Suit Number:CA/C/NAEA/178/2015 FRIDAY, 9 OCTOBER 2015
Judges:ABDU ABOKI JCA (Presided and Read the Lead Judgment)) STEPHEN JONAHADAH JCA MISITURA O. BOLAJI-YUSUFF JCA
Counsel:Julius Idiege Esq. (with him, A. T. Akomaiye Esq., and D. O. C
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Ola Esq.) - For the Appellant.
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Victor Okangbe Esq. (with him, Dr. John Edor and A. E.Attih Esq.) - For the Respondents.
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ABOKI JCA (Delivering the Lead Judgment): This is an appeal against the ruling/decision of the National and State House of Assembly Election Petition Tribunal sitting in Calabar, Cross River State delivered on 11 August 2015 by their lordships Hon. Justice E
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I. W. Jauro (Chairman), Hon. Justice A. A. G. Onibokun (Member
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I) and Hon. Justice M. E. Njoku (member II).
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The appellant in this appeal had on the platform of the People’s Democratic Party (PDP) contested in the election for State House of Assembly for the Boki State Constituency of Cross F
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River state that was held on 11 April 2015.
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After the conclusion of the said election, the 3rd respondent declared and returned the appellant as the winner of the said election, having scored a total of 13,253 votes as against 8,354 G votes scored by the 1st respondent.
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Dissatisfied with the declaration of the appellant as the winner of the election in dispute, the 1st respondent filed a petition at the lower tribunal, wherein he sought for the following reliefs:
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“1. That the 1st respondent (appellant) was not duly elected H
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by majority of the lawful votes cast at the election.
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That the election is invalid by reasons of corrupt practices and/or non-compliance with the Electoral Act, 2010 (as amended) and guidelines. That the 1st respondent (appellant) was not duly elected or returned and her declaration as winner of the
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election is void and should accordingly be nullified.
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4. That the 1st petitioner (1st respondent) be declared
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and returned as the duly elected member representing Boki 1 State Constituency in the Cross River State House of Assembly, by the deduction of all votes
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entered for the 1st respondent in units where election did not take place”. (Brackets supplied by me).
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The grounds of the petition are as follows:
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“(1) That the election to State House of Assembly for the Boki 1 State Constituency of Cross River State was
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invalid by reasons of corrupt practices and/or non-
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compliance with the ElectoralAct, 2010 (as amended)
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(2) The 1st respondent (appellant) was not duly elected by majority of the lawful votes cast at the election.”
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On 17 July 2015, the appellant filed a motion on notice supported by a 17-paragraph affidavit and a written address praying
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for leave of the lower tribunal for the motion to be taken outside the pre-hearing session and an order dismissing the petition for being abandoned. The grounds of the application are as follows:
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i. The petitioners have failed and/or neglected to apply
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for pre-hearing conference notice after close of pleadings.
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ii. The petitioners have failed to comply with a condition
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precedent to the hearing of their petition.
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iii. The petition is deemed abandoned and this honorable
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tribunal has no jurisdiction to entertain the petition.
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The petitioner on 10 August 2015 filed a 21 paragraph counter affidavit and a written address in opposition to the 1st
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respondent’s affidavit in support of the motion.
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The trial tribunal on 11 August 2015 after considering the arguments of all the parties held as follows;
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“... In the final analysis, we hold that the pre-hearing A application which was made by the petitioner in this petition suffices and the motion to dismiss the petition
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is in our view unmeritorious and an unnecessary thief
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of time. It is hereby dismissed. No order is made as
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to cost.” B
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The appellant aggrieved by the said decision appealed to this court via a notice of appeal containing 3 grounds of appeal. The said notice of appeal was dated 21 September 2015 and filed on
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the same day. C
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Briefs of arguments were in accordance with the relevant rules of this court duly filed and exchanged. The appellant’s brief of argument dated 22 September 2015 and filed on the same day
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was settled by J. O. Idiege Esq. The 1st and 2nd respondents’ brief
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of argument dated and filed on 7 October 2015 was settled by D
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Victor Okangbe, Esq. The appellant did not file any reply brief of argument to the respondents’ brief of argument.
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At the hearing of the appeal, the appellant’s counsel applied
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to withdraw an application dated 28 September 2015 and filed on E
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29 September 2015, as well as the further and better affidavit in support of the application. There being no objection to the withdrawal, the application is accordingly struck out. The 1st and
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2nd respondents’ counsel also applied to withdraw a notice of preliminary objection and all the accompanying affidavits dated F
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and filed on 30 September 2015. The court accordingly struck out the preliminary objection. The appellant in her brief of argument distilled a lone issue for determination as follows:
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Whether the application of the petitioner for issuance G
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of pre-hearing notice dated 24 June 2015 was in
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compliance with the provisions of paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (as amended).
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The 1st and 2nd respondents formulated three (3) issues H
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for the determination of this appeal as follows:
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Whether this appeal is competent by virtue of paragraph 6 of the Election Tribunal and Court Practice Directions, 2011 and the transmission of incomplete records to the Court of Appeal by the appellant? Whether in the light of the facts and circumstances of
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this petition, pleading is deemed to have closed?
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3. What is the legal effect of an order of court
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regularizing pleadings filed out of time?
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The issue one as formulated by the 1st and 2nd respondents which is all encompassing is adopted in the determination of this
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appeal. It reads thus:
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Whether this appeal is competent by virtue of paragraph 6 of the Election Tribunal and Court Practice Directions, 2011 and the transmission of incomplete
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records to the Court of Appeal by the appellant?
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Learned counsel submitted that, contrary to the finding and
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holding of the trial tribunal, the petitioner’s application for issuance of pre-hearing notice, dated 24 June 2015 did not comply with the provisions of paragraph 18(1) of the 1st Schedule to the
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2010 Electoral Act (as amended). For ease of reference, he reproduced paragraph 18(1) of the 1st Schedule to the 2010 Electoral Act (as amended) thus:-
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“18(1) Within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after
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the filing and service of respondent’s reply as the case
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may be, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.”
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He maintained that paragraph 18(1) of the 2010 Electoral
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Act (as amended) was given judicial interpretation in Gebi v. Dahiru (2010) 1 NWLR (Pt. 1282) 560 at 592, where it was held thus:-
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“By virtue of the provision of paragraph 18(1) of the First Schedule to the Electoral Act, 2010, the
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petitioner shall apply for the issuance of pre-hearing
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notice as in Form TF 007 within 7 days after the filing and service of the petitioner’s reply or the respondent’s
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reply, whichever is the case.” A
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He contended that the understanding of the provisions of paragraph 18(1) of the 1st Schedule to the 2010 Electoral Act and the judicial interpretation given to it envisages two
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circumstances before an application for issuance of pre-hearing notice can be made. The first scenario is within seven days after B
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the filing and service of petitioner’s reply to the reply of the respondent, where a petitioner files a reply to the reply of the respondent, the petitioner is required to apply for issuance of pre-hearing notice as in form TF007. C
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The second scenario precedent to applying for issuance of pre-hearing notice is where the petitioner did not file a reply to the reply of the respondent, application for issuance of pre-hearing
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notice is to be made within seven days after the filing and service
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of the respondent’s reply to the petition. D
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Learned counsel maintained that the time frame for the issuance of pre-hearing notice is not strict senso, determined by the time the respondents file their replies. It is rather determined
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by the established time frame set out in paragraphs 10(2), 12(1) E and 16(1) of the 1st Schedule to the 2010 Electoral Act (as amended).
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He submitted that by the clear provisions of section 185 of the 1999 Constitution of the Federal Republic of Nigeria, (as amended), election petitions are to be determined within 180 days F
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from the date of filing of the petition. This therefore, makes it mandatory for all parties particularly the petitioner, to comply with the timelines stated in the 2010 Electoral Act (as amended), including the timeline stated in paragraph 18(1) of the 1st G Schedule to the Act, for applying for the issuance of pre-hearing notice as in Form TF007.
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He maintained that a petitioner in an election petition, has no business to wait for the respondents to file their replies at any
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time they deem fit before applying for issuance of pre-hearing H
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notice. On the contrary, as soon as the timelines for filing of pleadings expire, pleadings are deemed closed, whether the
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respondent (s) file their replies or not.
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On the obligation placed on the petitioners by paragraph 18(1) of the 2010 Electoral Act (as amended) to apply for the issuance of pre-hearing notice as in Form TF 007, he referred to
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Ikpe v. Elijah (2011) LPELR 4516 where the court held as
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follows:
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“... the provision created some obligations on the petitioner. His duty is to cause the petition to be heard timeously, time being of essence in election
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petition...”
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Paragraph 18(1) of the 1st Schedule to the Electoral Act, as amended, employs the petitioner as a guard, perpetually vigilant and
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keeping close watch on the respondents. He
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cannot afford any slight dereliction of duty. It
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does not lie in the mouth of the petitioner to say..., that he will discharge his duty only if and when each and all the respondents to his petition
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have filed the reply or replies to the petition before he takes steps under paragraph 18(1)”.
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He insisted that the law is fairly settled on a long line of authorities that, non-compliance with the timeline in paragraph 18(1) of the 1st Schedule to the 2010 Electoral Act (as amended)
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will strip the tribunal or the appellate court of the power and
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jurisdiction to grant extension of time to regularize what has not been done. He referred the court to the case of Okereke v. Yar’dua (2008) All FWLR (Pt. 430) 626 at 646, paragraphs B- D.
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Learned counsel submitted that, the next logical issue to resolve is, when were pleadings filed and exchanged in the petition
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giving rise to this appeal. In order to place the facts clearly before this court, learned counsel reproduced the affidavit in support of the appellant’s motion before the trial tribunal as follows:
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“AFFIDAVIT IN SUPPORT OF MOTION
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I, DANIEL OLA, Male, Christian, Nigerian, of 21 Ndidem Usang Iso Road, Calabar, Calabar Municipal
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Council Area, do hereby make oath and deposed as A
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follows that-
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I am a legal practitioner in the law firm of ATTAH OCHINKE & CO., briefed by the 1st respondent
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to conduct her defence in this petition.
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By virtue of my position stated in paragraph I B
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above, I am conversant with the facts of this petition and depose to facts within my personal knowledge.
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I have the consent of my employers and the C authority of the 1st respondent to depose to this affidavit on her behalf. The petitioners filed the present petition in the
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registry of this honorable tribunal on 2 May 2015. D
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The 2nd - 32nd respondents were served the petition on 7 May 2015 and had 21 days computed from 8 May 2015 within which to file their reply to the petition. The 21 days lapsed on E
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28 May 2015 without 2nd - 32nd respondents
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filing their reply.
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The petitioners had 5 days computed from 29 May 2015 within which to file their reply, if any, had 2nd -32nd respondents filed any reply and F
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the 5 days lapsed on 3 June 2015.
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The 2nd - 32nd respondents eventually filed their reply to the petition on 8 June 2015 out of time. Same was served on counsel for the petitioners G on 22 June 2015. The affidavit of service is annexed and marked exhibit A . The petitioners filed a reply to the 2nd -32nd respondents reply on 26 June 2015. This honorable tribunal on 4 July 2015, extended H
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time within which 2nd -32nd respondents may file and serve their reply on the petitioners and
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on the same date deemed 2nd - 32nd respondents’ reply earlier filed on 8 June 2015 as properly filed and served on the petitioners. The reply of the petitioners to the reply of 2nd -
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32nd respondents earlier filed on 26 June 2015
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was also deemed properly filed and served on
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the 2nd - 32nd respondents on the same 4 July 2015.
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The petition was served on the 1st respondent C on 8 May 2015. The 1st respondent did not file a memorandum of appearance and therefore had
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21 days computed from 9 May 2015 within which to file her reply. The 1st respondent filed
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her reply to the petition on 28 May 2015. Same
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D was served on counsel for the petitioners on 8
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June 2015. The affidavit of service is annexed and marked exhibit B.
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The petitioners filed their reply to the 1st E respondent’s reply on 13 June 2015. Pleadings in this petition was closed or deemed closed on
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that 13 June 2015 when the petitioners filed their reply to 1st respondent’s reply.
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The petitioners had 7 days beginning from 13
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F June 2015 when pleadings in the petition was
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deemed closed within which to apply for pre- hearing conference notice as in Form TF 007. The 7 days computed from 14 June 2015 lapsed
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on 20 June 2015 without the petitioners applying for the pre-hearing session notice. The application of the petitioners for pre-hearing conference notice dated 24 June 2015 and received in the registry of this honourable tribunal on the same day, was made 11 days (14
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June 2015 - 24 June 2015) after close of pleadings in this petition. Same is annexed and
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marked exhibit C. A
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I verily believe the application of the petitioners for pre-hearing conference session dated 24 June 2015 was filed out of time and this petition is deemed
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abandoned.
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I, DANIEL O. OLA, solemnly and conscientiously B
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depose to this affidavit in good faith, believing its contents to be true and correct and in accordance with the Oaths Act,” (pages 226 - 227 of the record).
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In response to the affidavit of the appellant reproduced above, C 1st and 2nd respondents filed a counter-affidavit which is also reproduced below for ease of reference:
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“COUNTER AFFIDAVIT IN RESPONSE TO
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UNDATED 17 JULY 2015
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I, DR. JOHN EDOR, Male, Christian, Nigerian citizen D
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of 65, Ndidem Usang Iso Road, Calabar, Cross River State, do hereby make oath and state as follows:-
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That I am a legal practitioner and one of the counsels (sic) in the legal team of the petitioners. E That I have the authority of the lead counsel and
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the petitioners to depose to this affidavit.
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That paragraph 4 of the affidavit in support of the motion is correct and admitted as true. That paragraph 5 is correct only to the extent F
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that the 2nd - 32nd respondents were served the petition on 7 May 2015.
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I know as a fact that the 2nd - 32nd respondents’
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failure to file within time was cured on 4 July G 2015 without the objection of the 1st respondent.
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That paragraph 6 of the said affidavit is false as, the 2nd - 32nd respondents who filed their motion for extension of time on 8 June 2015 H got the extension from the tribunal on 4 July 2015 without any objection from the 1st
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respondent. That paragraph 7 of the affidavit is true. That paragraph 8 of the affidavit is true. That paragraphs 9 and 10 of the affidavit in support of the motion are true. 10. That paragraphs 11 of the affidavit in support of
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the motion is true.
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11. That paragraph 12 of the affidavit in support of the motion is true.
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12. That paragraph 13 of the affidavit is false, as
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pleading in this petition closed on 4 July 2015 as stated by the tribunal.
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That paragraph 17 of the affidavit in support of
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the motion is false as the computation of the 1st
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petitioner is self-serving. Pleading closed on 4
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July 2015 and not 13 June 2015 as stated in the affidavit.
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That paragraph 14 of the affidavit is false. The E petitioners pre-hearing conference notice was filed 10 days ahead of time before the close of
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pleadings as ordered by the tribunal.
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That the petitioners made an oral application requesting the pre-hearing sheets filed before
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F the close pleadings to be regularized on 4 July
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That although the tribunal did not record the application in her records of proceedings of 4
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G July 2015, the petitioner has filed a request for the correction of the record. A copy of the letter
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requesting a correction of the record dated 8 August 2015 is here annexed and marked exhibit A.
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H 17. That the petitioner is not in default of filing pre-
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trial conference notice as claimed by the 1st respondent.
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That 1 know as a fact that this tribunal can A regularize the pre-trial conference notice in the event that the record of the 1st panel cannot be corrected. That the application of 1st respondent is incompetent and should be dismissed. B That the order of justice will be better served if this application is refused. That I make this oath in good faith believing same
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to be true and correct in accordance with the C
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Oath Act 2004.” (page 240 to 242 of the record). He contended that paragraphs 4, 5, 7, 8, 9, 10, 11 and 12 of appellant’s affidavit in support of motion before the trial tribunal
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which are unambiguously admitted by 1st and 2nd respondents (petitioners) reveal the following: That- D
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The petition was filed on 2 May 2015. The petition was served on 2nd - 32nd respondents on 7 May 2015 and on the 1st respondent (appellant) on
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8 May 2015. E
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Whereas 1st respondent filed her reply to the petition within time on 28 May 2015; 2nd - 32nd respondents did not file their reply within time. The 1st respondent’s reply was served on the petitioners on 8 June 2015. F Time was extended for 2nd - 32nd respondents to file their reply to the petition. The 1st and 2nd respondents (Petitioners) filed their
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reply to the appellant’s (1st respondent) reply on 13 G
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June 2015.
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He maintained that paragraphs 9 and 10 of the 1st Schedule to the 2010 Electoral Act (as amended), which provides for the filing of respondent’s reply to the petition states that a respondent
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who did not file a memorandum of appearance shall file, his reply H
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within 21 days from the receipt of the petition. Also paragraph 16(1) of the Schedule which provides for petitioner’s reply to
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the reply of the respondent, states that a petitioner wishing to file a reply to the reply of the respondent shall do so within five days from the receipt of the respondent’s reply.
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He urged court to hold that since the reply of the 2nd -32nd
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respondents were filed out of time, pleadings in the petition giving
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rise to this appeal closed or deemed closed on the date the
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petitioners filed their reply to the reply of the 1st respondent and that was on 13 June 2015.
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He maintained that if your lordships find and hold as he C argued above and as the facts of the pleadings of the parties show, that pleadings closed or was deemed closed on 12 June 2015 when the petitioner’s filed their reply to the reply of the 1st respondent, the next logical issue to consider is when the
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petitioners are required to apply for issuance of pre-hearing notice
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D as in FORM TF 007.
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He maintained that the computation of seven (7) days within which the petitioners are required to apply for pre-hearing notice from the date pleadings closed or was deemed closed, being 13
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E June 2015 shows that the seven (7) days elapsed on 19 June 2015. He submitted that the 1st and 2nd respondents (petitioners)
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application for issuance of pre-hearing notice as in FORM TF 007 was filed outside the time stated in paragraph 18(1) of the 1st Schedule to the 2010 Electoral Act (as amended). On the
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deposition of the appellant at paragraph 14 of the affidavit in
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support of her motion before the trial Tribunal earlier reproduced, he contended that the conjunctive reading of paragraph 14 of the appellant’s affidavit in support of motion and paragraph 14 of the
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1st and 2nd respondent’s counter-affidavit in opposition, reveal that 1st and 2nd respondents admitted that their application for
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issuance of pre-hearing notice was actually filed on 24 June 2015
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i.e. ten (10) days ahead of time before the close of pleadings. He submitted that, ten (10) days from 24 June 2015 is 4 July 2015
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when the 1st panel of the election tribunal extended time and made
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an order deeming the reply of the 2nd to 32nd respondents as properly filed and served.
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He maintained that from the foregoing, it is obvious that A 1st - 2nd respondents are of the view that pleadings in the petition closed or was deemed closed when panel 1 of the trial tribunal made an order extending time and deeming 2nd - 32nd respondents
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reply as properly filed and served. He referred the court to the case of Ikoro v. Izunaso (2009) 4 NWLR (Pt. 1130) 45 at 66, B
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paragraph C, where this court sitting in its Port HarCourt Judicial Division per Garba JCA, held that:-
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“Pleadings in an election petition would come to an end and deemed closed after the receipt of the C respondent’s reply by the petitioner, whether or not the petitioner’s reply was filed.”
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He submitted further that assuming (though not conceding)
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that pleadings in the petition closed or was deemed closed on 4 July 2015 as 1st and 2nd respondents suggest, the issue that would D
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immediately call for determination is whether paragraph 18(1) of the 1st Schedule provides for applying “...ahead of time before the close of pleadings” for the issuance of pre-hearing notice as
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in FORM TF 007. He referred the court to the case of Ohaka v. E
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Eze (2010) All FWLR (Pt. 380) at 392.
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He maintained that from the foregoing, it is clear from whichever direction one looks at it, that the 1st and 2nd respondents’ (petitioners’ application for issuance of pre-hearing notice was not filed in compliance with the clear provisions of F
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paragraph 18(1) of the 1st Schedule to the 2010 Electoral Act (as amended). He referred the court to the case of Ikoro v. Izunaso.
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He contended that conscious of the fact that their
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application for issuance of pre-hearing notice is incompetent, 1st G and 2nd respondents at paragraphs 15 and 16 of their counter- affidavit stated thus:-
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“15. That the petitioners made an oral application requesting the pre-hearing sheets filed before the close of pleadings be regularized on 4 July 2015. H
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16 That although the tribunal did not record the application in her record of proceedings of 4 July
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2015, the petitioner has filed a request for the correction of the record. A copy of the letter requesting a correction of the record dated 8 August 2015 is here annexed and marked exhibit A.”
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He argued that, it is more than obvious that no paragraph of
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the 1st Schedule to the 2010 Electoral Act (as amended) admits
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of oral application which 1st and 2nd respondents alleged they made to the 1st panel of the tribunal for correction of their record. Furthermore, paragraph 18(1) of the 1st Schedule to the 2010
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Electoral Act has no room for the application petitioners alleged they made before the 1st panel of the trial tribunal or which they requested the 2nd panel of the trial tribunal to do, that is, to regularize their incompetent application for issuance of pre-
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hearing notice. More so, that is nothing in the printed record of
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the trial tribunal to show that the application was regularized.
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Learned counsel submitted that the community reading of paragraphs 10(2), 16(1) and 18(1) of the 1st Schedule to the 2010 Electoral Act (as amended) and the decisions in Ikoro v. Izunaso
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and Ikpe v. Elijah clearly show that the trial tribunal had no clear and complete understanding of the issue placed before it.
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He urged the court to find and hold that the trial tribunal contradicted itself and was wrong when it held that the “deeming of the replies on both sides renewed the mutuality of lateness on
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both sides.” It is submitted that paragraph 18(4) of the 1st Schedule
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to the 2010 Electoral Act (as amended) does not make provision for accommodation of late application for issuance of pre-hearing notice as in FORM TF 007.
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He further urged the court to find and hold that the trial tribunal having come to the conclusion that “hold that the
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application for pre-hearing was submitted late,” it had a duty to dismiss the petition and not to hold as they did, that it “...is a mere irregularity.”
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On the effect of a pre-hearing notice filed prematurely,
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learned counsel referred the court to the decision in Ohaka v. Eze, page 392, paragraphs F- G. where the court held thus;
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“the effect of an incompetent or invalid application A
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for pre-hearing notice is that there is no application for pre-hearing notice in law, the further implication is that the petition would be deemed to have been
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abandoned and liable to be dismissed.”
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He also referred the court to the case of Owners of the MV B
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“Arabella” v. N.A.I.C. (2008) All FWLR (Pt. 443) 1208, (2008)
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4-5 SC (PT. II) at 204 -205.
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He submitted with respect that paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) constitutes a C statutory rule not a subsidiary legislation having been embedded
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in a statute, as such it must be obeyed to the letter. He urged the court to so hold.
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He maintained that the non-negotiability of the consequence
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of failure to adhere to the mandatory provisions of the Electoral D
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Act, 2010 (as amended) and the rules contained therein is amplified on the ground that this is an election petition which is sui generis. He referred the court to the cases of Sirika v. Bello
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(2011) 2 NWLR (Pt. 1232) 468; Omisore v. Aregbesola & Ors. E
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(2015) All FWLR (Pt. 813) 1673, (2015) Vol. 5-7 MJSC at 69;
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Hon. Chief Alexander Sundary Irek v. Friday Gabriel Okpechi (Unreported) judgment delivered on 3/9/2015 in suit No. CA/C/ NAEA/151/2015.
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He urged the court in the light of the facts of the application F
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which led to this appeal, arguments canvassed herein and the judicial authorities cited in support thereof to allow this appeal, set aside the ruling of the trial tribunal and dismiss the petition of
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the 1st and 2nd respondents for abandonment. G
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Learned counsel to the 1st and 2nd respondents in his brief
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of argument raised an objection to the competence of the appeal. He submitted that by virtue of the provision of section 145(2) of the Electoral Act, 2010 (as amended), the appellant shall file in
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the registry of the tribunal, his notice and grounds of appeal within H
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21 days from the date of the decision appealed against.
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He maintained that the appellant filed this appeal pursuant
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to the leave granted her and an extension of time within which to appeal against the decision of the tribunal made on the 11 August 2015. The order granting leave and extension of time was not exhibited in the records of appeal transmitted to this court and no
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order of compilation of additional records was made.
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He argued that the order of the trial tribunal dismissing the
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motion of the appellant filed on 17 July 2015 was purportedly revived by the leave to extend time on the 21 September 2015, 39 days after the judgment complained against in clear breach of
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paragraph 6 of the Election Tribunal and Court Practice Direction 2011.
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Learned counsel contended that there is nowhere in the Election Tribunal and Court Practice Direction, 2011, that any
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provision is made for extension of time to appeal. Therefore, this
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appeal is incompetent. He referred the court to the cases of Obo-
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Bassey v. Egbai (2010) All FWLR (Pt. 521) 1576, (2010) 6
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EPR page 43; Afribank Plc. v. Akwara (2005) 5 NWLR (Pt. 974)
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at 655; Ojugbele v. Lamidi (1999) 10 NWLR (Pt. 612) 167 at
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E 172.
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He maintained that the competence of the appeal is further called to question by the fact that the conditions precedent for the filing of notice and grounds of appeal were not satisfied. He referred the court to Order 7, rule 10 (2) of the Court of Appeal
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Rules, 2011. He also referred the court to the case of Utuk v.
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The Official Liquidator (2009) All FWLR (Pt. 479) page 1774.
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He maintained that a cursory perusal of the record of appeal as transmitted to this court will show that there is no where any
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certificate of service of notice appeal as provided for under Order 8, rule 10 of the Court of Appeal Rules, 2011, is exhibited. In the
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light of the above, he urged the court to dismiss this appeal.
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In his reply brief of argument to the objection raised by the 1st and 2nd respondents. The appellant observed that the first issue
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formulated by the 1st and 2nd respondents and argued in their
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brief of argument is not derived from any of the three grounds of appeal filed. He referred the court to the cases of Hussaini v.
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Ogbuokiri (2004) All FWLR (Pt. 203) 2132, (2004) 7 NWLR A
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(Pt. 873) 524 at 540; Nwantata v. Esumei (1998) 8 NWLR (Pt.
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563) at 671.
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He submitted that issue 1 formulated by the 1st and 2nd respondent is in the nature of preliminary objection to the hearing
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of the appeal, which has special procedure and if upheld it has the B
-*-
effect of terminating an appeal. He referred the court to the case of Okereke v. Yaradua (2008) All FWLR (Pt. 430) at 660.
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He maintained that the 1st and 2nd respondents have not file any notice of preliminary objection as provided in Order 10, C rule 1 of the rules of this court and it is improper to formulate issue for determination from preliminary objection. He cited in support the cases of Rivers State Government of Nigeria v.
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Specialist Konsult (2005) All FWLR (Pt. 254) 875, (2005) 7 NWLR (Pt. 923) at 176; United Bank for Africa Plc. v. Ujor D
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(2010) 10 NWLR (Pt. 722) at 599; Ezukwu v. Ukachukwu (2004)
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All FWLR (Pt. 224) 2137, (2004) 17 NWLR (Pt. 902) at 245.
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He urged the court to strike out issue one raised in the 1st and 2nd respondents’ brief of argument for being incompetent. E
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Learned counsel submitted that assuming the court finds
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and holds that the 1st and 2nd respondents’ issue 1 is competent, the 1st and 2nd respondents’ admitted that the appellant filed this appeal pursuant to the leave and extension of time within which to appeal granted her. He also argued that the said leave was not F
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exhibited in the record of appeal transmitted to this court. He urged the court to discountenance the argument of the 1st and 2nd respondents.
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On the contention of the 1st and 2nd respondents that this G
-*-
appeal is incompetent because there is no provision in the Court
-*-
Practice Direction, 2011 for extension of time to appeal; the appellant counsel referred the court to paragraph 45 of the 1st Schedule to the 2010 Electoral Act (as amended) and the case of Olatunji v. Waheed & 4 Ors. (2012) 7 NWLR (Pt. 1298) at 51 H and urged the court to discountenance the argument of the 1st and 2nd respondents.
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On the issue of certificate of service raised by the respondents in paragraph 3.7 of their brief, the appellant’s submitted that the 1st and 2nd respondents failed to show or demonstrate that the record transmitted in this appeal is
-*-
incomplete. He referred the court to the cases of Horst Summer
-*-
v. Federal Housing Authority (1992) 2 SCNJ 73; Uyaenak
-*-
Nwora & 3 Ors. v. Nweke Nwabueze & 6 Ors. (2011) All FWLR (Pt. 589) 1002, (2011) 12 SC (PT. 111); Abatan v. Awudu (2004)
-*-
All FWLR (Pt. 236) 215, (2004) 17 NWLR (Pt. 902) 430; Ngige
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C v. Obi (2006) All FWLR (Pt. 330) 1041, (2006) 14 NWLR (Pt.
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999) 209; Idakula v. Richards (2001) 1 NWLR (Pt. 693) 111. He urged the court to resolve issue one in favor of the appellant.
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The law is settled that issues formulated for determination
-*-
in an appeal must flow from or relate to the grounds of appeal.
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However, to every general rule, there is an exception.An exception
-*-
to this general principle is where the issue of jurisdiction is raised for the first time. This is because the issue of jurisdiction may not be contained in the judgment being appealed against and the
-*-
grounds of appeal emanating from the judgment.
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The appellant counsel has argued that issue one formulated by the 1st and 2nd respondents counsel did not emanate from any of the grounds of appeal. However, it is our view that the said issue 1 raised by the 1st and 2nd respondents borders on the
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jurisdiction of the court to hear this appeal.
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Ordinarily, a fresh issue or objection to the hearing of an appeal should be by way of preliminary objection, but where the objection is one on jurisdiction, the law is settled that it can be
-*-
raised at anytime and in any manner or by any means. See Agbiti
-*-
v. Nigerian Navy (2011) All FWLR (Pt. 570) 1223, (2011)
-*-
LPELR 2944 SC. In that case, the Supreme Court per Adekeye JSC at page 35-37 stated thus:
-*-
“Where an appellant in his issues for determination H raised question of jurisdiction, they are undisputedly questions of law. An appellant can raise such issues
-*-
afresh in an appellate court. Such questions are not
-*-
only competent but are also expedient in the interest A of justice for an appellate court to entertain the questions Adeyemi v. Opeyori (1976) 9-10 SC 31;
-*-
Fadima v. Gbadebo (1978) 2 SC 219.
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An appellant is allowed to raise the question of jurisdiction on appeal without the leave of court B
-*-
whereas, ordinarily a fresh issue can only be raised on appeal with the leave of court sought and obtained, hence the issue becomes incompetent and has to be
-*-
struck out. I shall repeat with emphasis that an appellant C
-*-
does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner”
-*-
The issue of jurisdiction when raised must be one which must be capable of being disposed of without the need to call D
-*-
additional evidence. Based upon the above, we hereby hold that issue one raised by the 1st and 2nd respondents for determination can be entertained by this court. The said issue one raised by the 1st and 2nd respondents being an issue of jurisdiction shall be E
-*-
determined first.
-*-
The said issue one is reproduced as follows:
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Whether this appeal is competent by virtue of paragraph 6 of the Election Tribunal and Court Practice Directions, 2011 and the transmission of incomplete F
-*-
records to the Court of Appeal by the appellant.
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By paragraph 6 of the Court of Appeal Election Tribunal and Court Practice Directions, 2011, the appellant is required to file
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in the registry of this tribunal his notice and grounds of appeal G
-*-
within 21 days from the date of the decision appealed against.
-*-
The 1st and 2nd respondents had submitted in their joint brief of argument that this appeal is incompetent. In that, there is nowhere in the Election Tribunal and Court Practice Direction, 2011, that
-*-
any provision is made for the extension of time to appeal. The H
-*-
court was referred to the case of Obo-Bassey v. Egbai (2010) 6 EPR.
-*-
In response to the above submission, the appellant’s counsel submitted that paragraph 45 of the 1st Schedule to the Electoral Act, 2010 (as amended), empowers the court or tribunal to enlarge time for the doing of anything. He referred the court to the case
-*-
of Olatunji v. Waheed & Ors. (2012) 7 NWLR (Pt. 1298) page
-*-
24 at 51, which decision was based on paragraph 43(1) of the 1st
-*-
Schedule to the Electoral Act, 2006 which is similar to paragraph 45 of the extant Electoral Act 2010 (as amended).
-*-
This same argument has been canvassed in a plethora of
-*-
cases including the case of Senator John Akpanudoedele & Ors.
-*-
v. Godswill Obat Akpabio & Ors. (2012) LPELR 8728 SC, where the Supreme Court opioned per Rhodes-Vivour JSC thus:
-*-
“A petitioner who is unable to argue his petition to his
-*-
satisfaction within 180 days as provided by section
-*-
285(6) of the Constitution or finds the time too short
-*-
should approach the National Assembly with an appropriate bill to amend section 285(6) of the Constitution. If this court extends the time provided
-*-
in section 285(6) for the hearing of election petitions, it would amount to judicial legislation and that would
-*-
be wrong. The National Assembly is to make laws and that includes amending existing laws and the Constitution. The role of the judiciary is to interpret
-*-
what the National Assembly has done.” See also
-*-
Omisore & Anor. v. Aregbesola & Ors. SC 204/2015 (Unreported) delivered on 27/5/2015; Ngige v.
-*-
I.N.E.C. (2015) 1 NWLR (Pt. 1440) 251 at 318 -
-*-
G 319.
-*-
In Audu v. Wada (2012) LPELR 19641 SC, the Supreme
-*-
Court held inter alia per Ngwuta JSC, thus:
-*-
“Election matters are time bound. There is no provision for extension of the time stipulated in the
-*-
H Practice Direction. It is in public interest that such
-*-
matters be disposed of timeously and any extension of time will defeat the purpose of the Practice
-*-
Direction. The appeal filed in breach of the Practice A Direction has not been initiated by due process. It is therefore incompetent and the court is without jurisdiction to entertain it. See Madukolu & Ors. v.
-*-
Nkemdilim (1962) 2 NSCC 372. The application for extension of time after the expiration of the time B
-*-
frame in the Practice Direction is incompetent”
-*-
Based on the above, the law as it stands today is that the time stipulated for filing an appeal in paragraph 6 of the Court of Appeal Election Tribunal and Court Practice Directions, 2011, is C sacrosanct and cannot be extended under any guise.
-*-
In the instant case, the ruling giving rise to this appeal was delivered on 11 August 2015 while the notice of appeal was filed
-*-
on 25 September 2015. The notice of appeal was clearly filed out
-*-
of time. On the state of the law as it stands today, the court has no D
-*-
power to extend the time to appeal. The order of this court made on 21 September 2015 granting leave and enlarging time within which the appellant should file an appeal was with all respect made
-*-
per incuriam, as it was made without the court adverting its mind E to the current position of the law relating to an election matter which is sui generis and for which specific laws, rules and practice directions have been enacted.
-*-
A judgment is said to be per incuriam where it is decided through inadvertence, absence of jurisdiction, ignorance or F
-*-
forgetfulness of some inconsistent statutory provisions or of some authorities binding on the court concern or where the decision though not expressly overruled, cannot stand with the decision of
-*-
the Supreme Court. See Okonji Ngwo & Ors. v. Raphael Monye G
-*-
& Ors. (1970) LPELR 1991 SC; Attorney-General v. INEC
-*-
(2004) 1 EPR 288 at 304; Iyang v. Chukwuogar (2007) All FWLR
-*-
(Pt. 344) 165 at 184 - 185; Action Congress of Nigeria & Anor.
-*-
v. Mr. Martin Amaewhule & Ors. (2011) LPELR CA/PH/EPT/6/ 2011. H
-*-
When it is obvious as it is in the instant case, that an order was given per incuriam or erroneously, this court cannot persist
-*-
in the error. It follows therefore that the order granting leave and extending time for the appellant to file her notice of appeal out of time, cannot validate the notice of appeal filed in violation of the extant electoral laws.
-*-
In the instant case, the notice of appeal filed out of time is
-*-
incompetent and being the foundation of the appeal, it means there
-*-
is no appeal as something cannot put on nothing.
-*-
In concluding this judgment, we would like to state that the contention of the appellant’s counsel in his reply brief that the
-*-
1st and 2nd respondents’ counsel were present in court when the said order granting leave and extension of time to file the appeal was made and did not raise the objection which they are now raising before us cannot avail the appellant. This is because parties cannot
-*-
by consent confer jurisdiction on the court. See I. K. Martins
-*-
(Nig.) Ltd v. VPL (1992) 1 NWLR (Pt. 217) 322; Ndaeyo v.
-*-
Ogunnaye (1977) 1 SC 11 at 25; Mallam Uba Abdulkadi v. Mallam Rabiu Musa (1998) LPELR 6437 CA; Joe Nwagba v. Federal Republic of Nigeria (2009) LPELR 3443 SC; Okolo v.
-*-
Union Bank of Nigeria Ltd (2004) All FWLR (Pt. 197) 981, (2004) 1 SCNJ 113.
-*-
This court having held that the notice of appeal which is the foundation of the appeal is incompetent. It will amount to an academic exercise to consider all other issues raised by parties
-*-
in this appeal.
-*-
The appeal is incompetent and it is hereby struck out. There is no order as to costs.
-*-
ADAH JCA: I agree.
-*-
BOLAJI-YUSUF JCA: I agree.
-*-
Appeal dismissed
