MALAMI MUHAMMAD GALADANCHI & ANOR v. HALIRU BUHARI & ORS
(2019)LCN/13726(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of July, 2019
CA/S/EPT/HA/02/2019
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. MALAMI MUHAMMAD GALADANCHI
2. ALL PROGRESSIVE CONGRESS (APC) Appellant(s)
AND
1. HALIRU BUHARI
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
THE RULE OF INTERPRETATION OF STATUTE
It is trite that the golden rule of interpretation is that where the words used in the Constitution or in a statute are clear and unambiguous, they should and must be given their natural and ordinary meaning unless if doing so would lead to absurdity or inconsistency with the rest of the statute. See Saraki vs. FRN (2016) LPELR-40013 (SC), Nig. Army vs. Aminu Kano (2010) 5 NWLR (Pt. 1188) 429, Ibrahim vs. Barde (1996) 9 NWLR (Pt. 474) 513. The duty of the Court therefore is to interpret the words of the lawmaker as used. See Bronik Motors Ltd. vs. Wema Bank Ltd. (1983) 1 SCNLR 296; Fidelity Bank Plc. vs. Monye & Ors. (2012) 10 NWLR (Pt. 1307) 1 at 31. PER WAMBAI, J.C.A.
DUTY OF THE COURT IN THE INTERPRETATION OF STATUTES
It is also a rule of interpretation that in interpreting a statute the Court has a duty to ascertain the purpose or the mischief which the lawmaker seeks to prevent. See Balogun vs. Salami & Ors (1963) LPELR-25407 (SC). This mischief rule of interpretation was laid down in 1584 in Heydon’s Case 3 Co. Rep. 7a. In Re Mayfair Property Co. (1898) 2 Ch. 28 at p.35, Lindley M.R. said:
?In order to properly interpret any statute it is as necessary now as it was when Lord Coke reported Heydon’s case (1584) 3 Rep. 7a to consider how the law stood when the statute to be construed was passed, what the mischief was, for which the old law did not provide, and the remedy provided by the statute to cure that mischief.?
It is therefore relevant and the Court has a duty in the interpretation of an act or statute to consider what was the law before the enactment of the Act or Law to be construed; what was the mischief or defect for which the old law did not provide, and what remedy the Act is intended to cure the mischief or defect, in order to ascertain its purpose.
This was aptly and further explained by the Supreme Court per Onnoghen, JSC (as he then was) in the case of ABUBAKAR & ORS V. YAR’ADUA & ORS (2008) NWLR (PT. 11) 1, succinctly as follows;
?Let me also emphasize that a Court has the duty when interpreting a statutory provision to ascertain the purpose of the provision or the mischief which the lawmaker seeks to prevent. PER WAMBAI, J.C.A.
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the Ruling of the National and State House of Assembly Election Petition Tribunal sitting at Sokoto delivered on the 19th day of June, 2019, which dismissed the petition as an abandoned petition for failure to apply for pre-hearing Notice within the prescribed time.
Following the election conducted by the 3rd Respondent into the Sokoto State House of Assembly on the 9th March, 2019, the 1st Respondent was declared the winner and returned by the 3rd Respondent as the duly elected member for Sokoto North I Constituency.
The 1st Appellant who was sponsored by the 2nd Appellant for the election were both unhappy. They approached the Tribunal by an election Petition No. EPT/SKT/HA/22/2019 filed on the 29th March, 2019, challenging the return of the 1st Respondent on two grounds, namely:
1. That the 1st Respondent was not elected by majority of lawful votes cast at the election, and;
2. The election is invalid by reason of non-compliance with the provisions of the Electoral Act, 2010 (as amended) and provisions of INEC Guidelines for 2019
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General Election.
The petition was served on the 2nd and 3rd Respondents on 9/4/2019 and on the 1st Respondent on the 15/4/2019. All the Respondents failed to file their replies to the petition within the prescribed time. On the 24th May, 2019, the 1st and 2nd Respondents filed a Motion for extension of time to regularize their Reply to the petition. The 3rd Respondent had made a similar application on the 30th April, 2019.
The petition came up on the 27th May, 2019 when the following ensued:
TRIBUNAL: ?When did the petitioners? applied (sic) for pre-hearing in this petition.?
JODI: ?We applied vide a letter dated 2nd April, 2019 but the payment of the filing fees was effected on 14th May, 2019.?
?
Consequently, the Tribunal asked parties to address it whether the application for pre-hearing was filed within the time prescribed by law. Meanwhile, two days after, on the 29/5/2019 the 1st and 2nd Respondents filed a Motion on Notice challenging the competence of the Honourable Tribunal to hear and determine the election petition and prayed for its dismissal as abandoned petition. Written addresses were
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filed, exchanged and adopted. In its Ruling delivered on the 19/06/2019, the Tribunal found that there was no indication when the Appellants? letter dated 2/04/2019 was delivered to the Assistant Secretary of the Tribunal though payment for filing fees was made on 14/05/2019. It therefore held that the petition was abandoned there being no valid application for pre-hearing Notice within the time prescribed by paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010, (as amended) and accordingly dismissed same.
This is the reason for this appeal filed on 24/6/2019 predicated upon 2 grounds, to wit: –
GROUND 1:
The trial Tribunal erred in law and came to a perverse conclusion when it heard and determined an application seeking to dismiss the petition before final judgment thereby denying the Petitioners the right to be heard.
GROUND 2:
The learned judges of the Tribunal erred in law and comes to a decision which occasioned miscarriage of justice when it held that the petition is an abandoned petition whereas the petitioners have taken all steps to apply for the issuance of Pre-trial information sheet within the ambit of
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the Electoral Act.
In the Appellants? brief of argument filed by A. Zubairu, Esq., and M. B. Abdullahi, Esq., on the 8th July, 2019, a sole issue was nominated for determination, namely:
?Whether the Honourable Tribunal acted in accordance with the law when it determined Petition No. EPT/SKT/HA/22/2019 before Final judgment by dismissing the Petition after deeming same abandoned in the circumstances of the Petition before it.?
M. M. Yabo, Esq., who filed the 1st and 2nd Respondents? brief of Argument on 12th July, 2019 distilled a sole issue for determination, viz:
?Whether the trial Court was right when it held that petition No. EPT/SKT/HA/22/2019 was abandoned by the appellants (petitioners) and dismissed same?
The brief of the 3rd Respondent was settled by E. O. Abadaki, Esq., and it was filed in 14/7/2019, therein the Appellants? sole issue for determination was adopted.
This appeal will be determined on the Appellants? sole issue adopted by the 3rd Respondent which encompasses the 1st and 2nd Respondents? sole issue.
?
In arguing the appeal, learned counsel
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referred to Section 285(8) of the Constitution (as amended) by the 4th Alteration Act, paragraphs 12(5) and 153 (5) of the 1st Schedule to the Electoral Act, 2010 (as amended) and submitted that by virtue of the said provisions, the Tribunal ought not to have delivered its Ruling and dismissed the petition before hearing its merit, but ought to have suspended the ruling on all preliminary objections or any question of jurisdiction or competence of the Tribunal until the stage of final judgment as it is mandated to do. He cited the cases of Belgore vs. Ahmed (2013) 8 NWLR (Pt. 1355) 60, Ikpeazu vs. Alex Otti & 3 Ors (unreported) Appeal No. CA/OW/EPT/GOV/2/2015,Aregbesola vs. Omisore (2014) LPELR-24237 and quoted in extenso the decision in the case of Nwole vs. Iwuagwu (2004) 15 NWLR (Pt. 895) 61, which dealt with paragraph 12(5) of the 1st Schedule to the Electoral Act. He argued that the said paragraph 12(5) has now been given constitutional backing by the 4th Alteration, Section 285(8) of the Constitution (as amended) which is a mandatory provision, but that the Tribunal failed to take into effect the said provision when it dismissed the petition without
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hearing its merits. He referred to the cases of Oke & Ors vs. Mimiko & Ors (2013) 9 SCM 155, PDP vs. INEC (2012) 7 NWLR (Pt. 1130) 538, 559 paras D ? H to 559 A ? F, Per Muntaka Commassie, JSC.
In defence of Section 285 (8) and paragraph 12(5) of the 1st Schedule, it was submitted that such a requirement does not amount to a denial of the Applicants/Respondents? right to fair hearing as the procedural requirement that all such applications challenging jurisdiction or competence of Court or suit should be given priority of hearing and be first resolved, does not mean a separate treatment but only means that the Court should first express its view on the question of its jurisdiction in its final judgment before considering the matter on its merits. The case of Maikulumi vs. Gashigar (2011) All FWLR (Pt. 597) 668 was cited in support.
?
Turing to the merit of the 1st and 2nd Respondents? application itself, it was counsel?s contention that the dismissal of the petition on the basis of paragraph 18(1) was not only a wrongful exercise of discretion but also perverse for the Supreme Court has held that Rules of
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Court or Practice Direction are not sacrosanct but are only acids to the administration of justice and should not defeat the clear justice in the case ? University of Lagos vs. Aigoro (1985) NSCC 745, 782, Elabanjo & Anr vs. Dawodu (2006) 15 NWLR (Pt. 1001) 76. He submitted that had the tribunal evaluated the facts and evidence apparent before it, it would found that: – (i) Pleadings did not close on 5/5/2019 or 14/5/2019 as the 1st and 2nd Respondents did not file their reply until 24/5/2019 vide a Motion which was neither moved nor granted, but when the 1st and 2nd Respondents? Motion for extension of time to file their Reply is moved and granted. The tribunal, according to him, was thus in error to have held that pleadings closed on 5/5/2019. He cited the cases of Abraham vs. Olorunfunmi (1991) 1 NWLR (Pt. 165) 53, Baker Marine Nig. Ltd. vs. Chevron (Nig.) Ltd (2000) 12 NWLR (Pt. 681) 393; (ii) that after the Appellants filed their application on 14/5/2019 for issuance of pre-hearing Notice, the 1st and 2nd Respondents took step by filing an application for extension of time to file their reply which is yet to be heard and they appeared in
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Court when the matter came up on 22/5/2019, they can no longer be heard to complain. The Tribunal, he argued, can only raise the issue of paragraph 18(1) where neither the petitioner nor the Respondent applies for the issuance of pre-hearing and not where the application is filed lately.
Counsel contended that an examination of the clear and unambiguous provision of paragraph 18(1), shows that the petitioners are only required to file an application for pre-hearing Notice within 7 days after the close of pleadings as regulated by paragraphs 10, 11, 12(1) and 16(1) of the 1st Schedule when all the Respondents have filed their replies to the petition. According to him, the 7 days within which to apply for pre-hearing Notice will begin to run after the Respondents filed their replies or when their application for extension of time to do so are moved and granted. After all, the purpose of the pre-hearing Notice is to signal the close of pleadings and to cause the Tribunal to invite the parties for the pre-hearing session, the 1st and 2nd Respondents having attended the Court on 22/5/2019 were acquainted with the pendency of the petition, and suffices. He
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wondered why such application should be made more than once to require a petitioner to make a separate application in respect of each respondent when he files his reply. He cited the cases of Sa?ed & Anr vs. Yakowa (2013) 7 NWLR (Pt. 1352) 124 at 164 ? 165 among others.
He concluded that from all indications the lower Court (Tribunal) went for shortcuts to dispense justice not minding the dangers inherent in hurried justice as warned by Aniagolu, JSC in S.C.S.C. vs. Buzugbe (1984) 7 SC 19, 514, urging us to uphold his submission and allow the appeal.
On behalf of the 1st and 2nd Respondents, it was contended that but for the sui genesis nature of election petition which makes strict compliance with the Rules necessary, they would not have raised the preliminary objection challenging the competence of the Tribunal to determine the petition. The cases of Oshiomole vs. Airhiavbere (2013) NWLR (Pt. 3252) without the page number, paras E ? G., and Obih vs. Mbakwe (1984) 1 SCNLR 192, were cited in support.
?
He submitted further that it is for the same delicate nature of election petition that minor defects or irregularities or
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even slightest omissions or inadvertence are not overlooked and that a failure to comply with the prescribed Rule in paragraph 18(1) of the 1st Schedule renders the petition defective and denies the Tribunal the jurisdiction to entertain the petition. For this, he cited the cases of Oke vs. Mimiko (No. 1) 2014 1 NWLR (Pt. 1388) 225, 262, Sunday Ase Tuboye vs. Evans Bapakeye Bipi (2011) LPELR-9782 (CA) Per Galinje, JCA (as he then was), and Okereke vs. Yar?adua (2008) 12 NWLR (Pt. 1100) 118 B ? E.
According to the counsel, the use of the word ?shall? connotes a mandatory requirement and does not admit of any exercise of discretion, Alegbe vs. Oloyo (1983) NSCC 315 and Oke vs. Mimiko (supra) were cited in support.
?
On the facts, it was submitted that the 1st Respondent being the last to be served with the petition on the 15/4/2019 and who defaulted in filing his reply, pleadings will be deemed closed by virtue of paragraph 10(2) of the 1st Schedule 21 days from the 15/4/2019 which by a simple calculation elapsed on or about the 5/5/2019 imposing a duty on the Appellants to apply for pre-hearing Notice within 7 days from the
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5/5/2019. The Appellants, learned counsel argued, cannot as erroneously submitted, wait until the Respondents applications for extension of time to file their Replies are heard and granted before applying for pre-hearing Notice, insisting that the Appellants must apply within 7 days of the close of pleadings or affluxion of the time allowed for the filing of the pleadings, citing in support the cases of Ikoro vs. Izunaso (2010) All FWLR (Pt. ?) page 1530, Nwogu & Anr vs. Eke & Ors (2015) LPELR-25996 (CA).
On the Appellants? claim that the letter dated 2/4/2019 but whose fees was paid on 14/5/2019 requesting for issuance of pre-hearing Notice was delivered to the Tribunal?s Assistant Secretary on 5/5/2019, learned counsel referred to the portion of the Tribunal?s Ruling on the reason why the said letter cannot be said to have been delivered to or received by the Tribunal on the 5/5/2019, and submitted that the Appellants having failed to comply with the mandatory provision of paragraph 18(1) of the 1st Schedule, this appeal should be dismissed.
?
For the 3rd Respondent, speaking in chorus with the 1st and 2nd Respondents, it
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was submitted that since by the Appellants? own admission payment for the pre-hearing Notice Application was made on 14/5/2019 and the 1st and 2nd Respondents? application, and that of the 3rd Respondent for extension of time to regularize their replies were filed on 30/4/2019 and 4/5/2019 respectively, the Appellants obviously failed to comply with the provisions of paragraph 18(1) which failure renders the petition defective and denied the Tribunal the jurisdiction to entertain same.
It was further submitted that it was the duty of the Appellant to ensure that processes filed before the Tribunal are done properly as required, as it is not the duty of the Tribunal to speculate on the date the letter was delivered to the Tribunal, contending that the Tribunal rightly concluded that the Appellants failed to file pre-hearing Notice application within the time allowed by law.
Learned counsel drew our attention once again to the oft quoted paragraph 18(1) and (4) of the 1st Schedule and reiterated that compliance with the provisions is a pre-condition to the exercise of jurisdiction by the Tribunal, citing Atolagbe vs. Awuni (1997) 9 NWLR
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(Pt. 552) 536, 562 ? 563, and that none-compliance is a jurisdictional issue as held in Okereke vs. Yar?adua (supra) and Kenedy vs. INEC (2009) 1 NWLR (Pt. 1123) 65.
According to him, where there are more than one Respondents, each Respondent must be treated separately by the combined effect of paragraphs 18 and 49 of the 1st Schedule, and as decided in Nwuze vs. Iwuanyawu (2004) 15 NWLR 61 at 85.
He contended that paragraph 12(5) upon which all the cases cited by the Appellants? counsel were decided, does not apply to this appeal, thence all the cases are inapplicable here, urging us to resolve the issue in favour of the 3rd Respondent and dismiss the appeal for lacking in merit.
?
Now, the substantiality of the Appellants? submission in this appeal dwells on and revolves round the core of the sole issue for determination in this appeal, which is the propriety of the Tribunal delivering its Ruling and dismissing the petition in limine, before hearing the merits of the petition. The Respondents on the other hand take refuge in paragraph 18(1) of the 1st Schedule and the effect of its none-compliance with the competence
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of the petition and the jurisdiction of the Court to entertain its merits, in justifying the dismissal of the petition by the Tribunal.
The soul of this appeal as encapsulated in the Appellant?s issue and adopted by the 3rd Respondent in my view, resides in the interpretation and application of Section 285(8) to this appeal. The Section provides:
?Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the Tribunal or Court in any pre-election matter or on the competence of the Petition itself is raised by a party, the Tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment.?
This provision appears to me to be clear and straight forward. It is trite that the golden rule of interpretation is that where the words used in the Constitution or in a statute are clear and unambiguous, they should and must be given their natural and ordinary meaning unless if doing so would lead to absurdity or inconsistency with the rest of the statute. See Saraki vs. FRN (2016) LPELR-40013 (SC), Nig. Army vs. Aminu Kano (2010) 5 NWLR (Pt. 1188) 429, Ibrahim vs. Barde (1996) 9
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NWLR (Pt. 474) 513. The duty of the Court therefore is to interpret the words of the lawmaker as used. See Bronik Motors Ltd. vs. Wema Bank Ltd. (1983) 1 SCNLR 296; Fidelity Bank Plc. vs. Monye & Ors. (2012) 10 NWLR (Pt. 1307) 1 at 31.
Doing so to this provision and giving its grammatical, linguistic and plain meaning, it simply means that every Ruling on a preliminary objection or any interlocutory issue touching on the jurisdiction of the Court in a pre-election matter or on the competence of the Tribunal in an election petition, must be halted, kept on hold or await the stage of final judgment before delivery. In other words, every such Ruling capable of terminating a pre-election matter or an election petition must be ?deferred?, ?suspended? or kept ?on hold? until the stage of final judgment to be delivered along with the final judgment in the pre-election matter or the petition, as the case may be.
Thus, while the Court in a pre-election matter, or an election petition Tribunal in an election petition, is mandated to take all interlocutory applications challenging its jurisdiction or the competence of
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the petition before hearing the substantive pre-election matter or the election petition as the case may be, the Court or the Tribunal shall reserve its Ruling to be delivered at the final stage of judgment. This is a mandatory provision and leaves no room for any discretion. The word ?shall? therein is a word of command and denotes an obligation. Compliance is mandatory. The only and last option is compliance with the provision. In interpreting the word ?shall? when used in a statute, the Supreme Court in Ugwu & Anr vs. Ararume & Anr (2007) 6 SC (Pt. 1) 88, held thus:
?Generally, when the word ?shall? is used in a statute it is not permissible, it is mandatory. The word ?shall?, in its ordinary meaning is a word of command which is normally given a compulsory meaning because it is intended to denote obligation.?
It is also a rule of interpretation that in interpreting a statute the Court has a duty to ascertain the purpose or the mischief which the lawmaker seeks to prevent. See Balogun vs. Salami & Ors (1963) LPELR-25407 (SC). This mischief rule of interpretation was laid
16
down in 1584 in Heydon’s Case 3 Co. Rep. 7a. In Re Mayfair Property Co. (1898) 2 Ch. 28 at p.35, Lindley M.R. said:
?In order to properly interpret any statute it is as necessary now as it was when Lord Coke reported Heydon’s case (1584) 3 Rep. 7a to consider how the law stood when the statute to be construed was passed, what the mischief was, for which the old law did not provide, and the remedy provided by the statute to cure that mischief.?
It is therefore relevant and the Court has a duty in the interpretation of an act or statute to consider what was the law before the enactment of the Act or Law to be construed; what was the mischief or defect for which the old law did not provide, and what remedy the Act is intended to cure the mischief or defect, in order to ascertain its purpose.
This was aptly and further explained by the Supreme Court per Onnoghen, JSC (as he then was) in the case of ABUBAKAR & ORS V. YAR’ADUA & ORS (2008) NWLR (PT. 11) 1, succinctly as follows;
?Let me also emphasize that a Court has the duty when interpreting a statutory provision to ascertain the purpose of the provision or the
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mischief which the lawmaker seeks to prevent. The learned author of Maxwell on the Interpretation of Statutes 12th Edition at page 137 writes on the subject thus:
?……., there is no doubt that the office of the Judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief. To carry out effectually the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined: ?quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud.? This manner of construction has two aspects. One is that the Courts, mindful of the mischief rule, will not be astute to narrow the language of a statute so as to allow persons within its purview to escape its net. The other is that the statute may be applied to the substance rather than the mere form of transactions, thus defeating any shifts and contrivances which parties may have devised in the hope of thereby falling outside the Act…..?
?It is clear that the purpose of employing the
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mischief rule of interpretation to any given statute or provision is to ascertain the reason for which the statute or provision is made so as to suppress not only the mischief and all evasions for continuance of the mischief, but also to defeat all attempts to do or avoid the doing by indirect means what the statute or the provision has prohibited or enjoined. To achieve this, the statute must be liberally interpreted not to exclude any person or act within it?s purview to escape its net. In doing so, the historical antecedents leading to the promulgation of the statute or provision under interpretation becomes an important aid. What the old law was, what mischief or defect it did not provide or cure are essential factors to be considered in determining what mischief it is intended to cure. This is necessary if the statute or provision must be construed to bring out the object for which it is made and suppress the mischief to defeat all attempts directly or indirectly to do or avoid what the act has prohibited or enjoined. It is only by such a construction that the object of the law and the mischief it is intended to cure can be actualized.
?There
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is no doubt that the Electoral Act has seen some amendments and so has the Constitution with regards to the presentation and determination of election petitions and appeals arising therefrom. For instance, Section 285(6) was promulgated to cure the mischief and defect in the Electoral Act which enabled election petitions to linger on in the Tribunals and the appellate Courts, sometimes even outlived the term of office being litigated. The provision came to limit the time for the hearing and determination of an election petition to 180 days. Similarly, sub-section (7) was enacted to limit the time for the determination of appeals arising therefrom to 60 days.
?Then paragraph 12(5) of the 1st Schedule to the Electoral Act was enacted to enable election petition Tribunals handle petitions without undue technicalities, by mandating the hearing of preliminary objections along with the main petition to suppress and remedy the undue and unwarranted delay occasioned by preliminary objections. It is to save and utilize the valuable time for hearing the merit of the Petitions, within the prescribed time. The mischief it was intended to cure is to ensure that all
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preliminary objections raised do not derail the Tribunal from determining the merit of the petitions. See Belgore & Ors vs. Ahmad & Ors (2013) 8 NWLR (Pt. 1355) 60, 92. And it does not matter whether the objection to the hearing of the petition is raised in the reply to the petition or not. See Oke & Ors vs. Mimiko & Ors (2013) 9 SCM 155. While paragraph 12(5) was intended to serve the above purpose, given the history of election petitions in this country and the abuse of preliminary objections to frustrate the hearing of election petitions, Section 285(8) is intended to cure the mischief not cured by paragraph 12(5) which saw the era of many petitions been thrown out, sometimes unjustifiably by many a Tribunal, perhaps, in the bid to comply with Section 285(6). The mischief therefore which Section 285(8) is intended to obviate is to ensure that objections raised to the hearing of a pre-election matter or an election petition on jurisdictional issues or issues of competence to the petition as the case may be, are not allowed to be used as tools or weapons to dismiss an election petition peremptorily, in limine, without hearing its merits. It is
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to preclude the Tribunals, notwithstanding an objection to the competence of the petition, from shutting out a petitioner without hearing the merit of his case. Thus, an objection to the competence of the petition when taken, must await the final judgment for a pronouncement. That to me, is the plain meaning of Section 285(8) and the mischief it is intended to cure.
Any attempt by an election petition Tribunal to circumvent this mandatory provision must be resisted by this Court, in its duty to ensure compliance with the Constitution. As the Supreme Court stated in Abubakar & Ors vs. Yar?adua & Ors (supra), when the Courts find an attempt at concealment and I would add, at circumventing the statute, they will, in the words of Wilmot, CJ, ?brush away the cobweb, varnish and show the transaction in their true light.?
The true light of Section 285(8) in my view is to suppress and remedy the mischief which paragraph 12(5) of the 1st schedule did not cure and to ensure that election petitions are not dismissed in limine by reason of preliminary objections challenging their competence. This, is for me, is the reason that Rulings
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on preliminary objection impinging on the competence of the petition or having the same effect, must be deferred or in the words of the section be ?suspended? until at the stage of final judgment.
It needs to be stated, albeit, as a reminder that the Constitution of the Federal Republic of Nigeria (1999) is the ground norm from which every other law or rule derives its authority. It?s supremacy and superiority over all laws and Rules of Courts which owe their legitimacy to the very constitution is non-contestable and non-negotiable. In the case of the Speaker Kogi State House of Assembly vs. Adegbe (2010) 10 NWLR (Pt. 1201) 45, 50, this trite position was restated as follows:
?The provision of the Constitution of the Federal Republic of Nigeria, 1999 are superior to every provision in any act or law and are binding on all persons and authority in Nigeria.?
Therefore when a Court is faced with the choice of obeying the Rules of procedure of Court or any other enactment and the provisions of the Constitution, the Court or the adjudicatory body must, without a choice, follow the command of the Constitution and
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jettison the other law. That other law or Rule must give way to the constitutional provision. So is it that paragraph 18(4) of the 1st schedule to the Electoral Act must be read together with Section 285(8) of the Constitution such that compliance with paragraph 18(4) must be made subject to Section 285(8) of the Constitution and not otherwise.
Therefore, what the lower Court (the Tribunal) ought to have done after argument was to have reserved its Ruling. We commend to the Tribunal what the Benue State Governorship Election Petition Tribunal in Petition No. EPT/GOV/01/MA/2019 did on 8/6/2019 when, after hearing the objection, the Tribunal held thus:
?We have taken and heard Motion on Notice No. 9. We consider it expedient to defer Ruling until the stage of final judgment.?
Of course that Ruling formed the basis or one of the grounds in Appeal No. CA/MK/EP/GOV/4/2019, where the Makurdi Division of this Court held on the 26/07/2019, on that issue, per Abiru JCA, that where the interlocutory application is one touching on its jurisdiction or the competence of an election petition, the Tribunal has no discretion and must defer the
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Ruling thereon to the stage of final judgment.
We wish to add that it makes no difference whether the objection is raised by a Respondent to the petition or by the Court suo motu or both as in the instant appeal. The Ruling must be deferred to the final stage of judgment.
Having said this, we hold the view that the Tribunal was in breach of Section 285(8) of the Constitution when it delivered its Ruling before the stage of final judgment in which it dismissed the appeal in limine. This Court will not allow or encourage a violation of the Constitutional provision, and, accordingly, we allow the appeal and set aside the said Ruling delivered on 19th June, 2019.
Consequently, it is hereby ordered as follows:
(1) This Appeal Number CA/S/EPT/HA/22/2019 is allowed.
(2) The Election Petition No. EPT/SKT/HA/22/2019 is hereby remitted back to the Tribunal for hearing on merits in consonance with Section 285(8) of the Constitution.
These shall be the Orders of this Court.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have read before now, the judgment delivered by my learned brother AMINU AUDI WAMBAI, JCA.
I agree
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with his reasoning and conclusions. I adopt the judgment as mine and allow the appeal.
The Election Tribunals are obligated to comply with the provisions of Section 285 (8) of the Constitution of the Federal Republic of Nigeria (as amended) and indeed the entire Constitution.
I order for the remittance of the Petition to the Tribunal to hear the entire Petition on its merits.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment of my learned Brother AMINA A. WAMBAI.JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the appeal and remitting the case to the National and state House of Assembly Election Petition for continuation of trial/conclusion in accordance with Section 285(8) of the constitution of the Federal Republic of Nigeria, 1999, (4th Alteration, No. 21) Act 2017. The Section provided as thus:
Section 285(8) –
“Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the Tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the
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Tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment.”
The attitude of this Court on the issue, is that going by the words and phrases deliberately employed by the lawmaker in the above quoted Section of the Constitution such as “Preliminary Objection”, “any other interlocutory issue”, “touching on jurisdiction of the Court or Tribunal”, “or on the competence of the Petition itself”, et cetera, the Court or Tribunal as the case may be does not have the vires to dismiss a Petition in limine at the Pre-Hearing stage.
?The Section clearly abhors the practice of deciding in limine preliminary objections or any interlocutory issue touching on the jurisdiction of the Tribunal or Court in any pre-election matter or the competence of a petition raised by a party. The amendment prescribes for the Tribunal or Court as the case may be, the suspending of its ruling on the objection raised and delivering it at the stage of its final judgment. In seeking to construct the provision of Section 285(8) (supra), if given its simple, grammatical or lexical meaning, it connotes that every ruling on an interlocutory issue or preliminary
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objection, which directly or tangentially impinges on questions of jurisdiction of jurisdiction of the Tribunal or Court in a pre-election matter or on the competence of a petition must and as a matter of ‘must’ be suspended to be delivered along with the final judgment of the Court in the case.
The mischief, which Section 285(8) (Supra) had sought to address is to ameliorate the situation of hardship, which will usually occur when a Petitioner or Plaintiff as the occasion may be gets his petition or suit wrongly thrown out or dismissed at the preliminary stages of the matter. The Section is therefore set to ensuring that all matters are fully heard to their logical conclusions and possibly obviate a situation where a Petitioner is eventually shut out due to time constraints even when the appellate Court has ruled in his favour, the reason for which his matter was erroneously thrown out at the initial stages of the matter.
In therefore, dismissing the Petitioner of the Appellant as Petitioner at the level of the Tribunal following the learned Tribunal’s observance suo motu that the said petition was not filed within 21 days after the declaration of
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the Election results as prescribed by the provision of Section 285(5) of the Constitution of Nigeria, 1999 as Amended, clearly resulted in a different interpretation of the said Section 285(5) (supra) and one which has in the estimation of this Court done incalculable violence to the intendment of Section 285(8) (Supra).
?I am therefore in agreement with the lead judgment that the Tribunal had no jurisdiction to deliver its ruling subject matter of this Appeal at the stage in which it did.
I too therefore remit the case to the Tribunal for continuation of trial and conclusion in accordance with the extant provision of the Constitution on the issue. I abide by other consequential orders made in the lead jusgment.
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Appearances:
A. Zubairu, Esq. with him, M. B. Abdullahi, Esq.For Appellant(s)
M. M. Yabo, Esq. for the 1st and 2nd Respondents.
E. O. Abadaki, Esq. with him, F. S. Jimba and Samuel Daku (Esquires) for the 3rd Respondent.For Respondent(s)
Appearances
A. Zubairu, Esq. with him, M. B. Abdullahi, Esq.For Appellant
AND
M. M. Yabo, Esq. for the 1st and 2nd Respondents.
E. O. Abadaki, Esq. with him, F. S. Jimba and Samuel Daku (Esquires) for the 3rd Respondent.For Respondent