MR JOSEPH OLUJIMI KOLAWOLE AGBAJE v. INDEPENDENT ELECTORAL COMMISSION & ORS
(2015)LCN/7992(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 26th day of August, 2015
CA/L/EP/GOV/744/2015
RATIO
APPEAL: GROUND OF APPEAL; WHETHER A GROUND OF APPEAL MAY BE VALIDLY FILED AS OF RIGHT OR BY LEAVE OF THE COURT
Ordinarily, an appeal lies not only in respect of what was actually decided in the text of a decision, but also in respect of how the case was conducted and determined so that even if there is no part of the text of the decision touching on the procedure and processes leading to the decision or if the circumstances in which the decision was rendered is not a subject of the decision or is not pronounced upon, a complain can be made in respect of such procedure, processes or circumstances in an appeal against what the court decided. As the Supreme Court held in Akpan v. Bob and Others (2010) 17 NWLR (pt 1223) 421 (SC) that “although many authorities lay emphasis that a ground of appeal must stem from the text of the judgment (ipissima verba), for instance, in the case of Metal Construction (West Africa) Ltd v. D. A. Megliore and Others, in Re Miss C. Ogundare (1990) ANLR 142 at 148; FMB v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And from the general definitions, a ground of appeal can arise in a number of situations such as the following: (a) from the text of the decision appealed against (ipissima verba) (b) from the procedure under which the claim was initiated (c) from the procedure under which the decision was rendered (d) from other extrinsic factors such as issue of jurisdiction of a court from which the appeal emanates (e) from commissions or omissions by the court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of. The ideal thing is to have a pronouncement from the court from which the appeal emanates. But, where that Court fails to make a pronouncement such as where motions or objections filed before it are still pending, where it ought to have made one, that will give rise to a ground of appeal. In other situations, the court from which the appeal emanates may not have to make a pronouncement as it may not have had the opportunity to do so for instance where a judgment was delivered outside the 90 days period in contravention of Section 258 (1) of the 1979 Constitution, but now Section 294 of the 1999 Constitution, if non delivery within the time limit can cause a miscarriage of justice. Equally, in a case where a Judge delivers his judgment after having fully known that he has ceased to be a judicial officer or that he has been elevated to a higher Court. This may furnish a ground of appeal. Or still, where without genuine cause, proceedings or judgment were conducted or delivered in chambers. See Ifueze v. Mbadugha (1984) All NLR 256; Ogbunyinya v. Okudo (1979) 6 – 9 SC 24. In any of the above situations a ground of appeal may be validly filed as of right or by leave of the court, as the case may demand.” per. EMMANUEL AKOMAYE AGIM, J.C.A.
APPEAL: WHETHER AN APPELLANT CAN APPEAL AGAINST AN INTERLOCUTORY SHOULD FILE A SEPARATE NOTICE OF APPEAL FROM AN APPEAL AGAINST THE FINAL DECISION
Judicial opinion on this question is divided. Some authorities hold that a party dissatisfied with an interlocutory ruling should file a separate notice of appeal which could subsequently be heard together with an appeal against the final decision or if he is out of time, seek and obtain extension of time to appeal against the interlocutory ruling and that it can only be entertained together with the appeal against the final decision or be incorporated as grounds therein only if the constitutionally or statutorily prescribed conditions precedent to a valid appeal against interlocutory decisions are satisfied. See ONWE v. NWAOGBUINYA and OTHERS (2001) 1 SC (PT 1) 22 in which the Supreme Court held that the only exception is where the interlocutory ruling is as to admissibility of evidence and that in such a case, a complaint against such a decision can be incorporated as a ground in an appeal against the final judgment. See also OGIGIE v. OBIYAN (1997) 10 NWLR (PT.524) 179. The other view is that even if no separate notice of appeal was filed against such an interlocutory ruling, complaints against it can be incorporated as grounds in the appeal against the final decision. ONWUBUA AND OTHERS v. IGBEASOIYI AND OTHERS (2011) LPELR 754 (SC), where the Supreme Court held (per Onnoghen JSC) that “it is true that no separate notice of appeal was filed with respect to the ruling of the lower court admitting exhibit 1 but it is settled law that an appellant can appeal against an interlocutory decision of a lower court in an appeal against the final decision of the court, as in the instant case. In OKE v. AGUNBIALE and Ors (2011) LPELR 3887 (CA), this Court in determining the issue of “whether a ground of appeal from a final judgment in an election petition incorporating a complain against an interlocutory decision is competent, followed the decision of the Supreme Court in IWEKA v. SCOA NIG LTD (200)1-3 SCNJ 71 @ 91 which applied Order 3 rule 22 of the Court of Appeal Rules 1981 which provided that no interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the court from giving such a decision upon the appeal as may seem just, and held that “the practice in election petition proceedings has been to take up an appeal against an interlocutory ruling along with an appeal against the final decision.” This Court in BORNO STATE INDEPENDENT ELECTORAL COMMISSION AND OTHERS v. KACHALA (2006) 1 NWLR (PT 962) 587, held that “in recent years, both the Court of Appeal and Supreme Court have encouraged and upheld the practice of combining grounds of appeal from interlocutory decisions with those from the final judgment of the court below, as being desirable because it saves time and effort on all sides in the dispensation of justice.” In EZEADUKWA v. MADUKA AND ANOR (1997) 8 NWLR (PT 518) 635, this Court adopted the holding of the Supreme Court in BAKARE v. ACB LTD (1986) 3 NWLR (PT 26) 47 AT 58 AND 59, per Aniagolu JSC thusly; “although I have already stated at the beginning of this that the issue involved in this appeal is profound and the bringing of the appeal is justified, yet it is desirable to take this opportunity to call attention to the habit of some litigants in Lagos for especially, of rushing to the Court of Appeal and thence to this Court to test and challenge the ruling of the High Court on the smallest issues which arise in the course of trial of cases. Many a time this entails the suspension of the trial by the Judge and an adjournment of the case sine die. Sometimes, many years go by before the conclusion of the appeal proceedings a fact contributing to the much discussed delay of cases in our courts. One, of course, would not say that in appropriate cases such appeals should not be undertaken, but this must be limited to serious matters. It should not be embarked upon on trifling legal issues which can be taken up generally with the substantive appeal at the conclusion of hearing. Lawyers may enjoy the splitting of hairs on obtuse legal points but that extravagant exercise has the result of weighing heavily on the pockets of litigants and unnecessarily exhausting the energies of the Appeal Courts.” Relying on this statement of law, Tobi J.C.A. (as he then was), held that “An appellant can appeal against a ruling of a trial Judge together with the final decision of the court a party who fails in a ruling before a trial Judge may decide to take a gamble by waiting for the final decision of the Court, hoping that he succeeds at the end. If he does, then the ruling against him is spent and he need not do anything about it. And this strategy is useful in two ways. First, it saves time and second, it saves money. I cannot fault counsel who advises his client to wait for the final decision of the court to appeal both on the ruling and the judgment, in relevant circumstances. As long as the ruling is on the matter, time would start to run after the final decision and so the party does not suffer any reverse by way of the time provisions in the rules of court. Such a counsel in my view, is clearly on the side of prudence and good judgment. I do not therefore see anything wrong in waiting for the final decision of the Trial Court before appealing on the ruling and the final judgment. And what is more, I do not see the incompetence of the ground as submitted by learned counsel. In my humble view, the ground is competent and I so hold.” See also UMANA v. ATTAH (2004) 7 NWLR (PT 871) 63 @ 87, AONDOAKAA v. AJO (1999) 5 NWLR (PT 602) 206 AT 226, OKOBIA v. AJANYA (1998) 6 NWLR (PT.554) 348 and the decision of this court in ISHAKU & ORS V KANTIOK & ORS (2011) LPELR-8944 (CA). per. EMMANUEL AKOMAYE AGIM, J.C.A.
PRACTICE AND PROCEDURE: WHETHER IT IS PART OF THE ADJUDICATORY FUNCTION OF THE COURT TO ENGAGE IN A PURSUIT OF A QUESTION THAT IS OF NO RELEVANCE TO THE OUTCOME OF THE CASE BEFORE IT, MERELY BECAUSE IT IS INTELLECTUALLY OR ACADEMICALLY ATTRACTIVE
A Court cannot engage in the vain pursuit of determining a question that is of no relevance to the outcome of the case before it, merely because it is intellectually or academically attractive or that such engagement helps to develop the theory of the subject. It is settled law that it is not part of the adjudicatory functions of a Court to do so. In GLOBAL TRANSPORT OCEANICO SA AND ANOTHER v. FREE ENTERPRISES NIGERIA LTD (2001) 2 SC 154, the Supreme Court restated this point thusly; “This Court has on many occasions refrained from and refused to enter into the intricacies of any issue which will in the end amount to an academic exercise. In the case of NWOBOSI v. ACB LTD (1995) 6 NWLR (PT 404) 658 AT 681, this Court held that where the resolution of an issue one way or the other as in the instant appeal, will be no more than engaging in an academic exercise, this Court will not entertain such an issue.” See also BAMABOYE v. UNIVERSITY OF ILORIN (1999) 6 SC (PT 11) 72, OWNERS OF THE MV ARABELLA v. NAIC (2008) 34 NSCQR (PT 11) 109, BLOJWANI v. BLOJWANI (1996) LPELR 778 (SC), YUSUF AND OTHERS v. TOLULI (2008) 6-7 SC (PT 1) 164 AND IMEGWU v. OKOLOCHA AND OTHERS (2013) 9 NWLR (PT 1359) 347 (SC). per. EMMANUEL AKOMAYE AGIM, J.C.A.
PRACTICE AND PROCEDURE; WHETHER INCONSISTENT RELIEFS CAN BE CLAIMED FOR IN ONE ACTION AND IF CLAIMED FOR IN THE SAME ACTION CANNOT BE TRIED TOGETHER
It is a general principle of law that inconsistent reliefs cannot be claimed for in one action and if claimed for in the same action cannot be tried together. See AROMIRE v. AWOYEMI (1972) ALL NLR 101 AND EZEKWESILI & ORS v. AGBAPUONWU & ORS (2003) 4 SC (PT.1) 33 in which the Supreme Court restated and applied this principle. per. EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES:
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
MR JOSEPH OLUJIMI KOLAWOLE AGBAJE – Appellant(s)
AND
1. INDEPENDENT ELECTORAL COMMISSION
2. MR DAPO AKINWUMI AMBODE
3. ALL PROGRESSIVE CONGRESS (APC)
4. THE RESIDENT ELECTORAL COMMISSIONER FOR LAGOS STATE, INEC – Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On 11-4-2015, the 1st respondent conducted a general election to the office of Governor of Lagos State. The 4th respondent on 13-4-2015 declared the 2nd respondent winner of the election and returned him elected as Governor of Lagos State.
Dissatisfied with the result of the election declared by the 4th respondent, the appellant and the People’s Democratic Party, the political party that sponsored him for the election, on 30-4-2015, filed an election petition commencing election petition no. GOV/EPT/L/1/2015 against the respondents herein, in the Lagos State Governorship Election Tribunal.
The grounds for the petition are that:
(a) Contrary to paragraph 28 of the approved guidelines and regulations for the conduct of the 2015 general elections issued by the 1st respondent, the number of votes cast is more than the number of accredited voters and that therefore the votes declared in favour of the 2nd respondent and the result of the election is invalid
(b) There were so many irregularities in respect of the use of the card readers during the election, so that so many polling units did not have the card reader or make use of the card readers even where available and that such polling units are Epe, Badagry, Mushin, Ikorodu, Eti Osa, Alimosho, Ikeja, Ibeju Lekki, Lagos Island, Apapa, Ifako Ijaiye, Kosofe, Mainland, Agege and Somolu (fifteen in number)
(c) The 2nd respondent was not qualified to contest the said election as he was not validly sponsored by the 3rd respondent as its candidate for the election in that he was nominated, selected and sponsored as the 3rd respondent’s candidate for the election, through a governorship primary that held on 4-12-2015 without the prior 21 days notice to the 1st respondent of the holding of such a primary as required by Section 85 of the Electoral Act 2010, that the nomination and sponsorship of the 2nd respondent as the 3rd respondent’s candidate for the election was invalid and that he was not sponsored by the 3rd respondent and so was not qualified for election as required by Section 65 (2) (b) of the 1999 Constitution.
(d) The 2nd respondent was not qualified to stand for the Governorship Election in Lagos State because the 2nd respondent who hails from Ilaje Local Government Area in Ondo State, as he had stated in his Joint Administration Matriculation Board Form some years back, falsely declared in the affidavit attached to his candidates nomination form which he submitted to the 1st Respondent as a candidate for the election, that he is from Epe Local Government Area of Lagos State.
In paragraph 19 of the petition, the petitioner claimed for the following reliefs:
1. That it may be determined and declared that the 3rd Respondent cannot validly present a candidate for the election into office of the Governor in the gubernatorial election of 11-4-2015, having failed to comply with mandatory provisions of Section 85 of the Electoral Act, 2010 (as amended)
2. That it may be determined and declared that the 2nd respondent, Mr Dapo Akinwumi Ambode, being the candidate presented by the 3rd respondent, was not qualified to contest the Lagos State gubernatorial election conducted on 11-4-2015 because his nomination was not in compliance with the mandatory provisions of the Electoral Act and the Constitution of the Federal Republic of Nigeria 1999 (as amended)
3. That the 2nd respondent be disqualified as a candidate for the gubernatorial election held in Lagos State on 11-4-2015 because his nomination was not in compliance with the mandatory provisions of the Electoral Act and the Constitution of the Federal Republic of Nigeria
4. That it be determined and declared that the 1st petitioner, Mr Joseph Olujimi Kolawole Agbaje, being the candidate with the highest number of votes cast amongst the lawful and valid candidates for the gubernatorial election held in Lagos State on 11-4-2015, be declared the winner of the said election
5. An order nullifying the act of the 4th respondent in declaring the 2nd respondent, Mr Dapo Akinwumi Ambode as the Governor-Elect in the gubernatorial election held in Lagos State on 11-4-2015
6. That it be determined and declared that the 1st petitioner is the winner of the gubernatorial election held in Lagos State on 11-4-2015, being the candidate with majority votes cast amongst the lawful and valid votes cast at said election
7. An order mandating the 1st respondent, through the 4th respondent, to declare and return the 1st petitioner; Mr Joseph Olujimi Agbaje, being the candidate of the 2nd petitioner, as the Governor-Elect of Lagos State
8. An order nullifying the Lagos State gubernatorial elections conducted by the 1st respondent in Lagos State on 11-4-2015 in the following areas:
a. Epe
b. Badagry
c. Mushin
d. Ikorodu
e. Eti-Osa
f. Alimosho
g. Ikeja
h. IbejuLekki
i. Lagos Island
j. Apapa
k. Ifako-Ijaiye
l. Kosofe
m. Mainland
n. Agege
o. Somolu
As same are invalid for non compliance with the provisions of the Electoral Act.
On 20-5-2015, the 3rd respondent filed its reply to the petition and filed a notice of preliminary objection on the grounds that:
1. The petition is incompetent, having failed to state the grounds recognized by law for presenting the petition and which grounds ought to be struck out brevimanu
2. Whilst grounds (a) and (b) contained in paragraph 13 of the petition are completely unknown to the Electoral Act, ground (c) contained on page 14 of the petition is a pre election matter in respect of which this Tribunal has no jurisdiction
3. The petitioners did not meet all the conditions precedent to the presentation of the petition
4. In the foregoing premises, this tribunal has no jurisdiction to entertain the petition and the same should be dismissed or struck out.
On 30-5-2015, the 1st and 4th respondents filed their reply to the petition and included therein a notice of preliminary objection as follows:
1. That the purported grounds of the petition stated in paragraphs 13 (a) and 13 (b) of the petition are not grounds prescribed by Section 138 (1) of the Electoral Act 2010 (as amended) and accordingly ought to be struck out
2. The purported ground contained in paragraph 14 (i) (vi) of the petition is not a ground of qualification or disqualification as prescribed under the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and accordingly ought to be struck out with reliefs 19 (1), 19 (2) and 19 (3)
PARTICULARS
a. The alleged non compliance with the provisions of the Electoral Act 2010 (as amended) is not a ground of disqualification or qualification to contest an election under any provision of the 1999 Constitution (as amended)
b. The 1999 Constitution (as amended) has completely covered the filed of qualification or disqualification to contest gubernatorial elections. As such, no provision of a subordinate legislation, including the Electoral Act 2010 (as amended) can add to, subtract from or even replicate the grounds of qualification or disqualification as contained in the 1999 Constitution.
3. The Tribunal has no jurisdiction to declare the nomination or sponsorship of the 2nd respondent invalid as the jurisdiction of the Tribunal as defined by Section 285 (2) of the 1999 Constitution is severely limited to a declaration whether a person was validly elected to the office of governor of the State.
4. The facts in paragraphs 14 (i) (vi) of the petition are pre election matters which do not come within the provisions of Section 177 and 182 of the 1999 Constitution, to make them legally cognizable by the Tribunal under Section 138 (1) (a) of the Electoral Act 2010 as amended.
5. That the purported ground contained in paragraphs 15, 16 and 17 of the petition is not a ground of qualification or disqualification as prescribed under the provisions of the Constitution and accordingly, ought to be struck out.
PARTICULARS
a. Making an alleged false statement in a purported affidavit deposition or declaration is not a ground for disqualification to contest an election under any provision 1999 Constitution.
b. The 1999 Constitution has completely covered the field of qualification to contest gubernatorial elections and no provision of any subordinate legislation, including the Electoral Act 2010, can add to, subtract from or even replicate the grounds of qualification or otherwise, as contained in the Constitution.
c. There is no pleading that the 2nd respondent was charged with or convicted for perjury by any court or Tribunal.
6. An order striking out the following paragraphs of the petition, to wit;
i. Paragraphs 13 (b), 15, 16, 18 (b) and 19 of the petition (including all the attachments to the petition) on the ground that they are generic, vague, imprecise, inexact, inchoate, wooly, speculative, nebulous and contrary to paragraph 4 (1) (d) of the first schedule to the Electoral Act 2010 (as amended).
ii. The petition ought to be struck out on the ground that the reliefs sought by the petitioners are not predicated on any legally cognizable ground for presenting an election petition, are contradictory and not grantable as sought in an election petition.
7. An order striking out schedules A, B, C, D, E, F, G, H, I, J, K, L and N, attached to the petition.
PARTICULARS
i. There is no paragraph 18 (c) in the petition to which schedules A, B, C, D, E, F, G, H, I, J, K, L and N can be anchored
ii. Schedules A, B, C, D, E, F, G, H, I, J, K, L and N are precluded from being filed along with an election petition under paragraph 4 (5) of the 1st schedule to the Electoral Act 2010, which in mandatory terms limits and defines the documents to accompany an election petition
iii. Schedules A, B, C, D, E, F, G, H, I, J, K, L and N are vague, nebulous and contrary to the provisions of paragraph 4 (1) (d) of the first schedule to the Electoral Act 2010.
8. An order striking out the name of the 4th respondent from the petition, the latter not being a statutory respondent under the provisions of Section 137 (2) and (3) of the Electoral Act 2010.
On 2-6-2015, the 2nd respondent filed his reply to the petition and included in the said reply, a preliminary objection on the grounds that:
A. The grounds stated in paragraphs 13
(a) and (b) on which the petition is based are unknown to and incompatible with the statutorily prescribed grounds in Section 138 of the Electoral Act.
B. Paragraphs 14 (i) (vi), 15, 16, 17 and 19 (1) (5) of the petition relate to pre election issues over which this Tribunal does not have jurisdiction.
C. Paragraphs 14 (i) (vi), 15, 16 and 17 of the petition are not based on any of the grounds in respect of which the petition is based
D. Reliefs 19 (1) (4) relate to pre election and nomination issues relating to the primary election of the 3rd respondent over which this Court does not have the jurisdiction
E. Only the State High Court or the Federal High Court have the jurisdiction to entertain reliefs 19 (1) (4)
F. Reliefs 19 (1) (4) are not premised on and also do not relate to any of the grounds of the petition and are not also hinged on any of the pleadings in the petition
G. Reliefs 19 (6) and (7) do not relate to any of the grounds of the petition and are not also hinged on any of the pleadings in the petition
H. Reliefs 19 (6) (8) are academic and incompetent Relief 19 (8) is academic and incompetent without a relief for a re-run election
On 13-6-2015, the 2nd respondent filed a motion on notice applying for an order of striking out or dismissal of the petition for being incompetent, fundamentally defective and vesting no jurisdiction on the Tribunal to entertain it. The grounds for the application are essentially the same with the grounds in his notice of preliminary objection. On 26-6-2015, the 1st and 4th respondents also filed a motion on notice applying for orders to strike out several paragraphs of the petition and the entire petition on essentially the same grounds as contained in their preliminary objection.
The petitioner filed replies to the respective respondents’ replies. The petition and the respondents’ replies were accompanied by lists of witnesses, written oath statements of witnesses, list of documents and photocopies of the said documents.
The respondents filed written arguments of their preliminary objections. The petitioner filed written addresses in response to the said arguments.
The Trial Tribunal considered whether to entertain the motions to strike out the petition and the preliminary objections at the pre-hearing stage or try and determine them with the petition. After considering the arguments of all the parties on the issue, it ruled on 26-6-2015 that all the motions to strike out the petition and preliminary objections would be heard and determined at the pre-hearing session. On 1-7-2015, it determined them holding that they had merit and struck out the petition.
Dissatisfied with the ruling of the Tribunal, the petitioners on 4-7-2015 commenced this appeal no. CA/L/EP/GOV/744/15 by filing a notice of appeal containing six grounds for the appeal.
All the parties herein have filed, exchanged and adopted their written addresses as follows; appellant’s brief of argument, 1st and 4th respondents’ brief of argument, 2nd respondent’s brief of arguments and 3rd respondent’s brief of argument.
The appellant’s brief of argument raised the following issues for determination:
1. Whether the 2nd and 3rd respondent’s respective motions on notice and notice of preliminary objection upon which the Tribunal struck out the appellant’s petition was competent in law to enable the Tribunal to adjudicate on it without hearing the petition.
2. Whether the Tribunal was right in striking out the appellant’s petition upon the 2nd and 3rd respondents’ respective motion on notice and preliminary objection without hearing the substantive petition.
3. Whether the Tribunal was right in holding that the entire petition was incompetent and liable to be struck out at that preliminary stage on the ground that the petitioners did not include a relief for a fresh election in the petition or for any other reason whatsoever.
4. Whether the Tribunal was right in striking out the appellant’s petition at the preliminary stage after holding that the petitioners’ ground of petition in paragraphs 13 (b) and 14 of the petition are competent grounds.
5. Whether the Tribunal was right in holding that the appellants’ ground of petition in paragraph 13 (a) of the petition is outside the scope of the Electoral Act, 2010 (as amended) and the guideline.
The 1st and the 4th respondents’ brief of argument raised the following issues for determination:
1. Whether the Tribunal was in error in hearing the preliminary objection of the 2nd respondent (grounds 1 and 2).
2. Whether after upholding some of the grounds of the petition was the Tribunal in error in striking out the petition on the ground that a vital relief was absent in the petition which in absence rendered the petition academic (grounds 3, 4 and 6)
3. Whether the Tribunal was in error in striking out paragraph 13 (a) of the petition as being outside the scope of the provisions of Section 138 (1) (b) of the Electoral Act 2010 (as amended) (ground 5)
The 2nd respondent’s brief of argument raised the following issues for determination:
1. Whether the hearing and determination of the respondent’s application by the lower Tribunal (on the basis of which the petition was struck out) was proper (grounds 1 and 2)
2. In view of the circumstances of the petition, whether the Lower Tribunal was correct in striking out the petition which did not contain a relief for a fresh election (ground 3)
3. Irrespective of the Lower Tribunal’s non striking out of some grounds of the petition, whether the striking out the petition by the Lower Tribunal was right (grounds 4 and 6)
4. Whether the Lower Tribunal was correct in striking out paragraph 13 (a) of the petition for non compliance with the Electoral Act (ground 5).
The 3rd respondent in its brief of argument raised the following issues for determination:
1. Whether the Tribunal was right to have heard and determined the objection of the 2nd respondent which attacked the competence of the petition at the pre-hearing session (grounds 1 and 2 of the notice of appeal)
2. Whether the Tribunal was right in its decision striking out the petition for failure to seek appropriate remedy of re-run pursuant to its allegation of non-qualification of the 2nd respondent (grounds 3, 4 and 6 of the notice of appeal)
3. Whether the Tribunal was right in its decision that paragraph 13 (a) of the petition is outside the scope of the Electoral Act and struck out the purported ground contained therein (ground 5 of the notice of appeal).
The 1st and 4th respondents raised and argued a preliminary objection to grounds 1 and 2 of this appeal in pages 4 to 8 of their brief of argument. The 2nd respondent filed a separate notice of preliminary objection on 30-7-2015 objecting to grounds 1, 2 and 5 of this appeal and the 1st arm of prayer 2 in paragraph 4 of the notice of this appeal. The said objection is argued at pages 3 to 11 of his brief of argument. The 3rd respondent also raised and argued a preliminary objection to grounds 1 and 2 of this appeal in pages 2 to 4 of its brief of argument.
When this appeal came up for hearing on 11-8-2015, the 2nd appellant (People’s Democratic Party) withdrew its own appeal. All the respondents stated that they were not objecting to the withdrawal of its appeal. This Court dismissed the appeal as it concerns the 2nd appellant in keeping with Order 11 Rule 5 of the Court of Appeal Rules 2011 and held that for the avoidance of doubt, the 1st Appellant’s appeal subsists and that it was proceeding with the hearing of same.
Since the preliminary objections attack the competence of this appeal or some of the grounds for the appeal or some issues for determination, they should be determined first. I will now consider them.
Each respondent has argued that grounds 1 and 2 of this appeal are incompetent because they do not relate to the Tribunal’s decision of 1-7-2015 stated in the notice of appeal to be the decision appealed against herein, that the complaint in the said grounds 1 and 2 relate to the Tribunal’s decision of 26-6-2015, that the objections be heard at the pre-trial session and not later, that there is no appeal against the ruling of 26-6-2015, that the said grounds 1 and 2 are argumentative contrary to Order 6 rule 2 (3) of the Court of Appeal Rules 2011 and that the success of the objections renders irrelevant and academic the issue of the stage of the proceedings at which the said objections ought to be taken. They urged that the said grounds 1 and 2, the issues for determination derived from them and the arguments of those issues be struck out.
Another ground relied upon by the 2nd respondent for his objection is that ground 5 of this appeal alleged what the Tribunal did not decide as a basis for the complaint in the ground, that it alleged that the Tribunal struck out the entire petition because it struck out paragraph 13(a) and dismissed the objections to some paragraphs of the petition, that the petition was not struck out as a result of the striking out of paragraph 13 (a) thereto, and that as such, the said paragraph 5 does not relate to the ruling of 1-7-2015, appealed against. The 2nd Respondent contends that because the Tribunal upheld as valid, other grounds of objection to the petition and struck out the petition, ground 5 of this appeal is rendered academic. For this submission, learned SAN for the 2nd respondent relied on the decision of this Court in ILOABUCHI v. ILOABUCHI (2000) 5 NWLR (PT 656) 178 AT 203 and the decision in Daily Times v. DSV Ltd (2014) 5 NWLR (pt. 1400) 327 at 351.
The third ground for the 2nd respondent’s objection is that relief 2 in paragraph 4 of the notice of appeal is not available to the appellant since the trial of the petition on the merit had not commenced and no evidence had been led for that purpose before the objections were heard and determined and that there is no material for the determination of the said relief. The learned SAN then urged that the grounds 1, 2 and 5 of this appeal, the issues for determination derived from them and the arguments of same and the second relief prayed in paragraph 4 of the notice of appeal be struck out.
Although the appellant did not reply to the above arguments in support of the preliminary objections of the respondents, this Court would still consider if the said arguments have merit. As this Court held in Onwugbelu v. Ezebuo (CA/E/56/2009 on 21-2-2013) per Agim JCA “Where one party in a case has argued a point whether of law or fact, he thereby invites the Court to judicially determine the issue so argued. The argument serves to invoke and guide the courts judicial inquiry into the issue. The contrary or alternative argument by the other side is to provide an alternative or balanced guide for the Court on the matter. The absence of such reply cannot be taken to mean that the pending argument represents the law and the facts of the case. The appellants argument serves to show that the judgment is wrong in a particular respect having regard to the facts and the law. The arguments remain mere inferences or opinions of law and facts on the basis of the evidence on record. It is the state of the facts on record and the existing relevant law that will determine the validity of such argument and not the absence of an alternative or contrary opinion. It will help the substantial justice of the case if the merit of the pending argument is considered on the basis of the facts before the Court and the existing law relevant to the facts of the case.” See also the decision of the Supreme Court in ECHERE v. EZIRIKE (2006) All FWLR (Pt. 323)1597 at 1608 and the decisions of this Court in TRACTOR & EQUIPRIENT (NIG) LTD & ORS v. INTEGRITY CONCEPTS LTD & ANOR (2011) LPELR 5034, JOHN HOLT VENTURES v. OPUTA (1996) 9 NWLR (pt.470)10, MACHIKA v. IMAM & ORS (2010) LPELR 4448, NNAMANI v. NNAJI (1999)7 NWLR (610) 313, AKANBI v. ALATEDE (2000) FWLR (1) 928, on IRO v. ECHEWENDU (1996) 8 NWLR (pt.468) 629 restating this principle.
Ground 1 of this appeal complains that the Honourable Judges of the Trial Tribunal erred in law when they proceeded to hear the preliminary objection of the 2nd respondent dated 15-6-2015 via a motion on notice contrary to the mandatory provisions of the Electoral Act 2010 (as amended), which requires the respondent to file the objection in his reply to the petition to enable the Tribunal adjudicate on both the objection and the substantive petition.
Ground 2 of this appeal complains that the Honourable Judges of the Trial Tribunal erred in law when they proceeded to hear the preliminary objection of the 2nd respondent dated 15-6-2015 pre-emptively and prematurely without hearing the substantive petition contrary to the mandatory provisions of paragraph 12 (5) of the first schedule to the Electoral Act 2010 (as amended).
I have carefully read through the Tribunal’s ruling of 1-7-2015. The ruling contains no decision, holding or order that the preliminary objections to the petition should be heard at the pre-trial session and that it would hear and determine them at such a stage. The ruling said nothing about the appropriate stage of proceedings in the election petition to hear and determine the preliminary objections to the petition. It is therefore clear that the complaints in grounds 1 and 2 of this appeal are not related to any part of what was expressly decided in the said ruling. The grounds, however, complain against the procedure of hearing and determining the objections at the pre-trial stage of the proceedings in the election petition, which procedure was not a subject of the ruling.
Ordinarily, an appeal lies not only in respect of what was actually decided in the text of a decision, but also in respect of how the case was conducted and determined so that even if there is no part of the text of the decision touching on the procedure and processes leading to the decision or if the circumstances in which the decision was rendered is not a subject of the decision or is not pronounced upon, a complain can be made in respect of such procedure, processes or circumstances in an appeal against what the court decided. As the Supreme Court held in Akpan v. Bob and Others (2010) 17 NWLR (pt 1223) 421 (SC) that “although many authorities lay emphasis that a ground of appeal must stem from the text of the judgment (ipissima verba), for instance, in the case of Metal Construction (West Africa) Ltd v. D. A. Megliore and Others, in Re Miss C. Ogundare (1990) ANLR 142 at 148; FMB v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And from the general definitions, a ground of appeal can arise in a number of situations such as the following: (a) from the text of the decision appealed against (ipissima verba) (b) from the procedure under which the claim was initiated (c) from the procedure under which the decision was rendered (d) from other extrinsic factors such as issue of jurisdiction of a court from which the appeal emanates (e) from commissions or omissions by the court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of. The ideal thing is to have a pronouncement from the court from which the appeal emanates. But, where that Court fails to make a pronouncement such as where motions or objections filed before it are still pending, where it ought to have made one, that will give rise to a ground of appeal. In other situations, the court from which the appeal emanates may not have to make a pronouncement as it may not have had the opportunity to do so for instance where a judgment was delivered outside the 90 days period in contravention of Section 258 (1) of the 1979 Constitution, but now Section 294 of the 1999 Constitution, if non delivery within the time limit can cause a miscarriage of justice. Equally, in a case where a Judge delivers his judgment after having fully known that he has ceased to be a judicial officer or that he has been elevated to a higher Court. This may furnish a ground of appeal. Or still, where without genuine cause, proceedings or judgment were conducted or delivered in chambers. See Ifueze v. Mbadugha (1984) All NLR 256; Ogbunyinya v. Okudo (1979) 6 – 9 SC 24. In any of the above situations a ground of appeal may be validly filed as of right or by leave of the court, as the case may demand.”
In our present case, the question of the appropriate stage of the election petition proceedings to hear and determine the objections to the petition was distinctly and specifically considered and determined by the Tribunal in a ruling of 26-6-2015. None of the parties appealed against the ruling.
The objections were then heard. On 1-7-2015, the Tribunal rendered its ruling, holding that the objections have merit and struck out the petition. It is glaring that the notice of appeal that commenced this appeal, states clearly that the decision against which this appeal is brought is the Tribunal ruling of 1-7-2015. In the said notice of appeal, complaints against the ruling of 26-6-2015 have been incorporated as grounds 1 and 2 of the appeal.
The question that arises at this juncture is whether the appellant was right to have incorporated complaints against the ruling of 26-6-2015 in an appeal against the ruling of 1-7-2015 that terminated the petition with finality instead of filing a separate notice of appeal against the ruling of 26-6-2015.
Judicial opinion on this question is divided. Some authorities hold that a party dissatisfied with an interlocutory ruling should file a separate notice of appeal which could subsequently be heard together with an appeal against the final decision or if he is out of time, seek and obtain extension of time to appeal against the interlocutory ruling and that it can only be entertained together with the appeal against the final decision or be incorporated as grounds therein only if the constitutionally or statutorily prescribed conditions precedent to a valid appeal against interlocutory decisions are satisfied. See ONWE v. NWAOGBUINYA and OTHERS (2001) 1 SC (PT 1) 22 in which the Supreme Court held that the only exception is where the interlocutory ruling is as to admissibility of evidence and that in such a case, a complaint against such a decision can be incorporated as a ground in an appeal against the final judgment. See also OGIGIE v. OBIYAN (1997) 10 NWLR (PT.524) 179.
The other view is that even if no separate notice of appeal was filed against such an interlocutory ruling, complaints against it can be incorporated as grounds in the appeal against the final decision. ONWUBUA AND OTHERS v. IGBEASOIYI AND OTHERS (2011) LPELR 754 (SC), where the Supreme Court held (per Onnoghen JSC) that “it is true that no separate notice of appeal was filed with respect to the ruling of the lower court admitting exhibit 1 but it is settled law that an appellant can appeal against an interlocutory decision of a lower court in an appeal against the final decision of the court, as in the instant case. In OKE v. AGUNBIALE and Ors (2011) LPELR 3887 (CA), this Court in determining the issue of “whether a ground of appeal from a final judgment in an election petition incorporating a complain against an interlocutory decision is competent, followed the decision of the Supreme Court in IWEKA v. SCOA NIG LTD (200)1-3 SCNJ 71 @ 91 which applied Order 3 rule 22 of the Court of Appeal Rules 1981 which provided that no interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the court from giving such a decision upon the appeal as may seem just, and held that “the practice in election petition proceedings has been to take up an appeal against an interlocutory ruling along with an appeal against the final decision.” This Court in BORNO STATE INDEPENDENT ELECTORAL COMMISSION AND OTHERS v. KACHALA (2006) 1 NWLR (PT 962) 587, held that “in recent years, both the Court of Appeal and Supreme Court have encouraged and upheld the practice of combining grounds of appeal from interlocutory decisions with those from the final judgment of the court below, as being desirable because it saves time and effort on all sides in the dispensation of justice.”
In EZEADUKWA v. MADUKA AND ANOR (1997) 8 NWLR (PT 518) 635, this Court adopted the holding of the Supreme Court in BAKARE v. ACB LTD (1986) 3 NWLR (PT 26) 47 AT 58 AND 59, per Aniagolu JSC thusly; “although I have already stated at the beginning of this that the issue involved in this appeal is profound and the bringing of the appeal is justified, yet it is desirable to take this opportunity to call attention to the habit of some litigants in Lagos for especially, of rushing to the Court of Appeal and thence to this Court to test and challenge the ruling of the High Court on the smallest issues which arise in the course of trial of cases. Many a time this entails the suspension of the trial by the Judge and an adjournment of the case sine die. Sometimes, many years go by before the conclusion of the appeal proceedings a fact contributing to the much discussed delay of cases in our courts. One, of course, would not say that in appropriate cases such appeals should not be undertaken, but this must be limited to serious matters. It should not be embarked upon on trifling legal issues which can be taken up generally with the substantive appeal at the conclusion of hearing. Lawyers may enjoy the splitting of hairs on obtuse legal points but that extravagant exercise has the result of weighing heavily on the pockets of litigants and unnecessarily exhausting the energies of the Appeal Courts.”
Relying on this statement of law, Tobi J.C.A. (as he then was), held that
“An appellant can appeal against a ruling of a trial Judge together with the final decision of the court a party who fails in a ruling before a trial Judge may decide to take a gamble by waiting for the final decision of the Court, hoping that he succeeds at the end. If he does, then the ruling against him is spent and he need not do anything about it. And this strategy is useful in two ways. First, it saves time and second, it saves money. I cannot fault counsel who advises his client to wait for the final decision of the court to appeal both on the ruling and the judgment, in relevant circumstances. As long as the ruling is on the matter, time would start to run after the final decision and so the party does not suffer any reverse by way of the time provisions in the rules of court. Such a counsel in my view, is clearly on the side of prudence and good judgment. I do not therefore see anything wrong in waiting for the final decision of the Trial Court before appealing on the ruling and the final judgment. And what is more, I do not see the incompetence of the ground as submitted by learned counsel. In my humble view, the ground is competent and I so hold.” See also UMANA v. ATTAH (2004) 7 NWLR (PT 871) 63 @ 87, AONDOAKAA v. AJO (1999) 5 NWLR (PT 602) 206 AT 226, OKOBIA v. AJANYA (1998) 6 NWLR (PT.554) 348 and the decision of this court in ISHAKU & ORS V KANTIOK & ORS (2011) LPELR-8944 (CA) .
The preponderance of judicial opinion is in favour of incorporation of the complaint against the interlocutory ruling as a ground in the appeal against the final decision.
By virtue of Order 4 Rule 5 of the Court of Appeal Rules 2011 this Court can determine the complains against an interlocutory ruling incorporated as grounds in an appeal against the final decision in that case. The Supreme Court has held so in Okobia v. Ajanya (supra) and Iweka v. SCOA (supra).
In the light of the foregoing, I hold that the incorporation of the complaint against the ruling of 26-6-2015 in the appeal against the final decision of 1-7-2015, without the filing of a separate notice of appeal against the 26-6-2015 ruling is correct. The preliminary objection against the competence of grounds 1 and 2 of this appeal on the ground that they are not related to the ruling of 1-7-2015 therefore fails.
Another ground for the 2nd respondent’s objection to the competence of grounds 1 and 2 of this appeal is that the objections having been heard, determined and upheld, the complaint in this appeal thatthey should not have been heard and determined at the pre-trial stage serves no practical or utilitarian purpose and is academic. I agree with this submission. I fail to see how the hearing and determination of the objections at the pre-hearing stage influenced the decision of the Tribunal in upholding the objections. What injustice did the appellant suffer as a result of the hearing and determination of the objections at the pre-hearing stage of the proceedings So even if it is assumed that the Tribunal erred in law by hearing the objections at the pre-trial stage, the error cannot vitiate the said hearing and determination of the objections, since it has not been shown that had any influence on the outcome of the hearing. The determination of the question of whether the Tribunal should have heard and determined same at the end of the proceedings would not help the determination of whether the objections were valid or not. Such a question arising at this stage, after the objections have been heard and determined is of no practical relevance in this appeal, however intellectually satisfying it may be. Such a question is not valid for the court’s consideration.
It is incompetent. All parties agree that the Tribunal had the jurisdiction to hear and determine the objections by virtue of paragraphs 12(5), 18(7)(d), 47(1) and 53(5) of First Schedule to the Electoral Act 2010 (as amended). Now the Tribunal has exercised that jurisdiction to hear and determine the objection early in the proceedings at the pre-hearing session.
A Court cannot engage in the vain pursuit of determining a question that is of no relevance to the outcome of the case before it, merely because it is intellectually or academically attractive or that such engagement helps to develop the theory of the subject. It is settled law that it is not part of the adjudicatory functions of a Court to do so. In GLOBAL TRANSPORT OCEANICO SA AND ANOTHER v. FREE ENTERPRISES NIGERIA LTD (2001) 2 SC 154, the Supreme Court restated this point thusly; “This Court has on many occasions refrained from and refused to enter into the intricacies of any issue which will in the end amount to an academic exercise. In the case of NWOBOSI v. ACB LTD (1995) 6 NWLR (PT 404) 658 AT 681, this Court held that where the resolution of an issue one way or the other as in the instant appeal, will be no more than engaging in an academic exercise, this Court will not entertain such an issue.” See also BAMABOYE v. UNIVERSITY OF ILORIN (1999) 6 SC (PT 11) 72, OWNERS OF THE MV ARABELLA v. NAIC (2008) 34 NSCQR (PT 11) 109, BLOJWANI v. BLOJWANI (1996) LPELR 778 (SC), YUSUF AND OTHERS v. TOLULI (2008) 6-7 SC (PT 1) 164 AND IMEGWU v. OKOLOCHA AND OTHERS (2013) 9 NWLR (PT 1359) 347 (SC).
In light of the foregoing, I hold that the 2nd respondent’s objection to grounds 1 and 2 of this appeal on the grounds that they serve no practical purpose and are academic, is valid. The said grounds 1 and 2 are hereby declared incompetent and are hereby struck out.
Since grounds 1 and 2 are incompetent, it follows that issues 1 and 2 of the appellant’s brief of argument deriving from them and all the arguments made under those issues cannot stand. The said issues and arguments are hereby struck out. It is settled law that issues for determination and arguments made thereunder in an appeal must be based on competent grounds of appeal. If they are based on incompetent grounds, they are equally incompetent. Issues and arguments in an appeal cannot be sustained by incompetent grounds of appeal. See FBN PLC v. ACB LTD (2006) 1 NWLR (PT 962) 438, UDOH v. REGISTERED TRUSTEES B.C. & STAR (2011) 17 NWLR (PT 1276) 223, CHIME v. CHIME (1995) 6 NWLR (PT.404) 734.
The 2nd respondent also contended that ground 5 of this appeal is not competent on the basis that it does not relate to what the tribunal decided in its ruling of 1-7-2015, in that it alleges what the Tribunal did not say. I do not agree with the submissions of learned counsel for the 2nd respondent that the said ground alleges that upon striking out of the ground for the petition in paragraph 13 (a) of the petition, the Tribunal struck out the petition. It is glaring that what the ground alleges is that the Tribunal held that the ground contained in paragraph 13 (a) of the petition is outside the scope of the Electoral Act 2010, and thereby, struck out the petition. For ease of reference, the exact text of the said ground 5 is reproduced here thus; “the Honourable Judges of the Election Tribunal erred in law when they held that the petitioners/appellants’ ground of petition in paragraph 13 (a) of the petition is outside the scope of the Electoral Act and thereby struck out the petition.” Under the particulars of error, it is stipulated that “the Petitioners’ ground for the petition in paragraph 13 (a) of the petition is in compliance with the Electoral Act 2010 (as amended) and guideline therein, in that the ground relates to irregularities in the election, the total number of votes cast exceeding the number of registered voters and failure to use the card readers during the election as provided by the law and guideline.”
The objection clearly proceeds from an erroneous assumption of the content of ground 5 of this appeal. There is no doubt that the phrase “and thereby struck out the petition” in the said ground 5, creates the impression that the petition was struck out as a result of the holding. Even if it were so, the ground is still valid because it attacks the holding of the Tribunal that the ground in paragraph 13 (a) of the petition is outside the scope of the Electoral Act. It relates to that part of the ruling of 1-7-2015. In the light of the foregoing, I hold that there was no basis for the 2nd respondent’s objection to the competency of this ground. Therefore the objection to ground 5 of this appeal is overruled and dismissed.
The 2nd respondent also contended as a preliminary issue, on the basis of the state of the appellant’s brief of argument that the appellant had abandoned his quest for relief (ii) in paragraph 4 of the notice of appeal which reads thus; “to determine the petition of the appellant on the merit. In the alternative, to send the petition to another Governorship Election Tribunal for determination on the merit.”
I agree with the submission of learned counsel for the 2nd respondent that the appellant in his brief of argument said nothing concerning the first arm of its prayer that this Court should, after allowing this appeal and setting aside the ruling of the Tribunal, determine the merit of the appellant’s petition. It was the alternative relief in the 2nd arm of the prayer that the appellant asked for in the concluding part of his brief of argument. He urged that this Court should set aside the 1-7-2015 ruling of the Tribunal and send the petition to another constituted Governorship Election Tribunal for hearing. I agree with the view of learned counsel for the 2nd respondent that the appellant in the light of the foregoing abandoned the prayer that this Court determine the merit of the appellant’s petition. The said prayer contained in the first arm of sub paragraph (ii) under the heading “reliefs sought from the Court of Appeal” is hereby struck out.
I will now proceed to deal with the merit of this appeal. The issues for determination raised in the briefs of argument of all the parties, though couched differently are the same in substance. I prefer to determine this appeal on the basis of the issues for determination raised in the appellant’s brief of argument.
Issues number 1 and 2 in the appellant’s brief and the arguments of same have earlier in this judgment been held to be incompetent and struck out along with grounds 1 and 2 of this appeal from which they are derived. Assuming the said grounds 1 and 2, the issues deriving from them and the arguments of same were competent, the decision of the Supreme Court in PDP v. INEC (2012) 7 NWLR (Pt. 1300) 538 at 566 cited by learned counsel for the 3rd respondent and the decision of this Court in Ngige & Anor. v. INEC & Ors (CA/E/EPT/02/2014 of 15-4-2014) applying the Supreme Court decisions in PDP v. INEC and other cases render barren and unnecessary this dispute as to the appropriate stage of an election petition proceedings a Tribunal should hear objections to paragraphs of a petition or the entire petition on points of law. I have calmly and carefully considered the arguments of all sides on this issue. While the appellant contends that the objections having been raised in the replies of the respondents to the petition, the objections ought to have been heard along with the petition by virtue of Paragraph 12(5) of the First Schedule to the Electoral Act, the respondents contend that since the 2nd and 3rd respondents filed motions on notice further applying for the striking out of paragraphs of the petition and the entire petition on the same grounds of the objections embedded in their replies, the Tribunal was right to have heard and determined the objections at the pre-hearing sessions by virtue of Paragraphs 18(7)(d), 47(1) and 53(5) of the said First Schedule to the Act. In NGIGE v. INEC (supra) this Court, per Agim JCA, on exactly the same facts resolved this exact issue thus “The Supreme Court in PDP v. INEC (Supra) stated in clear unambiguous terms the law on the application of paragraph 12 (5) and 47 (1) thereby putting the matter beyond dispute. The Respondents in that case stated their objections to some paragraphs of the petition in their replies to the petition, but filed no motion on notice raising the objections and applying that the said paragraphs of the petition be struck out. At the conclusion of the trial, the respondents in their final addresses argued their objections embedded in their replies. The Trial Tribunal relied on paragraph 12 (5) to determine the objections and struck out the offensive paragraphs of the petition in its judgment. On appeal against the judgment of the Tribunal, it was argued that the Tribunal was wrong to have relied on paragraph 12 (5) of the 1st Schedule to hear the objection at the close of the trial when it should have been heard at the pre hearing conference by virtue of paragraph 47 (1). This Court dismissed the appeal on this point. On further appeal to the Supreme Court, it was held that by virtue of paragraph 12 (5) of the 1st Schedule, the respondents rightly raised the objection to certain paragraphs of the petition at the conclusion of the trial.
The Supreme Court also held that paragraphs 12 (5) and 47 (1) prescribe two distinct but alternative approaches to the raising of objections before the trial Tribunal in an election petition. It held that “these paragraphs of the 1st Schedule apply to different situations and proceedings, I.E.:
1. “Where a party approaches the tribunal with objection by way of motion, such shall be moved and determined during pre-hearing session except in extreme circumstances with the leave of the tribunal, that is the position under the provisions of paragraph 47(1) of the 1st Schedule; and
2. Where the objection is embedded or stated in the reply. Such objection shall be heard along with the substantive case.”
A party is entitled to elect which method to use in objecting to the paragraphs of the petition. As stated by the Supreme Court in the same case of PDP v. INEC (Supra) “where the law provides two modes
or procedures for doing a thing, a party can choose any of the methods so provided.”
In our present case, the respondents had indicated in their replies that they will apply to the tribunal to strike out certain paragraphs of the petition at the pre conference hearing. They filed motions on notice applying that the said paragraphs of the petition be struck out. It is glaring that they elected to use the procedure referred to in paragraph 47 (1). They are perfectly entitled to do so as held by the apex court in PDP v. INEC (Supra).
The learned Senior Advocate for the Appellants in support of his submission that once an objection is embedded in a reply, it can only be heard along with the petition, relied on the statement of the Supreme Court in BELGORE v. AHMED (Supra), per Tabai JSC to the effect that the provisions of paragraphs 53 (2) and (50 of the 1st Schedule notwithstanding, full effect must be given to paragraph 12 (5) of the 1st Schedule. With due respect, I think that this statement of the Supreme Court in Belgore is wrongly applied by the learned Senior Advocate. I agree with the submissions of the learned Senior Advocate for the 3rd and 4th Respondent to wit; that BELGORE v. AHMED (Supra) did not decide that once an objection is stated in the reply to a petition, it can only be heard along with the petition and cannot be heard at the pre hearing conference. In that case, the respondents stated their objections in their reply but did not file any motion on notice raising the objection. They argued their said objection in their final addresses following the conclusion of evidence. It was contended by the petitioner that for not raising and arguing the objection before the filing of their reply and in view of the various steps they had taken in their defence of the petition, they had waived their right to argue the objection. The petitioner in so contending, relied on paragraph 53 (2) and (5) of the 1st Schedule to the Electoral Act 2010 and further contended that paragraph 12 (5) does not apply because it is a general provision as opposed to paragraph 53 (2) and (5) which are specific provisions.
The Supreme Court held that by virtue of paragraph 12 (5), the Respondents were entitled to argue their objection in their final address and had not waived the right to do so by not arguing it earlier. It is in this context that the Supreme Court held that the provisions of 53 (2) and (5) notwithstanding, full effect must be given to paragraph 12 (5) of the 1st Schedule.
In light of the foregoing, I hold that the Trial Tribunal was right to have heard and determined the motions on notice applying for the striking out of some paragraphs of the petition at the pre hearing conference.”
In the light of the foregoing I hold that the Tribunal rightly heard and determined the objections at the pre hearing sessions. Issues nos. 1 and 2 are resolved in favour of the respondents.
Since the appellant argued issues number 3 and 4 together, I will determine them together.
Learned counsel for the appellant argued that the decision of the Tribunal that “where no relief for a fresh election is claimed in a petition, a ground founded on S.138 (1) (b) of the Electoral Act and the entire petition itself are incompetent and liable to be struck out” is wrong and not supported by the Electoral Act 2010 (as amended). Learned counsel further submitted that the entire Electoral Act does not impose a duty on a petitioner to seek any particular relief in his petition and that the duty of the tribunal as envisaged under the Act is primarily to hear the petition and thereafter make any order required in doing justice including an order of a fresh election. For these submissions he relied on the Supreme Court decisions in OBUEKE & ORS v. NNAMCHI & ORS (2012) 5/7 MJSC (PT 2) L AT 31 AND EYIGEBE v. IYAJI (2013) 219 LRCN (PT 2) L AT 23 that a court can grant orders not specifically asked for, as consequential orders to meet the justice of the peculiar circumstances of the case, provided there is in evidence facts it can rely on to grant the said relief.
Learned counsel for the 1st and 4th respondents has argued in reply that the appellant in challenging the decision of the Tribunal striking out the petition for not asking for an order of fresh elections, did not contend that the Tribunal was wrong to have followed the Supreme Court decision in CPC v. INEC (2011) 18 NWLR (pt 1279) 493, that the basis of their said challenge is the nebulous ground, interest of justice forgetting that an election petition being sui generis is, as restated by this Court in SAAD & ANOR v. MAIFATA & AS (2008), subject to special provisions such that the slightest infractions of the rules regulating the procedure for election petitions would result in fatal consequences, that therefore the appellant did not challenge the applicability of the Supreme Court decision in CPC v. INEC (Supra) to the petition, that the Tribunal was bound by the doctrine of stare decisis to follow the said Supreme Court decision and therefore was right in relying on the said decision, that the appellant did not appeal against the specific finding of the Tribunal that “In the instant petition, apart from seeking an order nullifying the election of the second respondent, the petitioners did not ask for an order for fresh election”, that the finding not having been appealed against, cannot be challenged or impugned, it is binding on all the parties and the Court, rightly or wrongly.
Learned Counsel for the 3rd respondent relying on paragraph 4(1)(d) and (3)(a) of the First Schedule to the Electoral Act, the decisions in OGIDI v. STATE (2005) 5 NWLR (PT 918) 286 AT 327, UGWU v. ARARUME (2007) 12 NWLR (PT 1408) 367 AT 441-442 AND BAMAIYI v. A G FEDERATION (2001) 12 WLR (PT 727) 428 AT 497 argued in reply that the appellant proceeded from an incorrect basis by arguing that a petitioner needs not claim for any relief, that it is to be noted that the requirement to include a relief in a petition together with the other requirements of the content of a petition in paragraphs 4(1) (c) (d) and (3)(a) and (b) of the First Schedule to the Act are mandatory.
Learned Counsel relying on the decisions in AWONIYI & ORS v. THE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER AMORC NIGERIA (2000) 10 NWLR (PT. 676) 522 AT 544, ADEYEMI v. OPEYORI (1976) 9-10 SC 31 AT 51, UZOUKWU v. EZEONU II (1991) 6 NWLR (PT 200) 708 AT 784, AMINU & ORS v. HASSAN & ORS (2014) ISC (PT 1) I, IGE v. OLUNLOYO (1984) 1 SC 195, EYIGEBE v. IYAJI (2013) II NWLR (PT.1365) 407 AT 428 AND FGN v. OSHIOMHOLE (2004). ALL FWLR (4209) 972 AT 280 argued that a court cannot grant a party a relief not asked for, that not only must a relief be drafted and crafted with utmost circumspection since the reliefs sign-post the ultimate direction and destination of the case and vest jurisdiction in the court.
Relying on CPC v. INEC (decision of this Court in CA/A/EPT RPES/11 of 14-7-2011), CPC v. INEC & Ors (2012), All FWLR (pt 617) 605 at 651, learned counsel argued further that not only must the relief of an order of a fresh election be included in the petition, it must be couched in such a manner that makes it compatible with the provisions of the Electoral Act on which the petition is predicated, that the Trial Tribunal rightly followed the Supreme Court decision in CPC v. INEC (Supra), that in the absence of a relief for a re-run election, the petition was academic, that this is particularly because the grounds of the petition that survived were those from which the only benefit that could have enured in favour of the appellants is one for an order of another election, particularly since there was no ground of the petition premised on S. 138 (1)(c) of the Electoral Act 2010, alleging that the appellant was not elected by a majority of lawful votes cast, that the appellant’s argument that the Tribunal having held two grounds of the petition as valid should have proceeded to hear the merit of the petition cannot be right, since the hearing of the petition on those grounds could not sustain the petition because there was no relief compatible with those grounds, that the appellant’s failure to appeal against the Tribunal’s decision that the relief in paragraph 19(4) of the petition can only be claimed where the petition is predicated on S.138 (1) (c) of the Electoral Act, and the order striking out the said paragraph further makes this appeal academic and that the case of OBUEKE v. NNAMCHI (SUPRA), relied on by the appellant is not applicable to this case.
Learned Counsel for the 3rd respondent argued in reply that the petitioners sought an order to nullify the nomination of the 2nd respondent and for the appellant (1st petitioner) to be declared the winner of the election based on the alleged non-qualification of the 2nd respondent, that it was clear that the petition was not based on any ground of having scored majority of lawful votes, hence the prayer of the petitioners that they be declared winner of an election in which majority of the lawful votes cannot be determined can never be granted, that there was therefore no basis upon which the Tribunal could have proceeded to order a fresh election, same having not been asked for by the petitioners, that the Supreme Court decision in CPC v. INEC relied upon by the Tribunal becomes most relevant, that if the Tribunal were to proceed to hearing based on paragraph 13(a) of the petition which alleged over-voting and paragraph 14 of the petition challenging the nomination and qualification of the 2nd respondent, the only order that can come out of the exercise would have been an order for a fresh election which the petitioners failed to ask for and that therefore, of what use would the proceedings now be Relying on the decision of MUSTAPHA v. BULAMA (1999) 3 NWLR (PT 595) 376 AT 384, Learned counsel argued that no party shall be granted a relief he did not ask for and neither would a court grant more than what a party prayed for. Learned counsel further argued that it is obligatory on the petitioners to seek the appropriate order of a fresh election, that for the above reasons, the appellant’s argument that the Electoral Act does not impose any duty on the petitioners to specifically pray the Tribunal for an order of fresh election and that it suffices that the petitioners sought for an order nullifying the declaration and return of the 2nd respondent is wrong.
Let me now consider the merit of the above arguments.
It is not in dispute in this appeal that there is no ground of this appeal complaining against the finding of the Tribunal thus “in the instant petition apart from seeking an order nullifying the election of the second respondent, the petitioners did not ask for an order of fresh election.” I agree with the submissions of learned counsel for all the respondents that by not challenging the said finding or holding by an appeal or other legal process, the petitioners accepted it as correct and binding upon them. In any case this point has been so restated by so many decisions that it has become settled and trite. The appellant has not argued against or contrary to that finding or holding in this appeal. See Biariko & Ors. v. Edeh-Ogwuile (2001) 4 SC (Pt. 11) 96 and SPDC Nig. Ltd. v. Edamkue (2009) LPELR 3048 (SC).
The complaint of the appellant under issues numbers 3 and 4 is against the part of the ruling of the trial court that decided thus:
“So if for instance, the election is nullified, the people of Lagos state would be left in an anarchic situation as no order can validly be made for the conduct of fresh election, same having not been sought for. A petition that is founded on disqualification of a respondent and an order of nullification of the election must of necessity contain a prayer for an order of fresh election. Where such a prayer is lacking, the petition will be incompetent and academic as even the resolution of such a petition in favour of a petitioner will not confer any utilitarian value on the petitioner(s). Where no relief for fresh election is claimed in a petition, a group of petition founded on Section 138(1) (b) of the Electoral Act and the entire petition itself are incompetent and liable to be struck out.”
I have recapped the arguments of learned counsel for the appellant in support of issues numbers 3 and 4 in the appellants brief. The arguments are meant to show that the above finding or holding of the Tribunal including the order striking out the petition due to the absence of a prayer for an order of a fresh election in the petition is wrong. Learned counsel for the 1st and 4th respondents has pointed out that the appellant’s arguments are silent on the Supreme Court decision in CPC v. INEC relied on by the Tribunal for the said finding or holding. The question that arises at this juncture is whether the appellant can successfully challenge the correctness of the decision of the Tribunal without showing that it was wrong to have relied on the said Supreme Court decision in reaching the decision.
The portion of the ruling of the Tribunal relying on the said Supreme Court decision in the CPC v. INEC states thus:
“In so holding, we are fortified by the decision of the Supreme Court in CPC v. INEC (supra) @ page 558- 559 of the report where Mohammed, JSC (as he then was, now CJN) said:
“However, before even embarking on the exercise of looking into the nature of evidence adduced by the appellant, it is not out of place to observe that with the removal of the 6th relief from the list of reliefs being claimed by the appellant, as the result of that relief having been struck out, even if the appellant had succeeded in being granted the remaining declaratory reliefs 1, 2, 3, and 5 of what use or benefit would hat have been to the appellant in the absence of the vital relief of the trial court ordering 1st and 2nd respondents to conduct a fresh election after the nullification of the election conducted on 16th April, 2011, which the appellant questioned in its petition The answer of course is obvious. This is because the grant of reliefs, 1, 2, 3 and 5 alone without vital and appropriate relief of directing the 1st and 2nd respondents to conduct another election, would have served no useful purpose to the petitioner/appellant thereby in my view rendering the whole exercise of continuing with the hearing of the petition, a rather academic exercise.”
It is for this reason that the grounds of the petition that survived up till this point can no longer be countenanced. In the circumstance paragraph 13(b) and 14 of the petition and reliefs 19(5) and 19(8) are hereby struck out in view of the want of relief seeking for the conduct of fresh election. Having done so, the petition becomes bare and empty.”
The appellant has not challenged the Tribunal’s reliance on this decision in any way. There is no part of the appellant’s brief contending or even suggesting that the said decision in the CPC v. INEC did not decide what it is quoted to have decided or that it is not applicable to this present case for any reason and that the Tribunal’s reliance on it is wrong in any way or that it is not binding on the Tribunal and this Court in this case. Without such a challenge, the portion of the Tribunal’s ruling relying on it must be presumed to be correct. I agree with the submission of learned counsel for the 1st and 4th respondent that “to the extent that the appellants did not challenge the applicability of the decision of the Supreme Court in CPC v. INEC (Supra) to their petition, the decision of the Tribunal cannot be rightly questioned by the appellants before your noble Lords”.
By virtue of the principle of stare decisis, the Tribunal was bound by the holding of the Supreme Court in CPC v. INEC. This principle is one of the principal identifying characters of our legal system and the fundamental principle of administration of law in our country. It is the policy or legal principle which requires courts to follow precedents established by previous decisions of Courts. It is an abbreviation of the Latin phrase, ‘Stare decisis et quieta non movere’ (stand by and adhere to decisions and not disturb what is settled). See EPEROKUN & ORS v. UNIVERSITY OF LAGOS (1986) NWLR (PT.34) 162. As this Court held in SULEIMAN v. ZAKANI & ORS (2009) LPELR 494 following the Supreme Court decision in AMAECHI v. INEC (2008) 5 NWLR (pt.1080) 227 at 385, the principle binds all courts. This Court again in SPDC Nig LTD v. EZEUKWA & ORS (2010) LPELR 4911 PER ABDULKADIR JCA, adopted the holding of the supreme court in CLEMENT & ANOR v. IWAUANYANWU & ANOR (1989) 3 NWLR (PT 107) 39 AT 54 that “Stare decisis means abide by the former precedent where the same points come again in litigation and it presupposes that the law has been solemnly declared and determined in the former case and thus precludes the Judges of the subordinate courts from changing what has been determined.” See also the Supreme Court decision in DALLATU v. TURAKI (2003) 75C1, GLOBAL TRANSPORT OCEANICO SA & ANOR v. FREE ENTERPRISE NIG. LTD (2001) 2 SC154, NEPA v. ONAH (1997) LPELR -1959, ATOLAGBE AND OLULEGBA & ORS v. ABDUL-RAHEEM & ORS (2009) 18 NWLR (PT 1173) 384, restating that decisions of courts higher in the judicial hierarchy must be followed by courts lower than them. However, a court is bound to follow the previous decision of a court higher in the Judicial hierarchy only where the facts are essentially similar, the issue decided in the precedent case is similar to the issue in the present case, and the law applied in the precedent case is similar to the law applicable on the present case. Cases are alike and indistinguishable when their facts will support the same principles. See EMEKA v. OKADIGBO & ORS (2010) LPELR-9338 (SC). So a court’s reliance on a judicial precedent can be challenged by distinguishing the facts, issues and the applicable law between the precedent case and the present case. Dissimilar cases must be decided differently. See AKERELE v. ATUNRASE (1969) I ALL NLR 201 AT 209, AKPOBASA v. THE STATE (1969) I ALL NLR 104 AT 111, BOARD OF CUSTOMS & EXCISE v. BOLARINWA (1968) NMLR 350 AT 352, AND PRECEDENT IN NIGERIAN COURTS (1984 EDITION, PP 251-255) BY P. U. UMOH. In the absence of such challenge, the decision of the court that a judicial precedent is applicable in determining an issue and its reliance on such precedent to reach a decision on the issue would be presumed to be correct in line with the settled and now trite principle restated in a plethora of judicial decisions that the judgement or decision of a court is presumed correct until it is proved to be wrong by the party challenging its correctness. So by not appealing against the Tribunal’s decision to rely on CPC v. INEC, the appellant accepted the Tribunal’s reliance on it as correct. This renders irrelevant and sterile the other arguments of the appellant in this appeal.
Having held as above, there appears to be no need to determine the remaining issues and arguments. But in view of the repeated admonitions of the Supreme Court in a long line of cases including 7UP BOTTLING CO LTD v. ABIOLA & SONS BOTTLING CO LTD (2001) 6 SC/NJ/09/49, BRAWAL SHIPPING v. ONWUDIKE CO (2000) 6 SCNJ 508, OJOBELE v. NNUBIA (1972) 6 SC 27, ATANDA v. AJANI (1989) 3 NWLR (PT 111) 71 AT 539, OKONJI v. NJOKAMA (1991) 7 NWLR (PT 202) 131 AT 150-152, TITILOYE v. OLUPO (1991) 7 NWLR (PT 205) 519 AT 529 AND KATTO v. CBN (1991) 9 NWLR (PT 214) 126 AT 149, that this Court as an intermediate court should pronounce on all the issues arising or raised in an appeal before it, even if the appeal had been disposed of by only some of the issues for determination, to avoid the situation where the appeal would have to be remitted by the Supreme Court for retrial of the issues not determined because the appeal against the decisions on the only issues determined have been allowed, I will now proceed to determine the other arguments of all parties therein.
The submission of the learned Counsel for the appellant that where an election petition on the ground of S.138(1)(b) does not contain a claim for an order of a fresh election, the Tribunal has jurisdiction to order a fresh election is not valid for the following reasons:
Firstly, the Supreme Court in CPC v. INEC (supra) per Mohammed Mahmud JSC (as he then was) has held that a petition on such ground that does not claim for an order of fresh election is incompetent and must be struck out.
Generally where the reliefs that are relevant and appropriate in the light of the facts contained in the pleading of a party are not asked for, so that even if the case is tried and plaintiff’s case proved, no remedy will enure to the benefit of the plaintiff, leaving his position unchanged, the trial of such a case amounts to an idle and vain exercise. Such a case is clearly incompetent for trial. If it proceeds to trial, it would be dismissed. In IGE v. OLUNLOYO (1984) 1 SC 195, the Supreme Court dismissed an election petition because the petition did not contain the prayer that the gubernatorial election held on the 13th August, 1983 be declared void. What goes to trial is the entitlement to the reliefs claimed based on the pleadings. The facts pleaded highlight the cause for action which determines the relief claimed for. The relief demands that the cause of action be remedied. If that relief is not claimed for, the case is aborted. Equally, the reliefs claimed for must be compatible with the case made out by the facts in the pleadings. As stated by Tobi JCA (as he then was) in UZOUKWU v. EZEONU II (1991) 6 NWLR (PT 200) 708 AT 784 “Relief is the life wire of an action. Relief puts in specific demanding language, the cause of action. Where there is no relief sought in an action, there is nothing for the Court to grant. It is really the bed rock of an entire action. The action can either stand or fall by the relief sought.” That is why the Supreme Court in CPC V INEC held that in the absence of the relief for Conduct of fresh election, “the petition of the appellant became empty as it would not enure any right or benefit on the appellant/petitioner even if the petition were successful, and that this rendered continuing with the hearing of the petition an academic exercise.”
The law is so settled by a long line of judicial decisions that it is now trite that where a party did not claim for a particular relief, a Court has no power to grant him that relief. See IGE v. OLUNLOYO (SUPRA), OSUKI v. EKEOCHA (2009) 16 NWLR (PT 1166) 81 (SC), AWONIYI & ORS v. THE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER, AMORC NIGERIA (SUPRA) AND EYIGEBE v. IYAJI (SUPRA).
Learned counsel for the appellant has argued that the order of a fresh election can be made as a consequential order in the interest of justice or as an order that meets the justice of the circumstances of the case. There is no doubt that one of the inherent powers of the Court is to make consequential orders in the interest of justice even though the order was not specifically asked for by either party to the case. See AKAPO v. HAKEEM HABEEB & ORS (1992) 7 SCNJ 119 AND IYAJI v. EYIGEBE (1987) NWLR (PT 61) 523. But this inherent power of a Court to make consequential orders does not include the power to grant a substantive or principal or basic relief, that the nature of the case in the pleading necessitates what should be asked for as part of the cause for the action and without which the action fails ab initio.
A consequential order is an order whose need arises naturally as a direct result of substantive relief, to give effect to the substantive relief. Without the substantive or basic relief, it cannot exist. This distinction is clearly brought out by the Supreme Court per Tobi JSC in Eagle Super pack (NIG) Ltd v. ACB PLC (2006) 19 NWLR (pt 1013) 20, thus “A consequential order is an order that follows as a result of the earlier one which can be called for this purpose as the main order. It may have an indirect or secondary result in the relief awarding process. A consequential order is appurtenant to the main or principal order. A clearly fresh order cannot be a consequential order.” In A-G Federation v. AIC Ltd (2000) 4SC (pt. 1) 175, the Supreme Court per EJIWUNMI JSC held that a consequential order cannot be made to grant a fresh and unclaimed or unproved relief. In Awoniyi v. Registered Trustees of Amorc (supra), the Supreme Court held per Iguh JSC that “the purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed, or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit, nor was it in the contemplation of the parties that such a relief would be the subject matter of a formal executor judgment or order against either side to the dispute.” See also Owena Bank PLC v. Nigerian Stock Exchange Ltd (1997) All NLR 137 (SC).
The question that arises for determination at this juncture is whether an order of a fresh election can be made as a consequential order to the reliefs sought for by the petitioners in the petition in this case on the basis of the grounds for the petition and the petition.
The substantive or principal reliefs that a Tribunal or Court can grant in an election petition brought under the Electoral Act 2010 as amended are statutorily prescribed in S.140 of the said Act as follows:
1) Subject to subsection (2) of this section, if the Tribunal or the court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the Court shall nullify the election
2) Where an election tribunal or Court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, the election tribunal or court shall not declare the person with the second highest votes as elected, but shall order a fresh election.
3) If the Tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.
So by virtue of the above provision, an order of a fresh election is one of the necessary and substantive reliefs that a Tribunal or court can grant in an election petition.
Learned counsel for the appellant has argued that the Electoral Act does not impose a duty on the petitioner to seek any particular relief in his petition. This submission is, in my view, not valid in view of the provisions of paragraph 4(1) (d) and (3) (a) of the First schedule to the Electoral Act, S.140 of the said Act, and the legal principle that a court has no power to grant a party a relief he has not claimed for. Paragraph 4 (1) (d) prescribes the mandatory content of a petition to include the relief sought and paragraph 4(3) (a) mandatorily requires that a petition concludes with a prayer (or prayers) for the reliefs sought. S.140 of the Act already produced herein states the principal reliefs that can be granted. So if the petition must contain the reliefs sought for and prayers for them, what type of reliefs is the petitioner to seek for My view is that the Act, by providing in S.140 the reliefs that a Tribunal or court can grant, intends that the reliefs to be sought for in the petition depending on the ground for the petition, must be those the tribunal or court can grant as prescribed in S.140 of the Act. The community reading of the above provisions show that the Act intends that a petition must contain prayers for the reliefs in S.140 of the Act depending on the ground for the petition.
In any case, by the principle that a Court cannot grant a relief not asked for, a condition precedent to the exercise of jurisdiction to grant the reliefs in S.140 of the Act is that these reliefs must be asked for. So if there is no prayer in the petition for them, the tribunal or court cannot grant them. In MUSTAPHA v. BULAMA & ORS (1999) 3 NWLR (PT 595) 376 AT 384, the election petition did not contain prayers for an order nullifying the election and an order of a fresh election.
The trial Tribunal upon finding the petition successful granted the above unclaimed reliefs. One of the issues for determination in the appeal to this court was “whether the Tribunal was right in granting the relief of a new election in The Bama Local Government Council when the petitioner did not ask for such relief in his petition.” This Court held that “it should be borne in mind that nullifying an election is a principal relief which must be prayed for and credible evidence led in proof of it. Paragraph 5 (3) (a) of the 5th Schedule to the Local Government (Basic Constitutional and Transitional Provisions) Decree No 36 of 1998, states categorically thus: the election shall further: (a) conclude with a prayer or prayers, as for instance. That the petitioner or any of the petitioners be declared validly elected or returned , having polled the majority of the lawful votes cast at the election or that the election may be declared nullified, as the case may be?” In the circumstances of the above provision nullifying an election not having been prayed for amounts to granting a prayer not sought for. Having regard to the above, it is clear that the Judges of the Tribunal were in error to have nullified the election of the Appellant and ordering fresh elections for the chairmanship office of Bama Local Government of Borno State.”
It is clear from the petition that the grounds for the petition as contained in paragraphs 13 and 14 therein were that of over voting, improper or non-use of card readers and that the appellant was not qualified to contest the election. The reason the Tribunal gave for holding that paragraph 13 (a) of the petition is not compatible with S. 138(1)(b) is that the paragraph did not challenge the validity of the entire election. It stated that “While the Electoral Act makes provision for questioning an election on ground that the entire election is invalid by reason of corrupt practices and non-compliance with the Electoral Act (Section 138 (1) (b), the petitioners herein are in paragraph 13 (a) of their petition only challenging the validity of the election “with regards to the votes declared in favour of the 2nd respondent.” This is alien to the Electoral Act. Section 138 (1) (b) of the Act presupposes that the challenges of an election under the paragraph shall be with respect to the entire election and not to votes credited or declared for any of the parties. Invalidity of the election affects all the votes cast for all the candidates that contested the election.”
The appellant also did not in his reliefs seek the nullification of the entire election. In paragraph 19(4), he sought for an order nullifying the 4th respondent’s declaration of the 2nd respondent as Governor- elect, in paragraph 19(8) he asked for an order nullifying the Lagos State gubernatorial elections in 15 Local Government Areas out of a total of 20 Local Government Areas and in paragraphs 19(4) and (5) of the petition he asked for orders that he be declared winner of the election and returned as governor elect of Lagos State. So it is glaring that the appellant was not interested in the nullification of the entire election and the ordering of fresh elections and was only interested in being declared winner of the election and returned as Governor Elect and so did not seek the nullification of the election and the ordering of fresh election.
It is noteworthy that there is no ground of this appeal complaining against the decision and orders of the Tribunal striking out the reliefs claimed for in paragraphs 19(5) and (8) of the petition. These were the only reliefs that sought nullification of parts of the election. It is trite law that by not appealing against the said decision and orders, the appellant accepted them as correct and binding on him. See Biariko & Ors. v. Edeh-Ogwuile (supra) and SPDC Nig. Ltd. v. Edamkue (supra). Having accepted the decision striking out any reliefs that has to do with the nullification of any aspect of the Election, it cannot seriously be expecting an order of fresh Election to be granted it as a consequential relief.
By virtue of S. 140 (1) and (2) of the Electoral Act 2010 (as amended), an order of fresh elections cannot be made without an order nullifying the election having been first made. Another reason why the two orders were not claimed for in the petition and even if claimed for cannot be made on the petition is because the orders of nullification of the entire election and fresh election are incompatible with the reliefs claimed for by the appellant in paragraphs 19(4),(6), (7) and (8) of the petition. These reliefs are that elections in 15 local governments be nullified, that he be declared the candidate with the highest number of lawful votes cast in the election and the winner of the election, that he be returned elected as Governor of Lagos State.
In any case the reliefs claimed for in paragraphs 19(4) and (6) of the petition for the appellant to be declared winner of the election and returned elected as Governor are irreconcilably in conflict with the relief claimed in paragraph 19(8) of the petition for an order nullifying the elections in 15 local government areas. The reliefs are diametrically opposed to each other and are therefore mutually exclusive. The appellant should have claimed for each as alternative to the other. As they stand, they cannot be tried together. If the election in 15 local government areas are nullified, the appellant cannot be declared winner of the election and returned elected as Governor on the basis of Election in 5 local government areas only. This is because Lagos State has 20 local government areas as stated in Part 1 of the First Schedule to the 1999 Constitution and by S. 179(2) of the said Constitution, in an election of Governor of a state, contested by two or more candidates as in this case, a candidate can be declared if he has majority of the votes cast at the election and has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the state. It is a general principle of law that inconsistent reliefs cannot be claimed for in one action and if claimed for in the same action cannot be tried together. See AROMIRE v. AWOYEMI (1972) ALL NLR 101 AND EZEKWESILI & ORS v. AGBAPUONWU & ORS (2003) 4 SC (PT.1) 33 in which the Supreme Court restated and applied this principle.
It is clear from the foregoing that if the Tribunal had tried the petition on the basis of the grounds and reliefs in the petition, it cannot make any order that is beneficial to the appellant.
I agree with the submissions of learned counsel for the 2nd respondent that the case of OBUEKE v. NNAMECHI relied on in the appellant’s brief to urge that a court can grant a relief not pleaded to meet the circumstances of the case, is not applicable to this case. The provisions of Order 25 Rule 6 of the High Court (Civil Procedure) Rules 1991 of Anambra State are not the same with paragraphs 4(1) (a) and (3) of the First Schedule to the Electoral Act and S.140 of the Electoral Act. Learned counsel for the appellant has argued that the Tribunal having held that two grounds of the petition are competent, should not have struck out the entire petition without trying the merit of the petition on those grounds. This submission cannot be valid in the face of the foregoing and the pronouncement of the Supreme Court in CPC v. INEC (Supra), that continuing with the hearing of the petition would serve no useful purpose.
Therefore proceeding to try the petition on the basis of the grounds held by the Tribunal to be valid would serve no beneficial purpose to the petitioners and would amount to an idle and vain exercise. It would amount to a journey to nowhere. The Tribunal was therefore right to have struck out the entire petition in limine.
In the light of the foregoing, I resolve issues numbers 3 and 4 in the appellant’s brief in favour of the respondents.
Let me now consider issue Number 5 which asks “Whether the Tribunal was right in holding that the appellants’ ground of petition in paragraph 13 (a) of the petition is outside the scope of the Electoral Act, 2010 (as amended) and the guideline.
The part of the ruling of the Tribunal challenged under this issue reads thus: “While the Electoral Act makes provision for questioning an election on the ground that the entire election is invalid by reason of corrupt practices and non-compliance with the Electoral Act (Section 138(i)(b)), the petitioners herein are in paragraph 13(a) of their petition only challenging the validity of the election “with regards to the votes declared in favour of the 2nd respondent.” This is alien to the Electoral Act. Section 138(i)(b) of the Act presupposes that the challenge of an election under that paragraph shall be with respect to the entire election and not to votes cast for all the candidates that contested the election. From the opening phrase or sentence of paragraph 13(a) of the petition, it is clear that the petitioners, while opting to use their own words in framing the grounds of the petition, have expanded the scope of the statutory provision in Section 138(i)(a) of the Electoral Act Furthermore, contrary to the statutory provision of the Electoral Act, the invalidity of the election or votes cast as stated under paragraph 13(a) of the petition is said to be contrary to paragraph 28 of the Approved Guidelines and Regulations. This is further expansion of the previous Section 138(a) of the Electoral Act which limited the complaints to corrupt practices and non compliance with the Electoral Act. We hold the considered view that the ground of the petition in paragraph 13(a) thereof, is outside the scope of the Electoral Act. It is hereby struck out for incompetence.”
Learned Counsel for the appellant after restating the ground contained in paragraph 13(a) of the petition tersely submitted thus “It is submitted and this Honourable Court is urged to hold that paragraph 13(a) of the petition is part of the corrupt practices and non compliance by the Electoral Act, and that the Tribunal was wrong in holding otherwise. In any case, the Tribunal was wrong in striking out the entire petition when it contains other valid arguments.”
Learned counsel for the 1st and 4th respondents argued that the very terse argument of learned counsel for the appellant did not even scratch the surface of the reasoning and decision of the Tribunal. Learned counsel for the 2nd respondent argued that the appellant did not proffer any argument as to why the said decision of the Tribunal was incorrect, despite the fact that in striking out the ground, the Tribunal relied on provisions of the Electoral Act and case law, that the appellant did not fault the Tribunal’s reliance on the Supreme Court decision in OJUKWU v. YAR’ADUA (2009) 12 NWLR (PT 1154) 50 AT 121 AND 127, and that there is a clear divergence between the grounds prescribed in S.138 (1) of the Electoral Act, and the ground of the petition in paragraph 13(a) of the petition.
Let me now determine the merit of these arguments.
The duty to show that the decision of a court is wrong on any ground in an appeal against it, is that of the appellant who is contending that it is wrong. To discharge this duty, the appellant must demonstrate that the reasons given for the decision or the basis of the reason and or the decisions are wrong. The appellant cannot discharge this duty by the mere assertion that the decision is wrong, without showing how and why it is wrong and leaving the basis of that decision unchallenged. In such a situation, as had happened in this case, I agree with the learned counsel for the 1st and 4th respondent and learned counsel for the 2nd respondent that the appellant has not effectively challenged that decision of the Tribunal at all.
Apart from restating the ground of the petition, the only other statements made by learned counsel for the appellant under issue number 5 is that the Tribunal was wrong in holding that Paragraph 13(a) of the petition is not part of the Corrupt practices and non-compliance envisaged by the Electoral Act, that the Tribunal was wrong in striking out the entire petition when it contains other valid grounds and that he urges the Tribunal to hold that Paragraph 13(a) of the petition is part of the Corrupt Practices and non-compliance envisaged by the Electoral Act. These statements were made in two sentences contained in five lines.
The appellant did not challenge any of the several reasons, decisions or findings the Tribunal relied on for its conclusion that the ground in paragraph 13(a) of the petition is outside the scope of S.138(1) (a) and (b) of the Electoral Act 2010 as amended. The appellant did not argue against the decision of the Tribunal that the ground in paragraph 13(a) challenges the validity of only the votes declared in favour of the 2nd respondent and not the validity of entire election, that S.138 (1) (b) Electoral Act makes provision for questioning the validity of the entire election for corrupt practices and non compliance with the Electoral Act, that the said provision presupposes that challenge of an election under it shall be with respect to the entire election not votes declared for any of the parties, that therefore paragraphs 13(a) of the petition as framed falls short of the ground for an election petition under S.138(1) (b) of the Electoral Act. Another decision of the Tribunal that the appellant proffered no argument against is that paragraph 13(a) of the petition by challenging the results of the election with regards to the votes declared in favour of the 2nd respondent for non compliance with paragraph 28 of the Approved Guidelines and Regulations is outside the scope of the ground prescribed in S.138(1)(b) which is limited to complains of corrupt practices and noncompliance with the Electoral Act.
The above two holdings were the basis for the Tribunal decision that paragraph 13(a) does not qualify as a ground for an election petition under S.138(1)(b) of the Electoral Act. Therefore the appellant under issue number 5 of his brief, ought to have made arguments to show that the above decisions are wrong. He did not even allege so. I must point out here that the submission of Learned Counsel for the appellant that the Tribunal was wrong in striking out the entire petition when it contains other valid grounds is outside the scope of issue number 5 in the appellant’s brief. The argument is rather in support of issue number 4 in the appellant’s brief. It is therefore not valid for consideration as an argument in support of number 5. The appellant did not challenge the Tribunal’s reliance on the Supreme Court decision in OJUKWI v. YAR’ADUA for its decision.
In the light of the foregoing, I hold that the appellant failed to discharge the burden on him to show that the decision of the Tribunal that paragraph 13(a) of the petition does not qualify as a ground for an election petition prescribed in S.138 (1)(b) is wrong. Issue number 5 is therefore resolved in favour of the respondents.
On the whole, this appeal fails as it lacks merit. It is accordingly dismissed. The ruling of the Lagos State Governorship Election Tribunal sitting at Ikeja delivered on 1-7-2015 in Petition No GOV/EPT/L/1/15 per M.I. Sirajo. J. (chairman), G. C. Anulude J. (member I) and A. Rotimi-Balogun J. (member II), is hereby affirmed and upheld. The appellant shall pay costs of N50,000.00 to each respondent.
ABUBAKAR JEGA ABDULKADIR, J.C.A.: I agree.
MOHAMMED AMBI-USI DANJUMA, J.C.A.:
My Lord, Emmanuel Agim, JCA has said it all.
I agree that the appeal should fail as it lacks merit.
Appeal is dismissed.
OBANDE FESTUS OGBUINYA, J.C.A.: I agree.
SAIDU TANKO HUSSAINI, J.C.A.: I agree.
Appearances
G.O. Giwa Amu Esq with
R. Obhafuoso Esq- For Appellants
E.R. Emukpoeruo Esq- For 1st and 4th Respondent
Chief Wole Olanipekun SAN
with Doyin Rhodes-Vivour
(Mrs), Adeniji Kazeem Esq,
Olabode Olanipekun Esq
(wrote the brief),
Ademola Adeshina Esq and
Bolarinwa Awujoola Esq,
Ifeoluwa Akintunde Esq. and
Khalid Abass- For the 2nd Respondents
Chief Charles Uwesunyi-Edosomwan SAN
with R.A.O Adegoke Esq. (wrote the brief)
Osasu Isibor Esq.,
Prince Ogiegor,
Miss Okene Chucks-Okeke
and Damilola Asuni Esq.- For the 3rd Respondents
Appearances
G. O. Giwa Amu Esq with R. Obhafuoso Esq For Appellant
AND
E. R. Emukpoeruo Esq for the 1st and 4th Respondent.
Chief Wole Olanipekun SAN with Doyin Rhodes-Vivour (Mrs.), Adeniji Kazeem Esq, Olabode Olanipekun Esq. (wrote the brief), Ademola Adeshina Esq. and Bolarinwa Awujoola Esq., Ijeoluwa Akintunde Esq. Abd Khalid Abass for the 2nd Respondents.
Chief Charles Uwesunyi-Edosomwan SAN with R. A. O. Adegoke Esq. (wrote the brief) Osasu Isibor Esq., Prince Eric Ogiegor, Miss Okene Chucks-Okeke and Damilola Asuni Esq. for the 3rd Respondents. For Respondent
