HON. CHUKWUKA (CHUCHU) ONYEMA V. MR. AFAM OGENE & ORS.
(2011)LCN/4687(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of September, 2011
CA/E/EPT/08/2011
RATIO
COMPETENCE OF THE COURT: WHEN IS A COURT SAID TO BE COMPETENT
The settled position of law is that the “competence” of a court being the hand maiden of the “court’s jurisdiction”, a court must therefore have both ‘Jurisdiction” and “competence” to be properly seized of a cause or matter. And a court is said to be “competent” where (i) it is properly constituted with respect to the number and qualification of its members; (ii) the subject matter of the action is within its jurisdiction; and there is no feature in the case which prevents the court from exercising its jurisdiction; (iii) the action is initiated by due process of law; and (iv) any condition precedent to the exercise of jurisdiction has been fulfilled. See COTECNA INTERNATIONAL LTD. V. IVORY MERCHANT BANK LTD. (2006) All FWLR (Pt. 315) 26 at 43, MADUKOLU V. NKEMDILIM (supra); and IBEANU V. OGBEIDE (1994) 7 NWLR (Pt. 359) 697 at 709. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
JURISDICTION: CONSEQUENCE OF A DECISION MADE OR JUDGMENT DELIVERED WITHOUT JURISDICTION
Given the fundamental nature of the question or issue of jurisdiction to adjudication by a court or tribunal over a matter before it, the law is that the issue of jurisdiction can never be discountenanced on the ground that it is being raised too late in the proceedings. Jurisdiction has been variously described as fundamental to the exercise of power by a court in relation to matters before it; or as being the lifeline to the exercise by a court of its power of adjudication. Again, given the nature of the issue of jurisdiction, the law has always been, and still is, that jurisdiction cannot be conferred on a court by agreement of parties or by their acts of omission or commission. This is why the law allows the issue of jurisdiction to be raised on appeals and even 0n appeals before the Supreme Court, the highest court in the hierarchy of courts in Nigeria. Again, the settled position of law is that whenever a court acts without jurisdiction, such as by taking on a case which by law it should not have entertained; the proceedings in the case including any decision made therein are irredeemably bad and cannot be salvaged. See INEC V. THE REGISTERED TRUSTEES OF THE CHURCH OF NIGERIA (ANGLICAN COMMUNION) DIOCESE OF ORLU (2010) All FWLR (Pt.511) 1015. Indeed, it is settled law that a decision made or judgment delivered without jurisdiction is null and void. Everything done by a court without jurisdiction is a complete waste of time and a nullity. See OSAKUE v. FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA (2010) All FWLR (Pt.522) 1601; and OLUFEAGBA V. ABDUR-RAHEEM (2010) All FWLR (Pt.512) 1033. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
JURISDICTION: WHETHER AN ELECTION TRIBUNAL IS ALLOWED TO RAISE SUO MOTU THE ISSUE OF ITS JURIDICTION OVER A PETITION
I am of the considered view, that the fundamental nature of jurisdiction to adjudication over Petitions by the Tribunal has been sufficiently demonstrated. It is also my considered view that in the light of the fundamental nature of jurisdiction to adjudication and the consequence(s) of the lack of it, on whatever that is done in a matter, the Tribunal perceiving that it lacks the jurisdiction to entertain the instant Petition was very much in order to have raised the issue suo motu for resolution before the Petition proceeded to pre-hearing session. Indeed it would have been a waste of precious judicial time and energy for the Tribunal, after perceiving that it lacked jurisdiction over the Petition to have waited till the pre-hearing session as contended by the Appellant, before raising and resolving the issue of its competence to entertain the instant Petition. The position would however have been different if the challenge to the jurisdiction of the Tribunal to entertain the Petition had been raised by any of the Respondents. It is in such a situation that the submissions of the Appellant on the issue can succeed and the cases relied upon by him applicable. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
INTERPRETATION OF STATUTE: PROVISION OF PARAGRAPH 4 OF THE 1ST SCHEDULE (SUPRA) AS TO THE CONTENT OF AN ELECTION PETITION
Paragraph 4 of the 1st Schedule (supra) deals with “content of election petition”. The provisions of the paragraph read thus:- ‘4(1) An election petition under this Act shall- (a) specify the parties interested in the election petition; (b) specify the right of the petitioner to present the election petition; (c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and (d) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner. (2) xxxxxxxxxxxxxxxxxxxxxxxxx (3) xxxxxxxxxxxxxxxxxxxxxxxxx (4) xxxxxxxxxxxxxxxxxxxxxxxxx (5) The election petition (a) shall be accompanied by – a list of witnesses that the petitioner intends to call in proof of the petition; (b) written statements on oath of the witnesses; and (c) copies or list of every document to be relied on at the hearing of the petition. (6) A petition which fails to comply with sub-paragraph (5) of this paragraph shall not be accepted for filing by the secretary. (7) An election petition, which does not comply with subparagraph (1) of this paragraph or any provision of that subparagraph is defective and may be struck out by the Tribunal or Court.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
INTERFERENCE WITH THE FINDINGS OF FACT: DUTY OF THE APPELLATE COURT WHERE THE TRIBUNAL IN STRIKING OUT A PETITION WAS APPARENTLY UNDER A MISAPPREHENSION OF THE FACTS BEFORE IT
… it was however made clear that where the Tribunal in striking out a Petition was apparently under a misapprehension of the facts before it, then this Court can properly intervene and correct the wrong done by the Tribunal. See also ENEMUO V. DURU (2005) All FWLR (Pt. 304) 508, which decision is based on the Electoral Act, 2002. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
POWERS OF THE ELECTION TRIBUNAL: WHETHER THE TRIBUNAL HAS THE POWER TO STRIKE A PETITION FOR NON-COMPLIANCE WITH THE PROVISION OF PARAGRAPH 4(1)(C) ON THE GROUND THAT THE SCORES OF CANDIDATES WERE NOT SET OUT IN THE PETITION
As the Tribunal was bound to accept as true, the averment in paragraph 4 of the Petition as at the time it was considering the issue as to whether or not it has the jurisdiction to entertain the Petition, its decision to strike out the Petition for non-compliance with the provision of Paragraph 4(1)(c) in that the scores of candidates were not set out in the Petition, is clearly a wrong exercise of discretion inasmuch as it is clear that the exercise of discretion striking out the Petition was based on a clear misapprehension of the averment in paragraph 4 thereof. I therefore hold that the Tribunal was patently wrong in striking out the Petition and the decision in that regard cannot be allowed to stand. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
JUSTICES
ABUBAKAR JEGA ABDUL KADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL E. OSEJI Justice of The Court of Appeal of Nigeria
Between
HON. CHUKWUKA (CHUCHU) ONYEMA Appellant(s)
AND
1. MR. AFAM OGENE
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. RETURNING OFFICER (OGBARU FEDERAL CONSTITUENCY)
4. THE RESIDENT ELECTORAL COMMISSION ANAMBRA STATE (INEC)
5. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A: (Delivering the Leading Judgment): This is an appeal against the Ruling delivered on 11/7/2011 by the National and State Houses of Assembly Election Tribunal, Awka Anambra State, (hereafter simply referred to as “the Tribunal”) striking out Petition No. EPT/AN/NAE/HR/54/2911 on the ground that it lacks the jurisdiction to entertain the same as the Petition failed to comply with Paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2010 (as amended). The Electoral Act 2010 (as amended) will hereafter be simply referred to as “the Electoral Act”.
The Appellant as Petitioner instituted Petition No. EPT/AN/NAE/HR/54/2011 on 24/5/2011 before the Tribunal challenging the declaration and return of the 1st Respondent – Mr. Afam Ogene by the 3rd – 5th Respondents as the winner of the election to the National Assembly (Federal House of Representatives) for Ogbaru Constituency of Anambra State held on 9/4/2011; but which election, the 5th Respondent wrongly declared as inconclusive. It is the case of the Appellant that he was the candidate of the Peoples Democratic Party (hereafter simply referred to as -PDP”) at the election. He further averred in paragraph 4 of the Petition thus;
“That as earlier on stated above, after the election of 9/4/2011, the INEC had declared the same inconclusive albeit wrongfully, she had later declared the following result on 6/5/2011.
(i) Accord Party – 2871 votes;
(ii) ACN Party – 1919 votes;
(iii) ADC Party – 143 votes;
(iv) ANPP Party – 234 votes;
(v) APGA Party – 10153 votes (declared winner);
(vi) CDC Party – 78 votes
(vii) Labour Party – 91 votes
(viii) PDP – 8543 votes;”
The Appellant pleaded that he would at the trial rely on a copy of the declaration of result in which Afam Ogene of the APGA Party was declared as the winner of the election with 10,153 votes.
The Respondents to the Petition duly filed their respective Replies w1h the 3rd – 5th Respondents filing two Replies by two different counsels. The question of dual representation for the 3rd – 5th Respondents was resolved in the course of the proceedings on 4/7/2011. Also in the course of the proceedings on the said 4/7/2011, the Tribunal stated thus:-
“Court: Parties are to address us whether there is a conformity with para 4(i)(c) of 1st Schedule to the Act?
Secondly, whether there is an intra party dispute? Parties are to submit their written addresses and file by 4:00 P.M. tomorrow. Petitioner to file his reply by Thursday. Respondents if there is need for reply to do so by 4:00 P.M. Friday. All dates are of this week. Matter adjourned to 11-7-2011 for adoption.”
On 11/7/2011, learned counsel who appeared for the Appellant, having argued to the effect that the Tribunal could not raise the issue of jurisdiction suo motu, adopted the written address he had filed in support of a motion dated 8/7/2011. By the motion, the Tribunal was urged to disqualify itself from entertaining the Petition and to transfer the same. On the same day, i.e., 11/7/2011, the Tribunal further entertained oral submissions from all learned counsel for the parties in the Petition that were represented by counsel, on the issue of jurisdiction it had raised suo motu. Learned counsel for the parties that filed written addresses in line with the order of the Tribunal also adopted their written addresses on the issue raised by the Tribunal suo motu. The Tribunal delivered its Ruling in relation to the issue raised by Appellant’s counsel as well as the issue of jurisdiction raised by it suo motu, on the same date i.e. 11/7/2011. Dwelling on the issue of its jurisdiction to entertain the Petition in its Ruling, the Tribunal declared thus:-
The requirement of paragraph 4(i)(c) (supra) is that it is the scores of the candidates that must be stated in the petition. This has not been complied with. Only scores of political parties are stated.
We accordingly hold that we have no jurisdiction to entertain this petition for non compliance with paragraph 4(i) supra and we strike it out.”
The Petitioner (now Appellant) being dissatisfied with the striking out of the Petition lodged an appeal against the Ruling of the Tribunal. The Notice of Appeal filed by the Appellant is dated 13/7/2011 and filed on the same date. The Notice of Appeal contains two grounds of appeal.
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. Appellant’s Brief of Argument is date d 19/8/2011 and filed on the same date. Appellant’s Reply Brief to the Brief of Argument of the 1st Respondent is dated 7/9/2011 and filed on 8/9/2011. Both Briefs of Argument were prepared by C. Chuma Oguejiofor, Esq. 1st Respondent’s Brief of Argument dated 2/9/2011 and filed on 5/9/2011 was settled by O.A. Obianwu, Esq., SAN; A.C. Anaenugwu, Esq.; H.C. Onwuegbuke, Esq.; C.B. Obi, Esq.; Uzoamaka Ilobi (Mrs.); and Chidozie Ogunji, Esq . 2nd Respondent’s Brief of Argument dated 20/8/2011 and filed on 5/9/2011 was settled by Chief Olusola Oke; Chief Olajide Ajana; Ernest Nwoye; Prince John Ola Mafo; Owukori Akuyibo; Maureen Onyiaike; Promise Ogbadu; and Gbadebo Ikuesan. 3rd – 5th Respondents’ Brief of Argument dated 2/9/2011 and filed on the same date was settled by Alhaji S.O. Ibrahim (Asst. Chief Legal Officer, INEC). The appeal was entertained on 8/9/2011 and at the hearing; A.C. Anaenugwu of counsel for the 1st Respondent first argued the preliminary objection contained in the Notice of Preliminary Objection set out in the 1st Respondent’s Brief of Argument. In this regard, learned counsel adopted and relied on the argument contained in the 1st Respondent’s Brief of Argument in respect of the objection. Furthermore, all learned counsel for the parties adopted and relied on the respective Briefs of Argument they filed on behalf of their clients in respect of their positions in the appeal.
A lone issue is formulated for the determination of the appeal in the Appellant’s Brief of Argument. The issue reads:-
“Whether the learned tribunal below was right in striking out the petition even before the pre-trial conference and in holding as it did that “The requirement of paragraph 4(i)(c) supra is that it is the scores of the candidates that must be stated in the petition. This has not been complied with. Only scores of political parties are stated. We accordingly hold we have no jurisdiction to entertain this petition for non-compliance with paragraph 4(i) supra”.
Aside from the preliminary objection raised and argued in the Brief of Argument of the 1st Respondent, two issues are formulated for the determination of the appeal. The issues read:-
“(i) Whether the tribunal had jurisdiction to suo motu raise the issue of competence of the petition. Ground 2. (ii) Whether the tribunal was correct to have struck out the petition for non-compliance with the provisions of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act (As Amended) Ground 1.
The 2nd Respondent formulated two issues for the determination of the appeal in its Brief of Argument. The issues read thus:-
“(i) Whether having regard to the provision of paragraph 18(1) to the First Schedule to the Electoral Act 2010, the Trial Court was right in raising and deciding the issue of the competence of the petition outside pre-trial Conference.
(ii) Whether the Trial Court was not in grave error in striking out Appellant’s petition on the ground that the requirement of 4(1)C (sic) was not complied with.”
Like the Appellant did, the 3rd – 5th Respondents (hereinafter simply referred to as “the Respondents”) formulated a lone issue for the determination of the appeal in their Brief of Argument. The issue reads thus:-
“Whether the trial Tribunal had jurisdiction to suo motu raise the issue of competence of the Petition and the jurisdiction of the trial court to entertain the Appellant’s Petition.”
The 1st Respondent is by the preliminary objection raised in this appeal, challenging the validity of the record of appeal before the Court. I will therefore first consider and resolve the preliminary objection. This is in line with the settled position of the law as it relates to preliminary objection raised in an appeal; and it is to the effect that where the success of a preliminary has the effect of terminating an appeal, then there is no basis for considering the appeal on the merit. The preliminary objection of the 1st Respondent, if upheld will definitely terminate the instant appeal; hence the need to consider and resolve it first.
The 1st Respondent contended to the effect that the record of proceedings upon which the instant appeal is founded, was compiled and forwarded to this court by the Appellant and that these, contravene the provisions of Paragraphs 7(a), (b) and (c); 8; and 9 of the Election Tribunal and Court Practice Directions 2011 (hereafter simply referred to as the Practice Directions”). The 1st Respondent said that only the secretary to the Tribunal (hereafter simply referred to as “the secretary”) is charged with the duty and conferred with the power to compile and transmit the record of proceedings in the instant appeal to this Court. Aside from also contending that the record of proceedings compiled and transmitted to the court by the Appellant failed to comply with the provision of Order 8, Rule 7 of the Rules of this court; the 1st Respondent further contended that the said record proceedings of was not compiled within the 10 days period stipulated in Paragraph 10 (sic) of the Practice Directions and that the Appellant did not procure any leave of Court before compiling and transmitting the said record of proceedings to this Court. In the premises, the 1st Respondent submitted that there is no jurisdiction in this court to entertain the instant appeal as a condition precedent for the hearing of the appeal, to wit: a valid record of appeal has not been fulfilled. The Court was urged to strike out the appeal.
The case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 was cited in this regard. Many other cases were cited by the 1st Respondent in aid of the various contentions in relation to the preliminary objection as already highlighted above.
Responding to the preliminary objection in his Reply Brief, the Appellant in the main contended that he had to compile and transmit the record of appeal in this appeal himself given the failure of the secretary to so within the time frame stipulated for the purpose in the practice Directions. The Appellant cited the case of Chime v. Onyia (2009) 2 NWLR (Pt. 1124) 1 at 11 as deciding that the Practice Directions is regarded as part of the Rules of Court. The Appellant submitted to the effect that he was entitled to have compiled the record of appeal being challenged pursuant to Order 8 Rule 4 of the Rules of this Court, given the failure or neglect of the secretary to do so with the time frame provided by the Practice Directions.
The preliminary objection of the 1st Respondent aside from complaining that the record of appeal compiled by the Appellant has failed to comply with the requirements of Order 8 Rule 7 of the Rules of this Court, is also to the effect that the instant appeal has not been entered in this Court as there is no valid record of appeal before the Court.
It is glaring from the endorsement of the secretary on the face of the record of appeal being challenged, that the same was compiled by the Appellant’ counsel and handed over to the secretary for certification on 26/7/2011. The Notice of Appeal by which the Appellant commenced this appeal as already stated is dated 13/7/2011 and filed at the Registry of the Tribunal on the same date. The Practice Directions, in Paragraph 9 unequivocally charges the secretary with the duty of compiling and serving all parties in a petition appealed against, with the record of proceedings and further commands that the secretary is to discharge the duty with which he is charged, within 10 days of the receipt of the Notice of Appeal at the latest or at most. There is nothing placed before the Court to show that the secretary did not compile talk less of serving all the parties in this appeal with the record of proceedings; due to any fault on the part of the Appellant. On the contrary, what is glaring from the endorsement of the secretary on the face of the record being challenged; is that the secretary without any reservation collected and certified the record of proceedings as compiled by the Appellant when it was presented to him on 26/7/2011. I am of the considered view that the secretary by certifying the record compiled and presented to him by the Appellant on 26/7/2011 without indicating thereon that the Appellant did the compilation himself due to any default on the part of the said Appellant (e.g. default of the Appellant to satisfy any of the conditions of appeal such as failure to pay the fees assessed for the compilation of the record), not only authenticated the contents of the record, but also tacitly acknowledged that the non-compilation of the record within the time frame stipulated in Paragraph g of the Practice Directions, is due to some default on his (i.e. secretary’s) part.
Time is of the very essence in election matters, whether before the Tribunal or this Court in appeals from the Tribunal. Though it would be to the advantage of a respondent if the secretary neglects or refuses to act within the time frame stipulated in Paragraph 9 of the Practice Directions, it would however definitely be antithetical to the interest of an appellant to simply look on and do nothing in the face of the refusal or neglect on the part of the secretary to compile and serve all the parties in an Election Petition Appeal with the record of proceedings, within the time frame stipulated in the practice Directions.
There is no doubt that the Practice Directions are to be regarded as part of the Rules of this Court and complementary to the said Rules as decided in the case of Chime (supra) cited by the Appellant. Without prejudice to this, I however find the resort to Order 8 Rule 4 of the Rules of this Court in justification of the compilation of the record being challenged, by the Appellant dangerous. This is because reliance on the provision of the rule in effect connotes that the Appellant had a period of 30 days, to have compiled and served the record of proceedings, after the time within which the secretary ought to have acted expired. This would result in an appellant that has to compile the record of proceedings due to the refusal or neglect of the secretary to do so, having much more time for that purpose than the secretary has. Order 8 Rule 4 of the Rules of this Court clearly does not give a respondent that must compile the record of appeal, more time to do this, than that given to the registrar. The case of Chime (supra) amongst others dealt with the right of an appellant to file a reply brief in response to fresh issues raised in the respondent’s brief of argument and which process the Practice Directions then in force did not provide for. This Court relying on the complementary nature of Practice Directions to its Rules, said that an appellant was entitled to file and serve a reply brief by virtue of Order 17 Rule 5 of the Court of Appeal Rules 2007. It is worthy of note that the extant Practice Directions in Paragraph 13 has now specifically cured the lacuna in the Practice Directions No. 2 of 2007 in relation to “reply brief”. Paragraph 13 of the extant Practice Directions now provides for the filing of a reply brief by an appellant and limits the time within which such reply brief is to be filed, to “within 3 days of service of the respondent’s brief’. This in my view clearly shows that it is not intended that the periods for the doing of acts as provided for under the Rules of this Court are ipso jure applicable to the Practice Directions which specifically govern election appeals.
The provisions of the Practice Directions as they relate to appeals are specifically made for the expeditious determination or disposal of appeals arising from election petitions. It is not in doubt that this is against the backdrop of the provision of section 285(8) of the 1999 Constitution (as amended) which stipulates a period of 60 days from the date of delivery of judgment by an Election Tribunal for an appeal against such decision to be heard and disposed of. By the provision in question, the time for the hearing and determination of an appeal against the decision of the Tribunal by this Court, starts to run against the Court at a point in time when the appeal has not even been entered in this Court. It would also appear that the President of the Court of Appeal in making the extant Practice Directions never envisaged that a secretary for any reason whatsoever would not be compile and serve the record of proceedings within a period of not more than 10 days of the receipt of the notice of appeal, talk less of the secretary refusing of neglecting to discharge these duties at all. If the President of the Court of Appeal had envisaged such situations as probable; provision akin to that of Order 8 Rule 4 of the Rules of this Court would have been made in the practice Directions with such provision specifying the time frame within which an appellant is to compile and serve the record of proceedings upon the default or neglect of the secretary to do so. This would clearly preclude an appellant that is forced by the default or neglect of the secretary to compile the record of proceedings by himself arrogating to himself the 30 days period provided for in Order 8 Rule 4 (which is clearly much more than the period of 10 days at most, from the date of the receipt of the notice of appeal allowed for compilation and service by the secretary) and thereby eating too deeply into the 60 days period from the date of delivery of judgment by the Tribunal, that this Court has to determine and dispose of an election appeal.
All that I have said before now, in my considered view, apparently explain why there is no provision in the Practice Directions for extension of time to do that which the secretary has failed or neglected to do within the time provided therefore or at all; unlike what obtains in the event of default to comply with Order 8 Rule 4 of the Rules of this Court, by a respondent. Similarly, I do not see how the Appellant can pursuant to any of the provisions of the Practice Directions or indeed the Rules of this Court, properly seek for the extension of time on behalf of the secretary to do what the said secretary should have done within a particular time frame, but failed or neglected to do.
It is however clear as crystal; that it definitely cannot be in the interest of justice for the Appellant in the instant appeal to bear the brunt of a default or omission that has not been shown to have been caused or occasioned by him. lf this is done, or allowed to happen, it will set a bad precedent. This is because all any secretary that is minded to frustrate the hearing of an appellant’s appeal would simply need to do, is just to sit down and do nothing concerning compilation of record, even when the such appellant has sa1sfied the conditions of appeal imposed on him. Accordingly, it is my considered view that where it is not established by a respondent challenging the record of proceedings in an election appeal that the non-compilation and service within the time frame provided by the Practice Directions of the said record is attributable to the appellant, then such a respondent challenging the validity of the record before the Court, has thereby failed to place any material before the Court to preclude it from utilizing the record of appeal subsequently prepared by the appellant and duly certified by the secretary who ought to have done the compilation in the first place. Against the backdrop of the following facts, namely, (i) that there is nothing showing that the record of appeal before the Court was compiled and served outside the time frame stipulated by the Practice Directions, due to any default on the part of the Appellant; and (ii) the secretary by certifying the record complied by the Appellant has not only glaringly authenticated the same, but has thereby also adopted the act of the Appellant in compiling the record as his; I hold that this Court cannot properly uphold the contention of the 1st Respondent that there is no valid record of appeal before it. The compilation of the record of appeal in the instant appeal outside the time frame stipulated by the Practice Directions inasmuch as it has not been shown to be due to any default on the part of the Appellant, amounts to no more than an irregularity occasioned by the secretary and the consequence(s) of which the Appellant cannot rightly bear. Accordingly, the preliminary objection of the 1st Respondent challenging the record of appeal in the instant appeal is overruled and dismissed. I will now consider the appeal on the merit.
The appeal will be determined upon the issue formulated by the Appellant as the issue in my considered view adequately covers the issues for the determination of the appeal as variously formulated by the three sets of Respondents in the appeal. I must however state that I do not intend to engage in any extensive review of the submissions in the Brief of Argument of the 2nd Respondent inasmuch as all that was done therein was to argue in favour of the appeal being allowed. This is particularly so as Nwoye of learned counsel for the said 2nd Respondent, at the hearing of the appeal not only conceded that the proper role of a respondent who has not appealed against a decision is to support the same, but also ended up by urging the Court to dismiss the instant appeal in line with the provision of Order 8 Rule 4 of the Rules of this Court.
I will consider first, the aspect of the issue formulated by the Appellant relating to whether or not the Tribunal can suo motu raise and determine the issue of its jurisdiction to entertain the Appellant’s Petition outside pre-hearing session.
The stance of the Appellant on this aspect of the issue, is that the Tribunal cannot properly raise the issue of its jurisdiction to entertain the petition suo motu outside pre-hearing session as provided for under the 1st Schedule to the Electoral Act. The Appellant submitted that the Tribunal acted without jurisdiction by taking arguments concerning whether or not it has jurisdiction to entertain the Petition outside pre-hearing session, and striking out the said Petition. The Appellant relied heavily on the cases of Nwanko v. Yar’Adua (2010) 3 SC (Pt. 111) 1 at 8 and 25 – 29; and Okereke v. Yar’Adua (2008) 4 – 5 SC (Pt. 1) 206.
The stance of the 1st Respondent as well as the Respondents respectively, is contrary to that of the Appellant. They respectively contended that the Tribunal eminently has the vis or power to raise and determine the issue of its jurisdiction to entertain the Petition at the stage of the proceedings that it did, i.e. outside pre-hearing session. Many cases which I need not set out in this judgment were cited in aid of the submission.
The settled position of law is that the “competence” of a court being the hand maiden of the “court’s jurisdiction”, a court must therefore have both ‘Jurisdiction” and “competence” to be properly seized of a cause or matter. And a court is said to be “competent” where (i) it is properly constituted with respect to the number and qualification of its members; (ii) the subject matter of the action is within its jurisdiction; and there is no feature in the case which prevents the court from exercising its jurisdiction; (iii) the action is initiated by due process of law; and (iv) any condition precedent to the exercise of jurisdiction has been fulfilled. See COTECNA INTERNATIONAL LTD. V. IVORY MERCHANT BANK LTD. (2006) All FWLR (Pt. 315) 26 at 43, MADUKOLU V. NKEMDILIM (supra); and IBEANU V. OGBEIDE (1994) 7 NWLR (Pt. 359) 697 at 709.
Given the fundamental nature of the question or issue of jurisdiction to adjudication by a court or tribunal over a matter before it, the law is that the issue of jurisdiction can never be discountenanced on the ground that it is being raised too late in the proceedings. Jurisdiction has been variously described as fundamental to the exercise of power by a court in relation to matters before it; or as being the lifeline to the exercise by a court of its power of adjudication. Again, given the nature of the issue of jurisdiction, the law has always been, and still is, that jurisdiction cannot be conferred on a court by agreement of parties or by their acts of omission or commission. This is why the law allows the issue of jurisdiction to be raised on appeals and even 0n appeals before the Supreme Court, the highest court in the hierarchy of courts in Nigeria.
Again, the settled position of law is that whenever a court acts without jurisdiction, such as by taking on a case which by law it should not have entertained; the proceedings in the case including any decision made therein are irredeemably bad and cannot be salvaged. See INEC V. THE REGISTERED TRUSTEES OF THE CHURCH OF NIGERIA (ANGLICAN COMMUNION) DIOCESE OF ORLU (2010) All FWLR (Pt.511) 1015. Indeed, it is settled law that a decision made or judgment delivered without jurisdiction is null and void. Everything done by a court without jurisdiction is a complete waste of time and a nullity. See OSAKUE v. FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA (2010) All FWLR (Pt.522) 1601; and OLUFEAGBA V. ABDUR-RAHEEM (2010) All FWLR (Pt.512) 1033.
Authorities abound in the taw reports to the effect that Election Petitions are sui generis. The peculiar nature of Election Petitions would also appear to be underscored by the provision of special rules governing their hearing at the Tribunal or in this Court, as contained in the 1st Schedule to the Electoral Act and the Practice Directions, respectively. The holding of a pre-hearing and scheduling session as provided for in Paragraph 18 of the 1st Schedule to the Electoral Act, is clearly one of the steps stipulated under the said Schedule for a Tribunal to take in entertaining a Petition. lt would appear glaring from the provisions of Paragraph 18(1) and (3) of the 1st Schedule (supra) that basically, the hearing of a Petition moves into pre-hearing session, at the instance of the Petitioner. A Respondent who wishes may equally ignite pre-hearing session where the Petitioner fails to do so in compliance with the provision of Paragraph 18(1) (supra). I have used the word “may” advisedly, because the provision of Paragraph 18(3) gives a Respondent the option of bringing a motion for the Petition to be dismissed where a Petitioner fails to move his Petition into pre-hearing session as provided for in Paragraph 18(1) (supra). The purpose or objectives or goals of a pre-hearing session; what the Tribunal is expected to enter in a scheduling order; and actions which the Tribunal can take at a pre-hearing session; are elaborately set out in Paragraph 18(2)(a) – (d); and (6) – (13) of the 1st Schedule (supra). I cannot but say that there is absolutely no provision in the whole of paragraph 18 of the 1st Schedule (supra) remotely suggesting that the Tribunal cannot raise the issue of its jurisdiction to entertain a Petition before it, suo motu outside pre-hearing session. Indeed, the provision of Paragraph 18(3) which allows a respondent to bring a motion seeking for an order that a petition be dismissed where an appellant fails to comply with the provision of Paragraph 18(1) by igniting the pre-hearing session, clearly knocks the bottom out of the submission of the Appellant to the extent that it suggests that all application before the Tribunal must by force of law be entertained during pre-hearing session. This is because it is inconceivable how a motion seeking for the dismissal of a Petition due to the failure of the Appellant to ignite the pre-hearing session therein, can be entertained in a pre-hearing session which has not been ignited. This is particularly so as a respondent is not compelled by the provision of Paragraph 18(3) (supra) to first apply to get the Petition into the pre-hearing session before he brings a motion seeking for the dismissal of the Petition due to the failure of the petitioner to ignite the prehearing session.
I have earlier said that the Appellant relied heavily on the cases of Nwanko and Okereke (both supra) in respect of his stance that the Tribunal cannot properly raise the issue of its jurisdiction to entertain the Petition suo motu outside pre-hearing session. I am however of the considered view that the Appellant has clearly misapprehended the decisions in the cases he relied heavily or, vis-a-vis the undisputed facts applicable to the Petition the Tribunal struck out. The cases cited by the Appellant are very clear on the issues they decided. The cases clearly relate to the entertainment of motion for preliminary objection and/or objection on point of law, brought by a respondent or the respondents in a Petition, outside pre-hearing session.
ln the instant Petition, it was the Tribunal which suo motu raised the issue of its jurisdiction to entertain the same. The Tribunal did not raise the issue of its jurisdiction to entertain the Petition consequent to any motion filed by any of the Respondents before it. It is my considered view that it would be clearly ludicrous to say that the Tribunal in the circumstances that it raised and determined the issue of its jurisdiction, thereby entertained an application or motion for preliminary objection or objection on point of law. The Tribunal is not a party in the Petition and it is clearly hollow to say that the Tribunal by raising the issue of its jurisdiction to entertain the Petition before it thereby brought an application or motion before itself. The Tribunal by raising the issue of jurisdiction can never be said to have thereby brought a motion or objection on point of law as contemplated by any of the provisions in Paragraph 18 of the 1st Schedule (supra) or the default Rules of Court applicable to Election Petitions, i.e. Rules of Procedure of the Federal High Court.
I am of the considered view, that the fundamental nature of jurisdiction to adjudication over Petitions by the Tribunal has been sufficiently demonstrated. It is also my considered view that in the light of the fundamental nature of jurisdiction to adjudication and the consequence(s) of the lack of it, on whatever that is done in a matter, the Tribunal perceiving that it lacks the jurisdiction to entertain the instant Petition was very much in order to have raised the issue suo motu for resolution before the Petition proceeded to pre-hearing session. Indeed it would have been a waste of precious judicial time and energy for the Tribunal, after perceiving that it lacked jurisdiction over the Petition to have waited till the pre-hearing session as contended by the Appellant, before raising and resolving the issue of its competence to entertain the instant Petition. The position would however have been different if the challenge to the jurisdiction of the Tribunal to entertain the Petition had been raised by any of the Respondents. It is in such a situation that the submissions of the Appellant on the issue can succeed and the cases relied upon by him applicable.
In conclusion, I hold that the Tribunal did not commit the infraction of any law or rules of procedure by raising suo motu the issue of its jurisdiction to entertain the instant Petition and ruling on the issue outside pre-hearing session’ This aspect of the issue formulated by the Appellant for the determination of the appeal is according resolved against him.
The second aspect of the issue formulated by the Appellant for the determination of the appeal is as to whether or not the decision of the Tribunal striking out the Petition for non-compliance with the provision of Paragraph 4(1)(c) of the 1st Schedule is correct.
While the Appellant submitted in the main that the Tribunal was wrong in striking out the Petition for non-compliance with paragraph 4(1)(c) of the 1st schedule (supra) and cited a host of cases in aid of his stance; the 1st Respondent as well as the Respondents submitted to the contrary and equally cited a litany of cases in aid of their common stance.
It is in my considered view incontrovertible that given jurisdiction the issue of raised suo motu by the Tribunal, it was obligated to consider the averments in the Petition only. I must quickly add that there is nothing on record that remotely suggests that the Tribunal considered any process other than the Petition. This being the position it means that the Tribunal upon facts pleaded in the Petition and which by law it was bound to take as true or established or uncontroverted, decided that the Petition merited striking out for non-compliance with the provision of Paragraph 4(1)(c) of the 1st Schedule to the Electoral Act. What has to be determined therefore is whether or not it was right for the Tribunal to have found that the Appellant did not comply with the provision of Paragraph 4(1)(c) (supra) vis-a-vis the facts pleaded in the Petition.
Paragraph 4 of the 1st Schedule (supra) deals with “content of election petition”. The provisions of the paragraph read thus:-
‘4(1) An election petition under this Act shall-
(a) specify the parties interested in the election petition;
(b) specify the right of the petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
(d) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner.
(2) xxxxxxxxxxxxxxxxxxxxxxxxx
(3) xxxxxxxxxxxxxxxxxxxxxxxxx
(4) xxxxxxxxxxxxxxxxxxxxxxxxx
(5) The election petition (a) shall be accompanied by –
a list of witnesses that the petitioner intends to call in proof of the petition;
(b) written statements on oath of the witnesses; and
(c) copies or list of every document to be relied on at the hearing of the petition.
(6) A petition which fails to comply with sub-paragraph (5) of this paragraph shall not be accepted for filing by the secretary.
(7) An election petition, which does not comply with subparagraph (1) of this paragraph or any provision of that subparagraph is defective and may be struck out by the Tribunal or Court.”
The provisions of Paragraph 4(1)(a), (b), (c), and 7 of the Electoral Act, reproduced above, are definitely not new in the Electoral laws of this country. The after-mentioned provisions are ipsissima verba those in paragraph (4)(1)a), (b), (c), and (7) of both Electoral Act, 2002 and Electoral Act, 2000. There is therefore no dearth of decided cases in respect of the provisions. I must however state that while the Courts were very strict in their decisions relating to Paragraph 4(1)(a),(b), (c) and 7 of the Electoral Act, 2002, they would appear to have been much more liberal in their decisions relating to Paragraph 4(1)(a), (b), (c) and 7 of the Electoral Act 2006. lt is therefore not surprising that the 1st Respondent who met the aspect of Appellant’s issue under consideration frontally or head-on, in his Brief of Argument relied heavily on decisions based on the Electoral Act, 2002 and not any decision based on the Electoral Act, 2000.
As earlier stated the courts were much more liberal in construing the provisions of Paragraph 4(1)(c) of the Electoral Act, 2006 and indeed readily reversed decisions of Tribunals striking out Petitions for non-compliance to wit: not stating the scores of candidates, the courts went further to explain when the lapse in this regard will be fatal. see BELLO v. YAKUBU (2008) NWLR (Pt. 1106) 104 wherein this Court in dwelling on “contents of election petition” held amongst others to the effect that when there is no complaint about the validity of votes cast in an election, failure to state the scores of candidates at the election is not sufficient to render the petition incompetent. In the case under reference, while this Court did not dispute that a Petition that fails to comply with Paragraph 4(1) of the 1st Schedule can properly be struck out by the Tribunal in the exercise of its discretion, it was however made clear that where the Tribunal in striking out a Petition was apparently under a misapprehension of the facts before it, then this Court can properly intervene and correct the wrong done by the Tribunal. See also ENEMUO V. DURU (2005) All FWLR (Pt. 304) 508, which decision is based on the Electoral Act, 2002.
I have earlier in this judgment, set out the averment in paragraph 4 of the Petition. It is my considered view that if the Tribunal had appreciated that what the Appellant pleaded therein, are the results of the election being questioned as declared by INEC, it would not have expected the Appellant to have pleaded what was not declared by INEC or any results different from those declared by INEC.
As earlier stated, the only process which the Tribunal ought to have considered in reaching a decision as to whether or not there was noncompliance with the provision of Paragraph 4(1)(c) of the 1st Schedule (supra) is the Petition. If there is any dispute as to whether or not the result as pleaded in paragraph 4 of the Petition are the actual results declared by INEC, then the matter can only be resolved at the trial.
As the Tribunal was bound to accept as true, the averment in paragraph 4 of the Petition as at the time it was considering the issue as to whether or not it has the jurisdiction to entertain the Petition, its decision to strike out the Petition for non-compliance with the provision of Paragraph 4(1)(c) in that the scores of candidates were not set out in the Petition, is clearly a wrong exercise of discretion inasmuch as it is clear that the exercise of discretion striking out the Petition was based on a clear misapprehension of the averment in paragraph 4 thereof. I therefore hold that the Tribunal was patently wrong in striking out the Petition and the decision in that regard cannot be allowed to stand.
In conclusion, the aspect of Appellant’s issue as to whether or not the Tribunal was correct in striking out the Petition for non-compliance w1h the provision of Paragraph 4(1)(c) of the 1st Schedule of the Electoral Act, is resolved in his favour.
In the circumstances, the appeal succeeds, despite the initial finding that the Tribunal properly raised and resolved the issue of its jurisdiction to entertain the Petition suo motu outside pre-hearing session. The decision of the Tribunal that it has no jurisdiction to entertain the Petition is however wrong. Accordingly, the decision of the Tribunal striking out petition No. EPT/AN/NAE/HR/54/2011, is hereby set aside. The Petition is hereby relisted and remitted to another Tribunal for adjudication.
I make no order as to costs.
ABUBAKAR JEGA ABDULKADIR, J.C.A: I agree.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: I agree.
Appearances
C. Chuma Oguejiofor,
N. ArohFor Appellant
AND
A.C. Anaenugwu for the 1st Respondent
Ernest Nwoye forthe 2nd Respondent
E. Odeh with E. Agboegbulem-Igbedion forthe 3rd-5th RespondentsFor Respondent
