DAME PAULINE K. TALLEN & ORS v. DAVID JONAH JANG & ORS
(2011)LCN/4957(CA)
In The Court of Appeal of Nigeria
On Saturday, the 10th day of December, 2011
CA/J/EP/GOV/238A/2011
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISION OF PARAGRAPH 47 (1) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT 2010 (AS AMENDED) RELATING TO MOTIONS AND APPLICATIONS
For the determination of the 1st issue raised, the provision of paragraph 47 (1) of the 1st Schedule relating to motions and applications is relevant wherein the reproduction states thus: “47(1) 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.” By the use of the phrase “except in extreme circumstances” if presupposes that for any motion to be entertained after the pre-hearing session it must not be ordinary in nature but that which must be exceptional and also extreme. The circumstance must further be such that the leave of the Tribunal or Court ought to first be obtained. This is established by the use of the word “shall” which makes it mandatory and not discretional. The exceptional situational circumstance therefore can only be deduced from the facts deposed to on the affidavit in support. In other words for leave to be granted as sought on the application per relief one of the motion paper of page 2920 of the record, the facts on the affidavit must be exceptional.” PER CLARA BATA OGUNBIYI, J.C.A
LIABILITY OF A PARTY: CONSEQUENCE OF A BADLY CONDUCTED CASE
In matters of this nature, the case of Inakoju v. Adeleke (2009) 4 NWLR (pt. 1025) 423 at 620 is relevant wherein the apex court per Tobi JSC said: “A party who decides to present his case miserly cunningly or by deliberate installments to win in the litigation has himself to blame when the strategy backfire. ” A further related authority is also the case of Enyaduke v. Omehia (2010) 11 NWLR (pt. 1204) 92 at 136 where it was held that: “The principle, mistake of counsel cannot be visited on a litigant, cannot be called in aid to save a badly conducted case.” PER CLARA BATA OGUNBIYI, J.C.A
JURISDICTION: THE IMPORTANCE OF THE QUESTION OF JURISDICTION AND THE EFFECT OF A PROCEEDING CONDUCTED IN THE ABSENCE OF JURISDICTION
…the question of jurisdiction is so fundamental and which cannot be dispensed with or compromised. See the locus classical case of Madukolu v. Nkemdilim (1962) vol -2 NSCC 374 wherein a proceeding no matter how well conducted would be rendered a nullity in the absence of jurisdiction which is the life wire of a proceeding. PER CLARA BATA OGUNBIYI, J.C.A
INTERPRETATION OF STATUTE: INTERPRETATION OF PROVISIONS OF PARAGRAPHS 41(10) AND 45(1) AND (2) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT 2010(AS AMENDED)
The provision of paragraph 41(10) of the 1st Schedule provides thus: “The petitioner in proving his case shall have not more than 14 days to do so and each of the Respondents shall have not more than 10 days to present its defence.” motion were outside the statutory days or period allowed the Petitioners to prove their case. This is obvious and confirmed per the 1st relief on the motion paper which sought the leave that the application be brought outside the pre-hearing session. On the one hand and by the provision of paragraph 41(10) of the 1st schedule, the interpretation is clear and unambiguous to the effect that the petitioners are constrained to conduct their case within but not exceeding 14 days limit. Further still and on the other hand as rightly also submitted by the learned Appellants’ counsel, the provision of Paragraph 45(1) and (2) of the same first schedule to the Act gives the Tribunal the power to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require. The reproduction of paragraph 45(1) is apt wherein it states: “45. (1) The Tribunal or Court shall have power, subject to the provisions of section 134 of this Act and paragraph 11 of this Schedule to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this Schedule.” (Underlining is for emphasis) Note the use of the phrase “except otherwise provided by any other provision of this schedule”. This provides for a caveat militating against the general application of paragraph 45(1)” In other words and in my view, there cannot be any conflict of intention between Paragraphs 41(10) and 45(1) of the Schedule. The exception clause is simply intended to take into consideration the strict provisions of paragraph 41(10) and any other related provision for purpose of upholding the sui generis nature of election matters. By invoking paragraph 45(1) to curtail paragraph 41(10) it would certainly operate to relegate the special nature of election cases. That cannot possibly be the intention of the legislature. Contrary to the submission by the learned Appellants’ counsel, therefore, the Tribunal was not imbued with the powers to entertain the application, especially in view of the constraining provision of paragraph 41(10) of the 1st Schedule which is clear, specific and unambiguous. The provision was aptly and correctly interpreted by the Tribunal and consequent upon which this Court has no reason to interpret otherwise as it is not open to any discretion as wrongly misconceived by the learned senior counsel for the Appellants. PER CLARA BATA OGUNBIYI, J.C.A
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
1. DAME PAULINE K. TALLEN
2. ARC. PAM DUNG GYANG
3. LABOUR PARTY (LP) Appellant(s)
AND
1. DAVID JONAH JANG
2. IGNATIUS LONGJAN
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
CLARA BATA OGUNBIYI, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of the Plateau State Governorship Election Tribunal, sitting in Jos (coram Hon. Justices Joseph Jella, Olayinka D. Afolabi, Benson Ogbu) delivered on the 14th day of October, 2011, wherein the Tribunal dismissed the petitioners’ Motion to reopen the case to enable petitioners tender and have admitted in evidence FORMS EC 8D, EC8E and the INEC Manual for Election officers, which documents, the Petitioners’ Counsel inadvertently omitted to tender during trial.
Being dissatisfied with the said Ruling, the Appellants have appealed against some before this honourable Court.
The petitioners/Appellants filed a petition on 19th May, 2011 before the Governorship Election petition Tribunal Holden of Jos in respect of Governorship election held on the 26th day of April, 2011.
The 1st and 2nd Respondents filed their joint reply to the petition dated 3/6/11 (page 193 of vol.1 of the Record of Appeal). The 3rd Respondent filed its reply to the petition dated 3/6/11 (page 105 of volume 1 of the Record of Appeal) while the 4th Respondent filed its reply dated 16/6/11 (page 1156 of volume 2 of the Record of Appeal).
During the course of hearing, the Appellants and the Respondents in this petition agreed that the certified true copies of the electoral documents obtained during the Tribunal-ordered inspection be tendered from the bar without objection. Among these documents were Forms EC8D, EC8E and the INEC Manual for conduct of election, for the April, 26, 2011 Governorship Election. The Appellants made reference to pages 2309-2310 of volume 4 of the Record of Appeal wherein the counsel to the petitioners at the proceedings of 13/09/11 stated that “On the 19/5/11 this Tribunal granted the petitioners order pursuant to an Ex-parte application. The documents made available to us by INEC for inspection have been certified. We seek to tender them from the bar”, and in response, counsel to the 1st-3rd Respondents stated that ”we have no objection to all the documents”.
The said documents are as contained in the list in the said motion exparte which includes Forms EC8D (summary of results for the State) & EC8E (summary/declaration of results for the candidates).
Form EC8D is the breakdown of the results for the said election on Local Government basis while Form EC8E is the results of the votes scored by each candidate that contested in the said election otherwise known as the Declaration of Result.
In the process of the preparation of the Petitioners’ final written address, the Petitioners’ discovered that there was no Exhibit numbers for the said Forms EC8D, EC8E and the INEC Manual which prompted the discovery that the said Forms were left out when tendering the electoral materials and that this was by inadvertence of counsel.
To ameliorate the situation, Counsel to the Appellants, by a motion dated October 10, 2011 and filed on the same day, applied before the Tribunal for the following prayers:
1. An order of this Honourable Tribunal granting leave to the Petitioners/Applicants to bring this application outside Pre-hearing session.
2. An order of this Honourable Tribunal re-opening the case of the Petitioners/Applicants to enable them fender from the bar as Exhibits in this Petition Forms EC8D for the April 26, 2011 Plateau State
Governorship Election and Form EC8E for the April 26, 2011 Plateau State Governorship Election and the Independent National Electoral Commission Manual for Election Officials 2011.
3. An order admitting Forms EC8D and EC8E and the Independent National Electoral commission Manual for Election official 2011 in evidence in these proceedings upon such tendering from the bar.
4. An order that the said Forms EC8D and EC8E and the Independent National Electoral Commission Manual for Election Officials 2011 be marked as exhibits accordingly in this Proceedings.
The said motion is contained at pages 2920 – 2008 of Vol. 5 of the Record of Appeal.
The Tribunal delivered its ruling on the motion on the 14th day of October, 2011 wherein it dismissed the said application of the Appellants; this is evidenced at (pages 373-3194 of volume 5 of the Record of Appeal).
The Appellants filed a notice of appeal dated 4th day of November, 2011 against the aforesaid ruling (pages 3349-3359, vol. 5 of the Record of Appeal). The notice contained ten grounds of appeal with their particulars.
In accordance with the practice Directions issued by the President of the court of Appeal, briefs were duly exchanged between the Appellant on the one hand and the 1st Respondent on the other. The 4th Respondent did not how ever deem it necessary to file any brief of argument.
On behalf of the Appellants, the learned senior counsel Mr. Kolo Awodein SAN in company of Mr. Pascal Mammo and also other counsel represented them. The, 1st – 3rd Respondents however were represented by prince L.O. Fagbemi SAN appearing with Mr. O.I. Olorundare SAN, his brother silk as well as other counsel. Mr. A.A. Ibrahim appeared in company of L.P. Fombot Esq and represented the 4th Respondent.
At the hearing of the appeal on the 7th December, 2011 the learned senior counsel Prince L.O. Fagbemi representing the 1st 3rd Respondents sought to argue a preliminary objection on the propriety of the notice of appeal which he submitted was incompetent with some having been filed outside the 14 days allowed by Section 24(2) (a) of the Court of Appeal Act.
Furthermore that the record which was transmitted on the 25th November, 2011 was also out of time with the appeal being interlocutory in nature. Learned senior counsel urged on the totality therefore that the notice of appeal be struck out and also the entire appeal. He finally ref erred to paragraph 55 of the 1st Schedule to the Electoral Act. In response to the objection raised, the learned senior counsel Mr. Kola Awodein submitted some as grossly misconceived and which should be out rightly dismissed. That with their notice of appeal having been filed within 21 days of the ruling delivered and sought to appeal, it was filed within time and therefore competent. That it is competent and right under the provisions of paragraph 6 of the Election Tribunal and Court Practice Directions 2011 which was issued under the hand of the President of the Court of Appeal. The learned counsel cited a number of authorities to buttress his submission in particular the case of Awuse v. Odili (2003) 18 NWLR (pt. 851) page 11 wherein their Lordships of the apex Court held that on Appellant in respect of any decision in on election matter whether interlocutory or final can appeal as of right. On the objection relating transmission of records, counsel submitted the responsibility being that of the Secretary to the Tribunal since the Appellants have done all that is required of them to do. That the failure on the part of the Secretary should not be visited on the Appellants. The senior counsel urged that the preliminary objection be dismissed as lacking in merit.
On behalf of the 4th Respondent their counsel Mr. Ibrahim aligned himself entirely with the submission by learned silk representing the 1st – 3rd Respondents. Counsel in the some vein also urged this court to strike out the interlocutory appeal filed by the Appellants. Prince Fagbemi in further reply submit ted the inapplicability of paragraph 6 of the Practice Directions and that section 246 of the Constitution deals with final decision. The learned senior counsel also cited the authority in the case of Audu v. INEC No. 1(2010) 13 NWLR (pt. 1212) 431 at 454 – 455 and submitted finally that while the Appellants right of appeal is not foreclosed, it is however mandatory that the leave must first be sought and obtained. I have critically analysed the submission made by all learned counsel in the preliminary objection raised. In my considered opinion the deductive summary of all the arguments is to the effect that the objection is very much misconceived and does not have any substance, therefore dismiss same as locking in merit.
On the merit of the appeal, the senior counsel representing the Appellants and the 1st – 3rd Respondents did of great extent adumbrated and expatiated on their briefs of arguments which were duly adopted and relied upon. While the Appellants’ brief of argument was dated and filed on 30th November, 2011, that of the 1st – 3rd Respondents was dated and filed on the 5th December, 2011. On the one hand, the learned senior counsel Mr. Awodein while urging that the appeal be allowed, his brother silk Prince Fagbemi representing the 1st-3rd Respondents urged in favour of dismissal of the appeal as lacking in merit.
From the ten grounds of appeal, the learned Appellants’ counsel distilled two issues for determination which said issues were also adopted by the 1st – 3rd Respondents. I shall also adopt the two issues formulated by both parties for the determination of this appeal in pronouncing the judgment pursuant to Section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and will give my reason at a later date. The reproduction of the issues areas follows:
(a) Whether the Tribunal was right when it refused to consider the Appellants/Petitioners’ Prayer for leave to enable the motion to be brought and moved outside the pre-hearing session. (Ground 1 of the Notice of Appeal).
(b) Whether in the circumstances of the case, the Tribunal ought to have granted the Petitioners/Appellants’ Motion dated October 10, 2011 seeking a reopening of the hearing to enable them fender as Exhibits in the Petition Forms EC8D and FC8E and the Independent National Electoral Commission Manual for Election Officials 2011 used for the April 26, 2011 Governorship Election in Plateau State (Grounds 2,3,4,5,6,7,8,9 and 10 of the Notice of Appeal.
On the 1st issue raised, the learned Appellants’ Counsel in their submission alleged the error committed by the Tribunal wherein it failed to discharge the constitutional duty placed on it to determine and Pronounce on
all issues and submissions presented before it. Counsel relied on the case of Saburi Adebayo v. Attorney-General of Ogun State (2008) 7 NWLR (Pt.1085) 201 where the apex Court said:
“It is trite law that when a party submits an issue to a Court for determination, that court must make a pronouncement on the issue except where the issue is subsumed in another issue.”?
That the failure by the court to make a pronouncement amounts to a fundamental error. A further authority in support is also the case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 688 at 726-727.
In respondent to the 1st issue raised, the learned senior counsel Prince L. O. Fagbemi for the 1st-3rd respondents relied on paragraph 47 (1) of the 1st schedule to the electoral Act 2010 (as amended) wherein the provision forbids the moving of any motion outside the pre-hearing session without the leave of the Tribunal except in exceptional circumstances. Learned senior counsel to buttress his submission further also cited the case of Madukolu v. Nkemdilim (1962) Vol. 2 NSCC 374 on the jurisdictional competence of a Court. Counsel therefore submitted that the Appellants’ assertion that the Tribunal failed to consider their prayer for leave to move their motion outside the pre-hearing session is neither supported by facts nor evidence.
For the determination of the 1st issue raised, the provision of paragraph 47 (1) of the 1st Schedule relating to motions and applications is relevant wherein the reproduction states thus:
“47(1) 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.”
By the use of the phrase “except in extreme circumstances” if presupposes that for any motion to be entertained after the pre-hearing session it must not be ordinary in nature but that which must be exceptional and also extreme. The circumstance must further be such that the leave of the Tribunal or Court ought to first be obtained. This is established by the use of the word “shall” which makes it mandatory and not discretional. The exceptional situational circumstance therefore can only be deduced from the facts deposed to on the affidavit in support. In other words for leave to be granted as sought on the application per relief one of the motion paper of page 2920 of the record, the facts on the affidavit must be exceptional.
This will call for a careful examination and perusal of the facts deposed to in support of the application and in particular of paragraphs 1, 3 , 4,5, 6,7 and got pages 2922 – 2023 of the record which reproduction state as follows:
1. I am Assisting Counsel to Messrs Benson Igbanoi and M. U. Ibrahim Esq two of the lead counsel to the Applicants in this matter and that I am familiar with the facts of this case-
2. I have the consent and authority of the Applicants to depose to this affidavit.
3. I know that the Petitioners and the Respondents in this petition mutually agreed that the Petitioners would fender certified true copies of all electoral materials which were made available to the Respondents and certified by INEC, from the bar with the consent of the Parties.
4. Among the documents agreed upon by the parties to be tendered are certified true copies of Forms EC8D, EC8E and the Independent National Electoral commission Manual for Election official 2011 for the April 26, 2011 Governorship Election.
5. That the certification for them had been done as far as 21/7/11.
6. I know that in the process of the Preparation of the Petitioners’ final written address, the Petitioners’
counsel discovered that the said Forms EC8D, EC8E and the independent National Electoral Commission Manual for Election Officials 2011 did not have Exhibit numbers.
7. That upon enquiry as to why there is no Exhibit number for the said documents, it was realized that
same is as a result of the fact that Counsel who appeared for the Petitioners at the hearing inadvertently omitted to tender them alongside the other certified electoral documents on the date all the said documents were tendered.
8. That I know that the omission to fender EC8D and EC8E and the Independent National Electoral Commission Manual for Election Officials 2011 as agreed by the parties was clearly and solely due to inadvertence of the Counsel that appeared for the Petitioners all he time when the other Electoral materials were tendered from the bar with the consent of the parties.”
The question to pose of this juncture is from the collective deductions of the facts contained in the foregoing paragraphs, can it be said conclusively that the exceptional circumstance situation had been met? It is pertinent to restate that the identity of the deponent of Paragraph one of the affidavit is one B.Z. Rimven, who is an assisting counsel to two of the lead counsel to the Applicants. Paragraphs 7 and 8 also clearly deposed that the failure to number the exhibits was as a result of inadvertence on the part of the counsel who appeared for the Petitioners of the hearing and at the time when the other electoral materials were tendered from the bar. For all intent and purpose, with the deponent being a lawyer he is expected to have taken all necessary precautions and ensure that he revealed all information and facts within his knowledge. For instance, he did not deem it pertinent to have revealed the name of the counsel who was responsible for the inadvertence. In effect and by implication it is a fact that the documents subject of application had been available to the Appellants/Applicants all along and the inability to tender them was as a result of the act of the counsel sought to blame. The unknown counsel would have done well by revealing his identity and given his reasons for failure to tender the documents within time. In other words, he could have very well taken care of this by deposing to an affidavit. In matters of this nature, the case of Inakoju v. Adeleke (2009) 4 NWLR (pt. 1025) 423 at 620 is relevant wherein the apex court per Tobi JSC said:
“A party who decides to present his case miserly cunningly or by deliberate installments to win in the litigation has himself to blame when the strategy backfire. ”
A further related authority is also the case of Enyaduke v. Omehia (2010) 11 NWLR (pt. 1204) 92 at 136 where it was held that:
“The principle, mistake of counsel cannot be visited on a litigant, cannot be called in aid to save a badly conducted case.”
It is pertinent to resolve that any action taken in the absence of an exceptional situational circumstance as required by the law, will certainly pose a jurisdictional issue which will render any such exercise as futility amounting to a nullity. This is because the question of jurisdiction is so fundamental and which cannot be dispensed with or compromised. See the locus classical case of Madukolu v. Nkemdilim (1962) vol -2 NSCC 374 wherein a proceeding no matter how well conducted would be rendered a nullity in the absence of jurisdiction which is the life wire of a proceeding. In the light of the foregoing therefore the said 1st issue is therefore resolved against the Appellants.
While submitting on the second issue raised the learned senior counsel in urging the Court to allow the appeal argued in great depth on the following facts which would justify his contention:
(1) That with the documents in issue having been certified, they are therefore admissible from the Bar.
(2) That the documents have been duly pleaded in the petition and relied on by all the Respondents in their various replies to the petition.
(3) That the omission to tender the documents earlier was purely due to inadvertence of counsel.
(4) That the Respondents stood to suffer no harm at all whatsoever if the application is granted.
(5) That although the Tribunal held that granting the application would overreach the 1st to 3rd Respondents, neither the Tribunal nor the 1st to 3rd Respondents gave satisfactory particulars of how the said Respondents would be overreached if the application is granted.
The learned counsel further restated the law as admittedly set out by this Court wherein it can intervene and reverse a discretionary order of the trial Court if the order will result in injustice being done or if the discretion was wrongly exercised in that due weight was not given to relevant considerations. Learned counsel to buttress his submission cited the case of Saffieddine v. Commissioner of Police Western Nigeria (1965)4 NSCC 39 at 41 per Ademola CJN.
The learned senior counsel urged that the issue raised be resolved in favour of the Appellants, allow the appeal and grant the Appellants’ prayers as per their Notice of Appeal.
Issue two questions the refusal of the Tribunal in allowing the petitioners/Appellants to re-open the hearing of the Proceedings for purpose of tendering as exhibits documents which were inadvertently left out by counsel.
At pages 3188- 3189 of the record of appeal, the learned Tribunal in its ruling on the application had this to say:
“The word shall used in paragraph 41(10) of the 1st Schedule as it appertains the Petitioners and the Respondents to our mind is a command or mandation. It does not give room for our exercise of any discretion. It is either the Petitioner or the Respondent presents his case and defence not more than 14 days and 10 days respectively, or they are shut out by the law from presenting their case. Petitioners and Respondents can present their case or defence as the case may be in less than 14 days for the Petitioner and less than 10 days for the Respondents but not more than the limit imposed on them by the law.
We are therefore of the view that we do not have jurisdiction to alter or increase the time limited by paragraph 41(10) of the 1st Schedule to the Electoral Act 2010 (as amended) for either the Petitioners or the Respondents to present their respective cases.”
The provision of paragraph 41(10) of the 1st Schedule provides thus:
“The petitioner in proving his case shall have not more than 14 days to do so and each of the Respondents shall have not more than 10 days to present its defence.”
motion were outside the statutory days or period allowed the Petitioners to prove their case. This is obvious and confirmed per the 1st relief on the motion paper which sought the leave that the application be brought outside the pre-hearing session.
On the one hand and by the provision of paragraph 41(10) of the 1st schedule, the interpretation is clear and unambiguous to the effect that the petitioners are constrained to conduct their case within but not exceeding 14 days limit.
Further still and on the other hand as rightly also submitted by the learned Appellants’ counsel, the provision of Paragraph 45(1) and (2) of the same first schedule to the Act gives the Tribunal the power to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require. The reproduction of paragraph 45(1) is apt wherein it states:
“45. (1) The Tribunal or Court shall have power, subject to the provisions of section 134 of this Act and paragraph 11 of this Schedule to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this Schedule.” (Underlining is for emphasis)
Note the use of the phrase “except otherwise provided by any other provision of this schedule”. This provides for a caveat militating against the general application of paragraph 45(1)” In other words and in my view, there cannot be any conflict of intention between Paragraphs 41(10) and 45(1) of the Schedule. The exception clause is simply intended to take into consideration the strict provisions of paragraph 41(10) and any other related provision for purpose of upholding the sui generis nature of election matters. By invoking paragraph 45(1) to curtail paragraph 41(10) it would certainly operate to relegate the special nature of election cases. That cannot possibly be the intention of the legislature.
Contrary to the submission by the learned Appellants’ counsel, therefore, the Tribunal was not imbued with the powers to entertain the application, especially in view of the constraining provision of paragraph 41(10) of the 1st Schedule which is clear, specific and unambiguous. The provision was aptly and correctly interpreted by the Tribunal and consequent upon which this Court has no reason to interpret otherwise as it is not open to any discretion as wrongly misconceived by the learned senior counsel for the Appellants.
The learned senior counsel further faulted the Tribunal’s stand refusing to be bound by judicial authorities in the cases of Odadhe Olayemi (1973) NSCC 537 and the Court of Appeal decision in Aregbesola v. Oyinlola (2009) 14 NWLR (Pt. 1162) 429. I hasten to odd that the era of the two cases under reference were different from the one of hand. In other words they were decided under different situational circumstances.
Furthermore and unlike the case in issue, the cases under reference had no time limit within which a party can conduct his petition. The documents in the other cases were also not tendered after the parties had closed their respective cases but during the close of the trial by the Petitioners while still conducting their case. To the contrary, and in the case before us, the law had limited the Appellants to a time not more thon 14 days within which to prove their case. The Courts also and as rightly submitted by the learned 1st-3rd Respondents’ counsel had on unlimited time in the former cases within which to write and deliver their judgments. Under the present applicable Act, the Tribunal was mandated to write and deliver its judgment within 180 days from the time of filing the petition. The legislature must certainly have had reason for the change in legislation and it is not open for the Tribunal to have altered the intention of the legislating paragraph 41(10) and its limited nature. The Tribunal therefore rightly held that the voyage of discovery which the Petitioners/Appellants had wanted them embark upon was indeed beyond them and they would not have arrived of the destination. In the absence of jurisdiction, their wading through the waves would end in a circle.
For purpose of recapitulation, the Appellants’ application sought for leave to bring the application outside pre-hearing session. That request would have been appropriate and open to exercise of discretion if and only if it was made within the 14 days allowed them under Paragraph 41(10). The current application which presupposes on extension of the 14 days is clearly outside the Tribunal’s jurisdiction. The nature of jurisdiction which is on operation of the law is substantive and not procedural. It is also significant to state that the extension of the 14 days was not within the Appellants’ prayer as rightly submitted by the learned 1st – 3rd Respondents’ senior counsel. The law is trite wherein the Appellant must restrict itself within the reliefs sought for from the Court. See for instance the case of Sanusi v. Ayoola (1992) 9 NWLR (pt.265) 275 at 300 wherein the apex court unequivocally held as follows:
“In the present case, the normal Statutory period having expired, the Appellant must apply for extension of time within which the application no matter how strong his reasons are for non-appearance on the day the case was heard, resulting in the giving of the default judgment. In the present circumstance, it is the extension of time that would give the trial court jurisdiction to hear and determine the merit of his application”
As rightly submitted by the learned senior counsel Prince Fagbemi, there is no prayer for extension of the 14 days limitation within which to prove the petitioners’ case which had lapsed as of 10th October, 2011 when the motion was filed. The Tribunal I hold, rightly held that it lacked jurisdiction.
Further still and at pages 3192 to 3193 of the record, the learned Tribunal on the overall nature of the application held and said:
“We start by agreeing with learned counsel for the 4th Respondent when he submitted that the non tendering of the forms could be nothing other than an intention to over reach the Respondents. We ourselves are not prepared to agree with the Petitioners/Applicants’ counsel that what happened on that day was a mistake, bye are prepared to call it tardiness. We can see the plight of the Respondents counsel as to how they would be able to meet the case that will be made out from the documents sought to be tendered having already filed their addresses and replies on points of law.
We now agree with learned counsel for the 1st to 3rd Respondents that admitting the said documents would have denied the Respondents the right to comment on the documents by way of either cross examination or otherwise.
We are content to state here that the rule that inadvertence of counsel cannot be visited on the litigants
will not operate where counsel as in the instant case displayed tardiness and incompetence. See EMMANUEL V. GOMEZ (2009) 7 NWLR (Pt. 1139) 1 at 13 A – b; 16 e-f. So a counsel who chooses to act on his own, his advertence or inadvertence is very crucial to the determination of the matter in which he so acts. See GOMEZ (supra). See also INEC v. ACTION CONGRESS (2009) 12 NWLR (Pt.1126) 524 at 595 H, 596 A.”
The conclusion arrived at by the learned Tribunal, I hold, is unassailable and opt. which some cannot be faulted. In the result, and without much ado, the said 2nd issue is also resolved against the Appellants.
On the totality of this appeal I hold that some is devoid of any merit and is accordingly dismissed, I therefore make on order that the ruling of the learned Tribunal delivered on the 14th October, 2011 is hereby affirmed and I make no order as to costs
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have been privileged to have read in advance, the leading judgment of my learned brother, Ogunbiyi, JCA just delivered/pronounced. The said judgment is a clear and manifest demonstration of diligence and industry with painstaking attention being accorded to both issues raised and adopted for resolution in the instant appeal. I agree fully with the reasoning and conclusion reached therein that the appeal is devoid of any merit and the same is hereby dismissed by me. I abide by the consequential orders made therein inclusive of the one on costs.
PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of a pre-study of the detailed and very elucidating and extremely well adumbrated judgment just rendered by my Learned brother. I also participated in the conference that culminated in the said judgment. I agree entirely with the reasoning and conclusions arrived thereat. My Learned brother has, in my humble view, dealt most exhaustively with the facts and the law in the said appeal. I have nothing more to add except to say, like his Lordship, that this appeal is devoid of merit and I dismiss it accordingly.
I too abide by all the consequential orders made in the lead judgment inclusive and in particular, the order affirming the decision of the tribunal.
Appearances
Kola Awodein, SAN with Paschal MammoFor Appellant
AND
L.O. Fagbemi SAN, I.O. Olorundare SAN, S.T. Ologunorisa SAN S.G. Odey Esq, L.E. Anyia Esq, Daniel Gopep Esq. S. Oyawole Esq Benjanin Ishaku Esq, A.T. Balogun (MISS), M. AHUPA (MISS) and A.M. UMAR (MRS) for the 1st 3rd Respondents.
A.A. Ibrahim Esq and L.P. Fom Bot (Mrs) for the 4th RespondentFor Respondent
