Senator Joel Danlami Ikenya & Ors V. Peoples Democratic Party & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

This appeal is against the judgment of the Court of Appeal Yola Division delivered on 6th January, 2012 dismissing the Appellants’ appeal and affirming the judgment of the trial Election Petition Tribunal. The 1st and 2nd Appellants were respectively the Governorship and Deputy Governorship candidates sponsored by the 3rd Appellant, a political party, as its candidates in the general election held into the office of the Governor of Taraba State on 26th April, 2011. The 2nd and 3rd Respondents on the other hand were the Governorship and Deputy Governorship candidates sponsored by the 1st Respondent, a political party, in the election to the office of the Governor of Taraba State. At the conclusion of the election, the 4th and 5th Respondents who conducted the election, returned the 2nd and 3rd Respondents as winners of the election and duly elected as Governor and Deputy Governor of Taraba State.

Not satisfied with the results of the election, the Appellants then filed their petition at the Governorship Election Petition Tribunal at Jalingo, Taraba State which heard the petition and at the end of the hearing, in its judgment delivered on 10th November, 2011, dismissed the Appellants’ petition. Aggrieved with the judgment of the Tribunal, the Appellants then appealed to the Court of Appeal, Yola Division which after hearing the appeal on 5th January, 2012, dismissed the appeal on 6th January, 2012 in its judgment delivered by the Presiding Justice, Hon. Justice Alagoa, JCA and agreed to by the other Justices Yakubu and John Mbaba JJCA as follows –

“By virtue of Section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 as amended, I shall deliver my judgment in this appeal today to save it from lapsing and give my reasons later. The preliminary objections filed by the 1st Respondent on one hand and the 2nd and 3rd Respondents on the other hand lack merit and are hereby dismissed. The main appeal of the Appellants lack merit and is hereby accordingly dismissed and the judgment of the Governorship Election Petition Tribunal Taraba State holden at Jalingo in Petition No. EPT/TR/G/01/2011 delivered on the 10th November, 2011 is hereby affirmed by me.”

Not satisfied with this judgment of the court of Appeal, the Appellants are now on a further and final appeal to this court raising only one issue from the lone ground of appeal filed by them. The issue reads –

“Whether the Court of appeal by a construction of the Provision of Section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is competent to deliver judgment in respect of an appeal as to whether a Person has been validly elected to the office of a Governor or Deputy Governor of a State and give reasons later.”

Learned Appellants Counsel after quoting the provisions of Sections 285(8) and 233(1) and (2)(e)(i) of the 1999 constitution of the Federal Republic of Nigeria (as amended), had argued that since the appeal from the decision of the Governorship Election petition Tribunal to the Court of Appeal does not make the Court of Appeal the final Court of Appeal in the appeal which the Constitution allows to proceed and finally end at the Supreme Court, the Court of Appeal does not have the power or competence to deliver judgment under Section 285 (8) of the Constitution and reserve reasons for the judgment to a later date as was done by the Court of Appeal in the present case; that the reasons for the decision ought to form the basis of the Appellants right of appeal in grounds of appeal challenging the reasons for the decision; that the very clear provisions of Section 285(8) of the constitution does not give the court of Appeal, a penultimate appellate Court to give its decision and reserve its reasons therefore to an indefinite date as was done by the Court of Appeal in the instant case and that this had rendered the decision of the Court of Appeal of 6th January, 2012, a nullity, concluded the learned Counsel who urged this Court to the decision of the Court of Appeal of 6th January, 2012 and order a fresh of the Appellants’ appeal before another panel of the Court of Appeal.

For the 1st Respondent, the issue identified in its brief of argument is –

“Whether the judgment delivered by the lower Tribunal on 6th January, 2012 has not effectively and effectually determined the Appellants’ appeal on its merit as to affort an aggrieved party to appeal against is not withstanding this inadvertence reference to Section 285(8) of the 1999 Constitution of Nigeria.”

The stand of the 1st Respondent therefore on this issue is that the judgment of the Court of Appeal of 6th January, 2011, is quite in order. However, with regard to the relief of re-hearing of the appeal by another panel of the Court of Appeal sought by the Appellants, learned Counsel to the 1st Respondent relying on the provisions of Section 285(7) of the Constitution of Nigeria 1999, said having regard to the fact that the decision of the trial Election Petition Tribunal was given on 10th November, 2011, the 60 days allowed for the hearing and determination of the Appellants’ appeal, have lapsed already to make any order for fresh hearing of the appeal impossible. However, learned Counsel is of the view that failure of the Court of Appeal to give reasons for its judgment, does not make that decision invalid particularly when the facts are not indispute as was stated in Emmanuel Agbanelo v. U.B.N. Ltd. (2000) 4 S.C.N.J. 353 at 353 – 364.

The 2nd and 3rd Respondents in their joint brief of argument also adopted the issue as framed in the Appellants’ brief of argument before coming to the conclusion that by virtue of the provisions of Section 285(8) of the constitution of the Federal Republic of Nigeria, 1999 (as amended), the court of Appeal is qualified to give its decision and reserve giving reasons to a later date in the final appeal from the Governorship Election Tribunal of Taraba State. However in his final submission, learned senior counsel for 2nd and 3rd Respondents referred to the recent decisions of this court in A.N.P.P. v. Alhaji Mohammed Goni & Ors., unreported decision of this court delivered in suits No. SC.1/2012 and SC.2/2012 consolidated delivered on 17th February, 2012; Action Alliance (A.C.) v. INEC & Ors., unreported judgment of this court in suit No. SC.23/2012 delivered on 14th February, 2012 and the case of Mallam Abubakar Abubakar & ors. V. Saidu Usman Nasamu & Ors. unreported judgment of this court in suits No. SC.14/2012; SC.14A/2012; SC.14B/2012 and SC.14C/2012 delivered on 24th February, 2012 and submitted that the relief of re-hearing sought by the Appellants in this appeal, cannot be granted as the period of 60 days within which the appeal ought to be heard and determined, had already lapsed. On the authority of the last unreported decision of this Court in Abubakar & Ors. V. Nasamu & Ors. delivered on 24th February, 2012, learned senior Counsel for 2nd and 3rd Respondents finally submitted that since the decision of the Court of Appeal of 6th January, 2012 in this appeal is a nullity, the decision of the Governorship Tribunal of 10th November, 2011, remains valid and ought to be restored and affirmed by this Court.

Learned senior Counsel for the 4th – 23rd Respondents in their Respondents’ brief of argument is also of the view that the only issue for determination is whether the court of Appeal was right in exercising the powers under Section 285(8) of the constitution of the Federal Republic of Nigeria, 1999 (as amended) to dismiss the Appellants’ appeal and reserve the reasons for judgment to a later date. On this issue learned senior counsel is of the view that the Court of Appeal was right in exercising the powers under Section 285(8) of the constitution to dismiss the Appellants’ appeal and reserve its reason to a later date if the case of Babatunde v. P.A.S. & T.A. Ltd. (2007) All F.W.L.R. (Pt.372) 1721 at 1752C is taken into consideration.

The question now is whether the Court of Appeal can be accommodated under section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 after hearing an appeal from the decision of Governorship Election Petition Tribunal, to deliver its judgment in the appeal and give its reasons for the judgment on a later date. That Section 285(8) of the constitution states-

“(8) The Court, in all final appeals from Election Tribunal or Court may adopt the Practice of first giving its decision and reserving the reasons therefore to a later date.”

The interpretation of this very clear sub-section of Section 285 of the constitution had been put to rest in the decision of this Court in the consolidated appeals in an unreported decision of this court in appeals numbers SC.14/2012; SC.14A/2012; SC.14B/2012 and SC.14C/2012 Abubakar & Ors. v. Nasamu & Ors., delivered on 24th February, 2012 in relation to the powers of the court of Appeal and this Court to deliver judgment in appeals arising from decisions of Election Petition Tribunals. As for the appeals from decisions of Election Petition Tribunal in National and state Assembly elections which terminate at the court of Appeal, the court of Appeal can exercise the power prescribed under section 285(8) to deliver its judgment and reserve the reasons for the judgment to a later date.

However, where the appeals are from decisions of an Election Petition Tribunal in Governorship Elections which do not terminate at the Court of Appeal and are liable to proceed to the Supreme Court at the instance of an aggrieved party, the power under that sub-section (8) of section 285 of the Constitution is not available to the Court of Appeal. The power as far as appeals from decisions Election petition Tribunals in Governorship Elections coming to the Court of Appeal are concerned, only the Supreme Court can exercise the power to deliver its judgment in the appeal heard by it and reserve its reasons for the judgment to a later date. It is for this reason that this Court held that the effect of exercising this power by the Court of Appeal in an appeal which does not terminate at the Court of Appeal in this respect, rendered the judgment a nullity in the absence of the reasons for the judgment.

Applying the decision in Abubakar & ors. v. Nasamu & ors to the present case where the Court of Appeal after hearing the Appellants’ appeal arising from Governorship election delivered its judgment dismissing the appeal on 6th January, 2012 and reserved its reasons indefinitely, the result is obvious. This action on the part of the Court of Appeal rendered its judgment a nullity in the absence of the reasons for the judgment resulting in leaving intact the judgment of the trial Election Petition Tribunal delivered on 10th November, 2011 affirming the election and return of the 2nd and 3rd Respondents as the Governor and Deputy Governor respectively of Taraba State in the election to the office of the Governor of Taraba State conducted by the 4th and 6th Respondents on 26th April, 2011. In other words the judgment of the Court of Appeal delivered on 6th January, 2012 without reasons for the judgment is indeed a nullity in the absence of the reasons for the judgment to provide the necessary materials from which the Appellants may raise the grounds of appeal challenging the decision of that court in exercising their constitutional right of appeal. This is because the judgment of the court and reasons for the judgment, are inseparable partners in law as it is the judgment and the reasons therefore that constitute a valid judgment of the Court.

As for the relief of re-hearing of the appeal by a different panel of the Court of Appeal sought by the Appellants in this court, that relief cannot be granted because the 60 days under sub-section (7) of section 285 of the Constitution of the Federal Republic of Nigeria 1999 within which the Appellants’ appeal must be heard and determined, had already lapsed as the judgment of the Election Petition Tribunal given rise to the appeal, was delivered since 10th November, 2011. It will therefore be a futile exercise in my view granting that relief.

In the result this appeal, succeeds and it is hereby allowed. The decision of the Court of Appeal given in the Appellant’ appeal on 6th January, 2012 dismissing the Appellants appeal, is hereby declared a nullity for having been given without reasons for the decision. Consequently, the judgment of the trial Election Petition Tribunal in petition No., EPT/TR/G/01/2011 delivered on 10th November, 2011 affirming the election and return of the 2nd and 3rd Respondents as the Governor and Deputy Governor respectively of Taraba State of Nigeria, is hereby further affirmed.

I am not making any order on costs.

SC.13/2012