NICHOLAS EJIJAH MSHELIZA & ANOR v. HON. ABDUL MUSA MSHELIZA & ORS. (2011)

NICHOLAS EJIJAH MSHELIZA & ANOR v. HON. ABDUL MUSA MSHELIZA & ORS.

(2011)LCN/4910(CA)

In The Court of Appeal of Nigeria

On Thursday, the 17th day of November, 2011

CA/J/EP/HR/185/2011

RATIO

ISSUE OF JURISDICTION: IMPORTANCE OF THE ISSUE OF JURISDICTION; WHETHER THE COURT NOR THE PARTIES CAN CLOTHE THE CLOTH WITH JURISDICTION WHERE IT LACKS JURISDICTION

The issue of jurisdiction is trite and very fundamental in that a proceeding no matter how well conducted would be rendered a nullity in the absence of same. No court should, without jurisdiction indulge in an academic exercise and or fruitless effort. A court cannot also clothe itself with jurisdiction neither can parties do so on its behalf. In the light of this, it is therefore paramount to ensure that the court is on a firm footing and acting within its jurisdictional powers conferred thereon. PER CLARA BATA OGUNBIYI, J.C.A.

DUTY OF THE COURT: WHETHER THE COURT CAN PRONOUNCE ON AN ISSUE OF A PETITION THAT HAS LAPSED

The anchoring stop gage is the recent decision by the apex Court in the consolidated appeals no. SC.33/2011, SC.332/2011 and SC.335/2011 delivered on the 31st October, 2011 wherein their Lordships held that once a process had lapsed, the court can no longer pronounce on the some thereon. This is the law as per the Constitution of provision and which in other words unfortunately, operates to rid the Court of jurisdiction. Suffice to say therefore that the appeal, though technically is still within the 60 days provided by subsection (6), in actual fact there can no longer by implication be a live appeal with petition having lapsed on the 27th October, 2011. The appeal cannot exist in a vacuum but that which must be predicated upon a live and existing petition. The petition, the foundation of basis is extinct. You cannot build something on nothing and expect it to stand. This is trite and which needs no further explanation. Plethora of authorities also avail and offer warnings times without number that no Court should engage in an academic exercise. The jurisdiction of the Court had in the case lapsed on the 27th October, 2011. This is in view of the fundament of nature of jurisdiction which in its absence will confer no legal effect whatsoever. The locus classic of case of Madukolu v. Nkemdilim (1962) SCNLR page 341 is well settled and in point. With all said and done, it would appear that the determination of the appeal in this matter for all intent and purpose would only amount to an academic exercise. This is certainly unfortunate that it has been caught by the arm of the law. This court has no mandate to dwell on a fruitless exercise. The appeal at hand on the provision of Section 285(6) of the 1999 Constitution as amended is hereby therefore struck out. I also make no order as to costs, but rather that each party should bear his own costs. PER CLARA BATA OGUNBIYI, J.C.A.

JUSTICES

CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

1. NICHOLAS EJIJAH MSHELIZA
2. PEOPLES DEMOCRATIC PARTY Appellant(s)

AND

1. HON. ABDUL MUSA MSHELIZA
2. ALL NIGERIA PEOPLES PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National of and State House of Assembly Election Tribunal of holden of Maiduguri Borno State delivered on the 28th day of September, 2011 Corom: Hon. Justice B. S. Adamu, Hon. Justice M. O. Ighodalo and Hon. Justice M. M. Dodo dismissing the petition of the Appellants for want of jurisdiction.
The Appellants by a petition dated the 29th day of April, 2011 and filed on 30th April, 2011 seek the following reliefs against the Respondents viz:
(a) A DECLARATION of this Honourable Tribunal that the declaration and return of the 1st Petitioner by the 3rd Respondent on the 10th of April, 2011 at the Askira/Uba and Hawul Federal Constituency Headquarters in Azare is extant and valid the 1st petitioner having been adjudged as scoring the highest number of lawful votes cast at the election.
(b) A DECLARATION of this Honourable Tribunal that the 1st petitioner is the candidate returned as winner of the election of 9th April, 2011 for Askira/Uba and Hawul Federal Constituency.
(c) A DECLARATION of this Honourable Tribunal that the 2nd declaration and return of the 1st Respondent by the 3rd Respondent in Maiduguri on 11th April, 2011 is contrary to the provisions of the Electoral Act, 2010 illegal, null and void ab initio.
(d) Costs of this petition.
ALTERNATIVELY
(a) A DECLARATION of this Honourable Tribunal that the elections in Askira East Ward and Ngohi Ward in Askira/Uba Local Government Area were marred with irregularities, corrupt practices contrary to Electoral Act 2010 and therefore null and void.
(b) A DECLARATION of this Honourable Tribunal that the elections in Askira East Ward and Ngohi Ward were all marred with irregularities and corrupt practices contrary to the Electoral Act, 2010 and therefore null and void.
(c) A DECLARATION of this Honourable Tribunal that the purported results from Askira East Ward and Ngohi Ward in Askira/Uba Local Government Area were tainted with Electoral fraud, irregularities and corrupt practices and therefore null and void.
(d) AN ORDER of this Honourable Tribunal ordering a re-run election in Askira East Ward and Ngohi Ward in Askira/Uba Local Government Area in order to determine the winner of the election in the Constituency.
The Petition was endorsed with a fist of witnesses to be called of the hearing, witnesses’ statement on oath and list of documents to be relied upon of the trial.
Upon service of the petition on the Respondents they entered appearance and the 1st and 2nd Respondents respectively filed notices of preliminary object to the petition. On the one hand, the grounds upon which the 1st Respondent filed his notice of preliminary objection are as follows:
(a) The Honourable Tribunal lacks jurisdiction and or vives to entertain the petition as constituted.
(b) The Petition was filed without compliance with all the mandatory conditions precedent namely:
(i) The petitioners failed to state the score of the candidates who participated at the elections and who was declared winner as required by the law.
(ii) The paragraphs of the petition are not numbered consecutively, the reliefs in the petition do not flow from the pleadings and therefore the petition discloses no reasonable cause of action.
The 2nd respondent, on the other hand, based his preliminary objection on the following grounds viz:
(i) The petitioners did not state the scores of the candidates at the election as announced by the 3rd Respondent contrary to paragraph 4(1) (c) of the Electoral Act, 2010 (As Amended).
(ii) Ground B of the petition is not a ground of petition known to the Electoral Act 2010 (As Amended).
(iii) All the witness Statements on Oath attached to the petition are not valid for non compliance with the mandatory provisions of the Oaths Act.
That the petition as constituted discloses no reasonable cause of action against the 2nd Respondent and the Honourable Tribunal locks jurisdiction and/or vires to entertain it. On the 17th May, 2011 the 1st Respondent filed his reply to the petition wherein he incorporated the notice and grounds of the preliminary objection.
On the 1st June, 2011 the 2nd Respondent also filed its reply to the petition and incorporated the notice and grounds of preliminary objection to the petition.
On the 20th June, 2011 the Petitioners filed a written address in opposition to the preliminary objection of the 1st Respondent.
On the 12th September, 2011 the Petitioners filed o Motion on Notice for extension of time within which the Petitioners could file a counter affidavit in opposition to the 1st Respondent’s motion doted 14th June, 2011 and filed on the 15th June, 2011 and to deem the said counter affidavit as having been duty filed and served. The Tribunal heard arguments on this motion and granted the prayers on the 15th August, 2011. The Tribunal also heard arguments in respect of the preliminary objections of the 1st and 2nd Respondents on the same 15th August, 2011 and adjourned to 21st September, 2011 for ruling and for motion of the Petitioners to file first of additional documents.
The petition come up again on the 17th August, 2011 wherein counsel to the Petitioners sought to move the motion for filing of addition of documents but the Respondents opposed the some insisting that the ruling on the preliminary objection be taken in order to determine the fate of the petition. Meanwhile on the 20th September, 2011 the Petitioners filed additional list of authorities in respect of the preliminary objection.
On the 28th September, 2011 the Tribunal delivered its ruling and dismissed the petition on the ground that it lacked the necessary vive to entertain the petition. It is against this ruling that the petitioners have now appealed to this Honourable Court on three grounds of appeal.
The statement of material facts alleged by the Appellants as petitioners succinctly put were that:
(a) The 1st Appellant was the candidate of the Peoples Democratic Party (PDP), the 2nd Appellant, for the Askira/Uba and Hawul Federal Constituency of Borno State election held on the 9th day of April, 2011.
(b) The 1st respondent also contested the said election under the platform of the 2nd respondent, All Nigeria Peoples Party (ANPP)
(c) Apart from the 1st petitioner and the 1st respondent, other candidates who contested the election were Dr. Ayuba Ishaku sponsored by Kowa Party (KP) and Tiwulu M. Chali sponsored by Congress for Progressive Change (CPC).
(d) The results upon which the 1st petitioner was returned as the winner at the constituency Headquarters were stipulated at page 3 of the record of appeal.
(e) That however on the 11th Aprilo, 2011, the 3rd Respondent purportedly declared the 1st Respondent in Maiduguri outside the designated headquarters of Hawul Local Government Area as the winner of the election as against the declaration made on the 10th April, 2011.
(f) That the purported result from Askira/Uba Local Government Area which the 3rd Respondent incorporated in Maiduguri and purportedly announced the 1st Respondent as the winner of the election have been restated as per that contained at page 4 of the record of appeal.
(g) That this result is only from the ward summary sheet as there were no results from the units.
(h) That the 1st Respondent in his notice of preliminary objection attached the result of the election issued by the 3rd Respondent upon which the 1st Respondent was declared the winner of the election.
(i) That on simple arithmetical calculation of purported result from Askira/Uba Local Government Area see paragraph (f) above and the result from the 3rd Respondent will produce exactly the result relied upon by the 1st petitioner in this petition on the basis of which he was declared the winner on the 10th day of April, 2011.
(j) That the Tribunal failed to appreciate that once a petitioner has pleaded some results or scores in support of his petition he has satisfied the requirement of the Electoral Act and the ultimate proof at the trial is another kettle of fish. It is immaterial therefore whether the figures relied upon in the petition are not the exact figures declared by INEC or whether the figures or scores are inaccurate or contradictory. The issue of the accuracy or otherwise of the figures or scores is to be determined during the trial on the merits when the whole evidence will be before the tribunal.
The 1st Respondent in his brief of argument also related to the background history of the petition and gave a detailed declared results by the 3rd Respondent who in the result scored the 1st Respondent Abdu M. Mshefiza of the ANPP having obtained the highest votes of 32, 231. That Abdu M. Mshelizo was therefore declared the winner of the elections and accordingly returned elected on the 10th day of April, 2011.
The said Respondent gave the same story as the Appellants relating the petition filed against the declaration of following which the 1st Respondent on the 17th day of May, 2011, filed his notice of preliminary objection to the petition.
That on the 15th day of June, 2011, the 1st Respondent filed a motion on notice praying the Honourable Tribunal to dismiss the petition as being incompetent and also that the Election Tribunal locks the jurisdiction and/or vires to entertain the petition.
That on the 16th day of September, 2011, the 1st Respondent moved the Election Tribunal for on order dismissing the petition and on the 28th day of September, 2011 the Tribunal sitting at Abuja in a considered ruling mode the said order for dismiss of thereof.
That further aggrieved with the dismissal of the petition, the petitioners now Appellants have appealed to this court on three grounds of appeal which are contained in the notice of appeal at pages 276 – 279 of the record of appeal and raised three grounds of appeal. The reproduction of three grounds without their particulars are as follows:-
GROUND ONE
ERROR IN LAW
The learned members of the Tribunal erred in law when they held that the petitioners did not state the scores of the candidates and the name and the score of the person declared as the winner of the election and hereby came to a wrong decision which has occasioned a miscarriage of justice.
GROUND TWO
ERROR IN LAW
The learned members of the lower tribunal erred in law when they held that the petitioners must first state the real scores declared by the 3rd respondent (INEC) before stating the scores of the political parties challenging the scores declared by INEC in order to comply with the Electoral Act 2010 (As Amended) and thereby came to a wrong decision which occasioned a miscarriage of justice.
GROUND THREE
ERROR IN LAW
The learned members of the Tribunal erred in law when they heard the preliminary objection without the substantive suit which has occasioned a grave miscarriage of justice.
The record of appeal was transmitted to this court on the 12th October, 2011
On the 10th November, 2011 being the date the appeal was fixed for hearing an order was made following an application by the Appellants to amend their notice of appeal. The application was duly granted by this court and the amended notice of appeal filed 27th October, 2011 was deemed filed and served on the 10th November, 2011. A further related order was further made in respect of the amended Appellants’ joint brief of argument which was also deemed as filed on the said same 10th November, 2011. Issues were no longer joined on the preliminary objection raised by the 1st Respondent to the appeal who having withdrawn their preliminary objection was accordingly struck out by this court.
In arguing the appeal on the 10th November, 2011 both counsel Messrs S. N. Egwuonwu and U. Tatama on behalf of the Appellants and the 1st Respondent adopted their respective briefs of arguments. While that of the Appellants was deemed filed on the said same date, the 1st Respondent brief was dated and filed 21st October, 2011. Interchangeably, the Appellants’ learned counsel urged that the appeal be allowed, while the 1st Respondent impressed upon us to dismiss same. Counsel further relied and drew the court’s attention to the recent decision of the apex court in the consolidated appeals no. SC.333/2011, SC.332/2011 and SC.335/2011 delivered on 31st October, 2011 and submitted the appeal, having lapsed by the provision of Section 285(6) of the constitution 1999 as amended. In other words that with the petition, the subject matter of this appeal, having been filed on the 30th April, 2011 same had lapsed on the 27th October, 2011. That the Court on this score is not clothed with jurisdiction to pronounce on the same in the circumstance. Counsel urged that the appeal be struck out for having lapsed.
The learned counsel Mr. Amos Tori did not file any brief on behalf of his client the 3rd Respondent and had no submission to advance. The 2nd Respondent who despite service also of the hearing notice neither filed any brief of argument nor did he deem it necessary to appear in court.
On points of law and in response to the submission by the 1st Respondent’s counsel, Mr. Egwuonwu for the Appellant argued that Section 285(6) of the Constitution does not apply to the case at hand. This learned counsel predicated because, with the present appeal emanating from the decision of the Tribunal, same ought to be determined within 60 days from 28th April, 2011 being dote of the decision appealed against. That the 60 days will only expire on the 27th November, 2011. That the issues in this appeal are live issues since the period within which to determine the appeal had not lapsed.
While distinguishing the case at hand with that of the consolidated cases before the apex court, counsel emphasized that the question of section 285(6) of the constitution was not what was before the Supreme Court but rather, section 285(7) of same constitution. That if this appeal succeeds, the matter will have to go back to the Tribunal to start denovo since it was not taken on the merit.
Counsel in the result therefore urged that the appeal be allowed and an order made that the petition be heard on its merit.
For the determination of this appeal, the Appellants formulated two issues which are as follows:
1. Whether the petition was properly initiated in order to cloth the Tribunal with the necessary jurisdiction to entertain the same. (Grounds 1 and 2 of the Notice and grounds of appeal)
2. Whether it was proper for the Tribunal to entertain the preliminary objection in the face of the clear provision of paragraph 12(5) of the 1st Schedule to the Election Act 2010 (As Amended) which forbids the tribunal from doing so except such objection is taken alongside the substantive petition (Ground 3 of the Notice of grounds of Appeal)
On behalf of the 1st Respondent, two issues were also formulated as follows:
(a) Whether the Appellants stated the scores of the candidates who took part at the elections, if the answer is in the negative, what are the consequences of failure to state scores of candidates in an election petition.
(b) Whether an objection challenging the regularity and jurisdiction of an Election Tribunal to entertain an election petition has to wait to be taken at the hearing/trial of the petition.
Issue one relates to grounds one and two while issue two relates to ground three of the grounds of appeal.
It would be pertinent to restate that the determination of this appeal is clearly dependent upon the resolution of the question raised on Section 285(6) of the Constitution as per the submission by the learned 1st Respondent’s counsel Mr. U. Tatama. In other words, the reference made to the said constitutional provision touches squarely on the jurisdiction of this court, which the law holds as trite that it could be raised at any stage of the proceeding even if it is for the 1st time on appeal.

The reproduction of section 285(6) of the constitution 1999 and raised by counsel Mr. Tatama had this to say:
“(6) An Election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition”.
Closely related to the said subsection is subsection (7) which also states thus:
“(7) An appeal from a decision of an election tribunal of Court of appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal.”
It is of significance to note the use of the word shall in both subsections reproduced (supra).
As rightly submitted and argued by the learned appellants’ counsel, the subject matter before the apex Court was not sub-section 285(6) but subsection (7) of the said constitution. It is also not in controversy that the judgment the subject of appeal before us was delivered on the 28th September, 2011 which some obviously is within the 60 days as provided by subsection 285(7). However, and that notwithstanding, one cannot take the said subsection in isolation and away from the other related subsections for purpose of making a reasonable interpretation thereof .
It is on record and not controverted by all parties that the petition from which this appeal arose was dated the 29th April, 2011 and filed on the 30th April, 2011. By the provision of Section 285 subsection (6) of the Constitution therefore, the expectant life of the petition is 180 days from the date of filing of same which in this case was the 30th April, 2011. For purpose of computing the time therein, the period of 180 days had lapsed on the 27th October, 2011. This is a matter of calculation which is simple and elementary.
The question to pose of this juncture is, what therefore is the effect of subsection (6) in question on the said appeal now before this Court?
The learned appellants’ counsel in his contention argued the non effect of the subsection thereon and submitted further that the apex Court which was considering subsection (V) of the constitution should not operate to affect sub-section (6) now under consideration. The anchoring stop gage is the recent decision by the apex Court in the consolidated appeals no. SC.33/2011, SC.332/2011 and SC.335/2011 delivered on the 31st October, 2011 wherein their Lordships held that once a process had lapsed, the court can no longer pronounce on the some thereon. This is the law as per the Constitution of provision and which in other words unfortunately, operates to rid the Court of jurisdiction. Suffice to say therefore that the appeal, though technically is still within the 60 days provided by subsection (6), in actual fact there can no longer by implication be a live appeal with petition having lapsed on the 27th October, 2011. The appeal cannot exist in a vacuum but that which must be predicated upon a live and existing petition. The petition, the foundation of basis is extinct. You cannot build something on nothing and expect it to stand. This is trite and which needs no further explanation. Plethora of authorities also avail and offer warnings times without number that no Court should engage in an academic exercise. The jurisdiction of the Court had in the case lapsed on the 27th October, 2011. This is in view of the fundament of nature of jurisdiction which in its absence will confer no legal effect whatsoever. The locus classic of case of Madukolu v. Nkemdilim (1962) SCNLR page 341 is well settled and in point.
With all said and done, it would appear that the determination of the appeal in this matter for all intent and purpose would only amount to an academic exercise. This is certainly unfortunate that it has been caught by the arm of the law. This court has no mandate to dwell on a fruitless exercise. The appeal at hand on the provision of Section 285(6) of the 1999 Constitution as amended is hereby therefore struck out. I also make no order as to costs, but rather that each party should bear his own costs.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree.

PHILOMENA MBUA EKPE, J.C.A.: I have had a preview of the judgment just delivered by my learned Brother CLARA BATA OGUNBIYI, JCA. I agree entirely with the reasoning contained therein and the conclusion arrived thereat.
I wish to however briefly comment on the issue that this appeal though technically alive will not have a leg to stand on as the petition from which this appeal emanates has lapsed by effluxion of time. Reliance can be authoritatively placed on the recent consolidated case before the Apex Court cases in SC.33/2011, SC.332/2011 and SC.335/2011 wherein their Lordships stated that Courts cannot and extra day once time had lapsed I agree with my learned brother that the determination of this appeal will only amount to an exercise in futility. On the provision of Section 285 (6) of the 1999 Constitution as amended, this appeal is hereby struck out.
I also make no order as to costs.

Appearances

I. N. Egwuonwu and I. H. NgadaFor Appellant

AND

U. Tatama and Amos ToriFor Respondent