In The Court of Appeal
(Makurdi Judicial Division)
On Thursday, the 12th day of April, 2012
Suit No: CA/MK/EPT/10/2012
Before Their Lordships
MOHAMMED LADAN TSAMIYA....... Justice, Court of Appeal
ALI ABUKAKAR BABANDI GUMEL....... Justice, Court of Appeal
PHILOMENA MBUA EKPE....... Justice, Court of Appeal
ITA GEORGE MBABA....... Justice, Court of Appeal
UCHECHUKWU ONYEMENAM....... Justice, Court of Appeal
1. PROF STEVE TORKUMA UGBA
2. ACTION CONGRESS OF NIGERIA (ACN) Appellants
1. GABRIEL TORWUA SUSWAM
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondents
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the interlocutory decision of the Governorship Election Petition Tribunal, Holden at Makurdi, in Petition No. GET/BN/02/2011, delivered on 13/2/12 [Coram: Hon. Justice H.S. Mohammed (Chairman), Hon. Justice M. A. Degbola (Member) and Hon. Justice E. S. Chukwu (Member)]. Appellant, at the Lower Tribunal, had filed a motion on 28/1/12, praying the Lower Tribunal, among other reliefs, for:
(b) An order setting aside its decision granting 1st and 3rd Respondents' application in its ruling delivered on 23rd January 2012, since same was delivered without jurisdiction and is consequently a nullity.
(c) An Order Restoring Ground Three of the petition and hearing and determining same on the merits pursuant to the directive order of the Supreme Court
(d) An Order Entering Judgment against the 1st, 2nd and 3rd Respondent in respect of Ground 3 of this Petition in favour of the petitioners,
(e) such further order(s) ....."
Upon hearing the application, the learned Tribunal, in a considered Ruling, held for the Appellant (Applicant) in respect of prayers (a) (b) and (c) and restored the Ground 3 of the petition for hearing; "that ground 3 of the petition still subsist (sic) and this still forms part of this petition". But in respect of prayer (d) the Tribunal held at page 983 of the records, as follows:
"Haven (sic) held so, can we give judgment to the petitioners on their Relief? We had reproduced in extenso the various depositions and further oral submissions of learned Counsels to the parties on this issue as to what is a traverse, the proper traverse and improper traverse. We have also reproduced the submission of Counsel on the fact that declaratory relieves cannot be granted even when there is no pleadings. It is clear that any attempt by us to digest any of the issues raised above leads to delving into the substantive case. We find such a trap at dragging us to pronounce on the substratum of this petition at this stage unattractive. We therefore make bold to state that we resist the seeming attractive temptation... The application ... for judgment per ground D is accordingly refused. We shall hear this petition on the merit."
That is the decision Appellants have appealed against in this appeal as per the Notice and grounds of Appeal filed on 22/2/12, raising one ground of appeal, as follows:
"The learned Tribunal erred in law in refusing to enter judgment against the Respondent in favour of the Appellant when:
(a) There was unchallenged and uncontroverted evidence adduced by the Petitioners;
(b) There was, on authorities and the law no proper traverse on the relevant averments by the Respondents to the relevant paragraphs of the petition.
(c) There was express admission of non-qualification by the 1st, 2nd and 3rd respondents and no proper traverse to the plea of disqualification in Ground 3 of the Petition; and this error occasioned a grave miscarriage of justice to the appellants."
For Relief, Appellants prayed us for:
(a) An order allowing this appeal and setting aside the decision of the trial Tribunal made on the 13th day of February 2012.
(b) An order entering judgment against 1st, 2nd and 3rd Respondent on ground 3 of Appellants petition covering non-qualification and disqualification of the 1st Respondent to contest the April, 2011 Benue State Governorship Election.
(c) An order declaring that 1st Respondent was not qualified and/or was disqualified to contest the Benue State Governorship Election of 26th April, 2011.
(d) An order declaring the 1st Appellant sponsored by 2nd Appellant as duly elected Governor of Benue State.
(e) Such further order(s) this Honourable Court shall deem fit in the circumstance.
Appellants filed their Brief of argument on 9/3/2012 and distilled the following issue for determination:
"Whether in view of the state of the pleadings, the admissions and unchallenged and uncontroverted evidence adduced by the Appellants the decision of the trial Tribunal in refusing to enter judgment against the Respondents can be justified."
On being served with the Respondents' Brief of arguments, the Appellants filed Reply Briefs - 1st on 26/3/12 against the 1st and 2nd Respondents' Briefs and then on 28/3/12 against the 3rd Respondent's Brief.
The 1st Respondent's Brief was filed on 19/3/12, wherein he also raised a preliminary objection. He, however, also filed the preliminary objection separately on 21/3/12. 1st Respondents issue for determination was:
Whether in view of the facts and circumstances of the Petition, the Appellants made out a case to warrant the trial Tribunal entering judgment on Ground 3 of the Petition in their favour. Of course, that was to be considered, if overruled on the preliminary objection.
The 2nd Respondent also filed a preliminary objection on 19/3/12 challenging the competence of the Appeal, as well as the 2nd Respondent's Brief on the same date.
The 2nd Respondent's issue for determination was:
"Whether the Appellants' case was such that the Tribunal could enter judgment in their favour on ground 3 of the petition on the pleadings without hearing the case on the merits"
The 3rd Respondent filed its Brief on 26/3/12 and the same was deemed duly filed and served on 28/03/12. The 3rd Respondent too raised a Preliminary Objection in the Brief of argument, but later applied to withdraw the same on becoming aware that the same was incompetent for not being duly filed. The 3rd Respondent's preliminary objection (raised and argued in its Brief) was accordingly struck out, together with the Appellant's reply thereto, i.e. paragraphs 1.2 to 1.14 of the Appellant's Reply Brief filed on 28/3/12.
At the hearing of the Appeal on 28/3/12, the 1st and 2nd Respondents argued their preliminary objections and urged us to dismiss the Appeal on that premise, for being incompetent.
Parties finally adopted their Briefs and urged us accordingly.
It is necessary to consider the preliminary objections raised by the 1st and 2nd Respondents first, before going to the main appeal, if that still becomes necessary.
But before doing that, it is equally necessary to state that after the learned Tribunal had dismissed the motion for judgment on 13/2/12 and adjourned the case for determination of the main petition on the merits, that decision to hear and determine the Appellant's Petition on the merit later suffered a still birth, occasioned by some recent events in the judiciary relating to some travails in the struggles to birth substantial justice in election matters. Specifically, the learned Lower Tribunal had somersaulted on 28/2/12, and overruled itself, by striking out the Appellants' petition, relying on the latest Supreme Court's decisions which hold that the life span of an election petition of 180 days starts to run from the date of filing the petition and cannot be extended and so the Appellants' Petition was spent.
Being that the Appellants' Petition was sent back to the Lower Tribunal by the Supreme Court, on 14/11/2011 (and that was after the 180 days had expired) for the Lower Tribunal to hear it on the merits, and considering the fact that Appellants have also appealed against the order striking out the Petition, the apparent judicial dilemma thereof forms the substance of Appeal in CA/MK/EPT/9/2012, which is the parent appeal of the matter that threw up this appeal (CA/MK/ELP/10/2011). The Respondents were therefore quick to refer us to the pendency of the said parent Appeal (CA/MK/EPT/9/2012), saying that without the same being determined and decided in favour of the Appellants, this appeal (CA/MK/EPT/10/2012) cannot be determined in favour of the Appellants; that since the former was scheduled to be heard on 23/04/12, the latter is doomed to fail.
The 1st Respondent's Notice of Preliminary Objection was premised on the prayer that the appeal be dismissed for being an abuse of Court process, for incompetence for being academic and for want of jurisdiction.
The grounds upon which the application was brought are:
(a) The present interlocutory appeal is an attempt to re-litigate the Appellants' Ground 10 and Issue 6 in Appeal No. CA/MK/EPT/8/2012, between the same parties, which ground was abandoned and issue 6 withdrawn when the said appeal was argued on 8th of March, 2012.
(b) The withdrawal of issue 6 in Appeal No. CA/MK/EPT/8/2012 is deemed in law to be a dismissal of the Issue 6 (and supporting grounds) with or without an order of Court and the attempt (by) the Appellants to re-litigate the same issue earlier withdrawn, in the present appeal is a gross abuse of Court Process.
(c) On 28th of February 2012, the trial Tribunal relying on the Constitutional duty of stare decisis applied the cases of Alliance vs. Independent Electoral Commission & 4 ors in Appeal No. SC.23/2012, delivered on 14/2/12 (unreported) and consolidated Appeals on All Nigeria Peoples Party vs. Alhaji Kashim Shettima & Anor and Alh. Mohammed Goni & 2 Ors in Appeals Nos. SC.1/2012 and SC.2/2012 delivered on 17/2/2012, and struck out Appellants' Petition.
(d) The substantive Petition which gave rise to this interlocutory appeal, having been struck out there is no petition upon which reliefs sought in this appeal can be based.
(e) This appeal is now academic and bereft of any live issue and this Honourable Court determines only live issues.
(f) It is necessary to save the Honourable Court the trouble of dissipating energy and resources in deciding an appeal over a subject matter that is spent.
(g) The Honourable Court should not be made to act in vain."
The Preliminary objection was supported by an affidavit of 6 paragraphs (paragraph 3 having sub-paragraphs (a) to (e)) and 3 Exhibits.
The 2nd Respondent's Notice of Preliminary Objection is founded on the grounds that:
"(i) The Records of Appeal was compiled and transmitted to this Honourable Court ouside the time allowed by paragraph 9 of the Election Tribunal and Court Practice Direction, 2011.
(ii) This appeal is based on a null proceedings of the Tribunal and is an academic exercise as the Petition was struck out by the Governorship Election Tribunal on the 28th February 2012 for lack of jurisdiction."
The Preliminary Objection by the 2nd Respondent was supported by an affidavit of 7 paragraphs with one Exhibit- the Ruling of the Lower Tribunal striking out the two Consolidated Petitions (GET/BN/02/2011 and GET/BN/03/2011) on 28/2/2012.
Arguing the Preliminary Objection, Learned Senior Counsel for the 1st Respondent, D. D. Dodo SAN (leading other Senior Counsel and others) in his brief - pages 4 to 9 (that is paragraphs 4.0 to 4.9) - raised two issues for determination as follows:
"(1) Whether the appeal has not become an academic exercise, having regard to the non-existence of the petition which gave rise to the appeal, the petition having been struck out by the tribunal on the 28th day of February 2012.
(2) Whether the appeal is not incompetent the Appellant having withdrawn issue 6 in their Appeal No.
CA/MK/EPT/8/2012, after the appeal was fixed for hearing, which issue 6 is similar to the sole issue in the present appeal between the same parties."
Counsel answered the two issues in the affirmative.
On Issue one, he submitted that where an appeal has no practical or utilitarian value to the Appellant, even if judgment is given in his favour, such an appeal is said to be academic and Courts of law are enjoined not to embark on a fruitless academic venture as the Courts have no duty to do so. He relied on the Supreme Court decision in Adeogun vs. Fashogbon (2008 17 NWLR (pt.1116) 149 at 180, where it was held:
"This appeal centres on whether the issues involved in the matter are now academic and hypothetical or are still live issues. In Plateau State of Nigeria v. Attorney General of the Federation (2006) 3 NWLR (pt. 967) 346, 1 defined academic and hypothetical suits at page 419:
"A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the Plaintiff even if judgment is given in his favour."
Counsel also relied on Agbakoba vs. INEC (2008) 18 NWLR (pt. 1119 464 at 546-547:
"An action becomes hypothetical or raises mere academic point where there is no live matter in it to adjudicate upon or when determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. When an issue in an appeal has become defunct, it does not require to be answered or controvert about and leads to making bare legal postulations which the Court should not indulge in; it is like the salt that has lost its seasoning. And like the salt in that state, it has no practical value to anybody and so also, a suit in that state has none particularly and practically to the Plaintiff ."
He submitted that it is not in contention that on 28/2/2011, the trial Tribunal, relying on the constitutional duty of stare decisis applied the case of Alliance v. Independent Electoral Commission & 4ors in Appeal No. SC.23/2012, delivered on 14/2/12 (unreported) and the consolidated Appeal in All Nigeria Peoples Party v. Alhaji Kashim Goni & 2ors in Appeal No. SC.1/2012 and SC.2/2012 delivered on 17/2/2012, and struck out the Appellants' petition. He therefore prayed that since the petition that gave rise to this appeal has been struck out, there is no petition upon which the reliefs sought in the appeal can be validly anchored; that the life of the interlocutory appeal, having been snuffed out, the appeal has become an empty academic exercise. He urged us to decline embarking on an academic voyage.
On Issue 2, Learned Senior Counsel submitted that by virtue of Order 11 Rule 1 of the Court of Appeal Rules, 2011, which is impari materia with Order 3 Rule 18(5) of the Court of Appeal Rules, 1981, an appeal which is withdrawn after the appeal is either fixed or called for hearing, whether with or without an order or Court, shall be deemed to have been dismissed. He relied on the Supreme Court decision in the case of Y. S. G. Motors Ltd vs. Okonkwo (2010) 15 NWLR (pt. 1217) 524 at 541-542; Adeagbo vs.Yusuf (1990) 6 NWLR (pt. 158) 588 at 595-596.
Counsel submitted on the strength of the above cases that having withdrawn Issue 6 in Appeal No CA/MK/EPT/8/2012, which is similar to the sole issue for determination between the same parties in this appeal, the withdrawal of the said Issue 6 is in law deemed to be a dismissal of the issue 6, with or without an order of Court, and the attempt by the Appellants to re-litigate the same issue earlier withdrawn is a gross abuse of Court process. He urged us to uphold the preliminary objection and dismiss the Appeal.
The 2nd Respondent's Counsel, Chief Solo Akuma, SAN, on his part, arguing the preliminary objection in pages 3 to 11 (paragraphs 4.0 to 4.12) of the Brief, submitted, on the first ground of the objection, that by paragraph 9 of Election Tribunal and Court Practice Direction, 2011;
"The Secretary shall within a period of not more that 10 days of the receipt of the notice of appeal, cause to be compiled and served on all the parties, the record of proceedings."
He said that the Records (pages 985 - 988) show that the Notice of Appeal was filed on 22nd February 2012; that by the operation of the paragraph 9 (supra), the records of proceedings was to be compiled and served as at 5th March, 2012; but it was done on 6th March, 2012 (as can be seen on the face of the Records) outside the time allowed by the applicable rules, and without the leave of this Court first sought and obtained.
Learned Senior Counsel submitted that the provision of the said paragraph 9 (supra) places mandatory burden on the Appellants and non-compliance renders the Appeal incompetent and liable to be struck out; that the use of the word 'shall' in the provision was intended by the legislature to command absolute obedience and removes the provisions from the discretionary realm of this Court, when this Court is entitled to disregard non-compliance with its rules or allow a party to remedy the defect after it has been discovered and challenged. He relied on the case of Nnonye vs. Anyichie (2005) 2 NWLR (pt. 910) 623 at 656-657:
"Rules of Court are in the nature of beacon light to the parties to a dispute, illuminating the path leading to justice. It would in the end result in injustice if it were open to the Court to hold one party bound by the rules while allowing the other to ignore them without good reason."
He further submitted that the principle of compliance with the rules of Court is fundamental in our jurisprudence and that the apex Court and this Court have emphasized it in several cases, particularly in Williams & Ors vs. Hope Rising Voluntary Funds Society (1982) NSCC 36 at 39. He added that Election Tribunal and Court Practice Directions, 2011, have the force of law and must be complied with so as to confer jurisdiction on the Court.
He relied on the case of Orji vs. PDP (2009) 14 NWLR (pt. 1161) 310 at 404- 405; Johnson vs. Osaye (2001) 9 NWLR (pt.719) 729 at 750.
On its ground 2 of objection, the 2nd Respondent submitted that since this is an interlocutory appeal, it presupposes that the subject matter of the dispute between the parties is still live and pending at the trial Court. He relied on the definition of the word 'Interlocutory' in the Black's Law Dictionary, 8th Edition, page 832, and on the case of C.G.D.G. Nig Ltd vs. Odurusam (2009) 5 N (pt. 1135 465 at 475:
"An interlocutory decision has been defined in several judicial authorities to mean one in which the order therein did not finally dispose of the rights of the parties in the case in which it is made."
See also Auwape vs. Shodipe (1957) 2 FSC 12; Ude vs. Agu (1961) All NLC 65 and Omonuwa Oshodin (1985) 2 NWLR (pt. 10) 925.
Counsel submitted that the question in this appeal is whether the petition upon which the interlocutory decision of 13/2/2012 is based is still live and pending for this Court to hear and determine this appeal? That this Court in the case of Ahmed vs. FRN (2009) 13 NWLR (pt. 1159) 536 at 549 had held:
"In an appeal against an interlocutory decision, the appellate Court must bear in mind that the matter or case is still pending and yet to be tried to the conclusion on the merit."
He submitted that there is no matter pending before the Governorship Election Tribunal, which this Court must bear in mind in this appeal; that the petition which gave rise to the interlocutory appeal was struck out on 28/2/2012 on Grounds of lack of jurisdiction, on the basis of two decisions of the Supreme Court, namely:
(1) SC.23/2012 - Action Alliance vs. INEC & ors (unreported) delivered on 14/2/2012, where the Supreme Court held as follows:
"(a) The petition giving rise to this appeal was filed on 17th May, 2011 and by the provisions of Section 285(6) of the 1999 Constitution an Election Tribunal shall deliver its judgment in writing within one hundred and eighty (180) days from the date of filing of the petition. The relief sought by the Appellant includes an order that the petition be returned to the Tribunal to be heard de novo by another panel. As at today, the one hundred and eighty (180) days has long lapsed and by the decisions of this Court the time stipulated iii the Constitution cannot be extended, which an order of retrial will tend to effect. In the circumstance the appeal is misconceived as same is an exercise in futility and is consequently dismissed."
(b) Consolidated appeal Nos. SC.1/ 2012 - ANPP v. Alh. Mohammd Goni & 4ors and SC. 2/2012, Alhaji Mohammd Goni & 3 ors, delivered on 17/2/12, where the Supreme Court held (per Onnoghen JSC): It has been held by this Court in a number of cases including consolidated appeal SC.141/2011, SC. 266/2011, SC.267/2011, SC.282/2011, SC.356/2011 and SC.357/2011, Brig. Gen. Nyako & Ors delivered on 27th January, 2012 that the time fixed by the Constitution is like the rock of Gibraltar or Mount Zion, which cannot be moved; that the time cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not within the time so fixed, it lapses as the Court is thereby robbed of the jurisdiction to continue to entertain the matter. It is very worrisome that despite the decision of this Court, since October, 2011 on the time fixed in the constitution some of the Justices of the Lower Court still appear not to have gotten the message. From where will the election tribunal get the jurisdiction to entertain the retrial after the expiration of the 180 days assigned in the Constitution without extending the time so allotted? Do Courts have the vires to extend the time assigned by the Constitution? The answer is obviously in the negative."
Counsel added that the purport of the above cases/decisions was that all proceedings conducted by the Election Tribunal outside of the 180 days from 17th May 2011, and particularly the decision of 13/2/2012, the subject matter of this appeal, were a nullity. He then queried whether this Court can entertain an appeal arising out of a null proceedings of a trial Court, and proceeded to answer same in the negative, relying on the case of Okoro vs. State (2012) 4 NWLR (pt. 1290( 351 at 379, where the Supreme Court held:
"When a Judge makes a null order or one without jurisdiction, it is advisable but not mandatory to go to Court to set it aside. The only reason for going to Court is to have it put on record that it has been set aside."
Counsel submitted that the proceedings of the Tribunal conducted without jurisdiction is a nullity and not deserving of the attention of this Court by way of an appeal, as in this appeal; that apart from the fact that this appeal is based on a null proceedings, that there is no live issue between the parties, since the petition has been struck out by the Tribunal, on the decisions of the Supreme Court; that it is settled principle of law that Courts do not indulge in academic or hypothetical questions. He relied on the case of A. G. Federation vs. ANPP (2004) LRCN 2671, where the Supreme Court held:
"There cannot be said to be a live issue in a litigation if what is presented to the Court for a decision, when decided, cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started. So that in case of an appeal, the Appeal may become academic at the time it is due for hearing. Even though originally there was a living issue between the Parties."
Counsel submitted that the changed circumstances since after the litigation started is the fact that the petition was struck out - on 28/2/12.
He urged us to uphold the preliminary objection and dismiss the appeal.
Appellants' joint Reply to the two preliminary objections is as per the Reply Brief, filed on 26/3/12. Learned Counsel for the Appellants, Oluwarotimi Akeredolu SAN (who settled the brief), leading S. A. Orkumah and a team of other lawyers, said that a common point of the two objections is the fact that the petition has been struck out on 28/2/2012 and that this has rendered the appeal an academic exercise. He submitted that such argument was not based on the record of appeal before this Court; that there is no application challenging the record and none seeking to amend the record of appeal.
Counsel submitted that since this Court, the parties and Counsel are bound by the record, and cannot travel outside it on a voyage of discovery, this Court should disregard and discountenance this arm of the preliminary objection. He relied on the case of:
Tubara vs. Minimah (2003) 32 WRN 1 (2003) 5 SCNJ 142 at 168; Sommer vs. FHA (1992) 1 NWLR (pt 219) 548; Texaco Panama Inc. of Nigeria Ltd. vs. SPDC (Nig) Ltd. (2002) 5 NWLR (pt.759) 209; Ogolo us. Ubara (2003) 11 NWLR (pt. 831) 231; Nuhu us. Ogele (2003) 18 NWLR (pt. 852) 251, Orugbo vs. Una (2002) 9 SCNJ 12, Funduk Engineering Ltd. vs. M. V. Arthur (1995) 2 NWLR (pt.392) 640 at 652, Okochi v. Animkwoi (2003) 18 NWLR (pt.851) 1 (2003) 2 SCNJ 260 at 271.
Learned Senior Counsel added that the import of this is that appeal shall be argued by parties based solely on the printed records. He relied on Ojemen vs. Momodu (1994) 1 NWLR (pt. 323) 685 at 697 -a decision of this Court. He urged us to strike out the objection on that ground, for incompetence or to discountenance same.
However, if this Court is to consider the objection on the merit, Senior Counsel for the Appellants submitted that the objection constitutes a gross abuse of the process; that the 1st Respondent's appeal on the same matter against the decision of this Court delivered on the 4/2/12 is pending in the Supreme Court as Appeal No. 62/2012 and the same has been fixed for hearing on 29/3/12.
Similarly, Counsel said, Appeal No. 63/2012 filed by the 2nd Respondent against the Appellants herein has since been entered on 22/2/12 and is also pending at the Supreme Court for hearing; that the 1st Respondent herein filed his Appellants' Brief in the Supreme Court on 12/3/12; that there cannot be a stronger example of abuse of Court process! Counsel submitted that the argument canvassed here on this angle of objection should accordingly be dismissed as constituting a gross abuse of the process of this Court. He relied on the case of Dingyadi vs. INEC (2010 4 - 7 SC (pt. 1) 76 at 129-134 (I. T. Muhammed JSC), 208 - 209 (Adekeye JSC),
Counsel further submitted that the 1st and 2nd Respondents cannot validly argue that this appeal is academic, because the petition was struck out on 28/2/2012. Firstly, that the order referred to cannot obliterate the constitutional right of action conferred by S. 285(5) of the 1999 Constitution (as amended) nor remove the jurisdiction conferred on the trial Tribunal by Section 285(2) to hear and determine petition as to whether any person has been validly elected to the office of Governor or Deputy Governor of a state. He relied on the case of Eyisan vs. Sanusi (1984) 4 SC 115 (1984)1SCNLR 353, where the Supreme Court held that the right of action in Court is also a constitutional right exercisable by a person with complaints touching his civil rights and obligations against another person, government or authority and once the exercise of this right of action has commenced it is not completed until the action is finally and completely determined by the Court of first instance or the Appeal Court; that in this case, the trial Tribunal is yet to 'hear' and 'determine' the petition filed in accordance with S. 285(5) of the Constitution; that the Tribunal is yet to reach a final decision on the fortunes of the petition within the meaning of Section 285(2) of the 1999 Constitution (as amended).
Counsel also submitted that the proceedings of the Tribunal cannot also be validly stigmatized as null proceedings; that a more potent argument to project is that Section 36(1) of the 1999 Constitution (as amended) was not invoked nor complied with; that by its tenor and substance, the Court is required to hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case, and shall give equal treatment, opportunity and consideration to all concerned and allow the petitioners to call witness. He relied on Baba vs. Civil Aviation Training Centre, Zaria (1991) 7 SCNJ (pt. 1) at 24 - where he said, the term determination, in the context of Section 36(1) of the 1999 Constitution, was explained to mean reaching a decision. He also relied on the Black's Law Dictionary (supra) page 480- for "determination" meaning: "A final decision by a Court or administrative agency: the Court's determination of the issue"; that at page 859 of the Black's Law Dictionary, the word "Final Decision" or Final Determination" means:
"A Court's last action that settles the rights of the parties and disposes of all issues in controversy... Also termed final appealable judgment; final decision; final decree; definitive judgment; determinative judgment; final appealable order."
Counsel submitted that in purporting to strike out the petition, none of the above criteria nor attributes of fair hearing articulated in Baba's case (supra) were satisfied and there was no determination of the petition as stipulated by Section 36(1) of the Constitution nor Section 285(2) thereof; that the Tribunal did not hear and determine the petition as required by the Constitution, before purporting to strike it out; that in doing so, the tribunal acted in gross breach of Section 36(1), entrenching the fundamental right to fair hearing. He relied on the Baba's Case (supra) at page 33, where Kanbi-Whyte JSC said:
"This is where the tribunal must reach a decision either way, in determination of the rights or obligations in issue..."
Counsel also relied on the case of LPDC vs Fawehinmi (1985) 2 (NWLR) (pt.7) 300 at 373, where the Supreme Court said:
"section 33 is an entrenched provision which has the privilege of nullifying any other provisions of the Constitution or any other legislation inconsistent with in. It has the distinction of being subject to amendment only after compliance with the provisions for so doing in the Constitution. It therefore stands solidly behind the citizen who is legitimately apprehensive that in determination of his civil rights and obligations there was a likelihood that his right to natural justice might be denied him."
Counsel submitted that the above, coming from a full panel of the Supreme Court, it is fallacious to contend, as done by 1st and 2nd Respondents, that this appeal has become academic; that none of those points, referred above, was brought out and canvassed and pronounced upon in the much touted decisions, the fulcrum of the objection.
Finally, Counsel submitted that the decisions of the Supreme Court on which the objection is tethered was rendered in contravention of the mandatory provision to Section 234 of the 1999 Constitution (as amended), which requires that the composition of the Supreme Court when interpreting or applying the provisions of the Constitution, shall be seven justices; that this was not the case in the 2 decisions being bandied out; that it follows that the two decisions were rendered without jurisdiction and are therefore a nullity and can be set aside. He relied on Section 64 of the Evidence Act 2011; the case of Sokoto State Governmert v. Kamdex Nig. Ltd. (2007) All 1FWLR (pt. 365) 469 at 489, 490 and 486; A. G. Lagos State vs. Dosunmu (1989) 3 NWLR (pt. 111) 552 at 566-567 and 599 - 600; Ajao vs. Alao (1986) 5 NWLR (pt. 45) 502; Adetipe vs. Amodu (1969) 1 NWLR 62, (1969) N9CC 76 at 78 - 81.
As a final word about the submission that the proceedings of the trial tribunal are null proceedings, Counsel for the Appellants submitted that the Respondents are fully aware that it was the Supreme Court, headed by no less a personage than the Chief Justice of Nigeria, who remitted this petition to be heard on the merits on the 14th November, 2011. He submitted that the said order is still in full force and subsisting; that it has not been set aside by the Supreme Court which made it and it is still binding. He relied on Section 287(1) of the 1999 Constitution (as amended) and the case of Rossek vs. ACB (1993) 10 SCNJ 20 at 39,40,41,42 (per Ogundare JSC), who insisted that a judgment remains binding until set aside by a competent Court and that there is always a presumption of correctness in favour of a Courts judgment and until that presumption is rebutted and the judgment is set aside, it subsists and must be obeyed, irrespective of the perception that it is null or valid regular or irregular.
He querried whether the trial tribunal or even this Court could proceed to disregard and disobey the specific order of the Supreme Court, made on 14/11/11 that the petition be heard on the merits? He prayed that the day may never come when orders of the Supreme Court will be treated with such disdain and contempt. On the Issue of withdrawal of Issue 6 and ground 10 in the Appeal No. CA/MK/EPT/8/2012 (also between the parties in this case), Counsel for the Appellants said that the 1st Respondent made a heavy weather of the said withdrawal; He submitted that here, again, the contention is not part of the record of appeal and should be discountenanced. He relied on the case of Ojemen vs. Momodu (1994) 1 NWLR (pt. 323) 685 at 697.
He submitted, in the alternative, that if considered on the merits, that there would be no substance, at all, in the objection; that, in the first place, the ground and issue were abandoned in the Appellants' brief, and at the time there was no litis contestatio upon them; secondly, that it was not the appeal itself that was abandoned; thirdly, that the 1st Respondent had acquiesced in the act of abandonment, by not raising a whimper of protest at the time it was done and it is belated for him to do so at this stage; fourthly, that no miscarriage of justice was accessioned to him by the withdrawal, as no argument was canvassed on that issue and related ground in the brief.
Consequently, Counsel said, this is one of the most frivolous and irritating objections to raise! He relied on the case of the Young Shall Grow Motors Ltd. v. Okonkwo (2010) 3 - 5 SC 124 AT 137 - 142; Saude vs. Abdullahi (1989) 7 SCNJ 216 at 228, 234 - 235 and 246 - 247.
He also urged us to dismiss the objection on the 2nd Respondent contention that the Record of Appeal was compiled and transmitted to this Court outside the time allowed by paragraph 9 of the Election Tribunal and Court Practice Directions, 2011.
Counsel reproduced the provision of paragraph 7 of the Practice Direction and also referred to the paragraph 9 and submitted that it was clear from a community reading of paragraphs 7 and 9 of the Practice Direction that Appellants' duty by the law was payment of the fees determined by the Secretary of the Tribunal for compilation of the record of proceedings by the secretary and fee for service and furnishing of the requisite number of copies of the notice of appeal; that the compilation of the record of proceeding and service thereof on the Respondents are duties cast on the Secretary, not the appellants; that it is easily manifest from the foregoing that if compilation exceeds 10 days, no fault or default arising there from, can validly and legally be attributed to the appellants, as sought to be done by the 2nd Respondent. He relied on the case of SAUDE vs. Abdullahi (supra) at 246 and 256.
Counsel further submitted that irregularity in compiling the record, one day later than the 10 days prescribed, cannot legitimately be laid at the door-step of the Appellants who have no control on the Registrar; that a full bench of the Supreme Court had held in the above case that where non-compliance is on the part of the Court, the defect is merely administrative and does not render the proceedings consequent thereto a nullity, since it is not a matter within the power of the party to control but merely a domestic affair of the Court, for which the party cannot be penalized. He submitted that the Appellants, timeously, fulfilled all their obligations as laid down in the Practice Directions; that this Court can, in the circumstances, waive such non-compliance attributable to the Registry of the trail Tribunal, by hearing the appeal and waiving the non-compliance which has not accessioned any miscarriage of Justice to the 2nd Respondent or any of the parties. He urged us to discountenance the objection, which he termed as highly technical, relying on Eso JSC in the Saude vs. Abdullahi (supra) at 241:
"But in any event it has been consistently held by Court over a long line of authorities that this Court should not be held up by technicalities. Justice can only be done in substance and not by impeding it with mere technical procedural irregularities.
I shall consider the three main issues raised by the 1st and 2nd Respondent Preliminary Objections in a reverse order, as follows:
(1) Was the compiling of the Record of Appeal and transmitting same to this Court, one day after the 10 days stipulated by the Practice Directions the act of the Appellants and capable of negative consequences to the proceedings?
(2) Does the withdrawal or abandonment of Issue 6 (ground 10) in Appeal No CA/MK/EPT/8/2012 between the same parties in this appeal (CA/MK/EPT/10/2012) have a debilitating or vitiating effect on this appeal, said to be on the same issue withdrawn or abandoned in CA/MK/EPT/8/2012?
(3) Has the appeal become a mere academic exercise having regard to the striking out of the petition by the Election Tribunal on 28/2/12, relying on some extant authorities of the Supreme Court, which petition gave rise to this appeal?
By paragraph 9 of the Election Tribunal and Court Practice Directions:
"The Secretary shall within a period of not more than 10 days of the receipt of the Notice of Appeal, cause to be compiled and served on all the parties, the record of proceedings."
It was the 1st Respondent's contention that Appellants have not complied with that provision, because the Record was compiled and transmitted to this Court on 5/3/12, that is, 11 days after the Appellants filed their Notice and grounds of Appeal on 22/2/12, instead of the stipulated 10 days; that the Appellants did not even take steps to regularise the defect by applying for extension of time to file it or to deem it duly compiled and transmitted; that failure to comply with the rules is fatal to the Record of Appeal, as the Rules of Court must be obeyed, especially as the said Practice Directions has the force of law and must be complied with to confer the Court with jurisdiction. Counsel for the 1st Respondent specifically relied on the case of Orji vs. PDP (supra) at 404 - 405.
"The Practice Directions made by the President of the Court of Appeal pursuant to the powers vested on him by Section 285(3) of the 7999 Constitution of the 1st schedule to the Electoral Act 2006 have the force of law.
The Practice Directions have constitutional flavour ... (and) constitute a rule for guidance and regulation of election petition proceedings as established by the Constitution and they must be obeyed strictly as they constitute conditions precedent to the presentation and maintenance of an election petition."
Of course, the Appellants' position on that is that Appellants had done all that was expected of them by the law. The duty to compile the Record and transmit same was that of the secretary of the Tribunal, and if the secretary failed to do that, within the stipulated time, the fault or default is that of the Registry of the Court, not the Appellants' and the Appellants cannot pick the blame or suffer for the dereliction of the officer of Court. In any event, that such defect is treated as merely administrative and cannot render the proceedings consequent thereupon a nullity. He relied on the case of Saude vs. Abdullahi (1989) 7 SCNJ 216 AT 228, 231 - 235 AND 246 - 247.
I completely agree with the Learned Senior Counsel for the Appellants on this point. By paragraph 7 of the Practice Directions, Appellants' duty, with regard to compilation and transmission of records of appeal, is confined to filing of the Notice of appeal and payment of the fees assessed, to the Secretary of the tribunal. It is the duty of the Secretary of the Tribunal to compile the record and furnish as many copies as there are Respondents, in addition to twenty (20) extra copies.
There is admission by the Respondents that the Appellants played that part and filed the Notice of appeal on 22/2/12. I do not see how/why the Appellants should be held responsible for failure to comply strictly with the requirement that the Record be compiled and transmitted within 10 days. The Secretary of the Tribunal was not under the control of the Appellants but a servant of the Court, and so what the Secretary did was an official act of the administrative arm of the tribunal, and such defect, of exceeding the time by one day, can be seen as the act of the Tribunal, not of the Appellants', and is curable, administratively, by waiver, in the interest of justice, especially as no party (including the 2nd Respondent who complained) can show that he was adversely affected by the said defect caused by the Secretary of the Tribunal. I do not also think it was the duty of the Appellants to take steps to regularise the act of the Secretary of the Tribunal before the process (Record) could be accorded legal recognition, in the circumstances.
I had cause, recently, to hold that while the Rules of Court are meant to be obeyed, the same must not be bandied and applied in a manner that it supplants the substantive law, which the rules were meant to serve, by leading the litigant to attain the ends of justice. The rules are mere handmaids of the law to lead the parties to substantial justice. See the case of BARR. YUSUFU AKIRIKWEN & ANOR V PDP & 104 ORS, an unreported decision of this court in CA/YL/EPT/TR/R/4/2011, delivered on 6/9/2011, where we said:
"It must be stated that the Rules and procedures of Court are, in fact, meant to serve the interest of justice as handmaids of the Law, to help the parties to get the justice enshrined in the substantive Law. The Rules cannot, therefore, be made to operate as a cog in the wheels of justice, to be used to deny a litigant the opportunity to be heard on the merit over the Petition he has duly brought before the Court.
In this wise, I also find support in the case of Duke v. Akpabuyo L.G. (2005) 19 NWLR (Pt.959) 130 at 142-143, wherein Pats-Acholonu, JSC, of the blessed memory, stated:
"It is important to understand the nature of rules of the court. Our courts have held that rules of the court are meant to be obeyed. They provide supports in the administration of justice, but it must be understood that being rules or regulations to assist the court in its effort to determine issues or controversies before the court, care must be exercised in not elevating them to the status of a statute as they are subsidiary instruments. They are to be used by the court to discover justice and not to choke, throttle or asphyxiate justice. They are not sine quo non in the just determination of a case and therefore not immutable".
See, also, U.T.C. (Nig.) Ltd v. Pamotei (1989) 2 NWLR (Pt.103)244; Katto v. CBN (Supra); Opia v. Ibru (Supra).
I think this ground of objection should be discountenanced on the authority of the dictum of Eso JSC in the case of Saude vs. Abdullahi (supra) page 241, when he said:
"But in any event, it has been consistently held by our Court over a long line of authorities that this Court should not be held up by technicalities Justice can only be done in substance and not by impeding it with mere technical procedural irregularities."
On the issue of withdrawal, or abandonment of Issue 6 (ground 10) of Appeal No. CA/MK/EPT/8/2012, between the same parties in this appeal (raised by 1st and 2nd Respondents), the Appellants' Counsel has urged us not to countenance the objection, because issues relating to the Appeal No. CA/MK/EPT/8/2012, etc do not form part of the Record of Appeal in this case.
Of course, the 1st and 2nd Respondents had deposed to an affidavit on the said issues, about the withdrawal of Issue 6 in the said Appeal, and the 1st Respondent even exhibited Appellants' Brief of Argument in the said appeal No. CA/MK/EPT/8/2012 (as Exhibit 2) in support of this notice of preliminary objection. The said Exhibit 2 relied upon by the Respondents, unfortunately, does not seem to aid the cause of the Respondents, as the document still carries the said issue 6 and the arguments there-under, without anything to show that same (issue 6) had been withdrawn, and what followed the alleged withdrawal. The Respondents had also relied on the decision of this Court (unreported) in the said Appeal No. CA/MK/EPT/9/2012, which a copy was produced for us.
I have had the privilege of perusing the said judgment of this Court in that case but could not see anything to show that Appellant withdrew the said issue 6, or abandoned it, and/or what this Court did, by way of consequential order, thereto. Rather, on page 5 of the said Judgment (CA/MK/EPT/8/2012) this Court said thus:
"At the hearing of this appeal, the Appellants Brief of Argument filed on 8/3/2012, which, apparently, was signed by their principal learned senior Counsel, Oluwarotimi Akereboun (sic) SAN, was adopted before this Court by their other Counsel, S. A., Orkumah Esq; who, as a matter of fact, had consistently been appearing before this Court together with other Counsel on behalf of Appellants, Six issues were propositioned by the Appellant for determination of this Court, that is to say:
(6) Whether in the face of copious documentary and unchallenged evidence and the state of pleadings, the trial Tribunal was right in law in refusing to enter judgment against the 1st, 2nd and 3rd Respondents respecting Ground 3 of the Petition (Ground 10 of Appeal)"
Appellants, in their Reply Brief had stated in paragraph 1.13 that:
"The ground and issue were abandoned in the Appellants' Brief at the time there was no litis contestatio upon them. Secondly, it was not the appeal that was abandoned."
That too is not borne out of the judgment in CA/MK/EPT/8/2012, produced before this Court.
In any case, whether the said Issue was withdrawn or abandoned or not appears irrelevant as what is important has to do with the manner the said alleged withdrawal of Issue 6 in Appeal No. CA/MK/EPT/8/2012, was made an issue in this appeal, when the same did not form part of the Record of Appeal in this Appeal, and was not made an issue in the grounds of appeal nor in the issue formulated by Appellants.
There is no application challenging the record of this appeal; neither is there a Cross Appeal or any Respondents' Notice to raise fresh issue contending that the decision of the tribunal in this appeal should be affirmed on grounds other than those relied upon by that Court.
By Order 9 Rules (2) and (3) of this Court's Rules, 2011, it is provided that:
(2) "A Respondent who desires to contend on the appeal that the decision of the Court should be affirmed on grounds, other than those relied upon by the Court, must give notice to that effect specifying the grounds of that contention.
(3) Except with the leave of the Court, a Respondent shall not be entitled on the hearing of the appeal to contend that the decision of the Court below should be varied upon grounds not specified in a notice given under this Rules, to apply for any relief not so specified or to support the decision of the Court below upon any grounds not relied upon by that Court or specified in such a notice.
See the unreported decision of this Court in the case of Alhaji Mogaji Abudu Lateju vs. Dr. Olu Fabayo CA/IL/29/2009, delivered on 17/11/2011, wherein it was held on page 22 that:
'The law is that, where a Respondent seeks to move the Appellate Court to affirm the decision of the lower Court, but on a different ground, other than the ground(s) relied upon by the trial judge, the Respondent ought to file a Respondent's notice to that effect and outline the said ground he wants to rely on, which the lower Court did not consider. See Order 9 Rule (1) and (2) of the Court of Appeal Rules, 2011; See also the case of Adamawa State House of Assembly 2 ors vs. Chubado Batti Tijjani and 23 Ors (unreported decision of this Court) in CA/J/304m/2009, delivered on 20/1/2011.
Thus, since the Respondents did not come by way of Respondents' Notice to raise the alleged issue of abandonment of Issue 6 in Appeal No. CA/MK/EPT/8/2012, and they were not relying on that case by way of Issue estoppel, I do not see how that ground of objection can avail them to scuttle this appeal.
On the issue that the appeal would amount to a mere academic exercise, having regard to the fact that the petition which gave birth to this Appeal (an interlocutory Appeal) has been disposed of , by being struck out on 28/2/12 pursuant to some new decisions of the Supreme Court outlawing continuation of hearing of election petition at the expiration of 180 days after, the filing of the petition, the learned senior Counsel for the Appellants had also contended that this objection is not borne out of the Record of Appeal and should be discountenanced. However, in the alternative, learned senior Counsel had argued that what the tribunal did by striking out the Appellants' petition was wrong, and a breach of the constitutional rights of fair hearing of the Appellants, since their case, which was remitted to the Tribunal by the Supreme Court, to be heard on the merits, could not be struck out by the Tribunal, as to do so would be a gross violation of the orders of the Supreme Court, which orders remain subsisting, having not been set aside or discharged.
This issue has to be distinguished from the earlier issue relating to withdrawal or abandonment of issue 6 in Appeal No. CA/MK/EPT/8/2012, which I held that the Respondents ought to have filed a Respondents' Notice under Order 9 Rule 2 to canvass it.
This last issue touches on the parent case from which the interlocutory appeal arose, which, even if the parties did not volunteer information on or about it, this Court is expected to ask question to find out what has become of it (the main suit) before hearing and/or delivering judgment in an interlocutory appeal, which did not dispose of the main suit at the trial Court. Such enquiry is necessary to assure the appellate Court of its relevance or of the relevance of the appeal, so that it does not dissipate its energies in vain.
In the case of Yar'Adua vs. Abubakar (2008) 12 SCNJ 381, where the issue was whether the appeal against the interlocutory decision of the Court of Appeal was still competent after the judgment of the Court of Appeal on the main matter was delivered, the Supreme Court held:
"The continuous prosecution of this appeal by the Appellants in view of the available undisputed facts is clearly academic, having been overtaken by events and therefore constituted a gross abuse of judicial process." (Per Kutigi JSC, as he then was)
Onnoghen JSC in that case said: There is no longer a live issue in interlocutory appeal the issues giving rise to the appeal having been subsequently dealt with by the lower Court in its final judgment." (at page 389)
There is evidence from both sides that the petition which brought about this interlocutory appeal has been struck out by the Tribunal on 28/2/12, relying on the Supreme Court decisions in SC.23/2012: Action Alliance vs. INEC & Ors (unreported) and consolidated appeals SC.1/2012 and SC.2/2012, ANPP vs. Alh. Mohammed Goni & 4 Ors and Alh. Kashim Shettima & Anor vs. Alh. Mohammed Goni & 3 Ors (respectively).
Learned Senior Counsel for the Appellants has queried the power and authority of the trial Tribunal to strike out the Petition of the Appellants since the same was remitted to it, to hear on the merits, by the Supreme Court and that order of the Supreme Court has not been vacated or set aside. That query, obviously, is not within the purview of this appeal to be answered at this stage, as that will be taken care of, subsequently, in the Appeal No. CA/MK/EPT/9/2012, which is pending in this Court, and is directly against the striking out of the Appellant's petition by the trial Tribunal.
The reality of the moment is that the Appellants' petition which gave life to this Appeal, when it was filed on 22/2/2012, was struck out by the Tribunal on 28/2/12, rightly or wrongly, on the strength of some recent Supreme Court decisions to the effect the Election Tribunals have no power to continue to hear pending petitions after 180 days from the date of filing. Whether that should also apply to the Appellants' petition, which was specifically remitted to the lower Tribunal by the Supreme Court to be heard on the merits is a problem for a future date.
It must, however, be admitted that the judicial system of our nation and the justice delivery system is passing through challenging and trying times, requiring patience, courage and dogged integrity to transit to glory or greater glory, given the events and circumstances that led to the problems encountered by the petition that brought about this appeal. A situation where petitioners, who appear to have done everything necessary to get their cases heard on the merits, and have even been assured of that by specific orders of the Supreme Court, and yet cannot still be heard, and are chased out of the temple of justice, in the name of the law, for no fault of theirs, is, indeed, worrisome, requiring quick judicious and humane approach to correct, to strip the law of the garb of a monster that seeks to keep justice in chains. The soul of law and constitution, I believe, is and should remain justice and the attainment of same.
In the circumstances of this appeal, where the Petition of the Appellants has been struck out on 28/2/12 while this interlocutory appeal was pending, it will be futile to waste further legal energies and judicial time to pursue the appeal, as the same appears spent, and reduced to mere academic venture.
A case is said to amount to mere academic exercise, where:
"there cannot be said to be a live issue in a litigation, if what is presented to the Court for a decision, when decide cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started, so that in case of an appeal, the Appeal may become academic at the time it is due for hearing," See A. G. Federation vs. ANPP (2004) LRCN 2671 at 2694.
That appears to be the exact situation in this Appeal, where there has been a change of circumstance, with the striking out of the petition, on which the Appeal derived life, on 28/2/12. See also the case of Odedo vs. INEC (2008) 17 NWLR (pt1117) 554; Tanimola vs. Mapping Godatta Ltd. (1995) 6 NWLR (pt. 403) 617; Nwodoshi vs. ACB (1995) 6 NWLR (pt. 404) 658; Ogbonna vs. President FRN (1997) 5 NWLR (pt. 504) 281; Ndulue vs. Ibezim (2002) 12 NWLR (pt. 780) 139 and the unreported decision of this Court in CA/YL/EPT/TR/SHA/19/2011 - ALH RILWANU DAUDU JULDE & ANOR vs. PEOPLES' DEMOCRATIC PARTY (PDP) & 3 Ors, delivered on 4/01/12, where it was held that the Issue 3 whereof the Appellant therein sought to rely on forensic evidence to analyse ballot papers used for the conduct of the election in prove of multiple voting, whereas in evidence he had abandoned the resort to forensic examination, had become a mere academic exercise unworthy of any further judicial consideration.
The Preliminary Objections therefore, succeeds on the ground that the appeal has become a mere academic exercise, the petition having been struck out on 28/2/12.
This appeal is therefore, unworthy of any further judicial consideration having been spent by the reason of the petition having been struck out on 28/2/12.
It is accordingly struck out.
Parties to bear their respective costs.
MOHAMMED LADAN TSAMIYA, J.C.A.: I agree.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree.
PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Ita Mbaba JCA.
I too agree that the preliminary objection succeeds on the ground that the petition had been struck out on 28/2/12. The petition is hereby struck out and I also abide by the order as to cost.
UCHECHUKWU ONYEMENAM, J.C.A.: This interlocutory appeal is against the interlocutory decision of the Benue State Election Petition Tribunal delivered on 13th February, 2012 in petition No: GET/BN/02/2011. The Tribunal had in its considered ruling refused the appellant's application for default judgment on the pleadings based on Ground 3 of the Petition.
The brief facts are that, the appellants' petition was on 19th September, 2011 struck out by the Tribunal pursuant to this court's decision in appeal No CA/EPT/10/2011 PDP V. Ugba & ors (Unreported). The appellants appealed to the Supreme court which allowed the appeal on 14th November, 2011 and restored the petition to be heard on its merit. Upon the constitution of a new panel, the appellants on 28th January, 2012 filed an application which amongst other prayers prayed for the restoration of ground 3 of the petition which was struck out by the former panel and entering judgment in favour of the appellants on the said ground 3. The panel on 13th February, 2011 restored ground 3 of the petition but declined to enter judgment in favour of the appellants based on ground 3 of the petition. Dissatisfied therefore the appellants have appealed against the ruling of the Tribunal refusing to enter judgment in favour of the appellants on ground 3 of the petition.
Upon the hearing of the appeal on 28/3/2012, D.D. Dodo, SAN for the 1st respondent intimated the court that the 1st respondent on 21st March, 2012 filed a notice of preliminary objection which was argued in the 1st respondent's brief at pages 2- 9. He urged the court to dismiss the appeal for being an academic exercise.
In the same vein, Chief Solo Akuma, SAN indicated that the 2nd respondent had on 19th March, 2012 filed a notice of preliminary objection which was argued at pages 2 - 11 of the 2nd respondent's brief. Chief Akuma, SAN, adopted same and urged on the court to dismiss the appeal.
Mr. Okutepa applied to withdraw the 3rd respondent's notice of preliminary objection the same being incompetent. The said notice was accordingly struck out by the court as no counsel objected to the application. In accord with the rules of this court, the appeal can only be determined upon its survival of the legal hurdles imposed by the 1st and 2nd respondents' objections. I shall herein base my comment on the 1st respondent's objection.
The 1st respondent rested his objection on the following grounds:
a. "The present interlocutory appeal is an attempt to re-litigate their Ground 10 and issue 6 Appeal No. CA/MK/EPT/8/2012, between the same parties, which ground was abandoned and issue 6 withdrawn when the said appeal argued on the 8th of March, 2012.
b. The withdrawal of issue 6 in Appeal No. CA/MK/EPT/8/2012 is deemed in law to be a dismissal of the issue 6 (with the supporting grounds) with or without an order of court and the attempt the appellants to re-litigate the same issue earlier withdrawn in the present appeal is a gross abuse of court process.
c. On 28th day of February, 2012 the trial Tribunal relying on the constitutional duty of stare decisis applied the cases of Alliance V. Independent Electoral Commission & Ors in Appeal No. SC. 23/2012 delivered on 14/2/12 (unreported) and the consolidate appeals in All Nigeria Peoples Party V. Alhaji Kashim Shettima & anor and Alh. Mohammed Goni 8. 2 Ors in Appeals Nos. SC. 1/2012 and SC. 2/2012 delivered on 17th February, 2012 and struck out the appellants' petition.
d. That the substantive petition which gave rise to this interlocutory appeal having been struck out there is no petition upon which reliefs sought in this appeal can be based.
e. This appeal is now academic and bereft of any live issue and this honourable court determines only live issues.
f. It is necessary to save the Honourable Court the trouble of dissipating energy and resources in deciding an appeal over a subject matter that is spent.
g. The Honourable Court should not be made to act in vain".
He submitted the following 2 issues for determination of his preliminary objection:
1. "Whether the appeal has not become an academic exercise having regard to the non-existence of the petition which gave rise to the appeal, the petition having been struck out by the tribunal on the 28th day of February, 2012."
2. "Whether the appeal is not incompetent, the appellants having withdrawn issue 6 in their Appeal No. CA/MK/EPT/8/2012 after the appeal was entered and fixed for hearing, which issue 6 is similar to the sole issue in the present appeal between the same parties."
On the 1st issue, D. D. Dodo, SAN submitted that it is a settled principle of law that where an appeal has no utilitarian value to the appellant even if judgment is given in his favour, such an appeal is said to be academic. He argued that the courts are prohibited from embarking on a fruitless academic exercise. He cited: Adeogun V. Fashogbon (2008) 17 NWLR (pt.1116) 149 at 180 paras. B - E: Agbakoba V. INEC (2008) 18 NWLR (Pt. 1119) 464 at 546 - 547 paras. H - C.
For the 1st respondent, it was also submitted that since the petition which gave rise to this appeal was subsequently struck out on 28th day of February, 2012; there is no petition upon which reliefs sought in the appeal can validly be anchored. He finally urged the court to spurn the jurisdiction of embarking on an academic voyage.
In reply on this issue, interestingly are the submissions of the appellants at pages 2 and 4, paragraphs 1.5 and 1.11 in their reply brief to the 1st and 2nd respondents briefs. I shall reproduce the submissions later.
The appellants also submitted that the 2 Supreme Court decisions relied upon by the Tribunal to strike out the petition were rendered without jurisdiction and are therefore nullities and can be set aside. He referred to section 64 of the Evidence Act 2011. See also Sokoto State Govt. V. Kamdex Nig. Ltd (2007) All FWLR (Pt. 365) 469 at 489 (F - H). A.G. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552 at 566 - 567 (H - B); Ajao V. Alao (1986) 5 NWLR (Pt.45) 1 NMLR 62.
The appellants on this urged the court to discountenance the objection and determine the appeal on its merit.
Not in contention is the fact that the Tribunal on 28th February, 2012 leaning on the well established doctrine of stare decisis relied on the cases of Action Alliance V. INEC & Ors in Appeal No: SC. 23/2012 delivered on 14th February, 2012 (unreported) and the unreported consolidated Appeal Nos: SC. 1/2012 ANPP V. Alh. Mohammed Goni and 4 ors and SC. 2/2012 Alh. Kashism Shettima & Anr V. Alh. Mohammed Goni & 3 Ors delivered on 17th February, 2012 and struck out the appellants' petition.
Also not in dispute is the fact that the decision appealed against did not finally dispose of the rights of the parties in the petition in which it was made. Important therefore to this court as an appellate court is the consciousness of whether the petition from which this appeal has arisen is still pending and yet to be determined on its merit. See: Ahmed v. F.R.N (2009) 13 NWLR (Pt. 1159) 539. The position that no petition is pending before the Governorship Election Tribunal is not in controversy; the petition which gave rise to this interlocutory appeal having been struck out on 28th February, 2012 on ground of lack of jurisdiction pursuant to the above referred 2 decisions of the Supreme Court delivered on 14th and 17th February, 2012 respectively.
It follows that there is no subsisting issue between the parties to this appeal.
The law is firmly established that no Tribunal or Court of law is enjoined to embark on the determination of a matter, petition or appeal which has no practical value to the plaintiff, petitioner or appellant as the case may be. This is based on the fact that when the issue between the parties is spent or has lost its breathe, there remains nothing to be controverted nor determined. The appeal in the circumstance becomes academic and hypothetical. See Adeogun V. Fashogbon (2008) 17 NWLR (pt.1116) 149 at 180 paras. B - E; Agbakoba V. INEC (2008) 18 NWLR (Pt. 1119) 464 at 546 - 547 paras. H - C.
I will herein quote the instructive pronouncement of Uwaifo, J. S. C. in A.G. Federation V. ANPP (2004) LRCN 2671; wherein he stated thus:
"There cannot be said to be a live issue in a litigation if what is presented to the court for a decision, when decided, cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started. So that in case of an appeal, the appeal may become academic at the time it is due for hearing even though originally there was a living issue between the parties"In Prof. Steve Torkuma Ugba & Anor V. Gabriel Torwua Suswam, (Unreported) Appeal No: CA/MK/EPT/15/2011 delivered on 27th October, 2011, this court had followed the decision of Uwaifo, J. S. C. in A.G. Federation V. ANPP (supra) in a similar situation when it was called upon to grant reliefs based on non existent petition. The Court held that:
"Such orders will only be deceptive as it will have no legal worth. Neither this Court nor indeed any other Court has the jurisdiction to make such academic orders. Courts are not permitted to entertain academic appeals because the ensuing order will be a mirage having no decision of a trial court, a trial court or Parties to affect. In the instant appeal, the petition which the appellants seek the courts' order is presently inexistent having been dismissed. The petition being nonexistent, the decision of the court in this appeal will have no decision of a Tribunal, a Tribunal, or parties to affect. Both ground 3 and the petition are at the moment extinguished until the decision of the Supreme Court determines otherwise. Momentarily, the determination and any decision made by the court in this appeal will only have speculative or advisory value to the parties. This is not the function of the Court. The Court has no jurisdiction to do that. The Courts are established to determine live issues and this appeal is devoid of same. The live issues in the instant appeal is spent, any decision on it will vest no right on the successful party. See Odedo v INEC (2008) 17 NWLP (Pt. 1117) 554."
In the case of Ugba V. Suswam (supra), the reliefs sought by the appellants were:
a) "An order allowing this appeal and setting aside the decision of the Tribunal striking out Ground 3 of the petition and unidentified paragraphs of the petition.
b) An order restoring Ground 3 and the unidentified paragraphs struck out by the lower Tribunal
c) An order invoking the general powers of this Honourable Court to consider Ground 3 of the petition, the motion for judgment in respect thereof and to enter judgment against the 1st, 2nd and 3rd respondents for non-traverse and admission of Ground 3 of the petition on the pleadings and the documents exhibited to their motion for judgment.
d) An order directing that, the substantive petition be heard by another Tribunal differently constituted".
The court further said, per Onyemenam JCA
"Having carefully perused the reliefs sought by the appellants, I am of the opinion that it will be highly hypothetical, speculative and academic for this Court to make the orders as sought by them in this appeal. This view rests on the fact that; any decision on the appeal and resultant orders on the reliefs sought, will lead to making speculative orders in the light of the events which have altered the circumstances of the appeal . Also with the nature of the reliefs sought, the appraisal formed in my mind about the determination of this appeal is that it will lead to the grant of orders not known to the law. Upon the determination of this appeal and subsequent grant of the reliefs sought by the appellants, the court would have made orders of this nature:
(a) Setting aside the decision of the Tribunal striking out Ground 3 and unidentified paragraphs of a "nonexistent" petition.
(b) Restoring ground 3 and the unidentified paragraphs struck out by the Tribunal of a "nonexistent" petition.
(c) Invoking the general powers of this Court to consider Ground 3 of a "nonexistent" petition and to make consequential orders.
(d) Directing that, the substantive "nonexistent" petition be heard by another Tribunal."
(underlining for emphasis)
The facts of the instant appeal is on all fours with that of Ugba & Anor V. Suswam & Ors (supra). See also: Ojoje Edeche Reuben & Anor V. Ogbole Joshua & 2ors (Unreported) Appeal No: CA/MK/EPT/16/2011 delivered on 27th October, 2011.
There is abundant evidence from the record that there was a live issue when the appellants' petition was filed. However, owing to the change in circumstances before the determination of the petition particularly the 2 Supreme Court decisions referred to earlier in this judgment, there is no longer an issue left to be determined in this appeal which by legal events has turned hypothetical. See: A.G. Federation V. ANPP (2004) LRCN 2671.
The enthralling submissions of the appellants at pages 2 and 4 of their reply brief to the 1st and 2nd respondents' briefs are reproduced hereunder:
Para. 1.5 "It is further submitted that the 1st and 2nd respondents cannot validly argue that this appeal is academic because the petition was struck out on 28/2/2012. Firstly, the order referred to cannot obliterate the constitutional right of action conferred by S.285(5) of the 1999 constitution (as amended) nor remove the jurisdiction conferred on the trial Tribunal by S.285(2) to hear and determine petition as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State. See Eyisan V. Sanusi (1984) 4 SC 115, (1984) 1 SCNLR 353"
1.11 "A final word about the submission that the proceedings of the trial tribunal are null proceedings. The respondents are fully aware that it was the Supreme Court headed by no less a personage than the Chief Justice of Nigeria who remitted this petition to be heard on the merits on 14/11/2011. It is submitted that the said order is still in full force and subsisting. It has not been set aside by the Supreme Court which made it and it is still binding. See S.287(1) of the 1999 constitution (as amended). See also Rossek V. ACB (1993) 10 SCNJ 20 at 39, 40, 42 (Ogundare JSC)"
With due respect, the cases of Eyisan V. Sanusi (supra) and Rossek V. ACB (supra) are not applicable to the facts and circumstances of this appeal. However, what seems to bedazzle in the appellants' submissions referred to above is that by page 2 para. 1.5 the appellants are urging on the court to form the opinion that the order of the Supreme Court in Action Alliance V. INEC (supra) and ANPP v. Alh. Kashim Shettima & Anor and Alhaji Mohammed Goni & 2 Ors (supra) cannot remove the jurisdiction conferred on the Tribunal by section 285 (2) on the one hand; and on the other by para. 1.11 they proffered the argument that the decision of the same Supreme Court on 14th November 2011 confers jurisdiction on the Tribunal after the 180 days allowed it by section 285 (6) of the constitution. In other words, while a Supreme Court decision cannot divest a Tribunal of the jurisdiction vested on it by the Constitution, the same Supreme Court decision can confer jurisdiction on a Tribunal outside or in excess of the jurisdiction granted it by the constitution. Without saying more about the appellants' submissions referred to above,
I wish to state the elementary principle of law that only the statute or constitution creating a Tribunal or Court that can confer jurisdiction on it. I also emphasis that jurisdiction of court though may be extended, not by the Courts but by the legislature. See: Okulate V. Awosanya (2000) 1 SC 107; Messrs NV Scheep V. The MV's. Araz' (2000) 12 SC (Part 1) 164; Governor of Kwara State V. Gafar (1977) 7 NWLR (Pt.511) 51.
Court's order cannot confer jurisdiction on a court no matter how well couched the order might be. With the established principle that a court is conferred with jurisdiction either by the statute creating it or by the constitution, when there is an order of court for a hearing de novo or hearing on merit, such order cannot confer nor extend jurisdiction of a court if its jurisdiction has been extinct by the statute or constitution creating it.
An order for hearing de novo or hearing on its merit by a superior court can only be obeyed by a lower court which has the jurisdiction to obey same. In the instant where section 285 (6) allowed the Tribunal 180 days to hear and determine election matters, no order of a superior court for hearing de novo or hearing on its merit can extend the 180 days. See: Action Alliance V. INEC & Ors (supra): Appeal Nos: SC. 1/2012; ANPP V. Alh. Mohammed Goni and 4 ors and SC. 2/2012 ; Alh. Kashion Shettima & Anr V. Alh. Mohammed Goni & 3 Ors delivered on 17th February, 2012.
Granted and resolutely too that a lower court is bound by the order of a superior court, such order must and can only be obeyed where the lower court is clothed with jurisdiction. A lower court devoid of jurisdiction to carry out an order of a superior court will embark on a voyage of futility birthing nullity by obeying the so called order.
The Supreme Court having held that the courts have no vires to extend the 180 days assigned to the Tribunal by the constitution, no Tribunal can validly determine a matter outside the 180 days not even under the guise of obeying the order of a superior court to hear a matter de novo or on its merit. I am of the opinion that the appellants misconceived the import of the order of the Supreme Court made on 14th November, 2011 vis a vis section 285(6) of the constitution (as amended) moreso owing to the fact that the issue before and determined by the Supreme Court which led to the order is not similar to the issue in the instant appeal.
I therefore hold in consonant with the reasoning of the appellants' in their submission at para 1.5 that no order of court can confer jurisdiction on a Tribunal or court where the statute or constitution creating it has oust or made extinct its jurisdiction, neither can an order of court divest a court of its jurisdiction when the statute or constitution creating it has enshrined it with jurisdiction.
On the appellants' submission that the decisions of the Supreme court in Action Alliance v. INEC (supra); ANPP v. Alhjai Kashim Shettima & Anor and Alh. Mohammed Goni & 2 Ors (supra) were made without jurisdiction and as such nullities. It is my view that the 2 decisions remain the Supreme Court decisions until set aside by the Supreme Court. By the doctrine of stare decisis, this court and infact the Tribunal is bound by those decisions. I further hold the view that this court lacks the jurisdiction to pronounce on the competence of the Nigerian apex court as that will amount to judiciary suicide. May the day never come in the history of Nigerian Judiciary when this court or any other court for that matter will be lured into impugning on the competence of the Supreme Court of the land for any reason.
I hold that the 2 decisions of the Supreme Court referred to above must be sustained and relied upon in any lower court's decision until same are set aside.
From what I have said earlier, that the appeal by events and circumstances has become academic, I hold that this court lacks the jurisdiction to entertain same.
I agree with my learned brother, I. G. Mbaba JCA who has just delivered the lead judgment that the court cannot proceed to embark on a futile exercise by proceeding to determine the 2nd respondent's preliminary objection or the main appeal.
So for the above and the fuller reasons adduced in the lead judgment, I also uphold the 1st respondent's preliminary objection holding same to have merit. I also hereby strike out the appeal for being academic.
I abide by the order as to cost made in the lead judgment.
Oluwarotimi Akeredolu (SAN) with him:
S. A. Orkumah
S. A. Ngavan
M. I. Atagher
J. I. Abaagu
J. K. Mnda
J. T. Agor
A. I. Wombo
M. Z. Lorkyaa
T. A. R. Tombowua
M. A. Abaagu
M. T. Assoh
P. S. Abaagu For the Appelants
1st Respondent’s Counsel
D. D. Dodo (SAN) with him:
D. C. DeNwigwe (SAN)
Dr. A. A. Ijohor (SAN)
H. S. Tsumba Esq,
I. A. Nomishan, Esq.
J. S. T. Anchaver, Fsq.
S. A. Udaga, Esq.
A. Aligba, Esg.
Dr. A. T. Imbwaseh
S. M. A. Tor-Musa, Esq.
Audu Anuga, Esq.
T. T. Igba, Esq.
Terhemba Gbashima, Esq.
M. L. Ianna (Miss)
N. L. Ikyaagba (Mrs.)
F. T. Kusugh, Esq.
Chief Solo Akuma (SAN)
Chief John A. A. Ochoga
G. E. Ukaegbu
P. N. Jooji (Miss)
C. T. Mue
E. R. Terngu (Mrs)
Ocholi O. Okutepa
D. M. Tsevende
S. I. David
N. I. Aniekwe For the Respondents