CHIEF (MRS) MODUPEOLA & ANOR v. PRINCE (DR) DAPO ABIODUN & ORS
(2019)LCN/13758(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of August, 2019
CA/IB/EPT/OG/GOV/07/2019
RATIO
DUTY OF COURTS AND TRIBUNALS
It is the law, as rightly argued by Appellants? Counsel, that it is the duty of every Court or Tribunal to hear and determine all applications pending before it before making a final pronouncement by way of delivering judgment. See ATTORNEY ?GENERAL OF THE FEDERATION VS. AJAYI Supra, AKPAN VS. BOB Supra and UPS LTD. VS. UFOT (2005) LPELR ? 7562 (CA). PER JOSEPH EYO EKANEM, J.C.A.
APPEAL: WHEN A FINDING OF FACT OR LAW IS NOT APPEALED AGAINST
The law is that a finding of fact or law not appealed against is deemed to have been admitted by the parties and is binding forever on the parties. See ANYANWU VS. OGUNEWE (2014) 8 NWLR (PT. 1410) 437, 470. It follows therefore that even if the Tribunal failed to consider the further affidavit of the Appellants (which is not so) that would not be fatal to the ruling of the Tribunal. This is because having become functus officio the Tribunal had no competence to delve into the substance of the motion including the facts disclosed in the further affidavit. PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
(1) CHIEF (MRS) MODUPEOLA SANYOLU
(2) LABOUR PARTY Appellant(s)
AND
(1) PRINCE (DR) DAPO ABIODUN
(2) ALL PROGRESSIVES CONGRESS (APC)
(3) INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC)
(4) RESIDENT ELECTORAL COMMISSIONER
(REC) OGUN STATE Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Governorship Election Petition Tribunal, Ogun State (?The Tribunal?) (Coram: Halilu, J, Okaa, J. and Omar, J.) in Petition No. EPT/OG/GOV/03/2019 delivered on 13/7/2019. In the ruling, the Tribunal dismissed the application of the Appellants to, inter alia, set aside its decision made on 26/6/2019 dismissing their petition and to relist the petition.
The facts of the case leading to this appeal may be summarized as follows:
?The 3rd Respondent conducted election for the office of the Governor of Ogun State on 9/3/2019. The 1st Appellant was the candidate of the 2nd Appellant in the said election, having won its primary election. The 1st Respondent contested the election being sponsored by the 2nd Respondent. At the end of the exercise, the 3rd Respondent and the 4th Respondent declared the 1st Respondent as the winner of the election. Dissatisfied with the return of the 1st Respondent, the Appellants filed a petition at the Tribunal complaining against the return on several grounds including the ground that the 1st
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Appellant was validly nominated but was unlawfully excluded from contesting the election.
After pleadings were filed and exchanged by the parties, a pre-trial conference was conducted by the Tribunal. At the end thereof, a pre-trial report was issued and the petition was adjourned to 21st and 22nd June, 2019, for hearing. On 21/6/2019 when the petition was called up for hearing, neither the Appellants (as Petitioners) nor their counsel was in Court. Consequently, the Tribunal dismissed the petition pursuant to Paragraph 46(3) of the 1st Schedule to the Electoral Act, 2010 (as amended). On 26/6/2019, the Appellants filed a motion praying the Tribunal to set aside its decision and relist the petition apart from other prayers. The motion was supported by an affidavit and a further affidavit. After hearing the motion, the Tribunal on 13/7/2019 dismissed the same on the basis that it lacked the capacity to review its order dismissing the Petition as it was a final judgment.
Aggrieved by the ruling, the Appellants have appealed to this Court by means of a notice of appeal filed on 16/7/2019. The notice of appeal incorporates one ground of appeal.<br< p=””
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Pursuant to the rules of this Court, the parties filed and exchanged their Briefs of Argument.
At the hearing of the appeal on 15/8/2019, Olusoji Oduntan, Esq., for Appellants, adopted and relied on the briefs of argument filed on their behalf in urging this Court to allow the appeal, viz;
(i) Appellants? Brief of Argument filed on 30/7/2019;
(ii) Appellants? Reply Brief to 1st Respondent?s Brief of Argument filed on 4/8/2019;
(iii) Appellants? Reply Brief to the 2nd Respondent?s Brief of Argument filed on 4/8/2019;
(iv) Appellants? Reply Brief to the 3rd and 4th Respondents? Brief of Argument filed on 4/8/2019.
Professor Taiwo Osipitan (SAN) for the 1st Respondent adopted and relied on the 1st Respondent?s Brief of Argument which was filed on 2/8/2019 in urging the Court to dismiss the appeal.
A. J. Owonikoko (SAN) for the 2nd Respondent adopted and relied on the 2nd Respondent?s Brief of Argument filed on 2/8/2019 in urging the Court to dismiss the appeal.
Adebowale Kamaru Esq., for the 3rd and 4th Respondents adopted and relied on the brief of argument filed on
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their behalf on 2/8/2019 in urging the Court to dismiss the appeal.
In the Appellants? Brief of Argument, the following issue is formulated from the lone ground of appeal for the determination of the appeal:
?Whether the Tribunal was right to have dismissed the motion to relist without considering the Further Affidavit of the Appellants.?
In the 1st Respondent?s Brief of Argument, the following issue is presented for the determination of the appeal:
?Whether the Honourable Tribunal rightly dismissed the Appellants? application to relist the Petition which had been dismissed notwithstanding the alleged breach of Appellants right to fair hearing on the issue of pendency of 1st Respondent?s application for recusal of Khalid M. L. Umar at the time of the dismissal of the Petition.?
In the 2nd Respondent?s brief of argument, the following issue is formulated for the determination of the appeal:
?Whether the Honourable Tribunal rightly dismissed the Appellants? Motion (seeking to relist a dismissed petition) on the ground that it had become functus officio to entertain
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the said Motion.?
In the 3rd and 4th Respondents? brief of argument one issue is presented for the determination of the appeal viz:
?Having held that it had no jurisdiction to entertain the Appellants? Motion on Notice, was the Lower Tribunal wrong to have refused to embark on consideration of the facts upon which the Appellants? Motion on Notice was based, including the facts contained in the Appellant?s Further Affidavit (assuming but not conceding that the Tribunal failed to consider the said Further Affidavit as alleged by the Appellants)
It seems to me that the issue formulated by the Appellants reflects the complaint encapsulated in their ground of appeal better than the issues formulated by the Respondents. I shall therefore be guided by the same in determining the appeal.
Before considering the issue, it is pertinent to state that the 1st and 2nd Respondents gave notices of preliminary objection to the hearing of the appeal. Before the appeal was argued, counsel for both the 1st and 2nd Respondents sought for and were given leave to argue their preliminary objections.
?
I shall first
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consider the preliminary objections. Arguments in respect of the 1st Respondent?s preliminary objection are at paragraphs 4.1 ? 5.7 of the unpaginated brief of argument of the 1st Respondent. The arguments in respect of 2nd Respondent?s preliminary objection are at pages 5-9, paragraphs 4.01-4.19 of the 2nd Respondent?s brief of argument.
The contention of the 1st Respondent in respect of its preliminary objection is in sum as follows:
(1) That the Appellants have no right of appeal as the only right of appeal as of right against a decision of the Tribunal is in Section 246 (1)(c) (ii) of the Constitution of Nigeria, 1999 (as amended) which relates to only decisions whether any person has been validly elected to the office of Governor;
(2) That the Appellants ought to have filed the appeal within 21 days of the decision of the Tribunal dismissing the petition on 21/6/2019 but they failed to do so; and
(3) That the relief sought in the notice of appeal is not provided for in the Electoral Act, 2010 since the relisting of a petition which has been dismissed is not permissible in the said Act.
The reply of the
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Appellants may be summarized as follows:
(i) That the decision of the Tribunal the subject of this appeal is a final decision in respect of the application to relist and as such the Appellants do not need leave to appeal against it;
(ii) That any decision dismissing a case for failure of plaintiff to appear at a hearing can be set aside under Order 19 Rule 4 (2) of the Federal High Court (Civil Procedure) Rules, 2013 (as amended);
(iii) That a decision of the Tribunal dismissing a petition for failure to appear at the hearing can be set aside by virtue of Section 54 of the Electoral Act, 2010 (as amended).
(iv) That it follows that a decision of the Tribunal refusing to relist such a petition is appealable;
(v) That a petition dismissed under Paragraph 46 (3) of the 1st Schedule to the Electoral Act, 2010 (as amended) can be relisted unlike a petition dismissed under the provision of paragraph 46 (1) of the same Act, and
(vi) That any default judgment can be set aside.
?
A right of appeal is not an inherent or common law right. It is statutory in nature. Section 246 (1) (c) (ii) of the Constitution of Nigeria, 1999 (as amended)
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provides that;
?(i) An appeal shall lie as of right from ?
(c) Decisions of the Governorship Election Tribunal on any question as to whether ?
(ii) Any person has been validly elected to the office of Governor or Deputy Governor.?
On account of the above provision, 1st Respondent?s counsel contended that a right of appeal from a decision of a Tribunal exists only where decision of the Tribunal is on whether any person has been validly elected to the office of the Governor. It was further contended that since the decision on appeal only dismissed the application to relist the dismissed petition, it did not decide whether any person has been validly elected to the office of the Governor; and so it could not be appealed against.
?It should be noted that the effect of the decision of the Tribunal dismissing the motion of the Appellants is that their right to have the question as to whether the 1st Respondent was validly elected as the Governor of Ogun State which was terminated by the order sought to be set aside was given a final burial. Thus their appeal touched on the issue whether the 1st Respondent was
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validly elected as Governor and so they could appeal as of right especially since the appeal involved a question of law.
In the case of DANKWAMBO VS. ABUBAKAR (2015) LPELR ? 25716 (SC), it was contended, based on Section 246 (1) (c)(ii) of the Constitution of Nigeria, 1999 (as amended) that it is only an appeal on a question as to whether a person has been validly elected to the office of Governor or Deputy Governor of a state that lies as of right to the Court of Appeal from an Election Tribunal; and that any appeal on any other issue must be with leave. Kekere-Ekun, JSC, in rejecting the contention at page 29 of the report opined as follows:
..I am unable to agree?.. that the appeal before the lower Tribunal has nothing to do with the substance of the petition or the election ?.
Indeed as held by this Court in Awuse v. Odili (supra) at 154-155 H-A the word ?decision? as defined in Section 318 of the 1999 Constitution (as amended) includes decision against a ruling in any proceeding and therefore includes an interlocutory ruling in a proceeding?.
The effect of the dismissal of the 1st
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Respondent?s petition by the Tribunal is that his right to have the question as to whether the Appellant and 2nd Respondent were validly elected to the office of Governor and Deputy Governor of Gombe State determined has been truncated?. The 1st Respondent was entitled to appeal as of right against the decision pursuant to Section 246 (1) (c) (ii) of the 1999 Constitution (as amended).”
In Louis v. INEC (2010) LPELR ? 4442 (CA) Nwosu-Iheme JCA held as follows at page 11:
?Since time is of essence in election matters to hold that a petitioner has to apply for leave before appealing against a final decision or Interlocutory ruling whether of law, fact or mixed fact and law will contravene the very essence and thus negative the cure intended for the mischief of dragged litigation. The law as it stands therefore, is that appeals from Election Tribunals to the Court of Appeal in Election Petitions whether touching on questions of fact or mixed law and fact in final or interlocutory decision do not require the leave either of the trial election Tribunal or at the Court of appeal.”
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I therefore discountenance this leg of the objection of 1st Respondent?s Counsel.
The appeal in hand is against the decision of the Tribunal which was delivered on 13/7/2019. It was filed on 16/7/2019, which was well within the 21 days provided for in paragraph 6 of the Election Tribunal and Court Practice Directions, 2011. Since the appeal was not against the decision of the Tribunal dismissing the appeal on 21/6/2019, the idea of filing this appeal within 21 days of that date did not arise.
The contention by 1st Respondent?s counsel that there is no provision in the Electoral Act which allows the relisting of a dismissed Petition is not a matter for preliminary objection. Rather, it ought to be a matter for the substantive appeal. I shall therefore discountenance it at this stage.
It is my view that the preliminary objection of the 1st Respondent is not well founded and I accordingly dismiss it.
As regards the preliminary objection of the 2nd Respondent, 2nd Respondent?s Counsel?s objection may be summarized as follows:
?(i) That this appeal filed against a post-dismissal ruling filed 26 days after the order of the dismissal of the Petition is
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incompetent;
(ii) That the particulars of the sole ground of appeal do not amplify the ground as the ground focuses on an alleged error in dismissing the motion while the particulars talk of failure of the Tribunal to consider the further affidavit. In short, the contention here is that the particulars are not related to the ground of appeal.
I have already held that the instant appeal is against the decision of the Tribunal dismissing the application of the Appellants to relist the Petition. Therefore the time for filing of appeal against the order dismissing the Petition is not relevant. So long as the time prescribed in Section 285(6) of the Constitution of Nigeria, 1999 (as amended) for the disposal and hearing of the Petition has not expired or is not about to expire, this Court is perfectly right within the law in considering the appeal.
In respect of (ii) supra, the particulars of a ground of appeal are intended to amplify a ground of appeal. The two are to be read together to understand the purport of the ground of appeal. The ground of appeal read along with its particulars shows that the complaint in the ground is that the Tribunal
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erred in dismissing their application without considering their further affidavit. The particulars therefore amplify the ground. This is especially so since a ground of appeal can arise from a complaint that the Court failed to do what it was supposed to do. Whether or not the Tribunal in this instance failed to consider the further affidavit is a matter to be considered in the substantive appeal.
In sum, I find no merit in the 2nd Respondent?s Preliminary Objection. I accordingly dismiss the same.
I now turn my attention to the main appeal.
Appellants? Counsel stated that the 1st Respondent had filed a motion for a member of the Tribunal to recuse himself from sitting as such; and that the Appellants had filed a counter-affidavit against the Application. He noted that the said Motion was still pending when the Tribunal dismissed the Petition on 21/6/2019. He stated that the essence of the further affidavit filed in respect of Appellants? motion to relist the Petition was to draw the attention of the Tribunal to the above facts. He submitted that every application pending before a Court or Tribunal must be determined one way or
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another before the Court or Tribunal makes a final decision. It was further submitted that the failure of the Tribunal to consider the further affidavit of the Appellants meant that it failed to properly evaluate all the evidence before it before coming to its decision to dismiss the motion for relistment. It was posited that the failure infringed on Appellants? right to fair hearing, thus occasioning a miscarriage of justice. Counsel lamented that the Tribunal only made a short remark on the further affidavit.
On account of the forgoing, Counsel urged the Court to allow the appeal relying on several cases including ATTORNEY-GENERAL OF THE FEDERATION VS. AJAYI (2000) 12 NWLR (PT. 682) 509 AKPAN VS. BOB (2010) 17 NWLR (PT. 1223) 421 AND WILSON VS. OSHIN (2000) 6 SCNJ 371.
For the 1st Respondent, it was submitted that it was clear that the Tribunal considered the further affidavit of the Appellants but gave no probative value to it before dismissing the application to relist the Petition. It was therefore contended that the alleged breach of Appellants? right to fair hearing did not arise. It was argued that assuming but without conceding
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that the Tribunal did not consider the further affidavit, the Appellants? right to fair hearing was not breached. Counsel for 1st Respondent distinguished the cases cited by Appellants? Counsel from the case in hand. He noted that when Appellants filed their Motion to relist the Petition, they did not make the pendency of the Motion a ground for the setting aside of its Order of dismissal; rather it was only in the further affidavit in support of the motion that the issue of the pendency of the motion was raised. This, it was submitted, was inappropriate as a further affidavit is not a platform to raise new issues.
Continuing, Counsel contended that it does not lie in the mouth of the Appellants to complain about the non-hearing of a motion filed by the 1st Respondent against which they filed a counter-affidavit, and which to all intents and purposes is deemed abandoned.
?
For the 2nd Respondent, it was argued that the Tribunal refused the application on the ground that it was functus officio. Counsel therefore expressed surprise that the Appellants hinged their appeal on alleged non-consideration of their further affidavit. He contended
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that by paragraph 46(3) of the 1st Schedule to the Electoral Act, the Tribunal was right to refuse to sit on appeal over its decision. While admitting that in prescribed situations, the Court can set aside its own decision ex debito justiciae he posited that the circumstances under which the Petition was dismissed gave no discretion for it to be set aside. He noted that there was no ground of appeal challenging the holding of the Tribunal that it was functus officio. He contended that the Tribunal considered the further affidavit.
?
Counsel for the 3rd and 4th Respondents noted that the Tribunal refrained from considering the merit of the motion for the reason that it lacked the jurisdiction to entertain the same. He stated that the decision of the Tribunal declining jurisdiction had not been challenged in this appeal with the effect that they (Appellants) have conceded it. It was his contention that even if the Tribunal had considered the further affidavit, it would not have changed its decision. This he said is because the said further affidavit contains facts which could only be material if and only if the Tribunal had dismissed the motion on the merit.
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He again noted that the 1st Respondent at whose instance the motion was filed and who was represented by Counsel did not refer to the motion. He submitted that the motion was therefore deemed to have been abandoned. Reliance was placed by him on IBATOR VS. BARAKURO (2007) 9 NWLR (PT. 1040) 475. In any event, he further submitted, the motion was considered by the Tribunal.
In his reply, Appellants? Counsel argued that it is not the law that a pending motion which is not referred to by the Applicant is deemed abandoned. He referred to the case of ABIARA VS. RRMCN (2007) ALL FWLR (PT. 391) 1664 in support. He further argued that the fact of the pendency of the motion could in law appropriately be contained in the further affidavit.
RESOLUTION
The fulcrum of the argument of the Appellants is that in dismissing their application to relist the dismissed Petition, the Tribunal did not consider their further affidavit which was meant to bring to its notice the fact that there was a pending motion filed by the 1st Respondent for the recusal of one of the members of the Tribunal. It is the law, as rightly argued by Appellants? Counsel, that
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it is the duty of every Court or Tribunal to hear and determine all applications pending before it before making a final pronouncement by way of delivering judgment. See ATTORNEY ?GENERAL OF THE FEDERATION VS. AJAYI Supra, AKPAN VS. BOB Supra and UPS LTD. VS. UFOT (2005) LPELR ? 7562 (CA).
The question that comes to mind is did the Tribunal fail to consider the further affidavit of the Appellants which was filed on 11/7/2019 before it dismissed the application on 13/7/2019?
The answer to the question is to be found in the record of Appeal at pages 1312 to 1313 Vol.2. The Tribunal in its ruling observed as follows:
“On their part, the Petitioners/Applicants filed a further and better affidavit of 15 paragraphs, annexing motions and ruling of this Tribunal as Exhibits and a reply on law urging this Tribunal to grant the application. We have gone through the respective depositions contained in both the affidavit in support of the application and further affidavit on the one hand, and the counter affidavits of the 1st and 2nd Respondents on the other hand.”
?
In concluding its ruling, the Tribunal at pages 1316 ? 1317 Vol.2
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of the record held thus:
?The further and better affidavit filed by the Applicants? Counsel has not helped the Petitioners/Applicants either. It only exposed the desperation of the Applicants to have their dismissed Petition relisted after realizing the irredeemable consequences of their action.?
There it is in black and white. The Tribunal certainly considered the further affidavit of the Appellants before dismissing the application. Whether or not the Tribunal was right in attaching no probative value to it is a different matter entirely which is not within the scope of this appeal. It is therefore clear that the fulcrum of Appellants? argument has collapsed and the centre of his appeal cannot hold.
?
The Appellants harped on their conception that the motion of the 1st Respondent for recusal of a member of the Tribunal was still pending when the Petition was dismissed. I am afraid that this conception is nothing but a conceptual mirage. The motion, it must be re-emphasized, was filed by the 1st Respondent. Paragraph 47(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) provides that:
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?No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of tribunal or Court.”
All through the pre-hearing session, reference was not made to the said motion and so it did not come up thereat or at any other time. The 1st Respondent who filed it did not bring it up. The pre-hearing session was concluded and a pre-hearing report was issued. The Petition was set down for hearing on 21 and 22 June, 2019. The clear inference is that the motion had been abandoned. In IBATOR VS. BARAKURO (2007) LPELR ? 1384 (SC) PAGE 20 MOHAMMED, JSC (as he then was) in determining if a motion that had not been moved before the appeal was adjourned for judgment was still pending stated that:
Therefore by refusing to say nothing to the Court below on the Appellant?s motion before arguing their appeal, the Appellants are deemed to have abandoned their motion.”
The case of ABIARA VS. RRMCN Supra cited by Appellants? Counsel to contend to the contrary of the above was decided by this Court. I am bound to follow the decision of the Supreme Court.
An abandoned motion cannot serve as a basis for the Appellants to seek to set aside the ruling of the Tribunal. This is the more so as the motion was not filed by them but by the 1st Respondent. They cannot be heard as dubious sympathizers to cry more than the bereaved, viz, the 1st Respondent.
It must be noted that the decision of the Tribunal dismissing the application was on the basis that by Paragraph 46(3) of the 1st Schedule to the Electoral Act 2010 (as amended) it had no jurisdiction to revisit its decision which was final and thus rendered it functus officio. There is no ground of appeal challenging this reasoning of the Tribunal. The law is that a finding of fact or law not appealed against is deemed to have been admitted by the parties and is binding forever on the parties. See ANYANWU VS. OGUNEWE (2014) 8 NWLR (PT. 1410) 437, 470. It follows therefore that even if the Tribunal failed to consider the further affidavit of the Appellants (which is not so) that would not be fatal to the ruling of the Tribunal. This is because having become functus officio the Tribunal had no competence to delve into the substance of the motion including the facts disclosed in the further affidavit.
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In the light of what I have said so far, I enter an affirmative answer to the issue for determination and resolve it against the Appellants.
I come to the conclusion that the appeal is without merit. It fails and I accordingly dismiss the same. I affirm the decision of the Tribunal.
I assess the costs of the appeal at N1,000,000.00 in favour of the 1st and 2nd Respondents against the Appellants.
ADZIRA GANA MSHELIA, J.C.A.: I read before in draft the lead judgment of my learned brother Joseph Eyo Ekanem J.C.A., just delivered. I entirely agree with his reasoning and conclusion arrived thereat that the appeal should dismissed. My learned brother had adequately considered and resolved the Preliminary Objections as well as the issues raised for determination in this appeal. I have nothing more to add but to adopt same as mine. I too dismiss the appeal as lacking in merit.
I abide by the consequential Orders contained in the lead judgment inclusive of costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: The Judgment read by my learned brother Joseph Eyo Ekanem JCA represents the view of
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all members of the Panel. I agree with the well written and articulate judgment.
For emphasis Paragraph 46 of the First Schedule to the Electoral Act
“46(1) When a petition comes up for hearing and neither party appears, the Tribunal or Court shall, unless there are good reasons to the contrary, strike out the petition and no application shall be brought or entertained to relist it ” (Underline mine for emphasis).
“46(2) When a petition comes up for hearing, if the Petitioner appears and the Respondent does not appear, the Petitioner may prove his petition so far as the burden of proof lies upon him and the Tribunal or Court shall enter a final Judgment in the Petition.
46(3) When the petition comes up for hearing, if the respondent appears and the petitioner does not appear, the respondent shall be entitled to final judgment dismissing the petition.
In his Oral adumbration of the arguments in his brief, learned counsel for the Appellants Olusoji Oduntan Esq., harped on the fact that the three sub paragraphs are to be read disjunctively and not conjunctively.
?He contended that as the Petition was dismissed under
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Paragraphs 46(3), that Paragraph 46(1) cannot be relied on to contend that an application to relist cannot be brought.
Learned Counsel is right that the sub paragraphs are to be read disjunctively. Under Paragraph 46(1) where neither party appears when a Petition comes up for hearing, the Tribunal shall unless there are good reasons to the contrary, strike out the petition, and no application shall be brought or entertained to relist it.
It is to be noted that under 46(1) the Petition is struck out, hence the need for emphasis that an application cannot be brought to relist.
Under Paragraph 46(3) where the Respondent appears and the petitioner does not appear, the Respondent shall be entitled to final judgment dismissing the Petition. The use of the phrase “final judgment dismissing the Petition” immediately underscores the point that any grievance can only be ventilated through an appeal to a higher Court and by an application to the Tribunal to relist.
The Learned Judges of the Tribunal were right in their conclusion that they were functus officio and lacked jurisdiction to relist the Petition.
However from the particulars of the Appellants’ sole ground of appeal and sole issue for determination there is no appeal against the finding of
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Tribunal that it was functus officio.
The Appeal is indeed completely devoid of merit.
JAMILU YAMMAMA TUKUR, J.C.A.: My Learned brother Joseph Eyo Ekanem JCA afforded me the opportunity of reading in draft before today the lead Judgment just delivered and I agree with his reasoning and conclusion and join my brother in dismissing the Appeal.
I abide by the consequential orders made inclusive of that as to costs.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Joseph Eyo Ekanem JCA, I agree with his reasoning and conclusions that the separate Preliminary Objections filed by the 1st and 2nd Respondents are unmeritorious and ought to be overruled and the appeal itself is also unmeritorious and liable to be dismissed.
Consequently, I too overrule the Preliminary Objections and dismiss the Appeal.
?I abide by all other consequential orders contained in the lead Judgment including order as to costs.
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Appearances:
Olusoji Oduntan Esq. with him M. O. Mawah Esq.For Appellant(s)
Prof. Taiwo Osipitan (SAN) with him Chief Edwards Ayo ? Odugbesan, Mrs Olayemi Badewole, Niyi Oshinubi Esq. Deji Eniseyin Esq., Ayodeji Alebiosu Esq., Remi Adebayo Esq., Adeyinka Adegbite Esq., Olumuyiwa Olugola Esq. and Miss Blessing Udumah for the 1st Respondent.
A.J. Owonikoko (SAN) and Kehinde Ogunwumiju (SAN) with them Wale Abeeb Ajayi Esq., Gabriel Opayinka Esq., Yetunde Odusote Esq., Tola Akinduro Esq., and Ayo Omotilewa Esq. for the 2nd Respondent.
Adebowale Kamoru Esq. with him Thaddeus Idenyi Esq. for 3rd and 4th Respondents.
For Respondent(s)
Appearances
Olusoji Oduntan Esq. with him M. O. Mawah Esq.For Appellant
AND
Prof. Taiwo Osipitan (SAN) with him Chief Edwards Ayo – Odugbesan, Mrs Olayemi Badewole, Niyi Oshinubi Esq. Deji Eniseyin Esq., Ayodeji Alebiosu Esq., Remi Adebayo Esq., Adeyinka Adegbite Esq., Olumuyiwa Olugola Esq. and Miss Blessing Udumah for the 1st Respondent.
A.J. Owonikoko (SAN) and Kehinde Ogunwumiju (SAN) with them Wale Abeeb Ajayi Esq., Gabriel Opayinka Esq., Yetunde Odusote Esq., Tola Akinduro Esq., and Ayo Omotilewa Esq. for the 2nd Respondent.
Adebowale Kamoru Esq. with him Thaddeus Idenyi Esq. for 3rd and 4th Respondents.For Respondent
