MRS OLABISI AYODELE SALIS & ANOR v. BAREEHU OLUGBENGA ASHAFA & ORS (2015)

MRS OLABISI AYODELE SALIS & ANOR v. BAREEHU OLUGBENGA ASHAFA & ORS

(2015)LCN/7954(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of September, 2015

CA/L/EP/SN/799/15

RATIO

COURT: JURISDICTION; WHEN CAN THE OBJECTION TO THE COMPETENCE OF A COURT OR TRIBUNAL BE RAISED

An objection to the competence of a court or Tribunal may be raised at any stage of a case, whether at the trial or before the hearing of a matter or even on appeal. However, it must be noted that because jurisdiction is a threshold issue in any adjudication, an objection to the jurisdiction of a court to entertain a claim is fundamental. For if there is no jurisdiction, the proceedings thereafter is a nullity, however well conducted and even if the parties submit to jurisdiction. A court is entitled to and bound to put an end to its proceedings if at any stage and by any means it becomes manifest that it lacked jurisdiction to entertain the proceedings. It can do so suo motu or on its initiative. The Appellants could raise the issue of jurisdiction of the court as they have done in their Briefs of argument as indicated supra. The challenge was not invalid or incompetent. Issues 7 and 8 shall be considered. The challenge raised in this instance is, however raised ex-post facto, i.e. after the exercise of jurisdiction challenged. How may such a challenge be exercised in order to be reckoned by a Court of Appeal and for a success?
I shall answer that later. In Ogige v. Obiyan (1997) 10 NWLR (Pt.524) 178 it was held that the issue of jurisdiction can be raised at any stage of the proceedings up to the final determination of an appeal by the Highest court of the land. The Judge can also raise same suo motu at any stage. This is so because it is an issue which goes to the root of the matter as to sustain or nullify the order or decision made see Obikoya v.?Registrar of companies (1975) 4sc 31; Pan Asian Co. Ltd v. NICON (1982) 9 sc1; Tukur v. Govt of Gongola State (1989) 4 NWLR (Pt.117) It is sometimes said, that if the issue of jurisdiction is evident, it is better raised timorously by the aggrieved party and/or the court and at the earliest opportunity. See Oloriode v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 2 NWLR (Pt 2) 1995; Bronik Motors Ltd V. Wema bank Ltd (1983) 1 SCNLR 296. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

COURT: JURISDICTION; THE EFFECT OF THE LACK OF JURISDICTION BY THE COURT IN A CASE

In Adeniyi v. Oroja (1992) 4 NWLR (Pt. 235) 322, the Supreme court, per Niki Tobi, JSC stated thus:-
“The filing of an action in a court of law pre supposes that the court has jurisdiction but once it is shown that the court had no jurisdiction, the foundation of the case will not only shake but will also crash or crumble. The parties cannot be heard on the merit of the matter. That is the end of the litigation unless the action, if competent, is filed in a court of competent jurisdiction in which case it is resuscitated denovo.” If resuscitated denovo can a successful Appellant enjoy a waiver from a constitutional or statutory limitation of time to his right of prosecuting his claim as limited by law as in election Petition and Appeals limited to 180 days and 60 days respectively in circumstances where a trial was embarked upon without jurisdiction? Can such a party be deemed not to be such a party disadvantaged and not in the contemplation of the constitutional limitation? Moot as it is, I shall proceed to the consideration of the Appeals. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

ELECTION PETITION: TIME LIMITATION IN ELECTION MATTERS; THE EFFECT OF THE FAILURE TO ABIDE BY THE TIME PROTOCOL IN ELECTION PETITIONS

In Omisore v. Aregbesola SC/204/15 unreported at page 54 of the Judgment, Nweze, JSC reiterated thus:-
“My Lords, in view of the earlier magisterial position of this court on the in applicability of the interpretation Act on the computation of time in election matters, Okechukwu V. INEC and Ors (2014) 9 SCNJ 47, 78 per Ariwoola, JSC, this Issue need not delay us any further in this Judgment. From a perusal of paragraphs 4.97 – 4.115, pages 34 – 37 of the appellant’s brief, it is not in doubt that the main plank of their contention is that, in the interpretation of the time frame stipulated in paragraph 16 (1) and (2) of the 1st schedule to the Electoral Act, 2010 (as amended), the relevant instrument to be considered is Section 15 (4) and (5) of the interpretation Act, Cap. 123, LFN, 2004. That done, this court could hold that the Appellant’s Reply was filed within time. The simple answer is that the said Act is inapplicable to this matter, being an election matter, Okechukwu V. Inec and others (supra). Thus, as his reply was not filed in strict fidelity to the time protocol ordained in paragraph 16 (supra) the Lower Court, rightly struck it out. This must be so because the time lines therein are sacrosanct due to the peculiar nature of election matters which are time bound. Buhari v. Inec and Ors (2008) 19 NWLR (Pt. 1120) 246. Strictly speaking, this sort of invidious provision should not feature in a user – friendly judicial process. However, in the peculiar circumstances of the urgency involved in the determination of such electoral disputes, the much this court can do is to wink at the tyranny of deadlines entrenched therein. In effect any process filed out of time is incompetent and liable to be struck out?..” “This stand of the apex court has been considered and applied by this court in Dr. (sir) Uche Ezeliora & Anor v. Tony one week Mvonagor & Ors (2011) LPELR 9208 CA whereat Loluko – Sodipe, JCA at the Enugu Judicial Division while considering the provisions of paragraph 16 (1) of the first schedule to the Electoral Act, 2010 (as amended) on the computation of time held thus: In Ajayi V. Nomiye (2012) 7 NWLR Pt 1300 court also held thus:
“Election cases belong to a class by themselves. They are by their nature sui generis and parties must carefully peruse the rules governing same. Failure to abide by the Rules would be fatal to the petition.” per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

APPEAL: CROSS-APPEAL; WHETHER AN APPELLANT CAN CROSS-APPEAL

An appeal is a signification of a dissatisfaction by an un successful party in a litigation, be he a principal party or an interested party who appeals with leave of court granted to him. This court had in its decision in Appeal No. CA/L/EP/GOV./751/15 Between Dapo Akinwumi Ambode v. Mr. Agbaje & 4 Ors decided on 26th august 2015, observed thus, per Saidu Tanko Hussaini, JCA,
“The second point I want to make flows from the first and that is, the Appellant is the person or party in whose favour the Ruling was delivered whose motion or preliminary objection was upheld and the petition against him (among others) was struck out by the Tribunal?”
Can he appeal? Yes, he may cross-appeal, but I would rather think a Respondent’s Notice to vary the judgment upon the ground of the date of the issuance of the pre-hearing application complained of would have sufficed. The Respondent’s Notice filed was withdrawn, apparently because it was not upon this ground. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

JUSTICES

ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

Between

1. MRS OLABISI AYODELE SALIS
2. PEOPLES DEMOCRATIC PARTY Appellant(s)

AND

1. BAREEHU OLUGBENGA ASHAFA
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National and State House of Assembly Election Petitions Tribunal (panel 2) holden at Ikeja, Lagos State, delivered on Monday the 27th day of July 2015, where at it dismissed the petition No. NA/LEGH/EPT/L/15/15 of the petitioners/Appellants’ on the ground that the petitioners’ application for the issuance of a pre-hearing Notice Form TF007 was invalid for non compliance with paragraph 18 (1) of the First schedule to the Electoral Act (2010) as amended. Precusorily, it needs to be stated that at the conduct of the election to the membership of the senate of the National Assembly of the Federal Republic of Nigeria conducted on the 28th March, 2015, by the 3rd Respondent, the first Appellant was the candidate sponsored by the 2nd appellant (the People’s Democratic Party i.e. (PDP) and contested against other candidates inclusive of the 1st Respondent, the candidate of the ALL Progressive Congress (APC). At the conclusion thereof the 1st Respondent was declared and returned as the duly elected Senator for the Lagos East Senatorial District and returned as

such.

Dissatisfied with the return as made, the said petition that was dismissed was lodged. It was a petition spanning 46 pages and as contained on pages 1 – 46 of the record of Appeal transmitted on 7 – 8 – 15.

Amongst the processes filed at the trial Tribunal were the 1st Respondent’s Reply and the 2nd Respondent’s reply from and by each of whence points of preliminary objection as contained on pages 53 – 136 and 148 – 163 respectively were taken against the petition.

The narration of the facts and the circumstances of this appeal are clearly stated and comprehensively too, by the Appellants in paragraphs 0.1 to 0.14 of their un paginated Brief of argument.

?The vitriotic combat on the dates of filing the necessary processes and consequently, the conflicting dates given for the making or bringing of the relevant application for the ignition of the issuance of the pre-hearing Notice was the reason that provided this appeal and upon 9 Grounds of appeal. They appear gargantuan and splitting. I need not reproduce them as they are eloquently laced/spread on pages 625 to 634 of the record of appeal.

?The parties, in accordance with the practice of this court filed their

respective Briefs of Argument which they adopted where and when they remained extant and valid, otherwise they were withdrawn and struck out and remain unhelpful and un availing and unworthy of any resort thereto by this court.

I shall get to that later, on their part, the Appellants’ Brief of Argument dated and filed on 14 – 8 – 15 was prepared by Samson Ozah ESQ. The said Appellants also filed the Appellants’ Reply Brief of Argument dated and filed on 26 – 8 – 15 against the 1st and 2nd Respondents’ Brief of Argument and separately.

The 1st Respondent’s Brief of argument which was settled by Kemi Penheiro (SAN) and dated on 21 – 8 – 15 was filed on 24-08-15 and out of time as it was filed well over 5 days limited for the filing thereof as required by paragraph 12 of the Election Tribunal and Court Practice Directions, 2011 which provides as follows:-
“The Respondent shall file in the court his own Brief of Argument within 5 days of service of the Appellant’s Brief paragraphs 11 (a) to (d) above shall apply mutatis mutandis to the Respondent’s Brief of Argument.”
?
?The learned counsel for the 1st Respondent, Mr. Kamaru ESQ. had, as ethically expected conceded at

the trial that it was so filed out of time. This he had as it became obvious to him that service of the Appellants’ Brief of Argument on his client on a weekend or Sunday did not preclude the commencement of the computation of time required for response by his client in disregard of that seemingly inconvenient date.

There is therefore no 1st Respondent’s Brief of argument de jure, in this appeal. In this wise, therefore, all references and arguments by the Appellants to the defacto but de jure non existent 1st Respondent’s Brief of argument go to no issue and will be disregarded, as one cannot flog a dead horse.On the part of the 2nd Respondent, his Brief of Argument was settled by R. O. Adegoke, ESQ and is dated and filed on the 21st of August, 2015.

The 3rd Respondent’s Brief of Argument, prepared by Oluwaseun Olusiyi ESQ is dated 24th August, and filed on the same date.

On the other hand, the 2nd Respondent, herein the All Progressive Congress (APC) also dissatisfied with portions of the said Judgment also lodged a cross appeal vide a Notice of Cross Appeal dated and filed on the 11th day of August 2015.

?The said Cross Appeal is founded and predicated upon

three (3) grounds of Appeal as contained in the supplementary record of Appeal at pages 33 – 37 thereof.

Cross-Appellant’s Brief of Argument was filed on 21 – 8 – 15. It is dated on same date and settled by R. A. O. Adegoke, ESQ. its learned counsel. The 1st and 2nd Cross Respondents filed no Brief of Arguments as their motions for extension of time to file their Briefs of Argument were withdrawn and struck out at the hearing of the appeal.

The 3rd and the 4th Cross-Respondents did not oppose the Cross-Appeal and filed no Briefs of Argument.

I shall quickly set sail, as the appeal is within a narrow compass; so also the Cross Appeal.

THE MAIN APPEAL
APPEAL NO: CA/L/EP/SN/799/15
The Appellant in the main appeal formulated ten (10) Issues for the determination of this court. The 10th Issue is an excess burden and excess baggage on the 9 grounds of appeal and may overwhelm it. Whether it will survive shall be seen later. Suffice it to say that the Appellants’ 10 Issues are as follows:-
1. Whether the Tribunal was justified in holding that the provisions of Order 48 Rule 1 of the Federal High Court (Civil Procedure Rules) 2009 were in applicable as the procedure for the

computation of time under paragraph 18 (1) of the First schedule to the Electoral Act, 2010 (as amended). Distilled from Ground one of the Notice of Appeal.
2. Whether the Trial Tribunal was right in holding that there was no lacuna in the procedure for computation of time under paragraph 18 (1) of the First Schedule to the Electoral Act 2010 (as amended) without applying such procedure for the computation of time. Distilled from ground two of the Notice of Appeal.
3. Whether the Trial Tribunal was right in placing reliance on Omisore v. Aregbesola – Suit No. Sc/204/2015 as providing the procedure for computation of time under paragraphs 16 and 18 of the First Schedule to the Electoral Act 2010 (as amended). Distilled from ground three of the Notice of Appeal.
?4. Whether the Trial Tribunal was right after acknowledging the administrative mistake and lapse of the Registry over the obvious and irreconcilable inconsistencies in the dates of the issuance of Forms 007 and 008 and acknowledgement of the Application letter of the Petitioner’s Counsel for the issuance of the Pre-hearing Notice Forms 007 and 008 still went ahead to hold that 26th May, 2015 was the date of

the application for the issuance of the Pre-hearing Forms 007 and 008 despite the said letter being dated 20th May, 2015 and the overriding need to do substantial justice in Election Petition matters. Distilled from ground four of the Notice of Appeal.
5. Whether the procedure the Trial Tribunal used in the computation of time under paragraph 16 (1) of the First Schedule to the Electoral Act, 2010 as amended was right in holding that the Petitioners’ Reply to the 2nd Respondent was filed out of time. Distilled from ground five of the Notice of Appeal.
6. Whether the trial Tribunal was in breach of paragraph 18 (3) of the First Schedule to the Electoral Act, 2010 (as amended) even when the overriding word used is “shall”. Distilled from ground six of the Notice of Appeal.
7. Whether the Trial Tribunal was incompetent to exercise jurisdiction over the Petition. Distilled from ground seven of the Notice of Appeal.
8. Whether the ruling of the Trial Tribunal delivered on the 27th July, 2015 after the Trial Tribunal was dissolved on the 24th July, 2015 was competent. Distilled from ground eight of the Notice of Appeal.
?9. Whether the rule of natural justice was not

breached by the Trial Tribunal where the Chairman of the Trial Tribunal was a member of the 2nd Respondent party at the time of her appointment. Distilled from ground nine of the Notice of Appeal.
10. Whether this Honourable Court is empowered to hear the Petition and grant the reliefs being sought by the Petitioners.
?
On its part, the 2nd respondent formulated 5 issues for determination to wit:
1. Whether the Tribunal was right in its decision when it held that the Petitions’ Reply to the 2nd Respondent’s Reply filed on the 20th day of May, 2015 was filed out of time (Grounds 5 of the Notice of Appeal).
2. Whether the Tribunal was right in dismissing the petition as abandoned on the ground that the Appellant’s application for the issuance of pre-hearing notice was not made within the time stipulated by law. (Grounds 1, 2 and 3 of the Notice of Appeal).
?3. Whether there was any fact before the Tribunal to show that the Appellants’ application for the issuance of pre-hearing session was made on the 20th day of May, 2015, thereby preceding the Appellants’ self-issued pre-hearing notice in Form TF 007 and pre-hearing information sheet in Form 008 dated the 26th day of

May, 2015, (Grounds 4 of the Notice of Appeal).
4. Whether the Tribunal ignored the provision of Paragraph 18(3) of the First Schedule to the Electoral Act, 2010 (as amended) with regard to the returnable date of the Motion referred to therein. (Grounds 6 of the Notice of Appeal)
5. Whether the ruling of the Tribunal dated the 27th day of July, 2015 was competent (Grounds 7, 8 and 9 of the Notice of Appeal).
?
That 3rd Respondent formulated 5 Issues and raised a point of preliminary issue in the like manner as the 2nd Respondent had done on the competence of the 10th Issue and its ground of appeal as not arising from the Judgment and thus incompetent. However both arguments were withdrawn and shall be discountenanced as they are not based on any Notice of preliminary objection duly filed and served in accordance with the Rules of this court on the making and raising of preliminary objections or their filing.

There are no objections, therefore. The 3rd Respondent’s Issues are as follows:
1. Whether the Panel was competent to hear determine the motion and to deliver its ruling on the 27th of July, 2015 (Grounds 7, 8 and 9)
?2. Whether the Tribunal was right to hold that

the petitioners’ are out of time to file their reply to the respondent’s reply, (Grounds 5)
3. Whether the Tribunal was right to hold that there is no lacuna in paragraph 18(1) of the Electoral Act, 2015 with respect to the computation of time within which the Petitioners must apply for the issuance of pre-hearing notice and failure of the petitioners’ to file within seven days (inclusive of the date of service) renders the petition abandoned and liable to be dismissed. (1, 2 and 3)
4. Whether there was any evidence before the Tribunal that could aid the tribunal in drawing conclusion that the Appellants’ letter dated 20th day of May, 2015 was received by the tribunal before the 26th of May, 2015.
5. Whether the tribunal ignored the provisions of paragraph 18 (3) of the first schedule to the Electoral Act, 2010 (as amended) with respect to the returnable date of the motion. (Ground 6)
?I have read the respective Briefs of Argument filed and I do think that although seeming objections have been discountenanced by this court because of the absence or non filing of Notice(s) and/or in-appropriate initiation, those raised by the 2nd and 3rd Respondents against the

issues 7 and 8 of the Appellants and the prayer therein is apposite and may be raised as they are objections that border on the jurisdiction of the trial Tribunal. By the 2nd Respondent’s Brief it is raised as Issue Number 5. It asks the question whether the Ruling of the Tribunal dated 27th day of July, 2015 was competent (Ground 7, 8 and 9 of the Notice of Appeal). The 3rd Respondent on his own issue No 3.1 aptly puts the question thus-

Whether the panel was competent to hear and determine the motion and to deliver its Ruling on the 27th day of July, 2015 (Grounds 7, 8 and 9) The respective grounds are each similar and same in meaning and effect. They all question the jurisdiction of the trial Tribunal. An objection to the competence of a court or Tribunal may be raised at any stage of a case, whether at the trial or before the hearing of a matter or even on appeal.

?However, it must be noted that because jurisdiction is a threshold issue in any adjudication, an objection to the jurisdiction of a court to entertain a claim is fundamental. For if there is no jurisdiction, the proceedings thereafter is a nullity, however well conducted and even if the parties

submit to jurisdiction. A court is entitled to and bound to put an end to its proceedings if at any stage and by any means it becomes manifest that it lacked jurisdiction to entertain the proceedings. It can do so suo motu or on its initiative.

The Appellants could raise the issue of jurisdiction of the court as they have done in their Briefs of argument as indicated supra. The challenge was not invalid or incompetent. Issues 7 and 8 shall be considered. The challenge raised in this instance is, however raised ex-post facto, i.e. after the exercise of jurisdiction challenged.

How may such a challenge be exercised in order to be reckoned by a Court of Appeal and for a success?
I shall answer that later.

In Ogige v. Obiyan (1997) 10 NWLR (Pt.524) 178 it was held that the issue of jurisdiction can be raised at any stage of the proceedings up to the final determination of an appeal by the Highest court of the land. The Judge can also raise same suo motu at any stage. This is so because it is an issue which goes to the root of the matter as to sustain or nullify the order or decision made see Obikoya v.?Registrar of companies (1975) 4sc 31; Pan Asian Co. Ltd v.

NICON (1982) 9 sc1; Tukur v. Govt of Gongola State (1989) 4 NWLR (Pt.117)

It is sometimes said, that if the issue of jurisdiction is evident, it is better raised timorously by the aggrieved party and/or the court and at the earliest opportunity. See Oloriode v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 2 NWLR (Pt 2) 1995;
Bronik Motors Ltd V. Wema bank Ltd (1983) 1 SCNLR 296.

In this matter the Appellants surprisingly did not deem it fit to raise and argue their challenge to the jurisdiction of the Trial Tribunal; they filed no motion with affidavit deposing to facts and annexing documents in support where necessary in proof of allegation of want of jurisdiction.

In the circumstance, nothing has been laid before this court from whence inferences may be drawn or conclusion made against the want of jurisdiction of the Tribunal.

?The learned counsel for the 2nd Respondent had argued vide his Issue 5 for his client that it was not established before the trial court that it had no jurisdiction, that the records did not show that it was so raised. That it has not been so shown before this court either; learned counsel contended that the brilliant submission of

counsel does not take the place of legal proof. He relies on Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330 @ 361 par G – H per Rhodes Vivour, JSC.

I agree with the learned counsel on this score, also. While by Section 122 (J) of the Evidence Act 2011, this court may take Judicial Notice of “the names of the members and officers of the court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all legal practitioners and other persons authorised by law to appear or act before it, this cannot be done here to ascertain that the learned Chairman of the trial Tribunal was a Judge of the Customary Court and not a High court Judge. No book or document necessary has been laid before this court. It was also not led before the trial Tribunal.

The challenge cannot be established before this court on the basis of Judicial Notice either, as Section 122 of the Evidence Act 2011 does not confer on a court the power to take Judicial Notice of Judges and their status or membership of particular courts generally.

?All these, are matters of facts that must be proved by evidence. This court has no such

facts upon which it may act, even on appeal before it raising Jurisdiction. Furthermore, the issue No. 10 seeks by the relief thereto, a prayer for this court to hear the Petition on Merit in the event of acceding to its challenge.

This Court has no such plenitude of power. Our jurisdiction is limited to the hearing of appeal in respect of such matters and not to usurp the power of a competent trial Tribunal. Exercise of Jurisdiction under S.15 of the Court of Appeal Act 2004 can only be embarked upon where the court of trial had jurisdiction and has heard the matter on its merit. In the subject of appeal the jurisdiction was challenged and more so, the matter had not been heard on its merit. It would be usur-pative of this court to delve into any hearing. The un- enticing and un-constitutional invitation is refused, as the question is not simply on whether a competent Tribunal disregarded or misapplied the principle of interpretation and computation of time to consider a petition abandoned. Were that the only question, this court could determine the issue upon available evidence or facts on the record of appeal. That is not the case here.

?The aforesaid

notwithstanding, it must be reiterated that where a court has no jurisdiction and it is covered up by any means, the entire proceedings, no matter how well conducted, is a nullity. So it would even be right for the court and/or even the respondents to raise it. Notwithstanding that the courts guard their jurisdiction jealously and will not lightly surrender to a provision taking away their jurisdiction, it is however obvious that a Judge’s competence to preside or sit in an election petition Tribunal the membership of which is a constitutional subject under the 1999 constitution and the Electoral Act cannot be a matter of ignorance or speculation by the Judges appointed to sit.

?Such Judges ought, in integrity and in obessience to their oaths of office as judicial officers sworn to observe and enforce and ensure the observance of the constitution and all laws recluse self or decline such appointments , as may have violated the law or bring such to the attention of the appointors; this will prevent such embarrassing allegations in grounds of appeal that may be a dent on the system, as after all mistakes could be made by the appointing Authorities and such

mistakes should not be perpetuated. After all, a Judge does not hunger for jurisdiction as his Qualifications are too well known to him.

Be that as it may, my Lords, we have no facts in the record of appeal before us nor has any evidence been brought to us at the hearing of this appeal vide affidavit evidence upon which we may take cognizance of the challenge to the Jurisdictional competence of the trial Tribunal or to warrant hearing the case (Petition). That being the case, I shall speak no more on the issue of jurisdiction raised other than to say lessons must be learnt there from this by parties, counsel, appointees to Judicial offices and the appointors at all times. This will obviate the thought that this court could be a trial Forum of petitions that it is not by law conferred with the jurisdiction to try. It has no such remedial or residual jurisdiction.

In that circumstance, if a decision is adjudged incompetent by want of jurisdiction of a court or Tribunal for instance on the ground of incompetence based on qualification by status of appointment as alleged in this case, what happens?

?In Adeniyi v. Oroja (1992) 4 NWLR (Pt. 235) 322, the Supreme court,

per Niki Tobi, JSC stated thus:-
“The filing of an action in a court of law pre supposes that the court has jurisdiction but once it is shown that the court had no jurisdiction, the foundation of the case will not only shake but will also crash or crumble. The parties cannot be heard on the merit of the matter. That is the end of the litigation unless the action, if competent, is filed in a court of competent jurisdiction in which case it is resuscitated denovo.”
?
If resuscitated denovo can a successful Appellant enjoy a waiver from a constitutional or statutory limitation of time to his right of prosecuting his claim as limited by law as in election Petition and Appeals limited to 180 days and 60 days respectively in circumstances where a trial was embarked upon without jurisdiction? Can such a party be deemed not to be such a party disadvantaged and not in the contemplation of the constitutional limitation? Moot as it is, I shall proceed to the consideration of the Appeals.

The Substantive Appeal
The appellant has formulated 10 Issues for determination, the 10th Issue, which I had jettisoned by my observation thereon earlier; the other issues are

similar in essence and effect to the more compact Issues formulated by the 2nd and 3rd Respondents.

In particular, the 2nd and 3rd Respondent’s Issue 2 covers and encompasses the Appellants’ Issues 1 – 6 and the 3rd Respondent’s Issues 3.2; 3.3 and 3.5.

Furthermore, the Issues 7 and 8 of the Appellants are similar and can be subsumed under issue 7 of the 2nd Respondent’s Brief, which simply put is this:-
Issue 7: Whether the trial Tribunal was incompetent to exercise jurisdiction over the petition – Distilled from Ground seven of the Notice of Appeal. In suit No Sc. 85/2014 of 6 – 3 – 15 between Timipre Sylva And
1. Independent National Electoral Commission
2. Peoples Democratic Party
3. Gov. Henry Seriake Dickson, reported in (2015) LPELR – 24447 (SC).
His Lordship Nguta, JSC in his leading Judgment in such a case stated thus:
“Shorn of unhelpful verbiage and embroidery appellant’s Issues are a replication of the issues raised by the 1st 3rd Respondents/in their briefs. I will determine the appeal on the two Issues raised in the 2nd Respondent’s brief.”
?
In the case at hand, the Appellants Issues are duplicitous thus warranting the course I have proposed to take, upon

the blessing of the decision of the Supreme Court supra sanctioning same.
Issue Number 2 of the 2nd Respondent. States thus:

Whether the Tribunal was right in dismissing the petition as abandoned on the ground that the Appellants’ application for the issuance of pre-hearing Notice was not made within the time stipulated by law Grounds 1, 2 and 3 of the (Notice of Appeal).

The Appellants and by their own split issues and argument submitted that the provisions of paragraph 18 (1) to the First Schedule to the Electoral Act, 2010 as amended which concerns the abandonment of a petition and an order for its dismissed had not arisen in the petition the subject of this appeal to warrant its dismissal as made.

The said paragraph 18 provides as follows:-
“18 (1) within 7 days after the filing and service of the petitions Reply on the Respondent or 7 days after filing and service of the Respondent Reply, as the case may be, the petitioner shall apply for the issuance of pre hearing notice as in TF007”.
The simple interpretation to be given to the above provision is that the petitioner is obliged at the latest period of 7 days after the filing of and service of the petitioners

Reply on the Respondent to apply for a pre-hearing Notice.

The other arm of it is that the petitioner may so apply within seven days of the filing and service of the Respondent’s Reply. By paragraph (3) the Respondent may bring an application in accordance with paragraph (1) 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. Paragraph 18 (4) – where the petitioner and the Respondent fail to bring application, under this paragraph the tribunal or court shall dismiss the petition as abandoned petition and an application for extension of time to take that step shall not be filed and entertained.

Raising the question in challenge of the trial court’s view that the provisions of Order 48 Rule 1 of the Federal High Court (Civil Procedure Rules) 2004 were in applicable as the procedure for the computation of time under paragraph 18 (1) of the Electoral Act 2010 (as amended) in the absence of any such or other procedure in the Electoral Act, 2010, it was submitted by the Appellant that there is no where in the said paragraph 18 (1) to the Electoral Act, 1st

schedule thereto that the procedure for the computation of time is stated. Accordingly, it was submitted that the provisions of paragraph 54 of the First Schedule to the Electoral Act, 2010 (as amended) providing for the practice and procedure in relation to an election petition shall be nearly as possible, similar to the practice and procedure of the High Court in the exercise of Civil jurisdiction should be applied. That the provisions admit of the applicability of the Federal High Court Civil Procedure Rules, 2009 in the exercise of Civil jurisdiction, should be applied. That the provisions admit of the applicability of the Federal High Court Civil procedure for computation of time.

Reproducing the said Order 48 Rule 1 (b) of the Federal High Court (Civil Procedure) Rules the procedure for computation of time is clearly provided as follows:

“Where by any law or order made by a Judge, a time is appointed or limited for the doing of any act, the period shall be reckoned as excluding the day on which the order is made or on which the event occurs.”
?
Learned counsel submits that this provision of computation of time has been given a judicial interpretation and

endorsement. He relies on Umo & Anor v. Evang & Ors (2012) WRN 12 CA @ 127 ratios 15 to 40 wherein this court, per Ndukwe – Anyawu JCA stated inter alia as follows:-

?”.the provisions of the Electoral act 2010 (as amended), time starts to run on the date after the event. Moreover paragraph 54 of the 1st schedule of the Electoral Act is instructive. It made reference the use of the Federal High Court Rules. 048 R1(c) is most relevant and provides where the act is required to be done within a period which does not exceed six days, holidays shall be left out in computing the period.

The period stated in the Electoral Act paragraph 16 (1) provides that the petitioner shall file his Reply within 5 days.

?The number of days is within the 6 days envisaged by 0.48 R. 1 (c) of the Federal High Court (Civil procedure Rules) 2009. It therefore follows that 10th July, 2011 which is Sunday shall not be counted when counting the days. The petitioners time started to run on Monday 11th July, 2011. Therefore the petitioner ought to file his reply on or before 15th July, 2011.”

Continuing his submission on whether the petition was rightly held

as abandoned and on the basis of computation of time to carry out the necessary acts of filing of a reply and the issuance of an application for a pre-hearing Notice, the Appellants’ learned counsel called in aid the argument that there is no provision of the Electoral Act that provides for computation of time to include the date of service on the occurrence of event; that the absence of such express stipulation means that there is a lacuna vis – a – vis the computation of time. The learned counsel contended that the lacuna must be filled by a resort to the Federal High Court (Civil Procedure) Rules 2009 and on the authority of Umo & Ors supra.

The learned Counsel further contended by his Issue 3 that case law or other precedent and other authorities relied upon by the trial Tribunal to hold and to compute time were not relevant to nor applicable to the computation of time as applicable to the paragraph 18 of the 1st schedule to the Electoral Act, 2010.

That the case of Omisore v. Aregbesola (Suit No. Sc/204/2015) delivered on 27th May, 2015 and relied on by the trial court decided on whether or not Sunday was inclusive for the purpose of computation of time

in filing election petition and does not relate to computation of time under paragraph 18 (1) of the First schedule to the Electoral Act 2010 (as amended).

That there was no basis for applying those precedents and case laws in providing for computation of time under the Electoral Act, paragraph 18 (1) of the first schedule.

The 2nd Respondent in his submission on Issue 2 which is more to the point of complaint submits that the decisions of the Supreme Court in Omisore v. Aregbesola (supra) and Okechukwu v. INEC have outlawed any resort to the computation of time based on external did.

Its learned counsel, relying also on ACN v. Nomiye (2012) 7 NWLR Pt. 1300, 568 @ 585 – 587 urged us to hold that there is no lacuna in the Electoral Act as relating to paragraph 18 of the 1st schedule and that this court should uphold the position of the trial court and the Respondents.

?The learned trial Tribunal had held that there was no lacuna in the Electoral Act, and that a petitioner’s Reply filed on the Respondent was calculated inclusive of the date of the event, which was 15th May, 2015 and to expire on 19/5/15 and not 20 – 5 – 19 as reckoned by the Appellant excluding the

day of the event and pursuant to the Federal High Court Rules (supra).

In the same token a petitioner’s Reply served on 20th May, 2015 attracted the commencement of computation from that said date. This position of the trial Tribunal was also supported by the 3rd Respondent.

The 3rd Respondent, by his Issue No 3 argued that there was no lacuna in paragraph 18 (1) of the First schedule to the Electoral Act, 2010, with respect to the computation of time within which the petitioners may apply for the issuance of a pre-hearing Notice and that the Electoral Act and the practice Directions have stipulated time lags for the doing of anything there under and it is those stipulations and no other that apply, no matter how harsh.
Okereke v. Yaradua, supra Ajayi v. Nomiye, Abubakar v. INEC, Gebi v. Dahiru, Kwara v. Innocent, (2009) 1 NWLR (Pt.1121) 1999 amongst other decision were relied upon.

Preliminary objections were seemingly raised in the 1st and 2nd Respondents Briefs of Argument. At the trial, it was conceded to by their respective counsel who sought to raise and move them vivo voce that the said objections were in competent not having been properly constituted by

Notice thereof filed or raised specifically and categorically in their respective grounds.

Having abandoned the attempts, I shall not dwell on same, any further, for now. There is also a Respondent’s Notice.

I have thoughtfully perused all the submissions of the respective parties as made by their learned Counsel on the Appellants Issues 1 – 5 and do not find difficulty in holding that the applicability of the Federal High Court Civil Procedure Rules on the question of time limited or provided by the Electoral Act for the doing of any act, has long been settled by the binding decisions of the Supreme Court, such that there is no longer any room for mano-ver; to do so will be judicial impertinence, contemptuous and an aberration of the sacrosanct doctrine of precedent built on stare decisis-an inviolate judicial mechanism invented to preserve the sanctity of the courts, legal system in avoidance of anarchy and for the enthronement of certainty and predictability in the law. See my opinion in Appeal No.CA/AK/EPT/HR/68/15 petition No. EPT/HR/OS/1/2015 Nathaniel Agunbiade & Anor v. Busayo Oluwole Oke & Ors delivered on 9th August, 2015. See also Obande

Ogbuinya, JCA’s view in Appeal CA/EP/GOV/751A/2015 of 26 -8 – 2015.

In Okechukwu v. INEC and Ors (2014) 9 SCNJ 47, 78 ariwoola JSC held that the interpretation Act and thus the Federal High Court Civil Procedure Rules 2009 was in applicable to the issue of computation of time under the Electoral Act.

time.

The simple answer is that the said Act is inapplicable to this matter, being an election matter, Okechukwu V. Inec and others (supra). Thus, as his reply was not filed in strict fidelity to the time protocol ordained in paragraph 16 (supra) the Lower Court, rightly struck it out.

This must be so because the time lines therein are sacrosanct due to the peculiar nature of election matters which are time bound. Buhari v. Inec and Ors (2008) 19 NWLR (Pt. 1120) 246. Strictly speaking, this sort of invidious provision should not feature in a user – friendly judicial process. However, in the peculiar circumstances of the urgency involved in the determination of such electoral disputes, the much this court can do is to wink at the tyranny of deadlines entrenched therein. In effect any process filed out of time is incompetent and liable to be struck out?..”

“This stand of the apex court has been considered and applied by this court in Dr. (sir) Uche Ezeliora & Anor v. Tony one week Mvonagor & Ors (2011) LPELR 9208 CA whereat Loluko – Sodipe, JCA at the Enugu Judicial Division while considering the provisions of paragraph 16 (1) of the

first schedule to the Electoral Act, 2010 (as amended) on the computation of time held thus:

In Ajayi V. Nomiye (2012) 7 NWLR Pt 1300 court also held thus:
“Election cases belong to a class by themselves. They are by their nature sui generis and parties must carefully peruse the rules governing same. Failure to abide by the Rules would be fatal to the petition.”
In Appeal No.CA/AK/49/2015 between
1. Gbenga Edema
2. All progressive Congress (APC) AND
1. Coker Adeniyi Malachi
2. Peoples Democratic Party
3. Independent National Electoral Commission (INEC) delivered on 14th August, 2015 this court, per Danjuma JCA had stated thus:
“The importation of the principle of “close of pleadings” or “the filing of the last reply” as imported upon the invocation of the inapplicable Federal High Court Civil Procedure Rules was wrong as specific provisions have been provided in paragraph 18 (1) (2) of the practice Direction, in Issue. The specific provision is the applicable law.”
Kraus Thompson Organisation v. NIPPS (2004) 17N WLR (Pt. 901) 44 @ 59. Continuing, in my resolution of Issue No. 4 in that appeal, this is what I said-
?”This issue deals with waiver. The applicability of the

Federal High Court Civil Procedure Rules as the Rules governing the practice and procedure in Election petition in Tribunals and courts have been subjected to the express provisions of the Electoral Act and are applicable only with such modifications and subject to the express provisions of the electoral Act, 2010, which the 1st schedule and its paragraph 18 is an integral part thereof. Why the disregard of the Electoral Act and its schedule relating to its practice and procedure of pre-hearing application? Issue Number 4 is resolved in favour of the Appellant as there is no such stipulation as conjured, with due respect.”

In view of the aforesaid current view of this court, which I have no reason to depart from, as it is sanctioned by the apex court’s binding stance, it is my view that the Appellant’s were not correct in their contention that the Order 48 Rule (1) (a) of the Federal High Court (Civil Procedure Rules) was applicable, and that the trial Tribunal was wrong in holding to the contrary. The Trial Tribunal was right whilst the Appellants were wrong in their stance. The finding of the Trial Tribunal cannot be set aside as we are invited to do under

Order 4 Rule 3 of the court of Appeal Rules 2011. As to the date of service or occurrence of event, counsel contends that there was a lacuna, as relating the computation of time under paragraph 18 (1) of the 1st schedule and that this court should so hold and apply the decision of this court in Umo & Anor v. Evang & Ors (supra) wherein it was stated thus:-
“This section, envisages that where there is a lacuna in the Electoral Act, 2010, recourse should be taken in the use of the Federal High Court Civil Procedure Rules, 2009,”
That the trial court was wrong in holding to the contrary. On his part, the 1st Respondent had argued that computation of time in Election Petition is a sui generis matter; whether the trial tribunal was right in holding that there was no lacuna in the procedure for computation of time under paragraph 18 (1) of the First schedule to the Electoral Act 2010 (as amended) without applying such procedure for the computation of time (Ground 2) which is 3rd Respondent’s Issue No. 3, the Appellants learned counsel submitted on this front of his issue that there was no provision under the electoral Act 2010 (as amended) that states expressly

that in the computation of time, time starts to run inclusive and that it is not controlled by the provisions of the Federal High Court Civil procedure Rules, but by the Electoral Act itself. That it is to be construed strictly and as already settled by the decision of this court and the apex court.

This response is discernable from the arguments on his Issues 1 and 2 of the Brief of Argument. The learned counsel had submitted that in the cases of Okechukwu v. INEC (2014) 9 SCNJ 47, 48 and Omisore v. Aregbesola (supra) similar contention as made by the Appellant herein was overruled when the apex court held that the interpretation Act was in applicable in so far as time starts to run from the date after service.
The apex court, per Ariwoola, JSC stated thus:
?” being aware of the sui generis nature of election and election related matters in which time is of the essence, and the stand of this court on the interpretation of the practice Directions I hold no hesitation in concluding that 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 our 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.”

The learned counsel also referred to Omisore v. Aregbesola (supra) in determining when time begins to run and whether there is no settled criteria for computation of time in election petitions other than a resort to the Interpretation Act or any other interpretation Act as the Federal High Court Civil procedure Rules, 2009.

The 3rd Respondent’s Counsel submits to the same effect that the apex court has since settled the issue that time is computed inclusive of the date of the limited event and that the Judicial stand makes the application of any other enactment in applicable in this respect.

I agree absolutely.

In Omisore v. Aregbesola supra,the apex court relying on its earlier decision in Okechukwu supra stated thus:
?”The simple answer is that the interpretation Act is in applicable to this matter being an election matter?.. thus as his reply was not filed in strict fidelity to the time protocol ordained the Lower Court rightly struck

out. This must be so because the timelines therein are sacrosanct due to the peculiar nature of election matters which are time bound.
“The learned trial Tribunal had held thus:-
“With due respect to the learned counsel to the petitioners, we vehemently disagree with this view of learned counsel on computation of time vis-?-vis the 7 days rule as provided by the Section 18 (1) of the aforesaid Rules which clearly stated “WITHIN 7 DAYS” which in our view is inclusive of the date the act was done this view of ours is supported by a plethora of decided cases while interpreting the word “within?it is a mistaken belief or calculation on the part of the petitioners counsel to rely on the Federal High Court Rules while calculating the 7 days period within which the Pre-Hearing Notice application has to be made”

This view of the trial Tribunal cannot be faulted. The interpretation made in Umo & Anor v. Enang & Ors supra is not the law as far as the applicability and the computation of time limited for the doing of anything under the electoral Act is concerned. The cautious, and I believe the balanced and objective

stance of Tine Tur, JCA in the said decision wherein His Lordship stated as follows:
“?where a statutory period runs “from” a named date to another or the statute prescribes some period of days or weeks or months or year within which some act has to be done, although the computation of the period must in every case depend on the intention of parliament as gathered from the statute, generally the first day of the period will be excluded from the reckoning and consequently the last day will be included” was instructive! This reasoning in that same decision sought to be foisted against the decisions of the apex court recognised the primacy of the intention of the parliament as gathered from the statute, relevant.
It is for this reason that the Supreme court in interpreting the word “within” as used in paragraph 6 of the practice Directions (Election Appeals to the Supreme Court) No. 33 of 2011 in DPP V. INEC (2014) 17 NWLR (Pt. 1437) 525 said:
?”The Respondent was served on 22nd August, 2014. Its time started to run from that same date irrespective of the fact that it was served at 4.00 pm or thereabout. Accordingly its time for filing of the brief expired on

26th August, 2014. The subsequent filing of the brief on 27th August, 2014 was done outside the time allowed.”
A host of other decisions of this court including Ajayi V. Nomiye (2012) 7 NWLR (Pt. 1300) 593 supra, Ikero v. Izunaso (2008) LPELR 4302 (CA) pages 25 -26 are authorities to show that this court has consistently applied this settled position of the law in recognizing that it is the provisions of the Electoral Act and the interpretation of time i.e. computation as made by the apex court that is applicable and extant. There is, therefore, no lacuna in the procedure for the computation of time under the paragraph 18 of the First schedule to the Electoral Act to 2010 (as amended).

The Tribunal was correct in so holding and rightly refused to resort to any other procedure of computation of time.

This issue is resolved in favour of the respondents and against the Appellants.

Whether the Tribunal was right in placing reliance on Omisore v. Aregbesola Suit No. Sc/204/2015 as providing the procedure for computation of time, under paragraphs 16 and 18 of the 1st schedule to the Electoral Act 2010 (as amended)

?The appellants’ counsel submitted that the decision in

Omisore V. Aregbesola supra related to whether Sunday is inclusive of the days for the purpose of computation of time for filing election petition and does not apply to computation of time under paragraph 18 (1) of the 1st schedule to the Electoral Act. It was also contended that the application of authorities, precedents and or case laws relied upon as providing for computation of time under the provisions of paragraph 18 (1) of the 1st schedule to the Electoral Act 2010 (as amended) are distinguishable and in applicable.

The 1st Respondent counters that the trial Tribunal’s decision was not based on Omisore v. Aregbesola’s case simpliciter; that even if it were, there was no cause for any complaint as the case was in any case a good and applicable authority on the point that in election petitions, computation of time is not done by reference to extraneous legislations.

I have read the decision of Omisore v. Aregbesola (supra) and have no doubt in my mind that it makes the Respondents’ stand unanswerable. The Appellants’ feeble attempt to the contrary is a mere hold of a drowning man to a straw. The Omisore v. Aregbesola case (supra) is a clear and applicable

authority that avails the Respondents and against the stand of the Appellants.

Indeed all the previous decisions though decided on a different legislation other than the 2010 Electoral Act, so long as they are in line with the principle of law restated in Omisore v. Aregbesola are good case law authorities and binding and applicable precedents or highly persuasive as the case may be.

To refuse to follow them is a breach of the principle of stare decisis. See Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347.

This court had in Gbenga Edema & 1 Or And Coker Adeniyi v. Malachi and 2 Ors (supra) stated, per Danjuma, JCA thus:-“The decision in Aregbesola’s case cannot be faulted. I do not have that license. And it is sound! On the facts, it did not depart from Sa-eed VG. Yakowa and Abubakar V. Nasamu either but only distinguished them clearly.”
The 1st respondent’s learned counsel contended that the Appellants’ counsel had fallen into a bobby trap which he set for himself when he had contended that the Omisore v. Aregbesola’s case was inapplicable for the reason that it related only to the question whether Sunday was to be computed as inclusive of the days limited in

that case, when he said Umoh & Anor v. Enang & Ors (supra) was concerned with the same question whether Sunday be included or excluded. I agree that the Appellants have fallen into their trap and the argument against Aregbesola’s case is not persuasive in the least.

The Appellants’ counsel contended that since the Tribunal acknowledged the inconsistencies in dates and the possible mistakes of the registry in the dates of the issuance of Forms 007 and 008 and the acknowledgement of the application letter of the petitioner’s counsel for the issuance of the Pre-hearing Notice Forms 007 and 008 it was wrong to proceed to hold that 26th May, was the date of the application dated 20th May, 2015.

That the overriding need to do substantial Justice should have informed the Tribunal not to visit the sin of the registry or the court on an innocent litigant. That the Appellants’ Reply was made on 20 – 5 – 2015 and that date ought have been accepted as the date of the application. On the injunction not to visit an innocent litigant with the mistakes of the court or its registry learned counsel referred to the case of Co-operative Bank Plc v. A. G. Anambra State

(1992) 8 NWLR (Pt. 261) 528 @ 561.

That the date of application ought have been reckoned with as against the date of issuance of the relevant forms i.e. 26 – 5 – 15.

Aregbesola v. Oyinlola (2009) 14 NWLR (Pt. 1162) @ 426, ratio 19 referred to in contending that the need to do substantial Justice is paramount in election cases.

In Aregbesola v. Oyinlola (supra) the Supreme Court had held that “the need to do substantial justice is greater in election petition cases. This is so because the court is not only concerned with the rights of the parties inter se but also the larger interests and rights of the people in various local government areas who had exercised their franchise on Election Day.

?The 2nd Respondent aptly refutes this contention of the Appellant. He contends by its issue 3 that the only application for the issuance of a pre?hearing Notice in this matter is the one at page 235 of the record. That is the Appellants’ Counsel’s letter received at the Tribunal on the 28th day of May, 2015. That for all intent and purposes that was the date of the application. That the document speaks for itself and the dating of 20th May,. 2015 was completely

irrelevant.

That in none of their counter Affidavits to 1st and 2nd Respondents’ Motions on Notice of 1st June and 2nd June, 2015 respectively did the Appellants allude to any application made on the 20/5/15. That it was an afterthought as there was nothing to show receipt before 28/5/15.

That there was no application by the petitioners/appellants bearing an acknowledgement receipt by the Tribunal, nor an official of the Tribunal that received their “Phantom letter of 20th May, 2015.” That the Appellants could only have issued for themselves a pre-hearing Notice Form TF 007 and 008 on the 26th May, 2015.

That there was no mistake in the date the pre-hearing Notices application was received. The learned counsel contended that it was an imposition of an application for a pre-hearing Notice 007 and Form 008 not issued by the Tribunal. That there could not have been a valid pre-hearing Notice and Form without an application to that effect and that any such Notices or Forms was null and void, learned counsel referred to Ozobia v. Anah (1999) 5 NWLR (Pt.601) 1 @ 7 par F where Muhammed JCA stated that the condition precedent must be fulfilled before an act can be said

to have been duly performed where the law places certain conditions precedent to the performance of such given act.

Nwankwo v. Yar Adua (2011) 13 NWLR (Pt 1263) 81 @ 113 -114 and Abdullahi Ahmad & Ors v. Ahmad Hassan Jumare & Ors (2011) LPELR 9172 (CA) referred.

The learned counsel also submitted that bound by the record of the court, the court will notice that the 2nd Respondent never agreed to the 26th day of May, 2015 as to the date the application for pre-hearing Notice was made, Referred to pages 456 of the record. That the finding on page 15 of the supplementary record of Appeal was not correct.

Refers to Stanbic IBTC Bank PLC v. Long-term Global Capital Limited & Anor (2013) LPELR 20723 CA on the bindingness of record on both the court and parties. Oguntayo V. Adelaja (2009) 15 NWLR (Pt. 1163) 150 @ 190 – 191 per Ogbuagu, JSC wherein he held thus:

It needs to be stressed and this is settled that the record of proceedings bind both the parties counsel and the court until the contrary is proved. See the case of Sommer v. Federal Housing Authority (1992) (Pt. 219) 548; (1992) 1 SCNJ 73.

?Therefore an appellate court has no jurisdiction to read into

the record, what is not there and equally, it has no jurisdiction to read out of the record, what is not there. An appellate court must read the record in the exact content and interpret it.

On his part, the 3rd Respondent by, his issue 4 argues per contra the 2nd Respondent when he contends that there was nothing showing that the application for the Appellant’s letter of 20th May 2015 was not received on 26th May 2015. That the Tribunal did not misdirect itself in arriving at the computation of time.

I have carefully considered the submissions as made on this Issue of date of application by the Appellants and I am of the view that the Tribunal cannot be faulted on the resolution as made.

For one, where a document as the letter bears a date, but there is no endorsement of receipt thereon as contended by the 2nd Respondent, that date cannot be taken to be the date of application as the date of application ordinarily connotes the date when the application vide the letter is received.

?That fact that a Reply bearing the same date was filed to a Respondent’s Reply is no proof that it was on that date that an application was made. It is after all common knowledge that

documents are deemed lodged on the date of lodging or acceptance. That presumption attaches to the Notice for pre-hearing session and the pre-hearing Forms that were found to be filed or acknowledged on 26 – 5 – 15. That date was presumed “in the interest of Justice” to be the date of the application.

The Appellants’ Counsel had insisted that it was the 28/5/15. In the circumstance of the mix-up, contradiction in dates and the acknowledgment of receipt as found on the Forms and bearing 26 – 5 – 15 that date was presumed and reckoned as the date of the application for pre-hearing Notice.

Whether it was the 28 – 5 – 15 or 26 – 5 – 15, the trial Tribunal would still have come to the same conclusion that the time limited had expired for the application for the issuance of the said Form.

No miscarriage of Justice was therefore caused to the 2nd respondent nor to the Appellants herein. Issue No 4 is resolved against the Appellants.

Issue 5
On this issue, the Appellants’ counsel asked the question whether the procedure used by the Trial Tribunal in the computation of time under paragraph 16 of the First schedule to the Electoral Act as amended in holding that the

Petitioners’ Reply to the 2nd Respondent was filed out of time was right.
The Counsel regurgitates the same argument as made in his Issue 2 and contended that the non applicability of the Federal High Court Civil procedure Rules and the refusal to follow the case of Umoh & Anor v. Enang & Ors (supra) was wrong.

The Respondents argued otherwise. The resolution of this Issue, finds answer in my resolution of Issue 2 as made. The trial Tribunal was not wrong and for the reason set out in our resolution in the said Issue 2.

The 2nd Respondent had filed his Reply to the petition on 15th May, 2015. The Appellant filed their reply to this Respondent’s Reply on 20th May, 2015 in clear contravention of Section 16 (1) of the First schedule to the electoral Act 2010 (as amended).
?
The said paragraph provides as follows:
“16 (1) – if a person in his reply to the election petition raises new Issues of fact in defence 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 the new issues of fact”
This clear

and unambiguous provisions must be given its clear and ordinary meaning.

The 2nd Respondent’s Counsel in arguing this as his client’s Issue Number 2 rightly captured the position of the law in this regard.
This court in Dr. (sir) uche Ezeliora & Anor v. Tony week Muonagor & Ors 2011 LPELR 9208 CA per Lokulo – Sodipe, JCA made it point blank in applying the procedure of computation other than those in the interpretation Act or any Aid.
This is what his Lordship said:
“The appellant have contended in their Brief of Argument to the effect that since the Electoral Act did not provide for how the computation of time for their petitioners’ Reply of the 1st set of respondents, recourse should be made to Order 48 (1) of the Federal High Court (Civil Procedure Rules). I do not think that anything could be further from the truth than the contention of the Appellants. This is against the backdrop of the interpretation of the words “within” and “from” as used in paragraph 16 of the 1st schedule by this court on numerous occasions as can be seen from the cases herein before cited.

?Considered view go to show that when the words “within” and “from” are used in the

provision of a statute in relation to an act, . All I am saying is that the use of the words “within” and “from” in the provision of paragraph 16 (1) of the First schedule have unequivocally fixed the computation of the time days the Appellants had to file their petitioners’ Reply to the Reply of the 1st set of Respondents, to commence on the very date the Appellants were served with the Reply of the said first set of Respondents.
Nothing in my considered view could be clearer. Therefore recourse to the Federal High Court (Civil Procedure) Rules as propounded by the Appellants for the purpose of computing the time within which they were to file their petitioners’ Reply, does not arise and is definitely un called for in the face of the clear and un ambiguous Provision of paragraph 16 (1) of the first schedule.
In other words, the provisions of paragraph 16 (1) of the firsts schedule not being in any manner unclear or unambiguous definitely does not require the High Court (Civil Procedure) Rules as the Appellants have contended, or indeed any other interpretative aide.”
This is the stance of this court and the Supreme Court in the Omisore v.

Aregbesola (Supra), Okechukwu v. INEC; Ikoro v. Izunazu (Supra) and the hosts of like cases earlier referred to in this judgment. Time started to run from the date of receipt of the Respondent’s Reply. See Ikoro v. Izunaza (2008) LPELR 4302.
The Trial Tribunal was therefore right and this issue is resolved against the Appellant and in favour of the Respondents.

It was contended that the use of the word “shall” connotes an obligation or a compulsion.

That it was an imperative or command language that demanded that the motion for dismissal as used in paragraph 18 (3) of the 1st schedule to the Electoral Act must be returnable in 3 clear days. That not so done, the application or motion was abandoned and ought not to have been heard. That the motion for abandonment was incompetent.

The respondents contend otherwise. They submitted that the motion or application should be served on the petitioners and to come up only after a 3 day Notice for hearing. That was the only meaning to be assigned to the provision of paragraph 18 (3) of the first schedule to the Electoral Act (as amended).

?The 1st Respondent’s learned counsel unassailably answered this issue when he referred

us to the decision of this court in ACN V Nomiye which adopted a holistic interpretation as enjoined by the apex court in Olaniyan v. Oyewole (2008) ALL FWLR (pt 399) 503, Egolum v. Obasanjo (1999) 7 NWLR (pt 611) 355 and Mbani v. Bosi & Ors. (2006) 26 NSC QLR (pt 1) 583 @ 602 and held that the 3 clear days stipulated as return date is not necessarily the date of hearing, but the period within which is allowed for the petitioner to respond to the motion for dismissal of the petition before the motion is heard and determined.

Issue resolved against the Appellant. Ground 6 from when, this issue is distilled fails and is dismissed.
The Appellant, having withdrawn his motion on Notice filed on 19 – 8 – 15 @ 10.50 am for additional grounds of appeal No. 6, 7, 8 and 9 to be filed as argued and same application having be granted and the said motion struck out by this court on 26 – 8 – 2015 the issues 6, 7, 8 and 9 contained and argued in the Appellants’ Brief of argument would ordinarily be deemed abandoned for they would have had no pedestal or firma terra upon which they could rest.

?They ought, accordingly to be struck out or better still disregarded and jettisoned

so also the corresponding responses to them by the Respondents would have been of no moment or consequence. That, however, is not the case in this case as the record of appeal still has the said Grounds of Appeal eloquently appearing and starring from pages 630 – 632 as original Grounds of Appeal, even if the additional Grounds of same character had been jettisoned.

However, in view of my decision in the preliminary objection on the said Grounds 7, 8 and 9 of the Notice of Appeal and the issues arising or distilled therefrom, a consideration of those issues which have been struck out will be an exercise in vain. An exercise in futility and an embarkation or an exercise or determination without jurisdiction, for there is no issue legally subsisting postulated for a determination by the court. to do so will amount to an academic exercise, a speculative and unconstitutional endeavor.

? A court is constituted to determine disputes or controversy. Where there is none, the judex is without any authority to embark on a frolic or search in the void. In case, I am wrong in allowing the preliminary objection and consequently holding the views aforesaid, even if suo motu, I

shall consider those issues, as an intermediate court should do except where it holds that it has no jurisdiction at all see Ikechukwu v. FRN (2015) (Pt. 1457) page 1 at 21 paragraphs A – H.

In the case above, the Supreme Court, per Nweze, JSC restated the position of an intermediate court and the need to resolve all issues except where it has no jurisdiction, in the stance that it has no jurisdiction, it may not proceed to hear the case on the merit. Here challenge is not against this court jurisdiction, so I shall determine all the issues including the jurisdictional challenges on the merit.

The issues 7, 8, 9 are fresh issues emanating from grounds that do not emanate from the decision appealed from, nor from their ratio decidendi thereof.

?A court of law cannot speculate on them. Evidence must be led in proof. Fresh evidence thereon must be by leave first sought and granted. That not having been done, this court has no jurisdiction to inquire into same. There is no evidence led before the trial court on the eligibility or qualification of the chairman of the trial tribunal Vis – a – vis the constitutional provision of Section 1 (1) (2) of the sixth schedule to

the 1999 constitution as sought to be argued and with an adumbration vide the decided cases of A. G. Federal v. Abubakar (2007) 20 WRN ratio 6 and Utuk v. The Liquidation (Utuks Construction Marketing Co. Ltd.) Anr. (2009) LPELR CA/C/45/96; Coteena Int’l Ltd. v. Church gate (Nigeria) Ltd. (2008) 18 NWLR (Pt 1225) 346; Chris v. Ononuju (2008) 9 NWLR (pt. 1093) 642 at 654 as concerning the need to give a statute its ordinary and clear express literal interpretation and the settled position of the law on what makes a court competent and imbued in jurisdiction or vires – as stated by the locus Classicus of Madukolu v. Nkemdilim (1962) 2 SC NLR 341.

?Even if this court could delve into the consideration of those issues 6 – 9, it is my view that issue 8 bordering on alleged want of jurisdiction of the Tribunal by the transfer of the chairman and dissolution of the Tribunal on 24 – 7 – 2015, days before the Ruling made on 27 – 7 – 2015 as alleged can only be inquired and decided by evidence of those facts led before this court. no leave has been sought and/or granted to so raise same nor has the Tribunal chairman and members been put on Notice to be heard on that

allegation of transfer/dissolution and on or before the date of Ruling as argued. No law has been shown prohibiting a decision already written to be delivered even if a chairman as disqualified. There is nothing to show that the decision was written after the alleged dissolution of the Tribunal or disqualification of the chairman.

The presumption of regularity inures to the effect that all official acts are presumed to have been regularly done and all persons purporting to perform official duties have the powers to so do, unless the contrary is proved. See S. 150 of the Evidence Act, LFN, 2011. The proof of cessation of status as chairman and members of a duly constituted Tribunal must be shown for there to be any basis for the, no doubt, correct view of the learned author of “Introduction to civil procedure Helen – Robert, Third Edition 2009. That where a judicial officer ceases to be so, his decision rendered in such period is a nullity.

?In the same vein the issue on “bias” based on affidavit evidence of membership of a political party and unprofessional relationship on the part of the chairman of the Tribunal is dependent on evidence that had not been raised

or could be raised, as no leave has been sought and granted by this court to raise the issue. There been no evidence relating to same in the record of appeal and a decision, thereon, I am also constrained in the state of the law, to decline any invitation to import the bare statements of law or likelihood of bias to unproved facts and circumstances. The 1st Respondent had withdrawn his motion and Respondent’s Notice.

Cases are authorities only in their conual and factual milieu. See Omisore v. Aregbesola SC 204/15 and my decision in Gbenga Edeme & 1 Anr. v. Malachi & 3 Ors. CA/AK/HA/4/2015 of 14th August 2015. However, I should say that by my consideration of the preliminary question whether the issue of jurisdiction could be raised as it was done, I had already resolved the challenge to jurisdiction that is to say, that it was not established by the Appellants that the Trial Tribunal was not competent or had no jurisdiction to entertain the petition and to deliver the Ruling challenged on appeal.

?Still on jurisdiction, this court cannot be on a solid or strong ground in ordering a trial de novo or conferring on itself the right to hear the petition

in the circumstance.

To accede to such invitation, there must be established some circumstances. In Dapianlong v. Dariye (2007) 8 NWLR (Pt.1036) 239 at 405 paragraphs C-H one of the fundamental conditionalities that must be met is the availability of the necessary materials to consider and adjudicate in the matter.

There are none placed before this court. It will neither be in the interest of justice nor serve any useful purpose to further delay and put the parties to additional costs in a pretentious assumption of jurisdiction, where none has been properly activated.

I must however, reason that a careful perusal of the endorsements on the pre – hearing Notice would appear to indicate that it is more probable that the application for pre – hearing Notice was made on the 28/5/15 as it is, the date that appears on the document that had an application dated 20/5/15 and with a minuting by recommendation to the chairman by the Registrar for directive. A directive is endorsed thereon for the fixing of a date and the issuance of a pre – hearing Notice.

?All relevant date of the said document is 28/5/15 aside the date of writing. The latter date appeared in multiples

other than the date of writing. It is trite that a document is said to be made, as in a letter, on the date of receipt and not otherwise.

Be that as may, just as an application made on 26 – 5 – 15 would be made outside the 7 days limited, so also any letter made on the 28 – 5 – 2015 as reasoned above.

In either case, the application was not made within time provided for in paragraph 18 (1) and the petition was properly deemed as an abandoned petition, as held.

The learned counsel for the 2nd Respondent had eloquently shown that the court, bound by the record of appeal, will see that the arguments of the Appellants’ counsel on the date of the receipt of the application had no factual basis.

I agree that forms TF007 and TF008 were issued on 26 – 5 – 2015 as endorsed thereon; but the application for the issuance of same, per the record of appeal, Ex facie the endorsement there on shows an application of same date been endorsed on 28 – 5 – 2015. The presumed dated of the application can neither be the date of the letter i.e. 20 – 5 – 2015 nor the date of the issuance of the relevant forms which are shown to be 26 – 5 – 2015.

?Page 235 of the record of appeal a letter

signed by Samson Ozah, counsel to the Petitioner, dated 20/5/2015 is reproduced verbatim thus:
“The Secretary to the Tribunal, The National and State Assembly Election Tribunal, Ikeja Lagos State,
Dear Sir,
RE: PETITION NO NA/LEGH/EPT/I5/2015 MRS OLABISI AYODELE SALIS & ANR VS. BAREEHU OLUGBENGA ASHAFA & ORS.
?
APPLICATION FOR THE ISSUANCE OF PRE HEARING NOTICE (FORM TF007 AND OO8)

We are counsel to the petitioner. Pursuant to paragraph 18 (1) of the first schedule to the Electoral Act (As amended) we hereby apply for the issuance of pre – hearing Notice (Form TF007 and 008).
Thank you for your usual corporation (sic) (Cooperation). Yours faithfully,
?
FOR: MJS PARTNERS
Signed:
SAMSON OZAH
On the above letter written on the letter headed paper of MJS Partners Legal Practitioners and consultants RC: LAZ 126, 942 which letter had not been complained of as a forgery by Samson Ozah Esq. for the Appellants, there is the stamp indication of “Respondent” which is signed and dated 28 – 5 – 2015 by the Election Petition Tribunal, Lagos State.

An endorsement to the chairman thus:
?”My Lord, the application was received awaiting your lordship’s approval and

directive.
Signed
?28 – 5 – 2015″

On the same letter appears the following, “Reg.
Fix 11/6/2015 for pre trial and issue hearing Notices to all the parties against the date.
Signed
28/5/2015”

The arguments of the 2nd Respondent’s learned counsel appears well grounded that any pre hearing notice and information sheet issued on 26 – 5 – 2015 or any date before the 28 – 5 – 2015 would be invalid and one issued without an application for their issuance.

We are bound by the record of the appeal as we have seen on page 235 thereof.
We cannot read anything out of or into that document.
See Oguntayo V. Adeloja (2009) 15 NWLR (pt. 1163) 150 at 190 – 191 where, Ogbuagu JSC held thus:
“It needs not be stressed and this is also settled the record of proceedings bind both the parties, counsel and the court, until the contrary is proved. See the case of Summer V. Federal Housing Authority (1992) 1 NWLR (Pt 219) 543; (1992) 1 SCN 73.
Therefore, an appellate court has no jurisdiction, to read into the record, what is not there and equally, it has no jurisdiction to read out of the record, what is not there.An appellate court must read the record in the exact content and interpret it.”

I shall not read into page 235 what is not there. It is the manners of unfounded submissions as in this issue of date of application that eloquently speaks for itself that led the learned counsel for the Appellants into making very clearly/obviously ridiculous submissions – such as that raised that the Tribunal had no jurisdiction and the Ruling was incompetent because the motion in that regard was not heard within 3 days – prescribed as the returnable period. The 2nd Respondents learned counsel had eloquently made a minced meal of that submission when he referred us to CAN v. Nomiye (2012) 7 NWLR (pt. 1300) 568 at 583 paragraphs B – H per Iyizoba, JCA and the Black’s Law Dictionary Meaning of “Return”. The uncontenplated infraction of the right of fair hearing, evident in the Appellants’ contention was made a matter of caricature by the 2nd Respondent’s counsel, and rightly, in my view.

Where there is no availing argument for a client, it is more honourable for a counsel to so advice. It is not part of a counsel’s role or duty to press on at all cost. The interest of justice and his integrity are factors to consider.

?Indeed the interest of the public, who have a

right not to be misled knowingly and the infliction of avoidable costs/pains by unnecessary prolongation of litigation and to no benefit to the litigants must be considered, too. Added to it is the fact that politicians may fight dirty and may have abundance of time and resources, but the courts only have lean judicial time.

In the circumstances, counsel must assist the courts in the judicious use of this scarce commodity so that it is not spent or frittered away.

I shall proceed. Evidently, the Appellants served their Reply 20th May 2015 after being served the Respondents Reply on 15 – 5 – 2015.

By virtue of paragraph 16 (1) of the 1st schedule to Electoral Act, 2010 (as amended) the Appellant’s Reply to the Respondent was incompetent and liable to be struck out see Okechukwu v. INEC (2014) 17 NWLR (pt. 1436) 255 at 284, per FH per Ariwoola, JSC.

?The Appellants Reply filed out of time could not be a valid document for computation of time. Rather it was the 2nd Respondent’s Reply of 15 – 5 – 2015. Time computation, as limited, has been held to be, in the circumstances of the peculiarity of the Electoral Act, Practice Directions and the constitution of the

Federal Republic of Nigeria 1999 (as amended) not to require any external aid in its interpretation as it is not controlled by the interpretation Act but runs from the day of the act, which day is not excluded. See also Omisore V. Aregbesola Supra.

Election petitions being proceedings sui generis and therefore time bound, the period limited must be strictly followed. The 2nd Respondent’s Reply having been filed on 15/5/15, within 7 days from that date, expired on 21 – 5 – 2015 and was inclusive of the 15/5/15. The Appellants ought to have applied for a pre – hearing Notice before 21 – 5 – 2015 and the petitioners Reply ought to have been filed on the 19th May 2015 at the latest. The learned trial tribunal had found and held as follows at page 22 of the record in part of its Ruling;
“Like in the 1st Respondent’s application, both the petitioners’ counsel and the 2nd Respondent’s counsel agreed on the following facts.
1. That paragraph 16 (1) of the first schedule of the Electoral Act (2010) as Amended provides that the petitioners shall file their Reply to the Respondent’s Reply within 5 days from the date of service.
?2. That the Reply of the 2nd Respondent was

served on the petitioners on the 15th day of May 2015.
3. The petitioners filed their Reply on the 2nd Respondent on the 20th of May 2015.”
The above findings of fact on the date of service have not been appealed against. They remain binding and subsists. As this court held in its decision in Appeal No. CA/L/EP/GOV./744/2015; Mr. Joseph Olujimi Kolawale Agbaje v. INEC & 3 Ors. delivered on 26/8/15 per Agim JCA.
“Duty to show that the decision of a court is wrong on any ground in an appeal against it is that of the appellant who is contending that it is wrong. To discharge this duty, the appellant must demonstrate that the reasons given for the decision on the basis of the reason and or the decisions are wrong.
The appellant cannot discharge this duty by the mere assertion that the decision is wrong without showing how and why amongst it is wrong and leaving the basis of that decision unchallenged. In such a situation as has happened in this case, I agree with the learned counsel for the 1st and 4th respondents and the learned counsel for the 2nd respondent that the appellant has not effectively challenge that decision at all.”The Appellants did not challenge

the findings of facts on the date of the service of the respective replies and the fact that the petitioners’ Reply to the 2nd Respondent was served out of time, thus leaving only the 2nd Respondent’s Reply on the petitioners/Appellants and its date of service on the Appellants as the effective date of computation of time that could be used to kick start the date of the application for the issuance of a pre – hearing Notice form TF007 and TF008.

In that circumstance those dates constitute the bench mark for the computation as made earlier in this judgment and with the blessings of the authorities cited in support.

The Appellants had not filed a Reply after which they could activate the hearing of the petition validly, other than use the Respondent’s Reply as the trigger of the hearing. They filed the letter earlier on deliberated upon. The Respondents were entitled, as they did, in the circumstance to apply that the petition be dismissed as abandoned. A cart before the horse application cannot activate a petition in the circumstance. See Action Congress of Nigeria & Anr. v. Mr. Martin Amehuele & Ors. CA/PH/EPT/6/2011. In that case decided on Wednesday

16/11/11 Musa Datijo Muhammad, JCA (as he then was) held thus:-
“In the instant case, where the first respondent had filed and served the appellants with his reply the former was entitled under paragraph 18 (3) to urge the Tribunal to dismiss the petition when the Appellants appeared not to have activated paragraph 18 (1) by applying for the issuance of the Notice for pre – hearing session.———-”
Indeed, since the 2nd Respondent had served his Reply on the Appellants this Respondent was entitled to apply for a pre – hearing Notice or by motion on Notice returnable in 3 clear days apply for an order dismissing the petition as abandoned.
An application for pre – hearing kick starts the hearing of an election petition. Where it is not so done, the petition is deemed abandoned and shall be dismissed. See Willie & Anr. v. Charlie & Ors. (2010) LEPLR 4242 (CA).In the circumstance of not applying within time, as in this case, or in a situation where a purported pre hearing Notice and information sheet are issued before the proved date of an application, for their issuance and no steps have been taken,It is my view that they stand on the same pedestal as

where there was, de jure i.e in law, no application for a pre hearing Notice made. In that circumstance, the visitation of a dismissal of the petition as done in Willie & Anr. v. Charlie & Ors (Supra) would be an appropriate consequence.
Entitled to look at our records, as, I have done; see Mitsidau v.. Chidari 2008 16 NWLR (pt. 1114) 553 at 571, paragraphs E – F, I find that the Appellants have not validly exercised their right to activate the hearing of the petition. Even if the Respondents had not applied for the dismissal of the petition in accordance to the paragraph 18 of the Electoral Act, 2010, the Trial Tribunal suo motu could do so.

In the instant case, the 2nd Respondent had so applied, just as the 1st Respondent did. Their motion were consolidated and heard.

?The decision of the trial Tribunal on this issue was not wrong. On the aforesaid reasoning the issue 2 of the Respondent encapsulating the Appellants’ issues 1 – 6 is resolved in favour of the Respondents and against all the Appellants. Appellants issues 1-6 fail, therefore issue 10 – that so-called issue is obviously not one emanating from the decision appealed or from any of the grounds

of appeal. the caricature made of that issue on that ground stated above in objection, though right technically, does not invalidate the submission contained therein as the so – called issue is a restatement of the law in Section 15 of the Court of Appeal Act, 2004 and Order 20 Rule 2 of the Court of Appeal Rules 2011 on the powers of this court.

It may be so raised and argued. It is not properly an issue but a submission in law of general application and which may be invoked simpliciter and not to be raised as an issue framed. Be that as it may, election petitions and their appeals are sui generis proceedings. In that wise, this Appellate court is not imbued with the jurisdiction to assume the jurisdiction of a trial tribunal as an original or court of first instance to hear this or any petition. Our jurisdiction is to hear appeals arising from the decisions of the Election Petition Tribunals listed in the Constitution and Electoral Act in respect of which jurisdiction has been conferred.
?Jurisdiction is conferred by statute and not otherwise. We cannot take this constitutionally unenticing invitation to pursue a search for jurisdiction. This court must not

thirst or hunger for jurisdiction where there is none. Issues 7 – 10 are unsuccessful and fail. From my resolution of the preliminary objection in favour of the Respondents and against the Appellants on the competence of Grounds 7, 8, 9 and 10 and also the resolution of the issues 1, 2, 3, 4, 5 and 6 against the Appellants and in favour of the Respondents this appeal (main Appeal) must perforce fail, it fails on all the grounds of appeal and is accordingly dismissed by me.I shall now proceed to the 1st Respondent’s Notice of intention to contend that the judgment should be affirmed on grounds other that those relied upon by the court dated 21st August, 2015 and filed on 24/08/2015 and the motion dated and filed 24/6/2015 seeking leave to raise and argue grounds 2 and 3 of the Respondent’s Notice as a fresh ground of appeal and an order granting leave to 1st Respondent/Applicant to include arguments on respondents notice in its brief of arguments filed in respect of this appeal;s were withdrawn and struck out on 26 – 8 – 2015 at the hearing of the appeal, consequently, the arguments contained in the 1st Respondent’s Brief and as particularly contained on pages

24 – 28 are hereby struck out/ or discountenanced, its progenitor having been withdrawn and struck out.
I need not really comment on same, as after all, on the merit, the issues raised in the Respondents notice – would still not have wholly succeeded.

The withdrawal of the Respondent’s Notice was a prudent thing to do. The incompetence of a counter affidavit for instance, would not have made any difference as a counter affidavit is not required for a decision on “a pre-hearing Notice competence” to be made by a court. The futility of issues 2 and 3 of the withdrawn Respondent’s Notice is obvious.

?Additionally, that the Respondent’s Notice was filed out of time on 24 – 8 2015, a period of 28 days after the decision was delivered on 27 – 7 2015. A hurdle awaited such a cross respondent to cross, as the Notice should have been field within time. A period well over 21 days allowed for the filing of appeal or cross – appeal in an Election Petition appeal.

?And indeed the agitating question of abuse of court process on the multiplicity or duplicity of a Notice of preliminary objection and the filing of a Respondents’ Notice to the same grounds and prayer would have been

a hurdle. Enough of this orbiter dictum and academic exercise!

It is not ordinarily, the role of the judex. Pontification however serves as guide in the development of the law, a living subject; and the judges, not zombies or mummified creatures, but living oracles; do, in appropriate circumstances, pontificate.

The Respondent’s Notice having been withdrawn and struck out at the hearing, I shall duly at the appropriate stage reconfirm its death as done already.

Having resolved the 2 main and all encompassing issues in favour of the respondents and against the Appellants, and that the 1st Respondent’s Notice be struck out for both incompetence and lack of merit, the appeal is dismissed for lack of merit.
Costs
I award no costs. ?

?CROSS APPEAL IN: CA/L/EP/SN/799/2015
BETWEEN:
ALL PROGRESSIVE CONGRESS (APC)—– (CROSS-APPELLANT)
AND
1. MRS OLABISI AYODELE
2. PEOPLES DEMOCRATIC PARTY
3. BEREEHU OLUGBENGA ASHAFA
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)(CROSS-RESPONDENTS)
The cross – Appellant is the ALL Progressive Peoples Congress (APC). It was the 2nd Respondent in Appeal No. CA/L/EP/SN/799/2015 just decided. It filed a Notice of cross appeal wherein it

expressed its disavowal/dissatisfaction with portions of the ruling that precipitated the main appeal just decided.

The Notice and grounds of the said cross – appeal are contained at pages 33 to 35 of the supplementary record of appeal transmitted to this court by leave given on 26 – 8 – 2015.

The Notice of appeal founded upon 3 Grounds of appeal is dated and filed on 11 – 08 – 2015.

The cross – Appellant’s counsel filed his Brief of argument dated 21 – 8 – 2015 and on the same date. The cross – Appellant’s Brief of Argument, prepared by R. A. O Adegoke, Esq. raised a lone issue for determination thus;
In view of the fact that the only application for the issuance of pre – hearing notice is the one made by the petitioners/1st and 2nd cross – Respondents’ counsel by letter received at the Tribunal on the 28th day of May, 2015, whether the Tribunal was right in holding the 26th day of May, 2015 as the day the application for the issuance of pre hearing notice was made.
The Brief of argument was adopted and this court urged to allow the cross appeal.

? In the course of argument, the cross – Appellant’s counsel reproduced the procedure and the law relating to the

application for and the issuance of a pre – hearing Notice and pre – trial information form and contended that the said Notice/form cannot be validly issued without a prior application. He refers to Ozobia v. Anah (1999) 5 NWLR (pt. 601) 1 at 7, paragraph F. per Muhammad, JCA and contends that there was no competent application and issuance of the said form, in the petition leading to the instant appeal.

In the said case (Supra), Muhammad, JCA had held thus
“It is my view that where a law places certain condition precedent to the performance of a given act, such an Act cannot be said to have been duly performed without the fulfillment of the stated conditions.”
Learned counsel also referred to Nwankwo v. Yar’Adua (2011) 13 NWLR (pt. 1263) 81 at 113 – 114 paragraph HA and Abdullahi Ahmad & Anr. v. Ahmad Hassan Jumare Ors. (2011) LPELR – 9172 (CA); quoting Liyu Ibrahim Gebi v. Alhaji Garba Dahiru & 3 Ors. and contended that the only application for the issuance of pre-hearing notice in this matter is at page 235 of the record of appeal; that is the letter received on 28th May, 2015 and that, that was the date of the application. That the pre-hearing

Notice and information sheet dated 26th day of May, 2015 were issued without any application and by the petitioners on their own and were useless in the face of the law.

The learned counsel argued in the alternative that even if the petitioners i.e 1st and 2nd cross – Respondents, had so applied for the issuance of the pre – trial information Notice, the only Notice and information sheet that were valid were those of 28 – 5 – 2015 issued subsequent the receipt of letter of 28 – 5 – 2015 by the Tribunal on that date. That the court was bound by the record and so also the parties were.

LSWC v. Sakameri Construction (Nig.) Ltd. (2011) 12 NWLR (pt. 1262) 569 at 603 paragraphs D – E per Okoro, JCA (as he then was) was referred to. Ultimately, the cross – Appellant faulted the finding of the Tribunal on the date of the application for pre – hearing Notice for the following reasons:
(a) The only application for the issuance of pre – hearing notice is the one made by the petitioners/1st and 2nd cross – Respondents’ counsel received by letter received at the Tribunal on the 28th day of May, 2015 at page 235 of the record of appeal;
?(b) There was nothing before the Tribunal

that could reasonably lead to the Tribunal to “work with” the 26th day of May, 2015 as the day of application for the issuance of pre hearing notice was made;
(c) An application for a pre hearing Notice is a precondition for the Tribunal to issue a pre hearing notice.
(d) Only the Tribunal can issue a pre hearing notice.
(e) The pre hearing Notice and pre hearing information sheet dated the 26th day of May, 2015 were made prior to the submission of an application for the submission of pre hearing notice and therefore invalid; urges that the finding on the 26 – 5 – 2015 be set aside and the appeal be allowed.

I have perused the 1st Respondent’s Brief of Argument and do not find where it has directly or frontally responded to the argument raised by the cross – Appellant.

He however confirms same in his statement of facts, being on the same cabin, in this matter on its part, the 2nd Cross Respondent did address the issue directly on his Reply Brief of Argument.

?Both Respondents’ addresses contend on the general principles of interpretation with regard to computation of dates in Election Petitions and not on the attempt to challenge the finding of “fact” on the date of

application for a pre hearing Notice and as to whether it was on 26 – 5 – 2015 or 28 – 5 – 2015 and on the “fact” whether it was made at all.

The 3rd cross – Respondent’s Brief of Argument does not also address the Cross – Appeal in his Reply to the 2nd Respondent’s Reply, (thought not to that 2nd Respondent by him as a cross – Appellant had submitted that the probable date of the letter of application for pre hearing notice was 20th May, 2015 and not even 28 – 5 – 2015 as it was dated on the said 20 – 5 – 2015 which was the date of the acknowledgement of the letter of application. This Appellant, however, disagrees with the Tribunal on the date relied upon.

This cross – Appeal can be determined on a narrow compass. It raised 3 Grounds of cross appeal. No issue has been raised from Ground 3. The said Ground is struck out as it is deemed abandoned.

The lone issue canvassed covers Grounds 1 and 2. It is my view that the grounds and the arguments thereon question the findings of fact as made by the Trial Tribunal on the evidence of the documents before her as relating to the application for pre hearing notice.

?The appeal and its grounds, therefore, relate to a

challenge to a finding of fact. In this regard, the law is that leave of the trial court or this court must first be sought and granted before such a challenge on fact can be raised.The cross – appeal on those grounds of fact ought be held incompetent; but this is an election appeal. I would rather decide it on the merit than on technicalities.

In the circumstance, therefore, and assuming, the appeal could lie, it is my view that a perusal of the record of appeal and in particular the Ruling of the court on the application for pre – hearing Notice cannot be faulted.The petitioners themselves, even by their Reply Brief are uncertain on the date and think it to be 20 – 5 – 2015.

The cross – Appellant thinks it to be 28 – 5 – 2015 or even 20 – 5 – 2015.

?A party must be consistent in the presentation of his case, whether at the trial or on appeal. This inconsistency in the assertion of dates at the main appeal and now at the cross – appeal depicts and justifies the need for a proper scrutiny of the record of the court and the documents therein rather than rely on ipsisima verba of parties or of their counsel; or indeed placing reliance on documents of uncertain

origin and validity.

Documents relied on by the Appellants/Cross Respondents were unsigned and in some parts contained alterations as to dates.Reliance on such documents and weight attached thereto should be light. A court of law will be cautious.

All references to the Respondents’ addresses that relate to the cross – appeal are only made to show that they do not really attack or constitute any sore on the cross – appeal; No wonder, the cross – Respondents either withdrew their motions to file cross – Respondents’ Brief of argument as in the 1st and 2nd Cross – Respondents’ case or as in the 3rd and 4th cross – Respondents, by associating with the Cross – Appeal and not filing any response at all;No wonder it should be noted that at the hearing of this Cross appeal, the Appellants/Gross Respondents withdrew their motions filed on 1 – 9 – 15 for extension of time to file their 1st and 2nd cross-Respondents Briefs of argument on the Cross Appellant; and by their Counsel offered no opposition to the appeal.

?In the same token, the 3rd and the 4th cross Respondents were not opposed to the cross-Appeal and also did not file any Respondent’s Brief, either.Although there

is no opposition to the Cross – Appeal, I need to make a point here. It is to ask whether the cross – Appeal is in the first place competent in law?

An appeal is a signification of a dissatisfaction by an un successful party in a litigation, be he a principal party or an interested party who appeals with leave of court granted to him.

This court had in its decision in Appeal No. CA/L/EP/GOV./751/15 Between Dapo Akinwumi Ambode v. Mr. Agbaje & 4 Ors decided on 26th august 2015, observed thus, per Saidu Tanko Hussaini, JCA,
“The second point I want to make flows from the first and that is, the Appellant is the person or party in whose favour the Ruling was delivered whose motion or preliminary objection was upheld and the petition against him (among others) was struck out by the Tribunal?”
Can he appeal? Yes, he may cross-appeal, but I would rather think a Respondent’s Notice to vary the judgment upon the ground of the date of the issuance of the pre-hearing application complained of would have sufficed. The Respondent’s Notice filed was withdrawn, apparently because it was not upon this ground.

?Be that as it may, there has not been shown that the decision

would have been different if the date of 26/5/15 complained of were otherwise indicated.The cross-Appellant’s counsel had urged this court to “allow the cross appeal and to affirm the decision of the Tribunal dismissing the appeal”.I had in the main Appeal found that the trial Tribunal’s finding on the date of 26 – 5 – 15 was in error, as that date flew against the clear evidence on the record of appeal rather, at page 253 showing the date of application for a pre-hearing Notice as 28 – 5 – 15.Though, I had found that the solemn finding of fact by the trial Tribunal had not been appealed against by the Appellants in the main appeal and therefore, subsisted and binding against them, the cross-appellant herein has on its part challenged this findings of fact by his Grounds 1, 2 and 3. His arguments as articulated in his Brief is a re-argument of his response in opposition to the main appeal. For the same reasons that the main appeal succeeded as relating to the date of the relevant act to activate a pre-hearing Notice, this appeal ought to succeed but with an order that the finding of fact made by the trial Tribunal that the date of the Application for

pre-hearing shall be taken as 26 – 5 – 15, shall be altered to read 28 – 5 – 15 in line with the findings of this court relying on the document dated 20/5/15 with stamping made on 28 – 5 – 15 and contained on page 235 of the supplementary record of Appeal.

2 grounds of appeal, which had been answered in the main appeal, already, ought to have been rested.

It is unnecessary to repeat the exercise afresh and in detail.
However, the interest of Justice demands that the courts should shun technicalities in election proceedings.
See Senator Iyiola Omisore & Anor v. Ogbeni Rauf Adesoji Aregbesola & 2 Ors Sc/104/15 (2015) decided on 27 – 5 – 15
In Omidiran v. Etteh (2011) 2 NWLR (Pt. 1232) 471 @ 502 par B – C, it was held thus:”In Election proceedings it is in the interest of Justice that parties are given the opportunities to ventilate their grievances without undue regard to technicalities.”
See also Surakatu v. Nigeria Housing Development Society Ltd & Ors (1981) 12 NSCC 92 (Sc)
?I should state by way of remark that the albatross of the petition leading to the instant Cross-Appeal may have been the error of not reckoning the date of the application both as

made and the reliance on Pre-hearing Notice Forms and Information sheets as against the letter of application.

Even the Appellants in the main appeal insisted that the date was wrong. The Cross Appeal has Merit. It appears however to be an appeal with the mission to make assurance double sure by an “over kill” of the petition.

A legitimate exercise within the law shorn of duplicity or multiplicity of suits. It is not vexatious in the circumstance.

In concluding my Judgment I must POINT out that there has been a lot of confusion and cacophony of views in our jurisprudence as relating to the computation of time, where time lines or calendaring is stipulated. This appeal has thrown up one of such concerns and challenges.
In my humble but firm view, that should not be a source of worry. The Interpretation Act (1964 No.17), Laws of the Federation of Nigeria; 2004 is a general guide. It provides in its preamble thus:
1. “Application of this Act: This Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question.”
Implicit in the above, is the fact that an interpretative engineering, in line

with the need to discerning the intention of the draftsman or legislature may be embarked upon. The interpretation Act is not a statute of general application in a draconian fashion, without exception, therefore.

In the interpretation Act – S. 15 (4) relating to computation of time, for an instance, provides that “(4) – where by an enactment any act is authorized or required to be done within a particular period which does not exceed six days holidays shall be left out of account in computing the period.
5. In this section “holiday” means a day which is a Sunday or a Public holiday”
However, the clear tenor of the Electoral Act provides for the hearing of petitions de die in diem i.e. from day to day; the service of processes immediately they are received at the registry and the registry being open on all days.
Furthermore, by S.145 of the Electoral Act No. 6 of 2010 (as amended), the Rules of practice and procedure for election petitions and appeals have been ordained to be as set out in the First schedule to the Electoral Act.
?A fortiori, paragraph 54 of the First schedule to the Electoral Act makes the applicable Rules of practice and procedure in Election

matters subject to the Electoral Act and the Federal High Court (civil Procedure Rules) shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of the Act?..
What is more, paragraph 55 of the 1st schedule to the Electoral Act, 2010, though enjoining the application of the Rules of the Supreme court and court of Appeal as may be applicable in the hearing thereof, it enjoins the need for urgency on electoral matters, as the judex has by statute and the Rules been given the latitude to so do in the interest of expeditious hearing of electoral matters, applying the various Rules of interpretation and invocation of relevant jurisprudential thought; it may interprete sensibly and reasonably as custodian of the law.
I agree, that for the avoidance of doubt and harmony, it may be necessary for the Rules of court applicable and in particular specific practice Directions to Define such words as “within “From “after,” and before”. However, it sounds an unnecessary suggestion as lexical meanings and common sensical interpretations could be resorted to; else there can be no enough space to

insert all conceivable definition.
Is the American Constitution not a compact Document of a few Articles?
The Judex must play its role. It should be recognized, as even the interpretation Act begs the answer in many of its provisions, so does the Federal High Court (Civil procedure) Rules in the area of computation of time. It imports the interpretation Act and restates them, with the same Lacuna/gaps left for judicial interpretation of the limitation or delimitation phrases and words relating to time-frames.

However, the admonition of the Supreme Court in P. D. P. v. CPC (2011) 17 NWLR (pt. 1277) 485 at 511 paragraphs F – G thus:
?”?I must bear in mind the fact that the basic function of every court called upon same is to seek out the intention of the legislator as could be gathered from the provisions of the statute. Same should be interpreted as it is and not as it ought to be.”

There is no doubt that Order 48 (1) of the Federal High Court Civil Procedure Rules may have provided for the exclusion of the day of the act or event; however, the invocation and application of this Rule is subject to and having regard to the provisions of the

Electoral Act.

The Federal High Court (Civil Procedure) Rules, 2009, is therefore not a mandatory document to be applied in all ramification and content even in the computation of time in Electoral disputations and proceedings. Having found earlier that there is merit in the cross-appeal against the date considered relevant by the trial tribunal, and I, having varied that finding of fact relating to the said date, the cross-appeal is allowed; and I award no costs in this un-opposed cross-appeal.

?ABUBAKAR JEGA ABDULKADIR, J.C.A.: I agree.

OBANDE FESTUS OGBUINYA, J.C.A.: I agree

?EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, MOHAMMAD A. DANJUMA JCA. I agree with the reasoning, conclusions and orders therein.

Let me make a brief remark on the issue of the improper Constitution of the Trial Tribunal due to the alleged lack of qualification of the Judicial Officer who Presided as Chairman of the Tribunal to so preside as such Chairman because he or she is a President of the Customary Court of Appeal of a State and not the Judge of a High Court.

?Although there is no evidence of the alleged facts of his lack of

qualification in the extant record of this appeal and it is therefore impracticable to determine the issue on the basis of the record of appeal as it is, I wish to observe obiter that this issue, in addition to raising the question of the jurisdiction of the Tribunal as Constituted to sit as a Tribunal Established and constituted by S.285(1) and (4) of the 1999 Constitution and Paragraph 1(2) of the Sixth Schedule therein to entertain and hear Election Petitions, touches on the integrity of the Judicial Officer who, knowing fully well that he or she, not being a High Court judge, is not qualified to be Chairman of a National and State Houses of Assembly Election Tribunal, accepted the appointment as Chairman of the Tribunal and presided over the Tribunal as such Chairman to hear many Election cases. Due to the large size of personnel appointed and the short time available for the Constitution of the Tribunals, it is not unusual for errors to occur in few of appointments of the personnel of such Tribunal. One of such errors include appointing a person who is not a High Court Judge as Chairman of this Tribunal.

?Judicial integrity demands that a person, who is so

inadvertently appointed, should upon receipt of his or her letter of appointment draw the attention of the appointing authority to the error in his or her appointment and the legal effect, so as to provide an early opportunity for a timely correction of the error. It is wrong for a Judicial Officer to take advantage of the error and exercise the powers and functions of an office he is Constitutionally unfit to hold, knowing fully well that the Tribunal Presided over by him or her is not properly Constituted and therefore not competent to try any election matter, and that therefore all matters heard by the Tribunal Presided over by him or her as Chairman are null and void and of no effect. This situation results in waste of Judicial time and public funds, the frustration of the election petitions, as so much of the 180 days prescribed by S.285(6) of the 1999 Constitution as amended for the trial of the petition would have been dissipated in a null process. Such waste of time and resources cannot be afforded in the trial of cases generally and particularly in the hearing of Election Petitions in which time is acutely of essence. While it is bad enough that such

a person proceeded to exercise the powers and functions of the office he knows he is constitutionally unfit to exercise, it is unconscionable and irresponsible for such a person, even after the constitutionality of the composition of this Tribunal has been questioned on account of his or her personal disqualification by a litigant in case before the Tribunal, to proceed to hear the objection, and in some cases insisting on proceeding with the hearing of the petition, instead of recursing himself and avoiding further waste of time and expense. The fact about a person’s qualification or lack of qualification to hold any judicial office is, beyond argument, within his or her peculiar knowledge. Therefore he or she need not be reminded of such fact and should not require such fact to be proved before he or she can accept the obvious. It is morally reprehensible for a judicial officer to require that such fact which he or she knows to be correct be proved by evidence adduced in the proceedings challenging his or her qualification before he or she can recuse himself or herself.

?SAIDU TANKO HUSSAINI, J.C.A.: I had a preview of the judgment just rendered by my

brother, Mohammad A. Danjuma, JCA. It is a complete package in itself. My Lord in the lead judgment has disected and addressed all salient issues raised by the appeal and I am in complete agreement with the conclusion arrived thereat that the appeal should be dismissed. No order as to cost.

?I similarly concur with my Lord that the Cross Appeal be allowed. I make that order accordingly.

Appearance

1. Samson Ozah Esq (with Mariam Momoh Esq. and Oladayo
Ogunbe Esq.) for the 1st and 2nd Appellants

2. Adebowale Kamaru Esq. with Ogunyemi Esq. C. Enebeli Esq. Tokunbo Davies Esq. Tamimo Anjorin Esq. Olayinka Babafemi Esq. for the 1st Respondent.

3. R. A. O. Adegoke Esq, (with Omotayo
Olatunbosu Esq. and Oluwatomiwa Ogundipe (Miss)
for the 2nd respondent

4. Oluwaseun Oluseyi (Miss) for the 3rd respondent

Appearances

Samson Ozah Esq (with Mariam Momoh, Esq. and Oladayo Ogungbe Esq) for the 1st and 2nd AppellantsFor Appellant

AND

Adebowale Kamaru, Esq. with Ogunyemi, Esq C. Enebeli, Esq Tokunbo Davies, Esq Tamimo Anjorin Esq, Olayinka Babafemi Esq, for the 1st Respondent.
R. A. O. Adegoke Esq, (with Omotayo Olatunosun Esq. and Oluwatomiwa Ogubdipe (Miss) for the 2nd Respondent.
Oluwaseun Olusiyi (Miss) for the 3rd Respondent.For Respondent

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