UMAR KAIKA OSU & ANOR v. DANLADI JATAU & ORS
(2019)LCN/13820(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of October, 2019
CA/MK/EP/HA/25/2019
RATIO
ELECTION PETITION: EXTENSION OF TIME LIMIT FOR DETERMINATION OF ELECTION PETITIONS: WHETHER THE COURTS CAN EXTEND SUCH TIME LIMIT WHERE SAME IS STIPULATED BY THE CONSTITUTION OR ANY OTHER STATUTE
The law is now cast in stone that the Court lacks power to extend the time limit for the determination of election petitions where same is stipulated by the Constitution or any other statute. PER JUMMAI HANNATU SANKEY, J.C.A.
APPEAL: EXPIRATION OF TIME FOR DETERMINATION: THE SUPREME COURT CAN REMIT AN APPEAL BACK TO THE COURT OF APPEAL OR STEP INTO THEIR SHOES WHEN THE TIME PRESCRIBED FOR DETERMINATION HAS EXPIRED
In respect of a similar provision in Section 22 of the Supreme Court Act, the apex Court has weighed in on this issue i.e. the invocation of the power of the Supreme Court to step into the shoes of the Court of Appeal or to remit the Appeal back to the Court of Appeal where the time prescribed for the determination of the Appeal has expired. PER JUMMAI HANNATU SANKEY, J.C.A.
ELECTION PETITION: PERIOD WITHIN WHICH AN ELECTION TRIBUNAL MUST GIVE JUDGMENT IS 180 DAYS
A similar scenario to that presented in this Appeal was presented in the case of ANPP V Goni (2012) 7 NWLR (Pt. 1298) 147. Therein, Counsel for the Appellant sought to argue as the Appellants have done in the instant Appeal, that as long as the Election Tribunal delivers its decision before the expiration of 180 days from the date the Petition was filed, the vested powers of the Court of Appeal under Section 6(1) and 246 of the Constitution, Section 15 of the Court of Appeal Act and Order 4 Rule 9 of the Court of Appeal Rules, 2011, cannot be inhibited by Section 285(6) of the Constitution. In its decision on the issue, the Supreme Court per Onnoghen, JSC (as he then was) held:
By virtue of Section 285(6) of the 1999 Constitution (as amended) and Section 134(2) of the Electoral Act, 2010 (as amended), an election Tribunal shall deliver its judgment in writing one hundred and eighty days from the date of filing of the petition. Thus, an election Tribunal in an election petition matter must deliver its decision or judgment or ruling or order in writing within one hundred and eighty days from the date the petition was filed. The judgment cannot be given a day or more or even an hour after the one hundred and eighty days. (Emphasis supplied) PER JUMMAI HANNATU SANKEY, J.C.A.
ELECTION PETITION: WHETHER AN APPELLATE COURT CAN ORDER A RE-TRIAL OR HEARING DE-NOVO WHEN AN APPEAL SUCCEEDS WITHIN THE TIME PRESCRIBED
Again, in Ugba V Suswam (2013) 4 NWLR (Pt. 1345) 427, 458 per Ariwoola, JSC, the Supreme Court held that when an appeal succeeds within the time prescribed, an appellate Court is competent to order a re-trial or hearing de novo. However, that is only subject to the time period allowed. Put differently, the Court is competent to order a retrial only when it is done within time and not after, the prescribed time has lapsed or expired. PER JUMMAI HANNATU SANKEY, J.C.A.
ELECTION PETITION: AN ELECTION PETITION TRIBUNAL IS STRIPPED OF ITS JURISDICTION AFTER 180 DAYS OF COMMENCEMENT
Thus, an Election Petition Tribunal must mandatorily deliver its Judgment within 180 days from the date of filing the Petition, failing which the Court becomes automatically stripped of its jurisdiction to continue further hearing of the Petition. Even when an order for retrial is given before the expiration of the originally stipulated 180 days from the date the Petition was filed, such a retrial order becomes ineffectual and a nullity the moment the original 180 days expires. Like a statute of limitation, it takes away the right of action from a party leaving him with an unenforceable cause of action. What this therefore means is that at this point, even the Court of Appeal cannot purport to invoke Section 15 of the Court of Appeal Act (supra) to step into the shoes of the Tribunal to do that which the Tribunal could not do within the time prescribed by the Constitution. In other words, this Court is similarly stripped of jurisdiction in these sui generis proceedings. PER JUMMAI HANNATU SANKEY, J.C.A.
ELECTION PETITION: THE CASE OF CORRUPTLY OBTAINED JUDGMENTS
Taken a step further, it has been held that even in corruptly obtained Judgments or where a Tribunal?s victory was corruptly obtained; it cannot be set aside or reviewed by the Tribunal or the appellate Courts once 180 days has lapsed after the filing of the petition. The decision of the Tribunal in such an election petition is final for all purposes – Uba V Ukachukwu (2006) All FWLR (Pt. 337) 515, 524, E-F; & Awuse V Odili (2003) 18 NWLR (Pt. 851) 116, per Tobi, JSC. The Appellant has sought to argue that the decisions of the Supreme Court are not applicable to the facts of this application. However, I beg to disagree. PER JUMMAI HANNATU SANKEY, J.C.A.
WHETHER COURTS CAN ENTERTAIN ACADEMIC ISSUES
In my humble view, the appeal had been spent, it has become time barred. It has been rendered academic and stuff for hypothetical exposition by the law faculties in our universities.
See also Saraki V FRN (2016) LPELR-40013(SC) 64-65, F-A, per Muhammad, JSC (now CJN); & Dwana V Ibrahim (2014) LPELR-24165(CA) 33, A-D, per Sankey, JCA.
Courts of law are not the proper fora for the ventilation of academic issues. Thus, Courts are enjoined to avoid hypothetical or academic questions/issues because they do not advance any interest whatsoever and are not deserving of judicial consideration by the Courts. See: Plateau State Govt. V AG Federation (2006) 3 NWLR (Pt. 967) 346; Lawal V Morounfola (1998) 1 NWLR (Pt. 532) 111, 116; & Saraki V Kotoye (1992) 9 NWLR (Pt. 264) 156. This Court is consequently without jurisdiction to entertain the Appeal. PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. UMAR KAIKA OSU
2. ALL PROGRESSIVES CONGRESS (APC) Appellant(s)
AND
1. DANLADI JATAU
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the Nasarawa State National and State Houses of Assembly Election Tribunal sitting in Lafia Coram: Chechey, J., Katibu, J. delivered on 4th September, 2019 in Petition No: EPT/NSHA/NS/HA/16/19, wherein the Appellants? Petition was struck out for being incompetent.
The brief facts of the case leading to the Appeal are as follows: The 1st Appellant and the 2nd Respondent contested election into the office of Member, Nasarawa State House of Assembly which held on 9th March, 2019. The 1st Appellant contested on the platform of the 2nd Appellant, All Progressives Congress (APC); while the 1st Respondent contested on the platform of the 2nd Respondent, Peoples Democratic Party (PDP). Four other candidates contested the same election on the platform of other Political Parties. The 3rd Respondent was the body established by law to conduct the election.
?At the close of the election, the 1st Respondent was returned as the winner of the election said to have scored 10,782 votes and the 1st Appellant scored 9,646 votes. Dissatisfied
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with the outcome of the election, the 1st and 2nd Appellants filed a Petition before the National and State Houses of Assembly Election Tribunal on 30th March, 2019. The grounds upon which the petition was predicated was predicated as set out in paragraph 22 thereof are as follows:
i. ?The 1st Respondent was not duly elected by majority of the lawful votes cast at the election;
ii. The election of the 1st Respondent is invalid by reason of corrupt practices and electoral malpractices perpetrated by the members and agents of the 1st and 2nd Respondents in several areas challenged in the Petition.
iii. The election of the 1st Respondent is invalid by reason of substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended), the Electoral Guidelines and the Manual for Election Officials, 2019, the Guidelines issued for the conduct of the election and the law in the conduct of the election.?
The reliefs sought by the Appellants in paragraph 44 of the petition are also as follows ?
1) ?Whereof the petitioners pray that it be determined and declared that the 1st Respondent, Danladi Jatau, was not
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duly elected by a majority of lawful votes cast in the House of Assembly election for Kokona West Constituency election held on 9th March, 2019 and therefore his election is null and void.
2) That it be declared that Umar Kaika Osu was duly elected and ought to have been returned as the duly elected Member for the Kokona West Constituency of the House of Assembly election having scored the highest number of lawful votes cast at the election held on the 9th March, 2019 and satisfied the provisions of the 1999 Constitution of the Federal Republic of Nigeria and Electoral Act, 2010 (as amended) to be so declared.
3) In addition, that Umar Kaika Osu be declared as the winner of the Kokona West Constituency election held on 9th March, 2019 based on the results obtained at the physical recount and re-examination by and before the Tribunal or otherwise of the votes from the affected or aforementioned Wards and Units.
OR IN THE ALTERNATIVE
That the House of Assembly election for Kokona West Constituency held on 9th March, 2019 having been vitiated by substantial non-compliance with the mandatory statutory requirements which has substantially affected
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the validity of the election in the Units and Wards of the Constituency being challenged be declared nullified or cancelled and the 3rd Respondent be ordered and or directed to conduct fresh elections in the affected units and wards.?
By paragraphs 16 to 43 of the petition, the Appellants contended that the 1st Respondent was wrongly returned by the 3rd Respondent as there were cases of over-voting, irregularities and non-compliance with the law in some polling units of Bassa Ward, Yelwa Ward, Kokona Ward and Kofar Gwari Ward. It was further the Appellants? contention that if the results of these polling units are cancelled, the Appellants would win the election in Kokona West Constituency with 3,140 votes.
?
In response to the petition, the 1st, 2nd and 3rd Respondents filed their separate respective Replies. The 3rd Respondent raised an objection to the competence of the petition in her Reply to the petition, contending that the Appellants in their petition failed to state the holding of the election and the declaration of results. She also filed a separate application challenging the jurisdiction of the Tribunal. In reaction, the
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Appellants filed a Reply and accompanied it with a Witness Statement on Oath as well as a counter affidavit, accompanied by a written address. At the conclusion of pleadings, the pre-hearing session was held, in the course of which the 3rd Respondent?s application challenging the competence of the petition was heard with Ruling thereon reserved to be delivered along with the Judgment.
?
At the trial, the Appellants adduced evidence through 20 witnesses and tendered 51 documents. The Respondents did not call any witness or tender any documents but cross-examined the witnesses of the Appellants and rested their respective cases on that of the Appellants. The parties filed and adopted their respective final written addresses. In its Judgment, the Tribunal first considered the objection of the Appellants to the Replies of the 1st and 2nd Respondents which was based on the ground that the documents pleaded and listed were not attached. The objection was dismissed as the Tribunal held that it was not mandatory for the Respondents to attach the documents pleaded once they have been listed. In respect of the 3rd Respondent?s objection to the competence
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of the petition, the Tribunal ruled that the petition was incompetent in view of paragraph 4(1) (c) of the First Schedule to the Electoral Act, 2010 (as amended). It therefore proceeded to strike out the petition on 4th September, 2019, thereby terminating the petition in limine without deciding the Appeal on its merits.
Aggrieved by the decision of the Tribunal, the Appellants filed their Notice of Appeal on 17th September, 2019. Thereafter, they filed a second Notice of Appeal on 19th September, 2019. In paragraph 1.02 of their Brief of Argument, they abandoned the first Notice of Appeal filed on 17-09019 and placed reliance on the second Notice of Appeal filed on 19-10-19. Consequently, the Notice of Appeal filed on 17-09-19 is hereby struck out.
?
From the eight (8) grounds of appeal, the Appellants formulated five issues for the determination of the Appeal. On his part, the 1st Respondent distilled four issues for determination, the 2nd Respondents framed three issues for determination; and the 3rd Respondent, also three issues for determination. Having closely scrutinised the four sets of issues for determination, I am of the view that the
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issues as couched by the Appellant best address the complaints stated in their grounds of Appeal. They are therefore adopted in the resolution of the Appeal.
The issues are as follows:
1. ?Whether the trial Tribunal was not wrong to have granted the 3rd Respondent?s application upon which the petition was struck out despite glaring incompetence on same but refused appellants? objection against same. (Grounds 4 and 5)
2. Whether the petition does not contain the holding and the winner of the election and a fortiori whether the trial Tribunal was not wrong to have struck out the petition on the ground that the petition does not contain the holding and the winner of the election. (Ground 1)
3. Whether the trial Tribunal was not wrong in law to have determined the petition in limine and held that it was not necessary to go into the merit of the petition due to time constraints. (Ground 2)
4. Whether this Honourable Court ought not to consider the Appellant?s petition on the merit by exercising its power under Section 15 of the Court of Appeal Act to consider the appellants? evidence placed before the Court on the
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allegation of non-compliance by reason of over-voting (Trial Tribunal having failed in its duty to do so) and proceed to grant all the petitioners? reliefs having proved their case. (Ground 3, 7 and 8)
5. Whether the trial Tribunal was not wrong to have held that replies of the 1st and 2nd respondents were competent notwithstanding their failure to attach copies of documents in compliance with Paragraph 12(3) of the First Schedule to the Electoral Act. (Ground 6)?
As argued, issues one and two will be addressed together.
Before then however, the 1st and 2nd Respondents filed separate Notices of Preliminary Objections to the hearing of the Appeal. They shall therefore be given prior attention before the substantive Appeal.
NOTICE OF PRELIMINARY OBJECTION TO THE HEARING OF THE APPEAL BY 1ST RESPONDENT.
The 1st Respondent?s preliminary objection to the hearing of the Appeal was brought pursuant to Sections 36(1) and 285(6) of the 1999 Constitution (as amended) and Orders 6 Rule 6 and 7 Rule 6 of the Court of Appeal Rules, 2016 and filed on 11-10-19. Therein, the 1st Respondent objects to the jurisdiction of the Court to
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hear and determine the Appeal on the following grounds:
a. ?This Appeal (i.e. Appeal No: CA/MK/EP/25/2019) is an election petition appeal emanating from the National and State Houses of Assembly Election Petitions Tribunal Nasarawa State sitting in Lafia.
b. That the Appellants petition leading to this appeal was filed at the Registry of the lower Tribunal on 30th March, 2019.
c. That the said election petition ought to have been disposed of within 180 days from the date of filing thereof by the Lower Tribunal.
d. The 180 days stipulated time for hearing and disposal of the petition had expired since on 26th September, 2019.
e. That Appeal No: CA/MK/EP/25/2019 (i.e. this appeal) has become academic as the reliefs sought by the Appellants in their Notice of Appeal cannot be enforced because the Lower Tribunal is bereft of jurisdiction to hear and determine same since 27th September, 2019.
f. That this appeal (i.e. Appeal No: CA/MK/EP/25/2019) is incompetent and therefore liable to be struck out.
g. That this Court lacks jurisdiction to hear and determine this Appeal as a Court of first instance.?
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The Notice of objection was supported by a four paragraph affidavit upon which the Appellants relied. The 1st Respondent filed a three paragraph counter-affidavit in response. The arguments in support of the objection are incorporated in paragraphs 3.1.1 to 3.4.4 at pages 4 to 12 of the 1st Respondent?s Brief of argument filed on 100-10-1; while the Appellants? arguments in reply are contained in paragraphs 1.00 to 3.13 at pages 1 to 9 of the Appellants? Reply to the 1st Respondent?s Preliminary Objection filed on 13-10-19. At the hearing of the Appeal, both learned Counsel for the 1st Respondent as well as learned Counsel for the Appellants adopted the arguments in support of their different positions and urged the Court in line with their prayers therein. The Ruling on the objection was thereafter reserved to be delivered alongside the Judgment in the Appeal.
In arguing the objection, learned Counsel for the 1st Respondent refers to the prayer of the Appellant asking this Court to invoke its powers under Section 15 of the Court of Appeal Act to determine the petition on its merit as a Court of first instance. He submits that as an appellate
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Court, this court will not exercise the original jurisdiction of the Tribunal except in exceptional circumstances. However, that there is no such circumstance in the Appeal. Counsel submits that the Court of Appeal can only exercise its power under Section 15 if the Tribunal can also exercise such power.
Counsel submits that the petition which culminated into this Appeal was filed before the Tribunal on 30-03-19. By the mandatory provision of Section 286 of the 1999 Constitution (as amended), an election petition must be heard and disposed of within 180 days of its being filed. The implication of this is that the trial Court can only exercise its power of hearing and granting reliefs in favour of the Appellants within a period of 180 days of the filing of the petition. Once the 180 days has expired, the Tribunal will lack the vires and authority to adjudicate, look into or make any pronouncement on the merit or otherwise, of the reliefs sought before it. In the instant case, Counsel submits that the 180 days lapsed on 26-09-19. Therefore effective from that date, the Tribunal had lost the right, authority and jurisdiction to consider or award any relief
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or otherwise in favour of any of the parties in the case. Thus, this Court also lost the right to consider the case on the merit, wearing the garb of the Tribunal as the Court of first instance.
Counsel thus submits that in view of this, the Appeal had been rendered academic and should therefore be dismissed. He however urged the Court to strike out the Appeal as being incompetent. In response to the Appellants? submissions, learned Counsel for the Appellants submits that by Section 285(7) of the Constitution (supra), this Court is empowered to hear and determine Appeals within 60 days from the date of the delivery of the Judgment of the Tribunal. He contends that the 180 days referred to by the 1st Respondent is only applicable to the Tribunal. He argues that what this Court is called upon to do in this Appeal is to re-hear and determine the petition on its merit, as if it were the Tribunal of first instance pursuant to Section 15 of the Court of Appeal Act within its 60 days as envisaged by the Constitution. Counsel submits that in the instant case, the Tribunal delivered its Judgment within the prescribed 180 days. Once the Appeal comes before
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the Court within the 60 days allocated by the Constitution, the Court is empowered to exercise all its power donated to it by Section 15 of the Court of Appeal Act.
Finally, Counsel submits that this Appeal is not academic as the reliefs sought by the Appellants are the essence of the existence of Section 15 of the Act. In other words, that Section 15 of the Act (supra) came into being to cure the injustice or hardship that will follow if a case, such as the instant Appeal, is remitted to the trial Court. Counsel therefore submits that the objection is without merit and ought to be overruled.
Findings –
By the submission of the 1st Respondent, the 180 days circumscribed by Section 285(6) of the 1999 Constitution (as amended) within which to hear and dispose of the Petition at the Tribunal lapsed on 26th September, 2019. This submission is borne out by the Record of Appeal where it is incontestable that the Petition having been filed on 30-03-19 at the Tribunal, the 180 days prescribed for its hearing and determination lapsed on 26-09-19. That being the case from that date, the Tribunal lost the power to grant any relief by reason of effluxion
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of time. By the same token, this Court is also bereft of any power or jurisdiction to step into the shoes of the Tribunal by virtue of Section 15 of the Court of Appeal Act, 2004, to grant any relief sought in the petition in the purported exercise of the original jurisdiction of the Tribunal.
The law is now cast in stone that the Court lacks power to extend the time limit for the determination of election petitions where same is stipulated by the Constitution or any other statute. In respect of a similar provision in Section 22 of the Supreme Court Act, the apex Court has weighed in on this issue i.e. the invocation of the power of the Supreme Court to step into the shoes of the Court of Appeal or to remit the Appeal back to the Court of Appeal where the time prescribed for the determination of the Appeal has expired.
A similar scenario to that presented in this Appeal was presented in the case of ANPP V Goni (2012) 7 NWLR (Pt. 1298) 147. Therein, Counsel for the Appellant sought to argue as the Appellants have done in the instant Appeal, that as long as the Election Tribunal delivers its decision before the expiration of 180 days from the date the
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Petition was filed, the vested powers of the Court of Appeal under Section 6(1) and 246 of the Constitution, Section 15 of the Court of Appeal Act and Order 4 Rule 9 of the Court of Appeal Rules, 2011, cannot be inhibited by Section 285(6) of the Constitution. In its decision on the issue, the Supreme Court per Onnoghen, JSC (as he then was) held:
?By virtue of Section 285(6) of the 1999 Constitution (as amended) and Section 134(2) of the Electoral Act, 2010 (as amended), an election Tribunal shall deliver its judgment in writing one hundred and eighty days from the date of filing of the petition. Thus, an election Tribunal in an election petition matter must deliver its decision or judgment or ruling or order in writing within one hundred and eighty days from the date the petition was filed. The judgment cannot be given a day or more or even an hour after the one hundred and eighty days.? (Emphasis supplied)
At page 160 of the Report, his Lordship continued –
?The time within which an election petition is to be heard and determined is 180 days and judgment must be in writing. Appeals are within 60 days. Once the time lapses,
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there is nothing even the apex Court can do to extend the time even for an hour. The time fixed by Section 285(6) of the Constitution is like the rock of Gibraltar or Mount Zion which cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not done within the time so fixed, it lapses as the Court is thereby robbed of the jurisdiction to continue to entertain the matter.?(Emphasis supplied)
Thus, once 180 days has elapsed from the date of filing the Petition, the Election Petition Tribunal, and by the same token, the Court of Appeal, lacks jurisdiction to further adjudicate over the matter, even where a retrial is merited and is so ordered.
Likewise in its earlier decision in Shettima V Goni (2011) 18 NWLR (Pt. 1279) 413, 452, the Supreme Court held ?
?Learned Senior Counsel for the Appellants has not denied the fact that the Appeal pending at the lower Court had expired hence his alternative contention that the instant appeal is against the decision of that Court made on 26th September, 2011. I hold the view that the above argument is of no moment particularly when one considers the
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fact that the Appellants are calling on this court to invoke its powers under Section 22 of the Supreme Court Act to hear and determine the expired appeal. It is settled law that this Court can only exercise its powers under the said Section 22 by exercising the jurisdiction to act, not where that Court had ceased to have jurisdiction over the matter. In short, the jurisdiction of this Court under Section 22 of the Supreme Court Act depends completely on the Court of appeal having jurisdiction to deal with the matter in issue pending before it.?
Thus, it goes without saying that this Court cannot by invoking Section 15 of the Act (supra) do what the Tribunal cannot now do. Therefore, since by reason of Section 285(6) of the Constitution (supra) the 180 days prescribed by the Constitution for the hearing of the petition has lapsed, upon what premise can this Court proceed to step into the shoes of the Tribunal to hear and determine the petition on its merit pursuant to Section 15 of the Court of Appeal Act? No doubt, it cannot be done.
See also Udenwa V Uzodinma (2013) 5 NWLR (Pt. 1346) 94, 118 per Ariwoola, JSC; ACN V INEC (2013) (Pt. 1370)
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161, 177 per Ngwuta, JSC; Akpanudoedehe V Akpabio (2013) 7 NWLR (Pt. 1354) 485; Amadi V INEC (2013) 4 NWLR (Pt. 1345) 594, 625; Labour Party V INEC (2013) All FWLR (Pt. 670) 1386, 1391.
Again, in Ugba V Suswam (2013) 4 NWLR (Pt. 1345) 427, 458 per Ariwoola, JSC, the Supreme Court held that when an appeal succeeds within the time prescribed, an appellate Court is competent to order a re-trial or hearing de novo. However, that is only subject to the time period allowed. Put differently, the Court is competent to order a retrial only when it is done within time and not after, the prescribed time has lapsed or expired.
?Thus, an Election Petition Tribunal must mandatorily deliver its Judgment within 180 days from the date of filing the Petition, failing which the Court becomes automatically stripped of its jurisdiction to continue further hearing of the Petition. Even when an order for retrial is given before the expiration of the originally stipulated 180 days from the date the Petition was filed, such a retrial order becomes ineffectual and a nullity the moment the original 180 days expires. Like a statute of limitation, it takes away the right of
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action from a party leaving him with an unenforceable cause of action. What this therefore means is that at this point, even the Court of Appeal cannot purport to invoke Section 15 of the Court of Appeal Act (supra) to step into the shoes of the Tribunal to do that which the Tribunal could not do within the time prescribed by the Constitution. In other words, this Court is similarly stripped of jurisdiction in these sui generis proceedings.
Taken a step further, it has been held that even in corruptly obtained Judgments or where a Tribunal?s victory was corruptly obtained; it cannot be set aside or reviewed by the Tribunal or the appellate Courts once 180 days has lapsed after the filing of the petition. The decision of the Tribunal in such an election petition is final for all purposes – Uba V Ukachukwu (2006) All FWLR (Pt. 337) 515, 524, E-F; & Awuse V Odili (2003) 18 NWLR (Pt. 851) 116, per Tobi, JSC. The Appellant has sought to argue that the decisions of the Supreme Court are not applicable to the facts of this application. However, I beg to disagree.
?In the result, even if there could be merit in the Appeal, it would only be a pyrrhic
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victory as this Court is without jurisdiction to go any further. It is rather unfortunate that while the Tribunal took the trouble to take all the evidence in respect of the Petition and the Replies of the parties, it did not deem it fit to proceed to make findings on the merits of the Petition in the event that the Court of Appeal overrules its decision on the preliminary objection raised before it. This is exactly why Section 285(8) of the Constitution (supra) mandates that rulings be delivered alongside the Judgment of the Tribunal in order that the appellate Court is availed with both the decisions of the Tribunal in interlocutory applications as well as its final Judgment. This is so in order to avoid a situation such as this where time prescribed for the hearing and determination of the petition will lapse and the appellate Court will be presented with a fait accompli and rendered helpless, with no further remedy for the petitioners, who would then be left with an empty cause of action which is statute-barred.
?However, since Section 285(6) of the Constitution (supra) has placed a time limit for the hearing of Petitions, that limit is mandatory and
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must be complied with. The Court ceases to have jurisdiction once the time envisaged expires. It cannot extend the time to allow for a determination of the Petition on its merit even if the Tribunal was wrong in its decision to strike out the Petition. The submission of the Appellants that this Court can proceed to activate its power under Section 15 of the Court of Appeal Act (supra) to step into the shoes of the Tribunal and determine the Petition where the Tribunal has ceased to have jurisdiction by reason of the effluxion of time is not in tandem with the law as consistently laid down and applied in decided authorities rendered by the Supreme Court and this Court.
?Consequently, I agree with the submission of the 1st Respondent that the Appeal has therefore been rendered academic. Since the time prescribed in Section 285(6) for the hearing and determination of the petition has lapsed since 26-09-19, it is unhelpful for this Court to purport to step into the Tribunal?s shoes to do that which the Tribunal cannot do. This is because as aforesaid, even if this Court were to find the decision declining jurisdiction to entertain the Petition as a
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wrong decision, this Court cannot go on to grant any of the reliefs sought by the Appellants in the Petition. Thus to that extent, the reliefs sought by the Appellant are not grantable. Therefore, the Appeal has been rendered academic as it no longer serves any useful purpose to determine the issue of whether or not the Tribunal acted in error when it struck out the petition in limine for failure to comply with Paragraph 4(1) (c) of the First Schedule to the Electoral Act, 2010; and failed to proceed to determine it on its merits in the event that it was wrong in its decision on the preliminary issue. The folly in this is that time having since lapsed on 26-09-19 within which the Petition can be heard, the door is forever closed on the Appellants.
?The law is that a suit is academic where it is purely theoretical and of no practical utilitarian value to the plaintiff, even if Judgment is given in his favour. A suit is also considered academic if it cannot be utilised practically thereafter. It is academic if it does not relate to any live issues in the litigation because it is spent as it will not inure any right or benefit to the successful party. This is
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how his Lordship, Ngwuta, JSC put it aptly in the case of Shettima V Goni (supra) at page 479:
?In my humble view, the appeal had been spent, it has become time barred. It has been rendered academic and stuff for hypothetical exposition by the law faculties in our universities.?
See also Saraki V FRN (2016) LPELR-40013(SC) 64-65, F-A, per Muhammad, JSC (now CJN); & Dwana V Ibrahim (2014) LPELR-24165(CA) 33, A-D, per Sankey, JCA.
Courts of law are not the proper fora for the ventilation of academic issues. Thus, Courts are enjoined to avoid hypothetical or academic questions/issues because they do not advance any interest whatsoever and are not deserving of judicial consideration by the Courts. See: Plateau State Govt. V AG Federation (2006) 3 NWLR (Pt. 967) 346; Lawal V Morounfola (1998) 1 NWLR (Pt. 532) 111, 116; & Saraki V Kotoye (1992) 9 NWLR (Pt. 264) 156. This Court is consequently without jurisdiction to entertain the Appeal.
Based on all the above, I find merit in the objection raised by the 1st Respondent to the hearing of the Appeal. It is sustained and upheld.
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NOTICE OF PRELIMINARY OBJECTION
BY 2ND RESPONDENT
The 2nd Respondent also filed a Notice of Preliminary Objection wherein it prayed the Court to strike out Grounds 3 and 7 of the Notice of Appeal and issue 4 distilled therefrom for being incompetent. The grounds for the objection are as follows:
1. ?By virtue of the provision of Section 285(1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) this Court cannot preside as a Court of first instance and determine the Petitioners/Appellants petition.
2. Grounds 3 and 7 of the Appellants Notice of Appeal do not emanate from any pronouncement on the decision/ruling of the Honourable Tribunal below appealed against by the Appellants.
3. Grounds 3 and 7 of the Appellants Notice of Appeal are fresh issues and no leave of this Honourable Court has been sought and obtained before raising and canvassing on same.
4. That being the case, the Appellants issue four (4) formulated from grounds 3 and 7 of the Notice of Appeal which by the rules of this Honourable Court are incompetent and same should be struck out.?
?
The objection was argued in paragraphs 1.0 to 1.19 at pages 1 to 5 of the 2nd
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Respondent?s Brief of argument filed on 06-10-19. In response, the Appellants filed a Reply to the objection on 09-10-19 wherein they argued the objection at paragraphs 1.0 to 3.14 at pages 1 to 10 thereof. Counsel for the respective parties urged the Court in line with the prayers in their respective Briefs.
Just like in the Notice of Preliminary Objection filed by the 1st Respondent, one of the points argued under the sole issue framed by Counsel for the determination of his objection is that, since the 180 days prescribed in Section 285(6) of the Constitution for the hearing and determination of the Petition at the Tribunal has lapsed on 26-09-19, this Court is without jurisdiction to grant the Appellants? relief to activate its power under Section 15 of the Court of Appeal Act (supra) to hear the petition on its merit as a Court of first instance.
?The other issues raised by the 2nd Respondent in the alternative to wit: Section 285(1) of the Constitution (supra) does not confer on this Court jurisdiction to preside over the complaints in the Petition; the issue raised in the Appeal was not a part of the pronouncement of the Tribunal
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and so is being raised here for the first time without the leave; that the issue did not emanate from the pronouncement of the Tribunal; and that Section 15 of the Court of Appeal Act does not apply to election Tribunals but only to regular Courts. However, since one of the issues canvassed by the 2nd Respondent revolves around the issue of the jurisdiction of the Court to grant the reliefs sought in the Appeal based on Section 285(6) of the Constitution (supra), it is unnecessary to persist in addressing the several pitch battles which the parties engaged in respect of these other issues mentioned above.
?As aforesaid, one of the points argued by the 2nd Respondent in his objection is that since the 180 days has lapsed on 26-09-19, this Court is without jurisdiction to grant the Appellants? relief to activate its power under Section 15 of the Court of Appeal Act (supra) to hear the petition on its merit. Counsel for the Appellants has argued per contra that so long as the Appeal is still within the 60 days prescribed for the determination of Appeals under Section 285(7) of the Constitution (supra), this Court still
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possesses power under Section 15 of the Court of Appeal Act (supra) to step into the Tribunal?s shoes to determine the Petition on its merit.
In view of the fact that this point of objection raised by the 2nd Respondent turns on the same issue as that raised in the 1st Respondent?s Notice of Preliminary Objection, and same has been already been addressed in extenso in the Ruling just rendered, this Court lacks the luxury of time to dissipate energy in repeating them here. Accordingly, the reasons and findings made in the 1st Respondent?s Notice of Preliminary Objection above in this same Appeal, shall abide and bear on this objection raised by the 2nd Respondent, as well as the conclusion arrived therein.
In the result, the inevitable effect of all I have said is that there is merit in both objections. They are sustained.
I adjudge this Appeal academic. It is accordingly struck out since this Court is without jurisdiction to entertain academic or hypothetical issues. Parties are ordered to bear their own costs.
ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read in advance a draft copy of the lead Judgment of my Learned
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Brother, Jummai Hannatu Sankey, JCA, adjudging this appeal to be now academic and striking out the same. I agree with, and adopt as mine the comprehensive resolution of the issues raised therein.
It is well settled that election matters are sui generis and time bound. Public policy, guided by extant laws, including Constitutional provisions and the Electoral Act, 2011, determines that an action by way of petition filed must be tried and concluded within a specified time frame work. As was put by his Lordship, Pats Acholonu, JCA (as he then was) in Ogolo v. Legg-Jack Ors (1999) LPELR-6589(CA) at page 3 thereof:
“Where the time prescribed by election petition states certain things should be done within a period of time and these are not done within the limit allowed or permitted by the statute the Court purporting to exercise jurisdiction outside it is on a thankless and unworthy pursuit of its own. That was the position the Tribunal below found itself. It found it could not in seriousness and in conformity with the tenor and intent of the law, arrogate to itself the powers to continue with proceedings. The striking out was caused by the
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effluxion of time.”
See also: Iloka v. Utomi & Ors (1999) LPELR-5545(CA); ACN Anor v. INEC & Ors (2013) LPELR-19991(CA). I also see no use in embarking on a thankless and unworthy pursuit by delving into the merits ofthis appeal.
This appeal therefore deserves to be struck out. I abide by the orders made in the lead Judgment, including the order as to costs.
JOSEPH EYO EKANEM, J.C.A.: I read in advance a copy of the judgment which has just been delivered by my learned brother, Sankey, JCA I agree with the reasoning and conclusion therein which I adopt as mine in upholding the preliminary objections and striking out the appeal for being academic.
?I abide by the order as to costs in the lead judgment.
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Appearances:
Dr. D.O. Sambo, Esq. with him, O.W. Akanbi, Esq., B.L. Ibrahim, Esq., A.A. Ahmed, Esq. and Omobolape Alabi, Esq.
For Appellant(s)
M.A. Ebute, Esq.for 1st Respondent, with with him, Victoria Agi Esq. Y.A. Hassan Esq. appears for 2nd Respondent, T.J. Ehanwo Esq. A.S. Musa Esq. appears for 3rd Respondent.For Respondent(s)
Appearances
Dr. D.O. Sambo, Esq. with him, O.W. Akanbi, Esq., B.L. Ibrahim, Esq., A.A. Ahmed, Esq. and Omobolape Alabi, Esq.For Appellant
AND
M.A. Ebute, Esq.for 1st Respondent, with with him, Victoria Agi Esq. Y.A. Hassan Esq. appears for 2nd Respondent, T.J. Ehanwo Esq. A.S. Musa Esq. appears for 3rd Respondent.For Respondent
