SEN. BUHARI ABDULFATAI v. HON. AKANDE ADEOLA MULIKAT & ORS
(2019)LCN/13772(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of September, 2019
CA/IB/EPT/OY/SEN/08/2019
JUSTICES:
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
SEN. BUHARI ABDULFATAI – Appellant(s)
AND
1. HON. AKANDE ADEOLA MULIKAT
2. PEOPLE DEMOCRATIC PARTY (PDP)
3. ALL PROGRESSIVES CONGRESS (APC)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
RATIO
THE CONCEPT OF A COURT’S DISCRETION
The concept of discretion even in its legal usage implies power to make a choice between alternative courses of action. Thus, where the exercise of discretion is vested, it follows that there is really no absolute answer to the solution of the question. The sign posts to the proper exercise of discretion have often been stated to be subject of implied limitations with respect to the administration of justice.
See also the dicta of Dongban-Mensem JCA in Mobil Oil Nigeria Plc v. Mrs C.G. Ogunkeye & Ors thus:
At all times, the Judge is expected to be in charge of his Court by guarding and guiding proceedings in such a manner as to ensure a good balance between all the parties appearing before the Court. In the management of his Court, the Judge is armed with certain inherent powers sometimes in the form of discretion to do or refrain from doing one thing or the order in the course of the proceedings. PER OKORONKWO, J.C.A.
NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): At the National and State House of Assembly Election Petition Tribunal of Oyo State holden at Ibadan in Petition No. EPT/OY/SEN/09/2019 Abdulfatai v. Mulikat & Ors the Tribunal, at a pre-hearing session made a scheduling order on the 18th May 2019 as follows:
Trial dates are agreed by counsel and Tribunal as follows:
(1) PETITIONER: 7th and 8th June, 2019 4.00 pm-6.00 pm.
(2) 1st RESPONDENT: 10th and 11th June, 2019 4.00pm- 6.00pm.
(3) 3rd RESPONDENT: 4.00pm 21st June and 9.00am 22nd June, 2019.
See page 215, Vol. 2 of the Record.
When on 7th June, 2019 the Respondents being Petitioners could not proceed with the hearing because 4th Respondent Independent Electoral Commission (INEC) could not avail the Petitioners the documents required the tribunal made another scheduling order as follows:
This case was originally for hearing to commence today 7/6/19 and to continue tomorrow 8/6/19 and then 10/6/19. Due to INEC request for more time to produce the subpoenaed documents and by consent this petition is now
1
adjourned for trial to:
(1) 4pm-6pm 21-6-19
(2) 9am-11am 22-6-19
(3) 9am-1.30pm 26-6-19
(4) 2.30pm-4pm on 15th and 16 July 2019 the earlier dates are now vacated.
See page 217, Vol. 2 of the Record.
The essence of the appeal before us is encapsulated in paragraph 1.08 and 1.09 of the Appellants brief which I reproduce hereunder:
Eventually on the 21st June, 2019 the Respondents open their case by calling their PW1, who principally came to tender documents. In line with the scheduling order the matter was adjourned till 22nd June, 2019 for the Respondents to continue with their case. On that day the same PW1 continue with the tendering of the documents which he concluded and was subsequently discharged by the Tribunal. The matter was then adjourned till 15th July, 2019 at 11.00am.
On the said date when the Respondents sought to continue with the calling of additional evidence, Appellants lead counsel objected on the ground that by the scheduling order made by Tribunal the Respondents are only entitled to two days for the presentation of their case and having utilized same on the 21st and 22nd
2
June, 2019 they are barred from continuing on the 15th of July, as that will run contrary to the Order of the Court dated 18th May, 2019 allocating two days and timeline to them. Arguments were taken from all parties, subsequent upon which the lower Tribunal ruled, amongst others, that the order of 18th May, 2019 had been altered by the orders of 7th June, 2019 and 22nd June, 2019, it is against this Ruling that the Appellant filed his Notice of Appeal on the 25th day of July, 2019 containing five grounds of appeal. It is on this Notice of Appeal that this appeal is predicated.
Issues for Determination
From those grounds of appeal, the Appellant raised the following two issues for namely:
(i) Whether in view of the extant orders of the Tribunal, made by consent of parties on the 18th May, 2019, 7th June, 2019 and 22nd June, 2019 respectively, the lower Tribunal was not wrong to have overruled the Appellants objection that the 1st, 2nd Respondents had by 22nd day of June, 2019 exhausted the period allotted to them to prove their case (Grounds 1,2,3 & 4).
(ii) Whether the proceedings of the lower Tribunal as they
3
relate to evidence of witnesses called by the Petitioners after expiration of the time frame allocated to the Petitioners are not null and void having been conducted without jurisdiction and thus liable to be set aside or expunged from the record of the lower Tribunal (Ground 5).
For the 1st and 2nd Respondents, a sole issue for determination was formulated as follows:
Whether the Tribunal by its order made on the 7th day of June, 2019 and 22nd day of June 2019 has not modified its earlier order made on the 18th day of May, 2019 fixing the 7th and 8th day of June, 2019, 4:00pm-6:00pm as trial dates for the Petitioners.
It seems to me that, having regards to the provisions of Paragraph 18 (10) of the First Schedule to the Electoral Act 2010 which provides as follows:
18(10)
After a pre-hearing session or series of pre-hearing sessions the Tribunal or Court shall issue a report and this report shall guide the subsequent course of the proceedings unless modified by the Tribunal or Court.
The issue of the 1st and 2nd Respondents is more encompassing and would resolve this appeal. However, in addition to paragraph 18 (10) indicated
4
above, there is Paragraph 41 (10) of the First Schedule of the Electoral Act which provides as follows:
41.(10)
The Petitioner in proving his case shall have not more than 14 days to do so and each of the Respondents shall have not more than 10 days to present its defence.
The above statutory provisions show that there is a time frame for the presentation of evidence at a hearing before an Election Tribunal. The Petitioner shall have not more than 14 days to do so and each of the Respondents shall have not more than 10 days to present its defence.
Although there is provision for 14 days or 10 days for the Petitioner or Respondent to present his or her case as the case may be, such a party may still be restricted by the Court to such fewer days as the exigency of the case or moment may dictates. Ordinarily, a Court may enlarge or abridge the time fixed for doing any act under its rules.
Back to the subject of this appeal and paragraph 18 (10), at the pre-hearing session or series of pre-hearing sessions the Court would issue a scheduling report for the guidance of the course of proceedings unless modified by the Tribunal or Court. Much
5
as the scheduling is for the purpose of guiding proceeding, such scheduling may be modified by the Tribunal or Court and the circumstances of such modification cannot be itemized. However, any modification by the Tribunal or Court under paragraph 18 (10) must not exceed the time frame provided in paragraph 41 (10) being 14 days for Petitioner and 10 days for Respondent. It is in this sense that the case of Ize-Iyamu Osagie Andrew v. INEC & Ors (2017) LPELR 42161 CA relied on by Appellant was decided.
So, the Tribunal has a discretion in the matter of Paragraph 18 (10) of the 1st Schedule to the Electoral Act, but it is a discretion that is circumscribed or limited by paragraph 41 (10) of the same Act. In SCI Iwuji v. Fed. Commissioner for Establishment & Anor. It was said that the:
The concept of discretion even in its legal usage implies power to make a choice between alternative courses of action. Thus, where the exercise of discretion is vested, it follows that there is really no absolute answer to the solution of the question. The sign posts to the proper exercise of discretion have often been stated to be subject of
6
implied limitations with respect to the administration of justice.
See also the dicta of Dongban-Mensem JCA in Mobil Oil Nigeria Plc v. Mrs C.G. Ogunkeye & Ors thus:
At all times, the Judge is expected to be in charge of his Court by guarding and guiding proceedings in such a manner as to ensure a good balance between all the parties appearing before the Court. In the management of his Court, the Judge is armed with certain inherent powers sometimes in the form of discretion to do or refrain from doing one thing or the order in the course of the proceedings.
In resolution of the issue, it is clear that the Tribunal acted within Paragraph 18 (10) of the 1st Schedule to the Electoral Act to allow the 1st and 2nd respondents exceed the original two days earlier scheduled. The discretion of the Tribunal is within the ambit of its discretion under paragraph 41 (10) of the same Act. For this reason the appeal lacks merit and is accordingly dismissed.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother NONYEREM OKORONKWO JCA, just delivered. I agree with my
7
Lord’s reasoning and conclusion.
The appeal lacks merit and it is also dismissed by me.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Nonyerem Okoronkwo, JCA gave me in advance, the draft of the judgment just delivered.
I agree that the appeal has no merit and should be dismissed. It is hereby dismissed.
8
Appearances:
L. L. Akanbi with him, R. Isamotu and O. Ayandipo For Appellant(s)
L. A. Adedigba for 1st and 2nd Respondent For Respondent(s)
Appearances
L. L. Akanbi with him, R. Isamotu and O. Ayandipo For Appellant
AND
L. A. Adedigba for 1st and 2nd Respondent For Respondent
