OGBENI RAUF ADESOJI AREGBESOLA v. BARISTER NIYI OWOLADE & ANOR (2015)

OGBENI RAUF ADESOJI AREGBESOLA v. BARISTER NIYI OWOLADE & ANOR

(2015)LCN/7756(CA)

In The Court of Appeal of Nigeria

On Thursday, the 29th day of January, 2015

CA/AK/EPT/GOV/266/14

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER AN APPELLANT CAN ONLY REPLY TO ISSUE RAISED AND ADDRESSED IN A RESPONDENT’S ADDRESS

An appellant can only reply to issues raised and addressed in a respondent’s Address. He cannot do more; to do otherwise is to raise fresh or new issues which have not been raised and argued by the opponent. That will be prejudicial, unfair and against the rule of fair hearing. There will be a breach of the audi alterem partem Rule. Per. MOHAMMAD A. DANJUMA, J.C.A

PRACTICE AND PROCEDURE: THE DUTY OF A PARTY IN THE PRESENTATION OF HIS CASE; THE DUTY OF A PARTY TO BE CONSISTENT IN THE PRESENTATION OF HIS CASE

A party shall be consistent in the presentation of his case both at the trial and on appeal. A party cannot be allowed to blow hot and cold at the same time, as that is evidence of lack of confidence and good faith in one’s case.

ELECTION PETITION: THE PROVISION OF THE ELECTORAL ACT; WHETHER THE INTENDMENT OF PARAGRAGH 12 (5) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010 IS TO FAST TRACT THE HEARING AND DETERMINATION OF ELECTION PETITION

The Tribunal was right when it followed the decision of PDP Vs. INEC to hold that the intendment of paragraph 12(5) of the First Schedule to the Electoral Act, 2010 (as amended) is to fast track the hearing and determination of election petition.
It was therefore a provision of the Electoral Act intended to prop up the constitutional provision relating to the expeditiously determination of an election petition. This sui-generis provision of the Electoral Act is not intended to hamstring the hearing and determination of an election petition on the merit. Far from it. The people’s will must be inquired into and determined as far as is possible. This duty, bestowed upon the Judex or courts by the constitution and Electoral Act cannot be truncated by undue technicality. I do not see, indeed I fail and cannot even see where injustice will be occasioned to the appellant who would, in any case, still have the benefit of the opinion of the court on his motions expressed at the close of hearing and during judgment. If there is merit in his motion, so be it; that will dispose of the petition; but where there is no merit, the substantive petition will have the verdict thereon delivered.
On the contrary, time must not be spent on hearing and Ruling instant on every motion merely because it raises an objection suggesting a challenge to the competence of a petition by the ipse dixit of counsel, but which in reality and upon scrutiny is not really one touching on the competence of the petition or the jurisdiction of the trial Tribunal. Paragraph 53 (5) of the First Schedule to the Electoral Act, 2010 provides as follows: “An objection challenging the regularity or competence of an election petition shall be heard and determined after the close of pleadings.”
It is obvious to me that the above provisions so much harped upon in contending that the motions ought to have been heard and disposed off on the close of pleadings is simply to be interpreted to mean no decision on the regularity or competence of an election petition shall be taken or rendered before the filing and exchange of pleadings. That is to say, there shall be no such decision, even upon the filing of pleadings by only the petitioner. All sides must first have filed their pleadings. That is to say, pleadings must first have been settled. This is to ensure that no side is prejudiced, that the other side must have been heard.
The determination of such objection is not specified to be fixed or to a period immediately at the close of pleadings or so soon after. For its fluidity of expression, the provision of the said paragraph 53(5) of the First Schedule to the Electoral Act, 2010 (as amended) is therefore left at the plenitude of the discretion of the trial Tribunal to hear the objection and determine same at any time after the close of pleadings. This could be at the judgment stage or shortly before the judgment stage and after hearing all the evidence of the parties or some of them only.
I think, the draughtsman has guardedly used the expression “shall be heard and determined after the close of pleadings.” If the draughtsman had intended that a hearing of the motion must be embarked upon and a Ruling made threreon before embarking on the hearing of the petition’ it would have said so or used such expressions as “shall be heard and determined at the close of pleadings or immediately after pleadings but before the hearing of the petition thereof,”

The intention of the draughtsman must be discerned from the words used; where the words used are clear and unambiguous, the court seized with the matter must give effect to it. The court must not go on a speculative voyage of discovery. To do so will amount to a usurpative assumption of legislative functions. See: Amaechi vs. INEC (2008) 5 NWLR (Pt.1080) 227 (supra); A.G. vs. Mutual Tontine west Minister Chambers Association Ltd. (1876) 1 Ex-D 469 per Jessel, MR. We accordingly’ apply Amaechi’s case (supra) as urged on us by the appellant’s learned counsel at paragraph 3.25 page 12 of the appellant’s Brief of Argument.
The decisions of the apex court on the futility of doing an act that did not have to be embarked upon in the first place as set out in Dr. Opara & Anor vs. Hon. Amadi & Anor (supra) and Congress for Progressive Change vs. Independent National Electoral Commission SC. 447/2000 delivered on November 28th, 2014 are good and binding decision but inapplicable, as there is no specific time lag for the hearing and decision on the motions impugned. Other than that, it shall be within the period limited for the disposal of the petition
The learned counsel for the appellant in his Brief of Argument at pages 8 – 9 at paragraph 3.18 rightly stated as follows: “Furthermore, the extent and mandatory provisions of paragraph 18(3) and (4), 47(1) and 53(5) of the First Schedule to the Electoral Act, 2010 (as amended) were designed by the legislature for speedy disposal of election petitions and no court or Tribunal has power to jettison mandatory statutory provisions designed to effectively determine the rights of the parties in terse.” Per. MOHAMMAD A. DANJUMA, J.C.A

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

OGBENI RAUF ADESOJI AREGBESOLA Appellant(s)

AND

BARISTER NIYI OWOLADE – 1ST RESPONDENT
INDEPENDENT NATIONAL ELECTORAL COMMISSION – 2ND RESPONDENT Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal on the Interlocutory Ruling of the Osun State Governorship Election Petition Tribunal sitting at Osogbo, delivered on 6th November 2014.
The Appellant, on the 23rd day of October, 2014, filed a motion on Notice for

(a) an order of the Tribunal striking out the Petitioner’s Reply same having been filed out of time prescribed by the Rules of this Honourable Tribunal;
(b) an order of the Tribunal deeming the petition as abandoned for the petitioner’s failure to apply for the issuance of Notice of Prehearing session after the close of pleadings; and

(c) an order of the Tribunal dismissing the petition for failure of the petitioner to apply for Issuance of Notice of Pre-hearing session before the expiration of the time prescribed by the Rules of the honourable Tribunal.

On the 4th day of November 2014, at the pre-hearing session Learned Counsel to the 1st Respondent (petitioner) orally applied that the Appellant’s preliminary objection be heard together with the petition. The Appellant and the Respondent opposed the said application.
In a considered Ruling delivered on 6th day of November 2014, the Tribunal ruled that “the pending motions shall be taken along with the petition”.
Dissatisfied with this Ruling, the Appellant filed a Notice of Appeal containing four (4) grounds of appeal on 20th day of November 2014.
The appeal was deemed heard on 28/01/2015.

The relevant briefs of argument for the appeal are as follows:

(a) Appellant’s brief of argument dated and filed on 12/12/2014 – settled by Chief Akinlolu Olujinmi, CON, San.
(b) 1st Respondent’s brief of argument dated 19/12/2014 and filed on 22/12/14 – settled by Adeloye Sobanjo Esq.
(c) Appellant’s Reply brief of argument dated 24/12/2014 and filed on the same day – settled by Kunle Adegoke Esq.

The Appellant nominated a sole issue in this appeal to wit:

Whether the Tribunal was right in its decision to hear the preliminary objection of the Appellant together with the petition when the said preliminary objection constitutes a challenge to the jurisdiction of the Tribunal to further entertain the petition for failure of the 1st Respondent to apply for issuance of notice of pre-hearing sessions within the time prescribed by law.

Learned Counsel for the 1st Respondent also formulated one (1) issue for the appeal as follows:

Whether the lower Tribunal was right when it held that Appellant’s applications dated 23rd October 2014 will be taken along with the petition.

The 2nd Respondent did not file any brief of argument. The summary of the Appellant’s position in this appeal as contained on pages 18 – 19 of the Appellant’s brief of argument are as follows:

1. The only means of challenging the jurisdiction of the Tribunal to entertain an abandoned petition where the petitioners failed to file an application for pre-hearing session within time stipulated by the Rules is by Motion on Notice which ought to be heard and determined at the pre-hearing session and cannot be deferred.

2. The decision of the Tribunal to leave the preliminary objection of the Appellant till the conclusion of hearing of the petition is an unmitigated assault on paragraphs 18 (3) and (4) of the first schedule to the Electoral Act 2010 by which the Tribunal, at the instance of the Appellant, is mandated to dismiss the petition in limine.

3. The failure of the Tribunal to hear and determine the Appellant’s preliminary objection at the pre-hearing session constitutes violence on the sacred provisions of paragraph 47 (1) of the first schedule to the Electoral Act 2010 by which the Tribunal ought to hear and determine all motions at the pre-hearing session.

4. The decision of the Tribunal to hear and determine the preliminary objections of the Appellant during pre-hearing session is an assault on paragraph 53 (5) of the first schedule to the Electoral Act, 2010 which mandates the Tribunal to hear and determine preliminary objections touching on the competence of a petition at the close of pleadings.

5. The Tribunal has no further jurisdiction to entertain the petition same having been abandoned by the parties as “there is nothing as useless as doing efficiently what should not have been done in the first place” per Rhodes-Vivour, JSC in Dr. Opara & Anor V Hon. Amadi & Anor (2013) 6 – 7 SC (Pt. 11) 49 at 68 – 30.

Learned Counsel for the 1st Respondent on the other hand submitted that the issue that is germane in this appeal is the interpretation of paragraph 53 (5) and paragraph 12 (5) of the Electoral Act 2010 as amended.
He referred to and quoted the said provisions. He noted that paragraph 53 (5) among other enabling provisions of the first schedule to the Electoral Act 2010 (as amended) took effect from 20th August 2010 whereas provision of paragraph 12 (5) which was a subsequent provision came into effect on 29th day of October, 2010.
This, according to Counsel, presupposes that paragraph 12 (5) is a new innovation in the Electoral Act 2010.
He referred to the cases of NTO & Anor V Global Soap & Detergent Ind. Ltd (2010) LPELR – 7997 pages 26 – 28; Makera & Anor V Galadanchi & Ors (2011) LPELR – 8821 (CA); Akintokun V LPDC (2014) 5 SCM 1 at 50; Oke & Ors V Mimiko & Ors (2013) 9 SCM 155 at 177 and PDP V INEC (2012) 7 NWLR (pt. 11300) 538 at 559 first, for the view that the intention of the law makers in enacting the provisions of Section 12 (5) of the Electoral Act 2010 (as amended) knowing fully well the existence of Section 53 (5) is in tandem with quick disposal of election cases within the time frame. Secondly, that “…the provisions of the later enactment are inconsistent with those of the earlier, the later by implication, amends the earlier so far as is necessary to remove the inconsistency between them …”.

Learned Counsel to the 1st Respondent further submitted that the Respondents (Appellants) having incorporated their objection in their reply cannot rightly argue that the objection ought to be taken before the hearing of the petition as they cannot approbate and reprobate.
It seems to me that in deciding the only issue in this appeal, there is no running away from the fact that the provisions of paragraphs 53 (5) and 12 (5) of the first schedule to the Electoral Act 2010 (as amended) are clearly inconsistent with one another. In such a situation the later provision by implication amends the earlier so far as is necessary to remove the inconsistency between them.
See. Akintokun V LPDC (2014) 5 SCM 1 at 50.
In the case of Oke & Ors V Mimiko & Ors (2013) 9 SCM 155 at 177 this court held thus:

“Paragraph 12 (5) stipulated that a Respondent who has an objection to the hearing of the petition shall file his reply and state the objection, which will be determined with the substantive petition. The phrase “hearing the petition” cannot be limited to only after pleadings have been exchanged paragraph 12 (5) of the 1st schedule is intended from its composition to reflect the sui generis nature of election matters.
The mischief obviously is to ensure objections raised do not derail the determination of the merit of a case by undue and unwarranted delay occasioned by the preliminary objection. With due respect. I entirely agree with this statement of law adumbrated in the judgment of the lower court”.

For ease of reference the provisions of paragraphs 53 (5) and 12 (5) of the first schedule to the Electoral Act 2010 (as amended) are reproduced as follows:

53 (5)
“An objection challenging the regularity or competence of an election petition shall be heard and determined after the close of pleadings”.

12 (5)
“A Respondent who has an objection to the hearing of the petition shall file his reply and state the objection therein, and the objection shall be heard along with the substantive petition”.
I do agree with the Learned Counsel to the 1st Respondent in this appeal that the intention of the law makers in introducing the provision of paragraph 12 (5) to the first schedule was to superimpose a new rule of determination over and above the existing rule in paragraph 53 (5) from the time the subsequent provision of paragraph 53 (5) of the first schedule took effect on 29th day of October, 2010.
In the unreported case of Ogbeni Rauf Adesoji Aregbesola and Senator Iyiola Omisore and 2 Ors Appeal No CA/AK/EPT/GOV/OS/237/2014 delivered on the 9th day of December 2014 the court on this same issue followed the decision in Oke & Ors V Mimiko & Ors (Supra) when it held that the provision of paragraph 12 (5) of the first schedule to the Electoral Act 2010 (as amended) indeed supersedes the provision of paragraph 53 (5) to all intents and purposes.
I have no reason to depart from the view which I earlier on expressed in the above mentioned unreported appeal of Aregbesola v Omisore & 2 Ors (supra).
In the circumstance, the lower Tribunal was right to have held in line with paragraph 12 (5) of the first schedule of the Electoral Act that pending motions shall be taken along with the petition.
This appeal lack merit and it is accordingly dismissed.
N30,000 costs is awarded in favour of the 1st Respondent as against the Appellant.

MOHAMMAD A. DANJUMA, J.C.A.: This is an appeal against the Ruling of the Governorship Election Petition Tribunal sitting at Osogbo and delivered on the 6th day of November, 2014, per E. N. Kpojime, (Chairman) V. I. Ofesi and A. I. Kutigi, JJ.
I agree with the reasoning and conclusion of my lord, Owoade, JCA that the appeal be dismissed.
The petitioner, who is the 1st respondent herein had challenged the election and return of the appellant, who in a converse role is the 1st respondent at the Election Tribunal, Osogbo on sundry grounds of undue return and violation of the Electoral Act and the provisions of the Election Manuals for the conduct of the Governorship Election, 2014 in Osun State.

At the prehearing session, the 1st respondent having obtained leave to file, move and argue certain motions outside the prehearing stage, filed a motion for an order that the petition be deemed abandoned on the ground that the petitioner did not apply for prehearing within time after the close of pleadings. The 2nd respondent filed a similar motion and a second motion for the striking out of certain paragraphs of the petition.

The petitioner’s learned counsel, Mr. Adeboye Sobanjo Esq. applied that those motions be taken along with the petition. The learned counsel for the 1st, 2nd and 3rd respondents urged that the motions be taken before proceeding to the hearing of the petition.
Having ruled that the objection taken on certain paragraphs of the petition were in the nature of a preliminary objection that would be taken along with the petition as ordained by paragraph 12(5) of the First Schedule to the electoral Act 2010, as Amended, the learned Tribunal further proceeded to rely on paragraph 53(5) of the First Schedule to the said Act and its other decision in EPT/GOV/05/01/14 – Senator Iyiola Omisore & Anor. Vs. Ogbeni Rauf Adesoji Aregbesola & Ors. and PDP vs. INEC and held that those motions shall be heard and determined along with the substantive petition.
Aggrieved by this stand of the Trial Tribunal that is still seized and hearing the substantive petition, the 1st respondent has lodged this appeal and upon 4 grounds of Appeal as contained on pages 184 – 189 of the Record of Appeal.
The Appellant filed the Appellant’s Brief of Argument on 12/12/14. By his Brief of Argument the Appellant formulated the following lone issue for determination, to wit:

Whether the Tribunal was right in its decision to hear the preliminary objection of the Appellant together with the petition when the said preliminary objection constitutes a challenge to the jurisdiction of the Tribunal to further entertain the petition for failure of the 1st respondent to apply for the issuance of notice of prehearing session within the time prescribed by law. Grounds 1, 2, 3 and 4 of the Notice of Appeal.

Arguing the said issue, as above set out, learned counsel for the Appellant submitted that the motion on notice of the Appellant of 21/10/14 complains that the 1st and 2nd respondents as petitioners failed to apply for the issuance of a prehearing session within seven days from the close of pleadings as mandated by paragraph 18(1) and that the petition ought to have been dismissed pursuant to paragraph 18(4) where the Respondent chose to apply for a dismissal under paragraph 18(1 ) of the 1st Schedule to the Electoral Act. Learned counsel argued that, the petitioner, having filed a motion on 23/10/14 for the dismissal of the petition, the Tribunal ought to have appreciated that election petitions are Suigeneris and the principle of taking preliminary objection with the substantive suit cannot override the provisions of paragraph 18(3) and (4); 47(1) and 53(5) of the First Schedule to the Electoral Act, 2010 (as amended).
Learned counsel contended that since paragraph 47(1) of the First Schedule to the Electoral Act, 2010 (as amended) requires that all motions shall be heard at the prehearing sessions, save in extreme circumstances with the leave of the Tribunal, the Tribunal was mandated to allow the Appellant move the motion immediately at the prehearing session for same to be disposed off. Counsel contended that “rather than allow this, the Tribunal ruled that it shall take the preliminary objection with the substantive petition.”

That the decision to take the motion on notice of the Appellant in the manner indicated, was at variance with paragraph 47(1) of the First Schedule to the Electoral Act 2010 (as amended).
That the Tribunal’s decision completely renders paragraph 18(3), 47(1) and 53(5) of the First Schedule to the Electoral Act ineffectual, ineffective and useless. That no court or Tribunal has the power to interprete the law to defeat the intention of the draughtsman of statutes.
That when an objection touches on the competence of a petition, it shall be determined at the close of pleadings and not thereafter. Learned counsel contended that it amounted to waste of time and resources to embark upon the hearing of a petition that ought to have been dismissed at the hearing and determination of the Appellant’s motion (without much ado). He referred to the cases of Congress of Progressive Change vs. Independent National Electoral Commission – Sc.447/2013 delivered on November, 28th 2014, per I. T. Mohammad, JSC; Dr. Opara & Anor vs. Hon. Amadi & Anor (2013) 6 -7 SC (pt. II) 49 @ 68 tines 20 – 30.
Arguing further on the need to discover and attain to the intention of the legislature by giving effect to the express and explicit words of a statute, the learned counsel found support and commended to us the case of Amaechi vs. INEC (2008) 5 NWLR (Pt. 1080) 227 @ 384 para E – F. It was further contended that the reference to the fact of much time having been wasted and therefore, the need the save time by avoiding further delay by taking the motion first as surmised by the Trial Tribunal tantamount to allowing the petitioner to benefit from his wrong of occasioning the delay of filing his Reply out of time and not also applying for a prehearing notice and yet wishing to have his petition heard and determined – when it ought to have been dismissed. That it will be prejudicial to the Appellant for the 1st Respondent, to have the benefit of delay caused by him.
Referring to Vinz Int. (Nig.) Ltd. Vs. Moruhundiya (2009) 11 NWLR (pt. 1153) 562 @ 579 it was argued that no person shall be permitted to benefit from his own default or wrong. That putting the Appellant on the course of defending a petition that ought to have been dismissed in limine amounts to putting the Appellant to huge expenses that are not necessary by defending a case that is liable to be dismissed.
That no amount of compensation would satisfy the time spent, energy wasted and huge resources and distraction from the business of governance.
Learned counsel, referred to and quoted profusely the decision of the Supreme court in Dada vs. Dosunmu (2006) 18 NWLR (pt. 1010) 13 @ 166; Inakoju vs. Adeleke (2007) 4 NWLR (pt. 1025) page 427 @ 590 @ 697 to the effect that Justice requires that the law or provisions of an Act or any regulation be followed as provided without any tingling or uneven application thereof as the scale of justice must be unevenly applied and all conditions precedent for the exercise of any Act or performance of any Act as stipulated by law must be observed. The decision of this court in Mohammed vs. Martins Electronics (2009) LPELR 3708, 39 – 40 was also referred to in urging us to observe and apply the provisions of the law strictly as Rules of Court must be observed in compliance and not in defiance. We were therefore urged to allow the appeal and to reverse the decision of the Tribunal to hear the preliminary objection along with the petition.
Furthermore, the Appellant dwelling on and relying on Section 16 of the Court of Appeal Act prayed this court to consider the preliminary objection of the Appellant and to dismiss the petition at the Tribunal. The learned counsel found support in the case of Okekereke vs. Yar’Adua & 34 Ors. (2008) 4-5 SC (part 1)206 @ 222-227 lines 30- 5, 228 – 230 lines 25 – 15 and urged us to hear the motion of the Appellant dated 23rd day of October, 2014 and dismiss the petition, thus allowing the appeal on the ground that the only means of challenging the jurisdiction of the Tribunal to entertain an abandoned petition where the petitioners failed to file an application for prehearing session within time stipulated by the Rules is by motion on notice which ought to be heard at the prehearing session and cannot be deferred. That the Tribunal had no jurisdiction to further entertain the petition same having been abandoned as there is nothing as useless as doing efficiently what should not have been done in the first place.
On his part, the 1st respondent filed the 1st respondent’s Brief of Argument on 22nd December, 2014. Therein, a lone issue to wit:

“Whether the lower Tribunal was right when it held that Appellant’s applications dated 23rd October, 2014 will be taken along with the petition.” (Grounds 1, 2 3 and 4)
The learned 1st respondent’s counsel having opined that the only issue calling for resolution is hinged on the interpretation of paragraph 53(5) and paragraph 12(5) of the Electoral Act, 2010. After producing the provisions of the two enactments supra, learned counsel pointed out that paragraph 53(5) among other enabling provisions of the First Schedule to the Electoral Act 2010 (as amended) took effect from 20th August, 2010, whereas the provisions of paragraph 12(5) which was a subsequent provision came to effect on 29th October, 2010 and that it was, therefore an innovation in the Electoral Act 2010. That it was put in place to ensure the quick disposal of “electoral law”, (l think counsel meant to say Electoral cases). Within time frame, learned counsel cited the cases of NTO & Anor vs. Global Soap and Detergent Industries Ltd. (2010) LPELR 7997 per Mbaba, JCA @ 26 – 28 paras F – B; Makera & Anor vs. Galadanchi & Ors. (2011) LPELR 8821 (CA) per Orji-Abadua, JCA submitted, also that Section 53(5) of the Act is by implication amended by the new provisions of Section 12(5). Referred also to Akintokun vs. LPDC (2014) 5SC @ 50 wherein the Supreme Court stated as follows:

“The provisions of the later enactment are inconsistent with those of the earlier, the later by implication, amends the earlier so far as is necessary to remove the inconsistency between them…”

The 1st respondent’s counsel also submitted that the Appellant had incorporated their objection in their Reply and cannot therefore rightly argue that it should be taken before the hearing of the petition. That they cannot approbate and reprobate. Oke & Ors. vs. Mimiko & Ors. (2013) 9 SCM 155 @ 177 paras H – I; PDP vs. INEC (2012) 7 NWLR (Pt. 11300) 538 @ 5559 were referred to. Counsel, referred us to our earlier position Ogbeni Rauf Adesoji Aregbesola vs. Senator Iyiola Omisore & 2 Ors. in Appeal No. CA/AK/EPT/GOV/05/237/2014 delivered on 9th December, 2014 wherein we upheld the position of the Tribunal and respondents on paragraph 12(5) of the First Schedule to the Electoral Act, 2010 (as amended) relating to same issue at hand now. Learned counsel distinguished Nwankwo vs. Yar-Adua (2010) 12 NWLR (Pt. 1209) 518 @ 598 and submitted and on the authority of PDP vs. INEC that Nwankwo vs. Yar-Adura (supra) was not an authority for the interpretation of paragraph 12(5) of the Electoral Act which was at the time of Nwankwo vs. Yar-Adua’s case not in existence. Ditto the case of Congress for progressive Change vs. Independent National Electoral Commission – SC 447/2013.
Contending further, that Election Petitions are sui-generis, i.e. being specific and of a class of their own and being different and governed by a different set of rules and principles, reliance was in that respect found in Obih vs. Mbakwe (1984) 1 SCNLR (vol. 1) 192; Abubakar vs. Yar’Adua (2008) 19 NWLR; Nwole vs. Iwuagwu (2004) 15 NWLR (Pt.895) 61; Egolum vs. Obasanjo (1999) 7 NWLR (Pt.611) 355; Nwobodo vs. Onoh (1984) 1 SCNR, Ogbebor vs. Danjuma (2003) 15 NWLR (Pt.803) p. 403; Bayo vs. Njidda (2004) FWLR (Pt. 192) p. 10; University of Lagos vs. Aigoro (1984) 11 SC 152; Maersk Line vs. Addide Investment Ltd. (2002) 11 NWLR (Pt.778) @ 383; Ohia vs. Uma (1998) 7 NWLR (Pt.556) 95 and a host of other cases were relied upon in urging this court to hold that the Tribunal was right in avoiding technicality in favour pursuing the hearing of the petition on its merit. That the Tribunal was right when it held as it did.
On the prayer of the Appellant in paragraph 3.41 of the Appellant’s Brief of Argument that this court should invoke Section 16 of the Court of Appeal Act and hear the Motion on Notice on its merits, we are urged to avoid this invitation as according to the learned counsel, it was a booby judicial trap laid on our way seeking that we set aside our earlier judgment in Appeal No. CA/AK/EPT/GOV/05/237/2014 delivered on the 9th day of December, 2014.
We are finally urged to dismiss this appeal with substantial cost because:
1. The appeal is unmeritous and frivolous on the ground that this same appellant filed a similar Appeal No. CA/AK/EPT/GOV/05/237/2004 between Ogbeni Rauf Adesoji Aregbesola vs. Senator Iyiola Omisore & 2 Ors.
2. The decision of the lower Tribunal to hear the objection of the Appellant with the substantive petition is in line with the provisions of paragraph 12(5) of the First Schedule to the Electoral Act, 2010 as (amended).

The appellant further filed a Reply Brief to the 1st respondent’s Brief.
It is dated and filed on the 24th December, 2014. In the said Reply Brief the appellant’s learned counsel took exception to the narrowing of the 1st respondent’s argument to paragraphs 53(5) and 12(5) of the Electoral Act 2010, learned counsel argued that “the most appropriate provision to be considered herein is paragraph 18(3) (4) (5) of the First Schedule to the Electoral Act, 2010 (as amended.)
Before proceeding, it must be understood that no arguments on the said paragraph 18 (3) (4) (5) were raised by the 1st respondent in his 1st respondent’s Brief. It cannot therefore be a subject of an appellant’s Reply Brief. An appellant can only reply to issues raised and addressed in a respondent’s Address. He cannot do more; to do otherwise is to raise fresh or new issues which have not been raised and argued by the opponent.
That will be prejudicial, unfair and against the rule of fair hearing. There will be a breach of the audi alterem partem Rule.
No leave; of this court has been sought nor granted to argue on the said paragraph 18(3) and (5) of the Electoral Act 2010 (as amended) and all references and arguments thereto in the appellant’s Reply Brief are discountenanced and expunged. Even if the said paragraph 18 (3) (4) and (5) may be raised in argument without leave and in Reply of appellant, I would with all modesty think that the appellant cannot rely on same to reap any benefit by having the petition adjudged as an “Abandoned Petition.”
This is because, the appellant as a respondent, has a corollary or corresponding duty to apply for the issuance of a notice for a prehearing session where the petitioner failed to so apply. Not having done so, a court of equity – i.e. a court of conscience would not allow such a party to set a booby trap so as to benefit from his own inaction. If the appellant desired to take the benefit thereof a petition as abandoned, it behoved on him to apply for the issuance of a prehearing session notice, when he noticed that the petitioner had defaulted or failed. He that seeks equity must do equity.
Not having done so he cannot raise that as an argument when the discretion had “moved over” to the court or Tribunal to be exercised suo motu.
what is more, the arguments on the said paragraph 18 of the Electoral Act did not arise from the ground of appeal or the judgment appealed from. The argument therefore is incompetent and shall be disregarded as done. Gravely obvious is the fact that allowing argument on the score of the said paragraph 18 of the First Schedule to the Electoral Act is to allow the appellant herein reformulate his case and to argue an “enlarged” appeal by having a second bite on the cherry – dangerous sacrilege which is not to be aided by a court of justice.
To however appreciate the fullness of the appellant’s Reply Brief of Argument, it is summarised thus:- that the petitioner/1st respondent (herein) having filed his Reply to the 1st respondent’s Reply (in the lower Tribunal) out of time, there was no Reply upon which pleadings could be said to have been settled and that the objections could not have been apparent on the pages of the petition to warrant the invocation of paragraph 12(5) of the electoral Act. That it was only in such apparent situations that par. 12(5) could be invoked.

My lords, if the objection was not apparent on the face of the petition in the absence of the petitioner’s Reply filed within time for prehearing, then just as the 1st respondent did not apply, the petitioner/1st respondent now, could not have been expected to apply as no pleadings were settled then.
What is good for the goose is good for the gander!
This court, I dare say with humility is human; but may not be confused lightly as contended; as it appreciates that the woolly antics in adjudication must be contemplated and the studious umperic stand necessitated by “ecclesiastical” application of law and justice in the purity of conscience and learning as endowed and acquired must not be wavered from either deliberately or carelessly or by slumber, as the judex holds a position of trust and responsibility. The appellant’s Reply sought to distinguish our decision in Ogbeni Rauf Adesoji Aregbesola vs. Senator Iyiola Omisore & 2 Ors. Appeal No. CA/AK/EPT/GOV/05/237/2014 of 9th December, 2014 as not covering par. 18 of the Electoral Act 2010, (as amended) but as relating to par. 12 (5) and 53 (5) simpliciter; and that the argument on locus standi raised in the 1st respondent’s Brief should be discarded as not arising from the appellant’s Brief of Argument. His learned counsel, in apparent challenge to our decision in Rauf’s case of 9th December, 2014, submitted that the sui-generic nature of election petition requires that time saving devices of the nature contained in paragraph 18(3) and (4) ought not to be defeated by undue advertence to paragraph 12 (5) which deal with where the objection could be and is embedded in the Reply to a petition.
The learned counsel, in the appellant’s Reply, also argued that the petition be adjudged as abandoned on the basis of the decisions of this court in Action Congress of Nigeria vs. Nomiye (2012) 7 NWLR (Pt. 1300) 568 @ 588 paras. E – G and Ajayi vs. Nomiye (2012) 7 NWLR (Pt.1300) 593 @ 617 para. A -E per Iyizoba, JCA that where a notice for a prehearing session is not applied for within time, the petition should be adjudged abandoned in compliance with the requirement of paragraph 18 of the First Schedule to the Electoral Act, 2010 and the need for expeditious hearing. That the “fuctus officio: stipulation against the Tribunal was a clear confirmation that the Tribunal had no jurisdiction to proceed to hear the petition when it was deemed abandoned by operation of law.

That the Tribunal abdicated its responsibility and embarked upon a hearing without jurisdiction, when it did not hold that the petition was abandoned upon the appellant’s motion which it did not consider at the stage it ought to have done so. The gravamen of the appellant’s appeal is that the motion for dismissal of the petition of the 1st respondent ought to have been heard and determined in limine and during the pre-trial session and not afterwards; and that the pre-trial session notice having not been applied for by the 1st respondent, his petition was deemed abandoned, and that the Tribunal had no option other than to dismiss the petition as an abandoned petition. It was also contended that the Reply of the petitioner to the 1st and 3rd respondents were filed out of time and that there was, therefore, no extant replies. That the Tribunal had an obligation to dismiss the petition, even if the respondents did not so apply, as neither party had applied for issuance of a notice for a prehearing session.
Without overbeating the issue, I should restate that the provisions of paragraph 47 of the Electoral Act 2010 does not necessarily mean that the decision on an application in an election petition must be given at the pre-trial session or shortly afterwards. Just as the motions may be heard outside the prehearing session with leave of court (which entails the discretion of the Court/Tribunal, so also the Ruling thereof may also be delivered outside the prehearing session and during hearing or conclusion of hearing.
Whether the application relates to the competence of the petition or to the jurisdiction of the Tribunal, the Tribunal has the jurisdiction to hear it along with the substantive petition. This court had in Appeal No. CA/AK/EPT/GOV/05/237/2014 between Ogbeni Rauf Adesoji Aregbesola vs. Senator Iyiola Omisore & 2 Ors. held thus:

“Paragraph 53(5) is now impliedly repealed by paragraph 12(5) of the First Schedule to the Electoral Act. By paragraph 12(5) of the First Schedule to the Electoral Act, an objection to the hearing of a petition is authorised to be raised in the respondents’ Reply to the petition.”

Learned counsel for the appellant thinks the position is rather fluid when the challenge to the competence or regularity of the election petition is not contained in the reply but is brought by way of motion on notice. I see no difficulty here. If it is challenge to the Tribunal hearing the petition whether the objection is stated in the reply or is brought by motion on notice, the Tribunal has jurisdiction to hear it along with the substantive petition. Paragraph 12 (5) of the First Schedule to the Electoral Act is intended to reflect the sui-generis nature of election petitions. The mischief it intends to cure is to ensure that objections raised do not derail the determination of the merit of a case by undue and unwarranted delay occasioned by the preliminary objection. See Oke & Ors. vs. Mimiko & Ors. (2013) 9 SCM 155 and PDP vs. INEC (2012) 7 NWLR (Pt. 1130) p.538. I am therefore of the view that although the appellant filed two motions on notice apart from tire objections incorporated in his reply, the Tribunal rightly invoked the provisions of paragraph 12(5) of the First Schedule to the Electoral Act 2010 when it decided to take the preliminary objections along with the substantive petition.”

The facts and circumstances of the appeal are similar to those in the instant appeal. The state of the law is the same and we so hold. We have no reason to depart from the position taken as aforesaid. The learned trial Tribunal was right when it reasoned that the 2nd applicant/respondent learned counsel was blowing hot and cold in one breadth when he submitted that the Tribunal ought not proceed to determine the petition but to strike it out and yet in another breadth urged in the alternative that the Tribunal could hear the motion but reserve Ruling thereon until the conclusion of trial. This is double talk. A party shall be consistent in the presentation of his case both at the trial and on appeal. A party cannot be allowed to blow hot and cold at the same time, as that is evidence of lack of confidence and good faith in one’s case.
The trial Tribunal was right when it so held that “we do not see any difference between the alternative submission and the stand taken by the tribunal”. We agree with the trial Tribunal when it distinguished Nwankwo vs. Yar’Adua’s case relied upon by the appellant, as the motions that were urged to be taken and Ruling delivered thereon were taken or filed at the prehearing stage and not out of it as in Nwankwo vs. Yar-Adua’s case.
The deprecation of the non compliance as made by the apex court is therefore inapplicable to this case.

On the contrary, the decision in the case of PDP vs. INEC (2009) 12 NWLR (Pt. 1209) page 518 @ 558 paragraph H referred to by the 2nd respondent at the lower Tribunal is, with respect, an exercise of shooting at ones leg, as it is a decision which as rightly applied by the trial Tribunal goes in favour of the respondents herein (that is the petitioner and the 2nd and 3rd respondents at the trial Tribunal). The Tribunal was right when it followed the decision of PDP Vs. INEC to hold that the intendment of paragraph 12(5) of the First Schedule to the Electoral Act, 2010 (as amended) is to fast track the hearing and determination of election petition.
It was therefore a provision of the Electoral Act intended to prop up the constitutional provision relating to the expeditiously determination of an election petition. This sui-generis provision of the Electoral Act is not intended to hamstring the hearing and determination of an election petition on the merit. Far from it. The people’s will must be inquired into and determined as far as is possible. This duty, bestowed upon the Judex or courts by the constitution and Electoral Act cannot be truncated by undue technicality. I do not see, indeed I fail and cannot even see where injustice will be occasioned to the appellant who would, in any case, still have the benefit of the opinion of the court on his motions expressed at the close of hearing and during judgment. If there is merit in his motion, so be it; that will dispose of the petition; but where there is no merit, the substantive petition will have the verdict thereon delivered.
On the contrary, time must not be spent on hearing and Ruling instant on every motion merely because it raises an objection suggesting a challenge to the competence of a petition by the ipse dixit of counsel, but which in reality and upon scrutiny is not really one touching on the competence of the petition or the jurisdiction of the trial Tribunal. Paragraph 53 (5) of the First Schedule to the Electoral Act, 2010 provides as follows:

“An objection challenging the regularity or competence of an election petition shall be heard and determined after the close of pleadings.”
It is obvious to me that the above provisions so much harped upon in contending that the motions ought to have been heard and disposed off on the close of pleadings is simply to be interpreted to mean no decision on the regularity or competence of an election petition shall be taken or rendered before the filing and exchange of pleadings. That is to say, there shall be no such decision, even upon the filing of pleadings by only the petitioner. All sides must first have filed their pleadings. That is to say, pleadings must first have been settled. This is to ensure that no side is prejudiced, that the other side must have been heard.
The determination of such objection is not specified to be fixed or to a period immediately at the close of pleadings or so soon after. For its fluidity of expression, the provision of the said paragraph 53(5) of the First Schedule to the Electoral Act, 2010 (as amended) is therefore left at the plenitude of the discretion of the trial Tribunal to hear the objection and determine same at any time after the close of pleadings. This could be at the judgment stage or shortly before the judgment stage and after hearing all the evidence of the parties or some of them only.
I think, the draughtsman has guardedly used the expression “shall be heard and determined after the close of pleadings.” If the draughtsman had intended that a hearing of the motion must be embarked upon and a Ruling made threreon before embarking on the hearing of the petition’ it would have said so or used such expressions as “shall be heard and determined at the close of pleadings or immediately after pleadings but before the hearing of the petition thereof,”

“Furthermore, the extent and mandatory provisions of paragraph 18(3) and (4), 47(1) and 53(5) of the First Schedule to the Electoral Act, 2010 (as amended) were designed by the legislature for speedy disposal of election petitions and no court or Tribunal has power to jettison mandatory statutory provisions designed to effectively determine the rights of the parties in terse.”
Having correctly submitted as above, which is in tune with the position of this court and the trial court, why the insistence on appeal? That the appeal be further delayed? Is it intended to also prolong the hearing and determination of the petition? And in the face of the time limitation constitutionally fixed or imposed on the hearing and determination of election petitions? We are not also unmindful of the sui-generic nature of election petitions and appeals. They do have time lags fixed as “the rock of Gibraltar.” Unless that constitutional imprimatur and limitation fixed for good cause is removed, the courts may always and will continue to reason and act as did the trial Tribunal in circumstances, where it feels threatened by time “shortage” or limitation and in situations it cannot enlarge, as in the petition leading to this appeal; as the law supports that line of action. I do not think it is just and proper to further allow the Tribunal or the Tribunal should allow the appellant to further contribute to the delay merely because the respondent is said to have caused some delay. The effect of whatever delay will still be pronounced upon after the close of pleadings and hearing on the merit.
I do not see the reason for the insistence or seeming belief that the outcome of the decision on the “alleged delay” must be favourable to the appellant. A party must not be presumptuous, just as counsel are cautioned by the apex court not to indulge litigants with assurances of victory or the certainty of their cases as, justice is not a one way traffic.
The status of a petitioner’s Reply that was filed out of time to a respondent’s Reply in a petition can still be determined and pronounced upon in the main appeal and at judgment. The question of unjustness in relation to paragraphs 18,47(1) and 53(5) of the First Schedule to the Electoral Act 2010 (as amended) does not arise nor did it arise at the trial or judgment. The trial Tribunal rightly interpreted and applied those provisions to the facts and circumstances of the petition and could not have abdicated its statutory and constitutional duty of interpreting and applying the law. The civil societies have no role in the matter nor is the National Assembly a human right community as reasoned in paragraph 3.30, page 13 of the appellant’s Brief of Argument.
On the whole, the clear and unambiguous language of pars. 47(1), paragraph 18 and 12(5) of the Electoral Act grant amplitude of discretion to the Tribunal to hear the objections contained in the motions complained of, along with the petition and to give or render decisions thereon along or in the substantive petition. This court, therefore, has no reason, in the circumstances, to usurp the discretion of the trial Tribunal under the guise of the invocation of Section 16 of the Court of Appeal Act, 2004 and in considering the preliminary objection of the appellant and in dismissing the appeal. This court has no power to vary the exercise of the discretion of the Tribunal or set aside the order or Ruling of the Tribunal based on its discretion merely because it would have exercised it differently. The discretion, has not been shown to have been exercised on wrong principles of law or that it is unjust or inequitable or against the law.
Indeed, this appeal is one that appears to be one challenging the exercise of discretion. In any event, this has to be by leave of the lower Tribunal or this court.
If one must emphasise, I should say that this court does not exercise all the powers and the functions of the Election petition Tribunal as conferred under the Electoral Act. Section 16 of the Court of Appeal Act 2004, in relation to Election petitions, may not apply wholesale and to extend to the hearing of the motions of the appellant dated 23rd day of October, 2014.
I would rather, reason that this court can, under Section 16, only make such order as the Tribunal ought to have made, if having heard the petition or motion(s), it failed to so order or make. To invoke Section 16 of the Court of Appeal Act is to sit on appeal over our earlier judgment and to depart therefrom on no good ground. We refuse the invitation. The case of Okereke vs. Yar’Adua (supra), though good law, is with respect, inapplicable to this case as in that case, there was a clear finding that the petitioner and respondent both failed to bring an application for dismissal of the pending petition at the lower court. Whereas in the instant case, there was no such finding made as yet by the lower court and a refrain from dismissing the petition in consequence. That not being the case, we cannot invoke section 16 in favour of the appellant herein as the condition for its invocation did not exist.
A perusal of the appellant’s Reply to the 1st respondent’s Brief indicates that the appellant did not apply for the petition to be struck solely on the ground that the 1st respondent petitioner did not apply for the issuance of a prehearing notice. There is also a complaint that the 1st respondent’s Reply to the Reply by the respondent/appellant to the petition was filed out of time. There was, therefore, not just a complaint relating to the application urging that the petition be deemed abandoned, the grounds of objection to the Reply of the petitioner to the respondent’s Reply (as being out of time) were such that challenged the jurisdiction of the Tribunal, its Validity or competence to proceed. Furthermore, since there were objections on other grounds by the other respondent, the interest of justice demanded that the petition be heard on the merit and all the views, of all the contending parties, including both respondents be inquired into. Justice is not a one way traffic. What can be gleaned from the fact that the 2nd respondent at the trial Tribunal did not appeal the decision appealed herein? I surmise the answer to be that the 2nd respondent would want to know the outcome of their motions as filed even within the judgment.
Abandoned or not, the Court/Tribunal would have to so pronounce to that effect at a stage or point in time and within its discretion and interest of justice. This exercise and duty to pronounce, the Tribunal has reserved to a stage at the hearing. It cannot be faulted.
On the whole, this appeal lacks merit. It is dismissed.
Cost: I award a cost of N50,000.00 only against the appellant and in favour of the 1st respondent herein.

JAMES SHEHU ABIRIYI, J.C.A.: I read before now the draft of the judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA. I agree that this appeal be dismissed.
In appeal NO: CA/AK/EPT/GOV/OS/237/2014, delivered on 9th December 2014 this Court held that despite the filing of two separate motions apart from the objections incorporated in the appellant’s reply the Tribunal rightly invoked the provision of paragraph 12(5) of the First Schedule to the Electoral Act 2010 when it decided to take all objections along with the substantive petition.
Paragraph 12(5) of the First Schedule to the Electoral Act 2010 which was a later enactment was undoubtedly made for a purpose. That purpose was to enable election petition tribunals handle election petitions without undue reliance on technicalities.
For this and the more detailed reasons contained in the lead judgment, I too am of the view that the election petition tribunal rightly ordered that all the four motions pending before it shall be taken along with the petition.
The appeal is also dismissed by me. I abide by the order as to costs.

Appearances

For Appellant

AND

For Respondent