3PLR – ALHAJI KASHIM SHETTIMA & ANOR V. ALHAJI MOHAMMED GONI & ORS

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALHAJI KASHIM SHETTIMA & ANOR

V.

ALHAJI MOHAMMED GONI & ORS

IN THE SUPREME COURT OF NIGERIA

ON MONDAY, THE 31ST DAY OF OCTOBER, 2011

SC.332/2011 (CON)

3PLR/2010/4 (SC)

 

 

BEFORE THEIR LORDSHIPS

WALTER SAMUEL NKANU ONNOGHEN, JSC

JOHN AFOLABI FABIYI, JSC

SULEIMAN GALADIMA, JSC

SYLVESTER NWALE NGWUTA, JSC

MARY PETER-ODILI, JSC

BETWEEN

1. ALHAJI KASHIM SHETTIMA
2. ALHAJI ZANNA UMAR MUSTAPHA – SC.332/2011

AND

ALL NIGERIA PEOPLES PARTY – SC.333/2011

AND

1. ALHAJI MOHAMMED GONI
2. PEOPLES DEMOCRATIC PARTY (PDP) – SC.352/2011
   (CONSOLIDATED) Appellant(s)

AND

1. ALHAJI MOHAMMED GONI
2. AMBASSADOR SAIDU SHETTIMA PINDAR
3. PEOPLES DEMOCRATIC PARTY (PDP) – SC.332/2011
4. ALL NIGERIA PEOPLES PARTY
5. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

AND

1. ALHAJI MOHAMMED GONI
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – SC.333/2011
4. ALHAJI KASHIM SHETTIMA
5. ALHAJI ZANNA UMAR MUSTAPHA

AND

1. ALHAJI KASHIM SHETTIMA
2. ALHAJI ZANNA UMAR MUSTAPHA
3. ALL NIGERIA PEOPLES PARTY – SC.352/2011
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (CONSOLIDATED) Respondent(s)

REPRESENTATION

Yusuf Ali, SAN for the 1st appellant in SC/332/2011
Dr. Izinyon, SAN for the appellant in SC.333/2011
L. O Fagbemi, SAN for appellant in SC.352/2011 – For Appellant

AND

Adebayo Adenipekun, SAN with him are messrs; A.S Adeyi, Esq; Dr. W.O Egbewole; I. M Chul, Esq; Usman Tatama, Esq; Boye Sobanjo, Esq; A. M Kura, Esq; A. F Fagbola (Mrs); Mas’ud Alabelewe, Esq; K. K Eleja, Esq; Etyukwu Onah, Esq; S.A. Oke Esq; Wahab Ismail, Esq; Alex Akoja, Esq; B. Karumi, Esq; A.O Olori-Aje, Esq; S. O. Babakebe, Esq; B. S Zanna, Esq; K.T. Sulyman (Miss); T.E. Akintade (Miss); P.I. Ikegbu (Mrs); K.O. Lawal, Esq; Kehinde Ogunwumiju, Esq. for 4th & 5th respondents in S.C 333/2011 and 1st & 2nd respondents in SC.352/2011

Chief Lawal Rabana, SAN; with him are B. K Abu, Esq; K. S Lawan, Esq; F. O Izinyon, Esq, Wale Odeleye, Esq; B.S. Zanna, Esq; A. H Goni, Esq; L. O. Fagbemi, Esq, Alex Izinyon II, Esq. – for4th respondent in SC.332/2011 and 3rd respondent in SC. 352/2011
Chief J. K Gadzama, SAN; T. Oyetibo, SAN; Chief Bolaji Ayorinde, SAN; Wale Akoni, SAN; Dr. Joseph Nwobike, SAN; with him are messrs J. N Egwuonwu, Esq; I. A Kaigama, Esq; M. Monguno, Esq; M. V. Magi, Esq; A. C Ozioko, Esq; Z. Hamza, Esq; C. P Oli, Esq; A. A Modu, Esq; M. S Dukas, Esq; M. Burkaa, Esq; N. N Shaltha (Miss); A. S Akingbade, Esq; O. I Arasi, Esq; L. Imolode, Esq; K.S Umar, Esq; U.M Jawur, Esq; C.E Uwandu, Erq; F. Oshunwusi (Miss): M.A Tar, Esq; B. G Shettima, Esq; I. H Ngada, Esq; J. M Ugbeji (Miss) A. A Abbo, Esq; M. A Oladele, Esq; G.A Ashaolu, Esq; P. C Igwenazor, Esq; F. I Nwodo, Esq. Paul Erokoro, Esq, SAN for 5th respondent in SC.332/201, 3rd respondent in SC.333/2011 and 4th respondent in SC.352/2011 with him are Ifeyinwa Arum (Miss); K. Odey, Esq; p. Abang, Esq; J. Omokri (Miss); C. Ajaegbu (Miss) and Swaben Audu. – For Respondent – for 1st – 3rd respondents in SC.332/2011 and 1st & 2nd respondents in 333/2011

ORIGINATING STATE

Borno state Governorship Election Tribunal

MAIN ISSUES

ELECTION PETITION:– Designated timeline for the hearing of an appeal from a decision of an election tribunal – Duty of court thereto – Effect of failure thereat

PRACTICE AND PROCEDURE – ACTION:- Academic action – Duty of court thereto

PRACTICE AND PROCEDURE – APPEAL:– Appellate jurisdiction – Whether can be invoked where there is no complaint against any act or omission of the trial Court

PRACTICE AND PROCEDURE – APPEAL:–  Fresh Issues – Whether appellant can raise new issues on appeal – Proper treatment of

PRACTICE AND PROCEDURE – APPEAL:– Grounds of appeal  – Need for same to attack or complain about the ratio in the judgment on appeal – Effect of failure thereto

PRACTICE AND PROCEDURE – COURT – POWER OF COURT:- When jurisdiction of Supreme Court under Section 22 of the Supreme Court Act arises

PRACTICE AND PROCEDURE – JUDGMENT AND ORDERS – ARREST OF JUDGMENT:- Whether the rules of court have any provision for arrest of judgments about to be delivered by a court

INTERPRETATION OF STATUTE:- Sections 285(5) (b), (7), 294 (1) of the constitution of the Federal Republic of Nigeria 1999 (as amended/altered) – Section 142 of the Electoral Act, 2010-paragraph 18(1) of the Election Tribunal and Court Practice Directions, 2011 – Interpretation of

WORDS AND PHRASES – decision – difference between the words “decision” and “judgment” as used in Section 285(7) of the 1999 Constitution -‘shall’

MAIN JUDGMENT

WALTER SAMUEL NKANU ONNOGHEN, J.S.C (Delivering the Leading Judgment):

Appeal Nos. SC/332/2011 and SC/333/2011 are against the ruling of the Court of Appeal Holden at Jos delivered on the 19th day of September, 2011 in appeal No. CA/J/EPT/GOV/151/2011 staying the ruling and proceedings of the Borno state Governorship Election Tribunal while No SC/352/2011 is against the decision of the said lower court delivered on the 26th day of September, 2011 in which the court adjourned the appeal pending before it sine die following the entry of appeal Nos. SC/332/2011 and SC/333/2011 at the Supreme Court of Nigeria.

The appellants in SC/352/2011 are the petitioners before the Borno state Governorship Election Tribunal, Holden at Maiduguri, in petition No.BO/EPT/GOV/1/11 filed on the 17th day of May, 2011 challenging the return of the 1st, 2nd and 3rd respondents in SC/352/2011 who are also the appellants on SC/332/2011 and SC/333/2011 respectively.

Due to serious security challenges the venue of the tribunal was relocated to Abuja from Maiduguri in Borno state.

At the conclusion of pleadings the 1st – 3rd respondents in SC/332/2011 filed a motion Ex-Parte on the 29th day of June, 2011 at the Tribunal seeking the issuance of Pre-Hearing Notice and Pre-Hearing Information Sheets pursuant to paragraph 18(1) and (2) of the 1st schedule to the Electoral Act, 2010 (as amended) and order 26 Rule 8 of the Federal High Court (Civil Procedure) Rules, 2009. The issue was raised as to whether the application ought to have been made by Motion on Notice instead of the Motion Ex-Parte.

In a considered ruling on the 10th day of August, 2011 the tribunal struck out the Ex-Parte motion for failure to comply with the provisions of paragraph 47(2) of the 1st schedule to the Electoral Act, 2010 (as amended) which provisions the tribunal considered mandatory.

The 1st – 3rd respondents were aggrieved by the ruling and consequently appealed against same on 12th August, 2011 and, in addition filed a motion on Notice on 11th August, 2011 for extension of time within which to apply for Pre-hearing Notice.

The appellant and 4th and 5th respondents in SC/332/2011 filed processes at the Tribunal seeking a dismissal of the petition on the ground that same be/is deemed abandoned for failure of 1st – 3rd respondents to file their application for Pre-Hearing Notice in compliance with paragraph 18(1) of the 1st schedule to the Electoral Act, 2010 (as amended) and the ruling thereon was adjourned to 20th September, 2011 after arguments on 2nd August, 2011.

Meanwhile the appeal filed by the 1st – 3rd respondents challenging the decision of the Tribunal on the Ex-parte application was rescheduled for 19th September, 2011 from 21st September, 2011.

On the 19th day of September, 2011 learned senior counsel for the 1st – 3rd respondents who are also appellants in SC/352/2011 informed the lower court that there was a pending ruling in applications to dismiss the petition adjourned to 20th September, 2011 and urged the court to invoke its powers under section 15 of the court of Appeal Act, 2004 to protect/preserve its jurisdiction to hear and determine the appeal, which application was opposed by the other parties including the appellant in SC/332/2011. The lower court acceded to the request of senior counsel for the 1st – 3rd respondents and made an interim order arresting or staying the delivery of the pending ruling of the Tribunal scheduled for 20th September, 2011. Appeal Nos. SC/332/2011 and SC/338/2011 are against that ruling. Following the appeal against the ruling of 19th September, 2011, the appellants also filed an application for stay of the proceedings of the lower court pending the determination of the appeals before this court.

On the 26th day of September, 2011 when appeal No. CA/J/EPT/GOV/151/2011 came up for hearing at the lower court, learned senior counsel for the respondents therein objected to the hearing of the appeal on the grounds, inter alia, that appeal Nos. SC/332/2011 and SC/333/2011 had been entered at the Supreme Court etc as a result of which the lower court adjourned the appeal sine die.

Appeal No. SC/352/2011 is challenging the decision of the lower court in so adjourning the appeal sine die.

A common issue therefore links the two set of appeals which issue is whether the lower court has the power or jurisdiction to arrest a ruling/stay proceedings/adjourn proceedings sine die in an election matter having regards to the state of the law and nature of election matters. At the hearing of the appeals on the 24th day of October, 2011 this court consolidated the three appeals upon application by both counsel and heard same accordingly after which they were adjourned to today, 31st October, 2011 for judgment.

The issues for determination in SC/332/2011, as formulated by leading learned senior counsel for the appellants, YUSUF ALI ESQ, SAN in the appellants brief filed on 12th day of October, 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 practices Directions 2011, the court below was right or possess 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” On his part learned senior counsel for the 1st – 3d respondents in SC/332/2011, CHIEF JOE-KYARI GADZAMA, SAN, in the 1st -3rd respondents brief deemed filed and served on 24th October, 2011 formulated a single issue for determination, to wit:-

“Whether paragraph 18 of the Election Tribunal and Court practice Directions 2011 supersedes the provisions of sections 6(6)(a), 24(6)(i) (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”.

Learned senior counsel for 4th respondent DR ALEX A. IZINYON, SAN adopted the two issues formulated by the appellants in his brief filed on 21st October, 2011.

It should be noted that 5th respondent filed no brief of argument but urged the court during oral arguments to allow the appeal. The fight is therefore between appellants and 1st – 3rd respondents.

However, the issues formulated on behalf of the contending parties are so different as to make one wonder whether they really arise from the grounds of appeal filed in the appeal before us.

The amended grounds of appeal filed on 4th October, 2011 are as follows:-

“GROUND 1.

The learned justices of the Court of Appeal erred in law and acted without jurisdiction in granting an interim order stopping the trial tribunal from proceeding to deliver its ruling on 20th September, 2011 contrary to the mandatory provisions of paragraph 18 of the Election tribunal and Court Practice Direction 2011, made by the President of the Court of Appeal for the regulation of proceedings before the trial tribunal.

PARTICULARS.

1. The practice direction forbids the granting of a stay of proceedings in an interlocutory appeal, from stopping the work of the tribunal.
2. The provisions of paragraph 18 were couched in mandatory language.
3. The order made by the court below was a nullity having regards to the provisions of the law.

GROUND 2.

The learned Justices of Court of Appeal erred in law and acted in excess of jurisdiction and against the spirit and intendment of the Electoral Act, 2010 (as amended) when it granted an interim order directing (sic) the trial tribunal from delivering of its ruing of 20th September, 2011.

PARTICULARS.

Section 142 of the Electoral Act, 2010 (as amended) mandatorily requires all court (sic) dealing with election matters to give it precedence over all other matters. The said section also mandatorily requires accelerated hearing of election cases.

3. The order of the court below was a clear antithesis of the provisions of Section 142 of the Electoral Act, 2010 (as amended).

GROUND 3

The court below erred in law by granting an interim order to stop the trial tribunal from delivering its ruling, which order was made per in curiam having regard to the provisions of Section 142 of the Electoral Act (as amended) and paragraph 1B of the Election tribunal court Practice Direction 2011.

PARTICULARS.

1. The order of the court below was made in ignorance of the mandatory provisions of the Electoral Act, 2010 (as amended).
2. The court below did not advert its mind to the mandatory provisions of the Electoral Act, 2010 (as amended) and the Practice Direction, in making the order.

GROUND 4.

The Learned Justices of the court below erred in law in granting an interim order against the trial tribunal from delivering its ruling on 20th September, 2011, which amounted to an arrest of the said ruling, thereby promoting a procedure that is alien to the Nigeria jurisprudence.

PARTICULARS.

1. The procedure for the arrest of judgment is unknown under the Nigerian law.
2. There are the highest judicial authorities of the apex court disavowing any procedure that amounts to the arrest of the judgment or ruling of a court.
3. The order of the court below flew in the face of the settled position of our law as espoused by the decision of the Supreme Court.
4. The order led to a grave miscarriage of justice.

GROUND 5

Learned Justices of the court below misdirected themselves in granting an interim order in stopping the trial tribunal from delivering its ruling on 20th September, 2011, on the assumption that the appeal before it was ripe for hearing when factually this was not so from the record.

PARTICULARS.

1. The court below has a legal duty to consult its record in determining whether an appeal is ripe for hearing or not based on the processes filed.
2. On 19th September, 2011, when the appeal was called up for hearing, all the briefs had not been filed nor exchanged between the parties.
3. The Appellants herein had a pending motion for extension of time and leave to file Respondents Notice and Brief of Argument thereon
4. The Appellants equally had a pending motion to file Respondents Brief.
5. These motions were extant and had not been heard.
6. In granting the order, the court below, with respect, put the cart before the horse”.

It is very obvious that the sole issue formulated by learned senior counsel for the 1st – 3rd respondents and reproduced supra does not arise from the amended grounds of appeal filed by the appellants and also reproduced supra. However, in deciding the appeals arguments of learned senior counsel for the 1st – 3rd respondents relevant to the issue(s) in contention will be taken into account even though the sole issue, as formulated by him, is hereby discountenanced for not arising from the grounds of appeal, and therefore incompetent.

It is settled law that grounds of appeal must attack or complain about the ratio in the judgment on appeal while issue(s) is/are formulated from the grounds of appeal, so filed and that any issue for determination not arising from the grounds of appeal is deemed incompetent and liable to be struck out.

The only other way they said sole issue could be taken into account in the determination of the appeal is if 1st- 3rd respondents had filed an appeal or cross appeal or a respondent’s notice in which the constitutionality etc of the provisions in question are challenged in the grounds of appeal as it is settled law that an issue before an appellate court must arise from the grounds of appeal else it is incompetent and liable to be struck out; see Management Enterprises Ltd vs. Ofusanya (1987) 2 NWLR(Pt.55) 179; Oniah vs. Onyia (1989) 1 NWLR (Pt. 99) 514 at 529; Adelaja vs. Fanoiki (1990) 2 NWLR (Pt. 131) 137 at 148; Tinubu vs. I.M.B securities Plc (2000) FWLR (Pt. 77) 1002 at 1023 – 1024.

Have the 1st – 3rd respondents filed any appeal/cross appeal or respondent notice against the decision of the lower court delivered on 19th September, 2011? I have gone through the record and seen nothing of the sort. The conclusion is therefore clear, that the sole issue does not arise from the grounds of appeal filed by appellants neither have 1st – 3rd respondents raised any grounds of appeal/cross appeal or respondent notice from which the said issue could be traced.

Either way, the issue is incompetent and liable to be struck out.

Dr. Alex A Izinyon, SAN formulated a single issue for determination in the appellant brief filed on 12th October, 2011, to wit:

“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/l/11 having regards to the provisions 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 above issue is adopted by learned senior counsel for 4th and 5th respondents therein Yusuf Ali Esq, SAN in the 4th and 5th respondents’ brief filed on 21st October, 2011.

On the other hand, senior counsel for the 1st and 2nd respondents formulated the same issue he raised in SC/332/2011 earlier reproduced in this judgment and is caught by the settled principles of law on formulation of issues for determination in the appellate courts and is consequently subject to the same treatment metted out in SC/332/2011.

The 4th respondent filed no brief of argument but urged the court to allow the appeal during oral arguments. In respect of SC/352/2011, the sole issue formulated for determination in the appellant brief filed on 11th October, 2011 by Chief Joe-Kyari Gadzama, SAN is as follows:-

“Whether the refusal by the learned justices of the court below to hear this Appeal No. CNJ/EPT/GOV/151/2011 on the ground that Appeal 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”.

It is however, the view of senior counsel for 1st and 2nd respondents, Yusuf Ali Esq, SAN that the issue calling for determination in the appeal is:-

“Whether the court below was not right to have adjourned appeal No. CA/J/EPT/GOV/15/2011 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”.

I must state that the above issue goes far beyond the grounds of appeal in the appeal. There is no appeal or cross appeal or respondent notice by the 1st and 2nd respondents to ground the wide issue so formulated. I will, therefore, in the consideration of the appeal prune or limit the issue to only the essential elements relevant to the determination of the appeal and discountenance all else.

From the reproduced issues in the appeals above, it is clear that the issues in SC/332/2011 and SC/333/2011 are similar as the appeals relate to the ruling of 19th September, 2011 and can therefore be conveniently treated together. I intend to so treat them herein below.

In arguing the issues, learned senior counsel for the appellants in sc/332/2011 submitted, in respect of issue 1, that the lower court acted not only in error but in excess of jurisdiction and contrary to the provisions of Section 142 of the Electoral Act, 2010 (as amended) and paragraph 18 of the Election Tribunal and Court Practice Directions, 2011 when it made the order of 19th September, 2011. Senior counsel then proceeded to reproduce the provisions of Section 142 of the Electoral Act, 2010 and paragraph 18 of the Practice Direction, 2011 and submitted that since the provisions are unambiguous, they be given their ordinary meaning; relying on Nwanere vs. Idris (1993) NWLR (Pt. 279) 1 at 14 and NIDB vs Unisteel works Ltd (1995) 3 NWLR (Pt. 356) 696 at 699; that it is clear from the above provisions that the proceedings of a trial tribunal cannot be stalled, stultified or slowed down under any circumstance; that the two provisions are mandatory as the word “shall” is used therein, relying on Nnovo vs. Anichie (2005) 2 NWLR (Pt. 910) 263; that time is of the essence in an election matter/proceeding.

It is the further submission of learned senior counsel that arrest of judgment or ruling is unknown to our laws, relying on News watch Communications vs. Attah (2006) 12 NWLR (Pt.993) 144 or (2006) ALL FWLR (Pt. 318) 580 at 581 and that the lower court was in error when it failed/refused to follow the above decision of this court which was cited and relied upon in opposing the application.

Finally, senior counsel urged the court to resolve the issue in favour of the appellants.

In respect of SC/333/2011, it is the submission of learned counsel for the appellant that the lower court is without jurisdiction in granting the relief complained of relying on the provisions of section 285(5)(b) of the 1999 constitution (as amended) and paragraph 18 of the practice Direction 2011. It is the submission of senior counsel that the word “within” as used in section 285(5) (b) of the 1999 constitution (as amended) admits of no extension of time beyond the 180 days allotted; that the said section 285 (5) (b) therefore does not contemplate stay of proceedings of an election matter, and  urged the court to resolve the issue in favour of the appellant and allow the appeal.

It is the submission of senior counsel for the 1st – 3rd respondents in SC/332/2011 and 1st and 2nd respondents in SC/333/2011 that the lower court has jurisdiction to entertain electoral matters vide the provisions of section 246(1) (b)(i),(ii),(iii) and (2) and (3) of the 1999 constitution and that the powers of the lower court to make orders such as stay of proceedings, execution etc is an inherent power donated by section 6(b) (a) of the 1999 constitution in the interest of justice and to preserve the jurisdiction of the court, relying also on Section 15 of the Court of Appeal Act and La sun v. Awoyemi (2009) 16 NWLR (pt.1168) 513 at 525; that the powers vested on the lower court cannot be inhibited by any subsidiary legislation; that the lower court did not stay proceedings but ordered that the ruling on the dismissal of the petition should abide the appeal; that the lower court did not arrest the judgment/ruling of the trial tribunal as such the case of Newswatch Communications vs. Attah supra does not apply and urged the court to dismiss the appeal.

 

It should be noted that both senior counsel for the appellants in SC/332/2011 and SC/333/2011 filed reply briefs which in effect reinforced the arguments/submission in the main briefs of argument and earlier summarized in this judgment.

 

It is not disputed that the appeal pending before the lower court and in which the controversial order complained of was made on 19th September, 2011 was an interlocutory appeal filed by appellants in SC/352/2011, who are also, the 1st and 2nd respondents in SC/332/2001. Also not disputed is the fact that the appeal was or arose from an election matter pending before an election tribunal.

 

By the provisions of section 285(5)(b) of the constitution of the Federal Republic of Nigeria 1999 (as amended/altered) (herein-after referred to as the 1999 constitution as amended/altered).

“An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition”.

 

In section 142 of the Electoral Act, 2010 (as amended), the National Assembly enacts that:

“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’.

 

The third and final provisions relevant to the determination of the issue and also relied upon by the appellants is paragraph 18(1) of the Election Tribunal and Court Practice Directions, 2011 which Provides thus:-

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

 

It is my considered view that the three provisions quoted supra are clear and unambiguous and by the principles of interpretation of statute, to the effect that where the words of any statute are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the constitution or statute, effect must be given to those provisions without recourse to any other consideration, they ought to be so treated.

 

By the ordinary meaning of the words used in the provisions supra, it is clear that:-

1. An election tribunal must, of necessity deliver its judgment/decision in writing in an election petition within 180 days from the date of the filing of the petition
2. An election petition and an appeal arising therefrom must be given accelerated hearing and must take precedence over all other cases or matters before the tribunal or court.

iii.      An interlocutory appeal shall not operate as a stay of proceedings nor shall it form a ground for stay of proceedings before a tribunal.

 

All the above provisions emphasize the essential nature of an election matter either at trial or on appeal which is that it is an urgent matter.

 

The urgency involved in election matters advised the National Assembly to fix a time limit of 180 days in Section 285(5)(b) of the 1999 Constitution (as amended) while Section 142 of the Electoral Act, 2010 (as amended) grant automatic accelerated hearing to election petition and/or appeal arising therefrom to the extent that such matters take precedence over all other cases and matters, including criminal matters.

 

The importance of time being of the essence in election matters is further emphasized by paragraph 18(1) of the Practice Direction, 2011, supra, which forbids the use of interlocutory appeal as a ground for stay of proceedings before a tribunal.

 

I hold the considered view that the above provisions are mandatory and not permissive as they admit of no discretion and the sooner both the Bar and Bench realize this and comply to the spirit and letter of the provisions the better for this nation’s democracy.

 

Having regards to what I have stated above, can it be said, in relation to the issue under consideration, that the lower court or any other court for that matter, has the requite vires to order a stay of proceedings or arrest delivery of a ruling of an election tribunal which has time limit within which to conclude its proceedings and has been granted accelerated hearing?

 

It has been argued by learned senior counsel for the 1st – 3rd respondents in SC/332/2011 that what the lower court did on 19th September, 2011 did not amount to an arrest of the ruling of the tribunal. With due respect to the learned senior counsel I do not agree. The submission seeks to establish the difference between half a dozen and six which amounts to a distinction without a difference. The lower court in its ruling at page 409 of the record ordered, inter alia, as follows:-

“Accordingly, I hereby enter an interim order….directing that the said ruling of the tribunal should abide by the hearing of the appeal”.

 

Whatever term one likes to use in describing the above order its effect on the trial tribunal concerned is to STOP it from delivering the ruling in an application seeking a dismissal of the petition before it. The order definitely was not designed nor intended nor did it give an accelerated hearing of the petition so as to enable the tribunal deliver its judgment/decision within 180 days of the filing of the petition as constitutionally enjoined. In fact the order is clearly in collision course with the provisions of paragraph 18 (1) of the Practice Directions, 2011 as it stopped any further proceedings in the matter by the trial tribunal until the determination of an appeal which was yet to be ripe for hearing in an election matter where time is of the essence. Apart from the peculiar nature of the proceedings giving rise to the appeal, generally speaking and by the decision of this court in Newswatch Communications Ltd vs Attah (supra) the rules of court have no provision for arrest of judgments about to be delivered by a court. There is however an exception to that general rule as can be gleaned from the decision of this court in the case of Dingyadi vs INEC (No.1) (2010) 18 NWLR (Pt.1224) 1; (2010) 4 – 7SC (pt.1) 76 where the Sokoto Division of the court of Appeal sitting on appeal in an election matter was stopped, by this court, from delivering a judgment in an appeal arising from election petition filed in abuse of process as it is the duty of every court to prevent abuse of its process or the process of the court.

 

In short, I resolve the issue in favour of the appellants in SC/332/2011 and SC/333/2011.

 

On the 2nd issue of the appellants in SC/332/2011, I am of the view that it has become irrelevant having regards to the resolution of issue 1. If the court has no vires or right under the law having regards to the provisions of the Constitution, Act, and Statutory instrument relied upon in issue No.1 to have done what it did, then it would remain without vires or right to do so whether the appeal before it and on which the order is predicated is ripe for hearing or not as the ripeness or otherwise of the appeal will not improve its lack of jurisdiction or vires in the first place.

Secondly, it is obvious that a resolution of issue 1 has effectively disposed of the appeal thereby rendering the second issue of no moment or superfluous.
In conclusion I hold as follows:-

 

(i)      That appeal No.SC/332/2011 is meritorious and is hereby allowed by me. It is hereby ordered that parties bear their costs.

(ii)     That appeal No.SC/333/2011 be and is hereby allowed by me with parties to bear their costs.

 

Turning now to appeal No. SC/352/2011, it is the submission of learned counsel for the appellants that appeal Nos. SC/332/2011 and SC/333/2011, challenged the jurisdiction of the lower court to make the order of 19th September, 2011 directing that the ruling of the trial tribunal abides the hearing and determination of the appeal before it and therefore the entry of the said appeals before this court cannot be a ground for stay of the proceedings of the lower court under order 8 Rule 11 of the Supreme Court Rules.

 

Learned senior counsel then proceeded to reproduce the provisions of Section 285 (6) and (7) of the 1999 Constitution and Order 8 Rule 11 of the Supreme Court Rules and submitted that it is not in all cases that the entry of an interlocutory appeal to an appellate court will rob the lower court of jurisdiction to continue with the substantive proceedings; that the grounds of appeal in Nos SC/332/2011 and SC/333/2011 have no bearing on appeal No. CA/J/EPT/GOV/151/2011 and their success would not affect the rights or remedies in CA/J/EPT/GOV/15/2011 and that the entry of appeal Nos. SC/332/2011 and SC/333/2011 is not a valid ground to decline to hear appeal No. CA/J/EPT/GOV/151/2011.

 

Secondly that the grounds of appeal in the two appeals- SC/332/2011 and SC/333/2011 only challenged the jurisdiction of the lower court with respect to the order it made on 19th September, 2011 not its jurisdiction to hear and determine appeal No. CA/J/EPT/GOV/151/2011.

 

On Section 285(7) of the 1999 Constitution which stipulates that appeals before the lower court on election matters be heard within 60 days from the date of judgment appealed against, senior counsel submitted that by not hearing the appeal before 9th October, 2011 the lower court breached their right to fair hearing as provided under Section 36(1) of the 1999 Constitution that the adjournment of the appeal sine die on the face of the provisions of Section 285(7) of the 1999 Constitution (as amended/altered) infringes on the appellant’s right to fair hearing, relying on the case of Pam vs. Mohammed (2008) 16 NWLR (Pt. 1112) 1 at 48.

It is the further submission of learned senior counsel that it would not be enough if this court merely declare the decision of the lower court a nullity for breach of appellants’ right to fair hearing as the same would not meet the justice of the case but that since the petition pending before the trial tribunal would become spent by the 13th day of November, 2011, the court should invoke its power made under Section 22 of the Supreme court Act to hear and determine appeal No. CA/J/EPT/GOV/151/2011 now pending before the lower court as requested in paragraph 4(4) (5) and (6) of the Notice of Appeal of the appellants as all the processes necessary for the determination of same have been completed, relying on Adeyemo vs. Ikeoluma & Sons Ltd (1993) 8 NWLR (pt.309) 27; that to remit the matter to the lower court would result in hardship to the appellants.

Finally learned senior counsel urged the court to resolve the issue in favour of the appellants, allow the appeal and set aside the decision of the lower court made on 26th September, 2011 and hear appeal No. CA/J/EPT/Gov/151/2011; set aside the decision of the trial tribunal reached on 10th August, 2011 and give directions to the secretary of the said tribunal to issue Notice of Pre-Hearing session as in Form TF007 of the 1st schedule to the Election Act, 2010 (as amended) and direct that petition No. BO/EPT/GOV/1/2011 be heard by a different panel to be constituted by the president of the court of Appeal.
It should be noted that 1st – 3rd respondents have raised objection to the competence of appeal No.CA/J/EPT/GOV/151/2011 pending before the lower court and which appellants seek the invocation of the powers of this court under the provisions of section 22 of the Supreme Court Act to hear and determine in view of the fact that by Section 285(7) of the 1999 Constitution, the lower court had sixty (60) days from the date of the decision on appeal to dispose of the appeal which sixty (60) days expired on 8th October, 2001 and that the instant appeal has therefore become an academic exercise and ought not to be countenanced, relying on Nkwocha vs. Government of Anambra State (1984) 1 SC NLR 634; Government of Kwara State vs. Dada (1986) 40 NWLE (pt. 38) 687 at 968: Bank of the North vs. Maidamisa (1997) 10 NWLR (pt. 525) 408 at 422.

In respect of the objection of the 3rd respondent, it is the contention of Senior counsel for 3rd respondent that the issue of the petition becoming extinct on 15th October, 2011 and the applicability of Section 285(6)(7) of the 1999 Constitution as urged in the appellants brief were not raised before the lower court neither is there any ground of appeal to support them and consequently urged the court to discountenance them.

The second arm of the objection is that the issue of fair hearing contained in ground 2 and argued in the brief is a fresh issue which is incompetent as no leave of the court was sought and obtained before raising same and urged the court to discountenance same.

 

In his reaction, learned senior counsel for the appellants submitted that the appeal before the lower court has not lapsed since the petition on which it arose still pends at the trial tribunal; that the court should give Section 255(7) of the 1999 Constitution (as amended) a broad and liberal interpretation so as not to defeat the intent and purpose of the drafters of the constitution, relying on Rabiu vs Kano State (1980) 8 – 11 S.C 130; that the court should not interpret the section in isolation but as part of a greater whole – relying on Arubu vs INEC (1988) 5 NWLR (Pt. 94) 323; Adewumin vs. Ekiti State (2002) 2 NWLR (Pt. 751) 474 at 522; that the court should in addition to section 285(7) consider section 6(6)(b); 318 and 285 of the 1999 Constitution; that the words “judgment” and “decision” as defined in Section 318 of the 1999 Constitution are different particularly as the Section uses the term “include”, relying on Uhunmwangho vs. Okojie (1989) 5 NWLR (pt. 122) 471 at 490; that it means that time does not begin to run until the tribunal or Court of Appeal has delivered its judgment and that since the tribunal has not delivered its judgment in petition No BO/EPT/GOV/1/2011 the sixty (60) days referred to in Section 285(7) of the 1999 constitution has not commenced to run; that the court should interpret the provision strictly as same is deigned to oust the normal jurisdiction of the courts, relying on Military Governor Ondo State v. Adewumi (1988) 3 NWLR (pt.82) 280 at 294 – 295; A-G Federation v. Sode (1990) 3 NWLR (Pt.128) 500 at 537 and Nwosu vs. Imo state Environmental Sanitation Authority (1990) 2 NWLR (pt.135) 688 at 715.

In the alternative, learned counsel submitted that the present appeal arose from the decision of the lower court delivered on 26th September, 2011 and not from the decision of the tribunal and that the present status of the appeal pending before the lower court which, however, senior counsel has urged the court to invoke its powers under section 22 of the supreme court Act to hear and determine ,”does not in any way affect this appeal” and urged the court to discountenance the objection of the 1st and 2nd respondents and allow the appeal.

In respect of the objection of the 3rd respondent, learned senior counsel submitted that the objection of the 3rd respondent is based on facts without a supporting affidavit thereby rendering the same incompetent and should be dismissed.

Secondly that the arguments canvassed therein does not arise from the grounds of the objection filed on 19th October, 2011 and should be deemed abandoned and consequently struck out; in the determinative, that the complaint on fair hearing arose from the refusal of the lower court to proceed with the hearing of the appeal and therefore not a new/fresh issue as argued; that the issue was actually argued before the lower court; that appeal No. CA/J/EPT/GOV/151/2011 is not statute barred as the same is an interlocutory appeal against the ruling of the trial tribunal and went on to make further submissions on the issue similar to those in response to the objection of the 1st and 2nd respondents, and urged the court to overrule the objection.

In his reply on points of law, learned senior counsel for the 1st and 2nd respondents submitted that appellants have not denied that the appeal before the lower court had lapsed by effluxion of time; that once a word has been defined by statute resort cannot be had to any other source, relying on Uhunmwangho vs. Okojie (1989) 12 S.C 442 at 156, and that the word “include” in Section 318 of the 1999 Constitution is an enlarging word not restrictive and the words “decision” and “judgment” as used in Section 285(7) of the 1999 Constitution are synonyms and that to hold otherwise is to read into the plain words of the constitution words that are not there; that there is no difference between an interlocutory decision of the tribunal and a final decision on the merit on the invocation of the provisions of Section 285(7) of the 1999 Constitution (as amended).

 

Now section 285 (7) of the 1999 Constitution (as amended) provides as follows:

” An appeal from a decision of an Election Tribunal or court shall be heard and disposed of within sixty (60) days from the date of the delivery of judgment of the Tribunal”.

 

Much argument have been advanced as to the meaning of the words ‘decision” and “judgment” used in above section 285 (7) of the constitution by senior counsel for the contending parties. However, Section 318 of the said 1999 Constitution defines the word decision thus:

“Decision means in relation to a court, any determination of that court and include judgment; decree, order, conviction, sentence or recommendation”.

 

I agree with the submission of learned senior counsel for the 1st and 2nd respondents that once the constitution or statute defines a word or term the court cannot go outside it to seek the meaning of that word or term as the same has been duly defined within the confines of the constitution/statute. See Uhunmwangho vs. Okojie (1989)12 S.C 142 at 156. To my mind, the words used in section 285(7) of the 1999 Constitution are very clear and unambiguous and therefore, as settled by law, do not need any interpretation. The words have to be deployed in their plain and ordinary meanings as the court is not permitted to read into any piece of legislation words and/meanings not contained therein or stretch the meanings to include matter(s) not in the contemplation of the framers/drafters of the constitution or statute. Once the above is borne in mind, it becomes necessary to state that the meaning of the word “decision, as defined in Section 318 of the 1999 Constitution is as it relates to a court (and I may add tribunal) and it is clear that it is synonymous with the determination of the court in the form of judgment, decree, order, conviction, sentence or recommendation. In other words, it is my considered view that the word “decision” therein means the same as a determination, judgment, decree, order conviction, sentence or recommendation of a court or tribunal, and, I may add, any quasi judicial tribunal, authority or body.

 

I hold the view, therefore, that there is no legally cognizable difference between the words “decision” and “judgment” as used in Section 285(7) of the 1999 Constitution as the learned senior counsel for the appellants would want us believe and hold.

It is also of much importance to note that the words “decision” and “judgment” as defined in the said Section 285(7) of the 1999 Constitution applies generally to the determination of a court either in an interlocutory proceeding or in the final decision. The definition admits of no distinction between interlocutory and final proceedings/decisions. A court or tribunal can make an order either in an interlocutory proceeding or in the final decision and it would still be an order or decision or judgment of the court by the provisions of Section 185(7) of the 1999 Constitution.

 

The above being the case, it is clear and I hereby hold that by the provisions of Section 285(7) of the 1999 Constitution an appeal from a decision of an election tribunal or court either in an interlocutory proceeding or final decision must be heard by the appellate court and disposed of within sixty (60) days from the date of the delivery of judgment/decision/order/decree/ conviction/sentence or recommendation of the tribunal or court.

 

There is no dispute that the decision giving rise to appeal No. CA/J/EPT/GOV/151/2011 was made by the trial tribunal on the 10th day of August, 2011. Also not in dispute is the fact that sixty (60) days from the date of that decision expired on 9th October, 2011.

 

The legal effect of the expiration of the sixty (60) days prior to the determination of the appeal before the lower court is to extinguish the appeal and with it the order of the lower court made on 26th September, 2011, the subject of the instant appeal being an interlocutory order made in the said appeal.

Learned senior counsel for the appellants has not denied the fact that the appeal pending at the lower court had expired hence his alternative contention that the instant appeal is against the decision of that court made on 26th September, 2011. I hold the view that the above argument is of no moment particularly when one considers the fact that the appellants are calling on this court to invoke its powers under Section 22 of the Supreme Court Act to hear and determine the very expired appeal. It is settled law that this court can only exercise its powers under the said Section 22 by exercising the jurisdiction of the lower court where that court has the jurisdiction to act, not where that court has ceased to have jurisdiction over the matter. In short the jurisdiction of this court under Section 22 of the Supreme Court Act depends completely on the Court of Appeal having jurisdiction to deal with the matter in issue and pending before it.

That apart, the instant appeal if it succeeds on the merit would result in the setting aside of the order of the lower court adjourning the hearing of appeal No. CA/J/EPT/GOV/151/2011. Sine die thereby resulting in the consequential order that the appeal be put back on the cause list of either the lower court or of this court; if the application to invoke section 22 of Supreme Court Act is granted; to be dealt with accordingly. In either case, it would be an exercise in futility as both courts no longer have the jurisdiction to deal with the matter complained of. In the circumstances of this case and having regards to the state of the law on the relevant facts I hold that the preliminary objections of the 1st and 2nd respondents is meritorious and the same is according sustained by me.

Consequently this appeal having become an academic exercise in view of the lost of jurisdiction by the lower court to hear and determine same is hereby struck out for being incompetent. However since appeal Nos. SC/332/2011 and SC/333/2011 have been allowed the parties should return to the tribunal to continue with the proceedings from where they stopped.

Appeal Nos. SC/332/2011 and SC/333/2011 are allowed while No. SC/352/2011 is struck out for being incompetent.

Parties to bear their respective costs.

J.A. FABIYI, J.S.C.:

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.”

 

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. (Black’s 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. 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.”

 

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 cannot 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.

SULEIMAN GALADIMA, J.S.C.:

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.

 

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. 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 Appellants herein as well as the 4th.and 5th Respondents after the ruling of the Tribunal, filed 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. 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 filed 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.”

 

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 supersedes 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).

 

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 here at. 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.

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.”

 

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 unambiguous a 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. 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. 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…”

 

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. 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. 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. 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.

 

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. 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. 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.

 

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. 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.

 

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”.

 

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. 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.

NWALI SYLVESTER NGWUTA, J.S.C.:

 

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.

 

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. 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:

 

“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.

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.”

 

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 Black’s 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.

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.

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;

“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.

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. 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.

 

 

 

MARY UKAEGO PETER-ODILI, J.S.C.:

 

I agree with the lead judgment my Lord, W. S. N. Onnoghen JSC who delivered same. The reasons he adduced I equally agree with, and it is to register my support that I place my contribution on record.

 

This is an appeal against the Ruling of the Court of Appeal Jos, delivered on the 19th day of September, 2011 arresting or staying the ruling and indeed the entirety of the proceedings of the Borno State Governorship Election Tribunal. The rulings which were stayed by the order of the lower court were fixed for delivery on the 20th day of September, 2011.

 

The 1st, 2nd and 3rd Respondents who were the petitioners in the trial Tribunal filed Petition No. BO/EPT/GOV/1/2011 before the Borno State Governorship Election Petition Tribunal challenging the declaration and return of the Appellants who were the 1st and 2nd Respondents before the said tribunal as the duly elected Governor and Deputy Governor respectively of Borno State. In a bid to comply with the provision of paragraph 18(1) of the 1st schedule to the Electoral Act, 2010 (as amended), the 1st, 2nd and 3rd Respondents on the 29th day of June, 2011 filed before that Tribunal, a motion Ex-parte brought pursuant to paragraph 18(1) and (2) of the 1st schedule to the Electoral Act, 2010 and Order 26 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009 applying to the trial Tribunal for the issuance of the Pre-hearing Notice and Pre-Hearing Information Sheets.

 

The Trial Tribunal sitting in Abuja as a result of security challenges in Maiduguri fixed the motion Ex-parte for hearing on the 2nd day of August, 2011. The said motion wag moved by learned senior counsel to the 1st, 2nd and 3rd respondents (as Petitioners). At the close of arguments of the learned senior counsel the Tribunal called his attention to the provisions of paragraph 47(2) of the 1st schedule to the Electoral Act, 2010 (as amended) and was asked to address the Tribunal on those provisions. On the 10th day of August 2011 the Tribunal in a considered Ruling struck out that motion ex-parte for failure to comply with the mandatory provisions of paragraph 47(2) of the 1st schedule to the Electoral Act (as amended).

 

The 1st, 2nd, and 3rd Respondents aggrieved filed a Notice of Appeal dated the 12th day of August, 2011. On the 11th August, 2011 the same 1st, 2nd and 3rd Respondents filed a motion for extension of time within which to file a Pre-Hearing Notice. The Appellants, 4th and 5th Respondents respectively reacted and filed counter affidavits and written addresses. They further filed applications to the effect that the petition should be deemed abandoned, 1st, 2nd and 3rd Respondents reacted by filing counter affidavits and written addresses. The Tribunal listened to arguments of all counsel in respect of the applications and reserved ruling to the 20th September, 2011.

 

The Court of Appeal having earlier scheduled the appeal filed by the 1st, 2nd and 3rd Respondents to the 21st day of September, 2011 shifted the hearing of the appeal forward to the 19th September, 2011 vide a new hearing notice. On that day, the learned senior counsel informed the Court of Appeal that there was a pending ruling to dismiss the petition and urged the Court of Appeal to invoke Section 15 of the Court of Appeal Act, 2004 to protect and preserve its jurisdiction.

 

The learned counsel for the appellants as well as the 4th and 5th Respondents respectively opposed the application of the 1st, 2nd and 3rd Respondents’ counsel for the arrest or stay of the ruling of the trial tribunal. The Court of Appeal after listening to arguments of counsel made an interim order arresting or staying the delivery of the pending ruling of the Trial Tribunal slated for the 20th day of September, 2011.

 

The appellants being dissatisfied with that ruling filed a Notice of appeal dated 20th day of September, 2011 on the same day.

 

In respect of SC.333/2011, Dr. Alex A. Izinyon for the appellant, All Nigeria Peoples Party (ANPP) filed an appeal dissatisfied with the same ruling of stay of proceedings or halting the ruling in the Trial Tribunal.

 

The facts and circumstances in the two appeals being the same it was only proper as this court agreed with all counsel that the appeals be argued together. In other words a ruling in one of the Appeals settles and rests the matter in the other.

 

In keeping with the tradition of this court, Mr. Ali, learned senior counsel for the appellants in SC.332/2011 filed on Appellants Brief on 12/10/2011 and deemed filed on 24/10/11. In respect of the same parties now as 4th – 5th Respondents Mr. Ali filed a Brief in SC.333/2011 on the 21/10/11. Also filed is a Supplementary Record which not being opposed was allowed in by this court.  In respect of the Appellant’s Brief in SC.332/11, there were formulated two issues for determination which are:

 

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 ranted 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.

 

1st -3rd Respondents adopted their Brief filed on 19/10/11 in SC.332/11 and in it was framed a single issue which is as follows:

 

whether paragraph 18 of the Election Tribunal and Court Practice Directions 2011 supersedes 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.

For the 4th Respondent Dr. Izinyon SAN adopted their Brief in SC. 332/11 and filed on 21/10/11. He also adopted the issues for determination as contained in the Appellants’ Brief.

 

I would prefer to utilize Issue No.2 of the appellants Brief which would properly and effectively answer the question on ground.

 

Mr. Yusuf Ali SAN submitted that the court below had no jurisdiction to make the order of arresting the delivery of the ruling of the trial Tribunal slated for the 20th day of September, 2011 in view of Section 142 of the Electoral Act, 2010 as amended and paragraph 18 of the Election Tribunal and Court Practice Directions, 2011. That those provisions of the above sections of the laws are clear and unambiguous and should be given their ordinary meaning and effect given to them.

 

He cited Nwanezie v. Idris (1993) NWLR (Pt.279) 1 at 14, NIDB v. Unisteel Works Ltd (1995) 3 NWLR (pt.356) 656 at 699, PDP v. INEC (1999) 11 NWLR (pt.626) 200 at 276-278, Ogbuyinya & Ors v. Akudo & Ors (1979) ANLR ANLR (Reprint) 105 at 118, Ifezue v. Mbadugha (1984) 5 SC 79 at 100.

Learned Senior Advocate for the appellant said the application of the provisions of section 142 and paragraph 18 of the Election Tribunal and Court Practice Directions are mandatory as the law makers intentionally couched the said provisions in mandatory terms. That the use of the word “shall” severally in the said provisions showed the intention of the law makers and that is mandatory. He referred to Tabik Investment Ltd v. Guaranty Trust Bank Plc. (Unreported and delivered on 17th day of June, 2011), a judgment of this court; Nnoye v. Anyichie & Ors (2005) 2 NWLR (Pt. 910) 263, Okereke v. Yar’Adua (2008) 12 NWLR (Pt.1100) 95 at 118; Obi v. Mbakwe (1984) ANLR (Reprint) 132 at 134 – 135.

 

That the decision of the court below in halting or stalling the proceedings of the Trial Tribunal from going ahead to deliver its ruling stated for 20th September, 2011 is wrong and an order made in clear and gross violation of the mandatory provisions of section 142 of the Electoral Act and paragraph 18 of the Practice Direction 2011. He referred to Newswatch communications v. Attah (2006) 12 NWLR (pt.993) 144. Mr. Ali of counsel for the appellant said the court below clearly shut its eyes on the facts before it like the pending applications and the appeal before them was not ripe and so making the order of halting that Trial Tribunals impending ruling was perverse and should be set aside. He referred to Nnorodim (Pt.378) 448 at 467; Baridam v. State (994) 1 NWLR (pt. 320) 250 at 260.

 

He went on to say that the court below misapplied the provisions of section 15 of the Court of Appeal Act, 2004 as that court did what the trial Tribunal could not have done and that is staying the pending ruling. He referred to Peter Obi v. INEC (2007) (2007) 11 NWLR (pt.1046) 565 at 639.

 

Prince Fagbemi learned senior counsel for the 1st -3rd respondents submitted that the lower court’s jurisdiction to entertain Electoral matters is constitutionally provided by Section 246 (1)(b)(i), (ii), (ii) and (2) and 3 of the 1999 Constitution and Section 15 of the Court of Appeal Act, 2004. That the powers to make orders, whether it is for stay of proceedings, execution or one that would affect proceedings pending in a lower court is an inherent power bestowed on the court below by virtue of the above provisions and Sections 6(6) (a) of the 1999 Constitution. He said a community reading of those provisions shows that the court below is vested with the jurisdiction to hear appeals arising from questions relating to the validity or otherwise of the outcome of an election. That in doing so that court had unfettered powers to make orders where necessary especially where such orders are made in the interest of justice and preserve the jurisdiction of the court as in the instant case: He cited La Sun v. Awoyemi (2009) 16 NWLR (Pt.1168) 513; Olujimi v. E. S. H. A (2009) 11 NWLR (pt.1153) 464 at 487 para G; Kwara v. Innocent (2009) 1 NWLR (pt.1121)179 at 166; Buhari v. I. N. E. C (2008) 19 NWLR (pt. 112) 246 at 393 paras A- E.  Prince Fagbemi SAN, said the court below only ordered that the ruling on the dismissal of the Petition should abide the appeal and that cannot be said to be an order staying proceedings.

 

Dr. Izinyon SAN for the 4th Respondents said the court below acted in error and in excess of its jurisdiction when it granted the order of 19th September, 2011 contrary to section 142 if the Electoral Act, 2010 and paragraph 18 of the Election Tribunal and Court practice Directions 2011. That those provisions are clear and unambiguous and should be accorded their plain and ordinary meaning. He referred to Fawehinmi v. IGP (2002) 7 NWLR (pt.767) 606; Sumonu v. Oladokun (1996) 8 NWLR (Pt. 467) 387 at 419, A. G. Federation v. Abia State (2002) 6 NWLR (Pt.763) 264 at 365; Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65 at 89.

 

The above is a summary of submissions made by counsel for and against this appeal. In brief the question is the rightness or wrongness of the order of the court below staying the proceedings in the trial court or as learned counsel for 1st – 3rd Respondents prefers to contend, that the court below did not stay the proceedings but had ordered that the trial tribunal proceedings abide the outcome of the appeal in the court below, the appeal undisputably not ripe for hearing.

 

However to abide the appeal is, in my humble view, another way of saying everything in the trial tribunal including the pending rulings are halted until the appeal is determined.

 

It is necessary therefore to look at those facts within the environment of the relevant Electoral laws and Practice Direction.
Section 142 of the Electoral Act, 2010 as amended provides:
Section 142:

 

“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 Election Tribunal and Court Practice Directions 2011 provides as follows:”

 

“An interlocutory appeal shall not operate as a stay of proceedings, or form a ground for a stay of proceedings before a Tribunal”

 

Those provisions above are mandatory and have given no other option to manouvre for any court including this one. As this court had said in Nnonye v. Anyichie & Ors (2005) 2 NWLR (pt. 910) 263, “The word “shall” in the case at hand to my mind conjures mandatoriness the condition of which must be met and satisfied “per Muktar JSC.

 

The language used in those provisions of the laws are simple and unambiguous and must be given their ordinary meaning particularly since the intention of the law makers are glaring. This court had also in the case of Newswatch Communications v. Attah (2006) 12 NWLR (Pt.993) 144, per Mohammed JSC said:

 

“The rules of the court do not make provisions for an application to arrest a judgment which is about to be delivered by a court. An application not recognized by the rules of court cannot be described as a proper application”.

 

Learned Senior Advocate, Prince Fagbemi had urged the court to accept that the court below could, under section 15 court of Appeal, Act, suspend the delivery of the Ruling in the court below. There is no denying the provisions of section 15 of the Court of Appeal Act, 2004, the extent of the powers thereto. However that law has not provided for the application of the powers outside the prevailing circumstances and out of context. Furthermore the Court of Appeal cannot invoking Section 15 do what the trial Tribunal could not do. That is by Section 142 of the Electoral Act, 2010 as amended and Paragraph 18 of the Practice Direction 2011 which are the guiding light in expeditious hearing and in effect no staying of proceedings. Therefore since the Trial Tribunal could not do the stay or arrest of its own ruling upon what premise would the Court of Appeal carry out such a staying order pursuant to section 15 of the Court of Appeal Act. The case of peter Obi v. INEC (2007) ALL FWLR (Pt. 378) 1116 at 1168, apposite to the situation on hand is relevant.

 

Indeed by virtue of the pending applications in the court below, the appeal in the court below was not ripe for hearing. It was clearly very wrong and without jurisdiction for the Court of Appeal to have granted interim order of stay or as learned counsel for 1st – 34d Respondents prefers to say, the order for the trial tribunal to abide the outcome of the appeal.

 

This appeal is meritorious and I allow it. I set aside the stay order of the court below and order that the Trial Tribunal proceed with its rulings and other processes before it.

 

I make no order as to costs. For the reasons stated above also, appeal SC. 333/2011 is allowed. Order staying the rulings in the trial Tribunal is set aside and the Tribunal to proceed with its ruling earlier adjourned for delivery and other processes.

 

In doing this I agree totally with the lead judgment of W. S. N. Onnoghen JSC, the draft of which he made available to me.

APPEAL NO. SC.352/2011

 

This appeal is against the decision of the Court of Appeal, Jos Division delivered on the 26th day of September, 2011 adjourning the appeal of the appellants before it sine die because of the entry of appeal number SC 332/2011 and appeal number SC 333/2011 filed by the 1st and 2nd Respondents and 3rd Respondent respectively to this Honourable Court coupled with the motion for stay of proceedings of the court below pending before this Court.
The Appellants had lodged an appeal at the Court of Appeal sitting in Jos, Plateau State against the decision of the Governorship Election Tribunal for Borno State delivered on 10th day of August, 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 Act, 2010 (as amended).

 

On the 19th day of September the Appellants applied orally to the Court of Appeal for an order staying the proceedings of the said Election Petition Tribunal for Borno State pending the hearing and determination of the Appellants appeal before the Court of Appeal. The Court of Appeal granted the said oral application and stayed the proceedings of the Election Petition Tribunal pending the determination of the Appeal before it.

 

Aggrieved by the said decision of the court of Appeal, the 3rd Respondent filed an appeal against same in appeal No: SC/333/2011, promptly took steps to compile and transmit the record. The said Notice of appeal is at page 1-6 of the Supplementary record of appeal. The 1st and 2nd Respondents also filed appeal No.SC.332/2011. The 3rd Respondent filed a Motion on Notice at the Court of Appeal by which it sought to stay the proceedings of the court. Upon the transmission of the record to this court, the 1st and 2nd Respondent filed a motion for stay of proceedings before this court and all parties were served. On the 26th day of September 2011 when the matter came up before the Court of Appeal the 3rd Respondent through her counsel informed the Court of Appeal 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.

 

The court of Appeal in its ruling delivered on the said 26th September, 2011 made an order adjourning the proceedings in Appeal NO.CA/J/EPT/GOV/151/2011 before it sine die. Aggrieved by that decision the Appellants had appealed to this court. For the 1st and 2nd Respondents, Mr. Yusuf Ali SAN on their behalf filed a Preliminary Objection and an address on 20/10/11. He also filed a Reply to the Preliminary Objection and he filed a Respondents, Brief for 1st and 2nd Respondents on 19/10/11.
For the Appellant, Prince Fagbemi SAN filed Appellants, Brief on 11/10/11 and a Reply Brief on 20/10/11 to the 3rd Respondent’s Brief and Response to the Preliminary Objection of the 3rd Respondent. Dr. Izinyon SAN for the 3rd Respondent referred the court to a Preliminary objection filed by the 3rd Respondent, arguments thereof were incorporated in their Respondents Brief of 19/10/11.

 

For the 4th Respondent was filed by Mr. Erokoro SAN, a Respondent’s Brief on 14/10/11.

 

on the 24th October, 2011 date of hearing the Respondents 1st and 2nd though, Mr. Yusuf Ali SAN adopted their Brief and the address on the Preliminary objection which had been filed on the grounds stated as follows:-

 

1. The Notice of appeal to the court below was filed on 12th August, 2011.

 

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

 

3. Section 287 (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 appeals 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.

 

In the address to support the objection, learned counsel for the 1st and 2nd Respondents framed a sole issue for determination and it is:

 

“Whether in view of the provisions of section 285(7) of the 1999 Constitution (as amended) and facts and circumstances of this case, this present appeal is not purely academic and hypothetical”.

 

The 3rd Respondent’s, Dr. Izinyon in their Preliminary Objection filed and argued within the 3rd Respondent’s Brief of Argument filed on 19/10/11. Dr. Izinyon on their behalf adopted the same and the terms upon which the Preliminary Objection is hinged are as follows:-

 

(a)     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 Court and therefore should be discountenanced.

 

(b)     The issue of denial of fair hearing as contained in ground2 of the Notice of Appeal and argued in paragraphs 4.29-4.31 of the Appellants Brief is a fresh issue and is incompetent as no leave of this Honourable court was sought to raise and/or argue same.

 

The two Preliminary Objections having been argued together due to the consolidation of the appeals are therefore going to be taken at the same time.

In respect to the Objection of the 1st and 2nd Respondents Yusuf O. Ali SAN on their behalf and in the sole issue raised on whether this present appeal is no longer purely academic and hypothetical in view of Section 285 (7) of the 1999 Constitution. He stated in answer thereto that the provisions of section 285 (7) of the Constitution, 1999 as amended are lucid, clear, unambiguous and mean exactly what it says and that this court should give effect to the words as used by the lawmakers. He cited Oduneye v. Efunuga (1990) 7 NWLR (pt. 164) 618 at 624; PDP v. INEC (1999)11 NWLR (pt. 626) 200.

 

That the use of the word “shall” in that section of the Constitution connotes imperativeness or mandatoriness and excludes of any exercise of discretion. He referred to the cases of Okenwa v. Military Governor Imo State (1997) 6 NWLR (pt. 507) 135; Ifezue v. Mbadueha 1 SCNLR 472; Ogualaji v. Attorney General Rivers State (1997) 6 NWLR (pt. 508) 209.

 

Mr. Ali, Senior Counsel said by simple arithmetical calculation 60 days from 10/8/11 ended on 9/10/11 and so from 10/10/11 no appeal existed before the court below on which this court or even that Court below can make an order of hearing or continuation. He referred to the case of Abubakar & Ors v. Smith & Ors (1973) All NLR 634 at 643.

 

That the present case before this Court has become academic or hypothetical and being moot, there is no point going on. He referred to the cases of Nkwocha v. Government of Anambra State (1986) 1 SCNLR 634; Government of Kwara State v. Dada (1986) 4 NWLR (pt.38) 687 at 698; Bank of the north v. Maidamisa    (1997) 10 NWLR (pt. 525) 408 at 422.

 

Dr. Alex Izinyon in his own Preliminary objection for the 3rd Respondent contended that this appeal has become academic with the failure of the court below to hear the appeal before it within 60 days and so the appeal has become statute barred on account of section 285 (6) & 7 of the Constitution and also there would be no question of invoking section 22 of the supreme court Act since the appeal has constitutionally expired and abated. He cited Hassan v. Aliyu (2010) 17 NWLR (pt.1223) 547 at 623; Government of Plateau State v. Attorney General Federation (2006) 3 NWLR (pt.967) 346 at 419-420.

 

4th Respondent, Paul Erokoro SAN on their behalf had also raised on objection along the same lines as the other Respondents to the effect that this appeal has been rendered nugatory and therefore an academic exercise taking into consideration the said section 285 (5) (c) of the Constitution as amended.

Prince Fagbemi Senior Advocate for the Appellants responding to the arguments on the various Preliminary Objections said this Court should give Section 285 (7) of the 1999 Constitution a literal and broad interpretation so as not to defeat the intent and purpose of the drafters of the Constitution. He cited Nafiu Rabiu v. Kano State (1980) 8 – 11 SC 130; James Arubu v. INEC & 13 Ors (1988) 5 NWIR (pt. 94) 323; Adewunmi v. Ekiti State (2002) 2 NWLR (pt.751) 474 at 522.
That this Court should consider Sections 6 (6) (b), 318 and 285 of the Constitution together.

 

Having considered the submissions of counsel in their different positions as to whether or not the appeal in the Court below is alive or not, it is necessary to go to section 285 (7) of the 1999 constitution as amended, which is at the root of the arguments for and against the appeal before this Court and upon the appeal in the Court below. That Section reads as follows:

 

Section 285 (7) of the 1999 Constitution as amended provides:

 

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

 

While the Appellant’s counsel wants a broader interpretation of Section 285 (7) of the 1999 Constitution, the Respondents, view point is that the language is plain and simple and needs no embellishment.

 

Prince Fagbemi SAN, for the appellants advocates Section 285 (7) be interpreted together with Section 318 of the same Constitution contending that until the judgment in the Court below or Tribunal as the case may be has been delivered the time does not begin to run and so the 60 days mentioned have not happened here. What has occurred in this matter is clear enough, the decision of the Trial Tribunal was made on the 10th August 2011 and an appeal on that decision sent into the Court below and by the 15th October 2011 when the 60 days provided for under Section 285 (7) of the Constitution had elapsed, the final determination of the appeal had not taken place.

The interpretation of that constitutional provision being called into question and to answer it, this Court has to bear in mind that where words of a statute or constitution are simple, grammatical and ordinary in meaning, there is no basis to look further afield in the quest for a new meaning. And as it is trite where the construction of a constitutional provision has mentioned specific things as the matter of decision, judgment must be disposed on appeal 60 days of that decision or judgment in the Court below.

Therefore those things not brought into that constitutional provision as an extraordinary computation of time was not intended to be part of the interpretation. The Appellant in effect is calling on us to sympathise with their position because they consider the effect harsh or that it will work hardship on them. That stance is not one this court can enter into since the command in the provision of Section 285 (7) of the Constitution denoting of obligation on the point of this Court has not given room for the luxurious past-time the Appellants are wishing.

I place reliance on Ehuwa v. Onodo State Independent Election Commission (2005) 18 NWLR (pt. 1012) 544 at 568; Military Governor of Ondo State v. Adgwunmi (1999) 3 NWLR (pt. 82) 280; Kraus Thompson Organisation v. NIPSS (2004) 7 NWLR (pt. 901) 44.

 

Indeed a different way of emphasizing the point is that a court of law is enjoined to adjudicate between parties in relation to their competing legal interest and never to engage in a mere academic discourse upon a matter that died some weeks ago. I will further state that inspite of the enormity of the powers and functions of the Court, it lacks the jurisdiction to raise to life a dead issue, cause or matter such as this appeal in the Court below. Therefore no basis at all for the invocation of section 22 of the Supreme Court act. See Dabo v. Abdullahi (2005) 7 NWLR (pt. 923) 181 at 205; Eperokun v. University of Lagos (1986) 4 NWLR (pt. 34) 162; Union Bank (Nig.) Ltd v. Edionseri (1988) 2 NWLR (pt 74) 93; Attorney General Federation v. Attorney General Abia state (No.2) (2002) 6 NWLR (pt. 764) 542.

 

This Preliminary Objection for the reasons above is hereby sustained. The appeal in the Court of Appeal no longer alive is hereby struck out.

 

The Preliminary objection of the 3rd Respondent had to do with denial of fair hearing raised by the Appellants.

 

In respect of the issue of denial of fair hearing which Appellants raised in their Brief and which is the object of the preliminary objection of the 3rd Respondent, Dr Izinyon Senior Advocate submitted that Appellant raised it in their Notice of Appeal and as a fresh issue without leave of this court first sought and obtained. That the lack of leave rendered ground 2 of the Notice of Appeal incompetent and should fail.

 

He cited Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 425 at 608, Obineche v. Akusiobi (2010) 12 NWLR (pt. 1208) 383 at 404 paras E – G.

Prince Fagbemi, learned counsel for the Appellants said the matter of fair hearing was a point of law and no special leave to raise it on appeal needed be sought for and obtained.

 

Since the Appeal in the Court of Appeal has been struck out there is nothing to be said here as it would be a wasteful exercise to proceed on whether or not the issue of leave to appeal was sought for and the implication of the absence of leave.