Mega Progressive Peoples Party (Mppp) Vs Independent National Electoral Commission (Inec) (2015)

LAWGLOBAL HUB Lead Judgment Report

MUNTAKA-COOMASSIE, JSC

This is an appeal by the appellant, Mega Progressive People’s Party, against the judgment of the Court of Appeal, Ibadan Division delivered on the 27th day of August, 2015. In the Court of Appeal, hereinafter called the court below which dismissed the Appellant’s appeal and upheld the Ruling of the Governorship Election Tribunal sitting at Abeokuta, Ogun State, chaired by Hon. Justice Henry Olusiyi, herein after referred to as “Trial Court”, which delivered its decision on the 10/7/2015. See page 352 of the record of proceedings. The Trial Court held thus: “This petition, having been filed outside the 21 days period prescribed by law, is PAGE| PAGE * Arabic 2 incompetent and cannot be entertained beyond this stage by this Tribunal as so doing will tantamount to embarking on a wild goose chase and a worthless pursuit”. The Chairman of the Tribunal further held that, “the lone issue for determination, as formulated by the Tribunal, is resolved in the affirmative, in favour of all the respondents/applicants. There is considerable merit in each of the applications of the 1st respondent, 2nd respondent and the 3rd and fourth respondents. Each of the applications (sic) succeeds on the ground of limitation of time, and is accordingly granted. The petition coded EPT/GOV/ABK/002/2015, filed on 4/5/2015, is hereby struck out for being incurably incompetent”. Being aggrieved by the decision of the above Tribunal the petitioner/appellant appealed to the Court of Appeal Ibadan Division on the following seven grounds of appeal. They are hereby reproduced without their particulars:- GROUND ONE The trial tribunal erred in law when it heard and determined in limine the respondents’ objective to the appellants petition, having regards to the provisions of paragraph 12(5) of the first schedule for the electoral Act, 2010, (as amended) by Section 38 (c) of the Electoral (amended) Act 2010. GROUND TWO The Governorship Election Petition Tribunal in Ogun State misdirected itself when it chose not to give priority to the latest amendment of the first schedule to the Electoral Act, 2010 (as amended) GROUND THREE The Governorship Election Petition Tribunal erred in law by not allowing the petition to go on full trial in-spite of the contention on the date the 2015 Governorship Election was declared in Ogun State by the parties in the petition to establish the truth. GROUND FOUR The Honourable Tribunal erred in law in distinguishing and refusing to follow the case of Alhaji Gbadamosi Kabir & Ors V. Action Congress & 238 Ors (2012) All FWLR (pt. 647) at pages 687 – 659, paras E – H. GROUND FIVE The Honourable Tribunal erred in law by allowing the respondents to bring an objection to the PAGE| PAGE * Arabic 3 appellant’s petition using two procedures which was not provided for in the Electoral Act in Re: PDP V. INEC & ORS 2012) 6 SCM, 179 or (2012) 7 NWLR (pt. 1300) P. 543. GROUND SIX The Honourable Tribunal erred in law when it failed to properly distinguish the case of Omisore V. Aregbesola SC/204/2015 unreported judgment delivered on 27/5/2015 and the appellant’s petition in resolving the computation of time. GROUND SEVEN The Tribunal misdirected itself where it held on the page 16 of the ruling that only the presentation of form EC8E that could be used to prove the result of an election. The court below in my view considered relevant issues presented before them though it has gone a little bit astray and in a considered judgment held thus:- “It is instructive to note that even if the last date for filing the election petition had fallen on a Sunday as was asserted by the Appellant, the provisions of the Interpretation Act cannot be applied to move the grace date to the Monday following, as was contended by learned counsel for the appellant. In the case of Okechukwu V. INEC (2014) 17 NWLR (pt. 1436), the Supreme Court, per Ariwoola, JSC, at page 285, succinctly said that the interpretation Act may not apply strictly in the computation of time in the filing of processes. Ngwuta, JSC in his contributory opinion at page 311, was even more direct thus:- “Election petitions are distinct from civil proceedings, see Obeh V. Mbakwe (1984) 1 SCNLR 192 at 200. An election matter is time bound and any provision relating to time must be strictly applied. It does not permit a resort to Interpretation Act”. In the recent case of Omisore V. Aregbesola SC. 204/2015 (unreported) delievered on May 27, 2015, the Supreme Court, per C. C. Nweze, JSC, relying on the earlier case of Okechukwu V. INEC (supra) unequivocally said at page 55 of the judgment: “The simple answer is that the said Interpretation Act is inapplicable to this matter being an election matter, Okechukwu V. INEC and Ors (supra)”. Interestingly, Section 15(4) and (5) of the Interpretation Act provides that where an enactment provides for an act which does not exceed six days, holidays shall be left out of account in computing the period. The holiday would mean Sundays and public holidays. Twenty one days by far exceed six days it goes without saying. The Interpretation Act, if applicable, would therefore not even have availed the appellant. In all, this appeal has been shown to be completely without merit. The issues raised for determination having all been resolved against the appellants, the appeal fails and is hereby dismissed. The Ruling of the Governorship Election Petition Tribunal sitting at PAGE| PAGE * Arabic 4 Abeokuta, Ogun State, chaired by Hon. Justice Henry A. Olusiyi, J., delivered on July 10, 2015 is hereby affirmed”. Thus the court below affirmed the decision of the Tribunal which was delivered on July, 2015 by Olusiyi J. The lead judgment of the court below was prepared and read by Onyekachi Aja Otisi, JCA and unanimously agreed to by other learned Justices on the panel. The appellant being dissatisfied, again, with the decision of the court below, further appealed to the Supreme Court on a Notice of Appeal containing three grounds of appeal. They are reproduced hereunder without their particulars. GROUND ONE The lower court erred in law when it affirmed the ruling of the governorship election Tribunal sitting in Abeokuta, Ogun State (Chairman: honourable Justice Henry A. Olusiyi) delivered on 10/7/2015, which was made without jurisdiction as the Tribunal was not properly constituted to hear and determine the consolidated applications which culminated in the Ruling of the Tribunal. GROUND TWO The lower court erred in law when it refused and failed to consider and apply its decision in the case of Kabir V. Action Congress (2012) All FWLR (pt. 647) C. A. 638 at pp 657 – 658, paragraphs D – A, pp. 670 – 673, paragraphs E – B and the decision of this honourable court in the case of P. D. P. V. C. P. C (2011) 10 SCNJ., p. 35, ratio 6, particularly p. 50, paragraphs 25 – 35, in computing and determining the final day for the filing of the appellant’s petition when the 21 day period constitutionally deis non juridicus, that is, a non-juridical day. GROUND THREE The lower court erred in law when it considered the 3rd and 4th respondents’ brief of argument dated and filed on 12/08/2015, which was incompetent, null and void as same was filed out of time without any subsisting order of the lower court extending time for the 3rd and 4th respondent which to do so. Parties and their respective counsel filed and exchanged briefs of argument. The appellant adopted his brief of argument which contains three (3) issues. {C} 1. Whether the Chairman of the trial court, sitting alone, had the jurisdiction to have heard and determined the respondents’ consolidated applications that gave rise to the {C} 2. PAGE| PAGE * Arabic 5 {C} 3. {C} 4. ruling of the trial court delivered on 10/7/2015 (this issue is distilled from ground 1 of the appellant’s Notice of appeal). 2. Whether the lower was right when it failed to consider its decision in the case of Kabir V. Action Congress (2012) All FWLR (pt. 647) C. A. 638 at pp. 657 – 658, paragraphs D – A, pp 670 673, paragraphs E – B and PDP V. CPC (2011) 10 SCNJ p.35, ratio 6, particularly p. 50, paragraphs 25-35, in computing and determining the final day for the filing of the Appellant’s petition. (This issue is distilled from Ground2 of the Appellant’s Notice of Appeal). 3. Whether the lower court was right when it considered the 3rd and 4th respondents’ brief of argument which was filed out of time by virtue of the decision of this honourable court in Omisore & Anor. V. Aregbesola, suit No. SC. 204/2015 (Unreported), judgment delivered on 27th May, 2015. (This issue is distilled from ground 3 of the appellant’s Notice of Appeal). The learned counsel for the 1st Respondent, A. Kayode, formulated one lone issue thus:- “The 1st respondent humbly submits that the lone issue for determination of this appeal is:- “Whether the courts below were right or wrong in their concurrent decisions dismissing the appellant’s petition on the ground that same which was filed outside the prescribed 21 days, from the date when the results of the Election was announced, is time barred”. LEGAL ARGUMENTS The appellant contended that the Chairman of the Trial Court had no jurisdiction to have heard and determined the respondents consolidated applications that gave rise to the ruling of the Trial Court delivered on 10/07/2015. It is his submission that the Trial Court had no jurisdiction to hear and determine the matter as the Trial court was not properly constituted to do so. He further submitted that the Trial Court lacked jurisdiction at all to entertain the matter before it. He continued to submit that jurisdiction is a fundamental, intrinsic and threshold issue – and once raised, the court has to determine same before proceeding to any other thing. He cited in support the case of A. G. Anambra State V. A. G. Federation (2007) All FWLR (pt. 379). It is clear that the issue of jurisdiction, counsel continues, can be raised at any stage because of importance, it can be raised at any stage and manner, even for the first time on appeal before the Supreme Court without seeking leave. a) Access Bank Plc V. G. L. O. Consult (2009) 12 NWLR (pt. 1156) 534 b) Nuhu V. Ogele (2003) 18 NWLR (pt. 852) 251SC at 279, paragraphs e. G. I also agree that issue of Jurisdiction can also be raised suo moto by this Hon. Court i.e Supreme Court. c) Nasir V. C. S. C, Kano State (2010)25 WRN P. 1 at 15- 16, 23-24, line 40. PAGE| PAGE * Arabic 6 Learned counsel referred to the decision of this court as depicted in the judgment of Hon. Justice Tanko Muhammad, JSC at p. 196 paragraphs A. – D, thus:- “It is trite that the issue of jurisdiction by whatever names and under any shade can be raised at any Stage. It can be raised viva voce or the court can raise it suo motu, see also Oniah V. Onyia (1989) NWLR (pt. 99) 514 at 540. See also A-G of Oyo State V. Fairlakes Hotel Ltd (1988) 5 NWLR (pt. 92) 1 at P. 59”. My lords, the issue of jurisdiction is over and above any legal manipulation. It has to be neatly observed and acted upon, whether it was raised in any ground of appeal or not. The jurisdiction, I can boldly state, is a question of law which can be mentioned and raised for the first time in appellate courts or even this court. It is also clear that there is no need for any leave of any court, sought and obtained, before it could be said to have been properly raised. No matter in what manner it was raised, it can lawfully be raised as a fresh issue on appeal. There is no doubt that a court of law is fundamentally competent when it is properly constituted. If a court is not properly constituted, when there is a defect in its membership then that court cannot be said to have been properly in place. It lacks jurisdiction to properly adjudicate. Whatever decision it reached is going to be a nullity. See Madukolu V. Nkemdilim (1962) 2 SC NLR 341. This court has this to say and state thus:- “1. It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another, and 2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and; 3. The case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction”. Learned counsel for the Appellant urged this court to hold that the Trial Court was not properly constituted when the matter before it was tried and determined by the Chairman of the Tribunal alone. Without having lengthy discussions and analysis of the matter, I wish to state as follows:- {C} i) Having considered all the illuminating authorities above can it be right for one single judge to have considered a matter before the Governorship Election Tribunal sitting at Abeokuta, Ogun State or anywhere. It was chaired by Honourable Justice Henry A. Olusiyi J, no other judge or member or members sat with the chairman. My lords, it is in a nutshell, that the Trial Court was not properly constituted as regards membership. The relevant law says that Tribunal be constituted with Chairman and at least one member. PAGE| PAGE * Arabic 7 Any other law, Act or Regulations which says otherwise cannot be correct. It is my view without much ado, that the Trial Tribunal was improperly constituted when it considered and determined the petition brought to it. Whatever decision or decisions it reached is a nullity no matter how beautifully the decision was written. That Trial Court could have heeded the challenge and complaint of the appellant’s counsel and it should have declined jurisdiction. The provisions of the constitution of the Federal Republic of Nigeria, 1999 as amended, by its S. 285 (4) no Tribunal can be properly constituted with the chairman alone. All other laws or Act which provides that a chairman alone, without any member can sit and determine a petition is void for inconsistency. That being the case, the lower court in this appeal cannot be right in dismissing the appeal before it and affirming the decision of the Trial Court. The learned justices of the lower court, with respect, completely derailed. The appeal therefore deserved to be allowed on this issue one without more. I have carefully gone through the submissions of all the respondents and I hold that none of the Respondents ably addressed the issue of jurisdiction of the trial court. None of them had lawful answer to the appeal. Each and every respondent agreed with the jurisdictional stance of the matter before the Trial Court. The issue is clear and strong, the fact that the matter was taken, tried and determined by the trial court with only the chairman without any member or members with him made the decision null and void. This is a fact which cannot be altered. The Court of Appeal, hereinafter called the lower court, inadvertently took the appeal as such and delivered a unanimous decision, wrongly dismissing the appeal before it and affirmed the decision of the trial court. The lower court for the reason best known to them, boldly ignored the correct submissions clearly stated by Omereonye Morgans Esq., learned counsel for the Appellant herein. The chairman of the Tribunal has no power to say and act on the fact that paragraph 7 of the Electoral Act permitted him to determine such matter alone its Provisions are inconsistent with S. 285 (4) of the 1999 constitution as amended. It is void ab initio. After considering the Briefs of all the Respondents, I read thoroughly the Ground 1 of the Appellants appeal together with the 1st issue distilled by the Appellant in his Brief and I hold that the 1st Issue is capable, in law, in disposing of this appeal. There is no further pressing need to visit and analyse the remaining two issues left. That is to say Issue one is enough to dispose of the entire appeal and I so hold. Issue one is hereby resolved in favour of the Appellant and this court grants all the reliefs sought by the Appellant. Appeal, for the avoidance of any possible doubt, is allowed. Issues two and three therefore become academic. I order that this appeal shall be remitted back to the Court of Appeal for it to reconstitute a different fresh panel to hear and determine the petition forthwith.

SC 665/2015