Alhaji Kashim Shettima & Ors v. Alhaji Mohammed Goni & Ors

Appeal Nos. SC.332/2011 and SC.333/2011 were filed against the Ruling of the court of Appeal, Jos Division (“the court below” for short”) delivered on 19th September, 2011. Therein, the court below granted an interim” order in which it stayed the ruling and/or the proceedings of the Bornu State Governorship Election Tribunal. The issues formulated by the appellants in SC. 332/2011 are as follows:-

“1. Whether having regard to the mandatory provisions of Section 142 of the Electoral Act, 2010 (as amended) and paragraph 18 of the Election Tribunal and Court Practice Directions, 2011 the court below was right or possess the vires to have granted an interim order against the Tribunal from delivering its Ruling slated for the 20th day of September, 2011.

2. Whether the Court of Appeal was right to have granted the interim order the effect of which is to arrest the Ruling of the Tribunal especially when the appeal before it was not ripe for hearing.”

P.24

For ease of reference, it is apt to reproduce the provisions of section 142 of the Electoral Act, 2010 (as amended) and paragraph 18 of the Election Tribunal and court practice Direction, 2011 as follows:-

“Section 142 — ” Without prejudice to the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria 2 an election petition and an appeal arising therefrom under this Act shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or the court.”

Paragraph 18 – An interlocutory appeal shall not operate as a stay of proceedings, nor form a ground for a stay of proceedings before a Tribunal.”

A clear reading of the above relevant provisions of the law and Practice Direction depicts that they are made in mandatory terms. The provisions of the law are clear and unambiguous. They should be given their ordinary meaning. The court is bound to give effect to same. See: Nwanezie v. Idris (1993) NWLR (Pt 279) 1 at 14.

In both enactments, the word ‘shall’ is employed which points at mandatory and imperative realm.

See: Nnoye v. Anichie & Ors. (2005) 2 NWLR (Pt. 910) 263, Amaechi v. INEC (2007) 18 NWLR (Pt. 1065) 170. The word ‘shall’ connotes mandatory discharge of duty or obligation and when used or employed in a statute, that requirement must be met.

The word ‘shall’ when used connotes mandatory sense that drafters typically intend and that which courts typically uphold. (Blacks Law Dictionary, Nineth Edition, page 1499)

With the above in view, one cannot surmise the rationale which propelled the court below in making the order of 19th September, 2011 which put on hold the Ruling/proceedings of the Tribunal.

P.25

It was an error which militated against the expeditious trial before the Tribunal and same was not in tandem with the above stated enactments.

I come to the unalloyed conclusion that the appeal has merit and it is hereby allowed.

Appeal SC.333/2011 has the same background, facts and issues. It is meritorious and allowed; as well.

SC.352/2011

This appeal is against the decision of the court below delivered on 26th September, 2011 adjourning the appeal of the appellants before it sine die because of the entry of appeal Nos SC. 332/2011 and SC.333/2011 in this court.

The learned senior counsel to the 1st and 2nd Respondents filed a Notice of Preliminary objection on 20th October, 2011. The grounds for same are as follows:-

1. The Notice of Appeal to the court below as shown at pages 169-173 of the Record was filed on 12th August, 2011.

2. The Ruling that gave rise to the appeal was delivered on 10th August, 2011.

3. Section 285 (7) of the 1999 Constitution (as amended) prescribes 60 days for the disposal of an appeal from an Election Tribunal from the date of the decision.

4. The appeal to the court below became stale and spent by effluxion of time on 9th October, 2011.

5. There is no more pending appeal before the court below. By reason of the foregoing, this present appeal is an academic exercise and hypothetical.

6. There is no appeal pending before the court below on which an order of remittance could be made.

Learned Senior Counsel for the objectors formulated one issue for determination as follows:-

“Whether in view of the provisions of Section 285 (1) of the 1999 Constitution (as amended) and facts and circumstances of this case, this present appeal is not purely academic and hypothetical.”

P.26

It is not contested that the appeal before the court below has become spent as at 10th October, 2011.

Vide the provision of Section 285 (7) of the 1999 Constitution (as amended) which provides that an appeal from a decision of an Election Tribunal or court shall be heard and disposed of within 60 days from the date of the delivery of judgment of the Tribunal, the court below can no longer hear the appeal before it. And by extension, this court can not entertain same under any guise. The law employs the use of the word ‘shall’ which is mandatory. It excludes exercise of discretion. See: Ogualaji v. Attorney-General Rivers (1997) 6 NWLR (Pt. 508) 249.

It is not the function of a court of record to embark upon academic exercise. The appeal, having become spent, is not worthy of any further consideration. See: Nkwocha v. Govt of Anambra State (1984) 1 SCNLR 634.

In short, the preliminary objection is sustained.

The appeal is clearly incompetent and is hereby struck out. I agree with the views ably expressed by my learned brother, Onnoghen, JSC.

Each party should bear his/its costs.

P.27

I have had the privilege of reading the judgment of my brother Onnoghen, J.S.C. just delivered. I agree with him that Appeals No. SC.332/2011 and SC.333/2011 have merit and be allowed and No. SC.352/2011 be struck out. I make the following contribution by way of emphasis.

These consolidated appeals raise essentially common question of law, which is whether an order of stay of proceeding can be granted in Erection matters. I shall now consider the appeals serially in the following order.

P.27

SC.332/2011

The Appeal No.SC. 233/2011 is against the Ruling of the lower court delivered on 19/9/2011, staying the entirety of the proceedings of the Borno State Governorship Election Tribunal. The Ruling was fixed for delivery on 20/9/2011.

The relevant facts giving rise to this appeal are exposed as follows:

The 1st, 2nd and 3rd Respondents who were the petitioners in the trial Tribunal filed petition No. BO/EPT/GOV/1/2011 challenging the declaration of the Appellants who were the 1st and 2nd Respondents as duly elected Governor and Deputy Governor of Borno state respectively. The said petitioner in their bid to comply with the provision of paragraph 18(1) of the Schedule to the Electoral Act 2010 (as amended), consequently filed a motion ex-parte pursuant to paragraph 18(1) and (2) of the 1st schedule to the Electoral Act and Order 26 Rule 8 of the Federal High court, (civil procedure) Rules 2009, applying to the Tribunal for the issuance of pre-Hearing Notice and pre-Hearing Information sheets. On 2/8/2011, the exparte Motion was moved by Learned Senior Counsel to the 1st, 2nd and 3rd Respondents. It is instructive to state that at the close of arguments of the learned senior counsel to the 1st, 2nd and 3rd Respondents, the Tribunal called his attention to the provisions of paragraph 47(2) of the 1st schedule to the Electoral Act 2010 and was asked to address the Tribunal on these provisions. The Learned senior counsel in his address submitted that paragraph 47(2) is to be read in conjunction with paragraph 18(2)(b) of the 1st schedule to the Electoral Act. He further submitted that paragraph 18(2) of the 1st schedule to the Electoral Act, does not give room to the Trial Tribunal to exercise discretion in the issuing of Pre-Hearing Notice and Pre-Hearing Information sheet Forms TF 007 and TF 008 because once the application is made, the tribunal shall issue.

P.28

He also submitted that the application was properly filed but in the event that the Tribunal is of the view that the application ought to have been made on Notice, the Tribunal can direct the Respondents to the petition to be served with the application for their reaction

On 10/8/2011, the Tribunal in a well considered ruling struck out the Motion Ex-parte of the 1st, 2nd and 3rd Respondents for failure to comply with the mandatory provisions of paragraph 47(2) of the 1st schedule. Aggrieved with the Ruling, the 1st, 2nd and 3rd Respondents filed Notice of Appeal. They also filed a Motion on Notice for extension of time within which to apply for pre-Hearing Notice.

The Appellants, 4th and 5th Respondents respectively reacted to the said motion on Notice by filing counter-affidavits and written addresses. The 1st, 2nd and 3rd Respondents also reacted to these counter-Affidavits and written addresses on point of law.

Furthermore, the Appealants herein as well as the 4th.and 5th Respondents after the ruling of the Tribunal, fifed different applications praying the Tribunal to deem the petition as abandoned and dismiss same for failure of the 1st, 2nd and 3rd Respondents herein to file their application for Pre-Hearing Notice in accordance with paragraph 18(1) of the 1st Schedule to the Election act. The 1st, 2nd and 3rd Respondents reacted to the various applications by filing counter-affidavits and written addresses.

On 2/8/2011 the Tribunal took the arguments of all counsel in respect of all the applications.

On 19/9/2011 the Learned senior counsel for the Appellants informed the court of Appeal that there was a pending ruling to dismiss the petition and urged the court of Appeal to invoke s.15 of the court of Appeal Act 2004 to preserve its jurisdiction.

P.29

The Learned Senior Counsel was however silent on the fact that there was also a pending Ruling on the 1st, 2nd and 3rd Respondents application for extension of time to apply for pre-Hearing Notice and issuance of Forms TF 007 and TF 008.

However, the learned counsel for the Appellants as well as the 4th and 5th Respondents respectively opposed the application of the 1st, 2nd and 3rd Respondent’s counsel for the arrest or stay of the Rulings of the trial Tribunal.

The court of Appeal after listening to arguments of counsel made interim order staying the delivery of the pending ruling of the trial Tribunal stated for 20/9/2011. Dissatisfied, with the ruling of the court of Appeal, the Appellants fifed a Notice of Appeal on the 20/9/2011. Dissatisfied, with the ruling of the Court of Appeal, the Appellants filed a Notice of Appeal on the 29/9/2011. On 4/9/2011, the Appellants filed a Motion to amend the original Notice and grounds of Appeal and also filed an Amended Notice of Appeal. Their Brief of Argument is predicated on the Amended Notice of Appeal.

Two issues were distilled by the Appellants for the determination of the Appeal.

“WHETHER HAVING REGARD TO THE MANDATORY PROVISION OF SECTION 142 OF THE ELECTORIAL ACT 2010 (AS AMENDED) AND PARAGRAPH 18 OF THE ELECTION TRIBUNAL AND PRACTICE DIRECTIONS 2011, THE COURT BELOW WAS RIGHT OR POSSESS THE VIRES TO HAVE GRANTED AN INTERIM ORDER AGAINST TRIBUNAL FROM DELIVERING ITS RULING SLATED FOR THE 20TH DAY OF SEPTEMBER, 2011.

2. WHETHER THE COURT OF APPEAL WAS RIGHT TO HAVE GRANTED THE INTERIM ORDER THE EFFECT OF WHICH IS TO ARREST THE RULING OF THE TRIBUNAL SPECIALLY WHEN THE APPEAL BEFORE IT WAS NOT RIPE FOR HEARING.”

P.30

Appellants Reply Brief is necessitated by the brief of 1st – 3rd Respondents.

On their part the 1st-3rd Respondents submitted a sole issue for determination of the Appeal thus:-

“Whether Paragraph 18 of the Election Tribunal and Court practice Directions 2011 supercedes the provisions of sections 6(6)(a) 246(1) (b) (i) (ii) (iii), (2) and (3) of the 1999 constitution of the Federal Republic of Nigeria and section 15 of the court of Appeal Act. 2004.”

The 4th Respondent having adopted the background facts to this Appeal as stated by the Appellants in their Brief, the two issues were equally adopted.

The 5th Respondent did not file any brief. It has rather decided to be neutral abiding by the result of the appeal as determined by this Court.

This Appeal came up for hearing on 24/10/2011. Appellants’ Learned Senior Counsel has submitted that the Justices of the Court of Appeal had acted in excess of jurisdiction and contrary to the clear and unambiguous provisions by section 142 of the Electoral Act 2010 (as amended) and paragraph 18 of the Election Tribunal and Court practice Directions 2010. That those provisions should be given their ordinary meaning. Reliance was placed on the case of NWANEZIE v IDRIS (1993) 1 NWLR (pt.279) 1 at 14. It submitted that by a community reading of the two provisions, the procedure of the trial Tribunal cannot be stalled, stultified or delayed under any circumstance as it must be expeditiously determined, particularly as provided in paragraph 18 of the Practice Directions.

It is further submitted that the word “shall” employed the provisions herein by the law maker, connotes mandatoriness. Learned senior counsel placed reliance on cases of NNOYE v ANICHTE & ORS (2005) 2 NWLR (PT.910) AND ANICHIE & ORS. (2005) 2 NWLR (pt 910) 263 AND AMECHI V. INEC (2007) 18 NWLR (PT.1065).

P.31

Respondents having identified their Brief of Argument, deemed filed on 24/10/2011, argued extensively on the provisions of paragraph 18 of the Election Tribunal court practice Directions 2011, and its effect on the provisions of sections 6(6)(a), 246 (1)(b) (i) (ii) (2) and (3) of the 1999 constitution of the Federal Republic of Nigeria and section 15 of the court of Appeal 2004.

Having carefully adumbrated what the Appellants appeal seeks to achieve in the circumstance, Learned Senior Counsel has urged this court to reject the entire argument of the Appellants in their brief of argument as erroneous and not supported by any principle of law; moreso that the course charted by the Appellants would set a bad precedent in our jurisprudence and indeed remove completely the inherent powers of the lower court. Having set out the provisions of section 246(1)(b)(1)(ii)(iii)(2) and (3)(supra), Learned counsel submitted that the jurisdiction of the lower court is constitutionally provided for and sacrosanct hereat. That the power of the lower court to make orders whether it is for stay of proceedings, execution is one that would affect proceedings pending in a lower court(sic) is an inherent power bestowed on the court below by virtue of the provisions of S.6 (6)(a) of the constitution and s.15 of the Appeal court Act 2004; refers to LASUN v AWOYEMI (2009) 16 NWLR (pt.1108) s13 at 525; OZUJIMI V. E.S.H.A. (2009) 11 NWLR (pt.1153) 464 at 487.

As to the legal effect where paragraph 18 of the practice Directions is shown to be inconsistent with section 246 of the constitution, learned counsel has submitted that the former would be void to the extent of its inconsistency. Reliance was placed on the cases of BUHARI v. INEC (2008) 19 NWLR (pt.1120) 246 at 393, AREGBESOLA V. OYINLOLA (2009) 14 NWLR (pt.1162) 429.

P.32

It is finally submitted that the powers of the Court of Appeal to invoke section 15 of the court of Appeal Act and make orders that could protect the RES (which is petition at the Tribunal in this case) is not inhibited by the purported ripeness or otherwise of an Appeal. That the court would invoke that power wherever the justice of the case requires. This Court is therefore urged to discountenance the Appellants’ argument and dismiss this appeal.

While the Learned senior counsel for the 4th Respondent supported the Appellants position and has urged us to allow the appeal, the learned senior counsel for the 5th Respondent has decided, to remain neutral in the circumstance of this case.

The Appellants formulated two issues for determination. The two are apt in the circumstance of this case. These could be conveniently taken together. I intend to do so.

The pith of the Appeal brought by the Appellants herein relates to the question whether or not having regard to the mandatory provisions of section 142 of the Electoral Act 2010 (as amended) and paragraph 18 of the Election Tribunal and Court Practice Directions 2011, the court of Appeal as right to have granted an interim order against the Tribunal from delivering its ruling stated for the 20/9/2011.

Section 142 of the Electoral Act 2010 provides:

“Without prejudice to the provisions of section 294(1) of the Constitution of the Federal Republic of Nigeria an election petition and an appeal arising therefrom under this Act shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or the Court.”

Paragraph 18 of the practice Directions reads thus:

“An interlocutory Appeal shall not operate as a stay of proceedings, nor form a ground for a stay of proceedings before a Tribunal.”

P.33

By a community reading of the above two provisions, the proceedings of the trial Tribunal cannot be stalled, stultified delayed under any guise or circumstance as it must be expeditiously determined. Paragraph 18 of the court practice Direction is specific on this point to the effect that an interlocutory appeal cannot by any reason, under any circumstance operate as a stay of proceedings nor form a ground for stay of the proceedings of the trial Tribunal. The two provisions of the law are clear and unambiguous. Where the words of a statute are clear and unambiguousa court of law can only expound it and give effect to those words in their ordinary and natural meaning see OGBUNYIYA & ORS v. OKUDO & ORS (1979) ANLR (Reprint) 3.05 AT 118. NWANEZTE v. IDRIS (1993) NWLR (pt.279) 1 at 14; PDP v. INEC (1999) 11 NWLR (pt.626) 200 at 276-278, IFEZUE v MBADUGHA (1984) 5 SC 79 at 100 and OKE V. ATOLOYE (1985) 2 NWLR (Pt.9) 578 at 550-591.

In summary, what all these authorities are saying is that if the words of the statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in the natural clear and ordinary sense. The words themselves alone and in such a case best declare the intention of the law giver. Words are not to be construed contrary to their meaning as embracing or excluding cases merely because no good reason appears why they should not be embraced, or excluded. The duty of the court is to expound the law as it stands. The hardship of this type of approach may be obvious but the language used by the law giver in the instant case is susceptible of no other interpretation.

The application of the provisions of section 142 and paragraph 18 of the Electoral Act (supra) and paragraph 18 of the Court Practice Direction (supra) are mandatory as the law givers intentionally couched them in mandatory language.

P.34

With the use of the word “shall” (repeatedly) in the said provisions the intention of the legislation is that the application of the provisions is MANDATORY. In other words the courts faced with such provisions have no discretion in the matter and must give effect to the provisions by applying them. Section 142 of the Electoral Act set out above the provisions that an election petition and appeal arising therefrom under the act ‘SHALL’ be given “ACCELERATED” hearing and “SHALL” have precedence over all other cases or matter before the Tribunal or Court. In the same vein, the word ‘SHALL” was used by the law giver to drive the mandatoriness of the provisions of paragraph 18 of the Court Practice Directions when it emphatically states that interlocutory appeal shall not operate as a stay of proceedings nor form the ground for an application for a stay of proceedings before the Tribunal. The word shall connotes mandatory discharge of duty or obligation. It conjures mandatoriness the condition of which must be met and satisfied see NNONYE v. ANICHIE & ORS. (supra); AMECHI v. INEC (supra). The mandatoriness of the provisions of section 142 of the Electoral Act (supra) and paragraph 18 of the practice Directions (supra), cannot be over emphasized, given the fact that by the nature of an election petition being Sui Generis, time is of essence. Nothing is expected or permitted to clog the wheel of the smooth Proceeding of the Election Tribunal in the hearing of the petition before it.

From whatever angle it is viewed the decision of the court of Appeal in effect, halting, stalling or delaying proceeding of the trial Tribunal from proceeding to deliver its rulings slated for 20/9/2011 is to my mind wrong. It is made in clear and gross violation of the mandatory provisions of section 142 of the Electoral Act and paragraph 18 of the practice Direction (supra) respectively.

I have carefully set out the facts and circumstance leading to this Appeal. If I may recapitulate same.

P.35

From the record the Appeal before the lower court was originally slated for 21/9/2011 for mention and there were various applications before the court below filed by the Appellants. The Appeal before the court of Appeal was on the ruling of the trial Tribunal striking out the exparte motion filed by the petitioners before it. The ruling fixed for 20/9/2011 were on the application of the petitioners for enlargement of time to file pre-trial Notice out of time and the application of the Respondents for the dismissal of the petition. Looking at the two Rulings pending before the trial Tribunal they do not relate to the appeal pending before the court of Appeal. The lower court, created this quagmire, the parties now found themselves. The court which had earlier fixed the appeal for 21/9/2011 for hearing, brought it forward to 19/9/2011 after the Tribunal had adjourned its rulings till 20/9/2011. The court then proceeded to make an order to stay the delivery of the said ruling fixed for 20/9/2011.

Furthermore the record of proceedings at page 402 has shown that the 1st and 2nd Respondents, at the court below and the Appellants herein, opposed the application of the petitioner, the Respondents herein in this appeal, for the stay of delivery of the Ruling of the Tribunal. This Court has deprecated the practice, whereby the court of Appeal having become aware of the decision of this Court, would flagrantly refuse to follow it. The attention of the court below having been drawn to the decision of this court in NEWSWATCH COMMUNICATION v ATTAH (2006) 12 NWLR (pt 993) 144 the court below ought to have followed it, lf it had the court below would have been correctly guided by the admonition of this Court in that case that:

“…The application to arrest the judgment about to be delivered was in fact a cynical attempt to taunt the trial court…”

P.36

The doctrine of judicial precedent does not involve an exercise of judicial discretion at all. It is mandatory: AMAECHI v INEC (supra) and DINGYADI V. INEC (2011) 9 NNSCLR 1 at (p.40). The impression given by the lower court that the appeal before it was ripe for hearing was erroneous. The true position as borne out by the printed record of proceedings was that the appeal before the lower court was far from being ripe for hearing as there were several pending interlocutory applications before the lower court as at 19/9/2011 when the appeal came up before it. Quite specifically the following applications:-

(a) The motion on Notice dated 9/9/2011 and filed the same date for enlargement of time within which the 1st and 2nd Respondents brief of argument would be filed.

(b) The Motion on Notice dated and filed on 17/9/2011 for the 1st and 2nd Respondents to contend that the decision of the trial Tribunal of 10/8/2011 be affirmed on other grounds, was still pending before the lower court and had not been taken (See pp. 900-306 of the record.)

(c) The 4th Respondent (INEC) at the Court below also filed a motion On Notice dated 15/9/2011. It had not been moved (see pp. 307-310 of the record.)

Where the lower court shuts it eyes to obvious facts like the existence of pending applications before it which rendered the appeal of the 1st and 2nd Respondent not ripe for hearing before the lower court, contrary to its view or failed to take into account necessary factors like the provision of the law enjoining expeditious hearing or generally deciding in a way without just basis and thereby to tilt the scale of justice in a particular party’s favour, then its decision is regarded as perverse and occasioning justice.

It is instructive to note once more that the appeal before the lower court was in respect of the ruling of the trial Tribunal striking out the Motion Ex-parte filed by the 1st, 2nd and 3rd petitioners to apply for pre-Hearing Notice and issuance of forms TF 007 and TF 008.

P.37

It is in respect of the ruling that all parties in this appeal filed their respective briefs of Argument and other applications before the lower court. It is noted that it was during the proceedings in the said appeal that the Learned Senior Counsel for 1st, 2nd and 3rd Respondents as Appellants made oral application under section 15 of the court of Appeal act to the lower court to preserve its jurisdiction arresting the ruling of the trial Tribunal fixed for 20/9/2011.

It must be stated also that the pending rulings of the Tribunal which were stayed by the lower court are in respect of the applications filed by the 1st, 2nd and 3rd petitions, for extension of time to apply for issuance of Forms TF 007 and TF 008 after the striking out of the motion Ex-parte filed pursuant to paragraph 18(1) of the 1st schedule to the Electoral Act and the applications of the Appellants and 4th and 5th Respondents to deem the petition as abandoned petition and dismiss same. Notwithstanding the opposition of counsel to the Appellants, 4th and 5th Respondents, the lower court granted the prayer of the 1st, 2nd, and 3rd Respondent and stayed the pending Rulings. In the circumstance the lower court, was wrong to purport to rely on the provision of S.15 of the court of Appeal Act to stay the Ruling of the trial Tribunal as done in its Ruling that gave rise to this appeal. There is nothing on the record of Appeal to show that the trial Tribunal had the jurisdiction to stay its rulings and failed to do so after application from the 1st, 2nd and 3rd Respondents that warranted the lower court to make its order of 19/9/2011.

Furthermore, I agree with the Learned Senior Counsel for the Appellants herein, that the lower court pre-empted the decision of the trial Tribunal without basis when it held that if the ruling is allowed to proceed and the petition is dismissed, this would foist a state of helplessness on the Lower Court wherein the appeal will be rendered nugatory.

P.38

It was not certain that the application of the 1st – 3rd Respondents would be refused.

The court below should not have made the interim order directing that the Ruling already fixed for delivery be stayed to abide the hearing and determination of the appeal which is not ripe for hearing.

SC.333/2011:

This appeal raises common question of law which is whether an order of stay of proceedings can be granted in Election matters. The facts and circumstances are similar to Appeal No. SC.332/2011.

This appeal is against the decision of the court of Appeal Jos Division made on 19/9/2011, staying proceedings of the trial Tribunal. These facts are relevant to this appeal. Dissatisfied with the declaration of the 4th and 5th Respondents as the winners of the Borno State Gubernatorial Election by the 3rd Respondent herein, the, 1st and 2nd Respondents filed on Election petition in the Tribunal in Borno challenging the said return of the 4th and 5th Respondents. At the close of pleadings, on 25/6/2011, and on 29/6/2011 1st and 2nd Respondents applied by means of Motion Ex-parte for the issuance of pre-Hearing Notice Information sheet. After hearing arguments on the motion ex-parte, the Tribunal struck it out for failure to comply with paragraph 47(2) of the 1st schedule to the Electoral Act, 2010. At the time the Tribunal held that the 1st and 2nd Respondents motion Ex-parte was incompetent, the period prescribed for applying for the issuance of pre-Hearing Notice in paragraph 18(1) of the 1st schedule had expired. The Tribunal then struck out the 1st and 2nd Respondents’ motion Ex-parte.

P.39

On 11/8/2011 the 1st and 2nd Respondents filed a motion for extension of time to apply for the issuance of pre-Hearing Notice on 11/8/2011at the Tribunal. On the same day the Appellant filed a, Motion on Notice to dismiss the petition. On 12/8/2011 the 4th and 5th Respondents also applied that the 1st and 5th Respondents said petition be dismissed.

While the 1st and 2nd Respondents’ application for extension of time was still pending at the tribunal; the 1st and 2nd Respondents on 12/8/2011 fired a Notice of Appeal against the decision of the trial Tribunal striking out their Motion ex-parte for the issuance of pre-Hearing Notice. The Appeal of the 1st and 2nd Respondents at the court below was as interlocutory appeal against an interlocutory decision of the trial Tribunal.

It is instructive to note that during the same period, Respondent together with other persons instituted an action at the Federal High court, Abuja. They had joined the Borno State Election Tribunal and its chairman as Defendants in the suit, challenging the validity of the Tribunals sitting in Abuja. This resulted on adjourning the matter sine-die until the issue of venue was resolved. It was when the suit at the Federal High court was withdrawn that the trial Tribunal recommenced its sitting and at that time a period of about 30 days had been lost as a result of the 2nd Respondents suit.

On 13/9/2011 when the Tribunal commenced sitting to hear the pending applications, counsel to the 1st and 2nd Respondents drew the Tribunal’s attention to their interlocutory appeal and that the Tribunal should await the outcome of their said interlocutory appeal fixed for hearing on 21/9/2011. It is then the 3rd, 4th and 5th Respondents opposed the said application on the ground that being an interlocutory appeal, no stay of proceedings could be granted, pursuant to section 18 of the Election Tribunal and court practice Direction 2011, the Tribunal refused the 1st and 2nd Respondents application, and went ahead to hear the 1st and 2nd Respondent’s application for extension of time and the application of the Appellant, 3rd, 4th and 5th for the dismissal of the petition before it and adjourned the ruling to 20/9/2011.

P.40

But on Friday 16.9.2011, the Appellant received a hearing notice from the court of Appeal to the effect that the 1st and 2nd Respondents’ appeal which was coming up for 21/9/2011 has now been fixed for 19/9/2011. It is instructive that that appeal could not have been ready and ripe for hearing in view of the fact that there were several pending applications before the lower court in Jos.

On the 19/9/2011 the lower Tribunal was informed that the appeal was ripe for hearing and that since the appeal could not be heard because it was late on the day the court should grant an interim order against the trial Tribunal from going ahead to deliver its ruling to dismiss the petition which was fixed for 20/9/2011, 4th and 5th Respondent’s counsel informed the lower court that the appeal was not ripe for hearing as they had two pending applications. He equally opposed the application for interim order. The lower court was also informed that the 1st and 2nd Respondents also have an application for extension of time to apply for issuance of pre-Hearing Notice and Pre-Hearing Information sheet before the tribunal fixed for 20/9/2011.

Notwithstanding the opposition of the counsel for the Appellant herein and 3rd, 4th and 5th Respondents the court below proceeded to grant an interim order. It held:

“Accordingly I hereby enter an interim order, which sole purpose is to preserve the said appeal coming up before this court directing that the said ruling of the tribunal should abide the hearing of the appeal.”

(see page 404 of the Record). As a result of the order of the court below, the Tribunal adjourned sine die.

The Appellant herein, was not satisfied with this order, it now appealed against same in a Notice of appeal containing sole ground of appeal.

P.41

The issue raised by the Appeal Appellant herein is as follows:-

“Whether the Learned Justices of the court of Appeal have the jurisdiction to halt/stay proceedings of the Borno State Governorship Election Tribunal in BO/SPT/GOV/1/17 having regard to the provision of section 18 of the Election Tribunal and Court Practice Directions 2011- and section 285(5)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).”

The Appellant herein also filed a Reply Brief on 21/10/2011 to 1st and 2nd Respondents’ Brief of Argument.

On 24/10/2011 when this appeal came up for hearing Learned senior counsel for the Appellant, DR. ALEX A. IZINYON SAN identified his Brief of Argument and Reply Brief and urged us to allow the appeal.

Prince Lateef O. Fagbemi SAN, Learned Senior Counsel for the 1st and 2nd Respondents having identified his Brief, of Argument, has urged this court to dismiss this appeal with substantial costs.

Learned senior counsel for the 3rd Respondent Paul Erokoro SAN did not submit any Brief for the consideration of this Appeal. He contended that the 3rd respondent is neutral in this matter.

However, Learned senior counsel for the 4th and 5th Respondents, Yusuf O. ALI SAN, identified his brief dated and filed on 21/to/2011. Having adopted the Brief and raised arguments of the Appellant on its sole issue for determination of the appeal, he then made a brief submission bordered on the order of the court below made on 19/9/2011. He submitted that the provisions of section 142 of the Electoral Act, 2010 and paragraph 18 of the Erection Tribunal and court Practice Directions 2011 are mandatory and imperative from their clear language and intention of the law giver. Reliance was placed on the case of NNOYE v ANICHIE & ORS (2005) 2 NWLR (pt.910) 263.

P.42

As for the potency of the practice Direction and, their place in our jurisprudence he placed reliance on the case of OKEREKE v. YAR’ADUA (2008) 12 NWLR (pt.1100) 95 at 118. It is finally urged that this appeal be allowed.

I have dealt extensively with all the issues raised in this appeal in Appeal No. SC.232/2011 (supra). They are similar. Hence all the learned counsel in this appeal sought for the consolidation of the two appeals. The Appeals raised common question of law which is whether an order of stay of proceeding can be granted in Election Matters. However having taken great pain reading through the 1st and 2nd Respondents’ brief and the Appellants’ Reply Brief, there is need to put the Records straight in this appeal before us. Our avowed decisions in this appeal are borne out of material facts contained in the Record and not outside it. The 1st and 2nd Respondents’ statement of facts contained in paragraph 12 of their Brief is that the Appeal was fixed for hearing on 19/9/2011 in the court below. From the record on page 390 and at the back cover it would appear the copy of Hearing Notice served on the Appellant herein did indicate the date fixed for hearing, the date was 19/9/2011. The Learned Senior Counsel actually prayed and urged the court that since the appeal could not be heard because it was late in the day, the court below should grant interim order against the trial Tribunal. It is this order the Appellant is complaining about. I agree with the Appellant that there were pending applications in the appeal of 1st and 2nd Respondents in the Court below and for that alone the appeal could not be said to be ripe for hearing.

P.43

It is the further contention of the 1st and 2nd Respondents that the Appellant, and 3rd and 4th and 5th Respondents counsel did not take step to move their applications. I am of the opinion that the Appellant and the 3rd and 4th and 5th Respondents took steps to move their applications by informing the court below of the existence of the said applications. On page 402 of the record, 4th and 5th Respondents’ counsel Abdul Rahaman K Adeyi Esq. informed the court below that they have two applications pending in the Court below. The Court below discountenanced this plea and proceeded to give an order staying the proceedings of the Election Tribunal.

I have considered section 246(1) (b) (i) (ii) and (iii) (2) and (3) of the 1999 constitution relied upon by the 1st and 2nd Respondents. These section only states right to appeal to the Court of Appeal from the decision of an Election Tribunal. I think the Appellant’s appeal to this Court is not challenging the exercise of the right of appeal by the 1st and 2nd Respondents to the Court below from the Election Tribunal. Far from it. In the above section there is no where it is stated that the Court of Appeal can stay the proceedings of an Election Tribunal. Section 6 (6) (a) of the constitution relied upon by the 1st and 2nd Respondents relates to the inherent jurisdiction of the Court. It cannot be used to render ineffective the provisions of an existing law.

Section 285 (5) (b) of the 1999 constitution (As Amended) and paragraph 18 of the Court practice Directions, 2011 are special provisions relating to Election matters both do not countenance the grant of stay of proceedings in election matters as granting same will impede the expeditious hearing of Election matters being sui generis.

Section 15 of the court of Appeal Act, 2004 is not a law of general application or a blanket provision of law that can be used by the Court of Appeal freely unfettered.

P.44

It contains several parts and reliefs which the Court can grant. The relevant part of the section is to make an interim order or grant an injunction which the court below is authorized to make”. The exercise of its power is contigent upon where the Court below is authorized to make or grant an interim order or injunction. In the case at hand paragraph 18 of the Court practice Directions the words “nor form a ground for a stay of proceedings before a Tribunal” is to the effect that even where the interlocutory appeal relates to jurisdiction stay will not be granted.

SC.352/2011.

The Appellants herein had lodged an appeal at the court of Appeal, sitting at Jos against the decision of the trial Tribunal in Borno delivered on 10/8/2010. 2011- striking out their motion Ex-parte by which they sought to issue pre-hearing Notices on the ground that same was incompetent and offended paragraph 47 (2) of the 1st schedule to the Electoral, 2010 (as amended).

It is instructive to state here that on the 19/9/2011, the Appellants applied orally to the Court below for an order staying the proceedings of the said trial Tribunal pending the determination of the Appellant’s appeal before the Court below. The Court granted the application and stayed the proceedings of the Election Petition Tribunal pending the determination of the Appeal before it. Aggrieved the 1st and 2nd Respondents herein filed Appeal No. SC.332/2011 and the 3rd Respondent filed theirs in Appeal No. SC.333/2011. Both appeal have been consolidated and heard. (I have allowed both appeals in the foregoing judgments considered separately). The 3rd Respondent filed a motion on Notice at the court of Appeal by which it sought to stay proceedings of the court. However upon the transmission of the record to this court, the 1st and 2nd Respondents filed a motion for stay of proceedings before this Court and served all the parties.

P.45

On 26/9/2011, when this matter came up before the court of Appeal the 3rd Respondent through its Counsel informed the Court of the fact of the existence of Appeal No.SC.333.2011 before this Court and the fact that the record had been entered in this court. In its Ruling delivered on 26/9/2011, the Court of Appeal made an order staying proceedings in Appeal No.CA/J/EPT/Gov./151/2011 before it pending the determination of the Appeals No.SC.332/2011 and SC.333/2011 before this Court. Being dissatisfied with that decisions, the Appellants herein appealed to this court on a numbers of grounds. The Appellants distilled sole issue from these grounds thus:

“Whether the refusal by the Learned Justices of the court below to hear this Appeal No: CA/J/EPT/GOV./151/2011 on the grounds that Appeal No. SC.332/2011 and SC.333/2011 have been entered in the supreme court is not in breach of the Appellants’ right to fair hearing and hereby…..law

The 1st and 2nd Respondents in their Brief of argument raised an issue for determination thus:

“Whether the Court below was not right to have adjourned Appeal No: CA/J/EPT/GOV./151/2011 sine die having regard to the entry of Appeal Nos. SC.332/2011 and SC.333/2011 at the Supreme court with the motions for stay of proceedings of the court below before the supreme court and having regard to the principle of stare decisis and judicial precedent the facts and general circumstances of this case.”

In its brief of argument the 3rd Respondent raised an issue, similar to that of the 1st and 2nd Respondents as follows:

“Whether the Court below had the jurisdiction to stay its own proceedings in the light of Appeal No.SC.332/2011 and SC.333/2011, before this Court having been entered”.

P.46

The 4th Respondent brief was filed on 14/10/2011. The issued raised is:

“Whether this Appeal has not been rendered nugatory and therefore an academic exercise taking into consideration the provisions of section 285 (5) (c) of the constitution of the Federal Republic of Nigeria 1999 (as amended)”.

The 1st and 2nd and 3rd Respondents respectively filed Notice of preliminary objection contending that since the Ruling that gave rise to this appeal was delivered on 10/8/2011 and since section 285 (7) of the 1999 constitution (as amended) prescribes 60 days for the disposal of an appeal from an Election Tribunal from the date of the decision, the Appeal to the court below became stale and spent by effluxion of time on 9th October, 2011.

While the 1st and 2nd Respondents filed and argued their Notice of Preliminary objection separately, the 3rd Respondent incorporated same in their brief of argument.

The Appellants reacted by replying the 1st and 2nd and 3rd and 4th Respondents. Appellants, Reply Briefs were filed 20/10/2010.

It is the argument of the Learned Counsel for the Respondents that the Appeal No: CA/J/EPT/GOV./151/2011 has lapsed and hearing it would amount to flogging a dead horse. More so there are pending applications in the court below.

Learned Senior Counsel for the appellants has submitted that Appeal No.CA/J/EPT/Gov/151/2011 which is an interlocutory appeal is not statute -barred and is still very much alive and potent. That in interpreting section 285, of the 1999 constitution (as amended), this Court is expected to give the section a broad and literal interpretation so as to not to defeat the intent and purpose of the drafters of the constitution in accordance with the principle as laid down in NAFIU RABIU v. KANO STATE (1980) 8-11 SC.130.

P.47

It is submitted that in interpreting this section 6(6) (b) of the 1999 constitution which is to be read together with sections 318 and 285 of the constitution (Supra).

Section 285(7) of the 1999 Constitution (as Amended) provides as follows:-

“An appeal from a decision of an Election Tribunal or Court of Appeal in an election matter shall be disposed of within 60 days from the date of delivery of judgment of the Tribunal or Court of Appeal.

This is the clear and unambiguous provision of the Constitution. The ruling that gave rise to this appeal was delivered on 10/8/2011. The Notice of appeal to the court below was filed on 12/8/2011 by simple arithmetical computation 60 days from 10/8/2011 ended on 9/10/2011. By the Appellants’ own showing the appeal No.CA/J/EPT/GOV./151/2011 on 9/10/2011.

From 10/10/2011 there was no more an appeal before the court for which the Court could entertain. In a plethora of decisions of this Court, it has been held that where the legislature uses the word “shall”, especially in the Constitutional provision, this excludes any exercise of discretion: see OGUALAJI v. AG RIVERS (1997) 6 NWLR (pt.508) 209 OKENWA v. MILITARY GOVERNOR IMO STATE (1997) 6 NWLR (pt.507). I shall not in the circumstance embark on a pure academic exercise that leads to nowhere. This appeal is now moot. It is for this reason and for the reasons set out in the lead judgment of my Learned Brother ONNOGHEN JSC, I also allow appeals No.SC.332/2011, SC.333/2011, and 352/2011. The Appeal No.SC 352/2011 is struck out as incompetent. I too make no order as to costs.

P.48

I read in draft the judgments just delivered by my learned brother, Onnoghen, JSC, and I entirely agree with the reasoning and conclusions reached in each of the three appeals as consolidated.

P.49

In Petition No BO/EPT/GOV/1/2011, the 1st-3rd Respondents challenged the return of 1st and 2nd Appellants as the Governor and Deputy Governor, respectively, in the April 2011 general election in Borno State before the Governorship Election petition Tribunal constituted for the State.

The 1st to 3rd Respondents, as Petitioners before the Election petition Tribunal in BO/EPT/GOV/1/2011 filed a motion ex parte pursuant to paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 (as amended) and order 26 Rule 8 of the Federal High court (civil Procedure) Rule 2009 for the Tribunal to issue pre-hearing Notice and pre-hearing Information sheets. The motion was supported by a 10-paragraph affidavit and a written address was filed with it. Having heard arguments of the Appellants’ counsel the Tribunal, on 10/8/2011 struck out the ex parte application for alleged non-compliance with paragraph 47(2) of the 1st Schedule to the Electoral Act, 2010 (as amended). The Tribunal also refused to order service of the ex parte motion on the Respondents to the Petition.

Meanwhile, the 1st to 3rd Respondents also filed Motion on Notice for extension of time to apply for pre-hearing Notice. The application was contested by the Appellants and 4th and 5th Respondents. The Tribunal dismissed the application.

The Appellants and 4th and 5th Respondents approached the Tribunal to deem the petition as abandoned for the failure of the 1st to 3rd Respondents (as petitioners) to comply with paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended).

Affidavits in support and counter-affidavits were filed and written addresses exchanged.

After taking submissions, the Tribunal adjourned to 20/9/2011 for ruling. Meanwhile, the Court of Appeal shifted the hearing of the appeal filed by the 1st to 3rd Respondents from 21/9/2011 to 19/9/2011.

P.49

The appeal could not be heard on 19/9/2011 for time constraints. However, learned counsel for the Appellants before the lower Court informed the Court of the pending ruling before the Tribunal in a motion to dismiss the petition and asked the lower court to stay the ruling pursuant to S.15 of the Court of Appeal Act, 2004. This oral application was opposed by learned counsel for the Appellants herein and the 4th and 5th Respondents-

In its ruling, the lower Court granted an interim order staying the delivery of the ruling pending the hearing and determination of the appeal filed by the 1st to 3rd Respondents herein, Appeal No. SC.332/2011 was filed by the Appellants against the order of the lower court arresting the ruling of the Tribunal. From the grounds of appeal,. Appellants herein formulated the following two issues for determination

“1. Whether having regard to the mandatory provisions of Section 142 of the Electoral Act 2010 (as amended) and paragraph 18 of the Election Tribunal and Court Practice Directions 2011, the court below was right or possesses the vires to have granted an interim order against the Tribunal from delivering its ruling stated for the 20th day of September, 2011.

2. Whether the Court of Appeal was right to have granted the interim order the effect of which is to arrest the ruling of the Tribunal especially when the appeal before it was not ripe for hearing.”

The 4th Respondent in this appeal (SC.332.2011) also appealed against the order of the Court below stopping the delivery of the ruling of the Tribunal and from the sole ground of appeal , learned senior Counsel for the Appellant in SC.333/2011 formulated the following issue for determination:

P.50

“Whether the learned Justices of the Court of Appeal have the jurisdiction to halt/stay the proceedings of the Borno State Governorship Election Tribunal in BO/EPT/GOV/1/2011 having regards to the provision of Section 18 of the Election Tribunal and Court Practice Direction 2011 and Section 285(5)(b) of the Constitution of the Federal Republic of Nigeria of 1999 (as amended).”

Appeal No. SC-352/2011 was filed by the 1st and 3rd Respondents in SC.332/2011 who were also the 1st and 2nd Respondents in SC.333/2011. The appeal is against the order of the lower court adjourning Appeal No. CA/J/EPT/GOV/151/2011 sine die for the reason that appeals Nos. SC.332/2011 and. SC.333/2011 both arising from the order of the lower Court in the appeal have been entered in this Court.

Learned Senior Counsel for the Appellants presented the following issue for determination:

“Whether the refusal by the learned Justices of the court below to hear this appeal No- CA/J/EPT/GOV/151/2011 on the ground that Appeals Nos. SC.332/2011 and SC/333/2011 have been entered in the Supreme Court is not in breach of the Appellants’ right to fair hearing and thereby unjust in law.”

In Appeal No. SC.332/2011, reamed counsel for the Appellants and learned counsel for the 1st and 3rd Respondents and learned counsel for the 4th Respondent adopted and relied on their respective briefs. Learned counsel for the Appellants urged the court to allow the appeal and set aside the order of the lower court, while counsel for 1st and 3rd Respondents urged the court to dismiss the appeal. Counsel for 4th Respondent urged the court to allow the appeal. The 5th Respondent did not file a brief in the appeal.

P.51

In Appeal No. SC.333/2011, learned counsel for the Appellants adopted and relied on his brief and urged the court to allow the appeal. He also adopted and relied on his reply brief’ Learned counsel for the 1st and 2nd Respondents adopted and relied on his brief and urged the court to dismiss the Appellants’ appeal. Learned counsel for the 4th and 5th Respondents practically adopted the Appellants’ brief and urged the court to allow the appeal.

The 3rd Respondent did not file a brief.

In Appeal No. SC.352/2011, learned Senior counsel for the Appellants adopted and relied on his brief and his reply brief in which he responded to the preliminary objection raised in the 3rd Respondent’s brief. He urged the court to allow the appeal, set aside the decision of the court below, invoke S.22 of the Supreme Court Act to hear the appeal No.CA/J/EPT/GOV/151/2011 and direct that Petition No. BO/EPT/GOV/1/2011 be heard by a different panel.

Learned senior counsel for 1st and 2nd Respondents also adopted and relied on his brief of argument and urged the Court to dismiss the appeal.

I have given careful consideration to the submissions of learned counsel for the parties as well as the case laws and the relevant provisions of the constitution of the Federal Republic of Nigeria 1999 (as amended), as well as the Electoral Act 2010 (as amended).

SC.332/2011: In appeal No. SC.332/2011, the order complained of is at page 406 pf the record. It is hereunder reproduced for ease of reference:

“IT IS HEREBY ORDERED:

(i) That an interim order is hereby granted.

(ii) That the interest of all parties would best be served if the provision of Section 15 of the Court of Appeal Act is invoked for purposes of preserving the appeal which is coming up in two day’s time.

(iii) That this line of action would not in our opinion prejudice the interest of the parties.

(iv) That it is hereby directed that the said ruling of the Tribunal should abide the hearing of the appeal.”

P.52

The order was made on 19/9/2011. Section 142 of the Electoral Act 2010 (as amended) relied on by the Appellants provides for accelerated hearing of election petitions. The court below invoked s.15 of the court of Appeal Act, 2004 to make an order that has the practical effect of scuttling the provisions of s.142 of the Electoral Act (supra) as well as paragraph 18 of the Election Tribunal and court practice Directions hereunder reproduced:

“Paragraph 18: An interlocutory appeal shall not operate as a stay of proceedings, nor form a ground for a stay of proceedings before a Tribunal.”

My Lords, I am of the humble view that the provision of S.15 of the court of Appeal Act is inapplicable to matters not before that court or which that court did not send down for retrial- The ruling in respect of which the lower court made its order of 19/9/2011 was not before that court nor was the matter sent down to the Tribunal for rehearing.

The lower court predicated its order putting the ruling on hold on the opinion that the order would not prejudice the interest of the parties. Now the word, “prejudice” connotes damage or detriment to one’s legal rights or claims. see Blacks Law Dictionary’ Eight Edition, p.1218. The Appellants filed a motion to dismiss the petition filed against the return in the Governorship election in Borno State. The motion was argued by both sides and it was adjourned for a ruling. It is the right of the Appellants to have a ruling on their application one way or the other. In the circumstances, with profound respect to their Lordships at the court below, the opinion that the order will not prejudice the parties is a fiction. It has no factual or legal basis. I agree with learned Senior counsel for the Appellants that the court below should not have made the interim order directing that the ruling already slated for delivery abide the hearing and determination of the appeal not ripe for hearing.

P.53

Appeal No.333/2011: The lone issue raised and argued by learned Senior counsel for the Appellants is: “whether the learned Justices of the court of Appeal have the jurisdiction to halt/stay proceedings of the Borno State Governorship Election Tribunal in BO/EPT/GOV/1/2011 having regards to the provision of S. 18 of the Election Tribunal and Court Practice Directions 2011 and S. 285(5)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).”

In contrast, learned senior counsel for the 1st and 2nd Respondent queried:

“Whether paragraph 18 of the Election Tribunal and Court Practice Directions 2011 supersedes the provisions of Section 6(6) (a) 246(1)(b)(i), (ii), (iii)(2) and (3) of the 1999 constitution of the Federal Republic of Nigeria and Section 15 of the Court of Appeal Act 2004.”

I will start with S.15 of the court of Appeal Act 2004. As I said in the sister appeal No.SC.332/2011, the ruling slated for delivery but which was “arrested” on the order of the Court below is neither an appeal before the court below nor did the court below send it down to be reheard. The proceedings in BO/EPT/GOV/1/2011 including the ruling made to abide the decision of the Court below in appeal No. CA/J/EPT/GOV/151/2011 is not within the intendment of S. 15 of the Court of Appeal Act, 2004. The powers vested in the Court of Appeal by the constitution was not shown in the brilliant submission of the learned senior counsel for the Respondent, to be eroded or impeded by any provision of the Electoral Act, 2004 (as amended) or the practice Direction 2011.

The effect of the order made by the court below in a matter pending in the Tribunal flies in the face of S. 285 5(5) of the constitution and S. 18 of the practice Direction 2011. The court below is without power to halt the delivery of a ruling in BO/EPT/GOV/1/11.

P.54

SC.352/2011: Learned Senior Counsel for the Appellants herein asked the court to resolve the following lone issue:

“Whether the refusal by the learned Justices of the court below to hear this appeal CA/J/EPT/GOV/151/2011 on the ground that Appeals Nos. SC.332/2011 and SC.333/2011 have been entered in the Supreme court is not in breach of the Appellants, right to fair hearing and thereby unjustified in law.”

The 1st and 2nd Respondents raised the following issue:

“whether the court below was not right to have adjourned Appeal No.CA/J/EPT/GOV/151/2011 sine die having regard to the entry of Appeal No. SC.332/2011 and SC.333/2011 at the Supreme court with the motion for stay of proceedings of the court below before the Supreme Court and having regard to the provision of stare decisis and judicial precedent, the facts and general circumstances of this case.”

The 3rd Respondent’s issue:

“whether the court below had the jurisdiction to stay its own proceedings in the light of Appeal Nos. SC.332/2011 and SC.333/2011 pending before this Honourable court had been duly entered.”

The 4th Respondent formulated the following issue:

“Whether this Appeal has not been rendered nugatory and therefore an academic exercise, taking into consideration the provisions of section 285(5)(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).”

Also, learned senior counsel for the 3rd Respondent raised a two-pronged preliminary objection to the hearing of the appeal, thus;

P.55

“Paragraph 4.28 and paragraph 4.31 (2nd paragraph) the issue of the petition becoming extinct on 15th October, 2011 and the applicability of section 285(6)(7) of the 1999 Constitution (as amended) was not an issue before the Court below nor a ground of appeal before this Honourable Court and therefore should be discountenanced.

(b) The issue of denial of fair hearing as contained in ground 2 of the Notice of Appeal and argued in paragraphs 4.29 – 4.31 of the Appellants’ brief of argument is a fresh issue and is incompetent as no leave of this Honourable Court was sought to raise and/or argue same.”

The issues raised by the learned counsel in the 3rd, and learned counsel for the 4th Respondents are threshhold issues. Whether or not the appeal will be determined of the merit is dependent on the success or failure of the issues raised.

I will deal with the 3rd Respondent’s issue first. Appeals on invitation to a higher Court to review the decision of a lower Court in order to find out whether on a proper consideration of the facts placed before it and the applicable law the lower Court arrived at a correct decision – see Oredoyin v. Arowolo (1989) 4 NWLR (pt. 114) 179 sc. It is a complaint against the decision of the trial Court and where there is no complaint against any act or omission of the trial Court, the appellate jurisdiction of the lower Court cannot be invoked. See Babalola v. The State (1989) 4 NWLR (pt. 115) 264 SC.

The issues raised and argued in the Appellants’ brief were not raised and or pronounced upon by the Court below and ipso facto this Court is without power to pronounce on them in its appellate jurisdiction. The new issues were raised without the leave of the court below or this court first sought and had. The grounds of appeal from which the issues extraneous to the appeal were distilled are incompetent and so is the appeal itself. It is hereby struck out.

P.56

The issue raised in the 4h Respondent’s brief is predicated on S.285(3) of the 1999 Constitution (as amended). It provides:

“3. An Appeal from a decision of an Election Tribunal or Court of Appeal shall be held and disposed of within 60 days from the date of the delivery of judgment of the Tribunal or Court of Appeal.”

With profound respect to the learned Senior counsel for the Appellants, I am not persuaded to the view that the 60 days period within which the appeal shall be heard and disposed of will not begin to run until the delivery of judgment in petition No. BO/EPT/GOV/1/2011

I appreciate the candour exhibited by the learned Senior Counsel in his reference to S.318 of the Constitution 1999 (as amended) for the meaning of the word “decision” but I do not agree that for the purpose of s.318 of the Constitution, there is a difference between the two words “decision” and ‘Judgment”. In my humble view, the appeal has been spent, it has become time-barred. It has been rendered academic, and stuff for hypothetical exposition by the law faculties in our Universities. A suit is academic where it is purely theoretical, makes empty sound and, of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity.” See Plateau State v. AG Federation (2006) 3 NWLR (pr.967) 346 at 419 SC.

The appeal, by the passage of time, has lost touch with the human situation from which it drew its breath. It is therefore dead.

My Lords, the three appeals consolidated herein arose from the interpretation of S.18 of the 1st schedule to the Act, 2010 (as amended) by the Tribunals and the court below.

P.57

The appeals transcended their origin which is not within the competence of this court to pronounce upon. Be that as it may, sooner than later the court will have the opportunity to deal with the matter decisively and put it to rest.

For the above and the fuller and more comprehensive reasoning in the lead Judgment of my Lord Onnoghen, JSC, I also allow appeals No. SC.332/2011 and SC.333/2011.

I strike out appeal No. SC.352/2011 as incompetent.

P.58