All Nigerian Peoples Party & Ors. V. Alhaji Mohammed Goni & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is a consolidated appeal against the judgment of the Court of Appeal, holden at Jos, in appeal NO. CA/J/EPT/GOV/227/2011 delivered on the 23rd day of December, 2011 in which the court allowed the appeal of the 1st and 2nd respondents and ordered that the election petition filed by the said respondents be tried on the merit by an Election Tribunal to be constituted by the appropriate authority.

On the 26th day of April, 2011 elections were held into the office of state governors in Nigeria including Borno state in which the 1st respondent was the governorship candidate of the 2nd respondent for the Office of Governor of Borno State. The appellant in SC/1/2011, ALL NIGERIA PEOPLES PARTY (ANPP), a registered political party who is also 3rd respondent in SC/2/2011 sponsored the 1st and 2nd appellants in SC/2/2011 as Governor and Deputy Governor in the aforesaid election.

At the end of the election, the 4th respondent in both appeals (INEC) declared appellants in SC/2/2011 as the winners of the said election, having scored the majority of lawful votes cast at the election and satisfied other constitutional and/or statutory requirements. 1st and 2nd respondents in both appeals were dissatisfied with the result of the election and consequently filed an election petition at the Governorship Election Tribunal which was set up for Borno State. The petition was filed on 17th May, 2011 and was assigned No. BO/EPT/GOV/1/2011.

In the course of the proceedings 1st and 2nd respondents filed a motion ex-parte for the issuance of pre-hearing notice which was opposed by appellants on the 2nd day of August, 2011 and the ruling thereon was adjourned to 10th August, 2011. The tribunal ruled that an ex-parte application was not a proper procedure for the issuance of a pre-hearing notice and struck out the application.

The 1st and 2nd respondents were not satisfied with that ruling and consequently appealed against same in appeal No. CA/J/EPT/GOV/55/2011.

Later in the proceedings parties were invited by the tribunal to address it on the issue as to whether there was anything left of the petition having regards to its ruling of 10th August, 2011 as a result of which invitation appellants and other respondents in the petition filed applications in which they sought for the dismissal of the petition on the ground that it had been abandoned pursuant to the provisions of paragraph 18(4) and (5) of the 1st schedule to the Electoral Act, 2010, as amended.

The 1st and 2nd respondents, as petitioners in the petition, also filed an application for an order extending time within which to apply for pre-hearing notice. All the applications were taken together and the ruling adjourned to 20th September, 2011. Meanwhile, the appeal against the ruling of 10th August, 2011 was fixed for hearing on 21st September, 2011 which date was later brought forward to 19th September, 2011 on which date the Court of Appeal ordered the trial tribunal not to deliver its ruling fixed for 20th September, 2011.

The order of the Court of Appeal of 19th September, 2011 arresting the judgment of the tribunal scheduled for 20th September, 2011 resulted in appeals to this court in appeal Nos. SC/332/2011 and SC/333/2011 which eventually resulted in the appeal by 1st and 2nd respondents being adjourned sine die by the lower court to await the outcome of appeal Nos. SC/332/2011 and SC/333/2011. The order was made on 26th September, 2011 resulting in an appeal NO. SC/352/2011 by the 1st and 2nd respondents herein. Appeal Nos. SC/332/2011, SC/333/2011 and SC/352/2011 were later consolidated by this court at the conclusion of which hearing the court allowed the appeals of the appellants and that of the 3rd respondents and ordered that the trial tribunal should continue with the proceedings. Appeals NO. SC/352/2011 was dismissed by this court in the consolidated judgment delivered on the 31st day of October, 2011.

As a result of the above judgment, the trial tribunal gave its rulings on the various applications then pending before it on the 12th day of November, 2011. The application by the 1st and 2nd respondents to file pre-hearing notice out of time was dismissed and there is no appeal against that ruling. The petition was dismissed following the applications of the appellants and the 3rd and 4th respondents on the ground that it had been abandoned which resulted in an appeal filed on 17th November, 2011 by the 1st and 2nd respondents which was allowed by the lower court on 23rd December, 2011. There was a preliminary objection raised by the appellants against the appeal of the 1st and 2nd respondents at the lower court on two main grounds: namely on the ground that the appeal was incompetent and that it had become an academic exercise which objections were overruled.

The issues for determination in these appeals are as follows:-

In SC/1/2012, learned counsel for the appellant, Dr. Alex A. Izinyon, SAN, in the appellant brief filed on 10th January, 2012 identified four issues viz:-

“(1) Whether the learned justices (sic) of the Court of Appeal were right in law when they held that the appellants entire Notice of Preliminary Objection was not meritorious consequently dismissed same.

(2) Whether having regards to Section 285(5)(b) (sic) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the learned justices of the Court of Appeal were right in law to have remitted the 1st and 2nd respondents’ petition to another panel to be reconstituted…