OGBENI RAUF ADESOJI AREGBESOLA v. SENATOR IYIOLA OMISORE & ORS
(2014)LCN/7623(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of December, 2014
CA/AK/EPT/GOV/05/237/2014
RATIO
ELECTION PETITIONS; THE NATURE OF ELECTION PETITIONS
It is now trite law that election petitions are sui generis that is, that they are in class of their own and are governed by different rules. An election petition is by nature a very peculiar proceeding which distinguishes it from an ordinary civil proceeding. See Abubakar v. Yar’adua (2008) 19 NWLR (Pt 1120) 1. In Nwole v. Iwuagwu (2004) 15 NWLR (Pt 895) 61 the Court, held thus:
“The courts have often harped on the need to do substantial justice in most cases without dwelling too much on technicalities … in all election matters, the use of technicalities should be avoided, as technicalities merely help to shut the opponent out. It never resolves basic issues in controversy. Once it is agreed that election petitions are in a class of their own, the handling of the matter too must take a form devoid of legal technicalities that tend to leave the litigants more confused. Boldness of a high degree is required of the electoral tribunal, which must never be seen to shy away from obvious grave allegations.”
When paragraph 53 (5) was in being paragraph 12 (5) came in on the 29th October, 2010 like a Trojan Horse. Paragraph 53 (5) itself came into effect on 20th August, 2010. Paragraph 12 (5) was undoubtedly enacted for a purpose. That purpose was to enable election petition tribunals to handle election petitions without undue reliance on technicalities. Although paragraph 53 (5) was not repealed, the law is that the provisions of the later enactment amend the earlier so far as necessary to remove the inconsistency between them. See Akintokun v LPDC (2014) 5 SCM 1, Ogbunaya v. Akudo (1979) 6-9 SC 32 and DPP v INEC (1999) 11 NWLR (pt 626) 200.
Paragraph 53 (5) is now impliedly repealed by paragraph 12 (5).
By paragraph 12 (5) of the First Schedule to the Electoral Act an objection to the hearing of a petition is authorized 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 a 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 v. Mimiko & ors (2013) 9 SCM 155 and PDP v. INEC (2012) 7 NWLR (Pt 1130) 538. per. JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMAD AMBI-USI 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
SENATOR IYIOLA OMISORE
PEOPLE DEMOCRATIC PARTY (PDP)
INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Governorship Election Petition Tribunal sitting at Osogbo delivered on the 4th November, 2014.
The Appellant who is the 1st Respondent in the petition by motion on notice dated 16th October, 2014 challenged the competence of the Tribunal to hear the petition because the petitioner had not indicated in the petition that he had a right to present the petition as required by paragraph 4 (1) and (2) of the Electoral Act 2010 (as amended).
The Appellant also filed another motion on notice on 21st October, 2014 praying for an order of the Tribunal to strike out the petitioners’ Reply to the 1st Respondent’s Reply same having been filed out of time and dismissing the petition, the Petitioners having failed to apply for issuance of Pre-hearing Notice as prescribed by paragraph 18 (1) of the First Schedule to the Electoral Act 2010 (as amended).
On 30th October, 2014 in the course of pre-hearing session, learned counsel for the Petitioners referred the Tribunal to the provision of Paragraph 12 (5) of the First Schedule to the Electoral Act 2010 (as amended) and entreated the Tribunal to take the motions/objections of the 1st Respondent/Appellant along with the petition considering the fact that there was time limitation for the hearing of election petitions. The tribunal in a considered ruling ruled thus:
“It is not a contested fact that time is of the essence in the determination of this petition. The Tribunal has less than 4 months to determine this petition. There are over a thousand witnesses and numerous documents listed by the parties. The Respondents have not complained of any injustice or miscarriage that would be occasioned to them if these two motions are taken along with the petition. We have also not seen any prejudice or miscarriage of justice that will be caused to the Respondents. It is in consideration of the above, the interest of justice and the speedy trial of this petition that we hereby order that all the 4 motions now pending in this petition shall be taken along with the petition.”
Dissatisfied with the ruling the Appellant filed a Notice of Appeal against it on 7th November, 2014. The Notice of Appeal contains six grounds from which the Appellant presented the following issues for determination:
1. Whether the Tribunal was right in its decision to hear the Appellant’s preliminary objection of 16/10/2014 challenging the 1st and 2nd Respondents’ locus standi to present the Petition together with the Petition. (Ground 1 of the Notice of Appeal)
2. Whether the Tribunal was right in its decision to hear the preliminary objection of the Appellant of 22/10/2014 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 and 2nd Respondents to file for issuance of pre-hearing sessions within time prescribed by law. (Grounds 2, 3 and 4 of the Notice of Appeal)
3. Whether the Appellant must show what injustice, prejudice or miscarriage of justice he shall suffer before the Tribunal is obliged to hear and determine the Motion on Notice filed on 21/10/2014. (Grounds 5 and 6 of the Notice of Appeal).
The 1st and 2nd Respondents formulated a lone issue for determination although they filed a notice of preliminary objection. The sole issue formulated by the 1st and 2nd Respondents is whether the Lower Tribunal was right when it held that Appellant’s applications dated 16th October, 2014 and 21st October, 2014 will be taken along with the petition.
Arguing the appeal, it was the submission of learned counsel for the Appellant that the Tribunal was wrong in holding that the preliminary objection of 16th October, 2014 challenging the locus standi of the 1st and 2nd Respondents to present the petition should be heard together with the petition because paragraph 12 (5) of the 1st schedule to the Electoral Act deals only with objections included in the replies to petitions and not when same is brought by way of motion on notice after close of pleadings as in this case. Secondly the appellant’s motion was brought under paragraph 47 (1) which is separate and distinct from paragraph 12 (5).
It was submitted that the objection raised in the Reply was just an indication of the intention of the Appellant to challenge the locus standi of the Petitioners and the objection was properly raised by motion on notice of 16/10/2014. That the Appellant had made a choice to come by way of motion on notice so that the issue of the locus standi of the Petitioners could be determined at the pre-hearing session.
It was submitted that the decision of the Tribunal to hear the motions together with the petition violated paragraph 53 (5) of the 1st schedule to the Electoral Act.
It was submitted that the provisions of paragraphs 47 (1) and 53 (5) are mandatory. It was submitted that the provisions of paragraph 47 (1) and 53 (5) of the first schedule to the Electoral Act require strict compliance and same cannot be waived by reliance on paragraph 12 (5) where objection touches the jurisdiction of the Tribunal.
The Court was urged to resolve issue 1 in favour of the Appellant and reverse the decision of the Tribunal to determine the motion of 16/10/2014 with the petition.
On issue 2, it was submitted that the approach of the Tribunal in relying on the cases of Continental Trust Bank & 5 ORS v. Balogun (2003) FWLR (Pt 162) 1908 and The Senate President FRN v. Nzeribe (2004) 9 NWLR (Pt 878) 251 does not follow in the nature of election petition which is sui generis and in which time is of the essence.
It was submitted that cases in which preliminary objections were heard with the substantive suits were/are usually commenced by originating summons which do not require oral evidence.
It was further submitted that where there are mandatory provisions like Paragraphs 18 (3) and (4), 47 (1) and 53 (5) the Tribunal cannot exercise unfettered discretion to hear a preliminary objection touching on jurisdiction together with the petition.
On issue 3, it was submitted that the Tribunal cannot on the ground of interest of justice decline to follow the rules of procedure which bind it in an election petition which is sui generis. It was also submitted that the Tribunal was wrong in holding that it would determine the preliminary objection with the petition since it could not see the miscarriage of justice or injustice that the Appellant would suffer.
The Respondents’ grounds of objection were that grounds 1 and 3 of the grounds of appeal were of mixed law and facts which required leave of the Tribunal or this Court. Grounds 2, 4, 5 and 6 are in respect of obiter dictum from which there cannot be an appeal and that some of the grounds are argumentative, repetitive, vague, nebulous and verbose.
Arguing the preliminary objection, it was submitted that where no leave is sought as in this interlocutory appeal such appeal is incompetent and should be struck out. We were referred to Audu v. I.N.E.C. (No. 1) 2010 13 NWLR (Pt 1212) 421 and Ndayako v. Mohammed (2005) 6 NWLR (pt 920) 86 at 92. It was submitted that Grounds 1 and 3 of the Notice of Appeal involve the exercise of discretion which is a matter of mixed law and facts.
It is surprising learned counsel for the Respondents argued that the Appellants formulated two grounds of appeal from the ratio decidendi of the ruling and four grounds from obiter dictum. The law, it was submitted is that it is not everything said by a Court that can be subject of appeal. The Grounds of appeal, it was submitted, must arise from the ratio decidendi of the case. We were referred to Ejeka v State (2003) 7 NWLR (pt 819) 408 at 424, Saraki v. Kotoye (1992) 9 NWLR (Pt 264) 156 at 184, Chami v. UBA PLC (2010) 6 NWLR (Pt 1191) 474 at 502.
Arguing the main appeal, learned counsel for the Respondents submitted that the issue for determination is basically on the interpretation of paragraphs 53 (5) and 12 (5) of the 1st Schedule to the Electoral Act 2010 (as amended).
It was submitted that paragraph 53 (5) took effect from 10/8/2010 whereas the provision of paragraph 12 (5) which was a subsequent provision came into effect on 29th October, 2010. It was submitted that the intention of the Law Makers in enacting the provisions of section 12 (5) was intended to achieve quick disposal of election petitions within the time frame. We were referred to NTO & ANOR v. GLOBAL SOAP & DETERGENT IND. LTD. (2010) LPELR 7997. Makera & Anor v Galadachi & Ors (2011) LPELR 8821.
Paragraph 53 (5) of the 1st Schedule to the Electoral Act is now by implication amended by the provision of paragraph 12 (5). Reliance was placed on Akintokun v. LPDC (2014) 5 SCM 1 at 50.
It was submitted that the Tribunal was right to have held that in line with paragraph 12 (5) of the 1st Schedule to the Electoral Act all objections should be taken along with the petition because election petitions are time-bound and a party will not be allowed to resort to any subterfuge to frustrate the intention of the Electoral Act that petitions be disposed of expeditiously.
We were referred to part of the ruling of the Tribunal in which it observed that the appellant incorporated objections to the competence of the petition in his reply. It was submitted that having incorporated his objection in his reply he would not rightly argue that the objection ought to be taken before the hearing of the appeal. We were referred to Oke & Ors v. Mimiko & Ors (2013) 9 SCM 155 at 177 and PDP v. INEC (2012) 7 NWLR (Pt 1130) 538 at 559.
It was submitted that Nwankwo v. Yaradua (2010) 12 NWLR (Pt 1209) 518 at 589 was decided before paragraph 12 (5) was enacted.
It was submitted that locus standi and jurisdiction were not considered in the ruling of the tribunal. That the issue before the Tribunal was whether the objection raised in the application be heard or await the hearing of the petition.
It was submitted that the amendment of paragraph 12 was not only to facilitate the speedy trial of Election Petitions but also to obviate the attendant delay that is associated with Civil Proceedings. It was submitted that election petitions are to be heard without regard to technicalities, which may unduly fetter the jurisdiction of the tribunals. We were referred to Egolum v. Obasanjo (1999) 7 NWLR (Pt 611) 355, Ogbebor v. Danjuma (2003) 15 NWLR (pt 803) 403.
In a reply to the 1st and 2nd Respondents’ brief, the Appellant on his part objected to the Respondents’ brief on the ground that it was filed out of time.
The 1st and 2nd Respondent’s brief, it was submitted, was filed eight (8) days after they were served with the Appellant’s brief instead of filing same within five (5) days as provided by paragraph 12 of the Election Tribunal and Court Practice Directions 2011. We were referred to Action Congress of Nigeria v. Rear Admiral Murtala H. Nyako & Ors SC. 409/2012 delivered on 5th November, 2012.
We were urged to strike out the 1st and 2nd Respondents’ brief of argument and determine the appeal on the Appellants’ Brief alone.
At the hearing of the appeal, Adegoke Esq learned counsel for Appellant withdrew this “preliminary objection” to the 1st and 2nd Respondents’ brief.
On the Respondents’ Objection to the hearing of the appeal on the ground that the grounds were of mixed law and facts, it was submitted that by paragraph 246 (1) (C) (ii) of the 1999 Constitution (as amended), there is an express right of appeal against an interlocutory decision of a Gubernatorial election tribunal. Reliance was place on Awuse v. Odidi (2003) 18 NWLR (pt 851) 116 at 169 and the recent unreported decision of this Court in ALL PROGRESSIVES CONGRESS v. Senator Iyiola Omisore Appeal No: CA/AK/EPT/GOV/203/2014 in which this Court dismissed a similar objection.
On the contention by the Respondents that incomplete records were filed by the Appellant, it was submitted that the records filed were in compliance with paragraph 10 of the Election Tribunal and Court Practice Directions, 2011. In any case, although they have complained of incomplete records, the Respondents have themselves not taken the necessary steps of compiling what is missing or critical to the determination of the appeal.
It was submitted that the case of Nwana v. F C D A (2007) 11 NWLR (pt 1044) 59 relied upon by Respondents is not relevant to this case.
On the Respondents’ argument that grounds of appeal and particulars are incompetent, it was submitted that the Respondents having found themselves in a difficult situation are appealing to mere technicalities to defeat the appeal.
What the Appellant has done, it was submitted, is to attack each error upon which the decision of the Lower Court is based.
In the main reply to the 1st and 2nd Respondents’ brief, it was submitted that the case of Nto & Anor v. Global Soap & Detergent Ind. (2010) LPELR 7997 is a civil case in which reference was made to a dissenting opinion in Saror & Anor v Susiram & Ors.
It was submitted that an objection to delay in filing a reply to the petition could never have been incorporated in the Appellants Reply and that the Respondents have conceded to this.
The essence of the preliminary objection, it was submitted, was to challenge the locus standi of the Respondents to present the petition.
The issue of injustice or miscarriage of justice to be suffered by the Appellant, it was again submitted was raised suo motu by the Tribunal.
The main grouse of the 1st and 2nd Respondents in their preliminary objection is that the grounds of appeal are of mixed law and fact which require the leave of this Court and no such leave has been sought or granted. The 1st and 2nd Respondents in a recent appeal NO: CA/EPT/GOV/203/14 raised a similar objection. This Court in its judgment delivered by Owoade JCA on 14th November, 2014 overruled the objection because the objection did not affect the competence of the Appellant’s Notice of Appeal. This is what the Court at page 8 – 9 of the unreported judgment stated:
“For example, Section 246 (1) (b) (ii) of the 1999 Constitution as amended truly gives a leeway to the Appellant to file an appeal on any decision (including interlocutory) decisions of a Gubernatorial election tribunal”.
Thus, in the case of Awuse v. Odili (2003) 18 NWLR (pt. 851) 116 at 119, Ejiwunmi JSC supported the lead judgment of I.L. Kutugi JSC quoted the provision of Section 246 (1) (b) (ii) of the 1999 Constitution as amended and said of the Section as follows:
“An appeal to the Court of Appeal shall lie as of right from the decision of the Governorship Election Tribunal on any question as to whether any person has been validly elected to the office of Governor”.
“Though the word “any” when used as an adjective is defined in Longman Dictionary of the English Language thus:
“One or some indiscriminately, whichever is chosen”. It would appear that the word “any” qualifying “question” was deliberately used by the law makers to indicate that an appeal to the Court of Appeal was not limited only to hearing appeals only to whether any person has been validly elected to the office of Governor —– It follows therefore that the provisions of Section 246 (1) allows appeals to lie to Court of Appeal in respect of interlocutory decision of the Governorship Election Tribunals and the other tribunals named in that section of the Constitution”.
Also in the case of Maduako V Onyejiocha (2009) 5 NWLR (pt. 1134) 259 at 280 the Court of Appeal Per Eko JCA held as follows:-
“By way of emphasis, I wish to add that the decision of the Supreme Court in Alhaji Atiku Abubakar & Ors V. Alhaji Umaru Musa Yar’Adua & Ors SC 288/2007 of 25th January, 2008 (reported in (2008) 4 NWLR (pt. 1078) 465 Per Niki Tobi JSC, leave no doubt in me that an aggrieved party has right of appeal against an interlocutory decision of an election tribunal. That right is a constitutional right by dint of Section 246 (1) (b) of the 1999 Constitution, which is in Pari materia with Section 233 (2) (3) of the Constitution under which Atiku V. Yar’Adua case was decided”.
From the above authorities, it becomes clear that the Appellant has a constitutional right to appeal without leave of court on any interlocutory decision of a Governorship Election Tribunal and that put paid to the objection by the Respondents that the Appellant needed to have sought leave of the tribunal or this court on his grounds of appeal on questions of mixed law and facts.”
It is clear from the foregoing that the preliminary objection must be overruled. It is accordingly overruled and dismissed.
This Court adopts the lone issue formulated by the 1st and 2nd Respondents as the only issue for determination.
Paragraph 12 (5) of the First Schedule to the Electoral Act 2010 provides as follows:
“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.”
Paragraph 53 (5) of the same schedule to the Electoral Act on the other hand provides thus:
“(5) An objection challenging the irregularity or competence of an election petition shall be heard and determined after the close of pleadings.”
It is now trite law that election petitions are sui generis that is, that they are in class of their own and are governed by different rules. An election petition is by nature a very peculiar proceeding which distinguishes it from an ordinary civil proceeding. See Abubakar v. Yar’adua (2008) 19 NWLR (Pt 1120) 1. In Nwole v. Iwuagwu (2004) 15 NWLR (Pt 895) 61 the Court, held thus:
“The courts have often harped on the need to do substantial justice in most cases without dwelling too much on technicalities … in all election matters, the use of technicalities should be avoided, as technicalities merely help to shut the opponent out. It never resolves basic issues in controversy. Once it is agreed that election petitions are in a class of their own, the handling of the matter too must take a form devoid of legal technicalities that tend to leave the litigants more confused. Boldness of a high degree is required of the electoral tribunal, which must never be seen to shy away from obvious grave allegations.”
When paragraph 53 (5) was in being paragraph 12 (5) came in on the 29th October, 2010 like a Trojan Horse. Paragraph 53 (5) itself came into effect on 20th August, 2010. Paragraph 12 (5) was undoubtedly enacted for a purpose. That purpose was to enable election petition tribunals to handle election petitions without undue reliance on technicalities. Although paragraph 53 (5) was not repealed, the law is that the provisions of the later enactment amend the earlier so far as necessary to remove the inconsistency between them. See Akintokun v LPDC (2014) 5 SCM 1, Ogbunaya v. Akudo (1979) 6-9 SC 32 and DPP v INEC (1999) 11 NWLR (pt 626) 200.
Paragraph 53 (5) is now impliedly repealed by paragraph 12 (5).
By paragraph 12 (5) of the First Schedule to the Electoral Act an objection to the hearing of a petition is authorized 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 a 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 v. Mimiko & ors (2013) 9 SCM 155 and PDP v. INEC (2012) 7 NWLR (Pt 1130) 538.
I am of the view that although the Appellant filed two motions on notice apart from the objections incorporated in his 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 the preliminary objections along with the substantive petition.
I therefore resolve the issue in favour of the Respondents and against the Appellant.
Having resolved the issue against the Appellant, this appeal should be dismissed.
It is accordingly hereby dismissed by me.
1st and 2nd Respondents are awarded N30,000 costs to be paid by the Appellant.
MOJEED ADEKUNLE OWOADE, J.C.A.: This is yet another interlocutory appeal on the decision of the Governorship Election Tribunal holden at Osogbo. This appeal is against the interlocutory decision of the said Tribunal (Coram. Justices E.N. Kpojime, V.I. Ofebi and A. Kutugi) delivered on Tuesday the 4th day of November, 2014.
The Appellant as 1st Respondent brought two applications before the Tribunal. The first, a Notice of Preliminary Objection dated 16/10/2014 and brought pursuant to paragraph 4 (1) of the first schedule to the Electoral Act 2010 challenged the Tribunal’s competence to hear the petition as the 1st and 2nd Respondents lacked the locus standi to present the petition having failed to indicate in the petition that they had the right to present the petition as required by paragraph 4 (1) and (2) of the First Schedule to the Electoral Act 2010 (as amended).
The second, dated 21st day of October, 2014 is a Motion on Notice praying:
(a) An order of the Tribunal striking out the Petitioner’s Reply to the 1st Respondent’s Reply same having been filed out of time prescribed, by paragraph 16 (1) of the first schedule to the Electoral Act, 2010 (as amended); and
(b) An order of the Tribunal dismissing the petition, the petitioners having failed to apply for issuance of Notice of pre-hearing session within time as prescribed by paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (as amended).
On the 30th day of October, 2014, the Tribunal commenced pre-hearing sessions and the two applications came up for hearing when Counsel to the 1st and 2nd Respondents (petitioners) orally applied that the Appellants preliminary objections be heard together with the petition. This application was opposed by the Appellant and the 3rd Respondent in this appeal.
However, the Tribunal granted the prayer of the 1st and 2nd Respondents in its Ruling of 4th November, 2014 wherein their lordships of the Tribunal ruled that the said applications shall be heard with the petition and ruling shall be delivered at the end of trial.
The position of the Appellant in this appeal as are summarized in the concluding paragraphs of the Appellant’s Brief of Argument are as follows:
1. A challenge against locus standi to present a petition is a jurisdictional issue which when made by motion on notice ought to be determined at the pre-hearing session in accordance with paragraph 47 (1) of the first schedule to the Electoral Act, 2010 (as amended).
2. Paragraph 12 (5) of the first schedule to the Electoral Act, 2010 only addresses where preliminary objections are embedded in a Reply to a petition and not where same is raised by Motion on Notice by which paragraph 47 (1) becomes immediately operative.
3. It is not the intention of the legislature to use paragraph 12 (5) to IMPLIEDLY abrogate paragraph 18 (3) and (4), 47 (1) and 53 (5) of the first schedule to the Electoral Act, 2010 (as amended).
4. 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.
5. The decision of the Tribunal to leave the preliminary objections 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.
6. 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 paragraphs 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.
7. 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.
8. Reliance on inapplicable authorities in civil cases to justify hearing preliminary objection together with the substantive petition does not take cognizance of the sui generis nature of election petitions and the fact that paragraphs 18 (3) and (4), 47 (1) and 53 (5) are legislative devices to enforce the paramouncy of time threshold in election petitions.
9. No judge has the right to appeal to sentiments of substantive justice, lack of prejudice to be suffered or miscarriage of justice where statutes have prescribed time limitation for doing an act.
10. 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. II) 49 at 68.
Learned Senior Counsel, for the Respondents recognized that the lone issue for determination in this appeal is whether the lower tribunal was right when it held that Appellant’s applications dated 16th October, 2014 and 21st October, 2014 will be taken along with the petition.
He submitted that the issue that is germane in this appeal is basically on the interpretation of paragraph 53 (3) and paragraph 12 (5) of the First Schedule to Electoral Act, 2010 as amended. He stated that paragraph 53 (5) among other enabling provisions took effect from 20th August, 2010 whereas provision of paragraph 12 (5) which was a subsequent provision came into effect on 29th October, 2010. This, he said presupposes that paragraph 12 (5) is a new innovation in the Electoral Act, 2010 (as amended).
He referred to the cases of NTO & ANOR V Global Soap & Detergent Ind. Ltd (2010) LPELR – 7997; Makera & Anor V Galadanchi & Ors (2011) LPELR – 8821; Akintokun V LPPC (2014) 5 SCM 1 at 50 and concluded that based on the provision of paragraph 12 (5) of the first schedule the Tribunal was right to have held that the Appellant’s applications will be taken along with the petition.
I do agree with the Learned Senior Counsel for the Respondents that the provisions of paragraph 12 (5) of the first schedule are inconsistent with the earlier provision of paragraph 53 (5) but by implication amends the earlier so far as is necessary to remove the inconsistency between them.
Indeed, paragraph 12 (5) stipulates 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. Oke & Ors v Mimiko & ors (2013) 9 SCM 155 at 177; P.D.P. v INEC (2012) 7 NWLR (pt. 1130) 538 at 559.
To this extent, the contention of the Appellant in the instant case based on the authority of Nwankwo V. Yar’Adua (2010) 12 NWLR (pt. 1209) 518 at 589 is not applicable because the provisions of paragraph 12 (5) was not considered in the case of Nwankwo V. Yar’Adua (supra).
Indeed, the lower tribunal rightly observed at page 103 that:
“…While paragraph 53 (5) allows objections not incorporated in a Respondent’s reply to be heard and determined after the close of pleadings, paragraph 12 (5) provides for a situation where a Respondent finds fault with the petition. He is expected to raise an objection to the competence of the petition in his reply. The 1st and 3rd Respondents, apparently relying on paragraph 12 (5) have incorporated objections to the competence of the petition in their respective replies…”
For these reasons and the fuller reasons contained in the lead judgment by my learned brother Shehu James Abiriyi JCA, I also overrule the preliminary objection to the appeal by the 1st and 2nd Respondents and agree that the appeal itself lacks merit and it is accordingly dismissed.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the leading Judgment of My Learned brother, J. S. Abiriyi, JCA dismissing this appeal. I agree that the provision of paragraph 12 (5) of the First schedule to the Electoral Act, 2010 is a special provision that has been put into our Electoral practice adjudicatory law, to ensure that electoral contests are heard on their merit and expeditiously without any unnecessary delay thereby, election appeals, being a sui generis appeal.
There is nothing untoward in taking preliminary objections or motions along with the substantive appeals as relating to the resolution thereof.
This well troden path had been taken by this court in ALL Progressives Congress V. Senator Iyiola Omisore: Appeal No. CA/AK/EPT/Gov/203/2014 delivered in November, 2014 (unreported) relying on the cases of Oke & Ors v. Mimiko & Ors (2013) 9 SCM 155; PDP v. INEC (2012) 7 NWLR Pt. 11. 30, Page 638.
I join my Lord in the Lead Judgment in dismissing the preliminary objection of the Respondents and in resolving the lone issue formulated by the 1st and 2nd Respondents in favour of the said Respondents and against the Appellant thus dismissing the instant appeal.
I also abide with the consequential order relating to costs as made in the leading Judgment.
Appearances
KUNLE ADEGOKE ESQ. WITH A. ADEOYE AND M. A. ADEOYEFor Appellant
AND
A. FASHANU SAN WITH WOLE JIMI-BADA ESQ. AND N. A. ABBAS ESQFor Respondent
