ONIMISI M. ITOPA & ANOR v. BELLO JOSEPH ASUKU & ORS
(2019)LCN/13813(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of October, 2019
CA/A/EPT/799/2019
RATIO
PRELIMINARY OBJECTION: DEFINITION
As we all know, a preliminary objection is an objection to the competence of a Court process for the primary purpose of terminating the suit if it succeeds. In the case of OJUKWU VS. YAR’ADUA (2008) 4 NWLR (PT. 1078) PAGE 535, a preliminary objection was defined as an objection against the irregularity of a Court process which if it succeeds terminates the proceedings at that stage. The general principle of the law on the appropriate time of raising preliminary objection is codified in Paragraph 53(2) of the First Schedule, Electoral Act, 2010 (as amended) which requires an objector to raise his objection within a reasonable time. PER MOHAMMED BABA IDRIS, J.C.A.
ELECTION PETITION: INTERPRETATION OF PARAGRAPH 12(5) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT 2010 (AS AMENDED)
In the case of AIRHIAVBERE VS. OSHIOMHOLE & ORS (2012) LPELR-9824 (CA), the interpretation of Paragraph 12(5) of the First Schedule to the Electoral Act 2010 (as amended) with respect to when an objection by way of motion shall be heard and when an objection embedded or stated in a reply shall be heard was explained exhaustively thus:
“In determining this question, we have to look at the provisions of the statute law and decision law. Paragraph 12(5) of the First Schedule to the Electoral Act 2010 (as amended) provides as follows, “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 47(1) of the same First Schedule provides as follows: 47(1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of the Tribunal. Both of these provisions were interpreted inPDP V INEC (2012) NWLR PART 1300 AT PAGE 558-559, Muntaka-Coomassie JSC where his Lordship held thus; “The main contention of the Appellant in this appeal my lords is that the lower Court was wrong to affirm the decision of the Tribunal wrongly relied on the provisions of paragraph 12(5) of the 1st Schedule and that by the provisions of paragraph 47(1) all motions shall be moved at the pre-hearing session except in extreme circumstances with the leave of Tribunal. Paragraph 12(5) of the 1st Schedule of the Electoral Act 2010 provides as follows; “A Respondent who has objection to the hearing of the petition shall file his reply and state the objection thereon and the objection shall be heard along with the substantive petition. While Paragraph 47(1) of the 1st Schedule to the Electoral Act 2010 (as amended) provides thus; (i) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave to Tribunal or Court.” With tremendous respect, these paragraphs of the 1st Schedule apply to the different situations and proceedings, e.g. (i) where a party approaches the Tribunal with objection by way of motion, such motion shall be moved and determined during prehearing session except in extreme circumstances with the leave of the Tribunal, that is the position under the provisions of Paragraph 47(1) of the 1st Schedule; and (ii) where the objection is embedded or stated in the reply. Such objection shall be heard along with the substantive suit.PER MOHAMMED BABA IDRIS, J.C.A.
STATUTE: WHEN A STATUTE PROVIDE A PROCEDURE FOR CARRYING OUT AN ACTION, IT MUST BE FOLLOWED
In the case of C.C.B. VS. A.G ANAMBRA STATE & ANOR (1992) 8 NWLR (PT. 261) PAGE 528 @556 PARA G, it was held that:
“It is the law that when a statute provides for a particular method of performing a duty regulated by the statute, that method and no other must be adopted.” PER MOHAMMED BABA IDRIS, J.C.A.
ELECTION PETITION: JURISDICTION: AS A PRE CONDITION TO EXERCISE JURISDICTION
Also, in the Supreme court case ofGUNDIRI VS. NYAKO (2014) 2 NWLR (PT. 1391) PAGE 211, it was held per Ogunbiyi, JSC that:?It is well settled that as pre-condition to exercise of jurisdiction, the witness statements are to accompany the petition to be filed. The consequential effect of the failure to comply is that Tribunal was on firm ground when it declined to exercise jurisdiction over 22 witness depositions which it held were incompetent.” PER MOHAMMED BABA IDRIS, J.C.A.
TECHNICALITIES SHOULD NOT RULE OVER JUSTICE IN THE COURT CARRYING OUT IT’S DUTIES
In the case of IBRAHIM VS. OBAJE (2019) 3 NWLR (PT. 1660) PAGE 389 @ 413 PARAS B – D, it was held that:
“It is the duty of the Court to consider the case and claim of its merit and not allow the coverings and cloud of technicality to dim its vision on the road to justice. The Court therefore, has an inherent obligation not to sacrifice justice on the altar of technicality.” PER MOHAMMED BABA IDRIS, J.C.A.
ELECTION PETITIONS: NATURE AND PURPOSE
In the case of WAZIRI S. MAMMAN & ANOR VS. SEN. EMMANUEL BWACHA & ORS (2017) 1 NWLR (PT. 1547) PAGE 425 AT 456, it was held per Sankey JCA that:
“It cannot be emphasized enough that election matters are sui generis, and the trend now in such maters is towards doing substantial justice. PER MOHAMMED BABA IDRIS, J.C.A.
COURTS: WHEN ISSUES ARE RAISED BY COURTS SUO MOTU, PARTIES MUST BE GIVEN THE OPPORTUNITY TO BE HEARD ON THE ISSUE
In the case of GUARDS INSURANCE BROKERS VS. RAJI (2014) ALL FWLR (PT. 715) PAGE 356 AT 359 PARA 4, it was held that:
“Where an issue is raised suo motu by the Court, parties must be given the opportunity to be heard on the issue, particularly the party that will be adversely affected as a result of the point raised and to avoid possible breach of the parties’ right to fair hearing. In this instant case, where the trial Court based its judgment on issue raised suo motu without affording the parties a hearing on, the judgment reached was set aside on appeal.” PER MOHAMMED BABA IDRIS, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
1. ONIMISI M. ITOPA
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. BELLO JOSEPH ASUKU
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a petition filed on 15th March, 2019, the Appellants who were the Petitioners at the Kogi State National and State Houses of Assembly Election Tribunal sitting in Abuja sought for the following reliefs:
(i) That it may be determined and thus declared that the result announced and return of the 1st Respondent, BELLO JOSEPH ASUKU as duly elected member Federal House of Representatives representing ADA VU/OKEHI Federal Constituency of Kogi State pursuant to the election held on 23 d February, 2019 are void and liable to be nullified by reason of substantially affected the result of the election.
(ii) That it may be determined and thus declared that the result announced and return of the 1st Respondent BELLO JOSEPH ASUKU as duly elected member Federal House of Representatives representing ADAVU/OKEHI Federal Constituency of Kogi State, pursuant to the election held on 23d February, 2019 are vitiated and liable to be nullified by reason of false declaration on oath of the 1st Respondent in his membership card of the 2nd Respondent, with the active collaboration of the
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2nd Respondent
(iii) That it may be determined that the Respondent is disqualified as a candidate of the 2nd Respondent having failed to meet requisite requirement of law with regards to a valid tax clearance certificate.
(iv) That it may be determined that going by the lawful votes cast at the said election, the 1st petitioner ought to have returned and should be returned as the duly elected Member Federal Constituency of Kogi State, pursuant to the election conducted by the 3rd Respondent on the 23 d February, 2019.
(v) In addition, and/or in the alternative, that the 1st petitioner be declared as the winner and returned as Member Federal House of Representatives representing ADAVU/OKEHI Federal Constituency of Kogi State, pursuant to the election held on 23 d February, 2019.
(vi) That the election in the local government, wards, units and/or polling centers characterized or marred by electoral malpractices and/or irregularities during the conduct of the ADAVU/OKEHI Federal Constituency Federal House of Representatives Kogi State election held on 23rd February, 2019 be voided and/or set aside.
(vii) That a fresh election be
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ordered throughout the affected polling units in the local government areas were election were marred by irregularities as depicted above namely: – in accordance with the provisions of the Electoral Act 2010 as amended.
(viii) That it be determined consequentially that the fresh/supplementary election to be conducted pursuant to prayers I, Il, V, VI shall not include the 1st and 2nd Respondents as participants.
It is the 1st Appellant’s case that he was sponsored by the 2nd Appellant at the election for the ADAVU/OKEHI Federal Constituency of Kogi State at the National Assembly which took place on the 23rd of February, 2019. The 1st Respondent was the candidate for the 2nd Respondent. The 1st Appellant averred that the 1st Respondent was unduly and wrongfully declared winner of the said election and returned election by the 3rd Respondent.
?In the said election, the 1st Appellant stated that 16 political parties contested and the 1st Respondent scored the highest votes of 40,085 followed by the 1st Appellant who scored 19,169 votes. It was however stated that the total number of PVCs distributed in the local governments ADAVU/OKEHI
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Federal Constituency of Kogi State was not commensurate with the votes casted and thus, there was a huge case of over voting and thus, the election was marred with irregularities.
The 1st Appellant finally stated that he scored the valid lawful votes at the election and ought to be rightly declared winner of the election as the election was fraught with multiple voting, votes buying and manipulation of entries in the result sheets by the 1st Respondent and agents.
The 1st and 2nd Respondents filed a Notice of Preliminary Objection and a Reply to the petition dated the 6th of April, 2019. The Preliminary objection was based on the grounds that the Tribunal lacks the territorial jurisdiction to hear and determine the petition as the petition was very defective having been filed outside the territorial jurisdiction of the Tribunal and non-joinder of the proper parties, amongst others.
In their reply, the 1st and 2nd Respondents stated that the 1st Respondent was the candidate of the 2nd Respondent at the election and polled the highest number of votes. Contrary to the assertions of the 1st Appellant, they have argued that only
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voters who are duly registered were issued with the Permanent Voters cards (PVCs) and permitted to vote. Also, it was stated by the 1st and 2nd Respondents that it was the lawful votes that was casted that was correctly counted by the 3rd Respondent.
The 3rd Respondent filed a Notice of Preliminary Objection in the Reply to the Petition dated the 6th of April, 2019. It was stated that it was the 1st Respondent that scored the highest lawful votes in the election and emerged winner. Thus, the certificate of return was issued to him. It was further stated that only accredited voters were allowed to vote and the election was free of corrupt practices, not marred with irregularities and was done in compliance with the law. The 3rd Respondent stated that the 1st Appellant did not at any point score the highest number of lawful votes as he lost at the poll.
In its preliminary objection on points of law, the 3rd Respondent has stated that the petition was filed in a Tribunal unknown to law, the petition does not disclose a reasonable cause of action and the petition does not state the occupier of the address of the Appellants.
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The Appellants filed a Reply dated the 11th of April, 2019 to the 1st and 2nd Respondents Reply and Notice of Preliminary Objection, stating that the petition was not defective, was filed in accordance to the law and the Appellants had the locus standi to maintain the petition against the Respondents. They further reiterated the fact that the election was fraught with a lot of corrupt practices at the instance of the 1st and 2nd Respondents and thus, the 1st Appellant ought to been declared winner for having the highest lawful votes.
The Appellants also filed a Reply to the 3rd Respondents Reply dated the 11th of April, 2019, stating that the results declared by the 3rd Respondent fell short of satisfying the degree of compliance required by the Electoral Act and restated that the 1st Appellant deserved to be declared winner of the said election.
The 1st and Respondents filed another Notice of Preliminary objection for which leave was sought and obtained on the grounds that the petition was in contravention of Paragraph 4(5)(a) of the First Schedule to the Electoral Act as it was accompanied with an irregular list of Documents, there was no list
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of witnesses filed alongside the petition, for failure of Appellants counsel to affix the Legal Practitioners stamp on the list of documents filed amongst others.
The Petitioner filed a counter affidavit, stating that the failure of the 1st and 2nd Respondents to file a separate Notice of preliminary objection not embedded in the reply to the petition renders it incompetent.
The 1st and 2nd Respondents also filed a reply on points of law, stating that the Electoral Act empowers them to file the Notice of Preliminary Objection separately. The Tribunal was urged to discountenance all the arguments of the Appellants and dismiss the petition by upholding the preliminary objection.
At the end of the hearing of the petition of which witnesses were called by both sides and documents were tendered, parties were ordered to file their final written addresses.
In the judgment of the three-man panel delivered on the 20th of August, 2019, it was unanimously agreed that the non-filing of the list of witnesses alongside the petition was a fatal error which made the petition incurably defective and the petition must be struck out. Also, it was
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held that the grounds of the petition were incompetent as it was contrary with the provisions of Section 138(1) of the Electoral Act 2010. The petition was the struck out for being incompetent.
Unhappy with decision of the Tribunal, the Appellants filed a Notice of Appeal on the 29th of August, 2019, comprising of eleven grounds of appeal.
The Appellants Brief of Argument was filed on the 14th of September, 2019, settled by J. K. Kolawole Esq and 4 (four) issues for determination were distilled:
1. Whether the Preliminary objection of the 1st and 2nd Respondents filed eleven (11) days after they had filed their joint Reply to the Petition, on the basis of which the tribunal dismissed the Petition was not incompetent ab initio (Grounds 1, 2, 3 & 4).
2. Whether the non-filing of a List of witnesses along with the Petition robbed the Tribunal of the requisite jurisdiction to hear and determine the Petition on the merit (Grounds 5, 6, 7 and 8).
?3. Whether from the circumstances of the case, the Petitioners were not denied fair hearing and justice when the lower Election Tribunal suo motu raised and ruled on issues not before it
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nor raised by any of the parties by striking out the entire Grounds of the Petition as being incompetent. (Grounds 9 and 10).
4. Whether the Court of Appeal can invoke Section 15 of its Act in evaluating the evidence already adduced in the case. (Ground 11).
On issue one, the Appellants have argued that the Tribunal lacked the jurisdiction to have entertained the 1st and 2nd Respondents Preliminary objection dated and separately filed from the Reply to the petition. It was argued that even though the 1st and 2nd Respondents had filed a Notice of Preliminary Objection in their Reply to the petition, however, they filed another notice of preliminary objection, challenging the competence of the petition filed by the Appellants based on the non-filing of the list of witnesses. It is the argument of Appellants counsel that the separate filing of the Notice of Preliminary Objection, independent of the Reply is incompetent and liable to be struck out. Reference was made to BELGORE VS. AHMED (2012) 2 LRECN PAGE 523 @ 550 – 551 PARAS F – A. It was argued that the word “shall” used in the Paragraph 12(5) of the First Schedule to the Electoral Act makes
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it a mandatory obligation.
It was argued by the Appellants’ counsel that the issue raised in the said Notice of Preliminary Objection borders on Rules of procedure and like rules of Court, non-compliance with its provisions cannot oust the jurisdiction of the lower Tribunal as it is not a jurisdictional matter. Thus, the holding of the tribunal was perverse. Reference was made to SA?EED VS. YAKOWA (2012) 2 LRECN 486 @ 503 PARAS E – F.
Thus, it is the submission of Appellants’ counsel that non- compliance with the First Schedule to the Electoral Act does not raise an issue of jurisdiction as canvassed by the 1st and 2nd Respondents and as such cannot be raised at any time or in whatever manner since issues of jurisdiction does not emanate from Rules of Court, that being so, the raising of the Notice of Preliminary Objection by the 1st and 2nd Respondents in a separate process not raised contemporaneously with their joint reply as prescribed by paragraph 12(5) of the First Schedule is fatal to its competence. The case of MACFOY VS. UNITED AFRICA COMPANY LTD (1962) AC 152 AT 160 was cited.
?On issue two, the Appellants have argued that
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the non-filing of a List of witnesses based paragraph 4(5)(i)(a) of the First Schedule to the Electoral Act does not rob the Tribunal of jurisdiction to hear the petition on the merit as it is a mere irregularity. Reference was made to SA’EED VS. YAKOWA (SUPRA).
It was argued that jurisdiction can only be conferred on the Court by the Constitution and statutes and not the Rules of Courts. Thus, the non-filing of list of witnesses alongside the petition cannot render the petition incompetent. It was further argued that the 1st and 2nd Respondents were dwelling on technicalities which a lot of authorities have discouraged. Reliance was placed on AIGBOBAHI VS. AIFUWA (2006) ALL FWLR (PT. 303) PAGE 202 @ 220 PARAS B – C; APGA VS. OYE (2019) 2 NWLR (PT. 1657) PAGE 472 @ 497, PARAS A, D.
It was further argued that rules of Courts were handmaids that should assist the course of justice and not delay it. It is the contention of Appellants counsel that since all the Witness statement on oath has accompanied the petition; it has made the petition competent.
On the issue three, the Appellants have argued that even though Courts are vested with
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powers to raise issues suo motu, they are bound to call on the parties to address them on it before proceeding to make any pronouncement on the issue. Failure of which will amount to breach of fair hearing. Reliance was placed on OKONKWO VS. ONU (2007) NWLR (PT. 725) PAGES 395 @ 398 PARA 3; GUARDS INSURANCE BROKERS VS. RAJI (2014) ALL FWLR (PT. 356) AT 359 PARAS 4.
It is the argument of the Appellants that the Tribunal on its own raised the issue as to the competence of the grounds of petition and struck out the grounds without calling parties to address the Tribunal on its propriety or otherwise. It was submitted that this act of the Tribunal offends the principle of natural justice as it breaches the right of fair hearing of the Appellants. The Appellants urged this Court to set aside the judgment of the Tribunal in this regard.
It was further argued by Appellants’ counsel that a party has every right to use the words that please him to convey the meaning of Section 138 of the Electoral Act 2010. Reliance was placed on OJUKWU VS. YAR’ADUA (2009) 12 NWLR (PT. 1154) PAGE 50 @ 121. It was therefore submitted that the reasoning of the Tribunal on
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this issue was very perverse. The Court was urged to resolve this issue in favour of the Appellants.
On issue four, the Appellants have stated that the Court of Appeal has full jurisdiction over matters emanating from the lower Court in deserving circumstances based on Section 15 of the Court of Appeal Act. It was further stated that the words made by the Tribunal in its judgment that “There is no need to evaluate the evidence” showed clearly that they did not evaluate the evidence and thus, the Court of Appeal in the interest if justice must exercise its own powers in reviewing the facts and evidence of the case. Reference was made to JIBRIN VS. FRN (2018) 13 NWLR (PT. 1635) PAGE 30.
The Appellants urged the Court to exercise its powers under Section 15 of the Court of Appeal Act and to resolve the issues in their favour.
The 1st and 2nd Respondents filed their brief of argument and distilled 4 (four) issues for determination:
1. Whether the Preliminary Objection of the 1st and 2nd Respondents filed eleven (11) days after they had filed their joint Reply to the Petition, on the basis of which the Tribunal dismissed the Petition was
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not incompetent ab initio? (Distilled from Grounds 1,2, 3 & 4)
2. Whether the non-filling of a List of Witnesses along with the Petition robbed the Tribunal of the requisite jurisdiction to hear and determine the Petition on the merit? (Distilled from Grounds 5, 6, 7 & 8)
3. Whether from the circumstances of the case, the Petitioners were not denied fair hearing and justice when the lower Election Tribunal suomotu raised and ruled on issues not before it nor raised by any of the parties to the Petition and proceeded to grant reliefs not sought by any of the parties by striking out the entire Grounds of the Petition as being incompetent?
In arguing issue one, counsel for the 1st and 2nd Respondents submitted that the Notice of Preliminary Objection filed on the 17th April, 2019 was properly raised by virtue of Section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended by the 4th Alteration Act, No. 21, 2017) which provides as follows:
?Where a preliminary objection or any other interlocutory issue touching on the Jurisdiction of the Tribunal or Court in any pre-election matter or on the
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competence of the petition itself is raised by a party, the Tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment.?
That in interpreting the constitutional provision above, it must be given its natural and ordinary meaning. This principle of law was reiterated by the Supreme Court in FALAKE VS. INEC (2016) 18 NWLR (PT. 1543) 61 @147 PARAS G – H where the apex Court pronounced that:
“Provision of the Constitution must be given their natural and ordinary meanings where the words used are clear and unambiguous. (Ojokolobo v Alamu (1987) 3 NWLR (Pt. 61) 377; Saraw v FRN (2016) 3 NWLR (Pt. 1500) 531 referred to.)
The provision of Section 285(8) of the Constitution governs objections challenging the jurisdiction of the Tribunal or competence of the Petition. That the section applies to ‘pre-election matters’ or ‘petition’ before a ‘Court’ or Tribunal’ and the use of ‘or’ in the provision is disjunctive as has been long decided in a plethora of authorities. see ABUBAKAR & ORS VS. YAR’ADUA & ORS (2008) LPELR – 51 (SC) where the Court held that:
“The word “or” is defined in Black’s Law Dictionary,
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Sixth Edition in the following terms: A disjunctive participle used to express an alternative or to give a choice of one among two or more things? This word always bears the disjunctive meaning in an enactment, that is to say it separates the provision preceding from the provision coming after it. Its role is to show that the provisions in which it is appearing are distinct and separate one from the other.
Counsel for the 1st and 2nd Respondent further argued that interpretation of Section 285(8) of the Constitution applies to ?Court? in ?pre-election? matter as distinct from ‘Tribunal’ in the case of ‘petition’. That this applies to the determination of preliminary objections or any interlocutory application touching on the jurisdiction of Tribunal’ and also to any preliminary objection or interlocutory application touching on the competence of the petition.
They further submitted that two types of objections that are permitted under the provision of Section 285(8) of the Constitution, that is:
i. Objection touching on the jurisdiction of the Tribunal
ii. Objection touching on the competence of the
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Petition itself.
That Section 285(8) of Constitution did not specify any time for raising such an objection or interlocutory application, provided that whenever such is raised, it can only determined with the substantive Petition. That the provision did confine such objection to the provision of Paragraph 12(5) of the 1st Schedule to the Electoral Act as erroneously argued by the Appellants.
Counsel for the 1st and 2nd Respondent argued that the wordings of Section 285(8) of the Constitution are plain and unambiguous and the additional qualifications to the provision which are being introduced by the Appellants are not contained in the provision. That nowhere in the provision of Section 285(8) of the Constitution did the makers of the Constitution use the words ‘properly raised and argued’ or ‘raised in the manner prescribed by Paragraph 12(5) of the 1st Schedule’.
The 1st and 2nd Respondent argued that the objections provided for by Section 285(8) of the Constitution relates to objections to the (i) Jurisdiction of the Tribunal or (ii) competence of the Petition itself…’, the provision of Paragraph 12(5) of the 1st Schedule to the Electoral Act, 2010 (as amended)
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relates to Ian objection to the hearing of the Petition’ which they argued are distinct. That an objection to the competence of the Petition goes to the root of the petition itself while an objection to the hearing of the Petition relates to some irregularity affecting the hearing or success of the Petition.
In the light of the submission above, counsel argued that BELGORE VS. AHMED (2013) 8 NWLR (PT. 1355) 60 does not apply to this case. That the objection in the case above sought to strike out paragraphs of the Petition which is an objection to the hearing of the Petition and does not render the Petition incompetent, hence the application of paragraph 12(5) of the 1st Schedule to the Electoral Act. On the whole issue counsel submitted that the 1st and 2nd Respondent’s Notice of Preliminary objection filed on the 17th April, 2019 was competently filed pursuant to the provisions of Section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended by the 4th Alteration Act) and it cannot be said that 1st and 2nd Respondent waived their right to raise objection as there is no timeline for raising an objection
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touching on the competence of the Petition.
On issue two, the 1st and 2nd Respondents submitted that the trial Court found that the Appellant did not accompany their petition, with a list of witnesses to be called during trial as mandatorily required under paragraph 4(5)(1)(a) of the First Schedule to the Electoral Act 2010 (as amended) and struck out the Petition for being incompetent. That Paragraph 4(5)(1)(a) of the First Schedule to the Electoral Act 2010 (as amended in 2015) provides that:
“The election petition SHALL be accompanied by-
a) A list of the witnesses that the petitioner intends to call in proof of the petition.
b) Written statement on oath of the witnesses and Copies or list of every document to be relied on at the hearing of the petition.”
In the light of the above, counsel submitted that the mandatory procedure prescribed by paragraph 4 of the First Schedule to the Electoral Act supra in challenging the return of the election is only competent when it is accompanied by all the documents listed under the paragraph. The 1st and 2nd Respondent argued that the law is trite that once a specific procedure is laid
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down for exercise of any right or pursuit any remedy such procedure must be adhered to. Citing NWANKWO & ORS VS. YAR’ADUA & ORS (2011) LPELR – 19739 (CA) and relying in Paragraph 4 of the First Schedule to Electoral Act 2010 (as amended in 2015) counsel argued that the Appellant’s failure accompany their petition with the List of Witnesses means that the Appellant have not filed the Petition in compliance with the provision of the law. That the competence of an action is a condition-precedent to the competence of a Court to entertain same.
Counsel for the 1st and 2nd Respondent also argued that BELGORE VS. AHMED (SUPRA) and SA’EED VS. YAKOWA (2012) 2 LRECN 486 which the Appellant relied on to prove that non-compliance with the 1st Schedule to the Electoral Act does not raise a jurisdictional issue are not applicable to this case. That filing of the Witness Statements on Oath together with the Petition does not obviate the mandatory requirement of accompanying the Petition with a list of Witnesses to be called during trial. As if the Legislature wanted attachment of Witness Statement on Oath to substitute for list of witnesses, the
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Legislature would have indicated this intention when couching Paragraph 4(5)(1).
Counsel for the 1st and 2nd Respondents argued that striking out the Appellant’s Petition on ground of non-compliance with paragraph 4(5)(1) without evaluating evidence did not do any violence or occasion a miscarriage of justice. That Election petitions are sui generis and not regulated by the usual civil procedural rules.
On issue three, the 1st and 2nd Respondents argued that contrary to the contention of the Appellants, it is our humble submission that the issue of competence of the grounds of the Appellant’s Petition was not raised suo motu by the Tribunal but was competently raised by the parties before the Tribunal. They referred the Court to page 54 of the records of Appeal where the 1st and 2nd Respondent clearly challenged the competence of the Petition. Counsel also relied on argument made on their reply to the Petition where they pleaded that:
The 1st and 2nd Respondents unequivocally state that paragraphs i, ii and iii of the Ground of the Petition are invalids’ grounds for a petition, false, misleading and untrue and are denied as facts in
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their entirety…”
In addition, the 1st and 2nd Respondents argued that the Appellants joined issues with Paragraph 27 of their reply to the petition, they relied on page 681 and 688 of the Records of Appeal. That the 3rd Respondent in its 3rd Respondent’s Final Written Address contained at page 907 of the record of appeal raised that the grounds of appeal were incompetent while the 1st and 2nd Respondents took up the issue of the competence of grounds as a preliminary objection in their Final written address. In addition, counsel argued that pleadings and the respective written addresses adequately provided the basis for the Tribunal to pronounce on the competence of the grounds.
?Counsel for the 1st and 2nd Respondents then submitted that the question of denial of fair hearing in an instance where an issue is raised suo motu can only arise where the issue so raised has not already been pleaded by parties. Additionally, counsel stated the grounds contained in the Petition and those stated in the Appellant’s brief of argument, this lead to their argument that ground of the petition contained at page 11 of the records of appeal bears
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semblance to ground one. That the Appellants in their petition introduced other complaint into ground two which radically changed the nature of the ground. But by Section 138(1) the Appellant did not use the language that has the same effect as the section above.
On issue four, the 1st and 2nd Respondents submitted that by the nature of the evidence adduced during trial, this honourable Court cannot invoke its powers under Section 15 of the Court of Appeal Act 2004 to evaluate the evidence adduced in the case. That during the petition both oral and documentary evidence was adduced through the witnesses called by the party hence evaluation of evidence in this suit would entail not only the oral and documentary evidence but also the credibility of the of the witnesses through whom pieces of evidence given. Since this Court did not assess the credibility of the witnesses while testifying as such the Court cannot invoke Section 15 of the Court of Appeal Act 2004.
?The 1st and 2nd Respondents also argued that if this Court affirms the decision of the Tribunal on the incompetence of the grounds of the Petition, the failure of the lower Tribunal
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to have considered all the issues supplied for determination still comes to naught as failure to consider the issues in such an instance will not lead to the judgment being set aside.
The 3rd Respondent’s counsel filed its brief of argument dated the 20th September, 2019 settled by Sarafa Yusuff, Esq and 3 (three) issues for determination were formulated thus:
1. Whether the Preliminary objection of the 1st and 2nd Respondent is competent? (Grounds 1, 2, 3 & 4)
2. Whether the petition of the Appellants not accompanied by list of witnesses is competent? (Grounds 5, 6, 7 & 8)
3. Whether the right of fair hearing of the Petitioners were denied when the Tribunal struck out the grounds of the petition? (Grounds 9& 10)
On issue one, the 3rd Respondent’s counsel has argued that the Appellants filed no ground of appeal against the finding of the Tribunal as to the appropriate timing of the filing of the preliminary objection by the 1st and 2nd Respondents. It was argued by the 3rd Respondent counsel that the Appellants cannot validly complain on the timing of filing of the Notice of Preliminary Objection as there was no
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ground of appeal against it. The case of BELLO V. STATE (2014) LPELR – 41075 (CA) was cited.
It was further argued that the preliminary objection filed by the 1st and 2nd Respondents at the trial Court bordered on the issue of jurisdiction which is very fundamental and must be taken very seriously. The 3rd Respondent urged this Court to hold that the Notice of Preliminary Objection raised by the 1st and 2nd Respondents was competent.
On issue two, the 3rd Respondent has argued that Election petitions are suigeneris, a class by itself. Therefore, it is different from a common law civil action. The case of ABUBAKAR & ORS VS. YAR’ADUA & ORS (2008) LPELR – 51 (SC) (P. 22 PARAS B – C) was cited.
It was further argued that even though the Electoral Act states that a petition must be accompanied by a list of witnesses and failure of which, will not be accepted for filing by the secretary of the Tribunal for filing, it is a fundamental error that renders the entire petition incompetent. It was argued that it is not an issue of technicality and the provisions of the 1st Schedule of the Electoral Act must be obeyed. Reference was made to
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WAYO VS. TYOUGH & ORS (2015) LPELR – 40451 PAGE 19 – 20.
On issue three, the 3rd Respondent’s counsel cited the provisions of Section 138 of the Electoral Act 2010 (as amended) and stated vehemently that indeed all the grounds of the petition were incompetent as they do not convey the exact meaning and purport of any of the grounds for questioning the return made by the 3rd Respondent in an election.
In response to the fourth issue raised by the Appellants, the 3rd Respondent has argued that the said issue four contained in the Appellant’s brief of argument did not arise from ground 11 as stated by the Appellant.
Also, it was argued that Section 15 of the Court of Appeal Act does not apply to the instant case because evidence has already been given at the Tribunal, witnesses have been called and documents have been tendered. It was submitted by the 3rd Respondent that this Court cannot merely look at the records of appeal and ascribe probative value to the testimonies of all the witnesses called. Also, the Appellants have been said not to have raised real issues in the petition that are capable from being distilled from the grounds
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of appeal. Thus, it is the argument of the 3rd Respondent that this Court cannot determine the petition of the Appellants on the merit. Reference was made to APPEAL NO. CA/A/292/2019: DALHATU M. SAKI VS. APC & 2 ORS.
It was further argued that assuming without conceding that the Court of Appeal can exercise its power under Section 15 of the Court of Appeal Act, the 3rd Respondent has cited the provisions of Section 285(6) of the 1999 Constitution (as amended) 4th Alteration which states that an election Tribunal shall deliver its judgment within 180 days from the date of filing of the petition. Going by this, the 3rd Respondent’s counsel is strongly of the opinion that time has lapsed and this Court cannot make an order which the Tribunal by law cannot make. This Court was urged to dismiss the appeal.
The Appellants’ counsel filed their Reply to the 1st and 2nd Respondents brief of argument dated the 21st of September, 2019 and settled by J. K. Kolawole Esq.
?The Appellants’ counsel has argued that the provisions of Section 285(8) of the 1999 Constitution (as amended), 4th Alteration was misconstrued by the 1st and
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2nd Respondents as to the filing of a preliminary objection in a petition. The Appellants have clearly re-emphasized that a notice of preliminary objection must be incorporated in the reply to the petition. Reference was made to the cases of BELGORE VS. AHMED (2013) 8 NWLR (PT. 1355); MAKERA & ANOR VS. GALADANCH & ORS (2013) LRECN 66 @ 98 PARAS C- F.
It was submitted that the attempt by the 1st and 2nd Respondents to draw a distinction between an objection to jurisdiction and an objection to the competence of a petition is a distinction with no difference. The Appellants’ counsel has argued that the 1st Respondent had at the Tribunal stated in their Notice of Preliminary Objection that it was based on a jurisdictional issue. Now, the same 1st and 2nd Respondents cannot be heard on appeal, saying that they are challenging the competence of the petition. It was argued that the 1st and 2nd Respondents cannot be allowed to change the fabric of their case now on appeal. The Appellants have stated that they have equal effect and the distinction tried to be made by the 1st and 2nd Respondents is of no effect at all.
?It was also argued that every
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preliminary objection must be incorporated in the Reply filed. Thus, the second preliminary objection filed by the 1st and 2nd Respondents contravenes the provisions of the Electoral Act.
In response to the second issue formulated by the 1st and 2nd Respondents, the Appellants’ counsel has argued that all the and 2nd Respondents including cases cited by the 1st AIRHIAVBERE VS. OSHIOMHOLE (2012) LPELR 19177 and BELGORE VS. AHMED (SUPRA) were inapplicable.
In response to the third issue formulated by the 1st and 2nd Respondents that the 3rd Respondent had challenged the grounds of the petition in its final written address, the Appellants’ counsel has argued that it is totally false. What the 3rd Respondent did was to argue that the Appellants did not prove their grounds of petition through their witnesses and evidence given before the Court. Thus, the Tribunal was wrong to have gone beyond and grant a relief not sought.
?In response to the 4th issue formulated by the 1st and 2nd Respondents, the Appellants’ counsel has argued that it is highly misconceived for them to say that the Court of Appeal Justices cannot exercise their powers under
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Section 15 of the Court of Appeal Act because they did not see the demeanour of witnesses.
They urged this Court to resolve the entire appeal in their favour.
The Appellants filed a Reply to the 3rd Respondent’s Brief of Argument dated the 21st of September, 2019. In response to the first issue formulated by the 3rd Respondent, the Appellants’ counsel has stated that their objection to the 1st and 2nd Respondents’ preliminary objection is against the manner it was raised and not the timing. Also, the Appellants’ counsel has argued that all their grounds of appeal are clear and unambiguous and it does not lie in the mouth of the 3rd Respondent to direct them on how to complain.
It was further argued by Appellants’ counsel that non- compliance with the 1st Schedule to the Electoral Act does not vitiate or impugn on the jurisdiction of the Tribunal to hear the petition on its merit. The cases of BELGORE VS. AHMED (SUPRA) and SA’EED VS. YAKOWA (SUPRA) were cited.
?In response to the second issue formulated by the 3rd Respondent, the Appellants counsel has submitted that the doctrine of stare decisis is extant and sacrosanct in our
30
jurisprudence. It was argued that the 3rd Respondent failed to cite any authority to support their argument after the Appellants have cited two Supreme Court authorities. It was further argued by Appellants’ counsel that parties should not expand the law or read into it what was not legislated upon. Reference was made to AMAECHI VS. INEC (2008) 5 NWLR (PT. 1080) PAGE 227 PP 437.
In response to the third issue formulated by the 3rd Respondent, the Appellants’ counsel has argued that the 3rd Respondent did not oppose the Appellants’ contention that they were denied fair hearing at the Tribunal and thus it is deemed to have been admitted.
In response to the fourth issue raised by the 3rd Respondent, the Appellants’ counsel has argued that Ground 11 of their Notice of Appeal was clearly misconceived and that their fourth issue for determination was properly distilled from it. It was also argued that Section 15 of the Court of Appeal Act can still be properly exercised by this Court because this Court has 60 days to determine Appeals emanating from Tribunals in election matters.
JUDGMENT
I have painstakingly read and digested the
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respective briefs of argument filed by counsel for the Appellants and the Respondents in this appeal respectively, I will then proceed to resolve the issues raised. I hereby adopt the issues for determination raised by the Appellants. They are:
1. Whether the Preliminary objection of the 1st and 2nd Respondents filed eleven (11) days after they had filed their joint Reply to the Petition, on the basis of which the Tribunal dismissed the Petition was not incompetent ab initio.
2. Whether the non-filing of a List of witnesses along with the Petition robbed the Tribunal of the requisite jurisdiction to hear and determine the Petition on the merit.
3. Whether from the circumstances of the case, the Petitioners were not denied fair hearing and justice when the lower Election Tribunal suo motu raised and ruled on issues not before it nor raised by any of the parties by striking out the entire Grounds of the Petition as being incompetent.
4. Whether the Court of Appeal can invoke Section 15 of its Act in evaluating the evidence already adduced in the case.
ISSUE ONE
?As we all know, a preliminary objection is an objection to the
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competence of a Court process for the primary purpose of terminating the suit if it succeeds. In the case of OJUKWU VS. YAR’ADUA (2008) 4 NWLR (PT. 1078) PAGE 535, a preliminary objection was defined as an objection against the irregularity of a Court process which if it succeeds terminates the proceedings at that stage. The general principle of the law on the appropriate time of raising preliminary objection is codified in Paragraph 53(2) of the First Schedule, Electoral Act, 2010 (as amended) which requires an objector to raise his objection within a reasonable time.
It is the contention of the Appellants’ counsel that the trial Tribunal lacked the jurisdiction to entertain the 1st and 2nd Respondents’ Notice of Preliminary Objection because it was not incorporated in their Reply to their petition. The Appellants’ counsel have vehemently argued that the clear unambiguous wordings of Paragraph 12(5) of the First Schedule of the Electoral Act 2010 (as amended) makes it mandatory for every preliminary objection to be incorporated in the Reply to the petition.
?Is this true? I definitely do not think so. If a Respondent has filed his Reply
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within the time stipulated by law and then realizes a few days later that he has a valid preliminary objection to raise, will it be said that he has automatically become foreclosed from raising it? That cannot be the purport of the law.
In the case of AIRHIAVBERE VS. OSHIOMHOLE & ORS (2012) LPELR-9824 (CA), the interpretation of Paragraph 12(5) of the First Schedule to the Electoral Act 2010 (as amended) with respect to when an objection by way of motion shall be heard and when an objection embedded or stated in a reply shall be heard was explained exhaustively thus:
“In determining this question, we have to look at the provisions of the statute law and decision law. Paragraph 12(5) of the First Schedule to the Electoral Act 2010 (as amended) provides as follows, “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 47(1) of the same First Schedule provides as follows: 47(1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with
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leave of the Tribunal. Both of these provisions were interpreted inPDP V INEC (2012) NWLR PART 1300 AT PAGE 558-559, Muntaka-Coomassie JSC where his Lordship held thus; “The main contention of the Appellant in this appeal my lords is that the lower Court was wrong to affirm the decision of the Tribunal wrongly relied on the provisions of paragraph 12(5) of the 1st Schedule and that by the provisions of paragraph 47(1) all motions shall be moved at the pre-hearing session except in extreme circumstances with the leave of Tribunal. Paragraph 12(5) of the 1st Schedule of the Electoral Act 2010 provides as follows; “A Respondent who has objection to the hearing of the petition shall file his reply and state the objection thereon and the objection shall be heard along with the substantive petition. While Paragraph 47(1) of the 1st Schedule to the Electoral Act 2010 (as amended) provides thus; (i) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave to Tribunal or Court.” With tremendous respect, these paragraphs of the 1st Schedule apply to the different situations and proceedings,
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e.g. (i) where a party approaches the Tribunal with objection by way of motion, such motion shall be moved and determined during prehearing session except in extreme circumstances with the leave of the Tribunal, that is the position under the provisions of Paragraph 47(1) of the 1st Schedule; and (ii) where the objection is embedded or stated in the reply. Such objection shall be heard along with the substantive suit.?
Also in the case of PDP VS. INEC & ORS (2012) 7 NWLR (PT. 1300) PAGE 538 AT 558 D – H TO 559 A – C, it was held that:
“In my view, the provisions of the two paragraphs are clear and unambiguous, and are not subject to any interpretation and I only wish to state that where the law provides two methods or procedures for doing a thing, a party can choose any of the method so provided… ”
From the above cited cases, one thing is clear. There are two basic ways of raising a preliminary objection in an election petition. The position of the Appellants’ counsel is very correct to the extent that a preliminary objection should be raised in the Reply to the petition. However, the raising of the preliminary objection by the
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1st and 2nd Respondents days after the filing of the Reply to the petition is very valid and appropriate.
It can never be the law that failure to raise the Notice of Preliminary Objection in the Reply automatically shuts the door against a Respondent who has a preliminary objection.
I hereby resolve issue one against the Appellants and in favour of the Respondents.
ISSUE TWO
In the case of C.C.B. VS. A.G ANAMBRA STATE & ANOR (1992) 8 NWLR (PT. 261) PAGE 528 @556 PARA G, it was held that:
“It is the law that when a statute provides for a particular method of performing a duty regulated by the statute, that method and no other must be adopted.”
The provision of Paragraph 4(5) of the Practice Directions 2011 states that for any election petition to be competent, it shall be accompanied with the following:
a. List of all the witnesses that the Petitioner intends to call in proof of the petition;
b. Written statements on oath of the witnesses; and
c. Copies or list of every document to be relied on at the hearing of the petition.
?In election petition proceedings, the above documents must be
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frontloaded so as to give the respondent the full picture of the case he, the petitioner, intends to pursue and how he will achieve success at same.
However, when reading a provision of a law, it must not be read in isolation. The fundamental desire of a judge is to do justice. Election petitions are sui generis and are very time bound. Time is of the essence. Thus, the judex is expected to do substantial justice and avoid unnecessary delays.
The 1st and 2nd Respondents in their Notice of Preliminary Objection at the Tribunal argued that the Petition filed by the Appellants was defective because it did not contain the list of witnesses. They shabbily argued this point, stating that because the word “shall” was used, it is mandatory and must be strictly complied with. They could not cite a single authority that is on all fours with this instant case, where Tribunals struck out a petition for being incompetent because it did not contain a list of witnesses.
?I have painstakingly researched and found authorities on cases bordering on Paragraph 4(5) of the First Schedule of the Electoral Act 2010 (as amended) and I did not see a single case
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where it was held that the three conditions are conjunctive and that the failure to obey one amounts to a non-compliance of the law for which a petition must be struck out. These conditions appear disjunctive. In this instant case, the Appellants failed to file the list of witnesses. To my mind, the question I ask myself is whether the failure to file the list of witnesses is so fundamental as to mislead the Tribunal as to the way and manner the Petitioners (now Appellants) wanted to present their case? Have the Respondents become so confused and prejudiced as a result of the non-filing of the List of witnesses? I do not think so. In the case of ACTION CONGRESS OF NIGERIA VS. LAMIDO (2012) 8 NWLR (PT. 1303) PAGE 560 @ 580 – 581, it was held thus:
“The failure of the appellant to accompany its petition with the copies or list of every document to be relied on at the hearing of the petition which in this case includes the said ballot papers in line with the requirement of Paragraphs 4(5) and 41(8) of the First Schedule to the Electoral Act 2010 (as amended) was merely responsible for the refusal of the trial Tribunal to admit the document in
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evidence. No complaint of denial of fair hearing at all shall arise from the facts revealed on the record This second issue like first must fail.”
Also, in the Supreme court case ofGUNDIRI VS. NYAKO (2014) 2 NWLR (PT. 1391) PAGE 211, it was held per Ogunbiyi, JSC that:
?It is well settled that as pre-condition to exercise of jurisdiction, the witness statements are to accompany the petition to be filed. The consequential effect of the failure to comply is that Tribunal was on firm ground when it declined to exercise jurisdiction over 22 witness depositions which it held were incompetent.”
In the case of OKEREKE VS. YAR’ADUA (2008) 6 NWLR (PT. 1082) PAGE 37 @ 64, it was held as follows:
“In the instant petition, there was no list of witnesses that the petitioner intends to call in proof of his petition and written statements of witnesses on oath and the copies or list of documents to be relied on for the hearing of the petition as required by the Court Practice Direction. Though it is in my candid view that the petitioner has the locus standi to present the petition by virtue of Section 144(1)(a) of the Electoral Act 2006,
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nonetheless the petition as presently constituted is not only defective but incurably defective and ought not to be allowed the petition dated and filed on 21st May, 2007 is hereby struck out for being incompetent.”?
Enough said, from the authorities cited above, one thing remains clear. The learned justices that decided the cases stated why the non-compliance was fatal to the case of the petitioner and how it rendered the petition incurably defective. For instance, look at the case where the petitioner failed to file all the witness statements on oath of the witnesses he intended to call, it automatically amounts to no evidence at all before the Court. Even in our civil litigation, such a defect can never be overlooked.
Paragraph 4(5) of the First Schedule of the Electoral Act 2010 (as amended) has provided three conditions to be met while filing a petition. It is my view that these conditions are disjunctive and not dependent on one another. They need not co-exist. I do not see how the non-filing of the List of witnesses in the petition allows the law to smash and destroy the petition and justice sought by the Appellants.
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The Courts are the last hope for the common man. God forbid it becomes a slaughter house for justice.
Therefore, the filing of the List of documents to be relied on and witness statements on oath by the Appellants which to my mind are very fundamental for every competent petition amounts to substantial compliance with the provisions of Paragraph 4(5) of the First Schedule of the Electoral Act and therefore, the Tribunal was very wrong in the instant case to have struck out the petition. The Tribunal decided the matter on technicalities which are greatly frowned at by the law. In the case of IBRAHIM VS. OBAJE (2019) 3 NWLR (PT. 1660) PAGE 389 @ 413 PARAS B – D, it was held that:
“It is the duty of the Court to consider the case and claim of its merit and not allow the coverings and cloud of technicality to dim its vision on the road to justice. The Court therefore, has an inherent obligation not to sacrifice justice on the altar of technicality.”
In the case of WAZIRI S. MAMMAN & ANOR VS. SEN. EMMANUEL BWACHA & ORS (2017) 1 NWLR (PT. 1547) PAGE 425 AT 456, it was held per Sankey JCA that:
?”It cannot be emphasized enough
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that election matters are sui generis, and the trend now in such maters is towards doing substantial justice. Courts are thus more interested in substance than in mere form. Justice can only be done if the substance of the matter is looked into, in the interest of justice, I would therefore rather that the petition is attended to on its merits, without undue regard to technicalities. See also – OKUNLADE VS. AZEEZ (2009) LPELR – 4730; NGIGE VS. OBI (2006) 14 NWLR (PT. 999) PAGE 1; AJADI VS. AJIBOLA (2004) 16 NWLR (PT. 898) PAGE 91 AT 192.
I hereby resolve issue two in favour of the Appellants as I find the petition filed at the Tribunal competent, being in substantial compliance with the provisions of paragraph 4 (5) of the Electoral Act (as amended).
ISSUE THREE
I totally agree with the submission of the Appellants’ counsel that the Tribunal had no business in raising the issue of the competence of the grounds of appeal suo motu without ordering parties to address them on it before proceeding to make a pronouncement. The issue on whether or not the grounds of petition complied with Section 138 of the Electoral Act 2010 (as amended) was
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never raised by the 1st and 2nd Respondents counsel neither was it raised by the 3rd Respondent counsel. It was never canvassed at the trial Tribunal at any point. The Tribunal never raised the issue during the pre-hearing session neither did they order parties to address them on the propriety or otherwise of the grounds of appeal. The Tribunal had no lawful right to become a counsel and start challenging the grounds of the petition brought before it. Judges serving at the election Tribunals are adjudicators of facts brought before them. They should adjudicate over the facts brought before them, evaluate the evidence led in prove of those facts and pronounce a deserving judgment on it. In the case of GUARDS INSURANCE BROKERS VS. RAJI (2014) ALL FWLR (PT. 715) PAGE 356 AT 359 PARA 4, it was held that:
“Where an issue is raised suo motu by the Court, parties must be given the opportunity to be heard on the issue, particularly the party that will be adversely affected as a result of the point raised and to avoid possible breach of the parties’ right to fair hearing. In this instant case, where the trial Court based its judgment on issue raised
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suo motu without affording the parties a hearing on, the judgment reached was set aside on appeal.”
I agree with all the submissions of the Appellants’ counsel on this issue. I resolve issue three in favour of the Appellants.
ISSUE FOUR
On the issue of whether this Honourable Court can exercise its powers under Section 15 of the Court of Appeal Act in this instant appeal, I will refer to the case of ECOTRADE LTD VS. MACFOY & ORS (2015) LPELR – 25205 where it was held that:
“For the provisions of Section 15 of the Court of Appeal Act to apply, the following conditions which had already been settled in legion of authorities must exist, to wit, (a) the lower Court must have the legal power to adjudicate over the matter before the appellate Court can entertain it; (b) the issue sought to be determined must be capable of being distilled from the grounds of appeal before the appellate Court; (c) all relevant materials must be available before the Court for consideration; (d) the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and (e) the injustice or hardship
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that will follow if the case is remitted to the lower Court must be clearly manifested.” See also the cases of EZEIGWE V. NWAWULU (2010) 4 NWLR PART 1183 PAGES 159; OBI V. INEC (2007) 1 NWLR PART 1046 PAGE 465.
The conditions stated in the above mentioned case must co- exist i.e. they are dependent on one another. All must be present before the powers of the Court in Section 15 of the Court of Appeal Act can be invoked. A trial Tribunal has 180 days to hear and determine a petition from the date of filing. From the records of appeal before me, the petition was filed on the 15th of March, 2019 and the 180 days’ time limit lapsed on the 10th of September, 2019. Learned counsel for the Appellants clearly misconceived the law when he argued in paragraph 5.3 of their Reply to the 3rd Respondent’s brief of argument that this Honourable Court has the powers to exercise a review of the evidence led at the trial pursuant to Section 15 of the Court of Appeal Act because this Court has 60 days to determine Appeals emanating from the trial Tribunal. Yes, this Court has 60 days to determine appeals emanating from the trial
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Tribunals. However, for an appellate Court such as ours to exercise its powers under Section 15 of the Court of Appeal Act, the trial Tribunal must still be within time (before the lapse of the 180 days) to have jurisdiction to hear the matter. Thus, since the 180 days’ time frame of the Tribunal has lapsed since the 10th of September, 2019, I am afraid this Court can no longer exercise its powers under Section 15 of the Court of Appeal Act. In the case of INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) PAGE 613 PARAS F – G, it was held per Tobi, JSC that:
“The Court of Appeal can exercise its SECTION 16 power if only the High court has jurisdiction in the matter. Accordingly, jurisdiction of the High court is a precondition for the invocation of the provision of Section 16 by the Court of Appeal.” Finally, in the case of PROFESSOR OLUTOLA VS. UNIVERSITY OF ILORIN (2004) 18 NWLR (PT. 905), it was held that: “The Court of appeal can exercise its power under Section 16 if only the trial Court has jurisdiction in the matter.” See also – NICON VS. POWER AND INDUSTRIAL ENGINEERING CO. LTD (1990) 1 NWLR (PT. 129) PAGE 697;
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FALEYE VS. OTAPO (1995) 3 NWLR (PT. 381) PAGE 1. The justices of the trial Tribunal ought to have decided the petition brought before them on the merits after evaluating all the evidence led before them instead of lazily striking out the petition on grounds of technicality.
Having resolved issues two and three of this appeal in favour of the Appellants, this appeal succeeds in part. However, in the light of the fact that this Court can no longer exercise jurisdiction under Section 15 of the Court of Appeal Act, this appeal will have to be struck out. It is hereby struck out.
There is no order as to cost
ADAMU JAURO, J.C.A.: I had the advantage of reading in draft the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA. I am in complete agreement with the reasoning and conclusion contained therein.
I adopt the judgment as mine and join my brother in striking out the appeal.
Appeal struck out and no order as to costs.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA. ?
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I am in complete agreement with the reasoning and conclusion reached therein.
Let me briefly make some comments on the provisions of Paragraph 4(5)(1) of the Practice Directions, 2011 of the First Schedule of the Electoral Act, 2010 (as amended) which stipulates thus:
“The Election Petition shall be accompanied by:-
(a) List of the witnesses that the Petitioner intends to call in proof of the petition.
(b) Written statements on oath of the witnesses; and
(c) Copies or list of every document to be relied on at the hearing of the Petition.”
This provision requires the Petitioner to frontload the statements and the documents to be relied upon at the trial so as to avail the Respondent opportunity of awareness of the case presented by the Petition for appropriate defence by the Respondent. It is also an avenue for the Court or Tribunal to Respondent have an appraisal of the neutral and proper determination of the Petition. The list of witnesses that the Petitioner intends to call in proof of the Petition as required by paragraph 4(5)(1)(a) is merely an itemization of the witnesses/deponents of the statements on oath
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of those to testify for the petition. The list of the witnesses to be attached is an overview or outline of the witnesses in paragraph 4(5)(1) (b). The material items that must necessary accompany the Petition are the written statements on oath of the witnesses and copies of the documents to be relied on at the trial. Once a Petitioner has complied with subparagraphs 5(1) (b) and (c), there is substantial compliance with provisions of the law. There cannot be any incidence of surprise or miscarriage of justice to the Respondents merely on failure to attach a list of witnesses when the Petitioner has attached the statements of the witnesses in support of his Petition. The whole essence of this provision is to facilitate quick dispensation of justice in election matters. In fact, the totality of the First Schedule is to quicken the hearing of election matters; and not to be stumbling blocks to defeat the hearing of Petitions. The cases cited by the Respondents are not in any way apposite to the one at hand. It is monumental technicality, bordering on injustice to strike out a Petition merely because the Petitioner failed to attach the list of witnesses
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to be relied upon by the Petitioner. In my view, the wishes of the electorates must not be whisked away on mere technicalities.
?I abide by the order made by my learned brother in the lead judgment.
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Appearances:
J. K. Kolawole, Esq. with him, J. Itodo, Esq.
For Appellant(s)
A. Amiga, Esq. with him, A. Adegboyega, Esq., K. Zontong, Esq. and A.P. Musa, Esq. for the 1st and 2nd Respondents.
S. Yusuff, Esq. with him, F.D. Birma, Esq, R. A. Bawa, Esq. and M. Y. Mavo, Esq. for the 3rd Respondent
For Respondent(s)
Appearances
J. K. Kolawole, Esq. with him, J. Itodo, Esq.For Appellant
AND
A. Amiga, Esq. with him, A. Adegboyega, Esq., K. Zontong, Esq. and A.P. Musa, Esq. for the 1st and 2nd Respondents.
S. Yusuff, Esq. with him, F.D. Birma, Esq, R. A. Bawa, Esq. and M. Y. Mavo, Esq. for the 3rd RespondentFor Respondent
