Awopetu Paul Oludare & Anor V. Mrs. Atinuke Florence Akinwale & Ors (2009)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

The Appellants were Petitioners before the Election Petitions Tribunal Panel II Ado-Ekiti. In the Petition, the Petitioners, (now Appellants), challenged the 1st -Respondent’s election into the Ekiti South Federal Constituency II of Ekiti State at the National Assembly in the election held on the 21st April, 2007 on the ground that the election was invalid by reason of corrupt practices and/or substantial non-compliance with the provisions of the Electoral Act, 2006 and its guidelines. The 1st and 2nd Respondents, as well as the 3rd to 8th Respondents in their separate replies, denied the two grounds upon which the Petition is based and asserted that there were no corrupt practices and/or substantial non-compliance with the provisions of the Electoral Act.

Following the filing of the Petition, hearing commenced before the Election Tribunal Panel I at Ado-Ekiti. While the Petition was still part-heard, another Election Tribunal Panel II was set up by the President of the Court of Appeal, and the Appellants’ Petition, along with nine others, was assigned to it for hearing de novo. The Appellants, not being content with this re-assignment, protested against it at several fora, both administrative and judicial. In this regard, a letter of complaint was written to the said Tribunal II requesting it to send the Petition back to the Election Tribunal Panel I for hearing. This letter was forwarded to the President of the Court of Appeal by the lower Tribunal. When the letter did not yield the desired result, an Originating Summons was filed before the Federal High Court, Akure, (which suit was subsequently transferred to the Federal High Court, Ado-Ekiti), challenging the action of the President of the Court of Appeal in so transferring the Petition. It is well to note that neither the Respondents to this Petition nor the Tribunal itself were named as parties to that suit. On the basis of the suit at the Federal High Court, the Appellants sought a stay of proceedings at the Election Tribunal II pending its determination. The application for stay was predictably refused on the 12th May, 2008 prompting the Appellants to file an Appeal against the refusal before this Court on the 20th May, 2008. In the same vein, the applicants filed another application for stay of proceedings of the Tribunal before the Court of Appeal. On 9th June, 2008, the Appellants, yet again, filed another application for stay of proceedings before the Tribunal II, pending the determination of the application for stay of proceedings filed at the Court of Appeal. This application was heard on the 10th June, 2008 and the Tribunal once again refused to grant a stay. Following the dismissal of the application, the Tribunal called upon the Appellants to proceed with the hearing of the Petition, the matter having been slated for hearing on that date at the instance of the Petitioners even before the filing of this latter-day application. When Counsel for the Petitioners declined to proceed to prove their Petition, insisting instead that doing so would compromise the determination of the application for stay of proceedings pending at the Court of Appeal, the lower Tribunal proceeded to strike out the Petition for want of prosecution. The Tribunal found inter alia thus at page 130 of the record of the lower Tribunal:

“As we earlier on observe, the petition was adjourned at the instance of the Petitioner till today for definite hearing. Having heard this application and determined the application for stay by the Petitioner and refusing the order sought, it is our firm conclusion that the petition still stand (sic) on the courts (sic) list for hearing… In the light of his inability to proceed to hearing based on the reason advance, we are left with no other option than to acceed (sic) to the call by the learned Counsel to the 1st and 2nd Respondent (sic) and invoke the provision of paragraph 5 (3) of the Election Tribunal and Practice Direction 2007 as amended We have noted the information lately given by the counsel to the Petitioner that their application has been fixed for 16th and 18th of June, 2008 at the Court of Appeal and which information he said he got by telephone message while in Court. In our view that situation does not change the position of things.

What the Tribunal is saying and of the firm view, is that in view of its ruling on the application by Petitioner for stay refusing same the Petitioner should proceed to hearing and call his witnesses. That is to say the hearing of the Petition can progress while he is pursuing the order for stay of proceeding in (sic) Court of Appeal. Having refused, the situation remains the same. To that end the petition is hereby struck out for want of prosecution. ”

Dissatisfied with the decision of the Tribunal, the Petitioners appealed to this Court on four grounds as set out in the Notice of Appeal. The Appellants’ Brief of argument and Reply brief were filed on 25th August, 2008 and 18th November, 2008 respectively. While the 1st and 2nd Respondents’ Brief of argument was filed 30th October, 2008. The 3rd to 8th Respondents’ Brief of argument was filed on 5th November, 2008. When the Appeal was called up for hearing, Chief Adeniyi adopted and relied on the Appellants’ two briefs as the Appellants’ arguments in this Appeal. Mr. Toki and Mrs. Arinze, learned Counsel for the 1st and 2nd Respondents and learned Counsel for the 3rd to 8th Respondents respectively, also adopted and placed reliance on their particular Respondents’ Briefs. Chief Adeniyi urged the Court to allow the Appeal, while Mr. Toki and Mrs. Arinze prayed the Court to dismiss same.

The 1st and 2nd Respondents, in their joint Brief of argument, raised a preliminary objection to the competence of the Appeal itself before the Court. The Notice of Preliminary Objection prays thus:

1. An Order of Court striking out Ground 1 of the Grounds of Appeal contained in the Appellants’ Notice and Grounds of Appeal dated 19th May, 2008 (filed on 20th May, 2008) for lack of competence.
2. An Order of Court striking-out Grounds 1, 2, 3 and 4 of the Grounds of Appeal dated and filed on the 27 day of June, 2008 for lack of competence.

The grounds for the application are stated thus:

(a) The Appellants’ Notice of Appeal dated 19th May, 2008 (filed on 20th May, 2008) is an Appeal against a non-existing Ruling/Decision of the Tribunal.

(b) Ground 1 of the Grounds of Appeal contained in the Appellants’ Notice and Grounds of Appeal dated 19th May, 2008 (filed on 20th May, 2008) and Ground 1 of the Notice and Grounds of Appeal of 27th day of June, 2008 are Grounds of Appeal purported to have been against an interlocutory decision of the lower Tribunal.

(c) Leave of either the lower Tribunal or of the Court of Appeal ought to be first sought and had before Ground 1 of each of the two Appeals could have been properly filed and competent.

(d) Leave of Court having not been obtained before filing of Ground 1 of the Grounds of Appeal contained in the Appellants’ Notice of Appeal dated 19th May, 2008 (filed on 20th May, 2008) and Grounds 1, 2, 3 and 4 of the Notice of Appeal dated and filed on 27th day of June, 2008, constitute a breach of the provisions of Section 14 (1) of the Court of Appeal Act, 2004 and is thus incompetent and ought to be struck out.

(e) The Appellants’ Notice of Appeal dated and filed on 27th day of June, 2008 is against the exercise of discretion of the lower Tribunal (to grant or refuse applications for stay of proceedings and/or adjournment) for which leave was neither sought nor obtained by the Appellants before filing same.

(f) ……………………..

(g) Ground 4 of the Notice and Grounds of Appeal dated and filed on 27th day of June, 2008 did not arise from the proceedings of the Tribunal. In arguing prayer one of the Preliminary Objection, Counsel contends that, from the Record of Appeal as well as the Supplementary Record of Appeal, the lower Tribunal did not make any decision in respect of this matter on the 2nd May, 2008, as the Tribunal did not even sit on that date. Counsel therefore submits that there is no decision of the lower Tribunal that this Court can, pursuant to Section 246 (1) (b) of the Constitution, be called upon to sit over as an appellate court. Counsel relied on Ajuwa V SPDC (2008) 10 NWLR (Pt. 1094) 64 at 91 & 94 and Madukolu V Nkemdilim (1962) 1 ALL 587 to submit that the Court is devoid of jurisdiction to entertain the Appellants’ Notice and Grounds of Appeal filed on 20th May, 2008 as same is in respect of a non-existing decision of the lower Tribunal. Counsel therefore urged the Court to strike out the Appeal filed on 20th May, 2008.

Learned Counsel submitted further that even if such a Ruling was delivered on the 2nd May, 2008, the Notice and Grounds of Appeal filed on the 20th May, 2008 would still be incompetent in that it would be an appeal against an interlocutory decision/ruling of the Tribunal. By virtue of Section 14 of the Court of Appeal Act, 2007 and Section 242 (1) of the Constitution such must be with the leave of either the Tribunal or this Court first sought and obtained. Counsel contends that from the 2nd May, 2008, the purported date of the delivery of the Ruling, and 20th May, 2008 when the Notice of Appeal was filed is more than 14 days. It is further submitted that the grant or refusal of an application for stay of proceedings is a discretionary power for which the leave of Court is required. Ikweki V Ebele (2005) 2 SC(II) 96 at 106-107.

Since no such leave was obtained, Counsel urged the Court to strike out the Appeal.

In respect of prayer two, Counsel submits that the Ruling of the lower Tribunal delivered on 10th June, 2008 refusing and dismissing the Appellants’ application for stay of execution, was an interlocutory decision. Counsel argues that by virtue of Section246 (1) of the Constitution in conjunction with Section 14 of the Court of Appeal Act, leave is required before an Appeal against such a decision can be filed at the Court of “Appeal. Reliance was placed on Onwe V Oke (2001) 3 NWLR (pt. 700) 407; NAF V Shekete (2003) 2 MJSC 63 at 78; Abioye V Alawode (2001) FWLR (Pt. 43) 332 and Obatoyinbo V Oshatoba (1996) 5 SCNJ 1 at 19-20. Counsel thus submits that Ground one of the Grounds of Appeal is incompetent, and any issue for determination distilled from same is itself incompetent and ought to be discountenanced. Counsel urged the Court to strike out Ground One and discountenance issue one distilled there from.

Regarding Grounds 2 and 3 of the Notice of Appeal, learned Counsel submits that they are also in respect of an interlocutory decision of the Tribunal for which leave ought to be sought and obtained. Such leave having not been obtained, Counsel urges the Court to strike out the Notice of Appeal dated and filed 27th June, 2008 in its entirety.

Learned Counsel goes on to submit in respect of Ground 4 of the Notice of appeal that the issue of an adjournment raised did not arise in the proceedings of the 10th June, 2008, as the Appellants did not seek an adjournment on that date. Counsel thus asked the Court to strike out Ground 4 of the Notice of Appeal filed on 27th June, 2008 as having not arisen from the proceedings of the Tribunal. NAB V Comex Ltd (1996) 6 NWLR (pt, 608) 648 is relied upon. In the alternative, on the assumption that an adjournment was sought by the Appellants on 10th June, 2008, Counsel contends that Ground 4 would still not be competent since the grant or refusal of an application for adjournment is a discretionary power of the Court for which leave is required before an Appeal against same can be filed. Ikweki V Ebele (Supra) is referred to. In responding to the objections raised to the competence of the Appeal, the Appellants submit that the Notice of Appeal forming the subject matter of this Appeal is the one dated 27th June, 2008 against the Ruling of the Tribunal delivered on 10th June, 2008, To that extent, Counsel submits that Grounds (i) (ii) and (iv) of the Preliminary objection in the 1st and 2nd Respondents’ Brief are not relevant to the determination of the Appeal as they refer entirely to a different Appeal. Counsel further submits that the reference to the 2nd May, 2008 as the date on which the ruling was delivered is a human error which is not fatal to the validity of the Appeal. He relied on Jeric (Nig.) Ltd V UBN Plc (2000) 15 NWLR (Pt. 691) 447 at 458. Counsel submits that the Respondents are not misled as to which Notice and Grounds of Appeal ground this Appeal, as they unequivocally distilled all the issues for determination from the “Appellants’ Notice and Grounds of Appeal dated and filed on 27th June, 2008”. Counsel therefore contends that the Respondents’ argument on the necessity for leave to be sought and obtained is misconceived on the peculiar facts of this case.

Counsel further submits that the lower Tribunal, in dismissing the Appellants’ motion for stay of proceedings pending the determination of their motion for stay at the Court of Appeal, Ilorin Division, and subsequently, the Appellants’ prayer for an adjournment, struck out the Petition, thereby finally disposing of the rights of the parties to the extent that no recourse or reference can be made to that Tribunal in respect of the Petition. Counsel submits that the order striking out became a final order or decision within the purview of Section 241 (1) (a) of the Constitution, and is therefore appealable without first seeking and obtaining leave. He relies on Nwabueze V Nwora (2005) 8 NWLR (Pt. 926) 1 at 18 – 19. Counsel therefore urged the Court to do substantial justice rather than lean on the side of technicalities.

The 3rd to 8th Respondents made no submissions in relation the preliminary objection.

It is quite apparent from the transcribed record of the lower Tribunal that the Appellants herein filed two Notices of Appeal against various rulings of the lower Tribunal. The first in time, which is contained at pages 55 to 57 of the record, is dated 19th and filed on 20th May, 2008, while the second in time, which is at pages 138 to 142 of the record, is dated and filed on 27th June, 2008. The prologue or opening paragraph of the first Appeal reads thus:

“TAKE NOTICE that the Petitioners/Appellants, being dissatisfied with the decision of the National Assembly Election Tribunal, Ekiti State, Holden in Ado-Ekiti delivered by Hon. Justice M.N. Oniyangi, and concurred by Hon. Justice CA. Mamza, Hon. Justice B.S.S. Mohammed- Hon. Justice B.I. Shall and Hon. Justice E.O. Haruna delivered on the 2nd Mar. 2008 more particularly stated in paragraph 2 hereof do hereby APPEAL to the Court of Appeal upon the grounds set out in paragraph 3and will at the hearing of the Appeal seek the reliefs set out in paragraph 4. ”

(Underlining supplied for emphasis).

Whereas the preamble of the second Appeal states as follows:

“TAKE NOTICE that the Petitioners/Appellants, being dissatisfied with the decision of the National Assembly Election Tribunal, Ekiti State, Holden in Ado- Ekiti delivered by Hon. Justice M.N. Oniyangi, and concurred by Hon. Justice CA. Mamza, Hon. Justice B.S.S. Mohammed- Hon. Justice B.I Shall and Hon. Justice E.O. Haruna delivered on 10th June. 2008 more particularly stated in paragraph 2 hereof do hereby APPEAL to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the Appeal seek the reliefs set out in paragraph 4. ”

(Underlining supplied for emphasis).

Much as the Appellants did not concede to the fact that the first Notice of Appeal filed by them is in respect of a Ruling delivered on 2nd May, 2008, this is glaring from page 55 of the record. I have gone through the length and breadth of the record of proceedings, as well as the supplementary record of proceedings and, (like the 1st and 2nd Respondents), have discovered that no Ruling was delivered by the Tribunal on the 2nd May, 2008, but on the 12th May, 2008. It is therefore apparent that there was an error on the part of the Appellants in specifying the date of the ruling appealed against. Be that as it may, it is equally evident from the Briefs of argument filed by both the Appellants as well as the Respondents before this Court that the Appeal argued before this Court is that in respect of the decision of the Tribunal delivered on the 10th June, 2008 and upon which all the Grounds of Appeal in the ‘Notice and Grounds of Appeal, filed on 27th June, 2008 are predicated. Indeed, learned Counsel for the Appellants has himself confirmed in the Appellants’ Reply Brief of argument that the Appeal now before the Court is premised on the second Notice of Appeal filed on 27th June, 2007 which complains against both the interlocutory and final decisions of the lower Tribunal delivered on the 10th June, 2008. In a specific response to the objection raised to the competence of the Appeal on this ground, Counsel has admitted thus at paragraphs 2.01, 2.03 and 2.05 of the Appellants’ Reply Brief:

2.01 It need not be emphasized that the Notice of Appeal forming the subject matter of this Appeal is the one dated 27th June, 2008 against the Ruling of the lower Tribunal made on 10th June, 2008.

2.02 ……

2.03 Assuming but not conceding that the Notice of Appeal dated 19th May, 2008 and filed on 20th May, 2008 is meant for a ruling delivered on 12th May, 2008 and not 2nd May, 2008, we submit that such is only a human error which is not fatal to the validity of a Notice of Appeal as long as the content of the ruling for which an appeal is filed was delivered by the court and in this case, the Tribunal and the Respondent is not in any way misled by the substance of the Notice of Appeal…

2.04 ………………

2.05 We submit that the fact that the date of the ruling was wrongly written to be 2nd May, 2008 instead of 12th May, 2008 is only a human error.

As afore-stated, Counsel therefore relied on Jeric (Nig) Ltd V UBN Ltd (Supra) where the apex Court held that the mis-stating in the Notice of Appeal of the actual year of the judgment appealed against is a mere irregularity which will not vitiate the appeal nor render it incompetent.

In giving consideration to this limb of objection, it is plain to me that none of the parties filed Briefs of argument in respect of the Notice of Appeal dated 19th and filed on the 20th May, 2008. The issues formulated by the Appellants were all in respect of and limited to the four grounds of Appeal in the Notice of Appeal filed on 27th June, 2008. The Appellants Brief of argument was therefore in respect of the two decisions of the lower Tribunal given on the 10th June, 2008. It is actually the Respondents who, on their own, introduced the Notice of Appeal filed on the 20th May, 2008 into their Briefs of argument. This is what has directly led to the misconception now articulated by them before this Court.

Nevertheless, even if the Appeal presently before the Court for consideration is in respect of the earlier Notice of Appeal filed on the 20th May, 2008, the Respondents are not in any way misled by the substance of the Notice of Appeal. The mis-stating of the date on which the ruling was delivered in the Notice of Appeal has clearly been attributed to human error by the Appellants. However, since what is evidently before the Court is the Notice of Appeal of 27th June, 2008, no more will be said on that. There will be enough time to look into the issues raised by the Notice of Appeal of 20th May, 2008 if, and when it comes before this Court for adjudication. For now, I can only say that raising the issue of an alleged mis-stated date in respect of an Appeal that is not yet before the Court for hearing, is both premature and misconceived. It may be more discreet and prudent for the Respondents to keep their gunpowder dry until same is slated for hearing, since there has been no prayer before this Court from any of the parties to either withdraw the said Appeal or to have it struck out as having been abandoned. In consequence therefore, I find this leg of objection totally misconceived and without merit.

Prayer two of the preliminary objection contends that the Ruling of the lower Tribunal delivered on 10th June, 2008 refusing and dismissing the Appellants’ application for stay of proceedings, was an interlocutory decision. Mr. Toki, Counsel for the 1st and 2nd Respondents, therefore submits that by virtue of Section 246 (1) of the Constitution in conjunction with Section 14 of the Court of Appeal Act, leave is required before an Appeal against such a decision can be filed at the Court of Appeal. Given that such leave was neither sought nor obtained, Counsel urged the Court to strike out Ground 1 of the Notice and Grounds of Appeal filed on the 27th June, 2008 on the ground of being incompetent. There is no gainsaying the fact that the Ruling delivered on the 10th June, 2008 was indeed an interlocutory decision of the Tribunal. This is self-evident from the record which clearly discloses that the Tribunal at that stage merely refused the application for stay of proceedings. Shortly thereafter, it proceeded with the hearing of the substantive Petition. Therefore, the real question which is raised by this objection is whether leave is required before a party in an Election Petition can appeal against an interlocutory decision of the Tribunal.

It is indubitable that Section 14 of the Court of Appeal Act provides the procedure for hearing appeals from interlocutory decisions of the State High Courts and the Federal High Court, It clearly states that leave is required before appeals can be filed against interlocutory decisions of the High Court to the Court of Appeal. Nevertheless, Section 246 (1) of the Constitution is the specific provision which guides the hearing of appeals from Election Petitions Tribunals. It is tailored or customized to meet the unique or peculiar requirements of Election Petitions, being in the nature of sui generic proceedings. It provides thus:

246. (1) An appeal to the Court of Appeal shall lie as of right from

(b) Decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunal on any question as to whether:-

(i) Any person has been validly elected as a member of the National Assembly or of the House of Assembly of a State under the Constitution;

(ii) Any person has been validly elected to the office of Governor or Deputy Governor; or

(iii)The term of office of any person has ceased or the seat of any such person has become vacant.

Previously this Court, in a surfeit of cases, had taken the position that by hearing interlocutory Appeals emanating from Election Petitions Tribunals, the Courts engaged in an exercise for which they had no jurisdiction. See Musa V Madwette (2008) ALL FWLR (Pt. 421) 937; Amgbare V Sylva (2007) 18 NWLR (Pt. 1065) 1; Ibori V Ogboru (2004) 15 NWLR (pt. 895) 154; Okon V Bob (2004) NWLR (pt, 854) 378; Ali V PDP (2004) FWLR (pt. 189) 1159; Usani V Duke (2004) 7 NWLR (pt, 871) 116 and Okhue V Obadan (1989) NWLR (pt. 120) 185. Reliance was mostly placed for this on the Supreme Court decision of Orubu V NEC (1988) 5 NWLR(Pt. 94) 323. Even in the recent case of Enimikemi V Sylva (2008) 8 NWLR (Pt. 1088) 207 at 219-220, this Court, in interpreting the scope and applicability of Section 246 (1) (b) (ii) of the 1999 Constitution, held thus:

“Put simply, these provisions provide for an appeal as of right from a decision of the Tribunal on any question as to whether any person has been validly elected to the office of Governor or Deputy Governor. Accordingly, the right thereunder accrues and becomes exercisable once there is a decision on whether a person has been validly elected into the office set out therein. It also means that the right which ennures and is exercisable when there is such a decision from the Tribunal on the valid election of the person named therein which implies a conclusive decision on such question as the validity of the election of such persons. Any decision in the course of the determination of whether such persons has (sic) been validly elected to the relevant office does not come within the purview of the provisions and so does not confer any right of appeal.”

However, the Supreme Court, in the case of Abubakar V Yar’Adua (2008) 4 NWLR (Pt. 1078) 465, (in an appeal from the Presidential Election Tribunal), has stepped in once more to give proper direction in the matter of interlocutory appeals arising from Election Petitions. The Respondents therein had complained that, as the appeals before the Supreme Court were interlocutory appeals and also the grounds of appeal were of mixed law and facts, leave of Court was required. In considering the issue:

Whether appeal lies as of right or at all from an interlocutory decision of the Court of Appeal made in the course of hearing a presidential election petition and if not whether this Honourable Court can entertain this appeal, filed without leave, either of the Court of Appeal or the Supreme Court, his lordship, Niki Tobi, JSC, not being enamoured of the line of argument of the Respondents, found that, of the four grounds of appeal, three were grounds of law and only one involved mixed law and facts or facts simpliciter. Therefore the three grounds could sustain the appeal. His lordship further held thus at page 494 of the report:

I do not agree with the submission of learned Senior Advocate for the 4th to 808th respondents that in all interlocutory appeals, leave is necessary. He cited Section 233 (3) of the Constitution. With respect, the subsection does not say so… Interlocutory appeals come under section 233(2), not under section 233 (3). I say this because, in my view, appeal under section 233 (2) covers both final and interlocutory appeals”.

Going further to consider the objection taken by the 1st and 2nd Respondents that the Appellants had taken steps by leading witnesses and tendering thousands of documents in proof of their cases, his lordship very tersely but succinctly pronounced thus at page 496:

” Appeal is a constitutional right which cannot be taken away from or denied an appellant No court of law has the jurisdiction to take away from or deny an appellant his constitutional right to appeal. I cannot deny the appellants their right of appeal based on the two grounds of the preliminary objection. Whether the parties have taken steps in the matter in the Court of Appeal developing into the closure of their cases and awaiting the adoption of written addresses, this court is not competent to deny the appellants their constitutional right to file an interlocutory appeal. ”

(Underlining supplied for emphasis).

Indeed, this Court was quick to take the cue from this pronouncement in another election petition, Akin Segun Babalola & 1 Other V Adumo Rufus Sunday & 6 Others (Unreported) Appeal No. CA/IL/EP/HA/14/2007 Judgment delivered on 12th March, 2008, where Agube, JCA held as follows at pages 26-28 thereof:

“Talking of interlocutory appeals in election petitions there is still a controversy as to whether a party in an election petition has a right of appeal against the decision of an Election Petition Tribunal which decision has not finally determined the rights of the parties. ”

My Lord Agube, JCA also considered the decisions of this Court in Amgbare V Sylva (Supra), Okokhue V Obadan (Supra) and Okon V Bob (Supra) which followed the earlier decision of the Supreme Court in Orubu V NEC (Supra) wherein it was held that interlocutory appeals arising from Election Petitions do not come within the ambit of decisions on an election as envisaged by Section 246 (1) (b) of the Constitution, and that an appeal would only come under the said constitutional provision if there is a determination of the petition on the merits. Very wisely relying on the Supreme Court decision in Atiku V Yar’Adua (Supra), Agube, JCA, firmly and unwaveringly found thus:

“The Supreme Court has spoken in a presidential election petition and this court is therefore bound to toe the line henceforth without any further controversy on whether interlocutory decisions or Orders are appealable in election petition proceedings. ”

Needless to say, I feel the same way. There is no gainsaying the fact that parties have the right to appeal on interlocutory matters in an election petition. That really has been the stand of the Supreme Court as far back as in the case of Buhari V Obasanjo (2003) 9 SCNJ 1; (2003) 17 NWLR (pt. 941) 1; (2003) FWLR (pt. 186) 709. In the case of Awuse V Odili (2003) 11 SCNJ)88; (2003) 18 NWLR (pt. 851)116; (2004) FWLR (pt. 193) 235, which affirmed the decision in Buhari V Obasanjo (Supra), the apex Court went to pains to distinguish the law applied in the case of Orubu V NEC (1988) 5 NWLR(pt. 94) 323. In the Orubu case, the Supreme Court amongst other things, considered and applied Section 27 (1) of the 3rd Schedule to Local Government Elections Decree No. 37 of 1987 which provided that all interlocutory matters must be heard and disposed of before the Judge as in the ordinary proceedings of the High Court. Uwais, JSC, (as he then was), made the point that since Decree No. 37 of 1987 had made specific provision for elections to Local Government Councils, it was sufficient indication that the unsuspended or modified provisions of the 1979 Constitution were not to apply to elections to Local Government Councils, applying the maxim generia specialibus non derogant Since there was therefore no provision for appeals from the High Court provided in the said Decree, the learned Jurist found that there was no right of appeal to the Court of Appeal by virtue of Section 27 (1) of Schedule 3 of the 1987 Decree. In Awuse V Odili (Supra), Uwaifo, JSC was of the view that had Section 220 (1) of the 1979 Constitution (which is in pari materia with Section 246 (1) of the 1999 Constitution), read along with Section 277(1) of the 1979 Constitution, (which gives the definition of ‘decision), been applicable in the Orubu case, it would have given the Court of Appeal jurisdiction to hear appeals from interlocutory decisions of the High Court. (It must be remembered that, at the time the Orubu case was decided, the country was operating under military fiat by decrees and a greater portion of the 1979 Constitution lay suspended). The Supreme Court in the Awuse V Odili (Supra) case, relying on the decision in the Buhari V Obasanjo (Supra) case, interpreted the definition of ‘decision’ in Section 318 (1) of the 1999 Constitution to include any interlocutory decision. The Court therefore held that the Court of Appeal does have jurisdiction to entertain appeals from the interlocutory decisions of Election Tribunals set up under Section 246 of the 1999 Constitution. Uwaifo, JSC held conclusively thus at page 110 of the report:

”

The definition of ”decision” in Section 318 (1) of the 1999 Constitution gives a wide implication to any ‘determination’ by a court. This obviously includes any interlocutory decision.

It follows that the Court of Appeal has jurisdiction to entertain an appeal from interlocutory decisions of the Election Tribunals set up under Section 246 of the 1999 Constitution.

In a show of unanimity, Iguh, JSC also held unswervingly thus at pages 103- 104 of the same report:

”In making provision in respect of ‘decisions’ of the Court of Appeal in Election Petition matters, Section 246 (3) of the 1999 Constitution makes no distinction between ‘interlocutory’ and/or ‘final’ decisions of the Court.”

In the earlier case of Buhari V Obasanjo (Supra), the apex Court had interpreted the word ‘decision’ in Section 318 of the Constitution to include any ruling in any proceeding. This has thus settled the matter for all time. Consequently, whether the decision was interim, interlocutory, or was a final decision on the merit, a right of appeal would lie. See again the decision of this Court in Ojo V INEC (2008) 13 NWLR (pt.1105) 577 at 619 per Ogunwumiju, JCA.

The Appeal now under consideration is against the decision of the Governorship and Legislative Houses Election Tribunal in an Election Petition in respect of a seat in the House of Representatives. The general attitude of the appellate courts to interlocutory appeals clearly accords with, and is in recognition of the sui generis nature of Election Petitions. It is also in the spirit of the expeditious dispensation of justice. It cannot be over-emphasized that time is of the essence in this nature of proceedings. Even in ordinary civil cases, the Supreme Court advocates that as much as possible, interlocutory appeals be filed along with the final decision of the court, (as done in this case). In the case of Abubakar V Chuks (2008) ALL FWLR (pt. 408) 207 at page 232, Onnoghen, JSC ardently stated thus:

“The facts of this case once more bring to the front burner the vexed issue of interlocutory appeals making their way right up to this court at the expense of speedy trials and determination of matters before the court. The present journey by the appellant to the Supreme Court is not only wasteful to both parties and the judicial system but totally avoidable particularly as the issue could be taken up in an appeal against the judgment at the conclusion of trial. The instant appeal is not only frivolous but vexatious – crafted to frustrate and continue to oppress the respondent in his efforts at obtaining justice under the rule of law, which should not be encouraged at all by any right thinking judicial system. ”

His lordship, Niki Tobi, JSC at page 225 of the same report opined and equally expressed his irritation at the piecemeal pursuance of interlocutory appeals during the pendancy of proceedings thus:

“This is yet another interlocutory appeal which, on a sober and good judgment on the part of counsel, ought to have been avoided and taken after the judgment, if the judgment goes against the appellant.

Unfortunately, it is not so as the appeal has come all the way to this court because of the admission of exhibit 7. ”

It is therefore evident that the tenor of the decisions of the apex Court is that, interlocutory appeals should, as much as possible, await the final decision of the court.

This requirement is even more pronounced in decisions arising from election petitions, which of necessity need to be heard and determined expeditiously given the interest of the generality of the citizenry in its outcome and its impact on the country as a whole.

Following on the heels of all the above, I take the view that it is for this very reason that Section 246 (1) (b) (i) read in conjunction with in conjunction with Section 318 (1) of the Constitution provides a straight highway for appeal in election petitions. By virtue of these provisions, no leave is required to appeal against the rulings/interlocutory decisions of the Election Petitions Tribunal sitting at Ado-Ekiti to this Court since appeal lies against such decisions, interim, interlocutory or final, as of right. In consequence thereof, I find no merit in this ground of objection.

Regarding Grounds 2 and 3 of the Notice and Grounds of Appeal learned Counsel has submitted that they are equally in respect of an interlocutory decision of the Tribunal for which leave ought to be sought and obtained. Such leave having not been obtained, Counsel urged the Court to strike out the Notice of Appeal dated and filed 27th June, 2008 in its entirety. Having already dealt extensively on the issue of whether or not leave is required to appeal against interlocutory decisions of an Election Petition Tribunal exhaustively as above, no useful purpose will be served in re-hashing them here. Suffice it to say that the same findings above apply mutatis mutandis to the objection raised to Grounds 2 and 3 as well. I do so find.

The fourth and final objection relates to Ground 4 of the Notice and Grounds of Appeal. Counsel submits that the issue of an adjournment did not arise in the proceedings of the 10th June, 2008, as the Appellants did not seek an adjournment on that date. Counsel therefore asked the Court to strike out Ground 4 of the Notice of Appeal filed on 27th June, 2008 as having not arisen from the proceedings of the Tribunal. NAB V Comex Ltd (1996) 6 NWLR (pt. 608) 648 is relied upon. Pages127 to 128 of the record of proceedings of the Tribunal are reproduced hereunder as they would better speak to this issue:

”Mr. Egbewole: We thank the Tribunal for the ruling this case as (Sic) slated for hearing we are ready.

Mr. Toki: We thank the Tribunal for the Ruling we are ready for hearing.

Mr. Idowu: We are not ready to go on for now based on two major grounds. The first is that we would need to collect the copy of this ruling of the Tribunal.

Secondly is that continuing with the trial now will run contrary to our pending application for stay pending before the Court of Appeal. We got a call that our application has been fixed for hearing on 16/6/08 and 18/6/08.

Mr. Egbewole: The case is fixed for definite hearing. The Tribunal has taken a position for the application for stay which essentially is discretionary. As far as this Tribunal is concerned proceeding must proceed. The Petitioners are not willing to proceed to hearing. We urge the Tribunal to dismiss the Petition based on the provision of paragraph 5 (3) of the practice direction and para. 24 and 25 of the Act and section 148 of the Act 2006. I urge the Tribunal to be persuade

(sic) by the Ruling of the Tribunal in the Petition of Adeniyi V Akinyede. We urge the Tribunal to dismiss the Petition.

Mr. Toki: We align our self (sic) with the submission of the learned Counsel for the 1st Respondent and urge the Tribunal to dismiss the Petition.

Mr. Idowu: No reply on point of law. ”

In response to the above exchange between learned Counsel appearing for parties to the Petition, the Tribunal ruled inter alia thus at pages 128 to 130 of the record:

“At the resumed sitting today after an adjournment on the 4th day of June, 2008 till today for definite hearing at the instance of the Petitioner when his Counsel Mr. Osohas this to say

“In view of the Ruling of the Tribunal we ask for a date for hearing we suggest 10th June, 2008. ”

By that token the Petition was adjourned till today 10th June, 2008 for definite hearing.

However today the Petitioner came up with another application for stay of proceeding pending his application for stay of proceeding at the Court of Appeal.

… After a careful consideration of the application same was refused and dismissed Consequent upon this the Petitioner was asked to proceed with the hearing of his Petition after the 1st and 2nd Respondents indicated their readiness to proceed to hearing. The Petitioner expressed his state of unreadiness to proceed to hearing based on the following reasons given by him … In the light of his inability to proceed to hearing based on the reason advanced, we are left with no other option than to aceed (sic) to the call by the learned Counsel to the 1st and 2nd Respondent and invoke the provision of paragraph 5 (3) of the Election Tribunal and Court Practice Directions, 2007 as amended .. what the Tribunal is saying and of the firm view, is that in view of its ruling on the application by Petitioner for stay refusing same the Petitioner should proceed to hearing and call his witnesses. That is to say that the hearing of the Petition can progress while he is pursuing the order for stay of proceeding in the Court of Appeal. Having refused, the situation remains the same. To that end, the Petition is hereby struck out for want of prosecution. ”

It is manifest from the transcribed record of the Tribunal reproduced above that, contrary to the Appellants’ assertions, nowhere therein did the Appellants’ Counsel seek an adjournment following the refusal and dismissal of his application for stay of proceedings. Counsel merely articulated his stand that he was not prepared to proceed with the hearing of the Petition. In other words, in spite of the Ruling of the Tribunal refusing to stay proceedings, the learned Counsel for the Appellant stood his ground and simply refused to proceed with the Petition and adduce evidence in proof thereof.

Unfortunately, this was a case where silence proved not to be golden. As has been oft stated, a Judge is not a ‘Father Christmas’. He cannot give a party what he did not ask for. Section 246 (1) (b) (i) of the Constitution which created the Appellants’ right of appeal clearly presupposes the existence of a decision(s) of the lower Tribunal from which there can arise an appeal. The right of appeal there under is exercisable only against a point or points in the Tribunal’s decision. It therefore follows that where the Appellants’ complaint, (which is the purport of an appeal), is not targeted at or does not arise from the decision appealed against, such a complaint cannot be the basis of an issue for determination by this Court, This Court’s appellate jurisdiction is solely for the purpose of reviewing the decisions of trial Courts. In this case, the issue being appealed against did not occur at the lower Tribunal. The Appellants certainly did not ask the Tribunal for an adjournment and so there was no parallel call on the learned Justices of the Tribunal to exercise their discretion one way or another. Given the nature of the Appellants’ right of appeal as created by Section 246 (1) (b) (i), the Appellants cannot activate the jurisdiction of the Court in respect of an issue or matter that had neither arisen in the course of the Tribunal’s proceeding nor was made a point in the decision being appealed against. Having plainly and obstinately refused to proceed, the Tribunal only called in aid or activated the provisions of the Practice Directions. The result? The Petition was struck out for want of prosecution. The Appellants’ complaint as constituted in this ground of Appeal is clearly incompetent.

It is rather like stating the obvious to say that the grounds of appeal and the issues they give rise to must be covered by the judgment appealed against. Issues for determination which do not arise from the judgment appealed against are incompetent and must equally be discountenanced. See Makinde V Adeogun (2009) 1 NWLR (pt. 1123)575; Salami V Mohammed (2000) 9 NWLR (pt. 673) 469; Scheeps V M.Z. “S. Araz” (2000) 15 NWLR (pt, 691) 622. From the record of the Tribunal, (which I have expansively set out above), it is abundantly clear, at least to me, that the factual basis for Ground four of the Grounds of Appeal upon which the fifth issue is based does not exist. In other words, the issue agitated under Ground four of the Grounds of Appeal did not arise from the proceedings and/or ruling of the Tribunal delivered on 27th June, 2008 and therefore it is not a proper ground of appeal. Ground 4 is incompetent and the Court will not entertain a ground of appeal such as it is, being an issue which was not raised in the lower Tribunal. No issue that was not raised and a part of the proceedings at the lower Court, and no point that has not been taken and argued in the lower Court will be allowed on appeal. The issue raised in Ground 4 suggesting that the Tribunal refused an application for an adjournment and the issue on which it is predicated was never a part of the decision of the Tribunal. Ground 4 therefore constitutes neither a factual situation nor a decision of the Tribunal that could serve as a launching pad for the attack contained in the said ground. See Ololade V INEC (2009) ALL FWLR(Pt. 449) 572; Ogunbiyi V Ishola (1996) 5 SCNJ 143 at 154. In Saraki V Kotoye (1992) 9 NWLR(Pt. 261) 156 at 184, the Supreme Court discussed comprehensively the necessity for a ground of appeal to flow or arise from the Judgment appealed against. It observed:

“It is a well settled proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision – see Egbe V Alhaji (1990) 1 NWLR (pt. 128) 546 at 590. Grounds of Appeal are not formulated in nubibus. They must be infirma terra, namely arise from the judgment However meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between the parties. This is the precondition for the vesting of the judicial powers of the Constitution in the courts – See senator Adesanya V President of Nigeria (1981) 1 NCLR 358. Like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment appealed against”

The apex Court re-stated this principle in Atoyebi V Governor of Oyo State (1994) 5 NWLR (Pt.340) 290 at 305 and Alakija V Abdulai (1998) 5 SCNJ 1. I therefore agree with Counsel for the Respondents that in the absence of a factual controversy between the parties to which the said ground of appeal is related and tied, there is no live issue in respect of which this Court can adjudicate. Oguntade, JSC in the case of Ikweki V Ebeli (2005) 2 SCNJ 242 at page 257 put it conclusively thus:

“It only remains for me to say that the principle enunciated in the above cases applies with equal force to appeals emanating from the High Court to the Court of Appeal. It is impermissible for a person to found his right of appeal from the decision of the High Court to the Court of Appeal on a matter that did not arise in the course of proceedings before the High Court. ‘

I therefore find as a fact that the issue of an adjournment did not at all arise in the proceedings before the Tribunal. It thus cannot form the factual basis of a ground of appeal. Hence from all I have said, my conclusion is that Ground four of the Grounds of Appeal is incompetent and it ought not to stand. In consequence, issue NO.5 distilled from it is equally incompetent, as well as all the arguments based thereon. Both Ground 4 and issue No. 5 formulated thereon are consequently struck out and the submissions thereon disregarded.

In the light of this finding, I decline the invitation to address the alternative submissions of the Respondents which canvass that, assuming without conceding that an adjournment was sought by the Appellants, Ground 4 would still not be competent since the grant or refusal of an application for stay of proceedings are discretionary powers of the Court for which leave is required. To make a pronouncement on this issue is to engage in a needless hypothesis which a court of law will not engage in. See Aks Property Investment Co. Ltd V Akpan (2008) ALL FWLR (Pt. 411) 990; Gwar V Adole (2003) FWLR (pt. 176) 747; (2003) 3 NWLR (Pt. 808) 5; Rabiu V Amadu (2003) 5 NWLR (pt. 813) 345. A matter is academic when it cannot in any way affect the determination of the live issues in the matter. It has so often been stated that academic issues have no place in our courts of law and courts should not indulge themselves in dealing with and considering academic questions or issues. See Ololade V INEC (Supra); Adighije V Nwaogu (2009) 2 NWLR) (pt. 1125) 231; Abubakar V Yar’Adua (2008) 4 NWLR (pt. 1078) 465; Owners of the MV “Arabella” V Nigeria Agricultural Insurance Corporation (2008) ALL FWLR (Pt. 443) 1208; Plateau State V AG Federation (2006) 3 NWLR (pt. 967) 346 at 419; AG Anambra State V NIWA (2004) 3 NWLR(pt. 861) 640; IBWA V Pavex International Co. (Nig.) Ltd (2000) 4 SCNJ 200; (2000) 7 NWLR(Pt. 663) 105; Alii V Alesinloye (2000) FWLR(pt.15) 2610; (2000) 6 NWLR (pt. 660) 177; (2000) 4 SCNJ 264; Fawehinmi V Akilu (1987) 4 NWLR(Pt. 67) 797; Nwobosi V ACB (1995) 6 NWLR(pt. 404) 658.

The result of all my findings above is that only the objection raised against Ground four of the Notice and Grounds of appeal is sustainable. Consequently, following my finding that the issue of an adjournment did not arise from the proceedings of the lower Tribunal, it is upheld. Accordingly, Ground 4 of the Notice and Grounds of Appeal dated 27th June, 2008 is struck out. However, since the law is settled that an Appeal can be sustained by even one valid ground of appeal and there are no less than three other valid grounds of appeal, i.e. Grounds 1, 2 and 3, I am of the view that they suffice to sustain the Appeal, and I so hold.

As a result, the surviving grounds of Appeal without their particulars complain thus:

“Ground One

The lower Tribunal erred in law by dismissing the Appellants’/Petitioner’s application for stay of proceedings and thus refused to stay proceedings in the petition despite their knowledge of the pendancy of their application for stay of proceeding at the Court of Appeal Ilorin Judicial Division on the same subject matter.

Ground Two

The learned Justices of the lower Tribunal transgressed in law by striking out Appellant’s petition during the pendancy of an application for stay of proceedings pending at the Court of Appeal, I1orin.

Ground Three

The learned Justices of the lower Tribunal erred in law by invoking the provisions of paragraph 5 (3) of the Election Petition and Practice Direction as amended to strike out the Petition.

Premised on these grounds, the Appellants distilled the following issues for the determination of the Court:

1. Whether the learned Justices of the election Tribunal were right in dismissing the Petitioners/Appellants’ application for stay of proceedings and refusing to stay the proceedings in the petition despite their knowledge of the pendancy of an application for stay of proceedings at the Court of Appeal Ilorin Judicial Division on the same subject matter. (Ground One).
2. Whether the learned Justices of the Election Petitions Tribunal were right in striking out Appellants’ Petition during the pendancy of an application for stay of proceedings before the Court of Appeal, Ilorin Division already given a hearing date. (Ground Two).
3. Whether the decision in Nigeria Arab Bank Ltd V Comex Ltd (1996) 6 NWLR (pt.608) is still valid and good law. (Ground Two).
4. Whether the learned Justices of the Election Petitions Tribunal were right by invoking the provisions of paragraph 5 (3) of the election Petitions and Practice Directions, 2007 (as amended) to strike out the Petition. (Ground Three).

Before embarking on a consideration of the main Appeal, I need to firstly address a matter of vital importance which this Court has harped on and admonished that they ought not to be repeatedly done. This has to do with a proliferation of issues. The Appellants filed four Grounds of Appeal in their Notice of Appeal. From these four Grounds, they have formulated five issues for the determination of the Court. The formulation of more issues than there are grounds without some strong reason is frowned upon. The Supreme Court has decided time and again in a host of cases that it is wrong for counsel to formulate issues for determination in excess of the grounds of appeal filed and, except in special cases where the grounds of appeal so dictate, it is undesirable to formulate more than one issue in respect of each ground of appeal. See Oyekan V Akinrinde (1996) 7 SCNJ165; Ogunbiyi V Ishola (1996) 5 SCNJ143; Utih V Onoyivwe (1991) 1 NWLR (pt. 166); Buraimoh V Bamgbose (1989) 3 NWLR (pt. 109) 352; A-G Bendel State V Aideyan (1989) 4 NWLR (pt. 118) 646. In my view, issue No.3, which is the second issue formulated out of Ground two, is superfluous as issue two is sufficient to address the concern raised in the said Ground of Appeal and to adequately dispose of same. Hence, issue No. 3 is accordingly struck out.

The 1st and 2nd Respondents, on their part, formulated two issues for determination thus:

a. Whether Ground one of the Notice and Grounds of Appeal is competent and same ought not to be struck out.

b. Whether in all the circumstances of this case the Appellants’ constitutional right to fair hearing was breached by reason of the lower Tribunal’s refusal to exercise its discretion in favour of the Appellants. (Grounds 2, 3 and 4).

The 3rd to 8th Respondents, in their Brief of argument, distilled the same two issues formulated by the 1st and 2nd Respondents.

In the light of the facts disclosed on the record, vis a vis the surviving Grounds of Appeal, I adopt the following issues, (as formulated by the Appellants), to determine this Appeal:

1. Whether the learned Justices of the Election Tribunal were right in dismissing the Petitioners/Appellants’ application for stay of proceedings and refusing to stay the proceedings in the petition despite their knowledge of the pendancy of an application for stay of proceedings at the Court of Appeal Ilorin Judicial Division on the same subject matter. (Ground One).
2. Whether the learned Justices of the Election Petitions Tribunal were right in striking out Appellants’ Petition during the pendancy of an application for stay of proceedings before the Court of Appeal, Ilorin Division. (Ground Two).
3. Whether the learned Justices of the Election Petitions Tribunal were right in invoking the provisions of Paragraph 5 (3) of the Election Petitions and Practice Directions, 2007 (as amended) to strike out the Petition. (Ground Three).

Now we proceed to the arguments on the issues. Arguing issues one and two, (relating to grounds one and two), learned Counsel for the Petitioners has argued that a lower Court is enjoined to stay proceedings upon being aware of the pendancy of an application for stay of proceedings before a higher court as long as that application touches on the subject matter before the lower court. This is more so following the filing of a Notice of Appeal at the Tribunal’s Registry. This fact was apparently brought to the attention of the Tribunal via the Exhibit Al attached to the application for stay of proceedings before the Tribunal. Learned Counsel therefore submits that the Tribunal transgressed in law by striking out the Petition of the Appellants, thereby rendering the application for stay of proceedings before the Court of Appeal impotent and useless. He relied on the decision Nigeria-Arab Bank Ltd V Comex Ltd (1999) 6 NWLR(Pt. 608) 648 at 665 & 670-671, where this Court held that where the Tribunal felt unable to rely on the statement from Counsel that an application had been filed at the Court of Appeal which is pending, it ought to have adjourned the matter to enable Counsel show documentary proof that an application had been filed at the Court of Appeal. By failing to do so, it was held that the trial Court failed in its duty when it proceeded with the case despite being notified by Counsel of the pendancy of the application for stay of proceedings at the trial Court. Learned Counsel submits that this is still good law and legally valid. He also relied on Mohammed V Olawunmi (1993) 4 NWLR (Pt. 287) 254. Counsel urged the Court to therefore resolve these two issues in favour of the Appellants.

In respect of issue one, which is distilled from Ground One of the Grounds of Appeal and addresses the complaint of the Appellants against the dismissal by the Tribunal of the Appellants’ application for stay of proceedings during the pendancy of a similar application at the Court of Appeal on the same subject matter, learned Counsel for the 1st and 2nd Respondents drew the Court’s attention to the fact that the Appellants filed three applications for stay of proceedings at the lower Tribunal. The first was filed on 28th April, 2008, the second on 20th May, 2000 and the third on 9th June, 2008. The latter application is the subject upon which Ground one is predicated, and it was filed on the same date on which the Appellants filed a similar application at this Court. Each of the applications for stay before the Tribunal was refused. Learned Counsel for the 1st and 2nd Respondents therefore contends that this attitude of the Appellants in filing multiple applications constitutes an abuse of Court process. CBN V Ahmed (2001) 11 NWLR (Pt. 724) 369 at 408 & 410 is relied upon. Counsel further submits that the lower Tribunal, having refused the Appellants’ application for stay of proceedings of the same Petition in the same terms on two previous occasions, and the Tribunal having become functus officio, by their subsequent act of filing similar applications both at the Court of Appeal and the same at the lower Tribunal, the Appellants could at best be seen as being all out to embarrass, harass and irritate, and same amounts to an improper use of the process of court mala fide and to impede the administration of justice. In addition, Counsel relied on Section 148 of the Electoral Act and Paragraph 10 of the Practice Directions NO.2 of 2007, (as amended), which make election petitions sui generis for which time is of the essence and in which a stay of proceedings is expressly forbidden. He refers to Okereke V Yar’Adua (2008) 12 NWLR (pt. 1100) 95 at 141. Counsel therefore urged the Court to hold that the pendancy at the Court of Appeal and at the lower Tribunal of the Appellants’ two applications for stay of proceedings at the same time amounts to an abuse of process of court and that the Tribunal was right when it refused and dismissed the application before it on the ground of the misconception of the Rules.

Learned Counsel further submits that there was no justification for the stay of proceedings sought by the Appellants as there is no pending Appeal by the Appellants.

He contends that the purported Appeal referred to by the Appellants did not relate to any proceedings of the Tribunal. Whereas the said Appeal complains about purported proceedings of the Tribunal dated 2nd May, 2008, the Tribunal did not sit in respect of this matter on the 2nd May, 2008. All the Appellants had, was a suit pending at the Federal High Court Akure to which, neither the Respondents nor the Tribunal was a party and so same cannot constitute an Appeal. Learned Counsel concluded that the Appellants did not present any fact upon which the Tribunal could have exercised its discretion to grant a stay of proceedings.

The only reason advanced by the Appellants was that the 1st Tribunal should hear their Petition. However, Counsel contends that the Appellants had called only 6 out of the 32 witnesses on their list, while the Respondents had not called any of their 35 witnesses.

Counsel contends that the Appellants, from the record of appeal, used every conventional and non-conventional method to delay the hearing of the Petition before Tribunal II. Counsel therefore urged the Court to resolve issue one in favour of the Respondents and so, to dismiss Ground one.

Learned Counsel for the 3rd to 8th Respondents, on her part, submits on this issue that a stay of proceedings can only be granted based on the existence of exceptional circumstances. NDLEA V Okorodudu (1997) 3 NWLR pt. 492) 221 and Ayeni V Eledo (2005) 12 NWLR (pt. 939) 368 are referred to. Counsel contends that the Appellants did not present any facts upon which the Tribunal could exercise its discretion to grant a stay of proceedings. She is of the view that the Appellants attempted to frustrate the 2nd Tribunal from hearing the Petition because they wanted

the 1st Tribunal to hear it. Counsel submits that the sui generis nature of election petitions, where time is of the utmost essence made it imperative for the Tribunal to refuse the application. She relied on PDP V Abubakar (2007) 2 NWLR (pt. 1018) 303 at 318.

Learned Counsel further submits that by Paragraph 10 of the Election Petition Practice Direction NO.2 of 2007, the trial Tribunal does not have the power to grant a stay of proceedings in respect of an interlocutory Appeal. It is therefore Counsel’s contention that the Tribunal exercised its powers within the confines of the provisions of the Rules of Court. Counsel thus urged the Court to determine this issue in favour of the Respondents.

In a reply to the issues formulated by the 1st and 2nd Respondents, Counsel submits that the Respondents totally missed the substance of the arguments in the Appellants’ Brief. Counsel contends that the Respondents’ arguments are at variance with the issues canvassed and argued in the Appellants’ Brief. In particular reference to issue number one, Counsel submits that the Respondents’ Brief is limited to the consideration of an application for stay of proceedings before the lower Tribunal and not the legal implication of the pendancy of the application for a stay of proceedings of the Tribunal before a higher Court, particularly when that motion had been fixed for hearing to the knowledge of the Tribunal. Counsel therefore submits that the Respondents misconceived the issue vis a vis Ground one of the Notice of Appeal.

This issue invites the Court to pronounce on the propriety or otherwise of the Tribunal refusing the application for stay of its proceedings to await the outcome of a similar application filed and pending before the Court of Appeal. Getting the facts right from the onset would aid in getting the issues in perspective here. The Petitioner commenced proving its Petition before the Election Tribunal 1 sitting at Ado-Ekiti and had adduced evidence through 6 out of its listed 31/32 witnesses. The President of the Court of Appeal, in his wisdom and in the exercise of his powers under the Constitution, created a second Tribunal to handle the numerous Petitions arising from the elections held in Ekiti State. Subsequently, ten out of the twenty Petitions pending before the Election Tribunal No. 1 were re-assigned to the Election Tribunal No. 2 for hearing and determination. The Petitioners, being unhappy with this development, wrote a letter to the Election Tribunal No. 2 requesting that their Petition should be returned to the Election Tribunal No. 1 for continuation of hearing. The Chairman of the Tribunal directed that the Petitioners’ letter be forwarded to the President for his attention and direction. The Hon. President however declined to accede to the request of the Petitioners and instead directed the Tribunal to proceed with the hearing of the Petition.

Whereupon the Petitioners filed a motion on notice on the 28th March, 2008, asking the Tribunal to disqualify itself from hearing the Petition. This did not meet with the approval of the Tribunal and so, in a considered ruling, it struck out the motion, setting down the Petition for hearing. Unhappy with this decision, the 1st Petitioner proceeded post-haste to the Federal High Court where he, (in conjunction with others), initiated proceedings via an Originating Summons in Suit No. FHC/AK/CS/38/2008 between Paul Oludare Awopetu, B. Olukayode Oluyemo, Robinson Gbadebo Ajiboye and Chief A.A. Adeniyi V Attorney General (Federal Republic of Nigeria) and Hon. Justice Umaru Abdullahi (President of the Court of Appeal). Therein, the Plaintiffs challenged the reassignment

of this Petition along with other Petitions, and sought an interpretation of the Constitutional the powers of the President of the Court of Appeal to so re-assign.

Interestingly, neither the Respondents to the Petition from which this Appeal has arisen, nor the Tribunal itself were parties to the suit. Instead, the 1st Petitioner/1st Appellant in this Appeal, Paul Oludare Awopetu, and three others, (all strangers to the Petition), were the Plaintiffs, while the Attorney General (Federal Republic of Nigeria) and Hon. Justice Umaru Abdullahi (President of the Court of Appeal), also strangers to the Petition, were the Defendants. (See pages 37 – 41 of the record). For good measure, the Petitioners filed a motion on notice before the Tribunal on the 28th April, 2008 seeking a stay of proceedings in the hearing of the petition, pending the determination of the suit before the Federal High Court. Predictably, on the 12th May, 2008, the learned Judges of the Tribunal wasted no time in refusing the application, it having no direct bearing on the Petition and the parties before it, and once again, slated the Petition for hearing on the 20th May, 2008. Shortly before the date for hearing, the Petitioners again, (on the 19th May, 2008), filed a Notice of Appeal against the ruling of the Tribunal which they incorrectly referred to as having been delivered on 2nd May, 2008. In the same breath and on the same day, they filed another motion at the Tribunal for stay of proceedings, (the second in the series of such motions), pending the hearing and determination of the Appeal which was against the refusal of the application for stay of proceedings. The Tribunal duly heard this second motion for stay of its proceedings on the 3rd June, 2008 and in another considered ruling delivered on 4th June, 2008, refused the application and dismissed same. Once again, the learned Judges of the Tribunal, on the express application of the Petitioners’ Counsel, slated the Petition for hearing on the 10th June, 2008.

Undeterred by the serial refusal of their applications for stay of proceedings, the Petitioners, to the utter chagrin and aggravation of the Tribunal and the obvious frustration of the Respondents, for the umpteenth time, filed another motion seeking to stay the proceedings of the Tribunal pending the determination of another motion seeking a stay of the proceedings of the Tribunal filed at the Court of Appeal. This was filed before the Tribunal on the 9th June, 2008 while the motion for stay was filed at the Court of Appeal a few days earlier on the 6th June, 2008. On the 10th June, 2008, which was the date slated for hearing of the Petition, upon being notified of the existence of the latest motion, the Tribunal once again patiently listened to the parties on the Petitioners’ latest motion for stay of its proceedings. In a Bench ruling delivered on the same day, the learned Judges refused the application and dismissed same. It is against this refusal that the Appellants have now appealed in Ground one of their Notice and Grounds of Appeal. The issue formulated thereon therefore seeks an answer as to whether the learned Judges of the Tribunal acted rightly in refusing the application for stay of proceedings in the face of a similar application pending before the Court of Appeal.

Learned Counsel for the Appellant has sought to convince us by submitting that a lower Court is enjoined to stay proceedings upon being aware of the pendancy of a similar application for stay before this Court. Before we go into this, it is well to state the appropriate circumstances for the grant of an order of stay of further proceedings before a trial court pending the determination of an interlocutory Appeal. It goes without saying that a motion on notice seeking a stay must be hung or derives from a substantive matter. The basis for seeking the stay of proceedings from the onset therefore was to await the determination of the Appeal filed at the Court of Appeal over the refusal of the Tribunal to grant a stay of proceedings in respect of the suit filed at the Federal High Court. It is the law that a stay should be granted only when an interlocutory Appeal will dispose of the substantive case. It follows that it should not be granted simply because a party has tried to be clever by half in duplicating motions for stay of proceedings before both the Court of trial and the appellate Court. By so doing, the Petitioners sought to gamble. If they failed to get their order in one Court, they would fall back on the second application before the appellate Court. However, no court of law worth its salt would indulge such a gambling applicant.

We must also not lose sight of the fact that the Appeal pending before the Court of Appeal was in respect of the refusal of the Tribunal to order a stay of its proceedings pending the hearing and determination of the suit the 1st Petitioner, (and three others unknown to these proceedings), instituted at the Federal High Court against the Federal Attorney General and the President of the Court of Appeal. Since neither the Respondents nor even the Tribunal itself were parties before that Court, the suit had absolutely no direct bearing on the proceedings before the Tribunal, and so it came as no surprise when the application was refused. It is pursuant to this refusal that the Petitioners once again filed another motion for stay of proceedings before the Court of Appeal. The question which therefore begs for an answer is: whether the pending Appeal which seeks the Constitutional interpretation of the powers of the President of the Court of Appeal would dispose of the substantive Petition before the Tribunal which challenges the election held on the 21st April, 2007 on the ground that it was invalid by reason of corrupt practices and/or substantial non-compliance with the provisions of the Electoral Act, 2006 and its guidelines. The answer of course is a resounding ‘No’! Since that is the case, the Tribunal was under no obligation to stay its proceedings pending the interlocutory Appeal in respect of a different matter before this Court. It is settled law that where the grant of a stay will unnecessarily delay proceedings, a stay of proceedings will not be granted. Kabo Airlines V Inco Beverages Ltd. (2003) FWLR (Pt. 136) 944; (2003) 6 NWLR (Pt. 816) 323.

An application for stay of proceedings by its very nature delays the speedy hearing of a case, which has the negative effect of frustrating an anxious plaintiff/defendant whose case may turn out to be unjustifiably delayed. The courts are, in consequence, very wary of exercising their discretion towards freely dispensing this order which can be used by an unscrupulous applicant to delay trial. Thus, a court will not grant a stay of proceedings until it can be rest assured that a case ought not to go on. The exercise of discretion to grant this nature of application will be prompted by the peculiar circumstances off each case in which all the factors for and against the grant of stay of proceedings must be carefully and meticulously weighed. PDP V Abubakar (2007) 2 NWLR (Pt. 1018) 303; Ayani V Eledo (2005) 12 NWLR (Pt. 939) 368. In addition, an order for stay of proceedings will only be made where special and exceptional circumstances exist, particularly a genuine issue of jurisdiction raised in the pending appeal. The issue of jurisdiction should not however be used as a camouflage, neither should it be used as a magic wand to conjure up a stay of proceedings. The court will only grant a stay of proceedings where the issue of jurisdiction is genuinely raised and will have the effect of terminating the case after an appeal is heard and determined. See PDP V Abubakar (Supra); Okem Enterprises (Nig.) Ltd V NDIC (2003) 5 NWLR(pt. 814) 492; Owena Bank (Nig.) Plc V Olatunji (1999) 13 NWLR (pt. 634) 218; Eze V Okolonji (1997) 7 NWLR(Pt. 513) 515; Jadesimi V Okotie- Eboh (1986) 1 NWLR(Pt. 16) 264; Arejoye V UBA (1986) 2 NWLR(pt, 20) 101; Kigo (Nig.) Ltd V Holman Bros (Nig.) Ltd (1980) 5-7 SC 60.

Where an appeal upon which the application for stay of proceedings is anchored on, is an interlocutory appeal, the courts have persistently remained hesitant in granting an application for stay on the basis of such an appeal. This is because interlocutory appeals, whether or not they are capable of bringing to an end the proceedings in the substantive suit at the trial court, involve unnecessary delay over issues which could well be taken after the final decision of the trial court has been given, and without any of the parties thereto being made victims of the effect of avoidable delays for which the pursuit of an interlocutory right of appeal is notorious for, Thus, even though it is the legitimate optimum right of the Appellants in the instant case to appeal against the interlocutory order of the trial court, such a right must be monitored and indeed curtailed where in its enjoyment, the Appellants would trample on the rights of their adversaries, the Respondents. See Latisco Petroleum (Nig.) Ltd V UBN Ltd (2009) 3 NWLR (Pt. 1127) 22; Bamaiyi V State (2003) 17 NWLR(pt.848) 47; Shell Petroleum Dev. Co. (Nig.) Ltd V Edamkue (1998) 13 NWLR(pt.580) 123; Inter Agric. Industries V Chika Bros Ltd (1990) 1 NWLR(pt. 124) 70; Odogwu V Odogwu (1990) 4 NWLR (pt, 143) 224; Arojoye V UBA Ltd (1986) 2 NWLR(pt, 20) 101.

For added measure, it is no longer a moot point that Election Petitions are sui generis. In this regard, the Practice Directions No, 2 of 2007 has made express and explicit provision on situations of this nature. Paragraph 10 thereof provides as follows:

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

This is a very definite, clear-cut, unconditional and unqualified provision which is phrased in absolute terms. It must be recognized that these rules are not made for the fun of it neither are they made to penalize any particular party. They are meant to be obeyed for the expeditious determination of election petitions. This is in recognition of the fact that election petitions are in the nature of special or out of the ordinary proceedings and not the run of the mill civil proceedings. Different rules apply to meet the peculiar nature and needs of election petitions. The Practice Directions takes into consideration that time is of the essence. A speedy trial should be the objective and it is in the interest of not only the parties, but also of the electorate and the Court. See Aregbesola V Oyinlola (2008) ALL FWLR (Pt,436) 2018 per Fabiyi, JCA, (as he then was); PDP V Abubakar (2004) 2 NWLR (Pt. 1018) 303 at 318; Inakoju V Adeleke (2006) 18 NWLR(Pt. 1012) 667 at 668. In the latter case, the apex Court per Katsina-Alu, JSC explained the unwillingness of Courts in granting applications for stay of proceedings in cases where time is of the essence in these terms:

“Where time is of the essence of a case before a court of law, the court will be most reluctant to grant an application for a stay because such an application is an antithesis to the speedy hearing of the case. In this case, from paragraphs 22 and 23 of the counter-affidavit- the res, the office of the Governor, was liable to time as it would be extinguished by 29th May, 2007. In the circumstance, it was not necessary to grant a stay as the continuation of the case in the Court of Appeal will not prejudice the case of the Appellants or cause them any hardship.”

In applications of this nature, there is no doubt that there is a call on the Tribunal to also exercise its discretion based on the facts placed before it, and this must be exercised, not only judicially but judiciously. See Eronini V Iheuku (1989) 2 NSSC (Pt. 1) 503. I am of the firm view that this is what the Tribunal did in the peculiar facts and circumstances placed before it.

Before concluding on this issue, it will not be out of place to comment on the submission of learned Counsel for the 1st and 2nd Respondents to the effect that the Tribunal, having refused the Appellants’ application for stay of proceedings of the same Petition in the same terms on two previous occasions and having become functus officio, the subsequent act of filing similar applications both at the Court of Appeal and at the same time at the lower Tribunal was meant to embarrass, harass and irritate, and same amounts to an improper use of the process of court mala fide and to impede the administration of justice. I cannot help but agree with the Respondents. The Tribunal was indeed the epitome of patience and must be commended for tolerantly entertaining the three serial applications for stay of proceedings when it was very apparent that the Petitioners were hell-bent on their Petition not being heard by this Tribunal. The Petitioners threw all caution overboard and flung all they had at the Tribunal all in a bid to frustrate the hearing of the Petition by it, (to what end it is difficult to decipher). However, the learned Judges were equally dogged in their determination to carry out their assignment in expeditiously determining all Petitions assigned to the Tribunal. They cannot be faulted.

The term, abuse of court process, is generally applied to a proceeding which is lacking in bona fide. It means the improper use of the court’s process to the irritation, annoyance or intimidation of another and interference with the administration of justice. An abuse of process may also arise from the multiplicity of actions over the same subject. An instance of such could be where two similar processes are used against the same party in respect of the exercise of the same right and subject matter, A court of law has a duty under Section 6 (6) (a) of the Constitution to deal promptly with any action before it which it considers an abuse of its process, by invoking its constitutional powers to dismiss such a process in limine, See Sullivan Chime V Dubem Onyia (2009) 2 NWLR (pt, 1124) 1; Okoreffia V Agwu (2008) ALL FWLR(pt. 445) 1601; Carrena V Akinlase (2008) ALL FWLR (pt.444) 1403; Owonikoko V Arowosaiye (1997) 10 NWLR (pt. 523) 61; Saraki V Kotoye (1992) 9 NWLR (pt. 264) 156; Okafor V A-G Anambra State (1991) 6 NWLR (pt.200) 659. The very learned Jurist, Karibi Whyte, JSC, in Ogoejeofo V Ogoejeofo (2006) 3 NWLR (pt, 996) 205, very succinctly outlined the scope of abuse of judicial process thus:

“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite varieties and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognized that the abuse may lie in both a proper or improper use of the judicial process in litigation. However, the employment of the judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effectual administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. Thus the multiplicity of the actions on the same matter between the same parties, even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se.”

With the greatest respect to learned Counsel for the Appellants, I am also of the view that the action of the Appellants in filing three consecutive motions for stay of the Tribunal’s proceedings as well as filing a similar application simultaneously before the Court of Appeal constituted an abuse of the Tribunal’s proceedings. The Appellants did not therefore deserve any sympathetic consideration thereon having acted mala fide. I resolve this issue in favour of the Respondents.

Issue two questions the propriety of the Tribunal in striking out the Appellants’ Petition during the pendancy of an application for stay of proceedings before the Court of Appeal, Ilorin Division. As aforesaid, learned Counsel for the Appellants has submitted that the Tribunal transgressed in law by striking out the Petition of the Appellants, thereby rendering the application for stay of proceedings before the Court of Appeal impotent and useless. Surprisingly however, the 1st and 2nd Respondents in their Brief of Argument, while disputing the suggestion that the Appellants sought an adjournment when called upon to present evidence in proof of their Petition, only dwelt on the issue of the principles of law governing the exercise of a court’s discretion in the grant of adjournments. This was not helpful in arguing the live issues in the Appeal and it is regrettable that the Respondents went off the track. Nevertheless, they underlined the fact that the Appellants received a fair hearing since they were given the opportunity to be heard, to present their case and to call their witnesses. Counsel therefore submitted that the twin pillars of natural justice were carefully observed by the Tribunal before the Petition was struck out. The submissions of the 3rd to 8th Respondents were along the same almost identical lines.

I have earlier on in the body of this Judgment set out in extenso the proceedings of the 10th June, 2008 which led to the striking out of the Petition. What emerges from the record is that, after the learned Judges of the Tribunal delivered their ruling refusing the application for a stay of the proceedings of the Tribunal, the Petitioners were called upon to present evidence in proof of their Petition, the matter having been set down to that date for hearing. Learned Counsel for the Petitioners however declined to proceed. These are his exact words:

“Mr. Idowu: We are not ready to go on for now based on two major grounds.

The first is that we would need to collect the copy of this ruling of the Tribunal.

Secondlv is that continuing with the trial now will run contrary to our pending application for stay pending before the Court of Appeal. We got a call that our application has been fixed for hearing on 16/6/08 and 18/6/08.

(Underlining supplied for emphasis).

Indeed, at page 5 of the Appellants’ Brief of Argument learned Counsel reiterates this position when he insists that the Tribunal denied the Petitioners a fair trial:

“…when it ordered that the Petitioners/Appellants should proceed with the trial and the subsequent striking out of the Petition when learned Counsel to the Petitioners/Appellants declined to commence trial insisting on the pendancy of the application for stay of proceedings before the court of Appeal. ”

(Underlining supplied for emphasis).

Clearly, following the refusal of the application for stay of proceedings, the Petitioners’ Counsel simply refused/declined and/or failed to continue with further proceedings in the matter. With the greatest respect, I am of the humble view that this was an imprudent position to have taken and a grave and costly miscalculation on the part of Counsel which, regrettably, ultimately worked against the interest of the very parties Counsel purported to represent. As has been pointed out earlier in the body of this Judgment, Courts have held in a multitude of cases that where the grant of a stay will unnecessarily delay proceedings, a stay of proceedings will not be granted. See Kabo Airlines V Inco Beverages Ltd (Supra); Aregbesola V Oyinlola (Supra). In addition, an appeal does not operate as a stay of proceedings of a lower Tribunal. More to the point, Paragraph 10 of the Practice Directions No. 2 of 2007, (as amended), provides that an interlocutory appeal shall not operate as a stay of proceedings nor form a ground for stay of proceedings before a Tribunal. This rule is meant to facilitate the expeditious determination of election petitions and is in recognition of the fact that election petitions are in the nature of unusual proceedings for which time is of the essence, Special rules have been provided for it in order to meet the very peculiar nature and needs of election petitions. As aforesaid, a speedy trial is the objective and it is in the interest of not only the parties, but also of the electorate and the Court.

When the Tribunal called upon Counsel for the Petitioners to prove their Petition and they belligerently declined to do so, they closed their options to the Tribunal.

Where a party has been given ample opportunity to present his case within the confines of the law, but he chose not to utilize same, he cannot be heard to complain that his right to a fair hearing has been breached. Section 36 (1) of the Constitution gives all persons the fundamental right to a fair hearing in the determination of their civil rights and obligations. This right is however expected to be exercised and enjoyed within a reasonable time. In other words, the duty of the court is to create the environment for a fair hearing, but it is the decision of a party to take advantage of the environment so created. Thus, a party cannot blame the court if he failed/refused and/or neglected to take advantage of the environment created by the court, See Latisco Petroleum (Nig.) Ltd V UBN Plc. (2009) 3 NWLR(Pt. 1127) 22; Erinfolami V S.G.B. (Nig.) Ltd

(2008) 7 NWLR (pt, 1086) 306; Bill Construction Co. Ltd V Imani & Sons Ltd (2006) 19 NWLR (pt.1013) 1; Akinduro V Alaya (2007) 15 NWLR (pt. 1057) 312; Folbod Investment Ltd V Alpha Merchant Bank Ltd (1996) 10 NWLR (pt. 478) 344; SCC (Nig.) Ltd V Our Line Ltd (1995) 5 NWLR(pt.395) 364.

In the instant case, the Appellants cannot be heard to blame the lower Tribunal which did its best to encourage them to access justice by availing them the milieu to exercise their right to be heard. In a situation where a party who has brought an action before a court of law seeking to ventilate his grievances with a view to receiving a remedy, declines to present his case when called upon to do so, (especially based on grounds which the court had already ruled against), he leaves the court with no alternative but to remove the matter from the court’s cause list for want of prosecution.

This is exactly what the Tribunal did. I cannot see my way clear to disturb this finding of the Tribunal in the undoubted exercise of its discretion based on the facts before it.

In my humble view, nothing would have been lost by the Petitioners if they had gone ahead to adduce evidence in proof of their Petition while still pursuing their application for stay before the Court of Appeal. This is more so in the face of their assertion that they had already been verbally notified of a date for hearing of the application. If the Court of Appeal had subsequently granted the stay of proceedings sought, then the proceedings before the Tribunal would have come to an abrupt halt no matter what stage it had reached. To however insist on holding the Tribunal and the Respondents to ransom until their application had been taken by the appellate Court, was to be unreasonable and, alas, it sealed their fate. There is a call for any court assigned to handle a suit in the nature of an election matter to act swiftly to ensure that the suit is disposed of expeditiously. Section 148 of the Electoral Act mandates Tribunals and appellate Courts to give election petitions and appeals arising there-from accelerated hearing and precedence over all other cases or matters before the Tribunals or Courts.

In the instant trial, the Tribunal deserved to be commended for all the steps it took in the timely and judicious determination of the matter. See Amanda Pam V Nasiru Mohammed (2008) 16 NWLR(Pt. 1112) 1.

Furthermore, learned Counsel for the Appellants has made heavy-weather of the decision of this Court in Nigeria-Arab Bank V Comex Ltd (1999) 6 NWLR (Pt. 608) 648. I am not un-mindful of the decision therein which admonishes courts to stay proceedings when they become aware of a pending similar application before the appellate courts in order not to present the appellate Court with a fait accompli.

Nevertheless, while this may hold true for ordinary civil cases, same does not apply with equal force to election petitions which are sui generis and are governed by special rules made for that purpose to meet the time constraints of the petitions. Instead, the position is as stated in Aregbesola V Oyinlola (Supra) and Inakoju V Adeleke (Supra). I therefore find that whereas the decision in Nigeria-Arab Bank Ltd V Comex Ltd (Supra) is still good law, it does not apply stricto sensu to election petitions, which by their very nature, call for expeditious hearing. Once again, I answer issue two in the affirmative in favour of the Respondents.

In respect of issue three which is, whether the learned Judges of the Election Petitions Tribunal were right in invoking the provisions of paragraph 5 (3) of the Election Petitions and Practice Directions, 2007, (as amended), to strike out the Petition, learned Counsel submits that the interpretation or meaning ascribed to paragraph 5 (3) of the Practice Directions by the lower Tribunal is at variance with the intendment of the said provision. Counsel submits that it does not apply to where an application for adjournment was sought. Counsel contends that the lower Tribunal jettisoned the literal and clear interpretation of the words of the statute in the provisions of paragraph 5 (3) of the Practice Directions to strike out the Petition. Counsel relied on Ugwu V Ararume (2007) 12 NWLR (Pt. 1048) 367 for the submission that where the words of a statute are clear and unambiguous, courts need not give it a different interpretation but must give same its literal meaning. Counsel further relied on Ezeani V Attah (2004) 7 NWLR (Pt. 873) 468 to submit that in civil proceedings, appearance or presence of a plaintiff or petitioner is deemed when a Counsel appears for that party. Counsel contends that the petitioner was present and asked for an adjournment giving reasons for doing so, yet the Tribunal rushed to strike out the Petition and this led to a miscarriage and perversion of justice. The decisions in Ugochukwu V Cooperative and Commerce Bank Ltd (1996) 6 NWLR (Pt. 456) 537, Atolagbe V Shorun (1985) 1 NWLR(Pt. 2) 360 at 375 and Baridan V State (1994) 1 NWLR(pt. 320) 250 at 260 are relied upon. Learned Counsel submits that the Tribunal intentionally closed its eyes to the clear meaning and interpretation of Paragraph5 (3) of the Election Petitions and Practice Directions, 2007 (as amended) as same does not cover a situation where an application for adjournment was sought and the reasons for seeking such an adjournment given. Counsel therefore urged the Court to allow the Appeal, set aside the order of the lower Tribunal striking out the Appellants’ Petition and order the remittance of the Petition to be heard by another Election Tribunal at Ado-Ekiti.

On their part, the 1st and 2nd Respondents contend that on the 4th June, the Tribunal delivered a Ruling dismissing an application filed by the Appellants seeking a stay of proceedings pending their Appeal before this Court. He contends further that the Petition was then specifically adjourned for hearing of the Petition, at the instance of the Appellants, (then Petitioners), to the 10th June, 2008. On that day, the Appellants, yet again, moved another application, (being the third in a series), for a stay of the proceedings of the Tribunal pending the hearing and determination of yet another application by the Appellants for an order for stay of proceedings pending at the Court of Appeal. The Respondents were ready to argue the application and same was dutifully heard by the Tribunal. In a Bench Ruling delivered on the same day, the application was refused and dismissed. Thereafter, the Court and the other parties were ready to proceed with the hearing of the Petition, but the Appellants were not ready.

The Respondents applied that the Petition be dismissed in the light of the Appellants’ refusal to proceed with the hearing of the Petition. After hearing parties, the Tribunal invoked the provision of Paragraph 5 (3) of the Election Tribunal and Practice Directions, 2007, (as amended), and struck out the Petition for want of prosecution. The Respondents point out that the Appellants did not even ask for an adjournment from the Tribunal. Counsel urged the Court to hold that the Tribunal was right to invoke the provisions of Paragraph 5 (3) of the Election Tribunal and Court Practice Directions, 2007, (as amended).

On her part, Counsel for the 3rd to 8th Respondents submits that the exercise of the discretion to grant or refuse an adjournment ought to be done judiciously and judicially. Adjournments are not granted as a matter of course but based on cogent and compelling reasons. Reference is made to Okeke V Oruh (1999) 4 SCNJ 192 at 205 and Saliu V Egeibon (Supra). Counsel contends that over a period of three months, the Appellants sought and were granted adjournments on frivolous and even vexatious grounds. They were therefore not entitled to any further luxury of an adjournment in respect of the Petition. Counsel submits that the Tribunal carefully observed the twin pillars of natural justice before it struck out the Petition on 10th June, 2008. She contends that the Appellants, in all the circumstances of the case, were given a fair hearing, and the Tribunal was right to invoke the provision of Paragraph 5 (3) of the Election Tribunal and Court Practice Directions, 2007 (as amended) to strike out the Petition instead of dismissing same as prayed by the Respondents’ Counsel. Counsel therefore urged the Court to resolve this issue in favour of the Respondents.

It is again quite startling that learned Counsel for the Appellants premised his submissions under this issue on the assertion that Counsel for the Petitioner at the Tribunal had sought an adjournment. What is more astonishing however, is that both learned Counsel for the 1st and 2nd Respondents and Counsel to the 3rd to 8th Respondents followed his lead in making submissions prefaced by the issue of adjournment, which they had rigorously disputed in their earlier submissions . For my part, I am satisfied that nothing in the record of the lower Tribunal remotely suggests that, following the call on the Petitioners to prove their Petition, an adjournment was sought for. I have already made a specific finding on the issue of adjournment when ruling on the preliminary objection, and I adopt therefore my findings thereon. It is well to note that the Appellants have not challenged the correctness of the record of proceedings transmitted to this Court. We are therefore bound by the records. As no adjournment was sought by the Petitioners, no discretion to grant or refuse same was exercised by the learned Judges of the Tribunal. Therefore, there is no duty on this Court to review any exercise of discretion in the grant or refusal of an adjournment since it did not happen.

Be that as it may, the main concern in this issue is with whether the learned Judges of the Election Petitions Tribunal were right in invoking the provisions of paragraph 5 (3) of the Election Petitions and Practice Directions, 2007, (as amended), to strike out the Petition. Paragraph 5 (3) states thus:

When a Petition comes up for hearing, if the Respondent appears and the petitioner does not appear, the respondent shall be entitled to final judgment dismissing the petition.

Without much ado, I must say that I agree with learned Counsel for the Appellants that in civil proceedings and election petitions, the appearance or presence of a plaintiff or petitioner is deemed when a Counsel appears for that party. See Goodness Agbi V Audu Ogbeh (2006) 5 SCNJ 314; Shittu V Fashawe (2005) 7 SCNJ 337; Usani V Donald Duke (2004) 1 EPR 425; Chinye Ezeanah V Mahmud Attah (2004) 2 SCNJ 200; (2004) 7 NWLR (Pt. 873) 468. It is not of the essence for a party in a civil proceeding or an election petition to appear in Court once a Counsel has been engaged to prosecute or defend a case. In the instant case, there is no doubt that the Appellants’ Counsel, Mr. Idowu, was before the Tribunal. He moved the application for stay in the proceedings of the 10th June, 2008. When the application was refused and he was called upon by the learned Judges to proceed to adduce evidence in proof of the Petition, he declined, citing his right to be given a copy of the ruling and also the pending application for stay before the Court of Appeal. Since that is so, it was wholly inappropriate and out of place for the learned Judges of the Tribunal to invoke Paragraph 5 (3) of the Practice Directions, 2007 (as amended), in striking out the Petition. That rule is clearly inapplicable to these circumstances, Paragraph 5 (3) presupposes a state of affairs where both the Petitioners and their Counsel are not before the Tribunal when the Petition was called up for hearing, and the Respondents are in Court. In civil matters and election petitions, appearance by counsel is considered sufficient appearance. It is only in criminal cases that it is a requirement that appearance of a person accused of an offence and standing trial must be in person.

That being the case, I find that the learned Judges of the Tribunal acted in error in placing reliance on Paragraph 5 (3) of the Practice Directions to strike out the Petition.

Nonetheless, the invocation of the wrong provision of the law in striking out the Petition is not necessarily fatal to the suit since it is still within the inherent jurisdiction of the Tribunal to do justice in all circumstances. The refusal of a Petitioner to proceed with his Petition was clearly not a matter that was anticipated by the Practice Directions. However, the law is settled that it is not every mistake or error in a judgment or ruling that will result in the decision of that court being set aside by an appellate court. It is only where the error is so substantial that it is shown to have occasioned a miscarriage of justice that will justify any interference with the decision of the Court. The term ‘miscarriage of justice’ has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of a party. It is the law that miscarriage of justice warranting a reversal of a decision should be declared only when the court, after examination of the entire case including the evidence, is of the opinion that it is reasonably probable that a result more favourable to the appellant would have been reached in the absence of the error. A miscarriage of justice therefore means such a departure from the rules which permeate a judicial procedure as to make that which happened not in the proper sense of the word a judicial procedure at all. I am therefore of the firm view that the mere invocation of the wrong rule of court has not violated the principles of justice applied in this matter. See Amayo V Erinmwingbovo (2006) 5 SCNJ 1; Goodness Agbi V Audu Ogbeh (Supra); Larmie V Data Processing Maintenance & Services (2005) 12 SCNJ 299; Kraus Thompson Organisation Ltd V University of Calabar (2004) 4 SCNJ 121; Odutola V Oderinde (2004) 5 SCNJ 285; Agbeje V Ajibola (2002) 1 SCNJ 64; FGN V Zebra Energy Ltd (2002) 12 SCNJ 330. No miscarriage of justice has been occasioned thereby as the Appellants are not misled as to the reason for striking out the Petition. The reason clearly expressed in the ruling of the Tribunal at page 130 of the record is that the Petition was struck out for want of prosecution. Indeed, the Petition deserved to be struck out in the face of the adamant refusal of Counsel for the Petitioners to proceed with same when called upon to do so on the date set down for the hearing of the Petition. Hence, I answer this issue in favour of the Appellants. Notwithstanding this, since no miscarriage of justice was thereby occasioned, I decline to set aside the order striking out the suit merely on the ground that a wrong rule of Court was relied upon, seeing as it was richly deserved.

On the whole, based on all my findings above, I find this Appeal wholly lacking in merit. It ought to fail. The prayer seeking an order of this Court setting aside the order of the lower Tribunal striking out the Appellants’ Petition and an order remitting same to be heard by another Election Tribunal at Ado-Ekiti is refused.

The Appeal is accordingly dismissed with an order for both parties to bear their own costs.

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Other Citations: (2009)LCN/3166(CA)