Dr. Arthur Agwuncha Nwankwo & Ors v. Alhaji Umaru Yar’Adua & Ors
CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial β not part of the judgment as delivered
Facts of the Case
The appellants filed an election petition before the Presidential Election Tribunal (Court of Appeal sitting at Abuja) challenging the presidential election held on 21st April 2007, in which the 1st and 2nd respondents were returned as President and Vice President of the Federal Republic of Nigeria. The 1st and 2nd appellants were candidates sponsored by the 3rd appellant, a registered political party, at the said election. The petition sought declarations that the election was invalid due to corrupt practices and non-compliance with the Electoral Act 2006, and that the 1st and 2nd respondents were not qualified to contest the election as serving state governors.
The 3rd to 41st respondents filed a Notice of Preliminary Objection on 2nd August 2007 challenging the competence of the petition on various grounds, including failure to meet mandatory requirements of the Electoral Act, vagueness of pleadings, non-joinder of necessary parties, and the 1st and 2nd respondents’ qualification to contest. The lower court heard the preliminary objection on 22nd August 2007 and delivered its ruling on 3rd September 2007, sustaining the objection and striking out the petition. Being dissatisfied, the appellants appealed to the Supreme Court.
Issues for Determination
ISSUE 1:Β Whether the appellants’ petition was incompetent, defective and not initiated by due process of law.
ISSUE 2:Β Whether there is non-compliance by the appellants as petitioners with the mandatory provisions of paragraph 4(1)(d) of the First Schedule to the Electoral Act 2006 and Section 144(2) of the Electoral Act 2006 in the contents of the petition and the documents annexed thereto.
ISSUE 3:Β Whether it was not too late for the Court of Appeal to entertain the Preliminary Objection dated 2nd August 2007 after all the respondents have joined issues with the petitioners by filing their respective replies prior to the hearing of the Preliminary Objection.Β (Struck out)
ISSUE 4:Β Whether it is proper for the Court of Appeal to resolve and decide on all the substantive issues in the petition in the course of Ruling on the 3rd to 41st Respondents’ Preliminary Objection.
ISSUE 5:Β Whether the petitioners were not denied their constitutional right to fair hearing having regard to all the circumstances of the case.
ISSUE 6:Β Whether the provisions of Section 37(1) of the Electoral Act 2006 does not make it mandatory for the Presidential election held on 21st April 2007 to be countermanded or postponed following the death of a nominated candidate after the delivery of nomination paper and before the commencement of the poll.
ISSUE 7:Β Whether the provision of Section 137(1)(g) is not applicable to 1st and 2nd respondents as serving State Governors at the date of the Presidential election held on 21st April 2007.
ISSUE 8:Β Whether having regard to the provisions of paragraph 6(1) of the Electoral Tribunal and Court Practice Amendment Directions 2007 (No. 1) and paragraph 49(2) of the First Schedule to the Electoral Act 2006, the hearing and the determination of the preliminary objection by the Court of Appeal were not without jurisdiction.
Decision / Holding
The Supreme Court allowed the appeal, holding that the lower court acted without jurisdiction when it heard and determined the preliminary objection outside a pre-hearing session as required by paragraph 6(1) of the Election Tribunal and Court Practice Directions 2007. The ruling of the lower court delivered on 3rd September 2007 was set aside as null and void, and the matter was remitted to the lower court to be dealt with according to law by another panel to be constituted by the President of the Court of Appeal. Costs of N50,000.00 were awarded in favour of the appellants against each set of the respondents.
Ratio Decidendi / Principles
Obiter Dicta
Per Ogbuagu, JSC (on appealing a nullity):
“It appears ‘muted’ that a judgment being a Nullity, need not to be appealed against. In the English case of March v. Marsh (1945) A.C. 271 @ 284, the Privy Council observed as follows: ‘…if an order is void, the party whom it purports to effect can ignore it, and he who has obtained it cannot proceed thereon at his peril.'”
Per Ogbuagu, JSC, inΒ Nwankwo & Ors v. Yar’Adua & OrsΒ (2010) NLC-2792007(SC) at p. 21; Paras AβB.
Per Ogbuagu, JSC (dissenting view on nullity – quoting Bello CJN):
“It has never been the law of Nigeria as some of our judges like judicial robots, have been parroting the dicta of Lord Denning in Macfoy v. U.A.C. that there is no need for an order of a court which is void to be set aside by a court and thereby implying that all and sundry have the right to disobey the order… It has never been the law that a party may review a judgment, regard it a nullity and disobey it.”
Per Ogbuagu, JSC, quoting Bello CJN inΒ Rossek & Ors v. ACB Ltd & Ors, inΒ Nwankwo & Ors v. Yar’Adua & OrsΒ (2010) NLC-2792007(SC) at pp. 22β23; Paras AβB.
Orders of Court
1. The appellants’ preliminary objection to the appeal was sustained and Issue No. 3 was struck out for being incompetent (proliferation of issues).
2. The appeal was allowed for being meritorious.
3. The ruling of the lower court (Court of Appeal/Presidential Election Tribunal) delivered on 3rd September 2007 was set aside as null and void, the same having been rendered without jurisdiction.
4. The matter was remitted to the lower court to be dealt with according to law by another panel to be constituted by the President of the Court of Appeal.
5. Costs of N50,000.00 (Fifty thousand naira) were awarded in favour of the appellants against each set of the respondents (1st and 2nd respondents as one set; 3rd to 41st respondents as the other set).
APPEARANCES
Counsel for the Appellant(s)
β’ N.J. Edechime Esq. (leading M. Edozie (Miss), Uba Chukwuka Esq.)
Counsel for the Respondent(s)
β’ D.D. Dodo Esq. SAN for the 1st and 2nd respondents (with him Dr. Afolayan, Ayo Adesanmu, Augu Anuga, Hanatu Abdurrahman (Mrs), Terhemba Bashima, A.A. Dodo, Oluleye Sokale, Akpe Adoh (Mrs), Aisha Ali (Miss), Toyin Agunriade) β’ Chief Amaechi Nwaiwu, SAN for the 3rdβ41st respondents (with him Dr. A.N. Aguwa, Oddi Achike Esq., Okon N. Efut Esq., Peter O. Ofikwu Esq., Rita O. Ogar (Mrs), Lami N. Jibrin (Miss), Ifunayaa Obumselu (Mrs), Egane Agabi Esq., Okwa Morphy Enebeli (Mrs), Tosin Adeoye (Miss), Nneka Bon-Nwakanma (Mrs), Ngozi Udokwu (Miss), Ifeanyi Okechukwu Esq., Coxen Dappa Esq., A. Ekong Bassey Esq.)
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
β (DELIVERED BY S. N. ONNOGHEN, J.S.C:Β Β (DELIVERING THE LEAD JUDGMENT))
On the 18th day of May, 2007, the appellants filed an election petition against the respondents praying for the following reliefs:
“(i) An order of the court that the Presidential election held on April 21, 2007 is invalid for reasons of non-compliance with substantial sections of the Electoral Act, 2006.
(ii) An order of the court that the presidential election held on April 21, 2007 is invalid for reasons of corrupt practices.
(iii) An order of the court that at the time of the election, the 1st and 2nd Respondent were not qualified to contest.
(iv) An order that the 1st and 2nd Respondents were not duly elected by majority of lawful votes cast at the election.
(v) An order of the court that the presidential election 2007 may be declared nullified.
P.1
The grounds on which the reliefs are sought are stated as follows;-
“i. That the Presidential election held on 21st April, 2007 was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, 2006.
ii. That the 1st and 2nd Respondents were not duly elected by majority of lawful votes cast at the election.
iii. That the 1st and 2nd Respondents as serving Governors of Katsina and Bayelsa States respectively were not qualified to contest the election.”
The 1st and 2nd appellants were candidates sponsored by the 3rd appellant, a registered political party at the election into the office of President and Vice President of the Federal Republic of Nigeria held on the 21st day of April, 2007, which the 1st and 2nd respondents were returned/declared elected as President and Vice President of the Federal Republic of Nigeria.
By a Notice of Preliminary Objection filed on the 2nd day of August, 2007, the 3rd to 41st respondents, challenged the competence of the court to entertain the petition on the following grounds:-
The petition is incompetent and fails to meet the mandatory requirements of paragraph 4(1) (a) (d) and 4(2) and 4(4) of the first Schedule of the Electoral Act, 2006.
P.2
Paragraphs 8, 10(1), 11-22 of the petition are vague without sufficient and materials particulars to sustain the allegations.
The petitioner failed to join the persons and/or electoral officers who allegedly perpetrated corrupt practices and electoral irregularities in thirty-six states of the Federation and the Federal Capital Territory as well as constituent local governments areas, the wards and polling units, the failure of which is fatal quite from the fact that particulars of the corrupt practices and irregularities are not stated.
The 1st and 2nd Respondents are not in the category of persons who ought to resign from office before contesting the election as alleged or canvassed by the petitioners.
Nothing in the law justifies the assumption that the death of a candidate must lead irresistibly and conclusively to the postponement or cancellation of the election.
The petition is an abuse of the process of the court and is instituted in bad faith.
The objections were grounded on paragraphs 4(6), 4(a) (b) of the First Schedule to the Electoral Act, 2006; paragraph 6(2) and (3) of the Court Practice Directions 2007; Order 3 Rule 3(1) of the Court of Appeal Rules, 2002 and Section 6(6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999.
The lower court found that the preliminary objection was well taken and consequently sustained same in the ruling delivered on the 3rd day of September, 2007 which resulted in the instant appeal.
Learned Counsel for the appellantsΒ N.I.J. EDECHIME ESQΒ in the appellants brief filed on 15/10/07 identified the following issues for determination:
P.3
“i. Whether the appellants’ petition was incompetent defective and not initiated by due process of the law.
ii. Whether there is non-compliance by the appellants as petitioners with the mandatory provisions of paragraphs 4(1) (d) of the First Schedule to the Electoral Act, 2006 and S.144(2) of the Electoral Act, 2006 in the contents of the petition and the documents annexed thereto.
iii. Whether it was not too late for the Court of Appeal to entertain the Preliminary Objection dated 2nd August, 2007 after all the Respondents have joined issues with the petitioners by filing their respective replies prior to the hearing of the Preliminary Objection.
iv. Whether it is proper for the Court of Appeal to resolve and decide on all the substantive issues in the petition in the Course of Ruling on the 3rd to 41st Respondents’ Preliminary Objection.
v. Whether the Petitioners were not denied their constitutional right to fair hearing having regard to all the circumstances of this case.
vi. Whether the provisions of S.37(1) of the Electoral Act, 2006 does not make it mandatory for the presidential election held on 21st April, 2007 to be countermanded or postponed following the death of a nominated Presidential Candidate after the time for the delivery of nomination papers and before the commencement of the poll.
vii. Whether the provision of S.13(1) (a) is not applicable to 1st and 2nd Respondents as serving State Governors at the date of the Presidential election held on 21st April, 2007.
P.4
viii. Whether having regard to the provisions of paragraph 6(1) of the Electoral (sic) Tribunal and Court Practice Amendment Directions 2007 (NO.1) and paragraph 49(2) of the First Schedule to the Electoral Act 2006, the hearing and determination of the Preliminary Objection by the Court of Appeal was not without jurisdiction.”
On the 14th day of January, 2008 learned senior counsel for the 1st and 2nd respondents,Β CHIEF WOLE OLANIPEKUN SAN, filed a Notice of Preliminary Objection against the grounds of appeal in which counsel prayed the court for:
“1. An order striking out some of the issues for determination same not being borne out from the grounds of Appeal.”
The objection is said to be grounded on the following:-
“1. The Appellants filed a notice of appeal on the 24th September, 2007.
That in the said Notice of Appeal, Appellants raised 6 grounds of appeal from the ruling of the tribunal.
The Appellants’ Brief of Argument was filed on the 15th October, 2007.
That in the said Appellants’ Brief of Argument, 8 issues were distilled from the 6 grounds of appeal.
That the issues are more than the grounds of appeal.
That proliferation of issues is not allowed by this honourable court.”
P.5
Argument on the objection has been proffered by learned senior counsel in the 1st and 2nd respondents’ brief of argument filed on the 14th day of January, 2008.
However, learned counsel for the appellants filed a reply brief on the 9th day of November, 2009, in which he pointed out that this Honourable Court did grant an application by the appellants to amend the Notice of Appeal on the 26th day of October, 2009. I have gone through the Amended Notice of Appeal. It is clear from the record that whereas the original notice of appeal to be found at pages 238 to 244 contains six grounds of appeal as contended by learned counsel for the 1st and 2nd respondents, the amended Notice of appeal filed on the 26th day of October, 2009 contains seven grounds of appeal. It is true that learned counsel for the appellants formulated eight issues out of the seven grounds of appeal.
Learned Counsel for the appellants has submitted in the Reply Brief filed on 9/1/09 that “…issues 3 and 8 fall within the scope or ambit of ground VII of the Amended Notice of Appeal filed on the 26th October, 2009. In the circumstances, the Preliminary Objection is no longer tenable.”
By the above submission, it is clear that learned counsel concedes that he formulated two issues out of a ground of appeal. What he has done – formulation of two or more issues from a ground of appeal – is what the law regards as proliferation of issues and consequently frowns upon. It is settled law that whereas counsel may formulate an issue out of a ground of appeal or a combination of grounds of appeal, he is not allowed/permitted to formulate more than an issue out of a ground of appeal. The above constitutes the foundation of the objection of Learned Senior Counsel for the 1st and 2nd respondents. I hold the view that the objection is well founded in law.
P.6
Consequently the objection is sustained and issue No. 3 is hereby struck out for being incompetent. SeeΒ Ibrahim v. Ojomo (2004) 4 NWLR (Pt. 862) 89 at 104;Β Iwuoha v. NIPOST Ltd. (2003) 8 NWLR (Pt.822) 308 at 332;Β Shutu v. Fashawwe (2005) 14 NWLR (Pt. 946) 671 at 687;Β Mark v. Eke (2004) 5 NWLR (Pt. 865) 54 at 81 – 82.
Looking closely at the surviving issues, it is clear that the first issue to be tackled must logically be the original issue No. 8 since it deals or challenges the competence of jurisdiction of the lower court to entertain and determine the preliminary objection at the stage it did. Jurisdiction being a periphery matter it is always advisable to resolve same before proceeding any further, where necessary because where it is found that the court has no jurisdiction the matter ends there. It is only when it is found that the court has jurisdiction that we can proceed further to determine the appeal on the merit.
In arguing the issue, Learned Counsel for the appellants referred the court to the proceedings of the 22nd day of August, 2007 at pages 194 to 196 of the record where the lower court sat as the Presidential Election Tribunal and heard arguments from counsel for both parties on the preliminary objection, not in a pre-trial session, and paragraphs 6(1) and (4) of the Election Tribunal and Court Practice Directions 2007 and submitted that where a Statute provides for a particular method of performing a duty regulated by the Statute that method and no other must have to be adopted, relying onΒ CCB v. A.G. Anambra State (1992) 8 NWLR (Pt. 261) 528 at 566; that parties are free to file their motion but the method of hearing the application so filed is as prescribed by the Statute, particularly paragraph 6(1) supra which states clearly that no motion shall be moved except at the pre-hearing session except in extreme circumstances with the leave of the Tribunal or court;
P.7
That objections on point of law, as in the instant case, can only be entertained at the pre-hearing session not in the tribunal; that the determination of the objection by the court below while sitting as a tribunal was without jurisdiction and consequently null and void, relying onΒ Adesolu v. Abidoye (1999) 12 SCNJ 61;Β Okereke v. Yar’Adua (2008) 4-5 S.C. (Pt. 1) 206 at 228-230;Β Hope Democratic Party v. INEC (2009) 3-4 S.C. 106; that paragraph 3(4) of the Practice Direction supra does not apply to the appellants in this case because they were still within time to file their pre-hearing notice considering that the 1st and 2nd respondents filed their reply to the petition on 21st August, 2007 and urged the court to allow the appeal.
In the 1st and 2nd respondents’ brief of argument filed on 14/1/08, Learned Senior Counsel for the 1st and 2nd respondents submitted the following issues for the determination of the appeal:-
“1. Whether the petition was defective and incompetent by reason of non-joinder of necessary parties and vagueness and non-compliance with the mandatory provisions of the Electoral Act 2006 and the Court and Tribunal Practice Direction 2007 (Encompassing grounds 1 and 6).
Whether all the substantive issues raised in the petition were resolved in the Preliminary Objection of the 3rd – 41st Respondents (encompassing grounds 2 and 3).
Whether the 1st and 2nd Respondents as serving Governors are not in the class of persons who ought to resign from office before contesting for office as President (Encompassing ground 4).
P.8
Whether the petition by virtue of section 37(1) of the Electoral Act, the death of any one of the candidates ought to lead conclusively and irresistibly to the postponement of the election (Encompassing ground 5).”
It is very clear that the brief of argument of the 1st and 2nd respondents did not contain any argument on appellants’ issue 8 which was formulated from ground VII of the Amended grounds of appeal earlier referred to in this judgment. The ground in question complains as follows:-
“(vii) The Court of Appeal erred in law and acted without jurisdiction by hearing and delivering a ruling on the Respondents’ Preliminary Objection dated 2nd August 2007 prior to any pre-hearing session as stipulated by paragraph 6(1) of the Electoral (sic) Tribunal and Court Practice Directions 2007 (No.1).
PARTICULARS
(i) Paragraph 6(9) of the Practice Directions provide thus ‘No motion shall be moved. All motions shall come up at the pre-hearing session except in extreme circumstances with leave of the tribunal or court.’
(ii) Paragraph 3 of the Practice Direction makes provisions for the pre-hearing session and scheduling under which the petitioner has 7 days after the filing and service of the petitioner’s Reply on the Respondents, or 7 days after the filing and service of the Respondents’ reply whichever is the case, within which to apply for the issuance of the pre-hearing notice.
P.9
(iii) In the instant case the 1st and 2nd Respondents only filed their Reply to the petition on 21st August, 2007 and without giving room for the statutory period for the issuance of pre-hearing Notice as required, the Court of Appeal on the 22 August, 2007 peremptorily proceeded to hear the Preliminary Objection filed by the 3rd – 41st Respondents and thereafter delivered the ruling of 3rd September 2007 which rendered the decision a nullity since the proceedings including the Preliminary Objection by the Court of Appeal was without jurisdiction.”
Once again appellant’s issue 8 is as follows:-
viii. Whether having regard to the provisions of paragraph 6(1) of the Electoral (sic) Tribunal and Court Practice Amendment Directions 2007 (No.1) and paragraph 49(2) of the first Schedule to the Electoral Act 2006; the hearing and determination of the Preliminary Objection by the Court of Appeal was not without jurisdiction.”
It is clear from the issues formulated and argued by Learned Senior Counsel for the 1st and 2nd respondents in their brief of argument do not include argument on appellants’ said issue No. 8.
It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting opponent. I therefore, in the circumstances, hold that the 1st and 2nd respondents, by not reacting to the issue in question, have conceded the issue as formulated and argued by the learned counsel for the appellants.
In the brief of argument for the 3rd – 41st respondents prepared by learned senior counsel for the 3rd – 41st respondents,Β KANU AGABI, ESQ SAN, the issues formulated for determination are five.
P.10
These are as follows:-
“1. Whether the lower court was right to hold that having not met the requirement of paragraph 4(1) (d) of the First Schedule to the Electoral Act, 2006, the petition was fundamentally defective and incompetent (From Ground 1 of the Notice of Appeal).
Whether by considering and resolving the issues raised in the 3rd to 41st Respondents’ Preliminary Objection the Lower Court could be said to have delved into the substantive case and breached the petitioners’ right to fair hearing (Grounds 2 and 3).
Whether the Lower Court was right in holding that the 1st and 2nd Respondents as serving Governors were not in the class of persons who ought to resign from office before contesting for the office of President as provided for in section 137(1) (g) of the Constitution. (Distilled from Ground 4 of the Notice of Appeal).
Whether the Lower Court was right in holding that section 37(1) of the Electoral Act which deals with the effect of the death of one of the candidates in an election did not avail the petitioners (Distilled from Ground 5 of the Notice of Appeal).
Whether the Lower Court was right in holding that the petitioners’ failure to join the persons and/or electoral officers who allegedly perpetrated corrupt practices and electoral irregularities was fatal to the petition (Distilled from Ground 6 of the Notice of Appeal).”
It is clear that learned senior counsel for the 3rd – 41st respondents, like his brother silk did not consider appellants’ issue No. 8 supra. It follows therefore that the principle of law earlier stated as being applicable to the situation and circumstance of the 1st and 2nd respondents, applies with equal force to the 3rd – 41st respondents.
P.11
However, the above position notwithstanding, is learned counsel for the appellants right in his submission on the issue in question?
Paragraph 6(1) of the Election Tribunal and Court Practice Directions, 2007 provides as follows:-
“6(1) No motion shall be moved. All motions shall come up at the pre-hearing session except in extreme circumstances with leave of the tribunal or court.”
The above provision clearly states that all motions shall be heard at the pre-hearing session except by leave of court or Tribunal where there exist extreme circumstances. Though the term extreme circumstance is not defined, I take same to mean very special or special circumstances.
What then are the businesses to be transacted by the tribunal or court at the pre-hearing session? The answer can be found in sub-paragraph 3 of paragraph 6 of the Practice Direction supra which provides thus:-
“3. Pre-hearing session and scheduling:
(i) Within 7 days after the filing and service of the petitioner’s Reply on the respondent, or 7 days after the filing and service of the respondent’s Reply, whichever is the case the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007.
(ii) Upon application by a petitioner under paragraph (7) above the tribunal or court shall issue to the parties or their legal practitioners (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in Form TF008 for the purposes set out hereunder.
P.12
(a) Disposal of all matters which can be dealt with on interlocutory application;
(b) Giving such direction as to the future course of the petition as appear adopted to secure its just expeditious and economical disposal in view of the urgency of election petition.
(c) Giving direction on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need to expeditious disposal of the petition;
(d) Fixing clear dates for hearing of the petition.
3. The respondent may bring the application in accordance with sub-paragraph (I) above where the petitioner fails to do so or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.
4. Where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.”
In paragraph 3(7) of the Practice Direction, supra, the tribunal or court is enjoined, at the pre-hearing session, to take appropriate action in respect of the following as may be necessary or desirable.
(a)…………
(b) …………
(c) …………
(d) hearing and determination of objections on point of law.”
From the totality of the above provisions of the Practice Direction, it is very clear that an election tribunal or court can only hear motions and/or objections on point of law at the pre-hearing session not when it sits as a tribunal or court to hear or try election petitions.
P.13
In the instant case, it is not disputed that what was heard and determined by the lower court was a preliminary objection on points of law raised against the election petition of the appellants and that the Lower Court did not hear and determine same at a pre-hearing session as provided in the Practice Direction but at the hearing/trial of the petition. It is settled law that where a statute lays down a procedure for doing anything no other method is to be employed in doing the thing. In other words, “where a statute or legislation provides for a particular method of performing a duty regulated by the statute that method and no other must have to be adopted.” SeeΒ C.C.B. Plc. v. A.G. Anambra State supra.
In the instant case the Practice Direction provides clearly that motions and/or objections on points of law can only be taken and determined by the tribunal or court at its pre-hearing session, which was not done in this case.
In the case ofΒ Okereke v. Yar’Adua (2008) 4-5 S.C. (Pt. 1) 206Β this Court considered the provisions of paragraph 6(1) of the Practice Direction supra and came to the conclusion that any motion or preliminary objection raised in an election petition not taken and determined at the pre-hearing session is done or taken without jurisdiction and consequently null and void, as the same would have been done without fulfilling the condition precedent to the exercise of its jurisdiction. It is settled law that no matter how well conducted, where a court is without jurisdiction to hear and determine a matter, the proceedings so conducted are a nullity.
P.14
It is therefore clear that the proceedings of the lower court leading to the ruling of that court delivered on the 3rd day of September, 2007, subject of the instant appeal, is a nullity and the same was conducted without jurisdiction and is consequently set aside.
Since the appellants were still within time to take steps to initiate the pre-hearing session, the proper thing to do in the circumstance is to remit the matter to the Lower Court to be dealt with in accordance with the provisions of the Practice Direction, Rules of court and substantive law applicable hereto by another panel to be constituted by the appropriate authority, for whatever it is worth.
This is clearly not the case in which the powers of this Court under section 22 of the Supreme Court Act can be invoked to deal with the matter despite the fact that the appellants are running against time.
Having found that the lower court was without jurisdiction when it heard and determined the preliminary objection filed by the 3rd – 41st respondents, it becomes unnecessary to consider the rest of the issues that have to do with the merit of the ruling already set aside. The said issues are therefore discountenanced by me.
In conclusion, the appeal is allowed for being meritorious. The ruling of the lower court delivered on the 3rd day of September, 2007 is hereby set aside for being null and void, the same having been rendered without jurisdiction. The matter is consequently remitted to the lower court to be dealt with according to law by another panel to be constituted by the President of the Court of Appeal.
P.15
There shall be costs ofΒ N50,000.00Β in favour of the appellants against each set of the respondents.
Appeal allowed.
Concurring Opinion(s)
β GEORGE ADESOLA OGUNTADE, J.S.C.:
Β I have had the advantage of reading in draft a copy of the lead judgment by my learned brother Onnoghen JSC. I agree with his reasoning and conclusion. I would allow this appeal with costs as assessed in the lead judgment.
β M. MOHAMMED, J.S.C:
I have had the privilege before today of reading in draft the judgment of my learned brotherΒ Onnoghen, JSCΒ which has just been delivered. I am completely with him in the manner he considered and resolved the main issue of jurisdiction for determination in this appeal. The law is indeed trite that a Court is only competent to exercise jurisdiction in respect of any matter where-
it is properly constituted as regards numbers and qualification of the members and no member is disqualified for one reason or the other.
The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction.
The case comes by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
SeeΒ Madukolu & Ors. v. Nkemdilim & Ors. (1962) 2 S.C.N.L.R. 341.
Taking into consideration the circumstances under which the Appellants/Petitioners petition was struck out by the Court below on a Preliminary Objection contrary to the requirements of the law, the Court below was deprived of jurisdiction to entertain and determine the Preliminary Objection thereby making the determination a complete nullity. I therefore allow the appeal and abide by the orders in the leading judgment including the order on costs.
P.16
β F. OGBUAGU, J.S.C.:Β
This is an appeal against the RULING of the Court of Appeal, sitting at Abuja as the Presidential Election Tribunal as a court of first instance (hereinafter called “the Tribunal”) delivered on 3rd September, 2007 sustaining the Preliminary Objection raised by the 3rd to 41st Respondents and consequently, struck out the Petition of the Appellant.
Dissatisfied with the Ruling, the Appellants initially, filed six (6) Grounds of Appeal. They later filed an Amended Notice of Appeal with the leave of this Court granted on the same 26th October, 2009. The Appellants formulated Eight (8) issues for determination. The 1st and 2nd Respondents learned Counsel –Β Chief Olanipekun, (SAN)Β in consequence, filed a Notice of Preliminary Objection praying for an Order striking out some of the said issues for determination.
“same not been (sic) born (sic) out from of (sic) the grounds of Appeal”.
The thrust of the Objection is that there are more issues formulated for determination than the number of the said grounds of Appeal. That this amounts to proliferation of issues which is not allowed by this Court. I agree. This fact of proliferation of issues, has been deprecated by two Appellate Courts in a number of decided authorities. See the cases ofΒ Agu v. Ikewibe (1991) 3 NWLR (Pt.130) 385 @ 401;Β (1991) 4 SCNJ 56;Β Ayisa v. Akanji & 5 Ors. (1995) 7 SCNJ 245;Β Adelusola & 4 Ors. v. Akinola & 3 Ors (2004) 12 NWLR (Pt.887) 295 @ 311;Β (2004) 5 SCNJ 235Β andΒ ACB PLC v. Odulawe (2005) All FWLR (Pt.276) @ 804. It can only be in special cases where the grounds so dictate. See the case ofΒ Gwan v. Adole (2003) FWLR (Pt.176) 747 @ 760.
P.17
I note however, that in paragraph 2.2. of the Appellant Reply Brief to the above objection, dated 6th November, 2009 but deemed filed on the same 26th October, 2009, it is submitted that;
“issue 3 and 8 fall within the scope of ground VII of the Amended Notice of Appeal filed on the 26th October, 2009. In the circumstances, the preliminary objection is no longer tenable”.
On 21st January, 2010 when this appeal came up for hearing, the leading learned counsel for the parties, adopted their respective Brief and while that for the Appellants, urged the Court to allow the appeal, those for the respondents, urged the court to dismiss the appeal. Thereafter, judgment was reserved till today.
I hold that with the said submission of the learned counsel for the appellants in the said Reply Brief, it is a concession to the said objection. But since the prayer of the 1st and 2nd Respondents, is for an Order striking out some of the said issues, and my learned brother,Β Onnoghen, JSCΒ in his lead judgment just read and which I had the privilege of reading before now and I agree with, has also sustained the Objection and has proceeded to strike out issue No. 3 as being incompetent, I too, will deal with issue No. viii which touches on jurisdiction which is very fundamental, and if it succeeds, it will surely be an end to the instant appeal. As firmly settled, where issue of a court’s jurisdiction is raised in any proceedings and at any stage, it must be taken first, immediately, promptly or expeditiously. See the case ofΒ First City Merchant Bank Ltd. & 4 Ors. v. Abiola & Sons Bottling Co. Ltd. (1991) 1 NWLR (Pt.165) 14 @ 27 C.A.;Β Nalsa & Team Associates v. NNPC (1996) 3 NWLR (Pt.439) 621 @ 633;Β (1996) 3 SCNJ 50, 61;Β Chief Ukwu & 3 ors. v. Chief Bunge (1997) 8 NWLR (Pt.678) 527 @ 541, 542, 544;Β (1997) 7 SCNJ 262 @ 273;Β Galadima v. Alhaji Tambai & 11 Ors. (2000) 6 SCNJ @ 200, 203;Β Jerric Nig. Ltd. v. Union Bank of Nig. Plc (2000) 12 SCNJ 184 @ 193Β and too many others.
P.18
This is because, a court has jurisdiction to decide whether or not, it has jurisdiction. See also the case ofΒ Shitta-Bey v. Attorney-General of the Federation & anor. (1998) 10 NWLR (Pt.) 392;Β (1998) 7 SCNJ 264. In fact, in the case ofΒ Alhaji Maleri & 6 ors. v. Ahmadu Dangaladima & anor. (1993) 2 SCNJ 122 @ 130, this court – perΒ Karibi-Whyte, JSC, stated inter alia:-
“It is of the utmost importance in the administration of justice that where the jurisdiction of the court is raised and is an issue, to dispose of that issue. Jurisdiction is a radical and fundamental prerequisite for adjudication. SeeΒ Adeigbe v. Kushinmo (1965) 1 ANLR 248. If the court is shown to have no jurisdiction the proceedings however well conducted are a nullity. SeeΒ Madukolu v. Nkemdilim (1962) 1 ANLR 587.”
Now, the subject-matter that led to the said Ruling of the Tribunal, was/is predicated on a Notice of Preliminary Objection filed by the 3rd – 41st Respondents contending among other things, that the Petition is incompetent. I note that the Objection, was after the said Respondents, had joined issues in their Reply to the Petition. Not that it is of any moment. The Tribunal, in spite of the mandatory provisions of paragraphs 3(2), 3(7) and especially paragraph 6(1) of the Election Tribunal & Court Practice Directions 2007, proceeded to hear the matter on 22nd August, 2007 and it delivered its said Ruling that is the subject-matter of this appeal, on 3rd September, 2007.
For the avoidance of doubt, I will reproduce hereunder, the provisions of the said paragraph 6(1).
P.19
It reads as follows:
“No motion shall be moved. All motions shall come up at the pre-hearing session except in extreme circumstances with the leave of Tribunal or Court”.
[the underlining mine]
Again, for purposes of emphasis, paragraph 3(2) ibid provides as follows:
“Disposal of all matters which can be dealt with on interlocutory application, is at the pre-hearing session”.
While paragraph 3(7) is to the effect,
“at the pre-hearing session, the Tribunal shall consider and take appropriate action in respect of the following as may be necessary or desirable.
(a), (b) & (c) are not applicable
but (d) hearing and determination of objections on point of law”.
These provisions are clear and unambiguous.
I will pause here to stress that Practice Directions, have been pronounced by the two Appellate Courts to have force of law and that parties, must adhere strictly to them. See the cases ofΒ Abubakar v. INEC (2004) 11 WRN 147 @ 161 – 162 C.A.;Β Owuru v. Awuse (2004) All FWLR 1425 @ 1439Β andΒ Buhari v. INEC (2008) 4 NWLR (Pt.1078) 546.
Of course and without any doubt whatsoever, I completely agree with the submissions of the Appellants in their paragraphs 10.6 and 10.7 of their brief that firstly, the determination by the Tribunal sitting as a Tribunal, instead of the pre-trial session, is without jurisdiction and therefore, null and void. I will add that it is without any effect whatsoever.
P.20
Secondly, as I stated earlier in this judgment, being a jurisdictional question or issue, it could or can be raised at any stage of the proceedings including on appeal. At page 21 paragraph 10.7 of the Appellant Briefs, the case ofΒ Amadi v. NNPC 2006 SCNJ at page 11 (sic)Β is cited (i.e. the month is not stated) it is reported asΒ Captain Amadi v. NNPC (2000) 6 SCNJ 1.
Thirdly that once an act is without jurisdiction as in the instant case, the proceedings, and the decision therein, are void, no matter how well conducted. The case ofΒ Adesola v. Alhaji Abidoye & anor (1999) 12 SCNJ 61 @ 79Β is not quite correctly cited (it is also reported inΒ (1999) 10 – 12 S.C. 109). This position of the law is not only trite, but it is also well settled. In other words, there is no doubt that a judgment or order by a court without jurisdiction is a nullity. See also the cases ofΒ Timitimi v. Anabebe 14 WACA 374;Β Adefulu v. Chief Okulaja & 7 ors. (1998) 5 NWLR (Pt.550) 435;Β (1998) 4 SCNJ 139Β and of course,Β Madukolu & ors. v. Nkemdilim (1962) 1 All NLR 587;Β (1962) 2 SCNLR 341; andΒ Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506Β just to mention but a few.
Very interestingly, it appears “muted” that a judgment being a Nullity, need not to be appealed against. In the English case ofΒ March v. Marsh (1945) A.C. 271 @ 284, the Privy Council observed as follows:
“…..if an order is void, the party whom it purports to affect can ignore it, and he who has obtained it will proceed thereon at his peril”.
Lord DenningΒ (of blessed memory) in the case ofΒ Macfoy v. U.A.C. Ltd (1961) 3 WLR 1405 (P.C.) @ 1409Β stated inter alia, as follows:-
“…….If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside.
P.21
It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse”.
[the underlining mine]
In his own dissenting judgmentΒ Bello, CJNΒ (of blessed memory) in the case ofΒ Rossek & 2 ors. v. ACB Ltd & 2 ors. (1993) 8 NWLR (pt.312) 382 @ 471 – 472;Β (1993) 10 SCNJ 20 @ 82Β stated inter alia, as follows:
“It has never been the law of Nigeria as some of our judges like judicial robots, have been parroting the dicta of Lord Denning in Macfoy v. U.A.C. that there is no need for an order of a court which is void to be set aside by a court and thereby implying that all and sundry have the right to disobey the order. It is not the law of England: Isaacs v. Robertson. It has never been the law that a party may review a judgment, regard it a nullity and disobey it. A prisoner who thinks that his conviction was a nullity cannot with impunity walk out of prison. Similarly a judgment debtor cannot lawfully resist execution because he considers the judgment against him was null and void. Thus a judgment of a court of law remains valid and effective unless it is set aside by an appeal court or by the lower court itself if it acted without jurisdiction or in the absence of an aggrieved party”.
His Lordship referred to other decided authorities. This pronouncement which of course is the law in this country, gives support to the present appeal which I too, hold is meritorious in view of the fact that the Practice Direction which has the force of law, make it mandatory, that motions and/or objections on points of law, can only be taken and determined by the Tribunal or court in or at its pre-trial or pre-hearing session which is a condition precedent.
P.22
This provision with respect, was breached by the Tribunal. For its effect or consequence, see also the cases ofΒ Adesolu v. Abidoye (supra);Β Chief Okereke v. Alhaji M. S. Yar’Adua & 34 ors. (2008) 4 S.C. (Pt.1) 206 @ 228 – 229 – per Muhammad, JSCΒ and @Β pages 238 – 240 – per Onnoghen, JSCΒ andΒ Hope Democratic Party (HDP) v. INEC & 4 Ors. (2009) 3 – 4 SCNJ. 106; (It is also reported inΒ (2009) 3 SCNJ 45) andΒ (2009) 8 NWLR (Pt.1143) 297) all referred to and relied on by the Appellants in their Brief except the complete citations of the said cases as supplied by me.
Before concluding this judgment, I will touch even briefly, on the issue or principle in respect of the laid down procedure in a statute or rules of court which was also briefly discussed inΒ Chief Okereke v. Yar’Adua & ors. case (supra) @ page 238 – per Onnoghen, JSC. It is now firmly established that where a statute lays down a procedure for doing a thing, there should be no other method of doing it. See the cases ofΒ CCB Plc v. The Attorney-General of Anambra State (1992) 10 SCNJ 37 at 163;Β Buhari v. Yusuf (2003) 6 S.C. (pt.II) 156;Β (2003) 4 NWLR (Pt.841) 446 @ 492. In the case ofΒ Mr. Adesola v. Alhaji Abidoye & anor. (supra),Β Iguh JSCΒ @ page 96 stated that, where a special statutory provision is laid down, that procedure, ought to be followed and complied with unless it is such that may be waived.
In the instant case leading to this appeal, the necessary procedure to be adopted in case of a motion or objection on a point(s) of law, appears to be specifically laid down in paragraph 3(2)(a), 3(7) and 6(1) and (4) of the Election Tribunal and Court Practice Directions, 2007. Regrettably, unfortunately or deliberately, the Tribunal with respect, ignored or discountenanced the said procedures. I will refrain from speculating anything.
P.23
It is from the foregoing and the fuller lead judgment of my learned brother,Β Onnoghen JSC, that I too, allow the appeal which is meritorious. I too, hereby set aside the said Ruling and also remit the case or Petition to the Court of Appeal for re-hearing on its merits by another Panel to be constituted by the President of that court.
Costs follow the event. I accordingly awardΒ N50,000.00 (Fifty thousand naira)Β against each set of the Respondents – i.e. (1st and 2nd Respondents and 3rd to 41st Respondents respectively) payable by each of them to the Appellants.
β F. F. TABAI, J.S.C.:
I have read before now the lead judgment of my learned brother ONNOGHEN JSC and I entirely agree with the reasoning and conclusion that the appeal be allowed and is accordingly allowed. I also adopt the order on costs as assessed in the lead judgment.
β M.S. MUNTAKA-COMMASSIE J.S.C:Β
β OLUFUNLOLA OYELOLA ADEKEYE, J.S.C:Β
I was privileged to read before now, the judgment just delivered by my learned brother,Β W.S.N. Onnoghen, J.S.C.Β On the 22nd of August, 2007, a preliminary objection was moved at the hearing of the presidential election petition before the presidential election tribunal. At that stage of hearing of the petition, the respondents, Alhaji Umaru Musa Yar’Adua and 40 ors had joined issues with the petitioners, Dr. Arthur Agwuncha Nwankwo and two others. After hearing the argument and submission of the parties, the presidential tribunal ruled that the preliminary objection to the petition on the ground of incompetence raised by the 3rd – 41st respondents was sustained. It was established that the petition was not initiated by due process of law.
P.47
The mandatory procedural requirement stipulated in paragraph 4(1) of the first schedule to the Electoral Act, 2006, and section 144(2) of the said act were not followed. The petition filed on 18/5/2007 was consequently struck out. Being aggrieved by the decision of the lower tribunal the appellants came to this court on appeal against the ruling. In the notice of appeal filed on 21/9/07, the appellants raised six grounds of appeal out of which eight issues were distilled for determination as follows:-
(1) whether the appellants’ petition was incompetent defective and not initiated by due process of the law.
(2) whether there is non-compliance by the appellants as petitioners with the mandatory provisions of paragraphs 4(1) (d) of the first schedule to the Electoral Act, 2006 and s.144(2) of the Electoral Act, 2006 in the contents of the petition and the documents annexed thereto.
(3) whether it was not too late for the court of appeal to entertain the preliminary objection dated 2nd august, 2007 after all the respondents have joined issues with the petitioners by filing their respective replies prior to the hearing of the preliminary objection.
(4) whether it is proper for the court of appeal to resolve and decide on all the substantive issues in the petition in the course of ruling on the 3rd to 41st respondents’ preliminary objection.
(5) whether the petitioners were not denied their constitutional right to fair hearing having regard to all the circumstances of this case.
(6) whether the provisions of s.37(1) of the Electoral Act, 2006 does not make it mandatory for the presidential election held on 21st April, 2007 to be countermanded or postponed following the death of a nominated presidential candidate after the time for the delivery of nomination papers and before the commencement of the poll.
P.48
(7) whether the provision of S.13(1) (a) is not applicable to 1st and 2nd respondents as serving state governors at the date of the presidential election held on 21st April, 2007.
(8) whether having regard to the provisions of paragraph (1) of the electoral (sic) tribunal and court practice amendment directions 2007 (No.1) and paragraph 49(2) of the first schedule to the Electoral Act 2006, the hearing and determination of the preliminary objection by the court of appeal was not without jurisdiction.”
I wish to say a few words in respect of issue eight, it is however worthy of note that the appellants in their notice of appeal raised only seven grounds of appeal – but surprisingly settled eight issues for determination out of them, it is trite law that issues for determination must flow from the grounds of appeal. An appellant is therefore not permitted to raise issues in excess of his grounds of appeal. Having one issue more than the seven grounds of appeal is totally not in line with the contemplation of the law relating to formulation of issues for determination in an appeal. It amounts to proliferation of issues which is not acceptable. The multiplicity of issues more than the grounds of appeal is discountenanced.
Unilorin v. Oluwadare (2003) 3 NWLR pg. 808 pg. 557
Padawa v. Yatau (2003) 5 NWLR pt. 813 pg. 247
Sogbesan v. Ogunbiyi (2006) 4 NWLR pt. 969 pg. 19.
Issue Eight
Whether having regard to the provisions of paragraph 6 (1) of the Electoral Tribunal and Court Practice Amendment Direction 2007 (no.1) and paragraphs 49(2) of the first schedule to the Electoral Act 2006, the hearing and determination of the preliminary objection by the court of appeal was not without jurisdiction.
P.49
The Electoral Act, 2006 and Court Practice Amendment Direction 2007 cover all election petitions, which challenge the validity of elections into the office of president and vice president of the Federal Republic of Nigeria. By virtue of section 239 of the 1999 Constitution, the court of appeal has the original jurisdiction to hear and determine any question as to whether any person have been validly elected to the office of president or vice president under the constitution.
The rules of procedure for the election petitions are as stipulated by law as follows;-
Section 151 of the Electoral Act 2006 which says that:-
“the rules of procedure to be adopted for election petitions and appeals arising therefrom shall be those set out in the first schedule to this act.”
Under the first schedule paragraphs 49(2), (3) and (5) state that:-
Paragraph 49(2)
“An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”
Paragraph 49(3)
“An application to set aside an election petition or a proceeding pertaining thereto shall show clearly the legal grounds on which the application is based.”
Paragraph 49(5)
“An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed.”
P.50
Paragraph 51
“Subject to the provisions of this act, an appeal to the court of appeal or to the supreme court shall be determined in accordance with the practice and procedure relating to appeals in the court of appeal or of the supreme court as the case may be, regard being had to the need and urgency on electoral matters.”
The president of the court of appeal clothed with powers under the constitution and the Electoral Act, 2006 promulgated the Election Tribunal & Court Practice Directions 2007. While the first schedule to the Electoral Act, 2006 sets out rules of procedure regarding the practice and procedure in election tribunals, what the practice direction does is to guide and regulate compliance with and the observance of the said rules governing the practice and procedure in election tribunals by setting out how and when things are to be done. This helps to avoid absurdity in the application of the rules. The practice directions, as rules of court promulgated for the purpose of making the rules more efficacious, must be complied with and should not at anytime be circumvented. No favour should be shown for non-compliance with the practice direction.
Ladipo v. Oduyoye (2004) 1 fpr pg. 705
Ojugbele v. Lamidi (1999) 10 NWLR pt. 621, pg. 162 at 177.
Paragraph 3 of the Election Tribunal and Court Practice Directions 2007 is all about what should be done at the pre-hearing session of the petition.
As regards motions and applications
Paragraph 6(1) states that-
“no motion shall be moved. All motions shall come up at the pre-hearing session except in extreme circumstances with leave of tribunal or court.”
The foregoing is surely a mandatory provision because the operative word there is “shall”.
P.51
The wordΒ shallΒ when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.
Bamaiyi v. A.G. Federation (2001) 12 NWLR pt. 722 pg. 468
Ifezue v. Mbadugha (1984) 1 SCNLR pg. 427
Chukwuka v. Ezulike (1986) 5 NWLR pt. 45 pg. 892
Ngige v. Obi (2006) 14 NWLR pt. 991, pg. 1.
It is also the cardinal principle of interpretation of statutes that where the words used in the provisions of a statute are clear, simple and unambiguous, they should be given their simple, natural and ordinary meaning.
Salami v. Chairman L.E.D.B. (1989) 5 NWLR pt. 183, pg. 539
Ogbonna v. A.G. Imo State (1992) 1 NWLR pt. 220 pg. 447
Awolowo v. Shagari (1979) 6-9 S.C., pg. 51
Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR, pt. 91 pt. 622
Alamieyesegba v. FRN (2006) 16 NWLR pt. 1004 pg. 1.
NNPC v. Lutin Investment (2006) 2 NWLR pt. 965; pg. 506.
Excepting to the practice direction that motions shall be heard at the pre-hearing session is in extreme circumstance. The application before the court is surely not one of the situations envisaged.
In the like manner paragraph 3(2) directs that:
“disposal of all matters which can be dealt with on interlocutory application, is at the pre-hearing session.”
Again paragraph 3(7) is to the effect that at the pre-hearing stage, the tribunal shall consider and take appropriate action in respect of the following as may be necessary or desirable particularly under paragraph 3(7) (d) – hearing and determination of objections on point of law.
P.52
The decision now on appeal is not only interlocutory but also on point of law, hence it offends against paragraph 6(1) of the Election Tribunal & Court Practice Directions 2007. The tribunal can only dispose of it at its pre-hearing sessions. Non-compliance with the practice direction is fundamental as it vitiates all steps taken at the trial resulting in nullity. Where early proceedings are begun other than as provided by the rules, such proceedings are incompetent.
In the instance of this case, failure to comply with the provision of paragraph 6(1) of the Election Tribunal and Court Practice Directions 2007 invalidates the steps taken by the presidential election tribunal in the hearing of the application and its decision in the ruling delivered on 3/9/07.
A court is only competent to exercise jurisdiction in respect of any matter where –
(a) it is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or the other.
(b) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and
(c) the case comes by due process of law and upon fulfillment of any condition precedent to the exercise of Jurisdiction.
A.G. Anambra State v. A.G. Federation (1993) 6 NWLR (pt. 302) pg. 892.
Madukolu v. Nkemdilim (1962) 2 SCNLR pg. 341.
The ruling delivered by the presidential election tribunal on 3/9/07 is hereby declared null and void and consequently set aside. The appeal is allowed. Since the court cannot invoke section 22 of the Supreme Court Act to hear the petition as if it were the presidential election tribunal, the petition is ordered to be remitted to re-trial before another differently constituted panel of presidential election tribunal of the court of appeal.
P.53
Dissenting Opinion(s)
None
REFERENCES
Research enhancement β dynamically linked
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2. ACB Plc v. Odulawe (2005) All FWLR (Pt.276) 804 β P.17 (cited by Ogbuagu, JSC)
3. Adefulu v. Chief Okulaja & Ors (1998) 5 NWLR (Pt.550) 435; (1998) 4 SCNJ 139 β P.21 (cited by Ogbuagu, JSC)
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22. Buhari v. Yusuf (2003) 6 S.C. (Pt.II) 156; (2003) 4 NWLR (Pt.841) 446 β P.23 (cited by Ogbuagu, JSC)
23. Captain Amadi v. NNPC (2000) 56 SCNJ 1 β P.2 (cited by Onnoghen, JSC)
24. CCB Plc v. A.G. Anambra State (1992) 8 NWLR (Pt.261) 528; (1992) 10 SCNJ 37 β P.7, P.13, P.23 (cited by Onnoghen, JSC; Ogbuagu, JSC)
25. Chief Okereke v. Alhaji M.S. Yar'Adua & Ors (2008) 4 S.C. (Pt.1) 206 β P.22 (cited by Ogbuagu, JSC)
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40. Kanuri v. Dalori (1986) 6 NWLR (Pt.536) 149 β P.36, P.39, P.41 (cited by 3rdβ41st respondents' counsel; Muntaka-Coomassie, JSC)
41. Kasa v. The State (1994) NLC-2121993(SC) β (Example in Master Prompt)
42. Ladipo v. Oduyoye (2004) 1 FPR 705 β P.51 (cited by Adekeye, JSC)
43. Macfoy v. U.A.C. Ltd (1961) 3 WLR 1405 (P.C.) β P.21 (cited by Ogbuagu, JSC)
44. Madukolu v. Nkemdilim (1962) 1 All NLR 587; (1962) 2 S.C.N.L.R. 341; (1962) 2 SC NWLR 341 β P.3, P.16, P.18, P.21, P.52 (cited by Mohammed, JSC; Ogbuagu, JSC; Adekeye, JSC)
45. March v. Marsh (1945) A.C. 271 β P.21 (cited by Ogbuagu, JSC)
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47. Martins v. A-G Federation (1992) 1 SCNLR 209 β P.36 (cited by 3rdβ41st respondents' counsel)
48. Nalsa & Team Associates v. NNPC (1996) 3 NWLR (Pt.439) 621; (1996) 3 SCNJ 50 β P.18 (cited by Ogbuagu, JSC)
49. Ngige v. Obi (2006) 14 NWLR (Pt.991) 1 β P.51 (cited by Adekeye, JSC)
50. NNPC v. Lutin Investment (2006) 2 NWLR (Pt.965) 506 β P.51 (cited by Adekeye, JSC)
51. Ntuka v. NPA (2007) 31 NSCLR 430 β P.36 (cited by 3rdβ41st respondents' counsel)
52. Nwobodo v. Onoh (1984) 1 SCNLR 1 β P.33 (cited by appellants' counsel)
53. Nwosu v. Imo State Environment Sanitation Authority (1990) All NLR 379 β P.33 (cited by appellants' counsel)
54. Nwosu v. Udeaja (1990) 1 NWLR (Pt.125) 188 β P.30 (cited by Muntaka-Coomassie, JSC)
55. Nzeribe v. Dave Engineering Company Limited (1994) NLC-2551990(SC) β (Example in Master Prompt)
56. Oduka v. S.C. Sheep Horiman Grachi (1997) 5 SCNJ 216 β P.45 (cited by Muntaka-Coomassie, JSC)
57. Ogbonna v. A.G. Imo State (1992) 1 NWLR (Pt.220) 447 β P.51 (cited by Adekeye, JSC)
58. Ojukwu v. Government of Lagos State (1986) 3 NWLR (Pt.26) 39 β P.45 (cited by Muntaka-Coomassie, JSC)
59. Ojugbele v. Lamidi (1999) 10 NWLR (Pt.621) 162 β P.51 (cited by Adekeye, JSC)
60. Okereke v. Yar'Adua (2008) 4-5 S.C. (Pt.1) 206 β P.8, P.14 (cited by Onnoghen, JSC)
61. Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 3 SC 140 β P.33 (cited by appellants' counsel)
62. Okotie-Eboh v. Ebiowo Manager (2004) 12 SCNJ 139 β P.45 (cited by Muntaka-Coomassie, JSC)
63. Oniah v. Onijia (1989) 1 NWLR (Pt.99) 514 β P.30 (cited by Muntaka-Coomassie, JSC)
64. Otapo v. Sunmonu (1987) NWLR (Pt.58) 587 β P.33 (cited by appellants' counsel)
65. Owuru v. Awuse (2004) All FWLR 1425 β P.20 (cited by Ogbuagu, JSC)
66. Padawa v. Yatau (2003) 5 NWLR (Pt.813) 247 β P.49 (cited by Adekeye, JSC)
67. Rossek & Ors v. ACB Ltd & Ors (1993) 8 NWLR (Pt.312) 382; (1993) 10 SCNJ 20 β P.22 (cited by Ogbuagu, JSC)
68. Saidu v. Abdullahi (1989) 4 NWLR (Pt.116) 387 β P.41 (cited by Muntaka-Coomassie, JSC)
69. Salami v. Chairman L.E.D.B. (1989) 5 NWLR (Pt.183) 539 β P.51 (cited by Adekeye, JSC)
70. Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23 β P.33 (cited by appellants' counsel)
71. Shitta-Bey v. Attorney-General of the Federation & Anor (1998) 10 NWLR (Pt.) 392; (1998) 7 SCNJ 264 β P.18 (cited by Ogbuagu, JSC)
72. Shittu v. Fashawe (2005) 14 NWLR (Pt.946) 671 β P.7, P.30 (cited by Onnoghen, JSC; Muntaka-Coomassie, JSC)
73. Sogbesan v. Ogunbiyi (2006) 4 NWLR (Pt.969) 19 β P.49 (cited by Adekeye, JSC)
74. Sylvanus Mortune v. Alhaji Mohammed Gambo (1983) 4 NCLR 237 β P.45 (cited by Muntaka-Coomassie, JSC)
75. Timitimi v. Anabebe 14 WACA 374 β P.21 (cited by Ogbuagu, JSC)
76. Unilorin v. Oluwadare (2003) 3 NWLR 808 β P.49 (cited by Adekeye, JSC)
Referenced Statutes
1. Constitution of the Federal Republic of Nigeria, 1999 β P.3, P.50
o Section 1(3) β P.35
o Section 6(6)(a) and (b) β P.3
o Section 132(2) β P.33
o Section 137(1)(g) β P.11, P.28, P.29, P.33, P.34, P.35, P.36
o Section 239 β P.50
2. Electoral Act, 2006 β P.1, P.2, P.3, P.4, P.8, P.9, P.11, P.26, P.27, P.28, P.29, P.31, P.33, P.34, P.35, P.36, P.37, P.38, P.39, P.40, P.41, P.42, P.43, P.45, P.48, P.49, P.50
o Section 29 β P.31, P.38
o Section 37(1) β P.4, P.9, P.11, P.28, P.29, P.33, P.35, P.36, P.45, P.48
o Section 144(2) β P.3, P.27, P.34, P.43, P.48
o Section 145 β P.31
o Section 145(1) β P.31
o Section 151 β P.50
o First Schedule β P.2, P.3, P.4, P.11, P.26, P.27, P.28, P.29, P.31, P.32, P.34, P.35, P.36, P.37, P.39, P.40, P.41, P.42, P.48, P.49, P.50
ο§ Paragraph 4(1)(a) β P.2, P.25, P.26, P.36
ο§ Paragraph 4(1)(d) β P.3, P.11, P.27, P.31, P.34, P.35, P.36, P.37, P.39, P.41, P.42, P.48
ο§ Paragraph 4(2) β P.2, P.25, P.26, P.36
ο§ Paragraph 4(4) β P.2, P.25, P.26
ο§ Paragraph 4(6) β P.3
ο§ Paragraph 5 β P.31, P.42
ο§ Paragraph 6(1) β P.48
ο§ Paragraph 14 β P.40
ο§ Paragraph 17 β P.40, P.43
ο§ Paragraph 17(1) β P.39, P.40
ο§ Paragraph 17(2) β P.40
ο§ Paragraph 17(3) β P.40
ο§ Paragraph 49 β P.32
ο§ Paragraph 49(2) β P.4, P.10, P.28, P.34, P.49, P.50
ο§ Paragraph 49(3) β P.50
ο§ Paragraph 49(5) β P.50
ο§ Paragraph 50 β P.41
ο§ Paragraph 51 β P.50
3. Supreme Court Act β Section 22 β P.15, P.53
