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MR. LABARAN MAKU & ANOR v. AUDU ALHAJI SULE & ORS (2019)

MR. LABARAN MAKU & ANOR v. AUDU ALHAJI SULE & ORS

(2019)LCN/13670(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of July, 2019

CA/MK/EP/GOV/10/2019

 

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

1. MR. LABARAN MAKU
2. ALL PROGRESSIVE GRAND ALLIANCE (APGA) Appellant(s)

AND

1. AUDU ALHAJI SULE
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

RATIO

THE IMPORTANCE OF RECORDS OF APPEAL

The importance of records of appeal to the hearing and determination of an appeal by an appellate Court such as the Court of Appeal, cannot be over-emphasized. Indeed, an appeal, from the lower Court or Tribunal shall be determined by the Court by way of a rehearing. Thus, it behooves the Court to rehear fully and accord a second consideration to such aspects of the entire record of appeal, comprising the lower Court?s or Tribunal?s proceedings and evidence adduced thereto, such an extent as the grounds of appeal and circumstances surrounding the appeal require. See MUTUAL LIFE AND GENERAL INSURANCE VS. KODI IHEME (2010) LPELR ? 24698 (CA) per Saulawa, JCA @ 9 ? 10 paragraphs C, A ? D, respectively. PER SULAWA, J.C.A.

WHETHER OR NOT AN INCOMPLETE RECORD OF APPEAL CAN DIVEST THE COURT OF THE JURISDICTION TO ENTERTAIN THE APPEAL

Secondly, it is a well settled doctrine, that an incomplete record of appeal, such as in the instant case, effectively divests the Court of the very fundamental vires or jurisdictional competence to entertain the appeal. This is absolutely so, because to hear and determine an appeal upon an incomplete record of appeal, devoid of vital and necessary processes, would invariably occasion a miscarriage of justice. See MUTUAL LIFE AND GENERAL INSURANCE VS. KODI IHEME (supra); ABULE VS. IWOWARI (supra); NWANA VS. FCDA (supra). PER SULAWA, J.C.A.

WHETHER OR NOT ELECTION PETITIONS ARE SUI GENERIS

Indeed, election petitions are sui generis; they belong to a distinct class of their own. See ORUBU VS. NEC (1988) 5 NWLR (Pt. 94) 323 @ 347; SAAD VS. MAIFATA (2009) ALL FWLR (Pt. 466) 1930 @ 1943. PER SULAWA, J.C.A.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: (Delivering the Leading Judgment): The instant appeal is consequent upon the ruling of the Nasarawa State Governorship Election Petition Tribunal holden at Lafia, delivered on May 30, 2019, in petition No. EPT/NS/GOV/04/2019. By the said ruling, the trial Tribunal Coram Hon. Justice A. B. Mohammed (chairman), Hon. Justice V. O. A. Oviawe, (member) and Hon. Justice O. A. Ogunbowale (member), granted the 1st Respondent?s application and accordingly dismissed the appellants? petition for having been abandoned.

BACKGROUND FACTS
?It is trite that, on March 9, 2019, the 3rd Respondent vide the electoral officers thereof conducted election in to the office of Governor of Nasarawa State. The 1st Appellant was a candidate at the said election under the platform of the 2nd Appellant. The 1st Respondent equally participated in the election under the platform of the 2nd Respondent. The 3rd respondent has been duly cloaked with the statutory responsibility of conducting elections in to the offices of President, Governors, the National Assembly (Comprising the Senate and House of

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Representatives) and Houses of State Assembly, respectively.

At the conclusion of the said election, the 1st Respondent was declared and returned by the 3rd Respondent as having been duly elected Governor of Nasarawa State by the majority of lawful votes cast.

Not unnaturally, the Appellants were dissatisfied with the declaration and return of the 1st Respondent by the 3rd respondent as Governor ? elect of Nasarawa State. Thus, on March 31, 2019, the Appellants filed the vexed petition (No. EPT/NS/GOV/04/2019) in the trial Tribunal, there by challenging the declaration and return of the 1st Respondent as Governor of Nasarawa State.

The Petition was served upon the 1st Respondent on 18/04/19 vide a substituted service pursuant to an order of the trial Tribunal, dated 17/04/19. The 2nd and 3rd Respondents were served with the petition on 09/04/19 and 10/04/19, respectively. The 1st, 2nd and 3rd Respondents filed their replies to the petition on 07/05/19, 28/04/19 and 27/04/19, respectively. The Appellants however, deemed it expedient not to file any reply to the 1st, 2nd and 3rd Respondents? replies.
?
On May 6, 2019, the Appellants

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filed in the trial Tribunal an application seeking issuance of Pre-Hearing Conference Notice (form TF 007) which was duly served on the 1st, 2nd and 3rd Respondents.

On May 23, 2019, the 1st Respondent filed a motion on Notice dated May 22, 2019, thereby seeking the following reliefs:
1. AN ORDER of this Honourable Tribunal dismissing petition number EPT/GOV/004/2019 MR. LABARAN MAKU & ORS VS. AUDU ALHAJI SULE & @ ORS for failure of the petitioners to apply for the issuance of Pre-Hearing Notice within the time mandatorily stipulated by the Electoral Act and therefore vesting no jurisdiction in this Honourable Tribunal.
2. AND FOR SUCH FURTHER ORDER(S) as this Honourable Tribunal may deem fit to make in the circumstances of this application.

The application was made pursuant to paragraphs 18 (3) & (4) and 47 of the schedule to the Electoral Act, 2010, as Amended.
?
On May 27, 2019, the 1st Respondent equally filed another application pursuant to Section 285 (2) & (5) of the Constitution of the Federal Republic of Nigeria, 1999 as Amended, paragraphs 4 & 47 of the First Schedule to the Electoral Act 2010 as Amended,

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and under the inherent jurisdiction of the trial Tribunal, thereby seeking an order dismissing/striking out the entire petition for being incompetent and/or striking out all paragraphs contained in pages 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26.

On May 28, 2019, the 1st Respondent?s learned senior counsel, Chief Wole Olanipekun, SAN moved the vexed application filed on 23/05/2019, thereby urging upon the trial Tribunal to dismiss the petition since the (petitioners?) application for Pre-Hearing constitutes a condition precedent taking any steps in the proceedings.

Contrariwise, T. T. Chahur Esq; (for the petitioners) vehemently opposed the 1st Respondent?s application, and thereby urged upon the Tribunal to disregard and dismiss same for being incompetent.

On May 30, 2019, the trial Tribunal delivered the ruling in question to the conclusive effect:
It is consequent upon all the above that we hereby resolve the sole issue for determination in this application in the affirmative and hold that from the circumstances, of this case, the 1st Respondent?s application should be granted.<br< p=””

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Accordingly, the 1st Respondent?s application is hereby granted as prayed and this petition is hereby dismissed as having been abandoned by the petitioners.

The originating notice of appeal, dated June 7, 2019, is predicated upon three grounds. By the said notice of appeal, the Appellants have urged upon the Court the following consequential reliefs:
a. AN ORDER allowing this appeal.
b. AN ORDER setting aside the ruling of the Honourable Tribunal in Petition NO. EPT/NS/GOV/04/2019 between Mr. Labaran Maku and 1 OR vs. Audu Alhaji Sule and 2 ORS delivered by the Governorship Election Petition Tribunal sitting in Lafia on the 30th day of May 2019.
c. AN ORDER directing that Petition NO. EPT/NS/GOV/04/2019 between Mr. Labaran Maku and 1 OR VS. Audu Alhaji Sule and 2 ORS be tried by another panel of Election Petition Tribunal in Lafia Nasarawa State.

The Appeal was duly entered on June 18, 2019. Whereupon the Appellants? brief of argument was settled by B. Y. Kigbu Esq. on June 27, 2019. That brief spans a total of 19 pages. At page 5 thereof, three issues have been couched:
1. Whether on the state of the facts in this

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case, the Honourable Tribunal was wrong to have dismissed the petition NO. EPT/NS/GOV/04/2019 as an abandoned petition pursuant to paragraph 18 (4) of the First Schedule to the Electoral Act, 2010 (as amended). This issue is distilled from Ground I.
2. Whether the provisions of paragraphs 18 (1) and 12 (1) of the First Schedule to the Electoral Act, 2010 (as amended) provide with exactitude when pleadings are closed for the purpose of filing an application for pre-trial conference in an election petition. This issue is distilled from Ground II.
3. Whether by the provisions of Section 285 (8) of the constitution of the Federal Republic of Nigeria 1999 as amended, the Honourable tribunal had the jurisdiction to have dismissed the petition in EPT/NS/GOV/04/2019 upon an interlocutory application and before the final judgment. The issue is covered by Ground III.
?
The issue No.1 is extensively canvassed at pages 5 ? 11 of the Appellants? brief. In the main, it is submitted that the construction of paragraph 18 (1) of the First Schedule to the Electoral Act, 2010, as amended, by the trial Tribunal was not in consonance with the extant law on

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the point.

Further submitted, that the employment of the word ?last? in relation to the Respondents to the petition has amounted to reading into a written legislation what?s not part of it. Thus, argued, that there?s nowhere in the First Schedule to the Electoral Act, 2010, was the word ?last? stated. The cases of EJUETAMI VS. OLAIYA (2001) 12 SCNJ 140 @ 144, & CHARLES UGWU VS. IFEANYI ARARUME (2007) 6 SCNJ 376, were cited, to the effect that words and expressions in a legislation must be given their ordinary and literal meaning in the absence of any ambiguity.

It was contended, that the Appellants? application for pre-hearing conference filed on 06/5/19, was not premature as held by the lower Tribunal seeDR. ANNY T. ASIKPO VS. SENATOR ALOYSIUS ETUK (2011) LPELR: CA/C/NAEA/225/2011; SALVADOR VS. INEC (2011) LPELR ? 14932 (CA); ACTION CONGRESS OF NIGERIA VS. AMAEWHULE ? CA/PH/EPT/2011 (Unreported).
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Further contended, that the Court of Appeal has held in a number of cases, applying the provisions of Paragraphs 18 and 49 (of the Electoral Act 2010), that a petitioner has the obligation to

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apply for issuance of pre-hearing notice in form TF 007 in respect of each and every respondent. See PREYE OSEKE VS. INEC (2011) LPELR ? CA/PH/EPT/25/2011, unreported; ADONYE VS. PEBBLE (2011) ? CA/PH/6/2011.

It was postulated by the learned counsel, that in reaching the conclusion that the application (for pre-hearing conference) was prematurely made, the Lower Tribunal failed to consider the purport of paragraph 53 of the First Schedule to the Electoral Act 2010, as amended. See SAHEED VS. YAKOWA (2013) ALL FWLR (Pt. 692) 1650 @ 1686; it was argued, that in the instant case, the 1st, 2nd and 3rd Respondents had taken further steps, including filing and serving processes in respect of the pre-hearing conference in spite of having been aware that the Appellants application was defective.

The Court is urged to resolve the issue No.1 in favour of the Appellants.
?
The issue No.2 is argued at pages 11 ? 14 of the said brief, to the effect that the Lower Tribunal made heavy weather of the issue as to when the pleadings ought to have closed in an election petition in relation to time within which a petitioner is mandated by

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Paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (Supra) to apply for issuance of pre-hearing notice.

It was submitted, that the 1st Respondent was served with the petition on 18/4/19. Thus, by the operation of paragraph 12 (1) of the First Schedule to the Electoral Act, 2010 (Supra), pleadings were deemed closed on 01/5/19, i.e. 14 days after the service of the petition on the 1st Respondent. According to the learned counsel, the Appellants were not bound to wait indefinitely for the 1st Respondent (who was out of time) to file his reply to the petition before applying for the issuance of a pre-hearing notice. See AWOJOBI VS. INEC (2012) 8 NWLR (Pt.1303) 528 @ 552 ? 553 paragraphs G ? A; SAEED VS. YAKOWA (2013) ALL FWLR (Pt.692) 1650 @ 1686.

The Court is urged to resolve the issue No.2 in favour of the Appellants.
The issue No.3 is argued at pages 14 ? 17 of the Appellants brief, to the effect that the word ?shall? used in Section 285 (8) of the [1999] Constitution is mandatory, compelling and binding. It does not admit of any discretion or prerogative of the Court or tribunal. See OPARA VS. AMADI (2013)

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LPELR ? 20747 (SC); ADETAYO VS. ADEMOLA (2010) 4 SCNJ 32 @ 36; PDP VS. CPC (2011) 10 SCNJ 37 @ 50; TANKO VS. THE STATE (2009) 2 SCNJ (Pt. 1) 3.

It was postulated, that in proceeding to deliver the vexed ruling on the 1st Respondent?s motion on notice, filed on 30/5/2019, the lower Tribunal acted without or in excess of the jurisdiction and power enabling it in that behalf. Thus, the said ruling is a nullity. See TANKO VS. THE STATE (Supra).

The Court is urged to resolve the issue No.3 in the affirmative and in favour of the Appellants.

Conclusively, the Court is urged upon to allow the appeal, set aside the vexed ruling of the Lower Tribunal in Petition No. EPT/NS/GOV/04/2019, delivered on May 30, 2019, and remit same for hearing before another panel of the Tribunal.

The 1st Respondent?s brief was settled on July 1, 2019 by Dr. M. T. Adekilekun. It spans a total of 19 pages. Most specifically, paragraphs 4.0 ? 4.9 at pages 3 ? 5 of the said brief, deal with an objection to the competence of the appeal. The 1st Respondent?s preliminary objection in question is predicated upon the grounds of incomplete

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record and that ground 3 (of the notice of appeal) does not emanate from the vexed ruling of the Lower Tribunal.

It is submitted, that the 1st Respondent?s application dated 22/5/19, which led to the dismissal of the petition is conspicuously missing. That the 1st Respondent was not invited for the settlement of records, which is a clear violation of order 32 Rules 3 of the Federal High Court Rules and the Rules of this Court.

Allegedly, without the 1st Respondent?s application in the record of appeal, the Court would be faced with incomplete records and the vital document upon which the appeal lies would not be available for proper consideration. Thus, the incomplete record transmitted by the Appellants would confer no jurisdiction on the Court. See MR. GOODHEAD ABULE VS. CHIEF IWOWARI (2018) LPELR ? 44184 (CA).
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Regarding the second ground of the objection, the learned counsel argued that the decision appealed against by the Appellants, the Lower Tribunal did not decide anything about the provision and application of Section 285 (8) of the 1999 Constitution. Therefore, the said ground 3 and the issue distilled there from are

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said to be incompetent. The Court is urged to so hold.
Proceeding to argue the appeal on the merits, two issues have been raised at page 6 of the 1st Respondent?s brief, Viz:
i. Whether the Trial Tribunal was not right when it held that the Petitioners/Appellants? application for the issuance of pre-hearing notice was made before the close of pleadings and that the said application was premature, thereby vesting no jurisdiction in the Honourable Tribunal.
ii. Whether by the provisions of Section 285 (8) of the Constitution of the Federal Republic of Nigeria, 1999, as amended the Honorable Trial Tribunal had no Jurisdiction to have dismissed the petition No. EPT/NS/GOV/04/2019.

The issue No.1 is most extensively canvassed at pages 6 ? 15 of the 1st Respondent?s brief. In a nutshell, issue 1 has been argued to the effect that an election petition is sui generis. It is in a class of its own. Thus, rules and procedures laid down by the legislature must be followed to the latter. See JOSIAH JOHN AJI VS. TANIMU MOHAMMED DANLELE (2015) LPELR ? 40362 (CA); OGBORU VS. OKOWA (2016) 11 NWLR (Pt. 1522) 84 @ NWLR (Pt. 1522)

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84 @ 142.

Further submitted, that a Court must be competent to exercise its jurisdiction in respect of the matter before it. Any failure to fulfil the condition precedent would be fatal to the proceedings. See GABRIEL MADUKOLU VS. JOHN NKEMDILIM (1962) LPELR ? 24013 (SC)

Copiously alluding to Paragraph 18 (1), (2), (3) and (4) of the First Schedule to the Electoral Act (Supra), it is contended that by the said provisions the Appellants (Petitioners) were under an obligation to apply for the issuance of pre-hearing information sheet within seven days after the May 9, 2019. See NWOYE VS. IKECHUKWU (2011) LPELR ? 9195 (CA).

It was maintained, that the word ?shall? used in paragraph 18 admits of no discretion from the Lower Tribunal, and commands absolute obedience from the petitioners. See OPARA VS. AMADI (2013) LPELR ? 20747 (SC).

Further maintained, that the petitioners are mandated to file their application for issuance of pre-hearing notice only when pleadings have closed. The Appellants filed their application on 06/5/19, whereas pleadings in the petition closed on 09/5/2019. On when pleadings are deemed to be

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closed in election petition, involving more than one Respondent, the cases of LABOUR PARTY VS. YAHAYA BELLO (2016) LPELR ? 40848 (CA) @ 26 ? 27 AND APGA VS. MODESTUS C. OHAZULUIKE (2011) LPELR ? 9175 (CA); were cited and relied upon by the 1st Respondent.

It was posited, that a premature application is not competent at all and cannot activate the jurisdiction of the Lower Tribunal as envisaged by Paragraph 18 of the First Schedule to the Electoral Act (Supra). See AZUDIBIA VS. INEC (2008) LPELR ? 3836 (CA) 17; BABAJO VS. BAWA (2011) LPELR ? 9204 (CA) @ 34 ? 35; OKOROAFOR VS. INEC (2015) LPELR ? 25995 @ 26; GEBI VS. DAHIRU (2011) LPELR ? 9234 (CA).

On the whole, the Court is urged to hold the vexed application in question, filed on 06/5/19, is premature, and therefore incompetent. The Court is urged to resolve the issue No.1 in favour of the 1st Respondent.

The issue No.2 is argued at pages 15 ? 16 of the said brief. It?s submitted that the provision of Section 285 (8) of the 1999 constitution (Supra) is only applicable to situations where there is a challenge to the competence of the

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petition itself. That the vexed application queried the failure of the petitioners to apply to activate the petition and not on the competence of the petition itself.

Thus argued, that all the cases cited by the Appellants, especially from paragraphs 7.03 ? 7.06 of the brief thereof, are not apposite. Further argued that paragraph 18 (4) of the First Schedule to the Electoral Act (Supra) provides for the consequences of failure to apply as prescribed by the Act. See BUHARI VS. INEC (2008) LPELR ? 814 (SC); BUHARI VS. YUSUF (2003) LPELR ? 812 (SC) to the effect that the word ?shall? connotes that the exercise of that power is not discretionary. The Court is urged to so hold.

Conclusively, the Court is urged to dismiss the appeal as same is frivolous and lacking in merits.

The 2nd Respondent?s brief, dated and filed on July 1, 2019, was settled by Matthew G. Burkaa Esq. It spans a total of 14 pages. Paragraphs 2.5 ? 2.8.8 at pages 3 – 7 of the said brief deal specifically with notice of preliminary objection and the argument canvassed thereupon.
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The 2nd Respondent?s notice of preliminary

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objection in question is pursuant to Section 285(5) of the 1999 Constitution (supra).

It is submitted, that the objection is jurisdictional, thus can be raised by a notice of preliminary objection as filed herein. See MEGA PROGRESSIVES PEOPLE PARTY VS. INEC (2015) LPELR ? 25706 (SC) @ 10 Paragraphs D ? F; ANACHEBE VS. IJEOMA (2014) LPELR ? 23181 (SC) @ 20 Paragraphs B ? F.

It is contended, that the petition, being the mother of the instant appeal, is statute-barred. Exhibit A attached to the notice of preliminary objection is alluded in regard to 10/05/2019, the date of declaration. Page 1 of the record of appeal was equally alluded to showing that the petition was filed on 31st day of March, 2019.

Copiously alluded to the provision of Section 285(8) of the (1999) Constitution, as amended. It is argued that since the declaration was done on the 10th day of March, 2019, and the petition was filed on 31st day of March, 2019, the petition was filed twenty-two (22) days after the declaration. Therefore, the petition was statute-barred, for having been filed out of time. See EGBE VS. ADEFARASIN (1985) NWLR

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(Pt. 3) 549 @ 569; OBONG VICTOR AKPAN VS. HON. ONOFIOK LUKE: CA/A/EPT/559/2015; USORO BENJAMIN M. VS. NSE UDOFOT ESSIEN: CA/A/EPT/354/2015; OKECHUKWU VS. INEC (2014) 17 NWLR (Pt. 1436) 255; DANIEL DONALD ONJEH VS. DAVID MARK (No citation provided).

It was postulated that where the petitioner fails to file the petition within twenty-one (21) days, his time is up. Therefore, the petition, is statute-barred, and the right of the petitioners is extinguished, as the action commenced outside the twenty-one (21) days. The Court is urged to resolve the Issue in favour of the 2nd Respondent/objection and dismiss the appeal.

The 2nd Respondent?s argument on the merits of the appeal is contained at pages 7 ? 13, paragraphs 3.0 ? 4.1 of the said brief thereof.

In the main, it is submitted on Issue No.1, that pages 184 ? 193 of the record show how the Appellants had failed to comply with the provisions of paragraph 13(1) of the First Schedule to the Electoral Act, 2010 (supra).
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Further submitted, that the 1st Respondent, who was served with the petition on 18/04/2019, and he filed his reply on 07/05/2019; his last date to file a

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reply lapsed on 08/05/2019. The petitioners were served with the 1st Respondent?s reply on 09/05/2019.

Thus, it was argued that pleadings were effectively closed on 09/05/2019. Having not filed any reply, the petitioners were required to apply for issuance of pre-hearing notice within seven (7) days (from 09/05/2019 ? 15/05/2019.

According to the 2nd Respondent?s learned counsel, election petition is a special proceeding with its peculiar nuances, which places its procedure over and above the normal day to day transactions in ordinary civil cases. See ORUBU VS. NEC (1988) 5 NWLR (Pt. 94) 323 @ 347.

Allegedly, the consequences of not applying for the issuance of Form TF007 is dismissal of the petition. See AZUDIBIA VS. INEC (2008) 4 LRECN 105; OLUFEMI VS. INEC (2008) 4 LRECN 291; IKORO VS. IZUNASO (2008) 4 LRECN 1; NWANKWO VS. YAR?ADUA (2010) 12 NWLR (Pt. 1209) 518 @ 590.

The Court is urged to hold that having failed to apply for the issuance of pre-hearing notice at the close of pleadings, the petition is deemed abandoned.
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Regarding the application for issuance of pre-hearing notice before the close of

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pleadings, it is submitted that a calm and careful reading of Section 285(8) of the 1999 Constitution will show that it deals with situations where a party challenges the substantive jurisdiction of the Tribunal or the competence of the petition.

However, application brought pursuant to paragraph 18(1) ? (4) of the First Schedule to the Electoral Act, 2010 (supra) questions whether or not a Tribunal which ordinarily possesses jurisdiction to entertain the petition, can proceed any further with the said petition by reason of the failure of the petitioner to comply with the dictates of the law.

It is posited, that Section 285(8) of the Constitution (supra) is applicable to a situation where the Court?s jurisdiction to entertain the petition generally is being challenged but not where though, the Court has jurisdiction, but it is being called upon in the course of the proceedings to determine whether or not a party has taken some procedural steps which have the capacity of affecting the further cause to be taken in the said proceedings. One is extrinsic to the petition, the other intrinsic.

The Court is urged to resolve the issue

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against the Appellants, and hold that the lower Tribunal was right in determining the application one way or the other without reserving its ruling, especially as it was called upon to determine whether or not the petition has been abandoned.

Conclusively, the Court is urged upon to dismiss the appeal and uphold the decision of the lower Tribunal.

The 3rd Respondent?s brief of argument was dated 30/06/2019 but settled by Ishaka Mudi Dikko, SAN on 01/07/2019. It spans a total of 15 pages. At page 6 of the brief in question, the learned silk has deemed it expedient to canvass a sole issue distilled from the three grounds of appeal viz:
Whether in view of the circumstances of the Appellant?s petition before the trial and the settled position of the law, the Trial Tribunal was right when it dismissed the Appellants? petitions at the lower Tribunal for failure to issue the mandatory application for pre-hearing session.

?In the main, it?s submitted, that pages 184 ? 193 of the records show clearly that the Appellants had failed to comply with the provisions of Paragraphs 18(1) of the First Schedule to the Electoral Act, 2010, as amended.

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Further submitted, that despite the closing of the pleadings on 09/05/2019, the Appellants failed to apply for the pre-hearing Information Sheet.

As contended by the learned silk, election petition is sui generis. The procedure applicable in conventional matters would not apply in election petitions. See PDP VS. EZEONWUKA (2017) LPELR ? 42563 (SC) @ 68 ? 69 Paragraph D; BUHARI VS. YUSUF (2003) LPELR ? 812 (SC) 18 ? 19 Paragraphs D ? C; ORUBU VS. NEC (1988) 5 NWLR (Pt. 94) 323 @ 347; SAAD VS. MAIFATA (2009) ALL FWLR (Pt. 466) 1930 @ 1943.

The cases of ONYEKWULUJE VS. ANIMASHAUN (2019) LPELR ? 46528 (SC) 29; Paragraphs B ? F; EZE OKOROCHA VS. UBA PLC (2018) LPELR ? 45122 (SC) 17 Paragraphs A ? C; were equally cited, to the effect that jurisdiction is fundamental to adjudication, to the extent that a Court cannot determine a matter (on) which it has no jurisdiction.
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Further submitted, that failure to apply for pre-hearing notice in an election petition under the extant Election Act, 2010, as amended, would affect the jurisdiction of the Tribunal to hear and

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determine the matter. See BUSOLA OYEBODE VS. OGUNDELE GABRIEL (2011) LPELR ? 8693 (CA) @ 23 ? 25 Paragraphs C ? D.

The learned silk has vehemently contended, that the consequences of not applying for the issuance of Form TF007 is dismissal of the petition. See Paragraph 18(1) and (3) of the First Schedule to the Electoral Act, 2010 (supra); AZUDIBIA VS. INEC (2008) 4 LRECN 105; NWANKWO VS. YAR’ADUA (2010) 12 NWLR (Pt. 1209) 518 @ 590, et al.

Further contended, that it is not in dispute that the Appellants (Petitioners) had made an earlier application for the issuance of pre-hearing notice on 6th day of May, 2019 before the close of pleadings. See pages 190 ? 191, of the record. As at the 6th day of May, 2019, in question, pleadings had not closed hence in the eyes of the law, there was no application made in the strict sense of the words.

The Court is urged to hold that the Appellants? failure to properly apply for the issuance of the pre-Trial led to the dismissal of the petition and that the said dismissal was rightly made by the Trial Tribunal.
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With regards to Section 285(8) of the 1999 Constitution as amended,

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it?s posited that it deals with situations where a party challenges the substantive jurisdiction of the Tribunal on grounds that it lacks jurisdiction to entertain the petition ab initio, or where the competence of the petition is challenged.

According to the learned silk, applications brought pursuant to paragraph 18(1) ? (4) of the First Schedule to the Electoral Act, 2010 (as amended), question whether or not the Tribunal, which ordinarily possesses the jurisdiction to entertain the petition, can proceed any further with the said petition by reason of the petitioners? failure to comply with the dictates of the law. Allegedly, the Appellants? argument which seems to suggest that the lower Tribunal did not follow the dictates of Section 285(8) of the 1999 Constitution is therefore not tenable in this case.

The Court is urged to so hold, and accordingly dismiss the appeal.
The Appellants? reply brief of argument was settled on 04/07/2019 by A. I. Ashokpa Esq. It spans a total of 17 pages.
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Paragraphs 1.00 ? 2.4 at pages 1 ? 6 of the reply brief deal with the 1st Respondent?s preliminary

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objection. By the submission contained in the said reply brief thereof, the Appellants argued that the 1st Respondent?s preliminary objection is misconceived, and urged upon the Court to overrule same.

Paragraphs 3.00 ? 3.03 at pages 6 ? 7 of the reply brief, deal with the 1st Respondent?s brief of argument on points of law. Conclusively submitting on the issue, the Appellants postulated to the conclusive effect, that it is crystal clear from the submission thereof, that the jurisdiction of the lower Tribunal was in issue in 1st Respondent?s attack on the competence of the application for issuance of pre-trial hearing notice as in Form TF007. That the lower Tribunal itself in coming to the vexed decision in dismissing the Appellants? petition on 30/05/2019, did so upon the footing that it lacked the jurisdiction to proceed to hear and determine the petition in EPT/NS/GOV/04/2019.
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The Court is urged upon to so hold.
Paragraphs 4.00 ? 4.04 at pages 7 ? 10 of the reply brief deal with the 2nd Respondent?s preliminary objection.
Conclusively, the Appellants urged upon the Court to uphold the

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Appellants? argument, and dismiss the 2nd Respondent?s preliminary objection.

Paragraphs 5.00 ? 5.05 at pages 10 ? 13 of the reply brief, deal with the Appellants? reply to the 2nd Respondent?s argument on the substantive appeal. It is submitted to the conclusive effect that the decision of the lower Tribunal in the vexed ruling of 30/05/2019 was not only wrong in law, but it was arrived at per in curiam, having regard to the state of the extant law on the point.

The Court is urged to so hold.
Paragraphs 6.00 ? 6.01 at page 14 of the reply brief deal with the 3rd Respondent?s argument contained in the brief thereof.

On the whole, the Appellants contended that the 3rd Respondent?s submission in the brief thereof is misconceived. The Court is urged to so hold.

On the totality of the submissions in the reply brief thereof, the Appellants have urged upon the Court to dismiss the preliminary objections, allow the appeal and grant the reliefs sought therein.
?
I have accorded a critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the instant

25

appeal, the learned counsel?s far-reaching submissions contained in their respective briefs of argument vis–vis the records of appeal, as a whole.

I have critically taken into account of the notices of preliminary objection, the argument canvassed thereupon and duly incorporated in the respective briefs of argument of the 1st and 2nd Respondents.
In the most recent case of the Apex Court, BELLO BARA?U GUSAU VS. APC & 3 ORS (2019) LPELR ? 468897 (SC), it was aptly and most authoritatively reiterated:
The position of the law is that a Preliminary Objection must be taken first before determining the merit of an appeal since its purpose is to terminate hearing of an Appeal in limine either partially or totally ? SPDCN VS. AMADI (2011) 14 NWLR (Pt. 1266) 157; MOHAMMED & ANOR VS. OLAWUNMI & ORS (1990) 4 SCNJ 123. In other words the Court should first consider a Preliminary Objection raised during an Appeal, as a successful objection may the effect of disposing of the Appeal ? FBN VS. T. S. A IND. (2010) 15 NWLR (Pt. 1216) 247.
?Per Augie, JSC @ 7 paragraphs B ? E.
Thus, I have deemed it

26

not only expedient but equally imperative to, first and foremost deal with the 1st and Respondent?s preliminary objection before proceeding to determine the appeal on the merits, if at all necessary.

DETERMINATION OF THE 1ST RESPONDENT?S PRELIMINARY OBJECTION
As alluded to above, by the preliminary objection canvassed in paragraphs 4.1 ? 4.9 at pages 3 ? 5 of the brief thereof, the 1st Respondent has urged upon the Court to dismiss the instant appeal on the simple ground of the in-complete record and that Ground 3 of the Notice of Appeal has not emanated from the vexed ruling of the lower Tribunal. Thus, I am appreciative of the fact that two issues call for determination of the 1st Respondent?s preliminary objection, viz:
i. Whether the record of appeal is incomplete, thereby rendering the appeal incompetent and liable to be struck out by the Court in limine.
ii. Whether Ground 3 of the Notice of Appeal does not emanate from the vexed ruling of the trial Tribunal, thereby rendering the said Ground 3 and the Issue No. 3 distilled therefrom incompetent, and liable to be struck out by the Court.
?

27

ISSUE NO.1 OF THE 1ST RESPONDENT?S PRELIMINARY OBJECTION
I have had a cause herein above to outline the submissions of the respective learned counsel on the issue. In the main, the 1st Respondent?s grouse under this issue is that the application filed on 23/05/2019 upon which the vexed ruling of the Tribunal is predicated, thereby resulting in the dismissal of the petition, is conspicuously missing from the record of appeal. And that, the 1st Respondent was not invited for the settlement of the record of appeal, which is a clear violation of Order 32 Rule 3 of the Federal High Court Rules and the Court of Appeal Rules.
The importance of records of appeal to the hearing and determination of an appeal by an appellate Court such as the Court of Appeal, cannot be over-emphasized. Indeed, an appeal, from the lower Court or Tribunal shall be determined by the Court by way of a rehearing. Thus, it behooves the Court to rehear fully and accord a second consideration to such aspects of the entire record of appeal, comprising the lower Court?s or Tribunal?s proceedings and evidence adduced thereto, such an extent as the grounds of appeal and

28

circumstances surrounding the appeal require. SeeMUTUAL LIFE AND GENERAL INSURANCE VS. KODI IHEME (2010) LPELR ? 24698 (CA) per Saulawa, JCA @ 9 ? 10 paragraphs C, A ? D, respectively.
I think, it was in the case of NWANA VS. FCDA (2007) 11 NWLR (Pt. 1044) 59; where the Apex Court aptly admonished the Court of Appeal:
It is wrong for the Court of Appeal to base its decision in a case on an incomplete record transmitted to it without the vital documentary exhibits and without having the privilege of seeing the documents and to base its decision on speculation. Where the Court of Appeal makes pronouncements affecting the rights of the parties without the help of the material documentary evidence, the decision would occasion a miscarriage of justice.
Per Chukwu-Eneh, JSC @ paragraphs
By virtue of the provisions of order 8 Rule 4 and 6 of the Court of Appeal Rules, 2016, it is mandatory for the Appellants to compile and transmit the records of appeal from the Lower Tribunal to this Court, for the purpose of hearing and determining the appeal on the merits.
?Undoubtedly, the Appellants must compile and transmit to this

29

Court vide the registry of the trial Tribunal or by themselves, all such vital and necessary processes and documents that would assist the Court in the judicious determination of the appeal on the merits. As aptly and most authoritatively held by the Apex Court:
?Where necessary documents are not in the record, such an appeal is likely or liable to be struck out.?
See OSUNG VS. THE STATE (2012) 18 NWLR (Pt. 1332) 256, Per Coomasie, JSC @ 280 paragraphs A ? B and 279 B ? H.
See also ABULE VS. IWOWARI (2018) LPELR ? 44184 (CA).
In the instant case, it is obvious from page 196 of the record of appeal, that the 1st Respondent had filed an application on 25/05/2019 seeking the dismissal of the instant petition for the Appellants? failure to apply for the issuance of pre-hearing notice within the mandatory stipulated time allowed by the enabling Electoral Act, 2010, as amended. The said page 196 of the record of appeal is hereby reproduced:
IN THE GOVERNORSHIP ELECTION PETITION TRIBUNAL
HOLDEN AT LAFIA
NASARAWA STATE
IN THE MATTER OF ELECTION TO THE
OFFICE OF THE GOVERNOR

30

NASARAWA STATE
HELD ON THE 9TH DAY OF MARCH, 2019
BETWEEN:
3. MR. LABARAN MAKU ?.        PETITIONERS/REPONDENTS
4. ALL PROGRESSIVE GRAND ALLIANCE
AND
4. AUDU ALHAJI SULE
5. ALL PROGRESSIVES CONGRESS (APC)
6. INDEPENDENT NATIONAL ELECTORAL    COMMISSION (INEC)
MOTION ON NOTICE
BROUGHT PURSUANT TO PARARGRAPH 18 (3) & (4) AND PARAGRAPH 47 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010 AS AMENDED.
TAKE NOTICE that this Honourable Tribunal shall move on the…… day of…………….. , 2019 in the forenoon or so soon thereafter as counsel on behalf of the 1st Respondent shall be heard for the following reliefs:
1. AN ORDER of this Honourable Tribunal dismissing petition number EPT/NS/GOV/004/2019 MR. LABARAN MAKU & ORS V. AUDU ALHAJI SULE & 2 ORS for failure of the petitioners’ to apply for the issuance of Pre-hearing Notice within the time mandatorily stipulated by the Electoral Act and therefore vesting no jurisdiction in this Honourable

31

Tribunal.
2. AND FOR SUCH FURTHER ORDER(S) as this Honourable Tribunal may deem fit to make in the circumstances of this application.
TAKE FURTHER NOTICE that the Applicant shall place reliance on all the processes filed in this petition.
Page 197 of the record merely contains the handwritten names and addresses of the Petitioner (sic), 2nd and 3rd Respondents, respectively. The rest of other processes upon which the motion on notice (page 196) is predicated are virtually at large, as they are most inexplicably conspicuous from the record of appeal.
The Appellants learned counsel, in the wisdom thereof, has endeavoured to explain the mystery surrounding the conspicuous absence of the vital processes in question at page 4, paragraph 2.10, of the Appellants? brief of argument and paragraph 2.12 @ pages 4 ? 5 of the reply brief.
?To say the very least, I am unable to appreciate let alone uphold the foregoing submission of the learned counsel. Most regrettably, the submission of the learned counsel is neither in tandem with the trite principle of law, nor in tune with common sense. In the first place, by the submission thereof,

32

the learned counsel apparently disposes himself to giving evidence from the bar, which is most reprehensible to the rules of Court. Secondly, it is a well settled doctrine, that an incomplete record of appeal, such as in the instant case, effectively divests the Court of the very fundamental vires or jurisdictional competence to entertain the appeal. This is absolutely so, because to hear and determine an appeal upon an incomplete record of appeal, devoid of vital and necessary processes, would invariably occasion a miscarriage of justice. See MUTUAL LIFE AND GENERAL INSURANCE VS. KODI IHEME (supra); ABULE VS. IWOWARI (supra); NWANA VS. FCDA (supra).
By virtue of the provision of Order 8 Rule 4 of the Court of Appeal Rules, 2016, it is mandatory for the Appellants to compile and transmit the record of appeal to the Court of Appeal. What?s more, by virtue of the provision of Order 8 Rule 18 of the said Court of Appeal Rule, 2016 the Court is duly cloaked with an unfettered power and duty to discretion the appeal where both the Registrar of the Court below and the Appellant failed to compile and transmit the record of appeal within the statutory time

33

limit. See OLORUNYOLEMI VS. AKHAGBE (2010) 8 NWLR (Pt. 1195) 48, where in the Apex Court authoritatively held:
There can be no consideration of any appeal by an appellate Court or an objection thereto, unless and until there is before the Court a record of appeal duly prepared and transmitted by the Registrar of the lower Court or by the Appellant himself upon the leave of the Court being sought and obtained.
The rationale is that though an appeal is a rehearing of the matter, the rehearing in this case is by considering the case based on the printed record before the appellate Court, which includes exhibits tendered therein.
Most curiously, in the instant case, despite the foregoing imperative provisions of the rule of Court and the decisions of the Apex Court, the Appellants have the audacity to vehemently argue under paragraph 2.12 at page 4 of the reply brief thereof to the effect the 1st Respondent ought to have compiled and transmitted an additional record of appeal incorporating Exhibit 2. Thus,
Not having complied with Order 8, Rule 6, it does not pie in the month of the 1st Respondent to complain about the non-inclusion of Exhibit

34

2. We submit that Exhibit 2 is not material or vital or relevant in the subject matter of this appeal and consequently, it is not necessary for the proper understanding of the part or parts of the documents that are so relevant.
Contrary to the foregoing Appellants? contention, by the declaratory nature of the reliefs thereby sought in the appeal and petition alike, they have an onerous duty to satisfy the Court that they are so entitled to the exercise of the Court?s discretion in favour thereof by adducing cogent and positive evidence in proof of the allegation or claim thereof. Therefore, they must solely rely on the strength of their case and not on the weakness of the Respondents? case. See OKOYE VS. NWANKWO (2014) LPELR-(SC) 234/2004; MOTUNWASE VS. SORUNGBE (1988) 5 NWLR (Pt.92) 90; CHUKWUMAH VS. SPDC (NIG) LTD (1993) LPELR-(SC) 122/1988.
?Hence, there is every cogent reason for me to hold, the 1st Respondent is not under any duty to assist the Appellant in the pursuit of the appeal. In other words, the 1st Respondent is not in any way under a duty to compile and the missing vital processes in question in aid of the Appellant.

35

In my considered view, the provision of Order 8 Rule 6 of the Court of appeal (supra) is not mandatory. And I so hold.
In the circumstances, I would want to hold, that the effect of an incomplete record of appeal, as in the instant case, would effectively divest the Court with the fundamental vires or jurisdictional competence to entertain and determine the appeal. Thus, the Issue No. 1 of the 1st Respondent?s preliminary objection ought to be and it is hereby resolved in favour of the 1st Respondent, against the Appellants.

ISSUE NO. II OF THE 1ST RESPONDENT?S PRELIMINARY OBJECTION
As copiously alluded to above, the second issue of the 1st Respondent?s preliminary objection raised the question of whether Ground 3 of the Notice of Appeal does not emanate from the vexed ruling of the trial Tribunal, thereby rendering the said Ground 3 and Issue No. 3 distilled therefrom incompetent, and liable to be struck out.

The vexed Ground 3 of the Notice of Appeal is contained at page 268 of the record of appeal:
GROUND III
The Honourable Tribunal erred in law when it make an order in its ruling dated 30th day of May, 2019

36

dismissing Petition No. EPT/NS/GOV/04/2019 between Mr. Labaran Maku and 1 OR. VS. Audu Alhaji Sule and 2 ORS. at interlocutory stage.
Particulars:
1. Section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that the Tribunal shall suspend its ruling and deliver it at the stage of final judgment.
2. The Honourable Tribunal defied this provision and delivered a ruling on an interlocutory application filed by the 1st Respondent and dismissed Appellants petition on the 30th day of May 2019.

The said Issue No. 3 of the Appellant, distilled from Ground 3 of the Notice of Appeal, equally provides:
ISSUE III
Whether by the provision of Section 285(8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the ruling of the lower Tribunal delivered on 30/05/2019 in EPT/NS/GOV/04/2019 is a nullity.

It is a settled doctrine, that generally speaking, for an Appellant to raise a fresh issue on an appeal, he is required to seek and obtain leave of the Court. However, like in all general principles, this general doctrine is not devoid of an exception. Indeed, the exception to this

37

general rule applies where the issue raised borders on jurisdiction. As aptly held by the Apex Court:
?An issue of jurisdiction being fundamental to the case does not require leave to be raised?
It can be raised at any stage of the proceedings.?
See OGUNBIYI VS. MUNIRA (2011) 12 SCNJ 423 per Adekeye, JSC @ 435 lines 15 ? 25.

Hence, having satisfied myself that the vexed Ground 3 and Issue No. 3 raise the fundamental question of jurisdiction, I hereby hold without any further hesitation that they are both competent. Thus, the 1st Respondent?s objection to both Issue No. 3 and Ground 3 of the Notice of Appeal is adjudged to be misconceived and accordingly hereby discountenanced.

On the whole, having upheld the preliminary objection on Issue No. 1 in regard to the incompleteness of the record of appeal, I hereby hold that the preliminary objection succeeds on that ground.

Consequently, I hereby hold that the appeal is liable to be struck out for being rendered incompetent on ground of incomplete record of appeal.

DETERMINATION OF THE 2ND RESPONDENT?S PRELIMINARY OBJECTION
The 2nd

38

Respondent?s preliminary objection urges upon the Court to dismiss the instant appeal on the grounds that:
i. The Appellants? petition is statute-barred having been filed outside the 21 days period prescribed by 1999 Constitution and the Electoral Act, 2010 as amended.
ii. By virtue of the petition being statute barred, the appeal has become academic and thus amounts to an abuse of Court process; and
iii. The Court lacks jurisdiction to entertain and determine the appeal as the lower Tribunal lacked jurisdiction to enter the petition for being statute barred.

I have amply considered the submissions of the learned counsel contained in their respective briefs of argument regarding the 2nd Respondent?s preliminary objection.

Indeed, election petitions are sui generis; they belong to a distinct class of their own. See ORUBU VS. NEC (1988) 5 NWLR (Pt. 94) 323 @ 347; SAAD VS. MAIFATA (2009) ALL FWLR (Pt. 466) 1930 @ 1943.

Undoubtedly, the consequence of not applying for the issuance of Form TF007 is a dismissal of the petition. See AZUDIBIA VS. INEC (2008) 4 LRECN 105; OLUFEMI VS. INEC (2008) 4 LRECN 1; NWANKWO VS. YAR’ADUA ?

39

(2010) 12 NWLR (Pt. 1209) 518 @ 590.
It is not at all in doubt, that by virtue of the provision of Section 285 (5) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the Governorship Election Tribunal (the lower Tribunal) is cloaked with original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor of a State. Under Sub-section (5) of Section 285 of the Constitution (supra), it is equally provided:
?(5) An election petition shall be filed within 21 days after the date of the declaration of results of the election.?
In the instant case, parties are ad idem, that the election in question was held by the 3rd Respondent on 09/03/2019, and that the declaration and return of the 1st Respondent was made the next day on 10/03/2019. It is equally not in doubt, at all, that the Appellants? petition was dated ?31st day of March, 2019?. See page 50 of the record of appeal. Regrettably, it is not apparent on the face of the record, the actual date on which the petition (pages 1 ? 50 of the record) was filed.

40

Thus, the Appellants? assertion in page 8 lines 7 ? 8 of the brief thereof, to the effect, that:
?The parties are also in agreement that the Appellants filed the petition in EPT/NS/GOV/04/2019 on 30/03/2019?.
Is to say the least, misconceived.
However, as aptly submitted by the Appellants in paragraph 4.02 of the brief thereof:
In the instant case, the result of the election was deduced (sic) on 10/03/2019. Therefore, time began to run for filing the petition on 11/03/2019 and ended on 31/03/2019. We submit that the petition in EPT/NS/GOV/04/2019 was filed on the last day provided for doing so.
Interestingly, the very clear and unambiguous words inherent in the phrase ?
?Within 21 days after the date of the declaration of the result of the election?
as couched in Sub-section (5) of Section 285 of the Electoral Act (supra), denote that the date on which the result of the election was announced or declared (10/03/2019) ought not to be deemed inclusive. That?s to say, time begins to run on the (next) day following the declaration of the result of the election. See EZEIGWE VS.NWAWULU

41

(2010) 4 NWLR (Pt. 1183) 150, where in the Apex Court aptly held:
The law is settled that in calculating or computing time the first day of the period will be excluded from the reckoning while the last day will be included except, where the last day is a public holiday in which case the end of the following day, which is not a public holiday, will be included. See Section 15 (2) of the interpretation Act and AKEREDOLU VS. AKINREMI (1985) 2 NWLR (Pt. 10) 787 AT 794;
Per Onnoghen, JSC @ 197; (2010) LPELR-1201 (SC) @ 37.
By the well cherished doctrine of Stare Decisis, all superior Courts of record (the Court of Appeal inclusive) and other inferior Courts and tribunals are bound by the decisions of the Supreme Court being Apex in the judicial hierarchy in Nigeria.
In the circumstance, the 2nd Respondent?s preliminary objection, for all intent and purposes thereof, is adjudged unmeritorious, and it is hereby dismissed by me.
?
I have deemed it expedient to proceed and determine the appeal on merits with the view of according the Apex Court the benefit of my view show cased therein, in the likely event of appeal there to. As

42

aptly once reiterated by this Court:
?This is to obviously obviate the need for the Apex Court to remit the appeal to this Court if it has a contrary view on the Preliminary Objection thereby saving judicial time and cost.?
See IDRIS VS. AGUMAGU (2015) LPELR ? 24504 (CA) Per Ogbuinya, JCA. See also AKEREDOLU VS. ABRAHAM (2019) LPELR ? 46670 (CA) Per Jauro, JCA.

DETERMINATION OF THE APPEAL ON THE MERITS
Having amply considered the submissions of the learned counsel contained in their respective briefs of argument vis–vis the records of appeal as a whole, I am amenable to adopting the three issues raised by the Appellants in the brief thereof for the ultimate determination of the appeal.

ISSUE NO.1
The first issue raises the very vexed question of whether on the state of the facts of the instant case, the Lower Tribunal was wrong to have dismissed the petition NO. EPT/NS/GOV/04/2019 as an abandoned petition pursuant to paragraph 18 (4) of the First Schedule to the Electoral Act 2010 (as amended). The first issue is distilled from ground 1 of the notice of appeal.
?I have had a cause to herein

43

above outline the argument of the learned counsel contained in their respective briefs of argument.
The vexed ruling of the Lower Tribunal which forms the very basis of the instant appeal, spans a total of 22 pages (242 ? 262 of the record of appeal). Most specifically, at page 253 of the record, the Tribunal stated:
It is significant to point out that paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (as amended) quoted above provides for the petitioner only two scenarios, in one of which he must apply for pre-hearing notice within 7 days as stipulated. The first is where he is not filing a reply to the Respondents? reply, in which case he must apply for the issuance of pre-hearing notice within 7 days of service of his reply on the last Respondent. In other words, by the provision of paragraph 18 (1) pleadings in election matters is closed either upon service of the last Respondent?s Reply on the petitioner where the petitioner does not file a Reply to that of the Respondent, or upon service of the petitioners reply on the last Respondent where the petitioner had filed a reply of the times allowed for those parties

44

to file and serve those pleadings.
The foregoing construction by the Lower Tribunal does not seem to have gone down well with the Appellants. According to them, the construction (interpretation) of paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 as amended, by the Lower Tribunal was not in consonance with the extant law on the point. Contrariwise, the Respondents are very much amenable with the construction of the said paragraph 18 (1) (Supra) by the Tribunal.
Invariably, the provision of the said paragraph 18 (1) of the First Schedule to the Electoral Act 2010 as amended is to the effect:
18 (1) within 7 days after the filing and service of the petitioner?s reply on the Respondent, or 7 days after the filing and service of the Respondent?s reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in form TF 008.
?It is not controversial, that the Appellants deemed it expedient to file their application for the issuance of a pre-hearing notice to kick start the hearing of the petition. Indisputably, that was barely a day before the 1st Respondent would file his reply to

45

the petition on 07/05/2019. Thus, this prompted the Lower Tribunal to find at page 260 of the record:
The records of the Tribunal further show that the petitioners who did not file a reply to any of the Respondents? Replies, filed an application for issuance of pre-hearing notice on the 6th of May, 2019. This was a day before the Respondent filed his Reply on the 7th of May, 2019 which Reply was the pleading last served on all the parties including the petitioner on the 9th of May, 2019. In other words, the petitioners pre-maturely applied for issuance of pre-hearing notice on 6th May, 2019.
Consequent upon the foregoing far-reaching postulation, the Lower Tribunal made a further findings at page 26 of the record to the conclusive effect:
It is consequent upon all the above, that we hereby resolve the sole issue for determination in this application in the affirmative and hold that from the circumstances of this case the 1st Respondent?s application should be granted.
Accordingly, the 1st Respondent?s application is hereby granted as prayed and this petition is hereby dismissed as having been abandoned by the

46

petitioners.
Instructively, by the provision of paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 as amended, the petitioner is required within 7 days after the filing and serving of the petitioner?s reply on the respondent, or 7 days after the filing and serving of the Respondents reply, as the case may be, to apply for the issuance of pre-hearing notice as in Form TF 008.
Where the petitioner fails to file an application for the issuance of a pre-hearing conference notice, the respondent may apply by motion, which shall be served on petitioner and returnable in 3 days, thereby praying the tribunal to dismiss the petition for non-diligent prosecution. See paragraph 18 (3).
However, where both the petitioner and respondent fail to file an application for the issuance of pre-hearing conference notice, the Court or tribunal shall suo motu deem the petition as abandoned and accordingly dismiss same. Paragraph 18 (4) of the First Schedule to the Electoral Act, 2010, as amended.
Undoubtedly, the effect of a petitioner?s failure to apply for the mandatory issuance of a pre-hearing conference notice has been reiterated

47

in a plethora of cases to be grievous.
Most particularly, in the case of GEBI VS. DAHIRU (2011) LPELR ? 9234 (CA), this Court aptly pontificated upon time constraints the Electoral Act, 2010 as amended puts upon litigants. Thus, the Court deemed it expedient to admonish the Court and tribunal?s members to be liberal albeit firm in the exercise of the onerous judicial functions thereof, with a view to ameliorating the time constraints. Thus, all those statutory provisions which tend to shut out a party must be applied strictly within the Constitution guaranteed right to fair hearing. What?s more:
Ordinarily, provisions made to terminate proceedings in limine are meant to put reluctant litigants on red alert, and such should be used sparingly. The only exception is the mandatory provision as to time line of the different stages of the prosecution of a petition.
However, the blanket view of the learned members of the Tribunal that the provision of a rule of practice like paragraph 18 (1) of the First Schedule cannot operate to curtail the power of the Tribunal to do substantial Justice rather than technical justice is

48

misconceived. There is no general rule for the Tribunal to intervene in favour of substantial justice where the procedural rule is mandatory. Every provision of subparagraph 18 are unique sui generis and same are mandatory. In the case of ONITIRI VS. BENSON (1960) SCNLR 314 at 317, it was held that the jurisdiction of an Election Tribunal is different from that of an ordinary civil case. Thus, for instance, unlike with the giving of eight days for the entry of appearance to a writ of summons, which is not mandatory, the requirement to apply for a pre-trial notice within 7 days of the close of pleadings is a mandatory provision of the 1st Schedule to the Electoral Act (see MR. G. O. DUKE VS. AKPABUYO LOCAL GOVERNMENT (2005) 19 NWLR Pt. 959 P.130 (a) 151). None compliance is fatal and the tribunal/Court is circumscribed to do anything other than what paragraph 18(3) and (4) of the 1st Schedule says. Due to the special nature of election proceedings, any default in complying with a mandatory procedural step which otherwise could either be cured or waived in an ordinary civil procedure would have fatal consequences in Electoral proceedings (Refer: 1. OYEKAN VS. AKINJIDE

49

(1965) NWLR P381 (a) 383; 2. OBIH VS. MBAKWE (1984) 1 SCNLR 192 and 3. OKEREKE VS. YAR?ADUA (2008) FWLR Pt. 430 P.626 at 646.
Per DONGBAN-MENSEM, JCA @ 64 ? 66 paragraphs E. C.
We have had a cause in the past to reiterate the fundamental principle, that the effect of filing an application for pre-hearing notice before the expiration of time limit allowed by law breaches the right to fair hearing of the Respondent, thus liable to be discountenanced by the Court. We pontificated upon this point in the case of OKOROAFOR VS. INEC (2015) LPELR ? 25995, thus:
Where you have more than a respondent in a petition, pleadings will not close until the expiration of the time limited in those paragraphs of the schedule particularly paragraph 16 thereof. In effect the petition must await for the time frame or period of time allocated to the parties to file replies before the petitioner can take out the Form TF007 within 7 days of service of the respondent?s reply filed within time permitted under paragraph 12(1) of the 1st Schedule on the appellant? Otherwise, it will be a breach of Section 36(1) of the 1999 Constitution of Nigeria as amended to fair hearing.
?

50

In the case of NWANKWO VS. YAR?ADUA (2010) 12 NWLR (Pt. 1209) 518 @ 590, the Apex Court equally reiterated the trite fundamental principle:
Non-compliance with the Practice Direction is fundamental as it vitiates all steps taken at the trial resulting in nullity. Where any proceedings are begun other than as provided by the rules, such proceedings are incompetent. In the instance of this case, failure to comply with the provisions of paragraph 6( ) of the Election Tribunal and Court Practice Direction 2007 invalidated the steps taken by the Presidential Election Tribunal in the hearing of the application and its decision in the ruling delivered on 03/09/2007.
In the case of AZUDIBIA VS. INEC (2008) LPELR ? 3836 (CA) 17, it was aptly held by this Court regarding paragraph 18 of the First Schedule to the Electoral Act, 2010 thus:
The petitioner did make premature application on 24/07/2007. Failure on the part of the petitioner to apply for the pre-hearing notice as in Form TF007 within the time prescribed is that the petition has been abandoned pursuant to paragraph 3(4) hereof:<br< p=””

</br<

51

What?s more, in the case of SHEHU NUHU BABAJO VS. BAWA (2011) LPELR ? 9204 (CA) @ 34 ? 35, this Court aptly pontificated upon the far-reaching implication of filing an application for the issuance of pre-hearing conference notice prematurely thus:
The instant case falls squarely within the first segment of the provisions of paragraph 18(1) of the First Schedule to the Act. The Petitioners/Appellants second application dated and filed on 11th July, 2011, was simultaneously filed with the reply to the 3rd Respondent?s reply?
The application was premature and therefore incompetent having been filed in violation of the provisions of paragraph 18(1) of the First Schedule to the Electoral Act, 2010 as amended. The consequence of such breach is captured in the case of AZUDIBIA VS. INEC (2008) 4 LRECN 705 @ 126 where it was held per Kereke-Ekun, JCA: ?A process filed prematurely is a mere piece of paper without any legal consequence. A condition precedent to the filing of an application for issuance of pre-hearing notice is that pleadings must have closed or are deemed to have closed. Until the happening of the

52

condition precedent there can be no competent application for pre-hearing notice before the Tribunal.
In the circumstance, I have no doubt in my mind, that the answer to the first issue ought to be in the positive to the effect that the lower Tribunal was right into have dismissed the instant petition (EPT/NS/GOV/04/2019) as an abandoned petition pursuant to paragraph 18(4) of the First Schedule to the Electoral Act, 2010 as amended. The said first issue is thus hereby resolved against the Appellants.

ISSUE NO. 2
The second issue raises the vexed question of whether the provision of paragraphs 18(1) and 12(1) of the First Schedule to the Electoral Act, 2010 as amended provide with exactitude when pleadings are closed for the purpose of filing an application for pre-trial conference in an election petition. The second issue is distilled from Ground 2 of the Notice of Appeal.
As copiously alluded to above, paragraph 18(1) of the Electoral Act, 2010 as amended has provided that:
(1) Within 7 days after the filing and service of the petitioners reply on the respondent, or 7 days after the filing and service of the

53

respondent?s reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in form TF008.
Paragraph 12 (1) of the First Schedule to the Electoral Act, 2010 (Supra), equally provides:
The respondent shall within 14 days of service of the petition on him file in the Registry his reply specifying in it which of the facts alleged in the election he admits and which he denies and setting out the facts on which he relies in opposition to the election petition.
The argument of the Appellants on the instant second issue, is to the effect that the petition was served on the 1st Respondent on 18/4/19. Thus, by the operation of the provision of paragraph 12 (1) of the First Schedule (Supra), pleadings were deemed closed on 01/5/19 i.e. 14 days after the service of the petition on the 1st Respondent. Thus argued, the Appellants were not bound to wait indefinitely for the 1st Respondent (who allegedly was of time) to file the reply thereof to the petition before the Appellants could apply for issuance of the pre-hearing notice. The Appellants cited and relied upon AWOJOBI VS. INEC (2012) 8 NWLR (Pt. 1303) 528, a

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veritable decision of this Court.
Indeed, in the case of AWOJOBI VS. INEC (Supra), this Court had the privilege of once again pontificating on the fundamental importance of adhering strictly to the dictates of the provisions of the First Schedule to the Electoral Act 2010, as amended to the following effect:
Arguably, having been served with the petition on the 06/5/11, the 14 days time limit accorded the respondents under paragraph 12 of the First Schedule (Supra) to file their respective replies to the petition must be deemed closed or to have expired on 21/5/11. Even if the respondents had not filed their respective memoranda of appearance they would have been entitled to a maximum time limit of only 21 days within which to file their replies to the petition. Most certainly, the 21 days time limit would have expired on 28/5/11. See paragraph 10 (2) of the First Schedule (Supra). In the circumstances, from the 21/5/11, the respondents were definitely out of time to file their respective replies to the petition. Thus, the appellants ought to have applied to the Lower Tribunal for the issuance of pre-hearing conference notice inspite of the

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respondents? failure to file their respective replies to the petition with in the stipulated time limit.
Per Saulawa, JCA @ 552 ? 553 paragraphs G ? A, respectively.
I would want to appreciate and hold, that the forgoing analytical proposition is very much applicable to the instant case. As aptly postulated by the learned counsel under paragraph 6.04 at page 13 of the Appellants? brief, the effect of the provision of paragraph 12 of the First Schedule to the Electoral Act, 2010 (supra) is that the time limited for the filing of a reply to an election petition would lapse by the effluxion of time limited by the law for filing the respective replies of both respondents and petitioners, thus not necessarily predicated on the service of the respondent?s reply on the petitioner.

However, in the instant case, the finding of the lower Tribunal, contrary to the contention of the Appellants (paragraph 6.04, lines 6 ? 9 of the Appellant?s brief), is to the effect:
We have looked at the record of the Tribunal in relation to this case. As rightly stated by the learned senior counsel for the 1st Respondent, the

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1st Respondent/Applicant did not file a memorandum of appearance. Hence, he had twenty-one (21) days to file his reply from the date of service on him of the petition which from the records was the 18th of April, 2019. The records show that the 1st Respondent?s reply was filed on the 7th of May, 2019 before the expiry of the twenty-one (21) days allowed him which expired on 9th of May, 2019. The said reply was duly served on the petitioner on the 9th of May, 2019 and from the proof of service was received by A. I. Ashokpa, a legal practitioner of Platinum Chambers, Lafia at 4.37p.m. Evidently therefore, pleadings in this case closed on the 9th May, 2019 when that reply of the 1st Respondent was served on the petitioners since the petitioners did not file any reply to the Respondents? replies.
The records of the Tribunal show that the petitioners, who did not file a reply to any of the Respondents? replies, filed an application for issuance of pre-hearing notice on the 6th of May, 2019. This was a day before the 1st Respondent filed his reply on the 7th of May, 2019. In other words, the petitioners prematurely applied for issuance of

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pre-hearing notice on 6th May, 2019, even before the 1st Respondent filed his reply to the petition and before they were served with the said reply on the 9th of May, 2019.

Thus, in the light of the foregoing unassailable far-reaching findings of the lower Tribunal, the second issue ought to be and same is hereby resolved against the Appellants.

ISSUE NO. 3
The third issue raises the vexed question of whether the provisions of Section 285(8) of the Constitution of the Federal Republic of Nigeria as amended, the lower Tribunal had the jurisdiction to have dismissed the petition (EPT/NS/GOV/04/2019) upon an interlocutory application and before the final judgment. The third issue is distilled from Ground 3 of the Notice of Appeal.
The provision of Section 285(8) of the 1999 Constitution, as amended is to the following effect:
285 ?
(8) Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the Tribunal or Court in any pre-election matter on the competence of the petition itself is raised by a party, the Tribunal or Court shall suspend its ruling and deliver it at the stage of final

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judgment.
The term constitution denotes the fundamental and organic law of a nation or state, thereby establishing the conception, character and organization of its government, as well as prescribing the extent of its sovereign power and the manner of the exercise thereof. See BLACK?S LAW DICTIONARY, 7TH Edition, 1999 @ 306.
By virtue of the Constitution of the Federal Republic of Nigeria (Promulgation) Decree (No. 24, 1999), the extant Constitution of the Federal Republic of Nigeria, 1999 came into force on May 29, 1999. It has a total of eight chapters and 320 Sections.
And by virtue of Section 1(1) thereof, the constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
Indeed, the supremacy of the constitution has been reiterated in a plethora of formidable authorities by the superior Courts of record. In the case of TANKO VS. THE STATE (2009) 2 SCNJ (Pt. 1) 3, the Supreme Court held:
It is by the constitution that the validity of all laws, rules or enactments for the governance of any part of the country will always be tested. It follows

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therefore, that all powers be they legislative, executive or judicial, must ultimately be traced to or predicated on the constitution for the determination of their validity. All these powers cannot be exercised inconsistently with any provisions of the constitution where any of them is so exercised, it is invalid to the extent of such inconsistency.
The Apex Court equally held that where the constitution has set out certain conditions for doing a thing, no legislation of the National Assembly or a State House of Assembly (in the absence of clear amendment of the particular constitutional provision so stipulating the contrary) can alter those conditions in any way, directly or indirectly unless the constitution itself so expressly authorizes. See also PDP VS. CPC (2011) 10 SCNJ 37 @ 50.
In the instant case, the argument of the Appellant under the third issue, in the main, is to the effect that the lower Tribunal has erred in law when it failed to follow the dictates of the provision of Section 285(8) of the 1999 Constitution, as amended, to suspend its ruling till the judgment delivery stage.
?Admittedly, the importance of the

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enactment of the 4th Alteration Act, thereby effectively amending the provisions of Section 285 of the 1999 Constitution (supra), cannot be over-emphasized. However, the question of whether the said amendment of Section 285 of the 1999 Constitution by the 4th Alteration Act affects substantive law or it affects purely rules of practice and procedure (procedural) is not far fetched. Of recent, the Apex Court aptly observed in one of the most recent cases on the issue ? BELLO BARAU GUSAU VS. APC AND 3 ORS. (2019) LPLER ? 46897 (SC), dated 21/02/2019, thus:
To be clear, the issue in this Appeal is whether the amendment to Section 285 of the 1999 Constitution by the said 4th Alteration Act, affects substantive law or it affects purely procedural matter because there is marked difference between them in terms of consequences?.
So, alterations in procedure are retrospective, and more importantly, as far as this Appeal is concerned, statutes shortening or extending time within which proceedings may be taken is retrospective ? see OJOKOLOBO VS. ALAMU (Supra), delivered by a full Panel of Seven Justices of this Court, where in this

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Court made that point abundantly clear.
Applying the rule of stare decisis, and guided by the principle confirmed in OJOKOLOBO VS. ALAMU (Supra), this Court affirm stand on the .. Of the said 4th Alteration Act and struck out same Appeals relating to pre-elections matters in respect of the 2015 Elections, and these include Appeal No. SC. 308/2018: OBAYEMI TOYIN VS. PDP AND ORS. struck out on 18/01/2019, and the following struck out on 23/01/2019:
-SC.1058/2018:
Senator Atai Aidoko Vs. Air-Vice Marshal Isaac M. Alfa;
– SC.1018/2018:
Hon. Sabo Nakudu and Anor. Vs. Alhaji Musa Suleiman and Anor;
-SC.826/2018:
Joseph Irimagha Vs. Randolph I. O. Brown and 2 ORS.; and
-SC.1246/2018:
Hon. Olujide Adewale Lawrence Vs. Hon. Sumbo Olugbemi.
As it is, this Appeal must suffer the same fate because the Appellant filed his Notice of Appeal in this Court outside the period of 14 days, prescribed in Section 285(ii) of the Constitution as altered by the 4th Alteration Act No. 21 of 2017, which makes it a retrospective law.
The preliminary objection raised by the fourth Respondent is sustained, and this

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Appeal, being statute-barred is hereby struck out. The parties shall bear their respective costs.
Per Augie, JSC @ 9 ? 15.
From the far-reaching decision of the Apex Court in the case of BARAU VS. APC (Supra), it is obvious that the effect of the 4th Alteration Act thereby amending Section 285(8) of the 1999 Constitution is fundamentally procedural, and not substantive.
It must be reiterated, that the importance of the noble provision of Section 285 (8) of the 1999 Constitution, as amended cannot be over emphasized. Undoubtedly, the fundamental essence of the provision in question is to save the precious time of the Court and parties by determining the preliminary objection in the course of the final judgment. Thus, the wisdom cherishly inherent in the said provision is to avoid unnecessary waste of time in pursuing frivolous interlocutory appeals bordering on jurisdiction, so that salient issues can be taken along with the final judgment. See AKEREDOLU VS. ABRAHAM (2019) LPELR ? 46670 (CA) Per Jauro, JCA.
In the most recent case of OYEKUNLE VS. APC & 2 ORS, Appeal No. CA/IL/78/2018, judgment delivered on July 2, 2019,

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the Court of Appeal (Ilorin Division) aptly pontificated upon the issue:
Let me add that the essence of determining interlocutory issues together with the main issue in pre-election matters is to avail the Court on appeal the opportunity of determining the case should the ruling on the preliminary issue be found to be in error. The lower Court was therefore wrong in refusing to proceed and to determine the inter locutory issues raised in the stage of the final judgment after considering the merit of the main issue in contention.
Per Barka, JCA @ 57, last paragraph.
In GBENGA VS. APC?S CASE (Supra), the case deemed it expedient to exercise the far-reaching power thereof under Section 15 of the Court of Appeal Act, 2010 thus:
On whether this Court can utilize the provisions of Section 15 of the Court of Appeal Act 2010, this Court is guided by the legal principal established in the cases of AGBAKOBA VS. INEC (2008) 12 SC (Pt.111) 171 @ 232 ? 233, and NJIKOKA EZEIGWE VS. NWAWULU (2010) 2 MJSC 30 @ 64 ? 65. A critical examination of the pre-conditions listed are in favour of this court invoking its powers in determining the

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issue.?
I rather hold that the 3rd respondents name was rightly submitted to the 2nd respondent having won the election of the 5th of October, 2018 as evidenced by exhibits A1 ? A4 and Exhibit B. this issue is hereby resolved against the defendant. With the resolution of the sole issue in favor of the cross appellant, the (cross) appeal succeeds and is hereby allowed.
I make no order as to costs.
Per Barka, JCA.
I entirely agree with the Respondents learned counsel, that a difference ought to be drawn between a situation where the Court?s or Tribunal?s jurisdiction to entertain the petition generally is being challenged and where, though the Court has jurisdiction, but it is being called upon in the course of the proceedings to determine whether or not a party has taken some procedural steps which has the capacity of affecting the further cause to be taken in the proceedings in question. That?s to say, whether the petition has been abandoned by the petitioners, as in the instant case. While one is extrinsic to the petition, the other is intrinsic. Section 285 (8) of the 1999 Constitution as amended by the 4th Alteration Act (Supra), ?

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is arguably applicable to the earlier scenario, but not to the latter.

Most instructively the fundamental doctrines which ought to guide the Courts in making an order of retrial has long been settled in a plethora of formidable authorities. Indeed the locus classicus; ABODUNDE vs. THE QUEEN 4 FSC @ 70, the Federal Supreme Court (as the Apex then was) reiterated the five fundamental guiding principles, viz;
?We are of the opinion that, before deciding to order retrial this Court must be satisfied:
(a) That there has been an error in law (including) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to invoke, Section 11(1) of the ordinance,
(b) That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant.
(c) That there are no such special circumstances as would render it oppressive to put the appellant on trial a second time.
(d) That the offence ?of which the

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appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial and
(e) That to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.?
See also JAMES IKHANE VS. COP (1977) ALL NLR 2341 (1977) 6 SC 78; (1977) LPELR-1478 (SC).
In the case of FAGUNWA VS. ADIBI (2004) 17 NWLR (pt.903) 544; (20034) 19 NSCQR 415;(2004) LPELR-1229 (SC), the Apex Court aptly reiterated the trite principles of retrial in civil cases, thus:
?Learned counsel for the appellants tried a possible luck for this client by trying his hand at an order for a retrial. This to me is a big joke because there is no legal basis for such an order.?
?It is trite law that where a plaintiff fails to prove his relief or reliefs, the action stands dismissed and it is dismissed. An order of a retrial gives the plaintiff a second chance to repair his case and return with his repaired case to fight the defendants while the barman may allow the customer have a second taste or bite at the cherry, there is no such bar in the Court and

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so the appellants will not be allowed another chance to relitigate this action.?
Per Niki Tobi, JSC (of blessed memory, in his notorious philosophical and erudite characteristics) @ 25 paragraphs A-C.
In my considered view, it is obvious from the overwhelming circumstances surrounding the instant case, that there is no legal basis whatsoever for an order of retrial (hearing) of the petition on the merits. See FAGUNWA VS. ADIBI (supra) per Niki Tobi, JSC @ 25 paragraphs A-C.

In the circumstances, the third issue ought to be and same is hereby resolved against the Appellants.

Hence, against the backdrop of the foregoing far-reaching postulation resulting in resolving all the three issues raised by the Appellants against them, I have no more hesitation in coming to the most inevitable conclusion, to the effect that the instant appeal is grossly unmeritorious, and same is hereby dismissed by me.

Consequently, the vexed ruling of the Nasarawa State Governorship Election Tribunal holden at Lafia, delivered on May 30, 2019 in petition NO. EPT/NS/GOV/04/19, is here by affirmed.

The Respondents shall be entitled to costs assessed at

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N100,000.00 payable by the Appellants.

Before placing the last dot to this judgment, I have deemed it expedient to observe that the Appellants are solely the architects of the avails thereof. As alluded to above, it?s so obvious from the records of appeal that they have not disposed themselves to a reasonable degree of vigilance in the prosecution of their case both -at the Lower Tribunal and this Court. Yet, it is a biblical truism, that the fundamental condition upon which the Almighty God graciously accorded man liberty is eternal VIGILANCE. Thus, the well cherished equitable doctrine ? VIGILANTIBU ET NON DORMIENTIBUS JURA SERVENIAM: the laws and the vigilant, not the indolent:
Thus, I think Shakespeare was utterly correct, when he lyrically philosophized inter alia that:
The enemy’ increased every day, we, at the height are ready to decline.
There is a tide in the affairs of men.
Which taken at the flood, leads on to fortune;
Omitted, all the voyage of their life is bound in shallows, and in miseries.
See JULIUS CAESER, ACT IV SCENE 3; AROMIRE VS. AJOMAGBERIN (2011) LPELR 3809 per Saulawa,-JCA.

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UCHECHUKWU ONYEMENAM, J.C.A.: I have read the lead judgment of my BROTHER IBRAHIM MOHAMMED MUSA SAULAWA, JCA; in an appeal against the ruling of the Nasarawa State Governorship Election Tribunal sitting at Lafia, Nasarawa State dated 30th May, 2019, delivered by Their Lordships, A.B. Mohammed, J.; V.O.A. Oviawe, J. and O. A. Ogunbowale, J. I agree with the conclusion of my learned BROTHER that the appeal be dismissed but I differ extensively in the reasoning and premise upon which he arrived at his conclusion. I shall therefore make my comments stating my views and reasons for agreeing with the conclusion that the appeal be dismissed.

At the Tribunal the Appellants were the Petitioners in Petition No. EPT/NS/GOV/04/2019 filed on 31st March, 2019 at the Nasarawa state Governorship Election Tribunal. The 1st, 2nd and 3rd Respondents were the respective Respondents in the said petition. The Appellants challenged the conduct of the election to the Office of Governor of Nasarawa State conducted by the 3rd Respondent on 23rd February, 2019 as well as the subsequent declaration and return of the 1st Respondent by the 3rd Respondent as

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having been duly elected as Governor of Nasarawa State on 25th February, 2019.

The germane fact that stemmed the ruling of the trial tribunal is that the Petitioners now Appellants filed an application for issuance of pre- hearing conference notice as in FORM TF 008 on 6th May, 2019 which was served on 1st, 2nd and 3rd Respondents respectively on 7th May, 2019. This service was before the 3rd Respondent who was still within time to file and serve his reply on the Appellants filed its reply. The 3rd Respondent eventually served the Appellants On 8th May, 2019 with its reply to the petition. Consequent upon the application filed by the petitioners for issuance of pre ? hearing notice before the end of pleadings, the 1st, 2nd and 3rd Respondents respectively brought their respective applications seeking the trial tribunal to dismiss the petition for failure of the Appellants to apply for the issuance of pre-hearing notice as stipulated by paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended). However, only the 1st Respondent’s motion on notice was heard by the trial tribunal.
?
Arguments on 1st Respondent’s motion on

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notice were heard by the trial tribunal on 28th May, 2019. On 30th May, 2019, the tribunal gave its ruling dismissing Petition No: EPT/NS/GOV/04/2019 as having been abandoned by the Appellants for failure to file an application for issuance of pre ? Hearing notice. Vexed by the ruling, the Appellants have brought this appeal which was filed on 10th June, 2019.

In this Court the parties promptly exchanged their briefs and appeal was heard on 9th July, 2019. The 1st and 2nd Respondents filed preliminary Objections respectively.

1ST RESPONDENT’S PRELIMINARY OBJECTION
The 1st Respondent in his objection prays the Court to dismiss this appeal on the ground of incomplete record and that Ground 3 does not emanate from the ruling of the tribunal.
?
On the ground that the record is incomplete, Dr. M. T. Adekilekun learned counsel for the 1st Respondent submitted that the application of the Respondent filed on 23rd May, 2019 which led to the dismissal of the petition is conspicuously missing. In addition, he contended that the 1st Respondent was not invited for the settlement of records contrary to Order 32 Rule 3 of the Federal High Court Rules

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and the Court of Appeal Rules. He argued that without the 1st Respondent’s application in the record of appeal, this Court is faced with incomplete records and the vital document upon which the appeal lies will not be available for proper consideration. He submitted that the effect of an incomplete record transmitted by the Appellant is that such record will confer no jurisdiction on the Court. He relied on: MR. GOODHEAD ABULE & ORS. V. CHIEF IWOWARI & ORS (2018) LPELR – 44184 (CA).

On the second ground of his objection, it was submitted for the 1st Respondent, that a ground of appeal must lay a complaint against the judgment of the Court complained of. He cited: GTB V. INNOSON NIGERIA LTD. (2017) LPELR – 42368 (SC). The learned counsel argued that the decision of the tribunal appealed against did not decide anything about the provisions and application of Section 285 (8) of the 1999 Constitution as amended. He added that neither the Appellants nor the Respondents canvassed argument in respect of Section 285 (8) of the 1999 Constitution before the trial tribunal. He relied on: ADEWUMI V. ADEBEST TELECOMMUNICATIONS NIGERIA LIMITED (2011)

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LPELR ? 9087 (CA).

He finally submitted that ground three of the grounds of appeal is incompetent and issue three distilled from the said ground is also incompetent and urged the Court to so hold.

In the reply brief, Mr. A. l. Ashokpa learned counsel for the Appellant reproduced the provisions of Order 8 of the Court of Appeal Rules 2011 as the order that governs the procedure for compilation of record of appeal to the Court of Appeal. He referred to the decision of this Court in GOODHEAD ABULE V. IWOWARI (2018) LPELR – 44184 (CA); agreeing with the decision that the provisions governing compilation and transmission of records of appeal do not require that all documents and exhibits shall be copied noting particularly Order 8, Rule 8 of the Court of Appeal Rules. He referred to pages 196, 197; and pages 242 to 264 of the records; to submit that by the facts and circumstances of this case, the parts of Exhibit 2 that are relevant to the subject matter of this appeal are the dates on which the petition itself was filed, the various replies of the Respondents, as well as the pre-trial processes of the Appellants, 1st, 2nd and 3rd Respondents as

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filed. He argued that the 1st Respondent did not show in what way, if any, that the non-inclusion of Exhibit 2 affects the proper determination of this appeal more so since the contents of Exhibit 2 were extensively quoted and analysed by the trial tribunal in its ruling which ruling he contended is fully copied into the records.

The learned counsel for the Appellants further contended that the 1st Respondent upon being served with the records of appeal and having realized that it was incomplete, ought to have exercised the option provided by Order 8, Rule 6 of the Court of Appeal Rules, 2011; that is to say that he ought to have compiled and transmitted an additional record of appeal incorporating Exhibit 2. He submitted that the 1st Respondent having failed to comply with Order 8, Rule 6, cannot complain about the non-inclusion of Exhibit 2, he further submitted that Exhibit 2 is not material or vital or relevant to the subject matter of this appeal, and consequently, it is not necessary for the proper understanding of the part or parts of the documents that are so relevant.
?
On the second ground of objection, the Appellants’ counsel referred to

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the 1st Respondent’s argument and the Supreme Court’s decision in the case of GTB V. INNOSON (2017) LPELR ? 42363; to submit that the argument of the 1st Respondent on this point is misconceived. He noted that the law in Nigeria is now well settled that although as a general rule, a fresh issue cannot be raised on appeal without leave of that Court sought and obtained, this position is subject to exceptions. He cited: OGUNBIYI V. MUNIRA (2011) 12 SCNJ 423 AT 435. He rehashed Ground 3 of the Grounds of appeal to say that the fulcrum of the complaint in Ground 3 is that the trial tribunal lacked the jurisdiction to have given the ruling it did on 30th May, 2019 dismissing the petition upon the hearing and determination of the 1st Respondent’s preliminary objection. He therefore urged the Court to overrule the 1st Respondent’s preliminary objection to the competence of Ground 3 of the Grounds of Appeal.

RESOLUTION OF OBJECTION OF 1ST RESPONDENT
The law is established that an appellate Court hears an appeal on the records before it and as such it must ensure that the records are complete as settled by the parties. An appellate Court must refrain

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to hear an appeal on incomplete records except where parties consent for the appeal to be so heard. Notwithstanding the above general stance of the law, an appeal could also be heard when the records are incomplete where the missing part of the record, in the view or opinion of the Court is so clearly immaterial that it cannot affect the decision of the appeal one way or the other. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice. In such situation, other efforts should be made to procure the missing portion of the record. Where all diligent efforts to procure the missing part of the record fails, the Court is enjoined to take the decision of ordering a retrial in the matter. This must be a decision of last resort which must be taken after all efforts at locating the missing portion of the record fails. In that case, although the decision to order a retrial will protract the litigation, it is better for the litigation to protract and do justice at the end of the day than doing injustice by hearing an appeal on incomplete

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records. See: OKOCHI & ORS V. ANIMKWOI & ORS (2003) LPELR ? 2455 (SC); NIGERIA STOCKBROKERS LTD. V. OGBORU (2018) LPELR – 44534 (SC).
I am mindful of the fact that this is an election petition appeal. I cannot agree less with Dr. M. T. Adekilekun, the learned counsel for the 1st Respondent where he cited this Court’s and the apex Court’s decisions in submitting that election petition is sui generis. That election petition is in a class of its own and the governing rules and procedures laid down by the legislatures must be followed to the letter. See: JOSIAH JOHN AJI V. TANIMU MOHAMMED DANLELE & ORS (2015) LPELR- 40362 (CA) where per Onyemenam, JCA stated in relation to the nature of election petition proceedings thus:
“It is now a chorus which I must sing here again, that election matters re sui generis and as such must be conducted strictly in compliance with the laws and rules guiding them. See PDP V. INEC (2014) 7 NWLR (PT. 1437) 525”
Also in OGBORU V. OKOWA (2016) 11 NWLR (PT. 1522) 84 @ 142; where peter-Odili, JSC declared on the nature of election petition while quoting the decision of the Supreme Court in APC V. PDP

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(2015) 15 NWLR (Pt. 1481) 1 at 81 paras 3-E thus:
“l think that I should repeat it that proceedings in election petition are sui generis. They are in a class of their own. They are made to fast- track the hearing of the petition”
The Election Tribunal and Court Practice Directions, 2011 provides for the compilation, service and transmission of the record of proceedings. paragraph 9 of the Practice Directions provides thus:
“The Secretary shall within a period of not less than 10 days of the receipt of the notice of appeal, cause to be compiled and served on all the parties, the record of proceedings.”
?From the above provision of the Practice Direction which must be followed strictly, in election petition matters there is no provision for the Secretary of the Tribunal to invite the parties for the settlement of records. Neither the Appellant nor the Respondent is involved in the settlement of records and the Secretary of the Tribunal has only 10 days to compile the records and serve on the parties. This position of the law has two major implications, the first is that neither of the parties can complain of failure to be invited to settle

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records and secondly, the Appellant can neither be held responsible nor be made to suffer the consequences of failure to compile and transmit complete records. As it is the sole responsibility of the Secretary to the Election Petition Tribunal to compile and transmit record of proceedings, where the said Secretary fails to transmit complete record, any party who contends that material records for the determination of an appeal have been Omitted shall apply to the Court to order the Secretary of the tribunal to compile and transmit additional records since the Practice Direction is silent on that. Also as the election petition matters are time bound, the Court shall exercise its discretion to grant the tribunal secretary short time to transmit additional records where necessary. Order 8 of the Court of Appeal Rules by virtue of Paragraph 9 of the Practice Directions does not apply to the compilation and transmission of record of proceedings in election matters except for areas where the Practice Directions is silent and the Rules applicable.
Irrespective of what I have said above, the principle of law stated by this Court in the case of GOODHEAD ABULE V.IWOWARI (2018) LPELR – 44184 (CA)

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is unassailable. No appellate Court should hear an appeal on incomplete records. Notably, Per Sanga, JCA, also recognized one of the exceptions to this general principle when he held in the above case inter alia as follows “…Thus, in the absence of the above vital documents, the record of appeal is for all intents and purposes, grossly incomplete…” I am of the view that, the position of the law is that, where material or vital part of the records of the trial Court be it documentary or otherwise is missing in the records transmitted to an appellate Court, an appeal cannot be heard on such records even when it is an election matter because the appellate Court will not have complete materials to assist it justly determine the matter. Notably, the provisions governing the compilation and transmission of records of appeal do not require that all the records of the trial Court or tribunal shall be copied in the record of proceedings transmitted to the Appeal Court. See: Order 8, Rule 8 of the Court of Appeal Rules, 2016 and Paragraph 9 of the Election Tribunal and Court Practice Directions, 2011. So neither the Court of Appeal

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Rules nor the Practice Directions require the parties or the Secretary to compile all records of the trial Court or tribunal as records in appeal.
?In this case the document the 1st Respondent complained about is a motion on notice dated 22nd May, 2019 and filed 23rd May, 2019. The said application complained in the main, the Appellants’ failure to apply for the issuance of Pre-hearing Conference Notice as in Form TF 008 within the time mandatorily stipulated by the Electoral Act and therefore vesting no jurisdiction in the Tribunal. From page 196 of the records, it is correct that the application was not copied in full in the records of this appeal in that it is only the face of the motion on notice without the supporting affidavit etc. that was copied. From the records particularly at pages 242 to 246, the motion in question was extensively quoted by the learned trial Judge who set out all the prayers and Grounds upon which the application was brought. I opine that from the facts and circumstances of this case, the aspects of the application that are material to the subject matter of this appeal and for the just determination of this appeal were

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Ostensibly set out by the trial Tribunal. Also I have noted that the date on which the petition itself was filed; the various replies of the Respondents; the pre-trial processes of the Appellants and; 1st, 2nd and 3rd Respondents replies; were copied. This in my view depicts that the vital materials for this Court to determine this appeal are in the records as compiled. The material fact which is the date of the filing of the application for the issuance of Pre-Hearing Conference Notice was neither found missing in the record transmitted by the Secretary to the Tribunal as the trial tribunal clearly stated it nor was the date disputed. This is the main information this Court and in fact the trial tribunal required in determining whether in the eye of the law the Appellant filed a pre hearing notice application. I must note that since the Election Petition and Court Practice Directions is silent on the exclusion of records I shall look into the Court of Appeal Rules particularly Order 8 Rule 8 to ascertain the extent of records the Secretary of the Tribunal was required to transmit in this appeal. From the referred order, the Secretary in compiling the records

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is clearly enjoined to exclude from the records all mere formal documents not relevant to the subject matter of the appeal. He must endeavour to reduce the bulk of the record as far as practicable, ensuring non duplication of documents. He is also encouraged to copy only a part of any lengthy documents which is directly relevant to the subject matter of the appeal and is permitted to omit to copy such part of the document as are irrelevant to the subject matter of the appeal nor necessary for the proper understanding of the part or parts that are so relevant. From the record compiled by the secretary I hold the view that all the material records required by this Court for the just determination of this appeal is in the records.
For this therefore, I hold that although the record of proceedings transmitted by the Secretary to this Court was incomplete but the incompleteness of the records does not rob this Court of its jurisdiction because all the material records required for the just determination of this appeal are present in the records transmitted herein. ?
Of course I cannot go off the Stage on this issue without reiterating the principle of law

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that a party cannot be made to suffer for the mistake, omission, incompetence or inadvertence of the Court Registry. See: WASSAH & ORS. V. KARA & ORS (2014) LPELR – 24212 (SC). The Apex Court unequivocally on this principle stated that:
“Certainly, the error committed by the Registry was an administrative error which was irregular. But the most relevant question one would pose here is:
Should this Court allow an unsuspecting litigant to suffer as a result of the mistake/omissions occasioned by the Registry staff. Certainly, no. I repeat and adopt what Olatuwara, JSC (of blessed memory) said in the case of COOPERATIVE AND COMMERCE BANK NIG. PLC. V. ATTORNEY-GENERAL ANAMBRA STATE & ANOR (1992) 8 NWLR (PT. 261) 528 AT P. 561; that “It will be contrary to all principles to allow litigants to suffer the mistake of the Court Registry. In other words, the Court will not visit the “sin” of the Court’s Registry on a litigant or his counsel, unless, it was shown that the litigant and/ or his counsel was a party thereto or had full knowledge of the “sin” or mistake and encouraged or condoned the said act. Therefore, on the authorities, justice,

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equity, fairness and good conscience must persuade me to hold further that this Appeal deserves to succeed and it in fact does”
See: EDE & ANOR V. MBA & ORS (2011) LPELR – 8234 (SC).
This Court in the case of KANGNAAN V. KANGNAAN (2019) LPELR – 46502 (CA); per Onyemenam, JCA held thus:
“It is a legal abomination to make a litigant suffer for the sin and or mistake of the Court or its Registry. Once a litigant has creditably followed the rules in filing his processes particularly his Originating Process, the error, mistake, inadvertence, negligence, omission etc. of the Court or its Registry cannot be visited on the litigant. See: NNPC V. SAMFADEK & SONS LTD. (2018) LPELR 44980 (SC); IBRAHIM & ORS V. BALA & ANOR (2015) LPELR 25636 (CA); D’ALBERTO V. G. CAPPA PIC (2006) ALL FWLR (PT. 335) 166 C.A; COOPERATIVE AND COMMERCE BANK (NIG) PLC. V. A.G ANAMBRA STATE (1992) 8 NWLR (PT. 261) 528. There is however no absoluteness to this principle. There must be exceptions to this general principle to ensure its good gesture is not overstretched to give rise to miscarriage of justice in the administration of justice. Accordingly, where

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it is shown that a litigant was in collusion with the Court Registry or that the litigant influenced the Court Registry to act in the improper manner, the litigant will share in the consequences of the error he part initiated.”
Where as in this case the Appellant had fulfilled his legal obligation as provided for in Paragraphs 6 and 7 of the Election Tribunal and Court Practice Directions, 2011 and there is nothing suggestive of the fact that he colluded with the Secretary of the Tribunal in any way to transmit incomplete record; the law abhors as inequitable, to allow the Appellant as in this case to suffer for the failure, blunders, omissions of the Court Secretary. By the Practice Directions (supra), the Appellant has no role in the compilation and transmission of the trial Tribunal’s records to this Court and as such, it will be unconscionable and against the interest of Justice to penalize the Appellant for such error, lapse, mistake or omission by the Secretary of the Tribunal most especially when material records for the just determination of the appeal are in the records.
?Where the blunder of the Court’s Registry is capable of robbing the

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Court of its jurisdiction as in this case where the Secretary transferred an incomplete records; the Court will be left with either of two options since the Court cannot certainly hear an appeal on an incomplete records. The Court will first consider whether what the Secretary omitted in the records is material in that the Court cannot justly determine the appeal in view of the missing materials. Where the Court finds that the omissions are material, the Court shall order the Secretary to transmit the omitted part of the records as additional records; but where the Court holds that the omitted part of the records is not material in that the justice of the case would be reached without the omitted records as I have held herein; the appellate Court shall proceed to hear the appeal as its jurisdiction remains intact. I therefore resolve this arm of the objection in favour of the Appellants.

On the second point of objection to the competence of this appeal, the 1st Respondent contends that Issue 3 of the issues for determination distilled from Ground 3 of the Grounds of Appeal did not emanate from the decision of the trial tribunal made on 30th May, 2019. He urged

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that both the ground and issue there from are incompetent and should be struck out. The 1st Respondent cited the supreme Court’s decision in the case of GTB V. INNOSON (2017) LPELR – 42363. The Appellants in a negative reaction to this contended that the argument of the 1st Respondent on this point is misconceived. Mr. A. l. Ashokpa in the Appellant’s reply brief submitted that although as a general rule, a fresh issue cannot be raised on appeal without leave of Court sought and obtained, that this position is subject to exceptions. He cited:OGUNBIYI V. MUNIRA (2011) 12 SCNJ 423. He urged the Court to hold that both Ground 3 and the issue 3 distilled from it are competent.

Where a ground of appeal complains about issue not dealt with in the decision appealed against, such ground of appeal will be declared incompetent and the same liable to be struck out. In GTB V. INNOSON NIGERIA LTD. (2017) LPELR-42368 (SC), the supreme Court held as follows:
“The law has been restated, times without number, by this Court that grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio decidendi of the decision:

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see instance, “SARAKI V. KOTOYE (1992) 11 – 12 SCNJ 26; FRED EGBE V. ALHAJI (1990) 1 NWLR (PT. 128) 546 AT 590. ” per EKO, J.s.c. (P. 12, Paras. C-E)”
It is axiomatic that where a ground of appeal complains about an issue not raised at the trial Court such ground of appeal will be declared incompetent and same is liable to be struck out. See: ADEWUMI V. ADEBEST TELECOMMUNICATIONS NIGERIA LTD. (2011) LPELR-9087 (CA); SARAKI V. KOTOYE (1992) 12 SCNJ 26 AT 43; A.G. KATSINA STATE V. GREENER LANDS LTD. (2005) ALL FWLR (PT. 256) AT 1353; METAL CONSTRUCTION (WA.) LTD. V. MIGLIORE (1990) 1 NWLR 299 AT 299 AT 311; EGBE V. ADEFARASIN (1987) 1 NWLR 1 AT 23; ATOYEBI V. GOVERNOR OYO STATE (1994) 5 SCNJ 12″
Ground three of the Appellants’ grounds of appeal without particulars read thus:
“The Honourable Tribunal erred in law when it made an order in its ruling dated the 30th day Of May, 2019 dismissing petition NO: EPT/NS/GOV/04/2019 between MR. LABARAN MAKU & 1 ORS V. AUDU ALHAJI SULE & 2 ORS at the interlocutory stage”
?The essence of the complaint in Ground 3 from which Issue 3 is raised is that the trial tribunal lacked the jurisdiction to

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have given the ruling it did on 30th May, 2019 dismissing the petition upon the hearing and determination of the 1st Respondent’s preliminary Objection. For ease of reference, I reproduce Issue 3 herein:
“ISSUE 3
“Whether by the provision of Section 285 (8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the ruling of the lower tribunal delivered on 30/5/2019 in EPT/NS/GOV/04/2019 is a nullity?”
Issue 3 without controversy is an issue on the jurisdiction of the trial tribunal. The position on this point is as clear as the light of day in view of the state of authorities. In OWNERS, M.V. GONGOLA HOPE V. S.C. (NIG) LTD (2007) 15 NWLR (PT. 1056) 187 SC. the apex Court held:
“A matter not raised at and decided by the Court of Appeal may not ordinarily be raised in the Supreme Court for the first time without leave unless it is such matter of importance such as the issue of jurisdiction. Thus jurisdictional issue because of the nature of its fundamental importance to the competence of adjudication is one of the very exceptions where fresh issues may be raised without leave. Issue of jurisdiction may be raised at any

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stage of the proceedings even at the Supreme Court and even by the Court suo motu, leave may not be necessary because without the judicial competence to adjudicate everything done is a nullity. ”
I therefore disagree with the 1st Respondent in his contention that even jurisdictional issues require leave. I can say here, that in cases where the fresh issue raised for the first time on appeal touch on jurisdiction, no leave is required. Jurisdiction is too important to be restrained by the requirement of leave, it is the lifeblood of any adjudication and without jurisdiction, no matter how brilliant a trial is, it will be a sheer waste of time and declared a nullity. The case of MKPEN V. IORAKPEN (supra) which says that leave is required before an issue of jurisdiction can be raised is no longer the current position of the apex Court and therefore not relevant. Consequently, issue two on jurisdiction is competent. See also EMESPO J. CONTINENTAL LTD & ANOR V. AUTOMOTOR FRANCE S.A (2016) LPELR -42232 (CA); ADETULA V. AKINYOSOYE (2017) LPELR – 42130 (CA).
In a more recent decision, the Apex Court held, per Adekeye, JSC that:
“Generally

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speaking, a fresh issue cannot be raised on appeal without leave of that Court sought and obtained. An exception to this general rule is where the issue raised is that of jurisdiction. An issue of jurisdiction being fundamental to the case does not require leave to be raised… it can be raised at any stage of the proceedings…” See: OGUNBIYI V. MUNIRA (2011) 12 SCW 423 AT 435 LINES 15-25.
In an election petition matter the Apex Court held:
The question of jurisdiction, I can boldly state, is a question of law which can be mentioned and raised for the first time in Appellate Courts, or even this Court. It is also clear that there is no need for any leave of any Court, sought and obtained before it could be said to have been properly raised. No matter in what manner it was raised, it can lawfully be raised as a fresh issue on appeal”.
See: MEGA PROGRESSIVES PEOPLE PARTY V. INEC (2015) LPELR – 25706 (SC); per MUNTAKA-COOMASSIE, JSC at P.IO, Paras. D-F.
?Apparent from the foregoing therefore is the fact that the Appellants herein can and has competently raised the issue of jurisdiction for the first time on appeal in this Court.

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Consequently, I hold that the issue of jurisdiction raised in Issue 3 from Ground 3 of the Grounds of appeal is competent. I further hold that the objection of the 1st Respondent has no merits, the same is dismissed.

PRELIMINARY OBJECTION OF THE 2ND RESPONDENT.
Mr. Mathew G. Burkaa learned counsel for the 2nd Respondent in their Notice of Preliminary Objection prays that the petition in EPT/NS/GOV/04/2019 filed at the Nasarawa State Governorship Election Tribunal on 31st March, 2019 be dismissed by this Court on the ground that the petition is statute barred, and that the trial tribunal lacked the jurisdiction to entertain the petition.

The 2nd Respondent in arguing its preliminary Objection relied on the provision of Section 285 (5) Of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The 2nd Respondent contends in the main that since the declaration of the result of the election in issue was made on 10th March, 2019, filing of the petition by the Appellants on 31st March, 2019 was so done 22 days after the said declaration. The 2nd Respondent cited a plethora of authorities to buttress its argument.
?
In his reply

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brief, Mr. Ashokpa learned counsel for the Appellants referred to the provisions of Section 285 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He submitted that, in computing when time begins to run for the purpose of filing an election petition, the day of the date on which the declaration was made shall be excluded. In other words, time would begin to run as from the day next following the day on which the result of the election was declared. He noted that in the instant case, the result of the election was declared on 10th March, 2019. Therefore, time began to run for filing the petition on 11th March, 2019 and ended on 31st March, 2019. He argued that the petition in EPT/NS/GOV/04/2019 was filed on the last day provided for doing so. He cited: IYIRHIARO V. USOH (1999) 4 N.W.L.R (PT. 997) 41; EZEIGWE V. NWAWULU (2010) 4 NWLR (PT. 1183) 150; ATTORNEY-GENERAL V. ATIKU ABUBAKAR (2007) 32 NSCQR 1; in urging the Court to dismiss the 2nd Respondent’s Preliminary Objection.

RESOLUTION OF 2ND RESPONDENT’S PRELIMINARY OBJECTION
Counsel on both sides have strenuously contended in favour of their clients. I must commend

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their reasoning, but without rigmarole I will want to note that although the Court of Appeal has two stands on the interpretation of when time begins to run by virtue of Section 285 (5) of the Constitution of the FRN as amended; Our individual opinions or interpretation no matter how logically sound seem not to be relevant in view of stare decisis. I will therefore not run judicial energy in trying to interpret Section 285 (5) (supra) by following the literal words in the unambiguous provisions of the section which provides thus:
Section 285 (5) –
“An election Petition shall be filed within 21 days after the date of the declaration of the result of the election.”
On the State of the law therefore, I will straight away adopt the well-pitched holding of this Court in AKPAN & ANOR V. LUKE & ORS (2015) LPELR – 41651 (CA); wherein at Pp.5-7, paras B-E; per Abubakar Datti Yahaya stated:
“On the fundamental issue, Section 285 (5) of the 1999 Constitution as amended provides: “An election petition shall be filed within 21 days after the date of declaration of result of the election.” It is the word ‘after’ that the appellants have argued

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that this must per force, exclude the day of the declaration of the result, in computing the 21 days. They have placed their fate on the Court of Appeal decisions which authoritatively made that pronouncement – DARIYE V. PDP (SUPRA) AND AROH V. ODEDO (supra). I agree that the cases were decided specifically, on the computation of time enshrined in Section 285 (5) of the 1999 Constitution as amended. I also agree that it was the interpretation of the words used in their plain and ordinary meaning that was employed, and no external aid was sought as such. But that is the end of that era. When the Supreme Court decides an issue and very clearly too, every Court below it must adhere to it. All citizens and the Government of Nigeria are also bound to respect and apply it irrespective of any contrary view that may be nursed. The Tribunal and this Court are therefore constitutionally bound to follow and apply the Supreme Court decision in OKECHUKWU V, INEC (supra) See: DALHATU V. TURAKI (supra) where the Supreme Court held that: “…..This Court is the highest and final Court of Appeal in Nigeria. Its decisions bind every Court, authority or person in Nigeria. By the

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doctrine of stare decisis, the Courts below are bound to follow the decisions of the Supreme Court. The doctrine is a sine qua non for certainty to the practice and application of law…..” The case of OKECHUKWU V. INEC (supra) interpreted Paragraph 6 of the Supreme Court Practice Directions on election appeals concerning the filing of the brief by a respondent, stipulated to be within 5 days of the service of the appellants brief. Nevertheless, the Supreme Court categorically stated that not only in Practice Direction, but in the 1999 Constitution as amended and the peculiarity of our Electoral Act: “Time shall run….from the day of the act and the day shall not be excluded.” So, whether the 1999 Constitution, the Electoral Act 2010 or the Practice Directions state that an event shall be done, “after, or of” or from” in election or election-related matters, the day of the event is to be included, not excluded.”
The above Court of Appeal decision followed the Apex Court’s decision where it was succinctly stated, on the construction of period of time fixed by statute within which an act is to be done that:
“Ordinarily, but for the sui generis

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nature of election matters according to the common construction of the English language, “within any number of days after an act” is to be understood exclusive of the day of the Act. The modern rule in relation to a period of time fixed by statute within which an act is to be done after a specified event is that the day of the event is to be excluded, the next day is that first day of the stipulated period and the time expires on the last day of the period, counting from the course including the first day. However, because of sui generis nature of election and election related matters in which time is of essence, and the stand of the Supreme Court on the interpretation of the Practice Directions vis a vis the interpretation Act, the provisions of the interpretation Act on computation of time shall not apply to the requirement of time by the practice Directions. Time shall run in the peculiarity of the Electoral Act, Practice Directions and the 1999 Constitution of the Federal Republic of Nigeria (as amended), from the day Of the act and the day shall not be excluded.” See: OKECHUKWU V. INEC (2014) 17 NWLR (PT. 1436) PG. 255
?In the instant appeal, it is

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not in dispute that the 3rd Respondent – INEC declared the result of the election on 10th March, 2019. The parties are also at one that the Appellants filed the petition in EPT/NS/GOV/04/2019 on 31st March, 2019. Arithmetically, the 21 days stipulated by Section 285 (5) of the 1999 Constitution including 10th March, would end on 30th March, 2019. The petition having been filed on 31st March, 2019 was filed in 22 days time. It was therefore filed out of time by one day. The law is well settled and which is, when a Statute makes provisions, spelling the procedure for doing an act, the door is closed for adopting a different procedure. OKEREKE Vs. YARADUA (2008) FWLR (PT. 430) 626; OBIH V. MBAKWE (1984) 1 SCNLR 192. For the instant petition to be competent, it ought to have been filed within the stipulated 21 days. Since it was not so filed the same is incompetent being statute-barred and the Tribunal had no jurisdiction to entertain it since a Court is competent to entertain an action and determine it if inter alia:
1. The subject matter is within its jurisdiction and no feature in the case prevents it from exercising the jurisdiction; and
2. The case

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was initiated by the process of law and upon fulfillment of any condition precedent to the exercise of the jurisdiction.
See:MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; OHAKIM V. AGBASO (2010) 19 NWLR (PT. 1226) 172.
Having found that the Petition in EPT/NS/GOV/04/2019 is statute-barred, the right of the Appellants as the Petitioners is extinguished as their action was commenced outside the prescribed 21 days and that incurable defect also affects this appeal which is predicated on the statute-barred Petition at the trial tribunal. The 2nd Respondent’s Preliminary Objection therefore has merits and the same is upheld.

Having held that the petition in EPT/NS/GOV/04/2019 was statute-barred; ordinarily delving into the main appeal will amount to an academic exercise which I have unsuccessfully failed to resist in view of the fact that in the lead judgment my learned Brother I.M.U. SAULAWA, JCA determined the 3 issues raised by the Appellant for which I need to Comment On the Issue No. 3.

ISSUE NO. 3: “Whether, by the provisions of Section 285 (8) of the Constitution of the Federal Republic of Nigeria 1999, as amended, the Honourable lower

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tribunal had the jurisdiction to have dismissed the Petition in EPT/NS/GOV/04/2019 upon an interlocutory application and before the final judgment.”

I adopt the place of the Constitution of the Federal Republic of Nigeria as most aptly set out at page 45 to paragraph 2 of page 46 of the lead judgment. The 3rd issue of the Appellant’s issue dwells on the import or purport of Section 285(8) of the Constitution FRN, Fourth Alteration, No. 21) Act, 2017. The said section provides thus:
Section 258 (8) “Where a preliminary objection Or any other interlocutory issue touching on the jurisdiction of the tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the tribunal or Court shall suspend its ruling and deliver it at the Stage of final judgment”
The above provision is ‘clearly’ clear that every preliminary objection or interlocutory issue on either the jurisdiction of the tribunal or Court in a pre- election matter or on the competence of a petition when raised, shall be taken but its ruling prorogated by the tribunal or Court to be delivered along with the final judgment. The provision is

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unambiguous and does not require any rule of interpretation but to be given its plain and ordinary meaning. The provision of Section 285 (8) being a constitutional provision is superior to any other law that may have connotations to what it has provided for. In PDP V. CPC (2011) 10 SCNJ 37 AT 50, the Supreme Court held:
“It is also settled law that the provisions of the Constitution of the Federal Republic of Nigeria are supreme and have binding force on all authorities and persons throughout the Federal Republic of Nigeria and that any other law which is inconsistent its provision is void to the extent of the inconsistency as the constitutional provision must prevail over such act or law?
?Again in the case of TANKO V. THE STATE (2009) 2 SCNJ (PT. 1) 3, the supreme Court held thus:
“It is by the Constitution that the validity of all laws, rules or enactments for the governance of any part of the country will always be tested. It follows therefore, that all powers, be they legislative, executive or judicial, must ultimately be traced to or predicated on the Constitution for the determination of their validity. All these powers cannot be

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exercised inconsistently With any provisions of the Constitution where any of them is so exercised, it is invalid to the extent of such inconsistency”.
The Court went further to observe that:
“Where the Constitution has set out certain conditions for doing a thing, no legislation of the National Assembly (in the absence of clear amendment of the particular provision of the Constitution so stipulating the aforementioned conditions) or of a State House of Assembly can alter those conditionalities in any way, directly or indirectly, unless the Constitution itself as an attribute of its supremacy, so expressly authorizes?
In the light of the above decisions of the Apex Court, paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended) cannot for all intents and purposes seek, let alone strife for relevance with Section 285 (8) of the 1999 Constitution as amended. In the interpretation of Section 285 (8) (supra); it is anomalous to seek to read extrinsic facts into its provisions so as to accommodate Paragraph 18 of the First Schedule to the Electoral Act. Section 285 (8) (supra); must be given its literal and

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ordinary meaning which is that every ruling on interlocutory issue or preliminary objection touching on the jurisdiction of the tribunal or Court in a pre-election matter or on the competence of the petition itself must be suspended to be delivered along with the final judgment.
I do not see any imagined conflict between Paragraph 18 of the First Schedule to the Electoral Act With Section 285 (8) of the 1999 Constitution, as there is none; and of course if there is any; paragraph 18 of the First Schedule to the Electoral Act will without hesitation bow to Section 285 (8) of the 1999 Constitution. To show there is no conflict, let me reproduce paragraph 18 (1), (3) and (4) of the first schedule to the Electoral Act. It provides thus:
18 (I) “Within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply, as the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 008”
18 (2)…
18 (3) The respondent may bring

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the application in accordance With sub paragraph (I) where the petitioner fails to do so, or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.
18 (4) Where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that Step shall be filed or entertained.
Starting with Paragraph 18 (4) which I opine has been misconstrued, the said paragraph is not applicable to this case. Paragraph 18 (4) is only applicable where both a Petitioner and a Respondent have not complied with paragraph 18 (I) and paragraph 18 (3) respectively; in that, the Petitioner did not apply for the issuance of pre-hearing notice and upon failure to so apply the Respondent did not apply for an order to dismiss the petition. Upon such scenario, paragraph 18 (4) comes into play by vesting jurisdiction on the tribunal or Court to dismiss the petition as abandoned. This is different from this case where the Petitioner failed to apply for the issuance of pre-hearing

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notice and the lit Respondent under paragraph 18 (3) applied to the tribunal to dismiss the petition in which case the tribunal must comply with Section 285 (8) of the Constitution. In the event of paragraph 18 (4), there is neither an interlocutory issue on the jurisdiction of the tribunal or Court raised by a Respondent nor a preliminary objection by a Respondent on the jurisdiction of the tribunal or Court, or any issue raised by a Respondent on the Competence of the petition itself, in which case there will be no ruling of a tribunal that shall be required to be suspended to be delivered with the final judgment.
I maintain that paragraph 18 (3) is also not in conflict with Section 285 (8) of the Constitution in that the paragraph merely mandates the Respondent to apply for the dismissal of a petition where the petitioner fails to apply for the issuance of pre-hearing notice, and nothing more. It is silent as to the time the ruling on the application for dismissal shall be delivered which time frame is provided for by Section 285 (8) of the Constitution to be along with the final judgment. The fuse on the word “shall” used in paragraph 18 of the first schedule to the Electoral Act,

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is uncalled for in this case. Accordingly where as in this case, a Respondent applied for the dismissal of a petition for failure of the Petitioner to apply for the issuance of pre-hearing notice, the tribunal must comply With the provision of Section 285 (8) of the Constitution and so shall after taking the application adjourn the ruling to be delivered along with the final judgment in the petition. By Section 285 (8) of the Constitution, a tribunal has no jurisdiction to deliver its ruling on any application brought pursuant to paragraph 18 (3) at any stage before the final judgment.
I am therefore of the view that where as in this case the tribunal delivered its ruling on the application of the 1st Respondent for the dismissal of the petition for failure of the Petitioners to apply for the issuance of pre-hearing notice, without waiting to deliver same along with the final judgment, the trial Court violated the provisions of Section 285 (8) of the Constitution and acted without jurisdiction.
The purpose of Section 285 (8) of the Constitution was well set out in the lead judgment which I totally agree With but only

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to add that the intent of the legislature to curb the injustice that will be meted on a Petitioner who may have his petition wrongly dismissed at the preliminary stage will be aborted if Section 285 (8) of the Constitution is not given its literal and plain interpretation. The said Section was enacted to ensure that even where a tribunal dismisses a petition in error and the decision is set aside by an appellate Court, by which stage the stipulated time for hearing the petition would have lapsed, the Petitioner will not be shot out from his petition being heard on its merits because the trial tribunal would have as well determined the petition on its merits or at the very worst the appellate Court can be in a position to invoke its powers to step into the shoe of the tribunal to hear the petition as material evidence would be in the records. This purport of the section shall be defeated if a different interpretation is given to paragraph 18 of the first schedule to the Electoral Act vis-a-vis Section 285 (8) of the Constitution.
In all I hold that the tribunal breached Section 285 (8) of the Constitution, and had no jurisdiction to deliver the ruling

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subject of this appeal at the stage when it delivered it. I resolve issue No. 3 in favour of the Appellant.

With this resolution, I set aside the ruling of the Nasarawa State Governorship Election Tribunal sitting in Lafia, delivered on 30th May, 2019 in Petition No. EPT/NS/GOV/04/19. I would have made an order remitting the petition for trial on its merits but for my earlier resolution that the petition was filed outside the time frame provided for by Section 285 (8) of the Constitution as amended.
In the final analysis therefore; APPEAL NO: CA/MK/EP/GOV/10/2019 cannot stand and it is hereby dismissed for arising from a statute-barred election petition in EPT/NS/GOV/04/2019.
I abide by the order as to cost in the lead judgment.

SAIDU TANKO HUSSAINI, J.C.A.: I had the advantage of reading in draft the Cad judgment just delivered by my Lord, I. M. M. SAULAWA J.C.A. and I agree with his line of reasoning and conclusion.
?
This appeal merit an order of dismissal and the trial Tribunal was right when it made that order dismissing the Petition, the same having been abandoned. The Petitioner failed to

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take further step at the close of pleading pleadings filed by the parties on both sides.
From the printed record before us, pleadings in tie Petition under review dosed on the May, 2019 when the 1st Respondent reply was served on the Petitioners. Refer to pages 192 and 193 of the record of appeal. It is at this point in time, that is, on the 9th May, 2019 that the 7 days mentioned in paragraph 18 of the Schedule to the Electoral Act begins to run for the purpose of the application for issuance of Pre-hearing Notice. The duty first lies with the Petitioner to apply for Pre-hearing Notice
At the close of pleadings in a matter like this, where-three (3) respondents are involved as parties to the Petition. Pleadings will not close until the expiration of time limited in paragraph 16 of the 1st schedule to the Electoral Act. See Labour Party v. Yahaya Bello & Ors LPELR-40848 (CA).
As indicated earlier, pleadings in this matter did not close until on the 9th May, 2019 but the Petitioner failed to take steps, in line with the Provisions of Paragraph 18(1) of the Schedule. They appeared to be contended with the application earlier made by them on

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the 6th May, 2019, for the issuance of Pre-hearing Notice but this was before the close of pleadings. Aside from the fact that the petitioners lack vires to make or bring such application, it is an act of disobedience to bring such application, given the Provisions of Paragraph 18(1) of the 1st Schedule to the Electoral Act. It is also overreaching for the Petitioners to bring such application given the fact that the Respondents whose right to fair hearing has been preserved under S. 36(1) of the Constitution of Federal Republic of Nigeria 1999 (as amended) needed to be heard. They reserve the right to be heard by way of their entitlement to file a Reply to the Petition. Anything done to the contrary as in that application made on the May, 2019 for issuance of Pre-hearing Notice, before the close of pleadings, is a violation of that right. See: APGA v. Modestus C. Ohazuluike & Ors. (2011) LPELR-9195 (CA).
Therefore, failure of compliance with Paragraph 18(1) of the 1st Schedule, which is mandatory, meant that he Petition has been abandoned and same liable to be dismissed. See Nwoye v. Ikechukwu & Ors. (2011) LPELR-9195 (CA).
?

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It is for this singular reason on among many others, ably marshaled out in the lead judgment that I too order that this appeal be dismissed.
I so order.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA and I am in agreement with his reasoning and conclusions in dismissing this Appeal as completely lacking in merit.

One of the major issues in contention in this Appeal is whether the Appellants as Petitioners at the trial Tribunal complied with the provisions of paragraph 18(1) of the 1st schedule of the Electoral Act 2010 (as Amended), which mandatorily requires a Petitioner to apply for the issuance of pre-hearing notices at the close of pleadings for the convoking of a pre-trial session as a precursor to the holding of a plenary hearing of an Election Petition. The said paragraph 18(1) for the avoidance of doubt provides as follows;
“Within 7 days after filing and service of the Petitioner’s reply on the Respondent or 7 days after the filing and service of the Respondent reply, as the case may

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be, the Petitioner shall apply for the issuance of pre-hearing Notice as in Form TF 007.”
What usually seem to be at the root of the difficulties in the interpretation of paragraph 18(1) is the thorny question of properly determining at what point in time, it can be said with all amount of certainty that pleadings have actually closed between the parties to the Petition. This issue has been addressed in several decided authorities of this Court and as well as the Apex Court. Learned Counsel to the parties in this Appeal are generally agreed that two scenarios are implicit in the interpretation of paragraph 18(1) interfaced with the provisions of paragraph 16(1) of the schedule of the Electoral Act, 2010 (as Amended).
?The first of these is that the Petitioner must apply for the issuance of pre-hearing Notice within 7 days after filing and service of the reply of the Respondent who has filed a reply to the petition where the Petitioner finds it necessary to file a reply as provided for under paragraph 16(1). Where however, there are more than one Respondents to the Petition as is usually the case in most Election Petitions, the reply envisaged under

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paragraph 16(1) must be filed in respect of each of the Respondents taking into consideration the time frame allocated for doing so under paragraphs 16(1) and 18(1), beginning from the date the reply of the was served on the Petitioner within the time frame stipulated for the filing and exchange of pleadings between the parties.
This position has been made very explicit in the unreported lucid judgment of this Court in the case of HON. BARRISTER HARRISON NWADIKE & ANOR vs. HON. JONES ONYERERI & ORS (2015) CAR, 117 per IGE, JCA who had this to say on the subject;
“The opening of paragraph 16(1) of the 1st schedule states; If a person in his reply to the Election Petition raises new issues of facts in defense of his case which the Petition has not dealt with, the Petitioner shall be entitled to file in the Registry, within five (5) days from the receipt of the Respondent’s reply, a Petitioner’s reply in answer to new issues of fact…”
The learned Justice went ahead and threw more light on the situation thus;
“This by Literal Rule of interpretation means that where you have more than a Respondent in a Petition, pleadings will not

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close until the expiration of the time limited in those paragraphs of the schedule particularly paragraph 16 thereof. In effect the Petitioner must wait for the time frame or period or time allocated to the parties to file replies before the Petitioner can?take-out Form TF007 within 7 days of the service of the Respondent’s reply, filed within the time permitted under paragraph 12(1) of the 1st schedule, on the Appellant. Paragraph 16(1) applies mutatis mutandis to each and every Respondents to this Petition otherwise it will be a breach of Section 36(1) of the 1999 Constitution of Nigeria as Amended on the right of fair hearing to assume that the proceedings in this Petition is between Petitioners/ Appellants and the 1st Respondent. That will be doing violence to the provisions of Section 137 of the Electoral Act, 2010 as Amended and it will defeat the manifest intention of the legislators”.
?The second of the two scenarios still relates once again, to where there are yet more than one Respondent to the Petition, but except this time, it relates to the situation where thee Petitioner does not want to file a Reply to the Respondents’ Reply, The

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Petitioner here is entitled to apply for the issuance of pre-hearing notice once the time for each of the Respondents to file their replies has lapsed by effluxion of time prescribed for the filing of replies to the Petition. The Petitioner will be expected to apply forthwith for the issuance of pre-hearing notice within 7 days after the five (5) days prescribed under paragraph 16(1) for the Petitioner to file such a reply. It is important to note that the Petitioner does not have to wait for all or any indolent Respondent before he could apply for the issuance of pre-hearing notice within 7 days after the five (5) days prescribed under paragraph 16(1) for the Petitioner to file such a reply. It is important to note that the Petitioner does not have to wait for all or any indolent Respondent before he could apply for the issuance of pre-hearing notice once it is time to do so, more so when pleadings would be deemed to have closed in such circumstance. These explanations and even more, shedding light on these provisions of the law have received judicial interpretations in a legion of decided cases, some of which are;
1. CHIEF OKEY IKORO vs. OSITA IZUNASO & ORS (2009) 4 NWLR (PT. 1130) 45

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2. CALLISTUS UDOCHUKWU AZUDIBIA VS INEC & ORS  (2008) LPELR-3836 (CA).
In taking a rather closer look at the issues raised in this Appeal, it is quick to notice the following facts;
1. The Petition in this matter was filed on the 31-3-2019 and was served on the 1st Respondent by Order of substituted service on the 18-4-2019. The 2nd and 3rd Respondents were served with the Petition on the 9-4-2019 and 10-4-2019 respectively. All the Respondents, namely: the 1st, 2nd and 3rd filed their replies to the Petition on the 7-5-2019, 28-4-2019 and 27-4-2019 respectively and in that order. The Petitioner/Appellant however, deemed it not to file any replies to the 1st, 2nd and 3rd Respondents’ replies.
2. On the 6-5-2019, the Appellants as Petitioners, filed in the trial Tribunal, an application for the convoking of a pre-hearing conference (Form TF 007), and which was duly served on the 1st, 2nd and 3rd Respondents.
?3. On the 23-5-2019, the 1st Respondent filed a motion on notice dated the 22-5-2019 seeking the dismissal of the Petition on the ground that the Petitioner failed to apply for

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the issuance of a Pre-hearing notice within the time mandatorily Stipulated by the Electoral Act and therefore vesting no jurisdiction on the Tribunal.
Arising from the foregoing, what appears to be in controversy between the parties is the fact that the Appellant as Petitioner filed its application for the issuance of pre-hearing notice on the 6-5-2019, which the Respondents claim was filed rather prematurely.
The contention of the Appellant herein is that the application for pre-hearing notice filed on the 6-5-2019 was not prematurely filed and learned Appellant’s Counsel relied on a number of authorities, some of which are SALVADOR vs. INEC (2011) ASIKPO ETUK (2011) LPELR-4050(CA). It was further contended that the Respondent’s having taken further steps including filing and serving processes in respect of the pre-hearing conference, the trial Tribunal ought to, on account of that held differently.
?By choosing to file its application prematurely for the issuance of pre-hearing notice as prescribed by Paragraph 18(1) of the 1st schedule to the Electoral Act, 2010 (as amended), the Appellant had unwittingly and by his own showing breached the

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rights of his opponents to fair hearing as guaranteed under Section 36(1) of the Constitution of Nigeria, 1999 as amended. This Court per KEKERE- EKUN, JCA (as he then was) in the case of CALLISTUS UDOCHUKWU AZUDIBIA vs. INEC & ORS (Supra) was rather clear on the question of filing prematurely and in violation of paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 as amended. The noble Lord was of the view that a process filed prematurely is a mere piece of paper without a legal consequence. According to the noble Lord, a condition precedent to the filing of an application for the issuance of pre-hearing notice is that pleadings must have closed or are deemed to have closed and that until the happening of the condition precedent there can be no competent application for pre-hearing notice before the Tribunal.
I am therefore in agreement with my learned Brother, IBRAHIM M. M. SAULAWA, JCA in resolving that the lower Tribunal was right in dismissing the instant petition as an abandoned petition pursuant to paragraph 18(1) of the 1st Schedule of the Electoral Act, 2010.
?
My learned Brother has taken the pains to carefully discuss the

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other issues raised in this Appeal, one of which borders on the applicability of Section 285 (8) of the Constitution of Nigeria, 1999 as amended and altered by the 4th Alteration Act no 21 of 2017. I hereby adopt the reasoning and conclusions in the lead judgment on this and all other issues as mine and also disallow the Appeal, while abiding by the consequential orders made thereto in the lead judgment.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the Opportunity Of reading in advance, the well-considered lead judgment Of my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA just delivered. I agree with the reasoning and conclusion contained therein.

Considering the sensitivity that inures the specie of the instant appeal, I have painstakingly read through the pages of the record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered. From the facts of the case that culminated into the instant appeal, it is

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undoubtedly clear that the Appellants applied for a pre-hearing notice before the expiration of the time stipulated for
the 1st Respondent to file his Reply to the petition. As gleaned from the records transmitted to this Honourable Court, it is evident that the 1st Respondent?s Reply to the petition was filed on the 7th May, 2019 and same was duly served on the Petitioner on the 9th May, 2019. Therefore, the other Respondents, having filed their Replies earlier, pleadings was deemed closed after the 1st Respondent filed his own Reply to the Petition on the 9th May, 2019.
The 1st Appellant by virtue of the sacrosanct provision of Section 18(1) of the Electoral Act, 2010 (as amended 2015) is procedurally mandated to apply for a pre-hearing notice as in form TF008 after the close of pleadings. However, the Appellant chose to apply for the requisite pre-hearing notice on the 6th of May, 2019 which was a day before the Respondent filed his Reply to the Petition, The question ask is what is the effect of a pre-hearing notice filed before the close of pleading in an election petition?
?Learned counsel to the Appellants made submissions to the

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effect that the Appellants were only being diligent in the prosecution of the petition when they applied for the pre-hearing notice earlier before the dose of pleadings. While I am not oblivious of the fact that a suit of this nature is time bound, I am of the considered opinion that same also requires strict procedural adherence. The effect of filing a pre-hearing notice before-a party files his reply to the petition when the time afforded the said party had not expired is tantamount to nothing but shutting the said party out, thereby denying him of the fundamental right to fair hearing that inures him under the relevant provisions of our Grundnorm.
I hold further on this issue that this Court has held in an legion of judicial authorities most of which have been abundantly espoused in the lead judgment of my learned brother that an application for a prehearing notice before the close of pleadings is pre-mature and same cannot under any guise be accorded any legal credence. See AZUDIBIA V INEC (2008) LPELR – 3836 (CA), Per kereke-Ekun JCA (as she then was).

The Appellants’ counsel also made heavy weather on the fact the Tribunal’s ruling

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dismissing the petition at an interlocutory stage is a violation of Section 285(8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). I wish to reiterate that the position of the Constitution of the Federal Republic of Nigeria in the hierarchy of laws in this Sovereign Nation of ours is undisputable and the law is inarguably trite that the Constitution is supreme over every other law without an exception, See KAYILI V YILBUK & ORS (2015) LPELR-24323 (SC).
For sake of clarity, permit me to reproduce Section 285(8) of the Constitution (supra) to wit:
“285(8) Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the tribunal or Court shall suspend its ruling and deliver it at the stage of the final judgment”
Relying on the above, the learned counsel to the Appellants has moved this Court to declare void the provisions of Section 18 (4) of the Electoral Act (supra) for being inconsistent with Section 285(8) of the Constitution (supra), to put issues in perspective,

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crave the indulgence of my noble Lords to also reproduce the said Section 18 (4) of the Electoral Act (supra) to wit:
“Where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained”
It is not a fact in issue that that the Appellants applied for premature pre-hearing notice and failed, refused or neglected to apply for the said pre-hearing notice upon the close of pleadings as mandatorily required. I am inclined to align myself with the position of the Respondents that the jurisdiction of the tribunal to entertain petition was not challenged because it has the requisite jurisdiction to entertain the petition, but that the tribunal was only called upon in the proceeding to determine whether the Appellants had refused to take a fundamental procedural step which has the capacity of affecting the further cause to be taken in the proceedings in question.
I consider the Appellants’ reliance on Section 285(8) of the Constitution (supra) and his prayer at

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paragraph 9.00 of his Brief for an order of this Honourable Court setting aside the ruling of the Tribunal and to remit the petition for hearing on the merit before another panel of the tribunal as a surreptitious attempt to have a second bite at the cherry, remedy the wrong of abandoning his petition and invariable elongate the time stipulated for the hearing and determination of petition by a tribunal.
For these reasons and of course, for the detailed reasons adumbrated in the lead judgment, I too, therefore, hold that this appeal is unmeritorious and same is accordingly dismissed. Consequently, the ruling of the Nasarawa State Governorship Election Petition Tribunal sitting at Lafia, delivered on 30th May, 2019 in petition No. EPT/NS/GOV/04/2019 is hereby affirmed.
I abide myself by the consequential order as to cost.

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Appearances:

C.V. CHIA ESQ. with him,T.T. CHAHUR ESQ., A.I. ASHOKPA ESQ. and J.V. TSER ESQFor Appellant(s)

DR. M.T. ADEKILEKUN ESQ., with him, SHAREEF MOHAMMED ESQ., A. ABDULKAREEM ESQ., B.L. IBRAHIM ESQ., IDRIS SULEIMAN ESQ., A.A. AHMED ESQ., OMOBOLAPE ALABI ESQ. FOR 1ST RESPONDENT.
MATTHEW G. BURKAA ESQ., with him, ABDULKADIR MUSA ESQ. FOR 2ND RESPONDENT.
SURAJ SA?EDA SAN with him, I.M. DIKKO SAN, A.S. GAYAM ESQ. AND E.C. AGOH ESQ. FOR 3RD RESPONDENT.For Respondent(s)

 

Appearances

C.V. CHIA ESQ. with him,T.T. CHAHUR ESQ., A.I. ASHOKPA ESQ. and J.V. TSER ESQFor Appellant

 

AND

DR. M.T. ADEKILEKUN ESQ., with him, SHAREEF MOHAMMED ESQ., A. ABDULKAREEM ESQ., B.L. IBRAHIM ESQ., IDRIS SULEIMAN ESQ., A.A. AHMED ESQ., OMOBOLAPE ALABI ESQ. FOR 1ST RESPONDENT.
MATTHEW G. BURKAA ESQ., with him, ABDULKADIR MUSA ESQ. FOR 2ND RESPONDENT.
SURAJ SA’EDA SAN with him, I.M. DIKKO SAN, A.S. GAYAM ESQ. AND E.C. AGOH ESQ. FOR 3RD RESPONDENT.For Respondent