DAME PAULINE TALLEN & ORS. V. DAVID JONAH JANG & ORS.
(2011)LCN/4905(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of November, 2011
CA/J/EP/GOV/144B/2011 (REASONS
RATIO
APPEALS FROM THE ELECTION TRIBUNAL: WHETHER AN APPEAL CAN LIE TO THE COURT OF APPEAL IN RESPECT OF AN INTERLOCUTORY DECISION OF THE GOVERNOR’S ELECTION TRIBUNAL
The appropriate and relevant authority is the case of Awuse v. Odili (2003) 18 NWLR (Pt. 851) page 116 which was relied upon by the learned cross Appellants’ counsel wherein the apex Court extensively dealt with right of appeal to this Court in respect of any decisions of the Election Tribunals. At page 164 of the report for instance, Uwaifo JSC made the following pronouncement where he said: “The provisions of Section 246(1)(b)(i) and (ii) of the 1999 Constitution read: “246(1) An appeal to the Court of Appeal shall lie as of right from- (b) decisions of the National Assembly Election Tribunals and Governorship and legislative Houses Election Tribunals on any question as to whether -(i) any Person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution, any person has been validly elected to the office of Governor or Deputy Governor. ” See also section 233(2)(e)(i) and (ii) which makes similar provisions in regard to petition proceedings challenging the election of a person to the office of President or Vice-President. It was under that section that the case of Buhari & Ors. v. Obasanjo & Ors. (supra) was decided. The definition of “decision” in section 318(1) of the 1999 Constitution gives a wide implication to any ‘determination’ by a Court. This obviously includes any interlocutory decision. It follows that the Court of Appeal has jurisdiction to entertain an appeal from interlocutory decisions of the Election Tribunals set up under section 246 of the 1999 Constitution. ” Also at page 169-170 para C-A Ejiwunmi JSC further stated categorically thus: “Bearing in mind the argument of the 1st Respondent that the jurisdiction of the Court of Appeal is limited only to hearing appeal from the decision of the Governorship Election Tribunals, as to whether any person has been validly elected to the office of Governor of Deputy Governor, it is pertinent in the con of this question to look more carefully at the wording of section 246(1) which when read together is as follows: “An appeal to the Court of Appeal shall lie as of right from the decision of the Governorship Election Tribunal on any question as to whether any person has been validly elected to the office of Governor” Though the words “any” when used as an adjective is defined in Longman Dictionary of the English Language thus: ‘one of some indiscriminately, whichever is chosen. “It would appear that the word “any” qualifying “question” was deliberately used by the lawmakers to indicate that an appeal to the Court of Appeal was not limited only to hearing appeal only to whether ay person has been validly elected to the office of Governor (Italics mine). It follows therefore that the provisions of section 246(1) allow appeals to lie to the Court of Appeal in respect of interlocutory decisions of the Governorship Election Tribunals and the other tribunals named in that section of the Constitution. Be that as it may, the provision of section 318(1) of the 1999 Constitution leaves no doubt as to the meaning of decision. It reads: “decision” means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence. And upon that premise an appeal surely lies to the Court of Appeal in respect of the interlocutory decision of the Governor’s Election Tribunal sitting n Port Harcourt…” PER CLARA BATA OGUNBIYI, J.C.A
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 53(2) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT WITH RESPECT TO WAIVER OF RIGHT TO SET ASIDE AN ELECTION PETITION OR A PROCEEDING RESULTING THEREFROM ON GROUND OF EITHER “IRREGULARITY” OR “NULLITY”
As rightly submitted and argued by the learned senior Counsel for the cross Appellants the Tribunal in the circumstance of the background history of this case comparatively was obliged to apply the provision of paragraph 53(2) of the 1st schedule to the Act as against the leaning towards paragraph 18(1) of the schedule. This I hold because the issue in question squarely fits into the purview of paragraph 53(2) of the 1st schedule wherein the following deductions are clear cut: (1) That the cross Respondents as applicants had failed to make their application to dismiss within a reasonable time; (2) That the said applicants have also taken fresh steps in the proceedings after their knowledge of the defect. Based on the steps taken by the cross Respondents, they have therefore waived their right as provided by the law. The case of Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 342 is an authority which has given an explicit and clear understanding to the purport of paragraph 53(2) of the 1st schedule to the Electoral Act. In other words and as rightly submitted by the learned senior Counsel Mr. Awodein for the Cross-Appellants, the right to set aside an election petition or a proceeding resulting therefrom on ground of either “irregularity” or “nullity” can be waived in the appropriate circumstances. The Tribunal in the circumstance at hand therefore had failed to give proper effect to the statutory provision which precluded an applicant from bringing an application to dismiss the petition where the defect complained of is either on irregularity or nullity. Paragraph 53(2) of the 1st schedule to the Electoral Act, 2010 is in pari materia with the previous paragraph 49(2) of the Electoral Act 2006 which is the thrust of the decision in Agagu v. Mimiko (supra). In that case, Abdullahi (PCA) at page 390 had this to say: “The jurisdiction of the tribunal is confined, limited and restricted by the provisions of paragraph 49(2) and (5) of the first schedule to the Electoral Act 2006. A preliminary objection cannot be taken in a civil case, where the defendant has waived or acquiesced to any irregularity or informality or alleged incompetence.” It is significant to note that the use of the word nullity in the provision of paragraph 53(2) of the 1st schedule is absent in the 2006 Act. Without a challenge to a jurisdiction there cannot be a question of a proceeding resulting into a likelihood of a nullity. It is trite law from long line of authorities that without jurisdiction the Court acts in futility in that proceeding, no matter how well conducted, amounts to a nullity. Having regard to the general provision relating the jurisdictional question of a Court which is watertight, in contrast to paragraph 53(2) of 1st schedule, it would appear that the later cannot come within the interpretation of the former, but it rather belongs to a distinct and extant classification. In other words the two cannot apply for the same purpose and be used inter-changeably. This was the error fallen into by the learned Tribunal who did not distinguish between substantive and procedural jurisdiction. While the provision of paragraph 53(2) of the 1st schedule to the Act is peculiar to the Electoral Act and therefore falls within the procedural jurisdiction, that of the general case law is within substantive jurisdiction and which can by no means be waived or compromised. It is in otherwise akin to the principle of strict stability. The point has been well expounded by his Lordship Obadina JCA in the case of Effiong v. Ikepeme (1999) 6 NWLR (Pt. 606) 260 at page 273 wherein he said: “However, it is clear from a long line of authorities that the principle of waiver or acquiescence does not apply where there has been a fundamental failure to comply with the requirement of a statute as such is not a mere irregularity by a fundamental vice… A close look at paragraph 54(2) of schedule 5 to the Decree seems to be talking, not only of irregularity but also of a fundamental vice that renders a proceeding nullity. It says: “an application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect: The draftsman of paragraph 50(2) of schedule 5 to the decree knows what he is saying. He knows the principle of waiver or acquiescence does not apply to non-compliance with the requirement of a statute. He knows non-compliance with the provisions of a statute is a fundamental vice that renders the proceedings a nullity. He specifically makes paragraph 50(2) to apply and to cover non-compliance that renders a proceeding a nullity ….Paragraph 50(2) of schedule 5 to Decree No. 36 of 1998 has now extended the principle to cases where there has been a fundamental failure to comply with requirement of statute which otherwise could have rendered the proceedings a nullity – in election petitions.” It is obvious from the foregoing authority that the intention of the draftsman is very clear wherein “the principle of waiver of acquiescence does not apply to non-compliance with the requirement of a statute.” It is the non compliance with the provisions of a statute that renders a proceeding a nullity because it is a fundamental vice and not a mere irregularity. It is by extension therefore that paragraph 50(2) of schedule 5 to Decree No. 36 of 1998 now covers proceedings in election petitions which could have been rendered a nullity. Paragraph 50(2) is in pari material with paragraph 53(2) of the 1st schedule to the Electoral Act 2010 as amended. By implication therefore, and applying the analogy of the case of Effiong v. Ikpeme (supra), I hasten to agree with the submission by the learned senior Counsel Mr. Awodein that the reasons for introducing paragraph 53(2) is not farfetched, but rather to render curable on issue of jurisdiction which would ordinarily render an election petition or proceedings resulting there from a nullity. A question of jurisdictional issue can therefore be waived under paragraph 53(2) of the 1st schedule to the Act if not raised within a reasonable time and when the party making the application has taken any fresh step in the proceedings after knowledge of the defect. The Black’s Law Dictionary Eight Edition at page 1241 has defined procedural law as: “The rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.” The provision of Section 145(1) of the Electoral Act has also given a further insight and buttress the definition and extent of the purport of the concept of the phrase procedural law as defined by the Black’s Law Dictionary (supra). The subsection provides that: “The rules of procedure to be adopted for election petitions and appeals arising therefrom shall be set out in the first schedule to this Act.” The effective deductive component of the above is tantamount to the conclusion that any jurisdictional issue arising from non-compliance with the provisions of the 1st schedule to the Act simply amounts to procedural jurisdictional issue. PER CLARA BATA OGUNBIYI, J.C.A
JURISDICTION: DISTINCTION BETWEEN JURISDICTION AS A MATTER OF PROCEDURAL LAW AND JURISDICTION AS A MATTER OF SUBSTANTIVE LAW
For a clear distinctive difference between jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law the apex Court’s decision in the case of Ndayako v. Dantoro (2004) 13 NWLR (Pt.889) 187 at 219 per Edozie JSC is apt and decisive wherein the learned jurist said: “It is noteworthy that a distinction must be drawn between two types of jurisdictions viz – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law while a litigant can waive the former, no litigant can confer jurisdiction in the Court where the constitution or a statute or any provision of the common law says that the Court shall have no jurisdiction. A litigant can submit to procedural jurisdiction of the Court e.g. where a writ has been served outside jurisdiction without leave.” PER CLARA BATA OGUNBIYI, J.C.A
JUDICIAL DISCRETION: HOW THE COURT IS TO EXERCISE ITS DISCRETIONARY EXERCISE
The case of ANPP v. R.E.C (2008) 8 NWLR (Pt. 1090) 453 at 512 is in point wherein this Court said: “It is an established cardinal principle of law that the very essence of the proper exercise of judicial discretion is deeply rooted in the belief that if be exercised in accordance with well laid down rules of law, practice, reason, fairness and justice, and not in accordance with whimsical opinion, humor or sentimental disposition.’ The apex Court in the case of Eronini v. Ihueko (1989) 2 NWLR (Pt. 101) 46 at 60-61 per Obaseki JSC in stating the meaning of the expression “Judicial and Judicious” said thus: “Judicial Exercise has been defined in Vol. 3 Stroud’s Judicial Dictionary 4th Edition p.1449 thus: “If an arbitrator has a discretion as to costs which must be judicially exercised he must not act capriciously and must, if he is going to exercise his discretion, show a reason connected with the case and one which the Court can see is a proper reason.. Judicious means (1) proceeding from or showing sound judgment; (2) having or exercising sound judgment; (3) marked by judgment, wisdom and good sense. There is thus great emphasis on sound judgment based on proper reasons connected with the case in the judicial exercise of discretion.” PER CLARA BATA OGUNBIYI, J.C.A
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. DAME PAULINE 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 a cross-appeal against the Ruling of the Plateau State Governorship Election Tribunal, sitting in Jos (Coram Hon. Justices Joseph Jella, Olayinka D. Afolabi, Benson Ogbu) made on the 25th day of July 2011 wherein the learned Justices dismissed the 1st – 3rd Respondents’ motion on notice dated 14th July, 2011 which sought to set aside the order of the Tribunal made on 5th July, 2011 as well as to dismiss the petition as abandoned.
The background facts emanating from this appeal is apt and would be succinctly stated as follows:
The Cross-Appellants/Petitioners filed this Petition to challenge the declaration of the 1st and 2nd Respondents as winners of the April 26, 2011 gubernatorial election held in Plateau State by the 4th Respondent. The Respondents filed their response to the Petition.
The 3rd Respondent’s Reply to the Petition was served on the Petitioners’ Counsel, Paschal N. Mammo Esq., on 6/6/2011 while that of the 1st and 2nd Respondents was served on the same Petitioners’ Counsel on 10/6/2011.
The Petitioners however filed their reply to the 1st and 2nd Respondents’ reply as well as 3rd Respondent’s reply on 10/6/2011. The process was served on all Respondents on 10/6/2011 except the 3rd Respondent who was served through its Counsel on 13/6/2011.
On 15/6/2011 the Petitioners’ Counsel filed a motion ex parte dated 14/6/2011 praying this Honourable Tribunal for, inter-alia, an Order directing the issuance of pre-hearing conference notice on all the parties in this petition.
On 20/6/2011 the 4th Respondent filed a motion on notice dated 18/6/2011 in which it sought an order of the Tribunal enlarging the time within which the 4th Respondent may file and serve its reply to the petition as well as an order deeming the reply filed and served as having been properly filed and served.
On 22/6/2011, the 4th Respondent’s motion for enlargement of time was moved and granted. Hence, the Tribunal made an order deeming the 4th Respondent’s reply filed and served as having been properly filed and served with effect from that date.
In the circumstance that the 4th Respondent was out of time in filing its reply, the time to file the petitioners’ reply to the 4th Respondent’s reply began to run from the day the order of the Tribunal was made enlarging the time for the filing and service of the 4th Respondent’s reply.
Based on the preceding, the Petitioners filed and served their reply to the 4th Respondent’s reply on all the Respondents on 25/6/2011.
On 1/7/2011, the Petitioner filed a motion ex parte dated 1/7/2011 seeking from the Honourable Tribunal, inter-alia, to direct the issuance of pre-hearing notice on all parties in the petition. (Page 1574 of the Record of Appeal)
On 5/7/2011, the Cross-Appellants/Petitioners application for issuance of pre-hearing notice was heard and granted by the Tribunal which made the order directing the issuance and service of pre-hearing conference notice on the parties in the case and thus set down the matter for pre-hearing session.
On 14/7/2011 the 1st – 3rd Respondents filed a motion on notice seeking, inter alia, an order setting aside the order of 5th July, 2011 for issuance of the Pre-Hearing Notice and dismissing the Petition as abandoned petition. (Page 1584 of the Record of Appeal)
The Cross- Appellants/Petitioners filed a counter-affidavit and written address in opposition dated 21st July, 2011 against the said motion. (Page 1681 of the Record of Appeal). The Tribunal, after hearing the said motion on notice, delivered its considered ruling on 25/7/2011 where it dismissed the motion. (Page 1850 of the Record of Appeal).
Although the tribunal by its ruling at page 1881 of the record, finally dismissed the 1st – 3rd Respondents’ application, it however made the following findings in the course of its deliberations:
a. that the 1st – 3rd Respondents were granted extension of time to apply to set aside the order of the Tribunal for issuance of pre-hearing notice.
b. that waiver is not applicable to jurisdictional issue
c. that the 1st – 3rd Respondents had not taken any fresh steps in the proceedings, inspite of having had knowledge of the defect complained of, the petition having not proceeded to hearing stage.
Pages 1861, 1870, 1877 and 1878 are explicit and evidencing the pronouncements. The Cross-Appellants/Petitioners therefore being dissatisfied with the part of the decision of the Honourable Tribunal referred to in (a – c) above, resulted in filing this cross-appeal.
The notice of the cross-appeal was filed on the 2nd August, 2011 and could be found at pages 2305 – 2311 of the record of appeal and containing three grounds of appeal which same reproduced without their particular are as follows:
“Ground 1: Error of Law
“The Tribunal erred in Law when it held as follows”
“The question to ask is whether waiver is applicable to jurisdiction issue. Adekeye JCA (as she then was) relying on a long line of cases in BAJOGA V. GOVT FEDERAL REPUBLIC OF NIG. (2008) 1 NWLR (PT. 1067) 85 at 125 B – G held:
“Generally, where a respondent has belatedly objected to any proceedings after taking fresh steps in the proceedings, the respondent is deemed to have waived his right to complain and consequently stopped from raising such objections. However, this general rule does not apply to a preliminary objection challenging the jurisdiction of a court in respect of a matter because jurisdiction is very fundamental, and any preliminary objection on the issue of jurisdiction can be raised at any time by an aggrieved party not only at the trial court but at the appellate courts. It can also be raised by the court suo motu. Thus, where an objection relates to issue of jurisdiction, the question of whether or not the respondents have taken any fresh steps in the proceedings after becoming aware of the defect is of no moment…”
The above knocks the bottom out of the reliance of Petitioners/Respondents on waiver.”
Ground 2: Error of Law
The Tribunal erred in Law when it held that the petition having not proceeded to hearing stage, the 1st to 3rd Respondents have not taken fresh steps within the intendment of the provisions of paragraph 53(2) of the 1st schedule to the Electoral Act.
Ground 3: Error of Law
The Honourable Tribunal erred in Law when having found that the reason given by the Applicants for bringing the application late was incredible, still went ahead to grant an extension of time based on other factors, such as, that a jurisdictional matter was raised.”
In accordance with the Practice Directions, Counsel for both parties filed and served their respective briefs of arguments.
The cross Appellants’ brief was dated and filed on the 17th August, 2011. In addition a further cross Appellants’ reply brief dated 26th August, 2011 was also filed the some day while the 1st – 3rd Respondents’ brief was dated 19th August but filed on the 22nd August 2011: there was no brief filed on behalf of the 4th Respondent who did not deem it necessary to do so.
On the 21st September, 2011, at the hearing of the appeal both learned senior Counsel Messrs Kola Awodein and O.I. Olorundare led a number of Counsel and adopted their briefs and were also allowed time to highlight salient points therein.
From the three grounds of appeal, the cross Appellants formulated three issues as follows:
“1. Whether the Tribunal was right in granting extension of time for the 1st – 3rd Respondents to apply to discharge or set aside the order made ex parte on 5th July, 2011. (Ground 3 of the Notice of Appeal)
2. Whether on the proper construction of paragraph 53(2) of the 1st schedule to the Electoral Act, 2010 (As Amended) and in the circumstances the Tribunal had jurisdiction to entertain the 1st – 3rd Respondents’ motion dated 14th July, 2011 (Ground 2 of the Notice of Appeal).
3. Whether the Tribunal was right in holding that in the circumstances the 1st-3rd Respondents had not waived their right to bring the application dated 14th July, 2011 Ground 1 of the Notice of Appeal). ”
The 1st – 3rd Respondents in their brief of arguments raised a notice of preliminary objection and proffered arguments in respect of same at pages 4 – 6 of their brief. The objection questions the competence of grounds 1 and 3 of the cross Appellants’ grounds of appeal and the issues distilled there from which Counsel submitted are incompetent and should therefore be struck out. Grounds 1 and 3 of the said notice of cross appeal without its particulars have been reproduced earlier in the course of this judgment. Counsel submitted vehemently that with the said grounds being mixed law and facts, especially where the challenge is made as to the improper exercise of discretion, that without obtaining the leave of either the lower Court or this Court before filing the grounds same Counsel submitted cannot be competent. That no right of appeal can avail a party to a dispute in situations envisaged by Section 242(1) of the 1999 Constitution in the absence of 1st obtaining the leave of Court. As a consequence, those grounds 1 and 3 of the notice of cross appeal as well as the issues predicated thereon are therefore incompetent and should be struck out.
In response to the preliminary objection, the 1st – 3rd cross Respondents’ reply brief under reference is very brief and apt to the point. In other words it is submitted that the grounds of objection cannot be sustained as the law is well settled that appeals lie as of right in respect of any decision of the Electoral Tribunal. A number of authorities have been cited in support of the contention and this Court is urged to discountenance the objection raised in that behalf.
The objection at hand is raised in an election matter which is governed by specific and special set of enacted legislation thus making it sui generis in nature. Whether or not the preliminary objection should succeed, recourse must be had to decided authorities applicable and appropriate in the given situation. For purpose of sustaining the objection raised the authority of CBN v. Okojie (2002) 8 NWLR (Pt. 768) 48 was relied upon by the 1st – 3rd Respondents’ Counsel. At page 62 of the report, the apex Court held and said:
“When a challenge is made as to the improper exercise of discretion, it will necessarily involves facts and circumstance, and it usually at best, a question of mixed law and fact. In the instant, by virtue of Section 233(3) of the 1999 Constitution leave must be obtained in order to appeal from a decision of the Court of Appeal given in the exercise of its discretion. As the leave was not so obtained the notice of appeal filed is incompetent”.
The learned senior Counsel, with all respect related to the general principle of law governing situational appeals of mixed law and facts as per the decision in the authority (supra). The said submission I hold is certainly in proper perspective having regard to Section 233(3) of the 1999 Constitution, under reference.
A further related question is whether the provision also governs the situational circumstance at hand which is an election appeal being of a special specie and governed by different set of rules away from the ordinary which is general in nature? As rightly submitted and argued by the learned senior Counsel for the cross Appellants, the case under reference is totally inapplicable to the one at hand which is an election matter. The apex Court in the former was construing the provision of Section 233(3) of the 1999 Constitution. The appropriate and relevant authority is the case of Awuse v. Odili (2003) 18 NWLR (Pt. 851) page 116 which was relied upon by the learned cross Appellants’ counsel wherein the apex Court extensively dealt with right of appeal to this Court in respect of any decisions of the Election Tribunals. At page 164 of the report for instance, Uwaifo JSC made the following pronouncement where he said:
“The provisions of Section 246(1)(b)(i) and (ii) of the 1999 Constitution read: “246(1) An appeal to the
Court of Appeal shall lie as of right from- (b) decisions of the National Assembly Election Tribunals and
Governorship and legislative Houses Election Tribunals on any question as to whether -(i) any Person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution, any person has been validly elected to the office of Governor or Deputy Governor. ” See also section 233(2)(e)(i) and (ii) which makes similar provisions in regard to petition proceedings challenging the election of a person to the office of President or Vice-President. It was under that section that the case of Buhari & Ors. v. Obasanjo & Ors. (supra) was decided. The definition of “decision” in section 318(1) of the 1999 Constitution gives a wide implication to any ‘determination’ by a Court. This obviously includes any interlocutory decision. It follows that the Court of Appeal has jurisdiction to entertain an appeal from interlocutory decisions of the Election Tribunals set up under section 246 of the 1999 Constitution. ”
Also at page 169-170 para C-A Ejiwunmi JSC further stated categorically thus:
“Bearing in mind the argument of the 1st Respondent that the jurisdiction of the Court of Appeal is limited only to hearing appeal from the decision of the Governorship Election Tribunals, as to whether any person has been validly elected to the office of Governor of Deputy Governor, it is pertinent in the con of this question to look more carefully at the wording of section 246(1) which when read together is as follows:
“An appeal to the Court of Appeal shall lie as of right from the decision of the Governorship Election Tribunal on any question as to whether any person has been validly elected to the office of Governor”
Though the words “any” when used as an adjective is defined in Longman Dictionary of the English Language thus: ‘one of some indiscriminately, whichever is chosen. “It would appear that the word “any” qualifying “question” was deliberately used by the lawmakers to indicate that an appeal to the Court of Appeal was not limited only to hearing appeal only to whether ay person has been validly elected to the office of Governor (Italics mine). It follows therefore that the provisions of section 246(1) allow appeals to lie to the Court of Appeal in respect of interlocutory decisions of the Governorship Election Tribunals and the other tribunals named in that section of the Constitution. Be that as it may, the provision of section 318(1) of the 1999 Constitution leaves no doubt as to the meaning of decision. It reads:
“decision” means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence.
And upon that premise an appeal surely lies to the Court of Appeal in respect of the interlocutory decision of the Governor’s Election Tribunal sitting n Port Harcourt…”
In the result and without having to belabour the point, it is obvious in the light of the pronouncements by their Lordships of the apex Court (supra), that the preliminary objection raised has no substance but is grossly misconceived. It is accordingly overruled while the cross Appellants’ grounds 1 and 3 of the grounds of appeal are very competent.
On behalf of the 1st – 3rd cross Respondents, two issues were distilled from the three grounds of appeal and are as follows:
“1. Was the lower tribunal wrong when it held that waiver does not apply to jurisdictional issue particularly as the petition has not proceeded to hearing? Grounds 1 and 2.
2. Was the lower tribunal wrong when it extended time for the 1st to 3rd Respondents to apply to set aside the order of the tribunal directing the Secretary of the Tribunal to issue a pre-hearing sheet? Ground 3.”
For the determination of this appeal I shall adopt the two issues formulated by the cross Respondents which are all inclusive and incorporating those of the cross Appellants.
Submitting on the 1st issue raised wherein it hinges on concept of waiver, the cross Appellants are squarely anchored on the provision of paragraph 53(2) of the 1st schedule to the Electoral Act 2010 and argued that the 1st – 3rd Respondents having failed to bring their application timeously and having taken fresh steps in the petition by filing answers in accordance with Form TF 008 and further participated in prehearing session, they have waived their right to apply for the dismissal of the petition. Counsel cited in support the authority in the case of Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 342. That the law is clear on the difference between jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. The case in point was Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 219. Counsel further submitted the admitted facts that the 1st – 3rd Respondents failed to bring the application within a reasonable time and had taken fresh steps in the proceedings after knowledge of the defect complained of.
The learned Counsel while reproducing the reasons submitting the failure in bringing the application within a reasonable time garnered absence of countering the facts by the 1st – 3rd cross Respondents. That on the authority of Okongwu v. N.N.P.C (1989) 4 NWLR (Pt. 115) 296 at 309, the apex Court held that such facts not countered are deemed to have been conceded to.
On the totality of the submission, on this issue, the learned senior Counsel emphasized the error by the tribunal which ought to have dismissed the motion on notice of 14th July, 2011 on the ground that the 1st – 3rd Respondents have waived their right to bring the said application. In other words, that the tribunal ought to have held that the 1st – 3rd Respondents were barred and/or stopped from filing the application and should have dismissed same in that regard and score. The senior Counsel urged that the said issue should therefore be resolved in favour of the cross Appellants.
In response, the learned senior Counsel on behalf of the cross Respondents submitted that the case of Agagu v. Mimiko cited by cross Appellants and the arguments thereon are totally irrelevant to the facts and circumstances of this case. Also not applicable and relevant counsel poised are the cases of Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319 and A.G. Kano State v. A.G. Federation (2007) 6 NWLR (Pt. 1029) 164 and Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) 260 cited by the cross Appellants.
In further arguments the senior counsel restated that the jurisdictional issue raised by the provision of paragraph 18 of the 1st schedule to the Electoral Act is not procedural but substantive contrary to the submission of the cross Appellants. That this argument must therefore collapse having regard to the fact that the jurisdiction issue under consideration is not such that can be waived by any of the parties, and not even the Court. That the issue ought to be resolved in favour of the 1st to 3rd cross Respondents and that the cross appeal be dismissed accordingly.
The said issue questions the propriety or not of the learned Tribunal in holding that waiver did not apply to jurisdictional issue raised particularly where the petition had not proceeded to hearing.
At pages 1553 – 1604 of the record of appeal the 1st – 3rd cross-Respondents herein as Applicants sought the following reliefs from the Honourable Tribunal:
“(1) AN ORDER of this Honourable Tribunal granting the Respondents/Applicants leave to bring this application outside of the Pre-Hearing Session.
(2) AN ORDER of this Honourable Tribunal extending the time within which the Respondents/Applicants my apply for an order discharging or setting aside the order of this Honourable Tribunal made on the 5th day of July, 2011 directing the Secretary of this Honourable Tribunal to issue to the parties or their legal practitioners a pre-hearing conference notice accompanied by a pre-hearing information sheet in accordance with 18(2) of the First Schedule.
(3) AN ORDER discharging or setting aside the Order of this Honourable Tribunal directing the Secretary of this Honourable Tribunal to issue to the parties or their legal practitioners a pre-hearing conference notice accompanied by a pre-hearing information sheet in accordance with paragraph 18(2) of the First Schedule.
4. AN ORDER dismissing this Petition as abandoned.
AND for such further Order or orders as this Honourable Tribunal may deem fit to make in the circumstance.”
At pages 1846 – 1848 of the record of appeal the learned Tribunal in its considered ruling delivered on the 25th July, 2011 dismissed the 1st – 3rd Respondents prayer seeking to discharge or set aside its order directing the Secretary of the Honourable Tribunal to issue to the parties or their legal practitioners a pre-hearing conference notice accompanied by a pre-hearing information sheet in accordance with paragraph 18(2) of the first schedule. The Honourable Tribunal also dismissed the 1st – 3rd Respondents prayer or relief for the dismissal of the petition as abandoned.
The grouse of the 1st – 3rd cross Respondents as could be gleaned from their application is that the cross Appellants as Petitioners did not comply with paragraph 18(1) of the 1st schedule to the Electoral Act, 2010 and hence that the petition should be dismissed with some having been abandoned. Relevant and applicable for aiding the determination of this issue is the provision of paragraph 53(2) of the 1st schedule which dealt with non-compliance with the Rules: specifically, subparagraph 2 had this to say:
‘(2) An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect. ”
While the learned cross Appellants’ senior Counsel submitted the subparagraph being an ouster of jurisdiction clause once the conditions are met, it is submitted on behalf of the 1st – 3rd cross Respondents that paragraph 18(4) of the 1st schedule to the Electoral Act is mandatory and that the issue of waiver will not therefore be applicable to that subparagraph. In other words, while the cross Appellants consider the concept of jurisdiction in issue being procedural in nature, the cross Respondents contend same as substantive and which is in-alienable and therefore cannot be compromised. It is trite from plethora of authorities that while substantive jurisdiction of the Court cannot be waived, the corollary however also holds that a party by his conduct can waive a matter relating to the procedural jurisdiction of the Court.
It may be of assistance in this matter to briefly go down the memory lane for purpose of bringing to bear the state of events as this will assist in serving as a guideline. The state of events have been well spelt out by the learned counsel for the cross Appellants. In other words, it is not in dispute as could be gleaned from the record of appeal that the 1st – 3rd Respondents filed their application to discharge the order of the Tribunal made 5th July, 2011 for issuance of the hearing notice and to dismiss the petition as abandoned only after 28 days after the order was made.
It is also not in controversy or an issue that as of the date of filing the application dated the 14th July, 2011 the cross Respondents had filed answers to the pre-hearing notice as a result of the application on the 5th July, 2011. It is also well on record that they did not participate in the pre-hearing session of the 13th July, 2011.
The learned cross Respondents’ counsel in submission cited the authority in the case of Ilobi v. Uzoegwu (2004) 19 WRN 93 wherein this Court at page 105 per Ogunbiyi (JCA) said:
“Further still, I wish to restate that the use of the word “shall” presuppose that a petitioner must comply with the express provision in point and which cannot be compromised. The failure in the matter in issue is fundamental being a condition precedent. In other words, that issue of the incompetent nature of the petition goes to the jurisdiction of the Tribunal to entertain the suit.”
Also in the case of Bamaiyi v. Attorney-General Federation, the apex Court per Karibi-Whyte JSC said:-
“where a provision provides that a thing shall be done, the natural meaning is that a preemptory mandate is enjoined. ”
The poser question is whether the situation under consideration can be equated to the authorities under reference (supra) and which does not allow a leeway as it is provided by the paragraph 18(1) of the 1st schedule which in effect is sacrosanct and thus cannot be waived. The sacred nature of paragraph 18(1) is well founded in sub-paragraph (4) where the dismissal of an abandoned petition cannot by any means or form of application be restored. The Tribunal by exercising its powers under paragraph 18(4) of the 1st schedule automatically becomes functus officio of the proceeding.
As rightly submitted and argued by the learned senior Counsel for the cross Appellants the Tribunal in the circumstance of the background history of this case comparatively was obliged to apply the provision of paragraph 53(2) of the 1st schedule to the Act as against the leaning towards paragraph 18(1) of the schedule. This I hold because the issue in question squarely fits into the purview of paragraph 53(2) of the 1st schedule wherein the following deductions are clear cut:
(1) That the cross Respondents as applicants had failed to make their application to dismiss within a reasonable time;
(2) That the said applicants have also taken fresh steps in the proceedings after their knowledge of the defect.
Based on the steps taken by the cross Respondents, they have therefore waived their right as provided by the law.
The case of Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 342 is an authority which has given an explicit and clear understanding to the purport of paragraph 53(2) of the 1st schedule to the Electoral Act. In other words and as rightly submitted by the learned senior Counsel Mr. Awodein for the Cross-Appellants, the right to set aside an election petition or a proceeding resulting therefrom on ground of either “irregularity” or “nullity” can be waived in the appropriate circumstances. The Tribunal in the circumstance at hand therefore had failed to give proper effect to the statutory provision which precluded an applicant from bringing an application to dismiss the petition where the defect complained of is either on irregularity or nullity. Paragraph 53(2) of the 1st schedule to the Electoral Act, 2010 is in pari materia with the previous paragraph 49(2) of the Electoral Act 2006 which is the thrust of the decision in Agagu v. Mimiko (supra). In that case, Abdullahi (PCA) at page 390 had this to say:
“The jurisdiction of the tribunal is confined, limited and restricted by the provisions of paragraph 49(2) and (5) of the first schedule to the Electoral Act 2006. A preliminary objection cannot be taken in a civil case, where the defendant has waived or acquiesced to any irregularity or informality or alleged incompetence.”
It is significant to note that the use of the word nullity in the provision of paragraph 53(2) of the 1st schedule is absent in the 2006 Act. Without a challenge to a jurisdiction there cannot be a question of a proceeding resulting into a likelihood of a nullity. It is trite law from long line of authorities that without jurisdiction the Court acts in futility in that proceeding, no matter how well conducted, amounts to a nullity.
Having regard to the general provision relating the jurisdictional question of a Court which is watertight, in contrast to paragraph 53(2) of 1st schedule, it would appear that the later cannot come within the interpretation of the former, but it rather belongs to a distinct and extant classification. In other words the two cannot apply for the same purpose and be used inter-changeably. This was the error fallen into by the learned Tribunal who did not distinguish between substantive and procedural jurisdiction. While the provision of paragraph 53(2) of the 1st schedule to the Act is peculiar to the Electoral Act and therefore falls within the procedural jurisdiction, that of the general case law is within substantive jurisdiction and which can by no means be waived or compromised. It is in otherwise akin to the principle of strict stability. The point has been well expounded by his Lordship Obadina JCA in the case of Effiong v. Ikepeme (1999) 6 NWLR (Pt. 606) 260 at page 273 wherein he said:
“However, it is clear from a long line of authorities that the principle of waiver or acquiescence does not apply where there has been a fundamental failure to comply with the requirement of a statute as such is not a mere irregularity by a fundamental vice… A close look at paragraph 54(2) of schedule 5 to the Decree seems to be talking, not only of irregularity but also of a fundamental vice that renders a proceeding nullity. It says:
“an application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect:
The draftsman of paragraph 50(2) of schedule 5 to the decree knows what he is saying. He knows the principle of waiver or acquiescence does not apply to non-compliance with the requirement of a statute. He knows non-compliance with the provisions of a statute is a fundamental vice that renders the proceedings a nullity. He specifically makes paragraph 50(2) to apply and to cover non-compliance that renders a proceeding a nullity ….Paragraph 50(2) of schedule 5 to Decree No. 36 of 1998 has now extended the principle to cases where there has been a fundamental failure to comply with requirement of statute which otherwise could have rendered the proceedings a nullity – in election petitions.”
It is obvious from the foregoing authority that the intention of the draftsman is very clear wherein “the principle of waiver of acquiescence does not apply to non-compliance with the requirement of a statute.” It is the non compliance with the provisions of a statute that renders a proceeding a nullity because it is a fundamental vice and not a mere irregularity. It is by extension therefore that paragraph 50(2) of schedule 5 to Decree No. 36 of 1998 now covers proceedings in election petitions which could have been rendered a nullity. Paragraph 50(2) is in pari material with paragraph 53(2) of the 1st schedule to the Electoral Act 2010 as amended. By implication therefore, and applying the analogy of the case of Effiong v. Ikpeme (supra), I hasten to agree with the submission by the learned senior Counsel Mr. Awodein that the reasons for introducing paragraph 53(2) is not farfetched, but rather to render curable on issue of jurisdiction which would ordinarily render an election petition or proceedings resulting there from a nullity. A question of jurisdictional issue can therefore be waived under paragraph 53(2) of the 1st schedule to the Act if not raised within a reasonable time and when the party making the application has taken any fresh step in the proceedings after knowledge of the defect.
The Black’s Law Dictionary Eight Edition at page 1241 has defined procedural law as:
“The rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.”
The provision of Section 145(1) of the Electoral Act has also given a further insight and buttress the definition and extent of the purport of the concept of the phrase procedural law as defined by the Black’s Law Dictionary (supra). The subsection provides that:
“The rules of procedure to be adopted for election petitions and appeals arising therefrom shall be set out in the first schedule to this Act.”
The effective deductive component of the above is tantamount to the conclusion that any jurisdictional issue arising from non-compliance with the provisions of the 1st schedule to the Act simply amounts to procedural jurisdictional issue.
For a clear distinctive difference between jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law the apex Court’s decision in the case of Ndayako v. Dantoro (2004) 13 NWLR (Pt.889) 187 at 219 per Edozie JSC is apt and decisive wherein the learned jurist said:
“It is noteworthy that a distinction must be drawn between two types of jurisdictions viz – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law while a litigant can waive the former, no litigant can confer jurisdiction in the Court where the constitution or a statute or any provision of the common law says that the Court shall have no jurisdiction. A litigant can submit to procedural jurisdiction of the Court e.g. where a writ has been served outside jurisdiction without leave.”
At page 1876 of the record of appeal in its ruling of the 25th July, 2011, the learned Tribunal for instance made this poser wherein it asked:
“The question to ask next is whether waiver is applicable to jurisdictional issue.”
If the learned Tribunal had informed itself of the provision of the law especially Section 145(1) of the Electoral Act as well as plethora of relevant decided authorities, in particular the case of Ndayako v. Dantoro (supra) it would have had no hesitation in arriving at a positive response to the question posed in its ruling at page 1876 of the record of proceedings.
The provision of paragraph 53(2) of the 1st Schedule is predicated on two legs which must be fulfilled of one and the same time. In other words the two must be present and co-exist conjunctively and not disjunctive as it would not suffice with the presence of one without the other.
The gross summary of this case and which form the basis of the complaint alleges that the 1st – 3rd Respondents as Applicants did not only fail to bring the application subject of contention, within a reasonable time, but had also gone further and taken fresh steps in the proceedings after knowledge of the defect complained of: pages 1684 – 1685 of the record is in evidence. These facts are not made issues but are admitted and thus their contention hinging on the defence of substantive jurisdiction which they argued could neither be compromised nor waived. See the case of Okongwu v. NNPC (1989) 4 NWLR (Pt. 115) 296 cited by the learned senior Counsel for the cross Appellants. At page 309 of the report, Nnaemeka-Agu JSC (of blessed memory) in stating the position of the law had this to say:
‘…. Every material point canvassed in an appellants’ brief which is not countered in the respondent’s is deemed to have been conceded to by the appellant.”
The perceived contention which in the circumstance is grossly misconceived with the clear distinction having been streamlined between concept of substantive and procedural jurisdiction. It is the inability to distinguish between the two that occasioned the Tribunal falling into the trap of arriving at a wrong conclusion.
Further more and as a confirmation of the admitted alleged delay by the 1st – 3rd cross Respondents, the pronouncement made by the Honourable Tribunal at pages 1869 – 1870 of the record militates against the application. The Tribunal for instance said:
“What is the applicant’s reason for bringing the application late? They were unable to obtain Certified True Copy of the order of this Tribunal made on 5th July 2011 until 15th July 2011. This is incredible; as a similar application had been brought in this petition by the 4th Respondent challenging the order of the Tribunal. It is instructive to note that a Certified True Copy of the order which Applicants were only able to obtain late was exhibited in the 4th Respondent s application. And incidentally same was served on the 1st to 3rd applicants we say no more. ”
I could not hove agreed more with the submission by the learned cross Appellants’ senior Counsel that the findings of the Tribunal (supra), squarely agree that the 1st – 3rd Respondents were guilty of delay which same was in explicable.
Also of page 1878 of the record of appeal, the Honourable Tribunal further made the following remarks:
“In view of the above, it is our humble opinion that the petition having not proceeded to hearing stage, 1st to 3rd Respondents have not taken fresh steps within the intendment of the provisions of paragraph 53(2) of the 1st schedule to the Electoral Act 2010. And we so hold.”
The construction of the Tribunal’s findings in interpreting the phrase taken fresh steps would be properly determined if and when considered in line with the authority in the case of Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 423 wherein Oguntade JCA (As he then was) had this to say:
“Taking a step in the con would mean allowing the case to proceed to hearing or by doing such acts as would convey to the petitioner that the respondent is not raising objection; or where he has raised one, that he is not pursuing it.”
The two conditions relevant for the invocation of paragraph 53(2) of the 1st schedule have been well deliberated upon earlier in the course of this judgment. The Respondents for instance without complaining and with the full knowledge of the order of the Tribunal of 5th July, 2011 went ahead to file answers to the questions in Form TF008 on 6th July and did participate in the pre-hearing session of 13th July, 2011. This falls squarely within the meaning of taking fresh step and which satisfies the intendment of paragraph 53(2) as it is consistent with taking the position that the Respondents are not taking any objection to the alleged defect.
It is relevant to re-echo that sight should not be lost of the case of Agagu v . Mimiko (supra) wherein the equivalent provision to paragraph 53(2) of the 1st schedule to the Act was properly construed under the replica provision of paragraph 49(2) of the same schedule of the 2006 Act. In other words, therein, the provision restricts the jurisdiction of the Tribunal to entertain any objection or application. The pronouncement made by Abdullahi PCA (as he then was) has been reproduced (supra).
Having resolved therefore that the learned trial Tribunal arrived at the wrong conclusion due to its inability to distinguish between two desperate concepts, namely substantive and procedural jurisdiction, the issue is hereby resolved in favour of the cross Appellants.
The 2nd issue poses the question on the propriety of the Tribunal when it extended time for the 1st to 3rd Respondents to apply to set aside the order of the Tribunal directing the Secretary of the Tribunal to issue on the parties or their Counsel a pre-hearing sheet?
The learned senior Counsel for the cross Appellants in his submission argued at great length that the ruling of the Tribunal clearly shows that the resolution of the issue as to extension of time in favour of the 1st – 3rd Respondents is not based on any material pleaded before the Tribunal in the supporting affidavit of the 1st – 3rd Respondents. Learned Counsel reiterated the Tribunal’s error in law by granting the extension of time for the said Respondents to apply f or the discharging or setting aside the order made by the Tribunal on 5th July, 2011. Counsel urged that the issue be resolved in favour of the cross- Appellants/Petitioners.
In response to the submission, the learned senior Counsel Mr. Fagbemi on behalf of the 1st – 3rd Respondents took into account all the reasons giving rise upon which the Tribunal granted prayer 2 in the 1st – 3rd Respondents’ application, and Counsel submitted that the discretion in favour of granting the application was done in accordance with well laid down rules of law, practice, fairness and justice. That same, Counsel argued, assisted the Tribunal in considering the merit of the application which includes prayers 3 and 4 of the 1st – 3rd Respondents’ application which he argued are germane to the issue in contention between the Petitioners and the Respondents alike. The Counsel urged that we should so hold and that the appeal should therefore be dismissed especially where the jurisdictional issue raised by the provision of paragraph 18 of the 1st schedule to the Electoral Act is not procedural but substantive.
The Tribunal’s findings at page 1870 of the record of appeal has been reproduced earlier in the course of treating the 1st issue. I would not therefore reproduce same. Suffice however to say that there within, the reason given by 1st – 3rd Respondents for bringing their application dated 14th July, 2011 was as a result of their inability to obtain a Certified True Copy of the Tribunal’s order of 5th July, 2011 until 15th July, 2011.
While it is needless to over flog the horse, it is within reason to state that the Tribunal in their contemplation of page 1870 did arrive thereat a deduction which they, put in their own words as “incredible”. The word “incredible” has been defined by the Oxford Advanced Learner’s Dictionary as
“Impossible or very difficult to believe …….”
With the Tribunal holding such a notion on the reason so advanced, it therefore had the duty to exercise its discretion judicially and judiciously in the circumstance of that which was placed before it. In other words, it is not open for it to act on any other extraneous material than that which was made available to it and upon which it must take decision in the exercise of its discretion. The case of ANPP v. R.E.C (2008) 8 NWLR (Pt. 1090) 453 at 512 is in point wherein this Court said:
“It is an established cardinal principle of law that the very essence of the proper exercise of judicial discretion is deeply rooted in the belief that if be exercised in accordance with well laid down rules of law, practice, reason, fairness and justice, and not in accordance with whimsical opinion, humor or sentimental disposition.’
The apex Court in the case of Eronini v. Ihueko (1989) 2 NWLR (Pt. 101) 46 at 60-61 per Obaseki JSC in stating the meaning of the expression “Judicial and Judicious” said thus:
“Judicial Exercise has been defined in Vol. 3 Stroud’s Judicial Dictionary 4th Edition p.1449 thus:
“If an arbitrator has a discretion as to costs which must be judicially exercised he must not act capriciously and must, if he is going to exercise his discretion, show a reason connected with the case and one which the Court can see is a proper reason.. Judicious means (1) proceeding from or showing sound judgment; (2) having or exercising sound judgment; (3) marked by judgment, wisdom and good sense.
There is thus great emphasis on sound judgment based on proper reasons connected with the case in the judicial exercise of discretion.”
The 1st – 3rd Respondents submitted that the Tribunal did exercise its powers within its confines in granting of the prayers sought on their application which same they argued was within the purview of the Tribunal’s powers. This, Counsel further argued especially as it touches on the substantive jurisdictional powers of the Tribunal which same could by law be raised at any time of the Proceeding even on appeal. On the need for the exercise of discretion, it is elementary to state that for such concept to stand the test of law, it must be based on reasonable ground which is tangible, also on facts which could be substantiated as against, a wanton, uncalculated and hypothetical myth in nature.
With the submission by the 1st – 3rd Respondents learned counsel hinging on the question touching on substantive jurisdiction, the understanding, like that of the Tribunal , is a complete misconception of the clear distinction between the concept of substantive and procedural jurisdiction which applications are divergent in nature. The misconception that befell the learned Counsel for the 1st – 3rd cross Respondents had obviously robbed onto the learned Tribunal who was also misled by falling into the same trap. Hence all the authorities cited and which relate to substantive jurisdiction are of no moment and or relevance. The question of the Tribunal acting without jurisdiction did not arise in this case. The case of Ejorkele v. Nwafor & Ors. (2008) 15 NWLR (Pt. 1110) 418 at 439 – 440 cited by the 1st – 3rd Respondents senior Counsel for instance is therefore clearly inapplicable.
In the result and having found this issue against the 1st – 3rd cross Respondents, same is resolved in favour of the cross Appellants and I so hold.
On the totality of this cross appeal, same succeeds and is allowed. Each party is to bear the costs of its appeal.
Cross appeal allowed and I make no order as to cost.
CHIMA CENTUS NWEZE, J.C.A: I agree.
UCHECHUKWU ONYEMENAM, J.C.A: I have had the advantage of reading the judgment of my learned brother Clara Bata Ogunbiyi, JCA. I entirely agree with it. However, I will comment on the issue whether the Tribunal was wrong when it extended time for the 1st – 3rd respondents to apply to set aside the order of the Tribunal directing the Secretary of the Tribunal to issue a pre-hearing sheet; Ground 3.
The argument of the learned senior counsel for the cross appellants in the main is that the decision of the Tribunal extending time in favour of the 1st – 3rd respondents is not borne out of any evidence placed before the Tribunal i.e. the affidavit evidence of 1st – 3rd respondents.
Learned senior counsel for the 1st – 3rd respondents in his response maintained that the Tribunal was right in extending time for the 1st – 3rd respondents to apply for the discharge or setting aside of the order made by the Tribunal on 5th July, 2011, having based said decision on rules of law, practice, fairness and justice.
Let me express a view on the application of the rules of law, rules of practice, rules of fairness and rules of justice as the basis for the Tribunal’s grant of the application in favour of the 1st – 3rd respondents vis-a-vis its pronouncement on the reason for the delay of the 1st – 3rd respondents in bringing their application fate. The Tribunal said.
“What is the applicants’ reason for bringing the application late? They were unable to obtain Certified True Copy of the Order of the Tribunal made on 5th July, 2011.This is incredible; as a similar application had been brought in this petition by the 4th Respondent challenging the order of the Tribunal. It is instructive to note that a Certified True Copy of the Order which Applicants were only able to obtain late was exhibited in the 4th Respondent’s application. And incidentally same was served on the 1st to 3rd Applicants we say no more”
See pages 1869 – 1870 of the record.
To uphold the 1st – 3rd respondents’ submission presupposes that the Tribunal had applied the rules of law, practice, fairness and justice in granting the application for extension of time in their favour. One will then ask what are the import of these relevant rules. Blacks Law Dictionary, 9th Edition, 2010 West, Bryan A. Garner P. 1448 defines rule of law as “a substantive legal principle for instance under the rule of taw known as respondent superior, the employer is answerable for all wrongs committed by an employee in the course of employment”.
In the instance, the rule of law refers to the principles of law that create or define the rights and duties of an applicant seeking for an extension of time to bring an application out of time. Relevant here are the 1st Schedule to the Electoral Act and the Practice Direction 2011 by virtue of Section 145(1) of the Electoral Act, 2010 (as amended). Under this law, the principles for granting an extension of time is as laid down in paragraph 45 of the First Schedule. For our purposes, I will only reproduce paragraph 45(2) and (4) which provide:
“(2) An enlargement of time may be ordered although the application for the enlargement is not made until after the time appointed or allowed.
(4) Every application for enlargement or abridgement of time shall be supported by affidavit.”
The purpose of the affidavit required by paragraph 45(4) of the Schedule is to provide evidence upon which the Tribunal shall be urged to grant or not to grant the application. Herein the Tribunal described the 1st – 3rd respondents’ affidavit evidence as incredible meaning; inconceivable, incredulous, unbelievable, uncompelling, unconvincing, unimaginable and unthinkable thereby making its subsequent grant of the application devoid of rule of law.
For “Practice” it is defined as:
(a) “a repeated or customary action, the usual way of doing something (local practice); the form, manner and order of conducting legal suits and prosecutions”
See Merriam-Webster Dictionary.
(b) “The procedural methods and rules used in a Court of law.” See Blacks Law Dictionary (supra) P.1291
The usual way or procedural rules of determining the grant of an application for an extension of time is for the Tribunal or Court to consider the affidavit evidence and base its decision on the cogency, convincing and compelling evidence before it. The Tribunal in its pronouncement as reproduced above categorically opined that such practice was lacking in the affidavit. One then wonders why it proceeded to grant the application contrary to rule of practice.
I shall move on to fundamental fairness doctrine which is defined as.
“The rule that applies the principle of due process to a judicial proceeding”. Page 744 Blacks Law Dictionary.
In my view, the principle of due process as it relates to the application for extension of time with regards to paragraph 45(2), (4) of the Schedule includes;
– An application
– Affidavit in support
– Decision based on the affidavit evidence.
It is correct that before the Tribunal were both an application and an affidavit evidence in support but certainly from the excerpt of the Tribunal’s judgment reproduced above, the Tribunals decision was not based on the affidavit evidence which was described as incredible.
Finally the word justice is defined as:
“the fair and proper administration of laws”.
Fair: means impartial; just; equitable; disinterested. See. page 674 Black Law Dictionary (supra). In my opinion justice was not properly administered when the Tribunal based its decision on an incredible affidavit.
In sum, it is my view that the learned senior counsel for the 1st – 3rd respondents’ submission under consideration law, practice, fairness and justice the Tribunal relied upon in granting the application in favour of the 1st – 3rd respondents. Indeed, I fail to see any and so I agree with the cross appellants’ counsel that the grant of the application was not borne out of the affidavit evidence. For this and the fuller reasons aptly given in the lead judgment, I resolve this issue in favour of the cross appellants.
I also allow the cross appeal and abide by the consequential orders.
Appearances
Kola Awodein (SAN)
Paschal MammoFor Appellant
AND
O.I. Olorundase (SAN)
S.T. Ologunorisa (SAN)
S.G. Odey Esq.,
B. Ishaaku,
D.M. Dakogol,
A.M. Mayimi and
A.T. Balogun (Miss)For Respondent
