Prince Ebitimi Amgbare & Anor V. Chief Timippre Sylva & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
This is an appeal against the Ruling of the GOVERNORSHIP AND LEGISLATIVE HOUSES ELECTIONS TRIBUNAL sitting at YENAGOA, BAYELSA STATE, delivered on 14/6/2007 granting the 2nd to 7th Respondents enlargement of time to file a reply and refusing an application to bar them from defending the Appellant’s Petition.
The facts leading to this appeal are hereby briefly stated. On 12/5/2007 the Petitioners now the Appellants dissatisfied with the return of the 1st respondent by the 2nd Respondent (INEC) filed their petition which was served on the 2nd – 7th Respondents on 14/5/2001. On 8/6/2007 the Petitioners forwarded an application requesting the issuance of pre-hearing Notice and accordingly the Tribunal issued the said hearing Notice and fixed 14/6/2001. When the 2nd – 7th Respondents had not entered appearance and/or filed a reply as prescribed by law, against the petition served on them on 14/5/2007, based upon this the petitioners filed an application to bar the respondents. By their motion on Notice dated 4/6/2007 and filed on 13/6/2001 copied at pages 172-73 of the Record, the 2nd – 7th respondents sought for an order of the lower Tribunal to file their Reply to the petition and a deeming order.
On the 14/6/2007, the Tribunal entertained the application for enlargement of time to file a Reply and the application to bar the 2nd – 7th Respondents. In its considered Ruling the Tribunal granted the application for enlargement of time and deeming the Reply filed so properly filed and then refused the application to bar the 2nd – 7th Respondents from defending the petition.
Being dissatisfied with the Ruling of the Election Tribunal, the Petitioners filed the instant appeal resting initially on two grounds and one additional ground. The said Petitioners (hereinafter referred to as the Appellants) formulated the following three issues as calling for determination:
- Whether the Tribunal was right to have enlarged time for tire 2nd – 7th respondents to file their reply out of time and to deem the reply already filed as properly filed. (Arising out of ground 1)
- Whether the Election Tribunal was right in refusing the Petitioners’ application to bar INEC, the 2nd – 7th Respondents from defending the petition having granted the application enlarging time for the 2nd – 7th respondents. (Arising out of ground 2).
- Whether from the circumstances of the case the Tribunal acted judicially and judiciously in the exercise of their discretion to grant the enlargement of time to the 2nd – 7th respondents to file their reply to the petition out of time. (Arising out of ground 3).
However on 6/7/2007, the Appellants deemed it necessary to file a Reply Brief of argument essentially in response to the 2nd – 7th Respondents’ Preliminary objection challenging the right of the Appellants to appeal against the decision of the lower Tribunal.
The 1st Respondent in his brief of argument gave Notice of Preliminary objection that the appeal be dismissed on the ground that the Appellants do not have a right of appeal. Having regard to the Preliminary objection and the grounds of appeal the 1st Respondent submitted the following two issues for determination in this appeal:
“1. Whether the Appellants have a right of appeal against the decision of Election Tribunal delivered on 14th June, 2007 in this case.
- Assuming, but without conceding that the Appellants have a right of appeal, whether the Election Tribunal was not right in granting the 2nd – 7th Respondents and enlargement of time to file their reply to the petition and consequently refusing the Appellants’ application to bar the 2nd – 7th Respondents from defending the petition on the ground that they failed to file their reply within time.”
On the other hand, the 2nd – 7th Respondents similarly filed Notice of preliminary objection that the appeal be struck out on the ground that in view of the provision of section 241 (2)(a) of the 1999 Constitution, the Appellants have no right of appeal against the decision of the lower Tribunal granting an unconditional leave to the 2nd – 7th Respondents to defend the petition. That since the appeal rose from an interlocutory decision which is founded on the exercise of the Lower Tribunal’s discretion, the grounds of appeal constitute grounds of mixed law and fact which cannot be made the subject of an appeal without leave of the lower Tribunal or this Court.
When this appeal came before us for argument on the 11th of July, 2007 MIKE OKOYE ESQ, learned counsel for the Appellants referred to, adopted and relied on the Appellants’ Brief of argument dated and filed on 25/6/2007 and the Reply Brief dated and filed on 6/7/2007. Both were adopted. He submitted that he has argued the three issues together because they are interrelated. Referring to paragraphs 7(2) and 9(1)(a) of the First Schedule to the Electoral Act 2006, learned counsel submitted that where a respondent does not file memorandum of appearance as prescribed under paragraph 9 of the 1st Schedule of the Act, within the time prescribed under paragraph 7(2) of the 1st schedule as prescribed the non-filing of the memorandum of appearance shall not bar the respondent from defending the petition, if the respondent files a reply to the election petition in the registry not later than 21 days from the receipt of the Election petition in the Tribunal registry. But from paragraphs 10(1) and 10(2) of the said Schedule to the Act, it could be seen that a respondent is barred by operation of law for failure to comply with the prescription of the law. It is contended that in so far as a respondent fails to comply with the mandatory provisions of paragraph 9(1)(a) of the Schedule, the operation of paragraph 10(2) of the Schedule should commence by operation of law to bar such a respondent from defending an election petition if his reply is not filed in compliance with the stipulated time prescribed by paragraph 10(2). That the grant of enlargement of time to file a reply would not bring such a reply within the purview of paragraph 10(2) of the 1st Schedule such as to make a reply to be filed not later than 21 days of the receipt of the petition. That it is when the respondents have complied with the provisions of paragraph 9 of the Schedule that the provision of paragraph 12(1) of the said Schedule will come into play for the operation of 14 days.
It is therefore submitted that since 14 days prescribed by paragraph 12(1) shall start to operate from the date of the entry of appearance as prescribed in paragraph 9(1) there would be no time therefore for which a Tribunal can enlarge for the respondents to file a reply because the issue of reply as prescribed by paragraph 12(1) can only come into operation when paragraph 9(1) has been complied with.
It is submitted that the enlargement of time even if at the discretion of the Tribunal ought to be exercised judicially and judiciously based on the facts before a court of law.
TAYO OYETIBO, SAN, learned Senior counsel for the 1st Respondent also adopted and relied on his client’s Brief filed on 3/1/2007. He has drawn our attention to the fact that he has filed a separate motion containing two prayers in the alternative. The motion challenges the competence of the appeal from the lower Tribunal granting an enlargement of time to 2nd – 7th Respondents to file their reply to the petition and right of appeal. It is submitted that the right of appeal to this court from the lower Tribunal is exclusively governed by the provision of Section 246(1)(b) of the 1999 Constitution and that three conditions must be met, namely:
(i) There must have been a decision;
(ii) By reason of Section 318(1) of the 1999 Constitution the decision may be interlocutory or final;
(iii) Such decision must be “related to any or a question as to whether any person has been validly elected to the office of Governor or Deputy Governor”, because this petition relates to the office of the Governor of Bayelsa State. It is submitted that the above interpretation is borne out of the plain and unambiguous provision of the said Section 246(1) of 1999 Constitution. The case of UBA v. ENEMUO (2006) ALL FWLR 311. It is submitted, is distinguishable from the present case. It is submitted that in that case the petition was struck out at the lower tribunal. That that was a final decision which was an affirmation for the return of the party concerned and therefore the matter was within the purview of Section 246 (2)(b)(ii) of the 1999 Constitution. That in AWUSE v. ODILI (2003) 18 NWLR (PT. 851) p. 116 similar situation occurred and the matter also does not come within the purview of the present case. That that case was based on peculiar provision of Section 231 of the 1999 Constitution which does not give the right of appeal to the Supreme Court. Again the case of MUHAMMADU BUHARI & ANOR v. CHIEF OLUSEGUN OBASANJO (2005) ALL FWLR (PT.273) p.1 was distinguished from the present case. It is finally submitted by the learned senior counsel for 1st Respondent that the Ruling of the lower Tribunal which was based on discretionary power of the lower tribunal is not appealable in view of Section 241(1) of the 1999 Constitution.
In arguing the appeal the 1st Respondent’s counsel relies mainly on his preliminary objection and made further arguments in the alternative in the unlikely event the 1st Respondent’s objection not being upheld. It is submitted that the decision of the Tribunal enlarging time within which the 2nd – 7th Respondents were to file their reply to the petition and refusing the Appellants’ application to bar the 2nd – 7th Respondents from defending the petition was an interlocutory decision because it did not finally determine the right of the parties. Reference was made to the cases of OMONUWA v. OSHODIN (1985) 2 NWLR (PT.10) 924 at 939; MOHAMMED OLAWUNMI (1990) 2 NWLR (Pt.133) 458 at 480 BC. If so, it is submitted that there is no right of appeal against an interlocutory decision. Reliance was placed on the case of USANI v. DUKE (2004) 7 NWLR (PT. 871) at 1388. Consequently. it was urged that the Notice and grounds of appeal filed by the Appellants herein are incompetent and should be dismissed, Reliance was placed on ORUBU v. NEC (1988) 5 NWLR (PT.94) 323 at 352; MADUKOLU & ORS. v. NKEMDILIM (1962) 1 ALL NLR 587.
Issue No. 2 forms the basis for the 1st Respondent’s alternative argument. It poses the question thus: Assuming but without conceding that the Appellants have a right of appeal, whether the Election Tribunal was not right in granting, the 2nd – 7th Respondents an enlargement of time to file their reply to the petition and consequently retriving the Appellants’ application to bar the 2nd-7th Respondents from defending the petition on the ground that they failed to file their reply within time. Having subdivided this issue into three subsidiary issues for the ease of comprehension and argument, learned Senior counsel in his clear and unequivocal submissions concluded that the Tribunal was right in granting the 2nd-7th Respondents an enlargement of time to file their reply to the Appellants’ petitions and consequently relising the Appellants’ application to bar the 2nd – 7th Respondents from being heard.
MR. PREYE AGEDAH, ESQ, learned counsel for the 2nd – 7th Respondents, on his part also adopted and relied on their Brief of argument filed on 29/6/2001. He submitted that his grounds of preliminary objection for the appeal are quite similar to those stated by the 1st Respondent. He however submitted that the case of AWUSE v. ODILI (2003) (supra) is quite distinguishable from the second one reported as AWUSE v. ODILI (2005) (supra). That the latter did not end in the Supreme Court as the former and that the decision in the latter is based on facts similar to the present case at hand.
It is contended by the learned counsel for the 2nd – 7th Respondents that in view of section 241 (2)(a) of the 1999 Constitution no right of appeal exists from a decision of the lower Tribunal. It is submitted that although the Constitution specifically mentions the Federal High Court or the High Court in the said Section, this Court has held that the provision is applicable to appeal from Election Tribunals. Reliance placed on the case of AWUSE v. ODILI (2005)ALL FWLR (PT.253) 720.
In the same vein, the 2nd – 7th Respondents agreeing with the 1st Respondent submitted that the Tribunal has the competence to extend the time for filing reply to the petition without the filing of a memorandum of appearance. Also that the Tribunal exercised its discretion judicially and judiciously in the circumstances of this case and that no miscarriage of justice had been occasioned thereby to warrant the interference of this Court. Reliance was placed on the cases of CENTRAL BANK OF NIGERIA & ANOR v. OKOJIE (2002) 9 SCNQR 612 at 622; KRAUS THOMPSON ORGANIZATION LTD v. UNIVERSITY OF CALABAR (2004) ALL FWLR (Pt.209) 1148 at 1167 G-H and HAJAG v. HAJAG (2004) ALL FWLR (PT.207) 697 at 710 B-D.
Now learned counsel for the Appellants, CHIEF MIKE OKOYE ESQ had to react to the preliminary objection raised and argued by the learned counsel for the 1st Respondent and 2nd – 7th Respondents, TAYO OYETIBO, SAN and PREYE AGEDAH ESQ respectively. It is agreed that the 2nd ground of appeal is a complaint that the Election Tribunal erred in law in refusing the Appellants’ application to bar the 2nd Respondent, INEC from defending the petition. It is agreed that the 2nd Respondent was in breach of paragraph 10(2) of the 1st Schedule to the Electoral Act and was therefore amenable to be barred from defending the petition. On the provision of Section 241(2) it is contended that the Section only applies to the decision of the Federal High Court of High Court in granting an unconditional leave to defend an action and therefore in view of the earlier Supreme Court decision in the first case of AWUSE v. ODILI (2003) (supra) the second case of AWUSE v. ODILI (2005) (supra) was a decision made per in curiam and therefore this court is not bound to follow its previous decision made per in curiam. Reliance was placed on the cases of ADEGOKE MOTORS LTD v. ADESANYA (1939) 3 NWLR (PT.109) page 250 at 214 – 215 and USMAN v. UMARU (1992) 7 NWLR (PT.254) 377 at 398. It is urged in the circumstances, that since the preliminary objection is misconceived it ought to be dismissed.
After a careful study of the issues identified by the respective parties for the determination of this appeal. I am of the respectful opinion that the issues identified by the parties for the determination the appeal are quite similar. However, the two issues identified by the 1st Respondent in his brief having regard to the preliminary objection filed and the grounds relied upon, are quite apt and relevant to the determination of this appeal.
The Appellants have argued issues 1, 2, and 3 together because they are related. It is argued that since the 2nd – 7th Respondents time to file a reply commences upon entry of appearance as prescribed by paragraph 12(1) of the schedule and since the Respondents have failed to file a memorandum of appearance as prescribed by paragraph 9(1) of the Schedule, the Tribunal is without power to enlarge time for the Respondents to file their reply out of time. It is submitted that the since the enlargement of time to file a reply will not bring such reply in conformity with paragraph 10(2) of the Schedule the Respondents who have failed to comply with paragraph 10(2) are barred by the operation of the law from defending the petition. That the Tribunal did not exercise its discretion judicially and judiciously in granting Appellants’ application for enlargement of time when the Notice for pre-Trial had already been issued.
Having made the foregoing observation I shall now consider the preliminary objections raised by the learned senior counsel for the 1st Respondent and the learned counsel for the 2nd – 7th Respondents.
It is apparent from the separate briefs of argument of the appellants and the respondents that there is consensus ad idem that the nature of the decision of the lower Tribunal on 14/6/2001 was an interlocutory decision because it did not finally determine the right of the respective parties: See NWABUEZE v. NWORA (2005) 8 NWLR (PT.926) 1 at 19; NASCO MANAGEMENT SERVICES LTD v. A. N. AMAKU TRANS LTD (2003) 2 NWLR (PT.804) 291 at 312; MOHAMED v. OLAWUNMI (supra) and OMONUWA v. OSHODIN (1985) 2 NWLR (PT.10) 924.
The law is fairly settled that there is no right of appeal against an interlocutory decision in an election petition.
Section 241 (2)(a) of the 1999 Constitution provides as follows:
“2. Nothing in this Section shall confer any right of appeal (a) From a decision of the Federal High Court or High Court granting unconditional leave to defend an action.” A right of appeal in an election petition as enshrined in Section 246 (i)(b)(ii) of the 1999 Constitution can only arise when the decision is on any question as to whether any person has been validly elected to the Office of Governor or Deputy Governor which by implication refers to the conclusion of the whole proceedings and a decision given thereon.
Thus Section 246(1) (b)(ii) of the Constitution provides as follows:
“246 – (1) An appeal to the Court of Appeal shall lie as of right from
(a) ………………………………………………………..
(b) decision of the National Assembly Election Tribunal and Governorship and Legislative House Election Tribunal and any question as to whether
(i) …………………………………………………..
(ii) any person has been validly elected to the office of Governor or Deputy Governor
(iii) ………………………………………………..
(underlining supplied for emphasis).
It is noteworthy from the above provision that an appeal will only come within the provision of Section 246 (1) of the 1999 Constitution if there is a determination of an election petition on the merit so that any other decision made in the course of election petition proceedings which is in an election petition will not be covered by the aforesaid provision.
Section 241(2)(a) of the 1999 Constitution reproduced above clearly provides that no right of appeal exists from a decision of the Federal High Court or the High Court granting unconditional leave to defend an action. Although the Constitution specifically mentions the Federal High Court or High Court in the aforesaid section, this Court has held that the provision is applicable to appeals from Election Tribunals as in this case in AWUSE v. ODILI (2005) 16 NWLR (PT.952) 515. At 532 SALAMI, JCA held thus:
“It is very clear from the provision of paragraph (a) of subsection – (2) of Section 241 of the Constitution that there is no right of appeal from a High Court to the Court of Appeal in respect of an order granting an unconditional leave to defend an action. There is only a right of appeal where conditional leave to defend is granted exercisable presumably by the defendant to jettison the condition.”
Referring and relying on the Supreme Court case of NATIONAL BANK OF NIGERIA LTD. v. WEIDE & CO (1996) 8 NWLR (PT.465) 150 at 155, the Court of Appeal further held, in ODILI Case (supra), that Section 220 of 1979 Constitution (considered in WEIDE’S Case (supra); is pari materia with Section 241 of the 1999 Constitution and that this Section bars a right of appeal either as of right or with leave in two instances mentioned in paragraphs (a) and (b) and therefore there is no right of appeal from a decision of an Election Tribunal granting an unconditional leave to defend a petition.
I agree that to otherwise decide will lead to absurdity. This approach is consistent with the intention of the Constitution that provides for fair hearing in the con of Section 36 (1) of the 1999 Constitution which clearly embraces the plenitude of the time-honored doctrine of natural justice in the forms of the twin pillars of justice of audi alteram partem and nemo judex in causa sua.
In the course of hearing the argument on this appeal learned counsel for the Appellants drew our attention to the earlier case of AWUSE v. ODILI reported in (2003) 18 NWLR P. 116. I have read it. The issue in that case is whether the decision of the Court of Appeal (sitting as, an Appeal Tribunal) remitting the petition of the Respondent therein back to the Governorship Election Tribunal for hearing on the merit is not appealable, The Supreme Court in the determination of the application before it considering Section 246 (1),(2), and (3) Section 318 (1) and (3) of the 1999 Constitution, Section 81 (1) and (3) of the National Assembly (Basic Constitutional and Transitional) Decree No. 5 of 1999, unanimously granted the application and struck out the appeal. It held that by virtue of Section 246(3) of the 1999 Constitution the decision of the Court of Appeal in respect of appeals arising from election petition is final and no appeal lies therefrom to the Supreme Court Again in CHIEF EVARISI UBA v. DR. OKEY ENEMUO (supra) the facts and circumstances of that case is distinguishable from the instant case. It would appear that the lower Tribunal in that case struck out the petition and the appeal to the Court of Appeal was against that decision. My statement which the learned counsel for the Appellants lifted and cited on paragraph 39(b) in their Brief of argument bears no relevance to the instant issues involved in the preliminary objection of the Respondents. So also the case of MUHAMMADU BUHARI v. CHIEF OLUSEGUN OBASANJO (supra). That case was based on the peculiar provision of Section 233 of the 1999 Constitution. It bears no relevance to the instant case.
In ORUBU v. NEC (1988) (supra) the Supreme Court per UWAIS, JSC (as he then was) put it succinctly as follows:
“The jurisdiction of the Court of Appeal to hear appeal in election petition on local government election petitions is, as I already stated, limited to appeals in final decisions of the High Court the present case is an appeal arising from the interlocutory decision of the High Court. It is not part of an appeal against the final decision of the High Court. The Court of Appeal in hearing the interlocutory appeal engaged in an exercise for which it clearly had no jurisdiction. Its decision was therefore null and void.”
See also MADUKOLU & ORS v. NKEMDILIM (supra).
I also find the decision of the Court per my learned Brother, OPENE, JCA in SENATOR ANIETIE OKON v. BOB & ORS. (2004) 1 NWLR (PT. 854) 378 at 396 quite relevant to the instant case.
He said thus:
“It can be seen that section 246(1) of the 1999 Constitution regulates the right to appeal to the Court of Appeal from the election tribunals. An appeal will only lie from election tribunals to the Court of Appeal if there is any decision by the election tribunal whether any person has been validly elected as a member of the National Assembly or State House of Assembly, the office of the Governor or Deputy Governor as the case may be. Such an appeal will only come within the provisions of election petition on the merit and any other decision made in the counsel of the election proceedings which is a decision in an election petition is not covered by section 246(1)(b)…”(underlining supplied for emphasis)
It is pertinent to note that a decision on an election petition refers to the conclusion of an election proceeding. It does not contemplate decisions in an election petition made before the final determination. In other words the phrase “a decision, on an election petition” could only mean a determination of any question whether any person has been elected or that the election was avoided, that is a determination on the merit of the petition. Therefore any other decision made in the counsel of the election petition proceeding would only be a decision in an election petition.
Thus in the case of OKOKHUE v. OBADAN (1989) 5 NWLR (PT.120) at 204 – 205 this Court per OGUNDARE, JCA (as he then was) stated as follows:
“For a decision to be appealable under Section 36(1) it must be a decision “ON” an election and not a decision “IN” an election petition… in my respectful view, a reading of the provision above would suggest that the phrase “a decision on an election petition” would only mean determination of any question whether any person has become an elected member of a Local Government Council or that the election was avoided that is, a determination on the merit of the petition. Any other decision made in the course of election proceedings would be a decision in an election.”(Underlining supplied for emphasis)
I consider it unnecessary, in the circumstance, to consider the alternative arguments proffered by the respondents on whether the lower Election Tribunal was not right in granting the 2nd-7th Respondents enlargement of time to file their reply to the petition and consequently refusing the Appellants’ application to bar the 2nd-7th Respondents from defending the petition on the ground that they failed to file their reply within time. To hear the interlocutory appeal, in the circumstance of this case, this court would have engaged in an exercise for which it clearly has no jurisdiction. Indeed a clear exercise in futility which could lead to a nullity. See ORUBU v. NEC (supra); MADUKOLU v. NKEMDILIM (supra) and OKOLOGBU v. ATAMU (1999) 1 NWLR (PT.587) 389.
In the circumstance and premises of the foregoing authorities, arguments and submissions, I find that the Appellants herein do not have a right of appeal against the decision of the Election Tribunal made on 14/6/2001 since the decision has not finally determined the rights of the parties in this case, but merely a decision made within the election petition proceedings which is not covered by the provision of section 246 (1)(b) of the 1999 Constitution and as such cannot be appealed against by the Appellants in this case. Accordingly, I find this interlocutory appeal incompetent and strike it out for want of competence. I made no order as to costs; each party to bear his bear this or its own costs.
I must also make it clear that we took this appeal out of discretion. Indeed, it affords me an opportunity to state here that his Court will not entertain any further interlocutory appeals brought from the lower Tribunal.
Other Citations: (2007)LCN/2424(CA)
