Dr.arthur Agwuncha Nwankwo & Ors. V. Alhaji Umaru Yar’adua & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C

On the 18th day of May, 2007, the appellants filed an election petition against the respondents praying for the following relief’s:

“(i) An order of the court that the Presidential election held on April, 21, 2007 is invalid for reasons of non-compliance with substantial sections of the Electoral Act, 2006.

(ii) An order of the court that the presidential election held on April 21, 2007 is invalid for reasons of corrupt practices.

(iii) An order of the court that at the time of the election, the 1st and 2nd Respondent were not qualified to contest.

(iv) An order that the 1st and 2nd Respondents were not duly elected by majority of lawful votes cast at the election.

(v) An order of the court that the presidential election 2007 may be declared nullified.

The grounds on which the reliefs are sought are stated as follows;-

“i. That the Presidential election held on 21st April, 2007 was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, 2006.

ii. That the 1st and 2nd Respondents were not duly elected by majority of lawful votes cast at the election.

iii. That the 1st and 2nd Respondents as serving Governors of Katsina and Bayelsa States respectively were not qualified to contest the election.”

The 1st and 2nd appellants were candidates sponsored by the 3rd appellant, a registered political party at the election into the office of President and Vice President of the Federal Republic of Nigeria held on the 21st day of April 21, 2007, which the 1st and 2nd respondents were returned/declared elected as President and Vice president of the Federal Republic of Nigeria.

By a Notice of Preliminary Objection filed on the 2nd day of August, 2007, the 3rd to 41st respondents, challenged the competence of the court to entertain the petition on the following grounds:-

1. The petition is incompetent and fails to meet the mandatory requirements of paragraph 4(1) (a) (d) and 4(2) and 4(4) of the first Schedule of the Electoral Act, 2006.
2. Paragraphs 8, 10(1), 11-22 of the petition are vague without sufficient and materials particulars to sustain the allegations.
3. The petitioner failed to join the persons and/or electoral officers who allegedly perpetrated corrupt practices and electoral regularities in thirty-six states of the Federation and the Federal Capital Territory as well as constituent local governments areas, the wards and polling units, the failure of which is fatal quite from the fact that particulars of the corrupt practices and irregularities are not stated.
4. The 1st and 2nd Respondents are not in the category of persons who ought to resign from office before contesting the election as alleged or canvassed by the petitioners.
5. Nothing in the law justifies the assumption that the death of a candidate must lead irresistibly and conclusively to the postponement or cancellation of the election.
6. The petition is an abuse of the process of the court and is instituted bad faith.

The objections were grounded on paragraphs 4(6), 4(a) (b) of the First Schedule to the Electoral Act, 2006; paragraph 6(2) and (3) of the Court Practice Directions 2007; Order 3 Rule 3(1) of the Court of Appeal Rules, 2002 and Section 6(6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999.

The lower court found that the preliminary objection was well taken and consequently sustained same in the ruling delivered on the 3rd day of September, 2007 which resulted in the instant appeal.

Learned Counsel for the appellants NLJ. EDECHIME ESQ in the appellants brief filed on 15/10/07 identified the following issues of determination:

“i. Whether the appellants’ petition was incompetent defective and not initiated by due process of the law.

ii. Whether there is non-compliance by the appellants as petitioners with the mandatory provisions of paragraphs 4(1) (d) of the First Schedule to the Electoral Act, 2006 and S.144(2) of the Electoral Act, 2006 in the contents of the petition and the documents annexed thereto.

iii. Whether it was not too late for the Court of Appeal to entertain the Preliminary Objection dated 2nd August, 2007 after all the Respondents have joined issues with the petitioners by filing their respective replies prior to the hearing of the Preliminary Objection.

iv. Whether it is proper for the Court of Appeal to resolve and decide on all the substantive issues in the petition in the Course of Ruling on the 3rd to 41st Respondents’ Preliminary Objection.

v. Whether the Petitioners were not denied their constitutional right to fair hearing having regard to all the circumstances of this case.

vi. Whether the provisions of S.37(1) of the Electoral Act, 2006 does not make it mandatory for the presidential election held on 21st April, 2007 to be countermanded or postponed following that death of a nominated Presidential Candidate after the time for the delivery of nomination papers and before the commencement of the poll.

vii. Whether the provision of S.13(1) (a) is not applicable to 1st and 2nd Respondents as serving State Governors at the date of the Presidential election held on 21st April, 2007.

viii. Whether having regard to the provisions of paragraph (1) of the Electoral (sic) Tribunal and Court Practice Amendment Directions 2007 (NO.1) and paragraph 49(2) of the First Schedule to the Electoral Act 2006, the hearing and determination of the Preliminary Objection by the Court of Appeal was not without jurisdiction.”

On the 14th day of January, 2008 learned senior counsel for the 1st and 2nd respondents, CHIEF WOLE OLANIPEKUN SAN, filed a Notice of Preliminary Objection against the grounds of appeal in which counsel prayed the court for:

“1. An order striking and some of the issues for determination same not been born out from of (sic) the grounds of Appeal.”

The objection is said to be grounded on the following:-

“1. The Appellants filed a notice of appeal on the 24th September, 2007.

2. That in the said Notice of Appeal, Appellants raised 6 grounds of appeal from the ruling of the tribunal.
3. The Appellants’ Brief of Argument was filed on the 15th October, 2007.
4. That in the said Appellants’ Brief of Argument, 8 issues were distilled form the 6 grounds of appeal.
5. That the issues are more than the grounds of appeal.
6. That proliferation of issues is not allowed by this honourable court.”

Argument on the objection has been proffered by learned senior counsel in the 1st and 2nd respondents’ brief of argument filed on the 14th day of January, 2008.

However, learned counsel for the appellants filed a reply brief on the 9th day of November, 2009, in which he pointed out that this Honourable Court did grant on application by the appellants to amend the Notice of Appeal on the 26th day of October, 2009. I have gone through the Amended Notice of Appeal. It is clear form the record that whereas the original notice of appeal to be found at pages 238 to 244 contains six grounds of appeal as contends by learned counsel for the 1st and 2nd respondents, the amended Notice of appeal filed on the 26th day of October, 2009 contains seven grounds of appeal. It is true that learned counsel for the appellants formulated eight issues out of the seven grounds of appeal.

Learned Counsel for the appellants has submitted in the Reply Brief filed on 9/1/09 that “…issues 3 and 8 fall within the scope or ambit of round VII of the Amended Notice of Appeal filed on the 26th October, 2009. In the circumstances, the Preliminary Objection is no longer tenable.”

By the above submission, it is clear that learned counsel concedes that he formulated two issues out of a ground of appeal. What he has done – formulation of two or more issues from a ground of appeal – is what the law regards as proliferation of issues and consequently frowns upon. It is settled law that whereas counsel may formulate an issue out of a ground of appeal or a combination of grounds of appeal, he is not allowed/permitted to formulate more than an issue out of a ground of appeal. The above constitutes the foundation of the objection of Learned Senior Counsel for the 1st and 2nd respondents. I hold the view that the objection is well founded in law. Consequently the objection is sustained and issue No. 3 is hereby struck out for being incompetent. See Ibrahim v. Ojomo (2004) 4 NWLR (Pt. 862) 89 at 104; Iwuoha v. NIPOST Ltd. (2003) 8 NWLR (Pt.822) 308 at 332; Shutu vs. Fashawwe (2005) 14 NWLR (Pt. 946) 671 at 687 Mark v. Eke (2004) 5 NWLR (Pt. 865) 54 at 81 – 82.

Looking closely at the surviving issues, it is clear that the fist issue to be tackled must logically be the original issue No. 8 since it deals or challenges the competence of jurisdiction of the lower court to entertain and determine the preliminary objection at the stage it did. Jurisdiction being a periphery matter it is always advisable to resolve same before proceeding any further, where necessary because where it is found that the that a court has no jurisdiction the matter ends there. It is only when it is found that the court has jurisdiction that we can proceed further to determine the appeal on the merit.

In arguing the issue, Learned Counsel for the appellants referred the court to the proceedings of the 22nd day of August, 2007 at pages 194 to 196 of the record where the lower court sat as the Presidential Election Tribunal and heard arguments from counsel for both parties on the preliminary objection, not in a pre-trial session, and paragraphs 6(1) and (4) of the Election Tribunal and Court Practice Directions 2007 and submitted that where a Statute provides for a particular method of performing a duty regulated by the Statute that method and no other must have to be adopted, relying on CCB vs. A.G. Anambra State (1992) 8 NWLR (Pt. 261) 528 at 566; that parties are free to file their motion but the method of hearing the application so filed is as prescribed by the Statue, particularly paragraph 6(1) supra which states clearly that no motion shall be moved except of the prehearing session except in extreme circumstances with the leave of the Tribunal or court; that objections on point of law, as in the instant case, can only be entertained at the pre-hearing session not in the tribunal; that the determination of the objection by the court below while sitting as a tribunal was without jurisdiction and consequently null and void, relying on Adesolu v. Abidoye (1999) 12 SCNJ 61; Okereke v. Yar’adua 92008) 4-5 S.C. (Pt. 1) 206 at 228-230; Hope Democratic Party vs. INEC (2009) 3-4 S.C. 106; that paragraph 3(4) of the Practice Direction supra does not apply to the appellants in this case because they were still within time to file their pre-hearing notice considering that the 1st and 2nd respondents filed their reply to the petition on 21st August, 2007 and urged the court to allow the appeal.

In the 1st and 2nd respondents’ brief of argument field on 14/1/08, Learned Senior Counsel for the 1st and 2nd respondents submitted the following issues for the determination of the appeal:-

“1. Whether the petition was defective and incompetent by reason of non-joinder necessary parties and vagueness and non-compliance with the mandatory provisions of the Electoral Act 2006 and the court and Tribunal Practice Direction 2007 (Encompassing grounds 1 and 6).

2. Whether all the substantive issues raised in the petition where resolved in the Preliminary Objection of the 3rd – 41st Respondents (encompassing grounds 2 and 3).
3. Whether the 1st and 2nd Respondents as serving Governors are not in the class of the persons who ought to resign from office before contesting for office as President (Encompassing ground).
4. Whether the petition by virtue of section 37(1) of the Electoral Act, the death of any one of the candidates ought to lead conclusively and irresistibly to the postponement of the election (Encompassing ground 5).”

It is very clear that the brief of argument of the 1st and 2nd respondents did not contain any argument on appellants’ issue 8 which was formulated from ground VII of the Amended grounds of appeal earlier referred to in this judgment. The ground in question complains as follows:-

“(vii) The Court of Appeal erred in law and acted without jurisdiction by hearing and delivering a ruling on the Respondents’ Preliminary Objection dated 2nd August 2007 prior to any pre-hearing session as stipulated by the paragraph 6(1) of the Electoral (sic) Tribunal and Court Practice Directors 2007 (No.1).

PARTICULARS

(i)Paragraph 6(9) of the Practice Directions provide thus “No motion shall be moved. All motions shall come up at the pre-hearing session except in extreme circumstances with leave of the tribunal or court.

ii. Paragraph 3 of the Practice Direction makes provisions for the pre-hearing session and scheduling under which the petitioner has 7 days after the filing and service of the petitioner’s Reply on the Respondents, or 7 days after the filing and service of the Respondents’ reply whichever is the case, within which to apply for the issuance of the pre-hearing notice.

In the instant case the 1st and 2nd Respondents only field their Reply to the petition on 21st August, 2007 and without giving room for the statutory period for the issuance of pre-hearing Notice as required, the Court of Appeal on the 22 August, 2002 peremptorily proceeded to hear the Preliminary Objection filed by the 3rd – 4th Respondents and thereafter delivered the ruling of 3rd September 2007 which rendered the decision a nullity since the proceedings including the Preliminary Objection by the Court of Appeal was not without jurisdiction.”

Once again appellants’s issue 8 is as follows:-

vii. Whether having regard to the provisions of paragraph 6(1) of the Electoral(sic) Tribunal and Court Practice Ammendment Directions 2007(No.1) and paragraph 49(2) of the first schedule to the Electoral Act 2006;the hearing and determination of the Preliminary Objection by the Court of Appeal was not without Jurisdiction.”

It is clear form the issues formulated and argued by Learned Senior Counsel for the 1st and 2nd respondents in their brief of argument do not include argument on appellants’ said issue No. 8.

It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting deponent. I therefore, in the circumstances, hold that the 1st and 2nd respondents, by not reacting to the issue in question, have conceded the issue as formulated and argued by the learned counsel for the appellants.

In the brief of argument for the 3rd – 41st respondents prepared by learned senior counsel for the 3rd – 41st respondents, KANU AGABI, ESQ SAN, the issues formulated for determination are five. These are as follows:-

“1. Whether the lower court was right to hold that having not met the requirement of paragraph 4(1) (d) of the First Schedule to the Electoral Act, 2006, the petition was fundamentally defective and incompetent (From Ground 1 of the Notice of Appeal).

2. Whether by considering and resolving the issues raised in the 3rd to 4th Respondents’ Preliminary Objection the Lower Court could be said to have delved into the substantive case and breached the petitioners’ right to fair hearing (Grounds 2 and 3).
3. Whether the Lower Court was right in holding that the 1st and 2nd Respondents as serving Governors were not in the class or persons who ought to resign form office before contesting for the office of President as provided for in section 137(1) (g) of the Constitution. (Distilled from Ground 4 of the Notice of Appeal).
4. Whether the Lower Court was right in holding that section 37(1) of the Electoral Act which deals with the effect of the death of one of the candidates in an election did not avail the petitioners (Distilled from Ground 5 of the Notice of Appeal).
5. Whether the Lower was right in holding that the petitioners’ failure to join the persons and/or electoral officers who allegedly perpetrated corrupt practices and electoral irregularities was fatal to the petition (Distilled from Ground 6 of the Notice of Appeal).”

It is clear that learned senior counsel for the 3rd – 41st respondents, like his brother silk did not consider appellants’ issue No. 8 supra. It follows therefore that the principle of law earlier stated as being applicable to the situation and circumstance of the 1st and 2nd respondents, applies with equal force to the 3rd – 4th respondents.

However, the above position notwithstanding, is learned counsel for the appellants right in his submission on the issue in question

Paragraph 6(1) of the Election Tribunal and Court Practice Directions, 2007 provides as follows:-

“6(1) No motion shall be moved. All motion shall come up at the pre-hearing session except in extreme circumstances with leave of the tribunal or court.”

The above provision clearly states that all motions shall be heard at the pre-hearing session except by leave of court or Tribunal where there exist extreme circumstances. Though the term extreme circumstance is not defined, I take same to mean very special or special circumstances.

What then are the businesses to be transacted by the tribunal or court at the pre-hearing session The answer can be found in sub-paragraph 3 of paragraph 6 of the Practice Direction supra which provides thus:-

“3. Pre-hearing session and scheduling:

(i) Within 7 days after the filing and service of the petitioner’s Reply on the respondent, or 7 days after the filing and service of the respondent’s Reply, whichever is the case the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007.

(ii) Upon application by a petitioner under paragraph(7) above the tribunal or court shall issue to the parties or their legal practitioners (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in Form TF008 for the purposes set out hereunder.

(a) Disposal of all matters which can be dealt with on interlocutory application;

(b) Giving such direction as to the future course of the petition as appear …adopted to secure it just expeditious and economical disposal in view of the urgency of election petition.

(c) Giving direction on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need to expeditious disposal of the petition;

d) Fixing clear dates for hearing of the petition.

3. The respondent may bring the application in accordance with sub-paragraph (I) above where the petitioner fails to do so or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.
4. Where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.”

In paragraph 3(7) of the Practice Direction, supra, the tribunal or court is enjoined, at the pre-hearing session, to take appropriate action in respect of the following as may be necessary or desirable.

(a)…………

(b) …………

(c) …………

(d) hearing and determination on objections on point of law.”

From the totality of the above provisions of the Practice Direction, it is very clear that an election tribunal or court can only hear motions and/or objections on point of law at the pre-hearing session not when it sits as a tribunal or court to hear or try election petitions. In the instant case, it is not disputed that what was heard and determined by the lower court was a preliminary objection on points of law raised against the election petition of the appellants and that the Lower Court did not hear and determine same at a pre-hearing session as provided in the Practice Direction but at the hearing/trial of the petition. It is settled law that where a statute lays down a procedure for doing anything no other method is to be employed in doing the thing. In other words, “where a statute or legislation provides for a particular method of performing a duty regulated by the statute that method and no other must have to be adopted.” See C.C.B. Plc. v. A.G. Anambra State supra.

In the instant case the Practice Direction provides clearly that motions and/or objections on points of law can only be taken and determined by the tribunal of court at its pre-hearing session, which was not done in this case.

In the case of Okereke v. Yar’Adua (2008) 4-5 S.C. (Pt. 1) 206 this Court considered the provisions of paragraph 6(1) of the Practice Direction supra and came to the conclusion that any motion or preliminary objection raised in an election petition not taken and determined at the pre-hearing session is done or taken without jurisdiction and consequently null and void, as the same would have been done without fulfilling the condition precedent to the exercise of its jurisdiction. It is settled law that no matter now well conducted, where a court is without jurisdiction to hear and determine a matter, the proceedings so conducted are a nullity.

It is therefore clear that the proceedings of the lower court leading to the ruling of that court delivered on the 3rd day of September, 2007, subject of the instant appeal, is a nullity and the same was conducted without jurisdiction and is consequently set aside.

Since the appellants were still within time to take steps to initiate the pre-hearing session, the proper thing to do in the circumstance is to remit the matter to the Lower Court to be dealt with in accordance with the provisions of the Practice Direction, Rules of court and substantive law applicable hereto by another panel to be constituted by the appropriate authority, for whatever it is worth.

This is clearly not the case in which the powers of this Court under section 22 of the Supreme Court Act can be invoked to deal with the matter despite the fact that the appellants are running against time.

Having found that the lower court was without jurisdiction when it heard and determined the preliminary objection filed by the 3rd – 41st respondents, it becomes unnecessary to consider the rest of the issues that have to do with the merit of the ruling already set aside. The said issues are therefore discountenanced by me.

In conclusion, the appeal is allowed for being meritorious. The ruling of the lower court delivered on the 3rd day of September, 2007 is hereby set aside for being null and void, the same having been rendered without jurisdiction. The matter is consequently remitted to the lower court to be dealt with according to law by another panel to be constituted by the President of the Court of Appeal.

There shall be costs of N50,000.00 in favour of the appellants against each set of the respondents.

Appeal allowed.

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SC.279/2007