THERHEMEN TARZOOR V. AGBOM A. AVINE & ORS (2011)

THERHEMEN TARZOOR V. AGBOM A. AVINE & ORS

(2011)LCN/4854(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 25th day of October, 2011

CA/MK/EPT/20/2011

RATIO

JURISDICTION: WHETHER THE ISSUE OF COMPETENCE OF AN APPLICATION IS A JURISDICTIONAL QUESTION

The issue of competence of an application is a jurisdictional question. A challenge to the competence of an application raises the competence and jurisdiction of a Court to entertain it. It is trite that a Court is competent to hear and determine any matter if there is no feature which prevents it from exercising its jurisdiction and also the matter come before it initiated by due Process of law, and upon the fulfillment of any condition Precedent to the exercise of jurisdiction. This is the decision in the vintage case of MADUKOLU & ORS V. NKEMDILLIM (1962) 1 All NLR 587. It has been held in a plethora of authorities, too numerous to be mentioned here, that when a Court’s jurisdiction is challenged, it is neater and far better to settle that issue one way or another before proceeding to hearing of the case on the merits. It is also a settled and well defined principle of adjudication that if a Court has no jurisdiction to entertain a matter before it the proceedings pursuant thereto are and remain a nullity however well conducted and brilliantly decided they might otherwise have been. It is to this question of competence that I must now focus my attention. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

STATUTORY PROCEDURE: POSITION OF THE LAW WHERE A LEGISLATION HAS LAID DOWN A PROCEDURE FOR DOING A THING

It is settled law that where legislation lays down a procedure for doing a thing there should be no other method of doing it. In the circumstance of this application the necessary rules of procedure to be adopted will appear to be under Paragraphs 47(2) and 47(3) of the 1st Schedule to the Electoral Act, 2010, as amended. It is taken as correct that election matters are sui generis proceedings. They are to be heard and determined expeditiously. All rules of procedure in that behalf are geared and targeted towards that objective. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

GOLDEN RULE: WHAT THE GOLDEN RULE OF STATUTORY INTERPRETATION ENTAILS

In the interpretation of statutes the Courts of this Country have always been guided by the “golden rule” of statutory interpretation. Under this rule, a Court is required to interprete the words of a statute by attaching to all such words their literal, ordinary and natural meaning except where such an interpretation will defeat the purpose of the legislation or engender mischief or manifest absurdity. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

INTERPRETATION OF STATUTE: HOW THE COURTS ARE TO THE INTERPRETE THE PROVISIONS OF A STATUTE OR THE CONSTITUTION

JUSTICES

MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

THERHEMEN TARZOOR Appellant(s)

AND

1. AGBOM A. AVINE
2. ACTION CONGRESS OF NIGERIA
3. PEOPLES DEMOCRATIC PARTY
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Ruling): In an application dated and filed on 19th October, 2011 the 1st and 2nd Respondents/Applicants seek for the following 2 main reliefs. They are:-
(1) An order of the Honourable Court disqualifying itself from hearing of this Appeal for reason of real likelihood of bias; and
(2) An order of this Honourable Court remitting this appeal to the President, Court of Appeal, Abuja, for the purpose of re-assigning same to any other similar Appeal Court differently constituted for the purpose of hearing and determining of the appeal.
This application was brought pursuant to S. 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended and order 7 r.1 of the court of Appeal Rules, 2011.
Also, the application is predicated on the following 13 grounds and a 24 paragraph affidavit with 4 Exhibits attached thereto. The grounds are:-
1. This Honourable court had on the 16th day of September, 2011 delivered two judgments in Appeal No. CA/MK/EPT/07/2011, between Gabriel Torwua Suswam v. Prof. Steve Torkuma Ugba & 3 Ors, and Appeal No.: CA/MK/EPT/10/2011 between Peoples Democratic Party v. Prof. Steven Torkuma Ugba and 3 others.
2. That in Appeal No. CA/MK/EPT/907/2011, this court held that Motion Ex-Parte is an appropriate method of applying for Pre-hearing Section before the lower Tribunal.
3. In appeal No. CA/MK/EPT/10/2011, this court held that leave has to be first sought and obtained before an application for Pre-Hearing Section can be competent.
4. By virtue of this Court’s judgment in Appeal No. CA/MK/EPT/10/2011, the lower Tribunal was urged to treat the petition as abandoned and some was dismissed.
5. The Appeal against the judgment of this court in CA/MK/EPT/10/2011 is pending before Apex Court in Nigeria, i.e. Supreme Court of Nigeria.
6. That Ground one in this Appeal is to the effect that leave was necessary in an application for the issuance of Pre-Hearing Notice of the lower Tribunal.
7. The various divisions of this Court have given conflicting judgments on the proper made of making an application for pre-hearing session, with this Division inclusive.
8. In view of the earlier decision of this Court on the issue of leave to apply for pre-hearing session in Appeal No. CA/MK/EPT/10/2011, the 1st and 2nd Respondents strongly believe that this Honourable Court as presently constituted cannot approach this appeal with an open uninfluenced mind.
9. That the decision of this Court in this appeal is final.
10. That the 1st and 2nd Respondents will suffer irreparable loss if this appeal is decided against the 1st and 2nd Respondents based on the ground one of the Notice of appeal and the Supreme Court decides that leave was not necessary of the lower tribunal.
11. That it will be expedient and more transparent for this Appeal to be determined by a neutral panel that has never pronounced on the issue of leave to commence pre-trial.
12. The decision of this Court in CA/MK/EPT/10/2011 has affected various petitions filed by the 2nd Respondent.
13. The Supreme Court of Nigeria is yet to decide the appeal to it against the decision of this Court in Appeal No. CA/MK/EPT/10/2011.
Upon being served, the Respondents joined issues with the Applicants to oppose the application in their Respective counter affidavits. The counter affidavit of the Appellant/Respondent is of 15 paragraphs and it was sworn to by one Miss Patricia N. Jooji, a junior Counsel in the team of lawyers representing the Appellant/Respondent. The counter affidavit of the 3rd Respondent/Respondent was sworn to by Mr. T. T. Igba, a counsel in the law firm of A. A. Ijohor & Co. Counsel to the 3rd Respondent/Respondent. It is of 20 paragraphs and accompanied by a written address in opposition to the application. On its part, the 4th Respondent/Respondent filed a 5 paragraph counter affidavit sworn to by Mr. Momodu O. Abodunrin, a member of the team of lawyers, representing the 4th Respondent/Respondent it is also accompanied by a written address in opposition to the application.
At the hearing of the application Mr. S. A. Ngavan, of Counsel introduce his junior Mr. Femi Falana as the Counsel to argue it. Learned Counsel Mr. Falana introduced this application and its supporting processes and relied on same.
He read out the 2 main reliefs as set out on the face of the motion paper and reproduced hereinabove. In his opening argument, Mr. Falana, of Counsel identified Exh. 2 attached to the affidavit in support as the judgment of this court delivered on 16/9/2011 and explained that the applicants have averred that on appeal had been filed against it at the Supreme Court. He then emphasized that while making on allegation of likelihood of a bias against the panel of Justices of this Court hearing this application, the Applicants have not made allegations of impropriety of any kind against the court.
Against this background, learned Counsel identified and pointed out the gravamen of this application to be centered on the fact of the existence of a binding decision of this court which will prejudice the hearing of this appeal in violation of the provisions of S. 36(1) of the Constitution, as amended. According to learned counsel Mr. Falana, a court cannot be said to be impartial if its position with respect to a matter is known. He added that were this to be so, then the decision of a court has become a pre-judgment. A pre-judgment, according to Counsel, is a denial of fair hearing. He then refered to Vol. 1 of 4th Edition of Halsburys Laws of England paragraph 69 of page 83 for what amounts to a pre-judgment in the con of a likelihood of bias. Mr. Falana, of Counsel maintained that likelihood of bias goes beyond impropriety.
He described the judgment of this Court of 16/09/2011 as one that amounts to a pre-judgment on the decision of this Court in this appeal which involves the question or issue of the need or otherwise of leave to bring on application pursuant to paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010, as amended.
On the question of the definition and test of likelihood of bias, learned Counsel refered to the cases of WOMILOJU V. ANABIRE (2010) 10 NWLR (Pt. 1203) 545 at 568 and ABALAKA V. MINISTER OF HEALTH & ORS. (2006) 2 NWLR (pt. 963) 105 at 130. Further to this, learned Counsel explained that this court is bound by its previous decisions subject to the important exceptions set out in the famous case of YOUNG V. BRISTOL. He refered to the Supreme Court decision in USMAN V. UMARU (1992) 7 NWLR (Pt. 254) 377 to emphasise the strong foundation of the Principle that this Court is bound by its previous decisions. In conclusion, learned Counsel typified the situation in this appeal as “come for your assured judgment”. He submitted that on irreparable damage would have been occasioned on the applicants if this Court proceeds to hear and determine this appeal in a pre-determined manner. He urged the Court to grant the application.
In his reply learned Counsel to the Appellant/Respondent, Mr. Dodo SAN, introduced and relied on the 15 paragraph counter affidavit of Miss. P. N. Jooji to oppose this application. The learned SAN characterized this application as most malicious and brought mala fide. He relied on paragraph 14 of his counter affidavit and pointed out that this application is a grand design to defeat the hearing of this appeal on the merit. According to Mr. Dodo SAN, all the authorities refered to by Mr. Falana, of Counsel are against this application, and to that extent inapplicable in the circumstance. Still on the nature of this application, learned Counsel Mr. Dodo SAN, refered to it as most preposterous as it seeks to challenge the power of a Court to hear and determine matters of similar facts and circumstances on the some set of rules and precedents. He urged this Court to resist this challenge. Mr. Dodo SAN did not hide his sentiment when he remarked that the chaos and anarchy this type of application would bring into our jurisprudence is so deep and profound.
Sentiments aside, learned counsel Mr. Dodo SAN continued and pointed out that though learned Counsel Mr. Falana, had been alluding to a pending appeal to the Supreme Court against the judgment of this Court of 16/09/2011, no notice of appeal had been exhibited to show that this appeal to the Supreme Court was no more than a pipe dream in the imagination of Mr. Falana, of Counsel. Mr. Dodo SAN also pointed out that this appeal has 8 grounds with the issue of steps leading to the issuance of pre-hearing notice being just one of the 8. He pointed out that this appeal could be decided on any of the grounds. In the opinion of learned Counsel Mr. Dodo SAN it is not by accident that the 1999 Constitution, as amended makes this Court the final Court in this appeal and against the backdrop of this any attempt, under any guise, to hamstring this ample power of this Court must be resisted. He refered to the cases of IWO LOCAL GOVT. V. ADIO (2000) 8 NWLR (pt. 667) 15 at 113 and WOMILOJU V. ALABIRE (Supra) and urged this Court to refuse this application and proceed to hear and determine this appeal on the merit.
When it came to his turn, learned Counsel to the 3rd Respondent/Respondent, Mr. Ijohor SAN, identified, introduced and relied on his 20 paragraph counter affidavit and its annexure. Having done that, the learned SAN, Mr. Ijohor, SAN of Counsel was quick to point out that this application is not accompanied by a written address as required by paragraph 47(3) of the 1st Schedule to the Electoral Act, 2010, as amended. Having adopted and relied on his written address, learned Counsel Mr. Ijohor SAN refered to the case of UDO V. OKPO (1996) 8 NWLR (Pt. 469) 705 of 718 and urged this Court to, for the reasons canvassed in the written address, dismiss this application for being incompetent.
Learned Counsel Mrs. N.D, Ter for the 4th Respondent/Respondent relied more particularly on Paragraph 4 of her counter affidavit and the written address attached thereto in urging this Court to dismiss this application.
In his reply learned Counsel Mr. Falana explained that paragraph as of the 1st Schedule does not provide for written addresses to be filed in this Court. He also added that S.145 of the Electoral Act, 2010, as amended refers to this Court in terms of the Presidential Election Tribunal and not the Court of Appeal as presently constituted in this application. He urged this Court to discountenance the written addresses filed by the 3rd and 4th Respondents and proceed further to hold that the 3rd and 4th Respondents did not have anything to urge before this Court in this application. While referring to the case of ABIOLA V. FEDERAL REPUBLIC OF NIG. (1995) 7 NWLR (Pt. 405) 1, Mr. Falana took on Mr. Dodo SAN on his sentiments. Mr. Falana argued that chaos and anarchy did not ensue when the Supreme Court disqualified itself from hearing the appeal in that matter.
In their respective submissions, learned Counsel Mr. Ijohor SAN and Mrs. N. D. Ter had pointed out that this application is not accompanied by a written address and had proceeded to urge this Court to dismiss it for being incompetent. In his reply on this issue, learned Counsel Mr. Falana had urged this Court to discountenance the written address filed and go further to hold that learned Counsel Mr. Ijohor SAN and Mrs. Ter had urged nothing on this Court with respect to this application.
I have carefully considered this issue and had taken a very serious view of it. The competence of this application is of stake. The issue of competence of an application is a jurisdictional question. A challenge to the competence of an application raises the competence and jurisdiction of a Court to entertain it. It is trite that a Court is competent to hear and determine any matter if there is no feature which prevents it from exercising its jurisdiction and also the matter come before it initiated by due Process of law, and upon the fulfillment of any condition Precedent to the exercise of jurisdiction. This is the decision in the vintage case of MADUKOLU & ORS V. NKEMDILLIM (1962) 1 All NLR 587.
It has been held in a plethora of authorities, too numerous to be mentioned here, that when a Court’s jurisdiction is challenged, it is neater and far better to settle that issue one way or another before proceeding to hearing of the case on the merits. It is also a settled and well defined principle of adjudication that if a Court has no jurisdiction to entertain a matter before it the proceedings pursuant thereto are and remain a nullity however well conducted and brilliantly decided they might otherwise have been. It is to this question of competence that I must now focus my attention.
For purposes of clarity and to put this issue of competence in its proper perspective, I have found it pertinent and even compelling to refer to and reproduce the relevant provisions of the Electoral Act, 2010, as amended and the 1st Schedule thereto to fully enable this Court to resolve this vexed issued. It is the meaning and application of these provisions that will go along way in assisting this Court to resolve this crucial issue. Respective learned Counsel have variously refered to the provisions of S. 145(1) of the Electoral Act, 2010, as amended and Paragraphs 47 and 55 thereto.
S. 145(1) (Supra) provides thus:-
“The rules of Procedure to be adopted for election petitions and appeals arising therefrom shall be set out in the First Schedule to this Act.”
Also, paragraph 47(2) of this First Schedule provides:-
“Where by these Rules any application is authorized to be made to the Tribunal or court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the respondent.
Further and related to this, Paragraph 47(3) provides that:-
“Every such application shall be accompanied by a written address in support of the relief sought.”
At the end of the 1st Schedule is the last paragraph which is paragraph 55.
It is what appears to me to be a saving provision. It states:
“Subject to the provisions of this Act, an appeal to the Court of Appeal or the Supreme Court shall be determined in accordance with the practice and Procedure relating to civil appeals in the Court of Appeal or the Supreme Court, as the case may be, regard being had to the need for urgency on electoral matters.”
These provisions appear to capture the essence of the positions canvassed in this application on the place of written addresses in applications on election matters before this Court. In the interpretation of statutes the Courts of this Country have always been guided by the “golden rule” of statutory interpretation. Under this rule, a Court is required to interprete the words of a statute by attaching to all such words their literal, ordinary and natural meaning except where such an interpretation will defeat the purpose of the legislation or engender mischief or manifest absurdity.

It is also settled law that in the interpretation of the provisions of a statute or the Constitution, a Court must read together related provisions of the Constitution or statute in order to discover their meaning. It is not allowed for a Court to interprete related provisions of the Constitution or statute in isolation. See AMAECHI V. INEC 33 NSCQR 332 at 423 per Oguntade, JSC. It is also not allowed for a Court to embark on a voyage of discovery, while interpreting statutes in such a way as to, in the process, destroy the true meaning and effect of particular Provisions.
The provisions of S.145 (Supra), Paragraphs 47(2), 47(3) and 55 (Supra) no doubt are related and none can stand alone against the other. They are in harmony and are headed towards one direction. It is proper for them to be communally read and applied. After a careful reading of S. 145 it is clear that from its wordings it provides for the rules of practice to be employed by this Court when it is sitting as a Tribunal in the course of a Presidential Election Petition or when it is sitting as an appellate Court over the decisions of the various elections Petitions Tribunals established for Governorship election or Legislative Houses election Petitions Tribunals. Also, a community reading of Paragraphs 47(2) and 47(3) will show the requirements of applications in election matters. These 2 provisions have the same effect as the provisions of order 7 r. 1 and order 7 r. 9 of the Court of Appeal Rules 2011. While order 7 r. 9 provides for oral arguments on applications, Paragraph 47(3) provides for applications to be predicated on written addresses. Both the provisions of the Court of Appeal Rules 2011 and the 1st schedule to the Electoral Act, 2010, as amended are mandatory provisions. They each appear to be binding on this court. However, can they apply concurrently? or does this court have any right of choice? or is it left for any party before this Court in on application to choose for itself? On the surface there could ordinarily be a seeming impasse or uncertainty. To my knowledge, there is no judicial authority on the interpretation and application of these Provisions. I must confess that before now, we, in this Division of this court had been under the belief that motions in election Appeals before this Court are heard and determined on the basis of oral arguments pursuant to O.7 r. 9 of the rules of this Court. Is there any bemusement in the circumstance? Having regards to paragraph 55 (Supra), I do not think there is any doubt as to its meaning and effect. While S. 145 of the Electoral Act (Supra) provides for, in unmistakable and unequivocal terms for the rules of practice and procedure in election matters and appeals before this Court, paragraph 55 in similar terms provided for the application of, for example, the Court of Appeal Rules 2011, where or in circumstances that the 1st Schedule to the Electoral Act 2010 failed to make adequate provisions therefor. It would therefore appear that S. 145 (Supra) has excluded the application of the Court of Appeal rules in the filing and hearing of motions and applications, in election matters and appeals. It is settled law that where legislation lays down a procedure for doing a thing there should be no other method of doing it. In the circumstance of this application the necessary rules of procedure to be adopted will appear to be under Paragraphs 47(2) and 47(3) of the 1st Schedule to the Electoral Act, 2010, as amended. It is taken as correct that election matters are sui generis proceedings. They are to be heard and determined expeditiously. All rules of procedure in that behalf are geared and targeted towards that objective.
In my view, it is this overall declared objective that may have informed the place of the expression “… regard being had to the need for urgency on electoral matters.” of the end of Paragraph 55.
There is very little doubt and it is very clear to all and sundry that the procedure of hearing and determining motions by way of written addresses is more expeditious than by oral or viva voce arguments and submissions in open court. From the foregoing, I am of the firm view that S. 145(1) of the Electoral Act, 2010 has fully and absolutely excluded the application of the provisions of other enactments in the procedure to be adopted in election matters. Also, it is clear to me that the rules of procedure to be employed in election matters is as prescribed in the 1st Schedule to the Electoral Act and that for purposes of appeals in election matters, this court must only, in so far as circumstances permit, adopt and apply the provisions of the 1st Schedule. It has been held by the Supreme Court in the cases of OKEREKE v. ‘YAR ADUA 34 NSCQR pt. 11 1370 at 1403 and NWANKWO & ORS. V. YAR’ADUA (2010) 12 NWLR (Pt. 1209) 518 that provisions pari materia to paragraph 47(2) and 47(3) are mandatory and must be complied with. Against this background and all that I have observed herein, I hold that the failure of an applicant, in a motion on notice, before this Court in a purely election matter, to accompany that motion with a written address is a violation of Paragraph 47(3) (Supra) and to that extent such application is rendered incompetent having failed to satisfy a condition Precedent to its validity.
This motion as presently constituted is incompetent having failed to satisfy the requirements of Paragraphs 47(2) and 47(3) of the 1st Schedule and it is hereby dismissed for want of jurisdiction and competence on this Court to entertain same. I make no order for costs.

MOHAMMED LADAN TSAMIYA, J.C.A.: I agree

UCHECHUKWU ONYEMENAM, J.C.A.: I agree with the ruling delivered by my learned brother Ali Abubakar Babandi Gumel, JCA. I also dismiss the application for lacking in merit and I make no order as to cost.

Appearances

Mr. D. D. Dodo SAN with Mr. M. A.
Tende, Mr. E. I. Iaren, Mr. Audu Anuga,
Mr. J. T. Henkyaa, Mr. T. Gbashima and
Miss. P. N. Jooji for the Appellant/RespondentFor Appellant

AND

Mr. S. A. Ngavan with Mr. Femi Falana
Mr. A. I. Wombo. And Mr. G. T. Igba
For the 1st and 2nd Respondents/Applicants

Dr. A. A. Ijohor SAN with Mr. T. D.
Pepe, Mr. T. T. Igba, Miss. Peace
Okhaide, Mr. C. T. Mue, Mr. F. T.
Kusugh and Mrs. N. L. Ikyaaba for the 3rd Respondent/Respondent.

Mrs. N. D. Ter with Mr. E. P. Echor
And Mr. O. A. Momodu for the 4th
Respondent/RespondentFor Respondent