Hon. Sani Sha’aban & Anor. V. Alhaji Namadi Sambo & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
AHMAD OLAREWAJU BELGORE, J.C.A.
Results of the governorship election for Kaduna State were declared on the 15th day of April, 2007 and Alhaji Namadi Sambo of the People Democratic Party (PDP) was returned as the winner of the election. Alhaji Namadi Sambo is the 1st Respondent in this appeal. The election was conducted by the Independent National Electoral Commission, the 2nd Respondent herein, while the Resident Electoral Commissioner for Kaduna State, who was the Returning Officer for the State announced the results, returned and declared the 1st Respondent as the elected Governor of Kaduna State. The Resident Electoral Commission is the 3rd Respondent herein.
Hon. Sani M. Sha’aban and Joel Kwassau Giwa contested the same election as Governorship and Deputy Governorship candidates respectively on the platform of the All Nigeria Peoples Party (ANPP). They are the 1st and 2nd Appellants respectively herein.
The Appellants were aggrieved by the results of the election and the declaration of the 1st Respondent as the winner and the elected Governor of Kaduna State. They filed an election petition before the Governorship and Legislative Houses Election Tribunal (now the Tribunal) on the 15th day of May, 2007.
The Parties went into a pre-hearing session and at the end of the session, a Report was issued as prescribed by the law. Thereafter and precisely on the 24th day of October, 2007 the Appellants filed a notice of motion praying, inter alia, for: –
“1. Leave to apply to file additional witness depositions in the Petition;
- Leave to file additional witness depositions in the Petition
- Leave to lead evidence of documents not filed with the Petition including video tapes and photographs, reports and other documents relevant to the petition;
- An order deeming as properly filed and served the additional deposition already filed and served in this petition.
The application was filed pursuant to paragraphs 4(8) and 6(2) of the Election Tribunal and Court Practice Directions, 2007. As expected, the motion was vehemently opposed by all the Respondents. Written addresses were filed and exchanged by parties.
The motion was taken by the tribunal on the 8th day of November, 2007 and in a considered ruling delivered on the 15th day of November, 2007, dismissed the motion in the terms hereinafter appearing: –
“Although the case of Osho Vs. Foreign Finance Corporation (Supra) state the settled principle of law that parties are bound by their pleadings, what the case further highlighted concerning evidence of fact not pleaded cannot be of assistance in election petition. This is so because in election petitions all facts on which evidence will be led must be filed along with the petition i.e. the front loading system.
Having put all our views enumerated above into consideration, we hold that the 4 prayers sought in this application lack merit. They are accordingly dismissed.”
The petition proceeded to hearing after the ruling and the Appellants being dissatisfied with the ruling have brought this appeal by filing a Notice of Appeal consisting of six grounds of appeal. The relief sought from this Court are as follows:-
“a. That the appeal be allowed and the decision of the tribunal refusing the filing of witness deposition on inspection of documents set aside.
b. The witness deposition of Abdullahi Balarabe be deemed as property filed and served before the Tribunal
This Notice of Appeal was filed on the 24th day of November, 2007 and the 1st Respondent filed a Notice of Intention to Rely on Preliminary Objection. The main thrust of this Objection is that this Court lacks the jurisdiction to entertain interlocutory appeal which arises in the course of proceedings before an election tribunal.
Parties filed and exchanged briefs of argument. The Appellants distilled a sole issue for determination from their six grounds of appeal and it reads thus –
“Whether the dismissal of the petitioners Application to file additional witness deposition was proper.
For the 1st Respondent, three issues were identified namely –
- Whether the Tribunal below was right in holding that the Appellants had failed to comply with the requirements of paragraph 6(1) of the Election Tribunal and Court Practice Directions 2007 by showing extreme circumstance as a condition precedent to granting the application.
- In view of the fact that the items enumerated and subject matter of the 3rd prayer in the motion paper have neither been pleaded front-loaded or listed in the election petition as prescribed by the PRACTICE DIRECTION, 2007 (as amended) whether the appellants had shown exceptional circumstances to warrant the granting of the aforementioned prayer at that stage of the proceedings.
- Whether having regard to the combined effect of the provisions of Paragraphs (1) and (2), 3(6)(b) and 7(a) of the PRACTICE DIRECTION, 2007 (as amended) read together with section 141 of the Electoral Act, 2006 and Paragraphs 4(1)(d), 14(1) and (2)(a) (i) (ii) and (iii) of the First Schedule thereto, the Tribunal below was right in refusing the (sic) to grant the application.
In their supplementary Brief of Argument, the 2nd and 3rd Respondents also gave Notice of Preliminary Objection pursuant to Order 10, rule 1 of the Rules of the Court. The Preliminary Objection relates to grounds 16, 17, 19 and 20 of the Appellants’ Amended Notice of Appeal and also grounds 15 and 18 thereof. It is being contended that grounds 16, 17 19 and 20 have been abandoned while grounds 15 and 18 do not relate to the decision of the tribunal as they do not challenge the ratio decidendi of the tribunal ruling.
In the argument of the appeal on the merit, the 2nd and 3rd Respondents adopt the sole issue identified by the appellants, with slight modifications as follows:-
“Whether the tribunal correctly applied the law in dismissing the petitioner’s application to file additional witness deposition.”
Counsel on all sides adopted their respective briefs and proffered oral submissions.
Before going into the issues raised by the parties for determination in their respective briefs of argument, it is pertinent at this stage to first consider the issue of jurisdiction raised in the Preliminary Objection by the 1st Respondent. This is in line with the law on the subject. Whenever the issue of jurisdiction is raised, it must be considered first before any further step is taken in the proceeding. A proceeding undertaken without jurisdiction is a nullity, ab initio, no matter how well conducted.
By jurisdiction is meant the authority which a court has to decide matters that are litigated before it, or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted and may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance or as to area over which the jurisdiction extends or it may partake of both these characteristics.
There is no pending case where a court is incompetent to determine a matter. (See ABEL ISA’AH &. 2 ORS. Vs. THE SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED [2001] 6 NSCQR (PT.1) 542, 551. In 7 UP BOTTLING CO. LTD &. 2 ORS. Vs. ABIOLA AND SONS BOTTLING COMPANY LTD [2001] 6 NSCQR (PT. II) 905, 938-939, it was held, per KALGO, JSC, that –
“It is trite that in all matters before a Court the fundamental one is the issue of jurisdiction which must first be determined before anything else otherwise all proceedings relating thereto will be nullity and an exercise in futility.”
Elsewhere, it was held that:-
“Jurisdiction is fundamental and crucial, for, if there is want of jurisdiction, the proceedings thereafter will be affected by a fundamental vice and would become a nullity. It may be raised at any stage of proceedings, even on appeal and once it is raised, parties must be heard on it and the issue must be determined before any further proceedings in the matter. It is never too late or too early to raise it. ”
(See KOTOYE Vs. SARAKI [1993] 5 NWLR (PT. 296) 710; THE STATE Vs. DR. OLU ONAGORUWA [1992] 2 SCNJ (PT. 1) 1. The Preliminary Objection reads thus: –
‘That the Court of Appeal lacks jurisdiction under Section 246(1)(b)(ii) of the Constitution of the Federal Republic of Nigeria, 1999 to entertain any interlocutory appeals from the Governorship and Legislative Houses Election Tribunal.”
It is observed that only Emmanuel Toro Esq., SAN, Learned leading counsel for the 1st Respondent seriously proffered argument in respect of this point (i.e. jurisdiction). Indeed, it is noteworthy that Chief M.I. Ahamba, SAN, learned leading counsel for the Appellants, did not stop at failing and or neglecting to file a Reply Brief of Argument, he did not utter a single word in his oral submissions, in respect of this Preliminary Objection. This is reminiscent of and similar to what happened in DR. MAXWEL MICHAEL GIDADO &. ANOR. Vs. MRS. GRACE FOLASHADE JACKSON-BENT &. 12 ORS in Appeal No. CA/J/EPT/SN/237/2007, delivered on the 31st day of October, 2007.
In GIDADO Vs. JACKSON-BENT (supra), learned counsel for the Appellant refused to respond to the issue of jurisdiction as raised by the 1st Respondent in that case. His reason was that a proper notice had not been filed. In the instant appeal, a proper notice has been filed, but the Appellants seem to have ignored it by proffering no submissions in respect thereof and by failing to file a Reply Brief thereto. On his part, A.B. Mahmoud Esq., SAN, learned leading counsel for the 2nd and 3rd Respondents, adopted the submissions by Toro Esq., before making further submissions (oral). He did not on his own utter a word on the issue of jurisdiction.
In the event, the Court has only the submission made by learned Senior Counsel for the 1st Respondent to contend with in the determination of this issue.
It is submitted for the 1st Respondent that the only decision appealable from the Election Tribunal set up under Section 246(i) (b) (ii) of the Constitution of the Federal Republic of Nigeria, 1999 (now ‘The Constitution) is a decision as to whether –
” Any person has been validly elected to the office of Governor or Deputy Governor”.
It is submitted that this subsection envisages only a situation where the proceeding before the tribunal has come to a conclusion. This does not include an interlocutory decision of the tribunal in the course of the proceeding before it. It is submitted for the 1st Respondent that the ruling being appealed herein did not determine the question whether any person has been validly elected Governor or Deputy governor- Reliance is placed on AMGBARE Vs. SYLVA [2007] 18 NWLR (PT. 1065) 1, 19; ENIMIKEMI Vs. SYLVA [2008] 9 NWLR (PT. 1088) 207. It is finally submitted for the 1st Respondent that once this Preliminary Objection is upheld, the obvious thing to do is to decline to entertain this appeal on its merit, citing in support, the cases of -MADUKOLU Vs. NKEMDILIM (1962) 1 ALL NLR 587; ORUBU Vs. NEC [1988] NWLR (PT. 94) 323, 352’ and OKOLOGBU Vs. ATAMU [1999] 1 NWLR (PT. 587) 389. The Court is urged to strike out the appeal.
Now, Section 246(i)(b)(ii) of the Constitution provides as follows: –
“248-(i) An appeal to the Court of Appeal shall lie as of right from: –
(a) ………………………
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunal on any question as to whether:
(i) ………………………..
(ii) any person has been validly elected to the office of Governor or Deputy Governor…..”
From the tenor of these provisions, no one is left in doubt that a situation whereby the proceeding in an election petition has been brought to conclusion on the merit is envisaged. The provisions do not admit of a situation where an appeal shall lie to the Court of appeal as of right or by leave when the proceeding in an election petition is on-going. OGUNTADE, JCA (as he then was) introduced a new dimension into the matter when he made a distinction between a decision, on” and a decision ”in” an election petition in the terms hereinafter appearing: –
”For a decision to be appealable under Section 36(1) it must be a decision ON an election and not a decision IN an election petition……. In my respective view, a reading of the provision above, would suggest that the phrase ‘a decision on an election petition” would only mean determination of any question whether any person has become an elected member of a Local Government Councilor that the election was void that is, a determination on the merit of the petition. Any other decision made in the course of election proceedings would be on decision in an election. ”
(See OKAHUE Vs. OBADAN [1989] 5 NWLR (PT. 120) 185. This dictum has been adopted and followed by this Court in PRINCE EBITIMI AMGBARE & ANOR Vs. CHIEF TIMIPPRE SYLVA & ORS [207] 18 NWLR (PT. 1065) 1, 22 sitting in Port Harcourt. These two decisions represent the correct interpretation of the law and without being brought to the attention of this Court in Jos, this Court took a similar stand on the 31st day of December, 2007 in Appeal No. CA/J/EPT/SN/237M/2007, DR. MAXWEL M. GIDADO & 1 OR Vs. MRS. GRACE FOLASHADE JACKSON-NBENT & 12 ORS that unless the election petition proceedings are brought to conclusion, there is no right of appeal. It was also held in that case that –
‘I have searched, in vain, for a constitutional provision corresponding to those three subsection enacting an appeal to lie to the Court of Appeal with leave, from the decision of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunal (Emphasis by me). I agree with Chief Aluko-Olokun, SAN., and it is the only logical conclusion, that omission to provide for situation where appeal can lie, with leave, from the decisions of the Election Tribunals to this Court is a clear indication that the legislature does not desire that this Court should entertain interlocutory appeals from Election Tribunals. This is in line with the current legislative trend in the country which demands that election petitions be determined expeditiously and with minimum delay. It will be inconsistent for the Legislature to provide for expeditious determination of election petitions and at the same time provide for delay via interlocutory appeals.” (See P. 18 of the cyclostyled Ruling).
The position of the law has not changed since that Ruling and I find no reason to depart from it in this appeal. In fact, as I stated earlier in this judgment, the appellants’ counsel did not utter a word in respect of this Preliminary Objection. He has chosen to maintain a very loud silence on the issue of jurisdiction. He has argued his appeal purely on the merit. The implication of this is that he has accepted the Preliminary Objection to be meritorious and there is no need for him to talk about it. Like the rules of pleadings, any pleading which has not been specifically traversed is deemed to have been admitted. In the circumstances of this ease, the only option open to the Court is to deem the Preliminary Objection raised by the 1st Respondent as having been admitted by the appellants. To that end, I agree with Toro, SAN for the 1st Respondent that this interlocutory appeal is incompetent and that this Court lacks the requisite jurisdiction to entertain it.
There is merit in this Preliminary Objections and it accordingly hereby upheld. This interlocutory appeal is incompetent and the same is accordingly hereby struck out.
This brings this appeal to an end and there is no need for me to treat the other issues raised therein.
I make no order as to cost.
Other Citations: (2009)LCN/3136(CA)
