Member) and C. K. Nwankwo, J., (Member), in Petition No. EPT/AKS/HR/08/M4/19, delivered on 14th June, 2019. Before the Tribunal, the appellants and the respondents were the petitioners and the respondents respectively.
The facts of the petition, which gave birth to the appeal, are amenable to brevity and simplicity. The third respondent, the Independent National Electoral Commission (INEC, for short), is a body constitutionally allotted the herculean responsibility for organising general election in Nigeria. In discharge of the onerous duty, it conducted an election for a member to represent Ikono/Ini Federal Constituency of Akwa Ibom State in the House of Representatives of the National Assembly on 23rd February, 2019. In the said election, the second appellant was the flag bearer of the
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first appellant: All Progressives Congress (APC) ? a registered political party in Nigeria. The first respondent, Peoples Democratic Party (PDP) ? another registered political party in Nigeria ? had the second respondent as its standard bearer. At the end of the poll exercise, the third respondent declared and returned the second respondent as the winner of the election, id est, as a member to represent Ikono/Ini Federal Constituency of Akwa Ibom State in the House of Representatives. The appellants were peeved by the outcome of the election. Sequel to that, they beseeched the Tribunal, via a petition filed on 16th March, 2019, predicated on two grounds, and tabled against the respondents, jointly and severally, the following reliefs:
(i) That it may be determined and thus determined and declared that the 2nd Respondent, Emmanuel Ukpong-Udo, who was the candidate of the 1st Respondent was not duly elected or returned by the majority of lawful votes cast at the National Assembly election for Ikono/Ini Federal Constituency held on Saturday, February 23, 2019.
(ii) That it may be determined and thus
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determined and declared that the said National Assembly election for Ikono/Ini Federal Constituency held on Saturday, February 23, 2019 and the return of the 2nd Respondent, Emmanuel Ukpong-Udo, by the 3rd Respondent are void and invalid by reasons of corrupt practices, non-compliance with the provisions of the Electoral Act, 2010 (as amended), violation and breach of various provisions of the said Electoral Act, 2010, the INEC Regulations and Guidelines for the Conduct of Election and the Manual for Election Officials 2019.
(iii) That it may be determined and thus determined and declared that the 2nd Respondent, Emmanuel Ukpong-Udo did not score and could not have scored majority of lawful votes cast in Ikono/Ini Federal Constituency at the National Assembly election for Ikono/Ini Federal Constituency held on Saturday, February 23, 2019, and thus, his return by the 3rd Respondent is unconstitutional, irregular, null and void and of no effect whatsoever.
(iv) That it may be determined and thus determined, and declared that the entire National Assembly election held and/or purportedly held in Ikono/Ini Federal Constituency of Akwa Ibom State by the
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3rd Respondent on February 23, 2019 and the subsequent return of the 2nd Respondent, Emmanuel Ukpong-Udo, be set aside, and a fresh election ordered for the election of Member of House of Representatives in accordance with the provisions of the Electoral Act.
(v) IN THE ALTERNATIVE TO (iv) above:
That it may be determined and thus determined, and declared that the 2nd Petitioner who scored the second highest number of lawful votes actually won the National Assembly election held in Ikono/Ini Federal Constituency of Akwa Ibom State by the 3rd Respondent on February 23, 2019 be returned by the 3rd Respondent as the winner of the election of Member of House of Representatives and the Certificate of Return earlier issued to the 2nd Respondent be cancelled and re-issued to the 2nd Petitioner in accordance with the provisions of the Electoral Act.
In reaction, the respondents filed their respective replies wherein they joined issues with the appellants. The appellants filed their reply to the second respondent?s reply on 14th May, 2019 which marked the close of pleadings. On 22nd May, 2019, the appellants, through counsel,
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applied to the Tribunal for the issuance of Pre-hearing Notice as in Form TF007 pursuant to Paragraph 18(1) of the First Schedule to the Electoral Act, 2010, as amended.
On 28th May, 2019, the second respondent filed an application which prayed the Tribunal for an order deeming the appellants? petition as abandoned and dismissing it for their failure to comply with the time prescription in Paragraph 18(1) of the First Schedule to the Electoral Act, 2010, as amended. The appellants, duly, joined issue with the second respondent on the application by dint of a counter-affidavit filed on 29th May, 2019. The Tribunal, duly, heard the application. In a considered ruling, delivered on 14th June, 2019, found at pages 1041-1047 of the record, the Tribunal granted the second respondent?s application and dismissed the appellants? petition.
The appellants were dissatisfied with the decision. Hence, on 21st June, 2019, they lodged a 3-ground notice of appeal, found at pages 1048 ? 1053 of the record, wherein they prayed the Court:
i. To allow the Appeal.
ii. To set aside the decision of the lower Tribunal and
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return the Petition to another Panel for the hearing and determination of the Petition.
iii. To order for an expeditious hearing of the Petition in order to meet the 180 days from the date of filing of the Petition, as allowed by Law, for the hearing and determination of the Petition on merit.
Thereafter, the parties filed and exchanged their respective briefs of argument in line with the procedure for hearing election appeals in this Court. The appeal was heard on 18th July, 2019.
During its hearing, learned counsel for the appellants, Chief Victor Iyanam, adopted the appellants? brief of argument, filed on 9th July, 2019, and the appellants? reply brief of argument, filed on 17th July, 2019, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the first respondent, G. A. Umoh, Esq., adopted the first respondent?s brief of argument, incorporating a preliminary objection, filed on 15th July, 2019, as forming his reactions against the appeal. He urged the Court to dismiss it. In the same vein, learned counsel for the second respondent, Solomon E.
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Umoh, SAN, adopted the second respondent?s brief of argument, containing a preliminary objection, filed on 13th July, 2019, as constituting his submissions against the appeal. He urged the Court to dismiss it. Also, learned counsel for the third and fourth respondents, Kufre Okon, Esq., adopted the third and fourth respondents? brief of argument, filed on 12th July, 2019, as containing his contentions against the appeal. He urged the Court to dismiss it.
In the appellants? brief of argument, learned counsel distilled two issues for determination to wit:
i) Whether the learned trial Judges of the Election Petition Tribunal were justified in coming to the decision that the Petition was abandoned, having regard to all the surrounding circumstances.
ii) Whether the decision of the lower Tribunal was not unconstitutional.
In the first respondents? brief of argument, learned counsel crafted two issues for determination viz:
3.1. Whether the petition was not abandoned in view of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended), the petitioners having not applied for the issuance of
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prehearing notice within 7 days of close of pleadings as envisaged in the case of Okechukwu v. INEC?
3.2. Whether Section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 (4th Alteration, 2017) contemplated abandoned Petition as in the instant case?
The second respondents? learned counsel, in the second respondent?s brief of argument, formulated two issues for determination, namely:
1. Whether having regards to the provisions of paragraph 18(1) & (3) of the First Schedule to the Electoral Act 2010 (as amended) as well as the facts and circumstances of this case, the learned justices of the lower Court were right when they dismissed the Appellants? petition in limine for being abandoned.
2. Whether the 2nd Respondent?s application to dismiss the Appellants? petition in limine falls within the objection/application contemplated by Section 285(8) of the 1999 Constitution (As Amended) having regards to the peculiar facts and circumstances of the said application.
?
Learned counsel for the third and fourth respondents, in their brief of argument, canvassed a solitary issue for determination
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as follows:
Whether having regards to the circumstances of this case, the petition was abandoned by the Petitioners and rightly dismissed by the lower Tribunal.
First respondent?s preliminary objection.
At the cradle of the first respondent?s brief of argument, the first respondent greeted the appeal with a preliminary objection on the ground that the appellants? brief of argument was incompetent because it was filed outside the mandatory time allowed by paragraph 10 of the Election Tribunal and Court Practice Directions, 2011.
In arguing the objection, learned counsel for the first respondent, G. A. Umoh, Esq., submitted that the record of proceedings was served on the first respondent on 28th June, 2019 while the appellants? brief of argument was filed on 9th July, 2019 ? 12 days from 28th June, 2019. He posited that election petition is sui generis and the rules regulating it, especially on time, must be strictly adhered to by the parties and the Court. He relied on PDP v. Ezeonwuka (2017) LPELR-42563 (SC); Oke v. Mimiko (2013) LPELR-20645 (SC). He asserted that in the computation of time in
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election petition proceedings, the day of the event would be included. He referred to Okechukwu v. INEC (2014) 17 NWLR (Pt. 1436) 255. He reasoned that the day the record was served, 28th June, 2019, would be included in computing the 10 days provided in paragraph 10 of the Election Tribunal and Court Practice Directions, 2011. He urged the Court to discountenance the appellants? brief of argument, filed on 9th July, 2019, as incompetent because it was caught up by the limitation provision of Paragraph 10 of the Election Tribunal and Court Practice Directions, 2011.
On behalf of the appellants, learned counsel, Chief Victor Iyanam, contended that there was no correlation between the service of the record on the first respondent and the appellants. He reproduced the provision of paragraph 10 of the Election Tribunal and Court Practice Directions, 2011. He noted that service of the record is the key and not the date of its transmission. He claimed that proof of service was fundamental for calculation of time allowed for doing any act. He postulated that it would amount to descending into the arena for the Court to
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wade in to discover whether or not there was proof of purporting service of the record on the appellants. He stated that the appellants received an advance copy of the record of proceedings before it was transmitted to the Court of Appeal. He noted that the registry of the Court had not effected service of the record on the appellants after registering the appeal. He implored the Court to assume regularity of the processes in the absence of proper and regular presentation of disputed facts. He urged the Court to dismiss the appeal.
Resolution of the preliminary objection
A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. Unilorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225. For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v. Amadi (2011) 14 NWLR
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(Pt. 1266) 157; FBN Plc v. T.S.A. Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2012) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa?eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2017) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment so as not to insult the law.
The objector seeks to terminate the appeal in limine on single vitriolic ground listed above. The import of the ground is that this Court is not equipped with the jurisdiction to entertain the appeal.
Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd v. LASEPA (2002) 18 NWLR (Pt.
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798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Society Bic S.A. v. Charzin Ind. Ltd. (2014) 4 NWLR (Pt. 1398) 497; Garba v. Mohammed (2016) 16 NWLR (pt. 1537) 114; A. ? G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641)1.
A Court of law is invested with jurisdiction to hear a matter when: ?1. it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction?, see Madukolu v. Nkemdilim (2006) 2 LC 208/(1962) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar? Adua (2008) 12 NWLR (Pt. 1100);
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Saraki v FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. These three ingredients must co-exist in order to vest jurisdiction in a Court.
Now, the first respondent/objector?s chief grievance is that the appellants? brief of argument is tainted with incompetence in that it was filed outside the limited time prescribed by law. To begin with, a brief of argument connotes a condensed, succinct/concise statement of the propositions of law or fact, or both, which a party, or his counsel, wishes to establish in the appeal together with the reasons and authorities which can sustain them, see Emordi v. Kwentoh (1996) 2 SCNJ 134; U.A.C. v. Fasheyitan (1998) 7 SCNJ 179; Longe v. F.B.N. Plc (2010) 6 NWLR (Pt. 1189) 1. The objector hinged/weaved his objection on the provision of paragraph 10 of the Election Tribunal and Court Practice Directions, 2011. Due to its kingly position on the objection, it is
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imperative to pluck out the provision, from where it is domiciled in the statute book, ipsissima verba, thus:
10. Within a period of 10 days after the service of the record of proceedings, the Appellant shall file in the Court, his Written Brief of Argument in the appeal for service on the respondents.
This provision is submissive to easy comprehension. To this end, the law mandates the Court to accord it its ordinary grammatical meaning without any embellishment, see Audu v. Wada (2016) 12 NWLR (Pt. 1527) 382; Dingyadi v. INEC (No.2) (2010) 18 NWLR (Pt. 1224) 154; Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275; Brittania-U (Nig.) Ltd. v. Seplat Pet. Dev. Co. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Agi v. PDP (2017) 17 NWLR (Pt. 1595) 386. The draftsman of the clear provision employs the word ?shall? which, in this con, denotes mandatoriness/compulsion on the appellant party, see Okechukwu v. INEC (2014) 17 NWLR (Pt. 1436) 255; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Isiaka v. Amesun (2016) 9 NWLR (Pt. 1518) 417; Abubakar v. Nasamu (No.1) (2012) 17 NWLR (Pt. 1330) 407; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36.
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I have, in due loyalty to the expectation of the law, situated the appellants? brief of argument with the position of the law displayed above. The raison d?etre for the juxtaposition is simple. It is to ascertain if they defiled or respected the law. Indisputably, the appellants? brief of argument, dated 5th July, 2019, was filed on 9th July, 2019. In law, it is the date of filing a process that is cognisable in adjudication, see Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) 506. It is decipherable from the face of the mountainous record, that it was transmitted to this Court on 28th June, 2019. The appellants, through their learned senior counsel, conceded, at page 5 of the appellants? reply brief, that they received ?the record of proceedings from the Registry of the lower Tribunal before it was transmitted to the Court of Appeal.? The significance of this is not far-fetched. The date of service of the record on the appellants predated that of transmission.
The concession, in the mind of the law, constitutes an admission which: ?is a concession or voluntary acknowledgement made by a party of the
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existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action?, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola (supra); N.A.S. Ltd v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421; AlaHassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It represents a concession against the interest of a party making, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. In the view of the law, an admitted fact does not need any proof, seeOur Line v. S.C.C. Nig. Ltd. (2009) SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; AlaHassan v. Ishaku (supra); Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542; Cole v. Jibunoh
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(2016) 4 NWLR (Pt. 1503) 499; Orianzi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224.
Flowing from the undiluted admission, the appellants were served with elephantine record ahead of the date of its transmission to this Court, id est, 28th June, 2019. The appellants, in their infinite wisdom, starved this Court of the exact date of service of the record on them. However, this Court will take a bearing from the transmission date, 28th June, 2019, which is the most beneficial construction to the appellants. By calendar computation, between 28th June, 2019 and the 9th July, 2019, the date of filing the appellants? brief of argument, is a period of 12 days. The number of days will be more if the computation begins on a date anterior to the date of transmission of the record, 28th June, 2019. It admits of no argument that the period of 12 days is far in excess of the 10 days time-frame decreed by Paragraph 10 of the Election Tribunal and Court Practice Directions, 2011 x-rayed above. Indubitably, that is a clear transgression of the limitation provision. Put differently, the appellants fractured the limitation law when they filed
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their brief of argument on 9th July, 2019.
It is firmly settled, beyond any peradventure of doubt, that a brief of argument filed outside the time-bracket allowed in appeals bordering on election petition, which is sui generis, is rendered incompetent, see Ngige v. INEC (2015) 1 NWLR (Pt. 1440) 281; Okechukwu v. INEC (2014) 17 NWLR (Pt. 1436) 255; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525. It stems from this brief legal anatomy, that the appellants? brief of argument is infested with incompetence. It deserves the penalty of being ostracised from the appeal. It is, accordingly, struck out for being incompetent.
The consequences of the expunction of the appellants? brief of argument on the determination of the appeal are dire and far-reaching. In the first place, one of the foremost contents of a brief of argument is the issue for determination, see Cont. Res. (Nig.) Ltd. v. U.B.A. Plc. (2011) 16 NWLR (Pt. 1274) 592; Okonkwo v. U.B.A. Plc (2011) 16 NWLR (Pt. 1274) 614; Brittania-U (Nig.) Ltd. v. Seplat Pet. Dev. Co. Ltd. (2016) 4 NWLR (Pt. 1503) 541; KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (Pt. 1601) 473. An issue for
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determination is a combination of facts and law, which when decided, determines, defines and affects the fate of an appeal, see Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 529; Okonobor v. D. E. & S. T. Co. Ltd. (2009) 10 NWLR (Pt. 1150) 529; Ukiri v. Geco Prakla (Nig.) Ltd. (2010) 16 NWLR (Pt. 1220) 544; Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; PDP v. Umeh (2017) 12 NWLR (Pt. 1579) 272. In the eyes of the law, appeal is argued on issues, see U.A.C. v. Fasheyitan (supra); KLM Royal Dutch Airlines v. Aloma (supra); Aguba v. FRN (2018) 13 NWLR (Pt. 1637) 417.
The corollary of the expulsion of the appellants? brief of argument is plain. There is no brief or issue upon which the appeal will be argued. In other words, there is no brief of argument, nor issue for determination, upon which the appeal will perch and itch for determination. The incompetent appellants? brief contaminates the competence of the appeal. In blunt terms, there is a feature in the appeal which robs/disrobes this Courts of the requisite jurisdiction to adjudicate the appeal. Where a Court is drained of the
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jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (2016) NWLR (Pt. 1537) 114; Isah v. INEC (supra). This Court will not indulge in a judicial exercise which its, ultimate, product will be mired in the nest of nullity; a fortiori in election proceedings. Alas, this is the bane of this appeal occasioned by unwarranted tardiness of the appellants or their learned counsel in the prosecution of the appeal. They forget that vigilance, in relation to the time for filing processes, has become the new watchword in election proceedings in Nigeria. Any derailment in the time for filing processes will snowball into caustic consequences on the fate of the appeal. It is unfortunate!
Having found that this Court is divested of the jurisdiction to hear the appeal, the law makes it idle to consider the other issues canvassed by the feuding parties. In
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Ikechukwu v. FRN (2015) NWLR (Pt. 1457) 1 at 21, Nweze, JSC, incisively, declared:
It cannot be gainsaid that, as a general rule, an intermediate Court, like the lower Court, [Court of Appeal] has a duty to pronounce on all the issues before it?.
However, there are some exceptions to the above broad rule that applies to the lower Court, as an intermediate Court. Thus, for example, where the said Court, as an intermediate court, decided that it lacks jurisdiction in an appeal before it, it then becomes unnecessary to consider other issues once it has taken a decision on the question of jurisdiction?
See also, Braithwaite v. Skye Bank Plc. (2013) 5 NWLR (Pt. 1346) 1; Oni v. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80.
Where the jurisdiction of a Court to hear a matter is undermined, the order it makes is obvious. It is one of striking it out, see Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (Pt. 927) 366; Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt. 1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1071) 347;
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Ikechukwu v. FRN (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527.
On the whole, since the appellants? brief of argument is plagued by an indelible incompetence, on the footing of late filing, which soiled/stained the competence of the appeal, the destiny of the preliminary objection, which the first respondent/objector invented to snuff out life out of the appeal at its infancy, is obvious. It is imbued with merit. Consequently, I uphold the preliminary objection. Accordingly, I strike out the appeal for being incompetent. The parties shall bear the respective costs they expended in the prosecution and defence of the doomed appeal.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Obande Festus Ogbuinya, JCA. I also agree that the preliminary objection by the Respondent that the Appellant’s brief was filed outside the 10 day period stipulated by paragraph 10 of the Election Tribunal and Court Practice Directions 2011 ought to be upheld.
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In the circumstance, I also strike out the appeal for incompetence, the Appellant having failed in the eye of the law to file a brief of Argument.
I agree with the consequential order and the order as to costs as dictated in the lead judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the privilege of reading in advance a copy of the judgment just delivered by my learned brother, Obande F. Ogbuinya, JCA and I agree with the reasoning and conclusion arrived in the lead judgment.
I wish to add my words to the succinct judgment to say that there are situations where a statute or the Constitution of the Federal Republic of Nigeria sets out conditions for the activation or invocation of a Court’s jurisdiction. In such cases, a plaintiff?s failure to abide or follow the statutory conditions or procedural steps will deny the Court’s competence to proceed in the proceedings. See A.G. LAGOS STATE V A.G. FEDERATION (2014) 9 NWLR (pt 1412) 217 and TIZA V BEGHA (2005) 15 NWLR (pt 949) 616.
The appellant’s brief of argument in this appeal is tainted with incompetence same having been filed
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outside the limited time prescribed by law. I too strike out the appeal for being incompetent.
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Appearances:
Chief Victor Iyanam with him, Eddy Idungikan, Esq.For Appellant(s)
G.A. Umoh, Esq. for 1st Respondent.
Solomon Umoh, SAN with him, Edikan Umoh, Esq. for 2nd Respondent.
Kufre Okon, Esq. for 3rd and 4th RespondentsFor Respondent(s)
Appearances
Chief Victor Iyanam with him, Eddy Idungikan, Esq.For Appellant
AND
G.A. Umoh, Esq. for 1st Respondent.
Solomon Umoh, SAN with him, Edikan Umoh, Esq. for 2nd Respondent.
Kufre Okon, Esq. for 3rd and 4th RespondentsFor Respondent
