DR UMAR ARDO VS. INDEPENDENTT NATIONAL ELECTORAL COMMISSION (INEC) (2017)

DR UMAR ARDO VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

(2017) LCN/4540(SC)

In the Supreme Court of Nigeria

Friday, March 10, 2017

Case Number: SC. 153/2016

RATIO

EFFECT OF A NOTICE OF APPEAL THAT IS NOT SIGNED, STAMPED AND SEALED

In APC V. General Bello Sarkin Yaki (supra) Per Peter-Odili, JSC said as follows:- “A notice of appeal is the originating process at an appellate Court and the notice of appeal is clearly within the ambit of legal documents described in rule 10 (2) as “any similar document” which must be signed, stamped and seal. Therefore a notice of appeal not found with these components is an incompetent notice of appeal depriving the Court of the jurisdiction to determine the appeal on the merit.- – – Therefore any non-compliance with the rule 10 (2) of the RCP with the circular of the Chief Justice of Nigeria as a reiteration is visited with the sanction that the process is without competence. It cannot be excused by taking of the inalienable right of a litigant to appeal as that right has to be exercised within the necessary prescribed rules of legal practice”. PER AMINA ADAMU AUGIE, JSC

WHAT IS AN ACADEMIC QUESTION; WHEN DOES AN ACTION BECOME ACADEMIC

It is simply an issue that does not require answer or adjudication by a Court; hypothetical or moot question – see Agbakoba V. INEC (2008) 18 NWLR (Pt. 1119) 489, where this Court, per Chukwuma-Eneh, JSC, further explained that – An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. When an issue has become defunct, it does not require to be answered or controvert about and leads to making of bare legal postulations, which the Court should not indulge in; it is like the salt that has lost its seasoning. And like the salt in that state, it has no practical value to anybody and so also, a Suit in that state has none. In simple terms, an academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on a successful party- see Odedo V. INEC (2008) 17 NWLR (Pt. 1117) 554 SC, Adeogun V. Fashogbun (2008) 17 NWLR (Pt. 1115) 149 SC and Plateau State V. Att. Gen. Fed. (supra) SC. All these cases, except the last, dealt with pre-election matters, as in this case. In Agbakoba V. INEC (supra), the issue was whether the Court below was right to hold that the election conducted while the Appeal was still pending, rendered it a mere academic exercise. This Court held that the matter had not become an academic exercise because it was still within the jurisdiction of the Federal High Court, being a pre-election matter. Tabai, JSC, gave the reason as follows – The Appellant challenged the propriety of his substitution with the 3rd Respondent and that remains a live issue until its determination by the final appellate Court, notwithstanding any act taken by the Respondents. I hold, therefore, that the Court below erred in law on this issue. Its jurisdiction remained intact. It has a duty to hear and determine the appeal presented therefor adjudication. Odedo V. INEC (supra), dealt with the same issue – substitution, and this Court arrived at the same conclusion. Tobi, JSC, insisted that – The reliefs are not only capable of enforcement but can be enforced. If a Court of law comes to the conclusion that the substitution was not in compliance with Section 34 of the Electoral Act, 2006, it will declare it a nullity as was done in the case of Ugwu V. Ararume (2007) 12 NWLR (Pt. 1048) 367. In Adeogun V. Fashogbun (supra), it was the same issue but this time the Court below refused the Application to strike out the Appeal. In dismissing the Appeal, this Court, per Tobi, JSC, pointed out that – Academic and hypothetical issues of questions do not help in the determination of the live issues in a matter. They are merely on a frolic or they are frolic-some; not touching or affecting the very tangible and material aspects in the adjudication process. As a matter of law, they add nothing to the truth searching process in administration of justice. This is because they do not relate to any relief. The 2nd Respondent referred this Court to Plateau State V. Att. Gen. Fed. (supra), wherein Tobi, JSC, made the following observation – A suit is academic where it is merely theoretical, makes empty sound, and is of no practical utilitarian value to the Plaintiff even if Judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity. A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high in guesses. As Courts of law are not established to adjudicate on guesses but on facts such actions are struck out. A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a “mirage” to deceive the Defendant and the Court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought. With the above brief exercise in diction, I am of the firm view that the suit filed by the Plaintiffs is not academic, speculative or hypothetical. On the contrary, the suit clearly contains reliefs, which are actionable and which a Court of law is competent to decide one way or the other. The Defendants would appear to miss the declaratory nature of the reliefs and their effect on our adjectival law. PER AMINA ADAMU AUGIE, JSC

MEANING OF THE WORD “WAIVE”

To “waive” means to abandon, renounce or surrender a claim, privilege or right, etc., voluntarily, and “waiver” means the voluntary relinquishment or abandonment – express or implied – of a legal right or advantage – see Black’s Law Dictionary. 8th Ed., and Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) 227, where this Court held that – The principle is to the effect that where an action was commenced by any irregular procedure and Defendant took steps to participate in the proceedings – – he cannot later be heard to complain of the irregularity as a person will not be allowed to complain against an irregularity, which he himself has accepted, waived or acquiesced. [Aderemi, JSC] PER AMINA ADAMU AUGIE, JSC

WHETHER A PARTY WHO FAILED TO UTILIZE HIS OPPORTUNITY TO BE HEARD CAN COMPLAIN OF DENIAL OF FAIR HEARING

My Lords, permit me to observe that the touchstone for determining the observance of fair hearing in trials is the question whether an opportunity of hearing was afforded to parties entitled to be heard, J. C. C. Inter Ltd. v N. G. I. Ltd (2002) 4 WRN 91, 104. Thus, where, as in this case, counsel had the opportunity of being heard but prostituted it, Omo v. JSC, Delta State [2000] 7 KLR (pt. 108) 2623 or decided to filibuster just to delay the trial, Oyedeji v. Akinyele [2002] 3 NWLR (pt. 755) 586, 613 or, deliberately, failed to avail himself of the opportunity of delivering his address, Chidoka v. First Class Finance Co, Ltd. [2001] 2 NWLR (pt. 697) 216, 227, he cannot be heard to complain of want of hearing, J. C, C. Inter Ltd. v N. G. I. Ltd. (supra); Omo v. JSC, Delta State (supra). Indeed, this prescription applies with equal force to the litigants themselves, Okotha v, Herwa Ltd. [2000] 15 NWLR (pt. 690) 249, 258; Adebayo. v AG, Ogun State [2008] 7 NWLR (pt 1085) 201; Mirchandani v. Pinhero [2001] 3 NWLR (pt 701) 557; Abubakar v. INEC [2004] 1 NWLR [pt 854] 207: Scott Emukpor v. Ukaube [1979] 1 SC 6; Oyeyipo v. Oyinloye [1987] 1 NWLR (pt 50) 356; Omo v. JSC, Delta State [2000] 12 NWLR (pt 682) 444; Nwokocha v AG, Imo State (2016) LPELR -40077 (SC).As shown in the leading judgement, on November 10, 2015 appellant was accorded the right to be heard. However, counsel chose to waive it. Instead, he subsequently, resorted to an unknown strategy, namely, an attempt to arrest the court’s judgement: an attempt which the court rebuffed! Now, ensnared by his own chicanery, he has waved the banner of fair hearing as a trump card. My Lords, this banner, too, cannot sustain his protest. Indeed, the approach of the appellant’s counsel reminds me of the eloquent formulation in Adebayo v AG, Ogun State (2008) LPELR -80 (SC) 23- 24. For its bearing on the fortune of the appellant’s case, I crave Your Lordships’ indulgence to quote this court’s view in extenso: I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking. [Italics supplied for emphasis] PER CHIMA CENTUS NWEZE, JSC

JUSTICES:

MARY UKAEGO PETER;ODILI

CLARA BATA OGUNBIYI

CHIMA CENTUS NWEZE

AMINA ADAMU AUGIE

SIDI DAUDA BAGE

APPELLANTS

DR. UMAR ARDO

RESPONDENTS

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION [INEC]2. ALL PROGRESSIVE CONGRESS [APC]3. ALL PROGRESSIVE GRAND ALLIANCE [APGA]4. PEOPLES DEMOCRATIC PARTY [PDP]5. SOCIAL DEMOCRATIC PARTY [SDP]6. SENATOR BINDAWO JIBRILLA

JUDGMENT

AMINA ADAMU AUGIE, JSC

This Appeal relates to the gubernatorial election conducted by the 1st Respondent [INEC] in Adamawa State on 28/2/2015. The Appellant, as an indigene of Adamawa State and a Politician, who registered to vote and be voted for in the State, instituted an action by way of Originating Summons at the Federal High Court. Abuja [trial Court], wherein he submitted the following question for determination –

Whether having regard to subsections 178(2) and 180(2) (sic) of the Constitution of the Federal. Republic of Nigeria, 1999 (as amended), the 1st Respondent [i.e INECl can legally conduct Governorship election in Adamawa State on Saturday, 28th February 2015?

He also sought the following reliefs against the thirteen Defendants –

1. A DECLARATION that having regard to subsections 178(2) and 180(2) of the Constitution – – (as amended) the tenure of office of Barrister Bala James Ngilari, who took Oath of Allegiance and Oath of Office, as Deputy Governor of Adamawa State on 13/2/2012, and in that capacity assumed office as Governor of Adamawa State after the impeachment of the Governor, Admiral Murtala Nyako, expires on 12/2/2016.

2. A DECLARATION that having regard to subsection 178(2) of the [1999] Constitution – – (as amended), the 1st [Respondent] (INEC) cannot legally conduct Governorship election in Adamawa State on a date earlier than one Hundred and Fifty days before 12/2/2016 when the tenure of office of Barrister Bala James Ngilari expires as Governor of Adamawa State.

3. A DECLARATION that the Governorship election scheduled by the 1st [Respondent] (INEC) to hold on Saturday, 28/2/2015, is a breach of subsection 178(2) of the Constitution – – (as amended).

4. AN ORDER OF INJUNCTION restraining the 1st [Respondent] from conducting Governorship election in Adamawa State on 28/2/2015, which is a date earlier than one hundred and fifty days from 12/2/2016 when the tenure of office of Barrister Bala James Ngilari expires as Governor of Adamawa State.

The Originating Summons filed on 5/2/2015, was supported by a 24- paragraph Affidavit, and 11-paragraph Further and Better Affidavit wherein it was averred as follows in paragraph 7 thereof that – The 1st [Respondent]’s deposition in its Counter-Affidavit to the Originating Summons that Admiral Murtala Nyako (Rtd.) and Barrister Bala Ngilari took the Oath of Allegiance and Oath of Office as Governor and Deputy Governor respectively on 8/2/2012 is correct.

The Originating Summons was initially taken out against INEC and twelve Political Parties, which included the 2nd to 5th Respondents, as the 2nd, 3rd, 10th and 13th Defendants. The 6th Respondent, who was then the Governor-Elect of Adamawa State, applied to the trial Court
and was subsequently joined as the 14th Defendant, to the said Suit. Whereupon, the Appellant filed an Amended Originating Summons, containing the same reliefs and orders sought in the original process.

In addition to their Counter-Affidavits, the Respondents filed Preliminary Objections to the Originating Summons to the effect that the Appellant had no locus standi to bring the action; that the action is merely academic; and that it constitutes an abuse-of Court process.

In his Judgment delivered on 7/7/2015, the learned trial Judge, Chukwu, J., noted that what is in the Preliminary Objection is what is canvassed in the Counter-Affidavits so determining the Objection will “also mean a determination of the Counter-Affidavits and without equivocation will mean a determination of the substantive Suit”.

In upholding the objections, he agreed with the Respondents that the Appellant “does not have a locus standi to institute this case”, and proceeded to reprimand him in very strong language as follows –

Let me state the obvious that the claim as framed by the Plaintiff is an affront on the judicial processes to wit it is an unbridled act of impunity having in mind the decisions of the Apex Court in the cases of Ladoja V. INEC (2007) 12 NWLR (PT. 1047) 115, FRN V. Dariye (2011) 13 NWLR (PT. 1265) 521 and Marwa V. Nyako (2012) 6 NWLR (PT. 1296) 199. The afore-stated Supreme Court decisions are in equivocal that the term of a governor is for 4 years, even if one is criminally and illegally impeached, his tenure is calculated from when he took the oath of office and not a day will be added to replace or respite the period he was illegally impeached. It is obvious that the Plaintiff was aware of the time the said Nyako and his proxy Ngilari took Oath of Office and that by 2015 their tenure had elapsed even with the extra time they claimed in their first tenure. So the Plaintiff by instituting this Suit is obviously abusing the Court process and any contrary opinion or decision from me may amount to introducing or courting anarchy which the Apex Court had labelled judicial rascality. I don’t want to be addressed as one who had committed serious act or judicial impatience. – – I dismiss this Suit for being a violent abuse of the judicial process.

Dissatisfied with the trial Court’s decision, the Appellant appealed to the Court below with a Notice of Appeal filed on 22/7/2015, and apart from the 4th Respondent, the other Parties filed Briefs of Arguments.

The 1st , 2nd and 6th Respondents filed Objections to the competency of the Appeal. But the 2nd Respondent, in particular, prayed for –

AN ORDER dismissing and/or striking out the Appellant’s Notice of Appeal as well as the Appellant’s Brief of Argument for being incompetent.

The Grounds of the 2nd Respondent’s Preliminary Objection are that –
1. The Appellant’s Notice of Appeal dated 22/7/2015 and filed on the same date as well as the Appellant’s Brief of Argument filed on 4/8/2015 do not have affixed Nigeria Bar Association’s Seal contrary to Rule 10 of the Rules of Professional Conduct for Legal practitioners, 2007; and

2. The failure to affix the Seal on the Notice of Appeal and Appellant’s brief knocks the bottom of the Appeal purportedly filed by the Appellant.

At the hearing of the Appeal on 10/11/2015, learned counsel for the 2nd Respondent raised and argued the Preliminary Objection that was not argued in its Brief of Argument since it was filed after the brief.

Learned counsel for the Appellant urged the Court to consider Order 10 rule 1 of its Rules, “as it prescribes what is expected of a Respondent to raise a preliminary objection”. He went on to say –

We are entitled to at least- three days. Even though-we are entitled to three days, we waive the requirement of time needed. We refer the Court to Mega Progressives Peoples Party V. INEC, which we intend to supply after sitting today. The case is unreported. The earlier decision was not considered in the latter case it can be said to be overruling where the earlier case was considered. If not it cannot be said to have overruled it. Section 8 of the Legal Practitioners Act provides for the right of audience of the legal practitioner. A subsidiary legislation cannot take away a right given by a main legislation. We urge the Court to discountenance the Objection sighted (sic), we can take the Appeal today.

Learned counsel for 1st & 3rd Respondents aligned with the Appellant; learned counsel for 5th & 6th Respondents aligned with the Objector.

As directed by the Court below, the appeal was taken along with the Preliminary Objection, and it, thereafter, reserved the Judgment. This was on 10/11/2015, however, on 23/11/2015, the Appellant filed an Application praying the Court below for the following reliefs-

1. An Order of Court extending time within which the Applicant may regularise his Notice of Appeal dated 22/7/2015 and filed on the same day without affixing the NBA Seal.

2. An Order— deeming the Notice of Appeal and Appellant’s Brief as properly filed and served on the Respondents the requisite fees having been paid.

The Ground (sic) upon which the said Application is brought is that –
1. The Supreme Court in Mega Progressive Peoples Party V. INEC & Others (Unreported) Suit No. (sic) SC.665/2015 delivered on 12/10/2015 held that the requirement of seal affixed to Court processes is not mandatory.

2. On Friday, 14/11/2015, the Supreme Court gave reasons for its decision in All Progressive Congress V. General Bello Sarkin Yaki (Unreported) Suit No. (sic) SC. 772/15 that the requirement for NBA Seal is mandatory.

3. The Supreme Court advised that processes without seal may be regularized,

4. The Applicant did not affix NBA Seal to his Notice of Appeal ‘and Appellant’s Brief respectively.

The Judgment of the Court below was delivered on 4/2/2016, and the Supplementary Record compiled by the Appellant, which contains the proceedings of 4/2/2016 – the day of Judgment; reads as follows –

Alhassan Ahmadu, Esq., – My Lords we have a Motion on Notice before this Hon. Court to regularise the Notice of Appeal and Appellant’s Brief
Court – We are not taking any Motion now, you should have done it earlier; today is for Judgment.
Alhassan Ahmadu, Esq., – My Lords, the Motion is just to affix NBA Seal on the Notice of Appeal and Appellant’s Brief.
Court – Judgment delivered. Appeal struck out.

In the said Judgment, the Court below, per Aboki, JCA, held that –

There was no any formal application or even orally by the Appellant’s counsel to regularize the document/Notice of Appeal filed, even at the stage of proceedings and adoption of briefs of argument by the Parties on 10/11/2015 and the Appeal was adjourned for Judgment. In APC V. General Bello Sarkin Yaki (supra) Per Peter-Odili, JSC said as follows:-
“A notice of appeal is the originating process at an appellate Court and the notice of appeal is clearly within the ambit of legal documents described in rule 10 (2) as “any similar document” which must be signed, stamped and seal. Therefore a notice of appeal not found with these components is an incompetent notice of appeal depriving the Court of the jurisdiction to determine the appeal on the merit.- – – Therefore any non-compliance with the rule 10 (2) of the RCP with the circular of the Chief Justice of Nigeria as a reiteration is visited with the sanction that the process is without competence. It cannot be excused by taking of the inalienable right of a litigant to appeal as that right has to be exercised within the necessary prescribed rules of legal practice”.
I adopt the above statement as mine in this Appeal. In whole the lone issues in the Preliminary Objection is resolved against the Appellant. Having resolved the Preliminary Objection in favour of the 2nd Respondent it will amount to an academic exercise for me to consider other issues raised in the main Appeal.

The Appellant filed a Notice of Appeal in this Court on 18/2/2016. The Parties filed their Briefs of Arguments, but the 2nd Respondent also filed a Notice of Preliminary Objection praying this Court for –

An Order dismissing and/or striking out the Appellant’s Appeal filed on 18/2/2016 for lack of jurisdiction in that the issues arising from the subject matter are no longer live issues to be adjudicated upon by this Court.

The Ground of the Application (sic) is as follows –
1. The Appellant’s claim at the Federal High Court is that the tenure of office of Governor Bala Ngilari, the immediate past governor of Adamawa State expires on 8/2/2016 as against 28/5/2015.

2. The Appellant’s claims and reliefs are no longer live issues which can be adjudicated upon this Honourable Court.

3. The Appeal has become otiose, academic and moot and no longer -worthy of adjudication by this Court.

The Objection is supported by a 6-paragraph Affidavit, wherein it was averred that at the time this Appeal was filed on 18/2/2016, the tenure of office claimed by the Appellant to expire on 8/2/2016, had already expired thereby making the issues in this Appeal academic and moot
– paragraph 4 (g) and (h). It submitted in its Brief that the Issue is –

Whether having regard to the reliefs claimed by the Appellant at the trial court, the issues submitted before this Honourable Court have not become academic and moot.

It referred this Court to the following authorities on the subject –
– Plateau State V. Att. Gen. Fed. (2006) 3 NWLR (Pt. 967) 346
– Ogbonna V. President, FRN (1997) 5 NWLR (Pt. 504) 281
– Adepoju V. Yinka (2012) 3NWLR (PT. 1288) 567 at 583
– Salik V. Idris (2014) 15 NWLR (PT. 1429) 36 SC at 54
And urged the Court to dismiss the Appeal, as it is a waste of its time.

The Appellant argued in his Reply Brief that the crux of his case is that INEC breached Section 178 and 180 of the Constitution and he used 8/2/2012 for the purpose of calculating the four year tenure of the incumbent Governor at the time it conducted the said election; and that if the said election, which produced 6th Respondent as Governor, is an infraction against the Constitution (as amended), it would be immaterial that the tenure of the incumbent Governor is now expired.

Furthermore, that this Court has the power and can revisit the entire process leading to the 6th Respondent’s election as Governor, and nullify the election conducted by 1st Respondent, if it conducted the election in breach of the 1999 Constitution (as amended); and that he commenced this suit on 5/2/2012, more than two months before the 1st Respondent conducted the said election, therefore, the suit is not academic, and the issues to be determined are alive and germane.

What is an academic question? It is simply an issue that does not require answer or adjudication by a Court; hypothetical or moot question – see Agbakoba V. INEC (2008) 18 NWLR (Pt. 1119) 489, where this Court, per Chukwuma-Eneh, JSC, further explained that –

An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. When an issue has become defunct, it does not require to be answered or controvert about and leads to making of bare legal postulations, which the Court should not indulge in; it is like the salt that has lost its seasoning. And like the salt in that state, it has no practical value to anybody and so also, a Suit in that state has none.

In simple terms, an academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on a successful party- see Odedo V. INEC (2008) 17 NWLR (Pt. 1117) 554 SC, Adeogun V. Fashogbun (2008) 17 NWLR (Pt. 1115) 149 SC and Plateau State V. Att. Gen. Fed. (supra) SC.

All these cases, except the last, dealt with pre-election matters, as in this case. In Agbakoba V. INEC (supra), the issue was whether the Court below was right to hold that the election conducted while the Appeal was still pending, rendered it a mere academic exercise. This Court held that the matter had not become an academic exercise because it was still within the jurisdiction of the Federal High Court, being a pre-election matter. Tabai, JSC, gave the reason as follows –

The Appellant challenged the propriety of his substitution with the 3rd Respondent and that remains a live issue until its determination by the final appellate Court, notwithstanding any act taken by the Respondents. I hold, therefore, that the Court below erred in law on this issue. Its jurisdiction remained intact. It has a duty to hear and determine the appeal presented therefor adjudication.

Odedo V. INEC (supra), dealt with the same issue – substitution, and this Court arrived at the same conclusion. Tobi, JSC, insisted that –

The reliefs are not only capable of enforcement but can be enforced. If a Court of law comes to the conclusion that the substitution was not in compliance with Section 34 of the Electoral Act, 2006, it will declare it a nullity as was done in the case of Ugwu V. Ararume (2007) 12 NWLR (Pt. 1048) 367.

In Adeogun V. Fashogbun (supra), it was the same issue but this time the Court below refused the Application to strike out the Appeal.
In dismissing the Appeal, this Court, per Tobi, JSC, pointed out that –

Academic and hypothetical issues of questions do not help in the determination of the live issues in a matter. They are merely on a frolic or they are frolic-some; not touching or affecting the very tangible and material aspects in the adjudication process. As a matter of law, they add nothing to the truth searching process in administration of justice. This is because they do not relate to any relief.

The 2nd Respondent referred this Court to Plateau State V. Att. Gen. Fed. (supra), wherein Tobi, JSC, made the following observation –

A suit is academic where it is merely theoretical, makes empty sound, and is of no practical utilitarian value to the Plaintiff even if Judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity. A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high in guesses. As Courts of law are not established to adjudicate on guesses but on facts such actions are struck out. A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a “mirage” to deceive the Defendant and the Court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought. With the above brief exercise in diction, I am of the firm view that the suit filed by the Plaintiffs is not academic, speculative or hypothetical. On the contrary, the suit clearly contains reliefs, which are actionable and which a Court of law is competent to decide one way or the other. The Defendants would appear to miss the declaratory nature of the reliefs and their effect on our adjectival law.

Apparently, the 2nd Respondent did not read the fine print because the decision in Plateau State’s Case (supra) can only lead this Court to the opposite track from where it wants the Court to go. In that case, the Defendants raised a similar Objection, as in this case, that the Suit is devoid of any live issue. Kutigi, JSC (as he then was) aptly stated –

I think the ground of objection misconceives the nature of the declarations and other reliefs sought in this case. The entire case simply put concerns the constitutionality and/or legality of the exercise of the emergency powers conferred on the President under Section 305 of the 1999 Constitution and which powers he exercised in Plateau State from 18/5/2004 to 17/11/2004. The emergency we all know ended or ceased to apply in that State on 17/11/2004. But the Constitution, including Section 305 thereof, is still with us. The powers are still there for the President to exercise if and when he deems it necessary. The Constitution is alive and so are the emergency powers therein alive. It is therefore of no adverse significance to the case that “suspended structures and public officials” are now back to duty. Issue relating to the interpretation of a living Constitution; as in this case, cannot in my view be dead, academic or hypothetical.

Tobi, JSC, hammered this principle home, when he firmly held that –

A suit does not necessarily become spent merely because it was heard after the act or conduct, which gave rise to action: It is clear from the case file that the action was filed on June 24, 2004, about thirty-six days after the declaration of the State of Emergency in the State. That the matter was not heard until the expiration of the emergency is not the fault of the Plaintiffs and it will be improper for this Court to throw out the suit on that ground. That will be doing injustice to the Plaintiffs and I am not prepared to do injustice to them.

The decision of this Court in the said case speaks directly to this case, and what it says is that the question submitted by the Appellant in the Originating Summons, which touches on the interpretation of Sections 178(2) and 180(2) of the Constitution, remains alive, and is not dead.

In other words, the Appellant is right; he commenced this action more than two months before the 1st Respondent conducted the said gubernatorial election in Adamawa State, He is seeking a declaration inter alia that having regard to the said Sections of the Constitution, INEC cannot legally conduct the election on a date earlier than one and fifty days before the tenure of the Governor, expired on 8/2/2012.

It is the interpretation of those Sections of the Constitution that is in issue, and being constitutional provisions, they are alive and can never be pronounced as dead, otiose, moot, academic or hypothetical.

Besides, the Appellant cannot be blamed for the length of time it took the matter to climb to this Court from 5/2/2015, when he filed it, to 18/2/2016, when he filed the Notice of Appeal against the decision of the Court below. The fact that the said date – 8/2/2016 had come and passed while the matter was still traveling through the Courts is not his fault; it is not anyone’s fault, and he cannot be penalized for it. The Preliminary Objection lacks merit, and it is, therefore, overruled.

The main Appeal itself hinges on a question of fair hearing and the Appellant formulated one Issue for Determination, as follows –

Whether or not the refusal of the learned Justices of the Court of Appeal to hear and determine the Appellant’s Motion on Notice dated 20/11/2016 and filed on 23/11/2016 to regularize the Appellant’s Notice of Appeal dated and filed on 22/7/2015 and Appellant’s Brief dated and filed on 4/8/2015 is not a breach of the Appellant’s fundamental right to fair hearing in Section 36(1) of the [1999] Constitution – – which renders the Judgment of the Court delivered on 4/2/2016, void.

The 1st Respondent also formulated one Issue for Determination i.e. –

Whether the refusal of the Court below to hear the Appellant’s Motion to regularize his position on the day of the judgment amounts to the breach of the Appellant’s fundamental right of fair hearing.

The 2nd Respondent formulated two Issues for Determination; that is –

1. Whether the lower Court breached the Appellant’s constitutional right to fair hearing by refusing to hear his oral application and Motion on Notice dated 20/11/2016 (sic) and filed on 23/11/2016 (sic) to regularize the Appellant’s Notice of Appeal dated and filed on 22/7/2015 and Appellant’s Brief dated and filed on 4/8/2015.

2. Whether this is a proper case in which this Court can invoke its powers under Section 22 of the Supreme Court Act

The 3rd Respondent formulated only one Issue for Determination i.e. –

Whether or not the refusal of the Court of Appeal to hear and determine the Motion on Notice dated 20/11/2015 filed after the Court has reserved Ruling/Judgment in the Appeal amounts to denial of the Appellant’s right to fair hearing.

The 4th and 5th Respondents adopted Appellant’s Issue as formulated, and 6th Respondent formulated one Issue for Determination; that is –

Whether the refusal of the Court below to hear the Appellant’s Motion on Notice dated 20/11/2016 and filed on 23/11/2016 to regularize the Appellant’s Notice of Appeal dated and filed on 22/7/2015 and filed on 4/8/2015 after full arguments had already been taken on the Objection that the said Notice of Appeal is incompetent and Judgment reserved, is in breach of the Appellant’s right to fair hearing in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

In my view, the Parties are saying the same thing, and it boils down to whether the refusal of the Court below to entertain the Application filed after it had reserved Judgment, amounts to lack of fair hearing.

Naturally, the Appellant argued the said Issue in the affirmative. He argued that it is trite that Parties must be given equal opportunity to present their cases and no Party should be given more opportunity or advantage in the presentation of his case; that a Court is duty bound to determine applications before it, no matter how inconsequential – Dandume LGA V. Alhaji Yaro (2011) 11 NWLR (Pt. 1257) 159; and that the Court below disregarded the clear guide outlined for such purpose by this Court in APC V. General Bello Sarki Yaki (supra).

The 1st Respondent submitted that a calm reading of proceedings of 10/11/2015, which it set out, will reveal that he was accorded his full right of fair hearing; that a Party, who refused or failed to take advantage of the fair hearing process created by the Court, cannot turn around to accuse the Court of denying him fair hearing – Inakoju V. Adeleke (2007) NWLR (Pt. 1025) 423; and that his counsel not only waived his right of the time within which to respond to the Objection, he actively participated at the hearing, therefore, the Appellant cannot be heard to complain that his right of fair hearing had been breached -Ukachukwu V. PDP (2014) 17 NWLR (Pt. 1435) 134 SC.

Furthermore, that it was too late for him to attempt to move that Application on the day set for nothing else but delivery of Judgment, and what he sought to do was to arrest the Judgment – Ameachi V. INEC (2007) 18 NWLR (Pt. 1065) 98, Ukachukwu V. PDP (supra); and that there was no proceeding upon which he can anchor the said Application, the Appeal having been argued and Judgment reserved.

The 2nd Respondent also argued that he merely sought to arrest the Judgment of the Court below; that he waited until after arguments had been taken before he brought the Application; that the Appellant, who had vociferously argued that NBA seal was not needed suddenly made a volte face and saw reason 13 days later to affix a seal; that a Party is expected to be consistent in his case – NA.C.H.P.N. & Ors. V. M. & H.W.U.N. & Ors. (2008) 2 NWLR (PT. 1072) 575; and that the arrest of Judgments is unknown to our jurisprudence, citing Newswatch Communications V. Atta (2006) 4 SCNJ 282 at 307.

The 3rd Respondent, citing Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587 and Newswatch Communications Ltd. V. Atta (supra), conceded that a Court must hear and pronounce on every Motion in the interest of justice and fair hearing. But it argued that Appellant’s counsel waived his right to be served with the said Objection, and he did not apply for an adjournment to enable him regularize his process or orally apply to be allowed to affix the seal, rather Parties joined issues on that point and they were heard, It further submitted that-

It is trite that what the Court below is entitled to do is to deliver its Judgment whenever [its] Judgment was ready and nothing more as it will be overreaching the 2nd Respondent’s objection by allowing an amendment without deciding the objection, one way or the other. The Appellant having joined issues on the Preliminary Objection cannot be said to have been denied fair hearing when in fact he joined issues with counsel and was heard by the Court on the issue. The Appellant ought to swim or sink with his decision. [He] opted to wave the magic wand of fair hearing or breach of the fundamental right with the main motive of developing a ground of appeal in the event the Judgment of the lower Court does not favour it.

It referred this Court to the following authorities on fair hearing –

– Lagos Sheraton Hotel & Towers V. H.P.S.S.S.A. (2014) 14 NWLR (Pt. 1426) 45 at 71
– Inakoju V. Adeleke (supra) wherein this Court relied on its decisions in Orugbo V. Una (2002) 16 NWLR (Pt. 792) 175, and Kaduna Textiles NT Umar (1994) 1 NWLR (Pt. 319) 143
– Mbanefo v. Molokwu (2014) 6 NWLR (Pt. 1403) 377 at 418
– Newswatch Communications Ltd. V. Atta (supra)

The 3rd Respondent further submitted as follows –
The [said] Motion filed – – after the Court below has reserved Judgment is – -is an attempt to overreach the objection filed and argued by 2nd Respondent – -The 2nd Respondent equally is entitled to fair hearing, as well as all parties who joined issues with [him] on this point The [said] Motion can be described as a motion seeking to arrest the Judgment of the Court of Appeal. That procedure is not known to be cognisable under the Rules of the lower Court. – – The Rules – – do not make provision for an application to arrest a Judgment – – about to be delivered by a Court. Therefore an application not recognised by the Rules of the Court, cannot be described as a proper application and failure to allow it does not amount to denial of fair hearing.

The 4th Respondent argued that the Appellant is estopped by his conduct from challenging the refusal of the Court below to hear the said Motion; that it is not the law that the issue of fair hearing should become a sword to smash the cardinal objection of administration of justice i.e. attainment of justice – Adebayo V. Att. Gen. Ogun State (2008) 4 MJSC 80, E.B. Plc. Awo-Omama V. Nwokoro (2012) 14 NWLR (Pt. 1321) 488; and that the issue of denial of fair hearing he raised is not only scanty, peripheral but totally immaterial in contrast to facts and circumstances of his conduct and admission at the Court.

The 5th Respondent argued along the same lines as 4th Respondent. But it cited Pam V. Mohammed (2008) 16 NWLR (Pt. 1112) 1 on the issue of fair hearing. It submitted that it is trite law that when Parties join issues on a subject matter, the only duty the Court is saddled with is to proceed to deliver the Judgment on those issues, citing Metal Construction (W.A) Ltd. & 2 ORS. V. Migliore & Anor. (1979) 6-9 SC (Reprint) 118, IBWA Ltd. V. Imano Nig. Ltd. (2001) FWLR (PT. 44) AT 443; and Parties having joined issues on the propriety or otherwise of the non-affixing of NBA seal, the Court below was right to have proceeded to deliver its Judgment on the issue. It also cited -Newswatch Communications Ltd. V. Atta (supra) and Ukachukwu V. PDP (supra), on the issue of arresting Judgments. It also argued –

[That] while it is true that the Appellant could have regularized his Notice of Appeal by affixing the seal even orally that would not be allowed after joining issues with the Respondents that he does not require to affix the said stamp on the Notice of Appeal. If he had applied to regularize at that stage, his reliance on the opinion of His Lordship, Onnoghen, JSC in YAKI V. BAGUDU (SUPRA) would have sailed through. The 6th Respondent toed the same line with the other Respondents – INEC and four Political Parties. He also says that the Court below was perfectly right in refusing to countenance the Appellant’s Motion. He argued that the Appellant could have brought the Application to the Court’s attention, even if by a letter, and apply for a hearing date before the date fixed for Judgment; and that the Courts frown at such Applications tending to arrest a Judgment – Nwankudu V. Ibeto (2010) LPELR 439(CA), Newswatch Communications V. Atta (supra) and Bob Manuel V. Briggs (1995) 7NWLR (PT. 409) 537.

He submitted, citing Ikenta Best Ltd. V. Rivers State (2008) 5 NWLR (Pt. 1084) 612, that it is a well-established equitable maxim, that vigilantibus et non dormentibus jura subservient – the law aids those who are vigilant, not those who are negligent over their rights; and that contrary to the Appellant’s contentions, the Court below gave him fair hearing during the arguments in respect of the said Objection, but the Appellant, who was faced with two options or choices chose to respond vigorously to the objection instead of applying to bring an Application whether-orally or in writing to regularize his process.

It cited Bill Construction Co. Ltd. V. Imani & Sons Ltd. (2006) 19 NWLR (PT 1013) 1 @ 14 and Akinduro V. Alay (2007) ALL FWLR (Pt. 381) 1653 @ 1672, on the subject of fair hearing, and cited the following authorities on when miscarriage of justice occurs –

– Nnajiofor V. Ukonu (1984) 4 NWLR (Pt. 36) 505
– H. Gkonkwo & Anor. V. G. Udoh (1997) 9 NWLR (Pt. 519) 16.
– Prince John Okechukwu Emeka V. Lady Margery Okadigbo & 4 Ors. (2012) IS NWLR (Pt. 1331) 55, 94

He insists that the Appellant did not suffer any miscarriage of justice.

In a Joint Reply Brief to the Respondents’ Briefs, the Appellant disagreed with each and every argument proffered by the Respondents and that is to be expected. However, I have considered the arguments and there is no escaping the fact that this Appeal must be dismissed.

It is there, pomp and plain on the face of the Record of Appeal; learned counsel for the Appellant pointed out that the Appellant is entitled to at least three days to respond to the Preliminary Objection, but with the next breath he said – “we waive the requirement of time”, and with another breath, he added – “we can take the Appeal today”.

He did not think twice; he did not hesitate, and seemed sure that he was standing on a solid foundation when he urged the Court below “to discountenance the Objection”. A few days later, this Court gave reasons for its decision in APC V. General Bello Sarkin Yaki and contrary to the position he took at the Court below, the requirement for the said NBA Seal is mandatory, although it could be regularized. That is when learned counsel for the Appellant ran back to the Court below with the Application filed after the Court below heard arguments on the said Objection and adjourned to write its Judgment. If every litigant did that; proffer arguments in Court on an issue, and while Judgment is being written, discover he is wrong, and rush back to the Court with a Motion to change his tune, what will that portend?

Absolute mayhem and that is why Courts deal firmly with what is known as arrest of Judgment, which is alien to our Rules of Court, and connotes brigandage and lawlessness; things abhorred by the law – Newswatch Comm. V. Atta (supra), Nwankudu V. Ibeto (supra).

In this case, waving the flag of fair hearing is of no moment. Fair hearing envisages that Parties to a case are given the opportunity by the Court of presenting their case from the beginning to the end -see Newswatch Communications Ltd. V. Atta (supra). In this case, I agree with the Respondents that the Appellant cannot complain that he was not given a fair hearing at the Court below. He chose to waive requirement of time, and was battle ready to take the Appeal that day.

The principle is to the effect that where an action was commenced by any irregular procedure and Defendant took steps to participate in the proceedings – – he cannot later be heard to complain of the irregularity as a person will not be allowed to complain against an irregularity, which he himself has accepted, waived or acquiesced. [Aderemi, JSC]

In this case, the Appellant voluntarily chose to waive the time needed to respond to 2nd Respondent’s Objection. It was too late in the day, after the Court below had reserved Judgment, to expect anything else on the date of Judgment – 4/2/2016, than the delivery of the Judgment.
Once an Appeal is argued, there is no other pending proceeding save delivery of Judgment by the Court – Ukachukwu V. PDP (supra).

In the circumstances, this Appeal lacks merit and is dismissed.
The Parties are to bear their respective costs.

Chima Centus Nweze, JSC
I had the advantage of reading the draft of the leading judgement which my Lord, Augie, JSC, just delivered now. I agree with the conclusion that, since the appellant voluntarily chose to waive the time needed to respond the objection of the second respondent, the invocation of the right to fair hearing in this appeal is unavailing.

Indeed, this prescription applies with equal force to the litigants themselves, Okotha v, Herwa Ltd. [2000] 15 NWLR (pt. 690) 249, 258; Adebayo. v AG, Ogun State [2008] 7 NWLR (pt 1085) 201; Mirchandani v. Pinhero [2001] 3 NWLR (pt 701) 557; Abubakar v. INEC [2004] 1 NWLR [pt 854] 207: Scott Emukpor v. Ukaube [1979] 1 SC 6; Oyeyipo v. Oyinloye [1987] 1 NWLR (pt 50) 356; Omo v. JSC, Delta State [2000] 12 NWLR (pt 682) 444; Nwokocha v AG, Imo State (2016) LPELR -40077 (SC).

As shown in the leading judgement, on November 10, 2015 appellant was accorded the right to be heard. However, counsel chose to waive it. Instead, he subsequently, resorted to an unknown strategy, namely, an attempt to arrest the court’s judgement: an attempt which the court rebuffed! Now, ensnared by his own chicanery, he has waved the banner of fair hearing as a trump card.

My Lords, this banner, too, cannot sustain his protest. Indeed, the approach of the appellant’s counsel reminds me of the eloquent formulation in Adebayo v AG, Ogun State (2008) LPELR -80 (SC) 23- 24. For its bearing on the fortune of the appellant’s case, I crave Your Lordships’ indulgence to quote this court’s view in extenso:

I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened.

They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking.

[Italics supplied for emphasis]

From all indications, the appellant has “nothing useful to advocate in favour of [his appeal]….[Accordingly, he is advised to] leave the fair hearing constitutional provision alone because it is not available to [him] just for the asking”

It is for these, and the more detailed, reasons in the leading judgement that I, too, shall dismiss this appeal. Appeal dismissed.

SIDI DAUDA BAGE, JSC
I have had a preview of the Lead Judgment delivered by my Learned brother, Augie JSC, and I agree with all the reasoning and conclusion arrived at. Just to underscore my support for the reasoning, I shall make some comments.

This appeal is against the Judgment of the Court of Appeal, Abuja Division delivered on the 4th of February, 2016. The Judgment struck-out the Appellant’s Appeal on the ground that there is no Nigerian Bar Association (NBA) seal affixed to the Notice of Appeal and Appellant Brief respectively.

The Judgment is at pages 683 to 698 of the record while the Notice of Appeal against same containing two grounds is at pages 699 to 707 thereof. It is dated 18th February, 2016 and was filed the same date. Based on the two grounds contained in the said Notice of Appeal, the Appellant propose a sole issue for the determination of this appeal to wit:-

” Whether or not the refusal of the learned Justice of the Court of Appeal to hear and determine the Appellant’s motion on Notice dated 20th November 2016 and filed 23 November to regularize the Appellant Notice of Appeal dated and filed on 22nd July, 2015 and Appellant Brief dated and filed on 4th August 2015 is not a breach of the Appellant’s fundamental right to fair hearing in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 which renders the Judgment of the Court delivered on 4th February 2016 void?”

The 1st Respondent formulated a sole issue for the appeal to wit:-

” Whether the refusal of the Court below to hear the Appellant’s motion to regularize his position on the day of the Judgment amounts to the breach of the Appellant’s fundamental right of fair hearing.”

The 2nd Respondent formulated two issues for determination of this Appeal to wit:-

“(1) Whether the lower Court breached the Appellant’s constitutional right to fair hearing by refusing to hear his oral applications and Motion on Notice dated 20th November 2016 (sic) and filed on 23rd November 2015 (sic) to regularize the Appellant Notice of Appeal dated and filed on 22nd July 2015 and Appellant Brief dated and filed on 4th August 2015 (ground 1).

(2) Whether this is a proper case in which this Court can invoke its powers under Section 22 of the Supreme Court Act.”

The 3rd Respondent has formulated a sole Issue determination, wit:-

“Whether or nor the refusal of the Court of Appeal to hear and determine the Motion on Notice dated 20th day of November, 2015 filed after the Court has reserved Ruling/Judgment in the Appeal amount to denial of the Appellant’s right to fair hearing.”

The 4th Respondent formulated issue is as follows:-

“Whether or not the refusal of the Learned Justices of the Court of Appeal to hear and determine the Appellant’s Motion on Notice dated 20th November, 2015 and filed on 23rd November, 2015, to regularize the Appellant’s Notice of Appeal dated and filed on 22nd July 2015 and Appellant’s Brief of Argument dated and filed 4th August, 2015 is not a breach of the Appellant’s fundamental right to fair hearing in Section 36(1) of the Constitution of the Federal Republic of Nigeria,1999 which renders the Judgment of the Court delivered on 4 February, 2016 void.”

The 5th Respondent adopts the Appellant’s sole issue for determination (See Appellant’s sole Issue).

The 6th Respondent also formulated a sole Issue for determination to wit:-

” Whether the refusal of the Court below to hear the Appellant’s Motion on Notice dated 20th November 2016 and filed on 23rd November 2016 to regularize the Appellant’s Notice of Appeal dated filed on 22nd July 2015 and filed on 4th August 2015 after full arguments had already been taken on the objection that the said Notice of appeal is incompetent and Judgment reserved, is in breach of the Appellant’s right to fair hearing in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).”

MAIN APPEAL
What therefore portends where a motion that was duly filed, served to be heard on date of Judgment, was refused or denied to be heard, because it was a date reserved for judgment by the trial Court. Put in another way, was the Appellant denied fair hearing by this refusal to hear his motion. This Court in the case of DEDUWA VS OKORODUDU 4 LC 894 at 898 defined what is a fair Hearing:-

“A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice. Evershed M.R. said in ABBOT VS SULLIVA. In MOHAMMED VS KANO N.A., Ademola C.J.N, (delivering the Judgment of the Court) said at page 426:-

“We think a fair hearing must involve a fair trial and a fair trial consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing it was suggested by Counsel is the impression of a reasonable person who was present at the trial whether, from his observation justice has been done in the case. We feel obliged to agree with this.”

If, of course, there is no hearing of one party’s side of the case especially if it is through no fault of his own, this may also amount to no “Fair hearing” of his side of the case and he will not have had a “fair hearing in the determination of his civil rights and obligations to which he is entitled under Section 22(1) of the Constitution.”

This Court had pronounced that “the right to fair hearing does not stop with the parties being present in Court.” It is a right to be heard at every material stage of the proceedings. In this case, the Appellant voluntarily chose to waive the time needed to respond to 2nd Respondent’s
Objection. It was too late in the day, after the Court below had reserved Judgment, to expect anything else on the date of Judgment – 4/2/2016, than the delivery of the Judgment. Once an Appeal is argued, there is no other pending proceeding save delivery of Judgment by the Court – UKACHUKWU VS PDP (2014) 17 NWLR (Pt. 1435) 1334 SC.

For a more detail reasoning contained in the Lead Judgment, I also hold that the Appeal lacks merit and it is also dismissed by me. I abide by the order as to costs contained in the Lead Judgment.

Mary Ukaego Peter- Odili, JSC
I am in complete agreement with the judgment just delivered by Amina Adamu Augie JSC and to underscore my support for the reasoning I shall make some comments.

The appellant as plaintiff commenced this suit at the Federal High Court by way of an Originating Summons filed on the 5th day of February 2015 with the question in the originating summons thus:

“Whether having regard to sub sections 178(2) and 180(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the 1st defendant can legally conduct Governorship Election in Adamawa State on Saturday, 28 February 2015″

The trial Federal High Court after hearing on the originating summons dismissed the suit and on appeal to the Court of Appeal or court below, the appeal was struck out hence the current appeal to the Supreme Court. The full facts are well set out in the lead judgment and there is no point repeating them.

On the 14th day of December, 2016 date of hearing, learned counsel for the appellant adopted his brief of argument settled by Sylvester Imhanobe Esq. and filed on 8/3/2016. In it was identified a sole issue, viz:

Whether or not the refusal of the Seamed justices of the Court of Appeal to hear and determine the Appellant’s Motion on Notice dated 20/11/2015 and fifed on 23rd November 2015 to regularize the Appellant’s Notice of Appeal dated and fifed on 22 July 2015 and Appellant’s Brief of Argument dated and filed on 4th August 2015 is not a breach of the Appellant’s fundamental right tto fair hearing in Section 35(1) of the Constitution of the Federal Republic of Nigeria, 1999 which renders the judgment of the court delivered on 4th February 2015 void?

Learned counsel for the 1st respondent adopted its brief settled by T. M. Inuwa Esq, filed on 5/52016 and in it raised a single issue as follows:

Whether the refusal of the court below to hear the appellant’s motion to regularize his position on the day of the judgment amounts to the breach of the appellant’s fundamental right of fair hearing.

2nd respondent had its brief of argument settled by Adeyemi Pitan and filed on 13/4/2016. He argued the preliminary objection therein and the sole issue is thus:

Whether having regard to the reliefs claimed by the appellant at the trial court, the issues submitted before this honourable court have not become academic and moot.

2nd respondent contended that in the event the preliminary objection failed the issue for determination of the appeal would be thus:

Whether the lower court breached the appellant’s constitutional right to fair hearing by refusing to hear his oral application and motion on notice dated 20/11/2016 (sic) and filed on 23 November 2016 (sic) to regularize the Appellant’s Notice of Appeal dated and filed on 22nd July 2015 and Appellant’s Brief dated and filed on 4th August 2015.

Whether this is a proper case in which this court can invoke its powers under section 22 of the Supreme Court Act.

The 3rd respondent had a brief of argument settled by Kenneth Aina Esq. and filed on 20/4/16 and in it distilled a sole issue, viz:

Whether or not the refusal of the Court of Appeal to hear and determine the motion on notice dated 20th day of November, 2015 filed after the court had reserved Ruling/judgment in the Appeal amounts to denial of the appellant’s right to fair hearing.

The 4th respondent had its brief of argument settled by Dr. Soni Ajala, filed 1/12/2016 adopted by learned counsel. In it was raised a sole issue thus:

Whether or not the refusal of the learned justices of the Court of Appeal to hear and determine the Appellant’s Motion on Notice dated 20/11/2015 and filed on 23rd November 2015 to regularize the Appellant’s Notice of Appeal dated and filed on 22 July 2015 and Appellant’s Brief of Argument dated and filed on 4th August 2015 is not a breach of the Appellant’s fundamental right to fair hearing in Section 35(1) of the Constitution of the Federal Republic of Nigeria, 1999 which renders the judgment of the court delivered on 4th February 2016 void. The brief of the 5th respondent settled by J. J. Usman Esq. filed on 16/5/2016 was adopted by learned counsel and in it was adopted the appellant’s sole issue for determination, to wit:

Whether or not the refusal of the learned justices of the Court of Appeal to hear and determine the Appellant’s Motion on Notice dated 20/11/2015 and filed on 23rd November 2015 to regularize the Appellant’s Notice of Appeal dated and filed on 22 July 2015 and Appellant’s Brief of Argument dated and filed on 4th August 2015 is not a breach of the Appellant’s fundamental right to fair hearing in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 which renders the judgment of the court delivered on 4th February 2015 void.

Chief Chris Uche SAN adopted the brief of argument of the 6th respondent filed on 31/3/2016 and he too raised a single issue as follows:

Whether the refusal of the court below to hear the appellant’s Motion on Notice dated 20th November, 2016 and filed on 23rd November 2016 to regularize the appellant’s notice of appeal dated and filed on 22nd July 2015 and filed on 4th August 2015 after full arguments had already been taken on the objection that the said Notice of Appeal is incompetent and judgment reserved, is in breach of the appellant’s right to fair hearing in section 35(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

The appellant also filed a reply brief to the 1st 2nd, 5th, and 6th respondents’ briefs of argument which reply was filed on 15/6/2016.

It is stating the obvious to say, the Preliminary Objection of the 2nd respondent will be dealt with before any other step can be taken as the competence of the appeal and the jurisdiction of the court depend on it.

PRELIMINARY OBJECTION
Take Notice that this court will be moved on the ………………day of …………2016 at the hour of 9 o’clock in the forenoon or so soon thereafter as counsel may be head on behalf of the 2nd respondent/applicant praying the court for the following orders:

1. An order dismissing and/or striking out the appellant’s appeal filed on February 18, 2016 for lack of jurisdiction in that the issues arising from the subject matter are no longer live issues to be adjudicated upon by this court. 2. And for such further and other orders as this honourable court may deem fit to make in the circumstances.

GROUNDS OF THE APPLICATION
1. The appellant’s claim at the Federal High Court is that the tenure of office of Governor Bala Ngilari, the immediate past Governor of Adamawa State expired on February 8, 2016 as against My 28, 2015.

2. The appellant’s claims and reliefs are no longer live issue which can be adjudicated upon by this honorouable court. ”

3. The appeal has become otiose, academic and moot and no longer worthy of adjudication by this court.

Learned counsel for the 2nd respondent, objector contended that the issue before this court has no life in it and the appeal is a waste of time of the court, having become academic, moot and hypothetical. He cited Plateau State v A, G. Federation (2006) 3 NWLR (Pt. 967) 346; Ugba v Suswam (2014) 14 NWLR (Pt. 1427) etc.

That the appeal should be dismissed.

In response, learned counsel for the appellant submitted that the crux of the appellant’s case is that the 1st respondent breached sections 178 and 180 of the 1999 Constitution (as amended). That if the Governorship Election in Adamawa State conducted by the 1st respondent (INEC) which produced the 6th respondent as Governor of the State is an infraction against the
1999 Constitution (as amended), it would be immaterial that the tenure of the incumbent Governor at that time is now expired. That this court has power into the entire process leading to the election of Adamawa State and nullify the election conducted by the 1st respondent (INEC) if it conducted the election in breach of the 1999 Constitution CFRN. He stated that appellant commenced this suit on 5th February 2015 more than two months before the 1st respondent conducted the general election and so the suit is not academic as the issues to be determined are alive and germane.

The relief claimed in this preliminary objection is as follows:

An Order dismissing and/ or striking out the appellant’s appeal filed on February 18th, 2016 for lack of jurisdiction in that the issues arising from the subject matter are no longer live issues to be adjudicated upon by this court.

The objector/2nd respondent had distilled a sole issue for determination, viz:

Whether having regard to the reliefs claimed by the appellant at the trial court, the issues submitted before this honorourable court have not become academic and moot.

Canvassing the stance of the 2nd respondent/objector, learned counsel contended that there is no obligation on the court to adjudicate on since the matter is no longer alive and what is at foot is a moot discourse. The appellant disagrees on the ground that since there is an infraction on the rights of the appellant, the court has a duty to offer the redress.

The crux of the appellant’s case is that the 1st respondent breached section 178 and 180 of the 1999 Constitution (as amended) and that by 8th February, 2012 the four year tenure of the incumbent, Bala Ngilari, Governor of Adamawa State would start running and end on February, 2006. Based on that calculation, the appellant did not indicate any interest in the general election for Adamawa State Governorship in 2015. However a general election took place in 2015 and a new Governor elected, thereafter the appellant took out the suit which has culminated into this current appeal. The suit that progressed to this appeal was instituted at the Federal High Court in February 2015.

The facts above have brought about a foray into what can be taken as an academic discourse under the colour of adjudication. It is to be said that a suit is considered academic where it is merely theoretical, makes an empty sound and of no practical utilitarian value to the plaintiff even if the judgment is given in his favour. A matter unrelated to the practical situation
of human nature and humanity. Matters such as described are certainly not for the precious time of the courts which being saddled with more useful adjudicatory issues are clearly being led a garden path on a useless vainglorious adventure into the academic world which have the Ivory towers meant for such. See Plateau State v Attorney General of the Federation (2006) 3 NWLR (Pt. 967) 345; Ugba v Suswan (2014) 14 NWLR (Pt. 1427); Adepofu v Yinka (2012) 1 SC 125 at 147; Salik v Idris (2014) 15 NWLR (Pt. 1429) 35 at 54.

Indeed this Preliminary Objection is meritorious in that even if at the end of the day the judgment goes in favour of the appellant, the issue under discourse being the matter of who is to be the Governor of Adamawa State has since been laid to rest since there is a legally, properly elected and seated Governor in place and no pronouncement of this court can validly be made changing that situation. It falls to reason that the matter of which this appeal is before us is dead, no longer alive and nothing can change it. The objection is upheld.

However to clear whatever webs of doubt that may be I shall enter into the main appeal.

MAIN APPEAL
However looked at, each of the issues as crafted by the parties ask the same question which in effect would be taken to be:

Whether the refusal of the Court of Appeal to hear and determine the Motion on Notice of 20/II/2015 filed after the court had reserved Ruling/judgment in the appeal amounts to denial of appellant’s right to fair hearing.

Learned counsel for the appellant positing a positive answer to the question raised contended that the Court of Appeal failing to hear that motion to regularize the Notice of Appeal being in breach of appellant’s right to fair hearing rendered the judgment delivered on the 4th February 2016 void. He cited Dandume Local Government & 9 Ors v Alhaji Abdulamutallab Abdu Yaro (2011) 11 NWLR (Pt. 1257) 159 at 190.

That this court should invoke the general power under Section 22 of the Supreme Court Act and determine the real issue in controversy between the parties being an issue of law. He referred to Order 8 Rule 12 (5) of the Supreme Court Rules, 2008.

Learned counsel for the 1st respondent stated that a calm reading of the proceedings of 10th November, 2015 would show that the fair hearing right of the appellant was not beached. That the appellant not only waived his right of the time within which to respond to the Notice of Preliminary Objection and actively participated at the hearing of the objection and so cannot turn around now to complain of the infraction to his right of fair hearing. He cited Inakofu v Adefeke (2007) 4 NWLR (Pt. 1025) 423, Ukachukwu v PDP (2014)17 NWLR (Pt. 1435) 134.

It was further contended that the Supreme Court can only invoke its powers under section 22 of the Supreme Court Act and Order 8 rule 12(5) of the court’s Rules when it has jurisdiction to entertain the appeal.’ He referred to Hassan v Aliyu (2010) 17 NWLR (Pt. 1223) 547.

For the 3rd respondent, learned counsel said by his volition counsel to the appellant joined issues with the other parties at the hearing of the preliminary objection appellant raised to the briefs of the respondents and they were all heard and so he cannot now talk about a lack of fair hearing. He cited Lagos Sheraton Hotel & Towers v H. P. S. S, S.A (2014) 14 NWLR (Pt. 1426) 45 at 71; Mbanefo v Mofokwu (2014) 6 NWLR (Pt. 1403) 377 at 418-419.

That what the appellant was seeking with the said motion of 20th November, 2015 was to arrest the judgment of the Court of Appeal, a procedure unknown to our law, he cited the case of Newswatch Communication Ltd v Attah (2006) 12 NWLR (Pt. 993) 143 at 179.

Learned counsel for the 4th respondent stated that the appellant has not proffered sufficient materials on which the denial of fair hearing can be substantiated. He relied on Adebavo v A. G. Ogun State (2008) 4 MJJSC 80 at 96.

For the 5th respondent it was canvassed that when parties have joined issues on a particular subject matter the only duty left for the court is to proceed to deliver judgment on those issues. He cited Metal Construction Ltd v Miglore & Anor. (1979)6 – 9 SC; IBWA Ltd v Imano Nig. Ltd (2001) FWLR (Pt. 44) 443.

Learned counsel for the 6th respondent said what amounts to miscarriage of justice vary from case to case and depending on the facts and circumstances of a particular case. He cited Emeka v Okadigbo (2012) 18 NWLR (Pt. 1331) 55 at 94 etc.

Learned counsel for the 2nd respondent calls on the court to dismiss this appeal as it is an invitation to assume jurisdiction and adjudicate over a matter that is already dead. See PPA v INEC (2012) 13 NWLR (Pt. 1317) 215 at 245.

The appellants position is an Invocation of this court’s powers under section 22 of the Supreme Court Act on the grounds, viz:

1. That this is a pre-election matter which this court has always afforded priority.

2. The suit is commenced by Originating Summons and there is no dispute as to the facts of the case.

3. To remit the case to the lower court would constitute undue delay, which this court does not countenance.

4. All the processes required to determine this appeal on the merit are before this court.

The 1st respondent’s viewpoint is that the appellant has failed to establish any grounds for the invocation of the powers under section 22 of the said Act. All the other respondents towed the same line of thought of the 1st respondent and that is that the conditions under which such an invocation of section 22 of the Supreme Court Act can be done do not exist. Also that the appellant is a meddlesome interloper in instituting this suit in the first place.

The law at the base of which the appellant anchors his cry is section 22 of the Supreme Court Act which provision I shall quote hereunder, viz:

The Supreme Court may, from time to time, make any Order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquires or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings has been instituted and prosecuted in the Supreme Court as a court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court.”

It needs be said as first shot that before this court can invoke section 22 of the Supreme Court Act to entertain any matter like the court of first instance or court below there must be a proper appeal before the court. The provision is not devised to revive dead issues. : Also where the court below lacks jurisdiction then the Supreme Court is without jurisdiction to do anything else and the invocation of section 22 of the Supreme Court Act does not arise. See PPA v INEC (2012) 13 NWLR (Pt. 1317) 215 at 245 per Adekeye JSC; Hassan v Aliyu (2010) 17 NWLR (Pt. 1223) 547.

The appellant had also called attention to a breach of his right to fair hearing in that his motion of 23rd November, 2015, same date of judgment of the Court: of Appeal was not heard.

The facts relating to the above issue are that there had been arguments taken on a process filed by the appellant without a lawyer’s seal which appellants counsel argued was not of consequence and the court below considered the issue and adjourned for judgment to the 23rd November, 2016. On that date of judgment the appellant flew in a motion contesting that his right to fair hearing had been breached on the said matter of whether or not the non affixing of the NBA seal vitiated his appellant’s brief.

The appellant contends that the court below not hearing the motion before proceedings to deliver the judgment infringed his right under section 36 of CFRN.

The respondents disagreed on the point contending that he had the opportunity which he utilized and cannot turn around to talk of a breach of fair hearing. That what he had set out to do was akin to arresting the judgment slated for that day.

It is to be stated at the risk of restating an otherwise overflogged issue, that the application of the principle of fair hearing is not to be done in vacuo, just by the waving of the frag that fair hearing has been breached. It has to be taken in context and within the balance of the equal opportunity granted the parties as in this instance where from what had transpired between the parties earlier on, the appellant had had the opportunity to be heard on the matter of the NBA seal. He also had ample time to raise any infraction before that date slated for judgment, he waited just like a hunter setting a trap for his prey and when there would be no room for escape in which case, the judgment of that day would be put off by way of a procedure unknown to our law, an arrest of judgment. In this case, the principle of fair hearing cannot be available to such a party. See Ukachukwu v PDP (2014) 17 NWLR (Pt. 1335) 134; Inakoju v Adeleke (2007) 4 NWLR (Pt. 1025) 423; Orugbo v Una (2002) 16 NWLR (Pt. 792) 175; Mbanefo v Molokwu (2014) 5 NWLR (Pt. 1403) 377 at 418-419.

In the end, this matter pursued by the appellant has no peg to hang on, there was no breach of his right to fair hearing and even at that the issue being canvassed had long died and the court is called upon to resuscitate a dead and buried matter to the utter irritation of court.

From the foregoing and the better reasoning in the lead judgment, this appeal lacks merit and is dismissed. I abide by the consequential orders made.

CLARA BATA OSUNBIYI, JSC
I have had the privilege of reading in draft the lead judgment of my learned brother Augie, JSC. I agree that the appeal is devoid of any merit and it should be dismissed.

The suit was commenced by Originating Summon to determine:

“Whether having regard to sub-section 178(2) and 180(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the 1st defendant can legally conduct Governorship election in Adamawa State on Saturday, 28th February, 2015.”

The Federal High Court dismissed the appellant/plaintiff’s suit. An appeal to the Court of Appeal was also Dismissed. A preliminary objection was filed challenging the appellant’s brief filed without NBA seal affixed thereto. This was following the desicion of this court in APC v. General Bella Sarkin Yaki unreported suit No. SC. 722/15 delivered on 23rd November, 2015. The appellant filed a motion seeking an order of court extending the time within which he may regularise his notice of appeal filed without affixing the NBA seal. He sought for time also to regularise his appellant’s brief and a deeming order of the documents as properly filed.

The lower court struck out the appeal on the ground that there was no NBA seal affixed to the notice of appeal and appellant’s brief of argument and hence the appeal now before us.

I agree with the lead judgment of my brother that the preliminary objection is without substance and is hereby overruled.

On the merit of the appeal the lone issue before this court and adopted by all the parties is hinged on question of fair hearing. I will hereby adopt the formulation by the 1st respondent which is, in my view very concise and to the point as follows:

“Whether the refusal of the court below to hear the appellant’s motion to regularize his position on the day of the judgment amounts to the breach of the appellant’s fundamental right of fair hearing.”

Emphatically it is submitted on behalf of the appellant that parties must be given equal opportunity to present their cases in the court or tribunal and that no party should be given more opportunity or advantage over and above the other in the presentation of his case.

I must say without hesitation that the contention put forth why the learned counsel for the appellant is well taken. The caveat however is, where the law recognises that no right is absolute and at large. In other words, an individual’s or parties’ right is subject to the right also of the other party. It is pertinent to restate clearly that one’s right ends at the point where the exercise encroaches on the liberty and right of the other party. The right to fair hearing must therefore be exercised within the legal frame work provided by law for the hearing of a matter.

The learned counsel for the appellant made reference copiously to section 36 of the constitution 1999 (as amended) and sub-section (1) states as follows:-

” 36(1)

In the determination of his civil rights and obligations including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

The foregoing provision is very succinct and clear on the concept of fair hearing. The sub-section in my view is open to all parties coming before a court of law or a tribunal. There is no restriction or exclusion of one party against or in favour of the other. By fair hearing in this context it simply denotes giving an equal opportunity to the parties to be heard.

This principle was largely and expounded by this court in the case of Pam v. Mohammed (2008) 16 NWLR (Pt.1112) 1 part 68 wherein Tobi, JSC had this to say.

“Fair hearing, in essence means giving equal opportunity to the parties to be heard in the litigation before the court. See INEC v. Alhaji Musa (2003) 3 NWLR (Pt. 306) P.72. Fair hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. See Ntukidem v.Oko (1986) 5 NWLR (Pt. 45) 909; Union Bank of Nigeria Limited v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127. Fair hearing in relation to a case means the trial of a case or the conduct of the proceedings therein in accordance with the relevant laws, rules of court and principle of natural justice. See Ekpeto v. Wanogho, (2004) 18 NWLR (Pt. 905) 394. See also Brifina Ltd v. Intercontinental Bank Ltd. (2003) 5 NWLR (Pt. 814) 540.”

The community reading and summary of the foregoing authorities lay down the confirmation that fair hearing is that process which is conducted in accordance with the relevant laws or rules.

With reference made to the record of proceedings especially at page 679 -682, there is ample evidence that issues were joined by all the parties on the proprietary or otherwise of the Appellant’s Notice of appeal filed without the NBA seal. Parties also did adopt their respective briefs of argument and judgment was reserved. It is intriguing that having joined issues in this wise with the objectors, the same appellant can now turn round to claim that he has been denied the right to fair hearing.

The appellant, by his own admission, admitted to have joined issues with the 2nd Respondent (then objector) thus, and as rightly contended by the Respondents, there cannot be any justification that there was a denial of fair hearing.

The law is well settled that when parties join issues on a particular subject matter, the only duty saddled on the court is to proceed to deliver judgment on those issues. See metal construction (W.A.) Ltd & 2 Ors v. Miglione & Anor (1979) 6 – 9 SC (Reprint) 118. See also IBWA Ltd v. Imano Nig. Ltd (2001) FWLR (Pt. 44) at 443.

As rightly submitted by the respondents, the appellant’s application was meant to stay a judgment, or delay the judgment which was about to be delivered. The lower court, in my view was on a very sound footing and could not be faulted when it proceeded to deliver its judgment which was ready on the said date. The appellant wanted to be a clog in a wheel of justice and progress. This should not be allowed to happen. He was stopped rightly.

The law is well entrenched that where a party in a suit who refused or failed to take advantage of the fair hearing process created by the court, he cannot later turn round to accuse the court of denying him of justice. See the case of Inakoju v. Adeleke (2007) 4 NWLR (t. 1025) P. 423.

It is not out of place to say at this juncture that the appellant did not only waive his right at the time within which to respond to the notice of preliminary objection; rather he also actively participated in the proceeding wherein he urged the court to discountenance the objection. See also Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) P.134. at page 197-198 wherein this court said:-

“The question of fair hearing is a matter of feet which must be established by evidence. The Black’s law Dictionary, Ninth Edition at page 789 defines fair hearing as:

“A judicial or administrative hearing conducted in accordance with due process.”

As rightly submitted by the 1st respondent’s counsel, it was too late for the appellant to attempt to move that motion on the day set for no other business than the deliverance of the judgment.

With the notice of appeal being incompetent, the court below lacks the jurisdiction to entertain the appeal which was rightly struck out. The lower court was also right to have refused to hear the appellant’s motion which was purely meant to delay the delivery of its judgment.

My learned brother Augie, JSC has done justice to lone issue raised in this appeal. With the few words of mine and while relying especially on the comprehensive reasoning and conclusion arrived at in the lead judgment, I also find no merit on this appeal.

Same is therefore also dismissed by me and I abide by all orders made in the lead Judgment.

APPEARANCES

A. Amuda-Kannike (SAN) with A. O. Yusuf, Esq. for the Appellant.

T. M. Inuwa Esq., with R. A. Ugbane (Mrs), R. Aminu (Mrs), A. N. Makwe (Mrs), M. Ibrahim (Mrs) and C. C. Nnamah (Miss) for the 1st Respondent.

Yemi Pitan, Esq., with Samuel Shagba, Esq. for the 2nd Respondent.

Kenneth Ahia, Esq. with Luther K. Onyenkpa, Esq. for the 3rd Respondent

Dr. Sani Ajala, Esq., with Constance O. Afekhai (Miss) and Nadia Oka (Mrs.) for the 4th Respondent.

J. J. Usman, Esq. with M. K. Bielonwu, Esq. and C. C. Ifemenam, Esq. for the 5th Respondent.

Chief Chris Uche (SAN) with James 0diba, Esq., Emmanuel Okorie, Esq Chukwudi Maduka Esq., Oluwatoyin Runsewe (Mrs.), Emeka Jessica (Miss), Angela I. Uche (miss),
James Ebbi, Esq., Chijindu Okwuhie (Miss), and Crystal Enujuba (Miss), for the 6th Respondent.

LawCare Nigeria