CORAM

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PARTIES

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ALL PROGRESSIVES CONGRESS (APC) APPELLANTS

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NATASHA HADIZA AKPOTI & ORS RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The 1st and 2nd Respondents filed a motion on notice before the Kogi State National and State House of Assembly Election Petition Tribunal, sitting in Lokoja, seeking orders granting leave to the Petitioners/Applicants to file additional Witness Statement on Oath of the 1st Petitioner, Natasha Hadiza Akpti, consequent upon the inspection of the electoral materials ordered by this Honourable Tribunal on March 29, 2019; to call an additional witness and to file a Witness Statement on Oath of BO, consequent upon the inspection of electoral materials used for the conduct of 20291 Kogi Central Senatorial District election, as ordered by the Tribunal on March 29, 2019; deeming the additional Witness Statement on Oath of the 1st Petitioner, Natasha Hadiza Akpoti, and the Witness Statement on Oath of BO, already filed as a separate Court process, as properly filed and served all requisite fees having been paid. The Tribunal, after hearing the parties, granted the prayers sought by the 1st & 2nd Respondents on the ground that it would be unreasonable and amount to a denial of fair hearing if the 1st & 2nd Respondents were not allowed to give evidence of the report of inspection ordered by the Tribunal. Aggrieved by the ruling, the Appellant appealed to this Court. The 1st and 2nd Respondents raised a preliminary objection challenging the competence of the appeal on the ground that the appeal is an interlocutory appeal for which leave is required and that the Appellant having failed to obtain Leave to file this appeal, same is incompetent.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the learned Tribunal Justices were right when in considering and granting the reliefs sought by the Petitioners in their Motion filed on the 20th of May 2019 failed to consider the issues raised in the Appellant’s written address in opposition to the said motion field on the 26th of May 2019 thereby infringing on the fundamental right of the Appellant to be fair hearing Whether the learned Tribunal Justices were right when they granted the reliefs sought by the Petitioners in their Motion filed on the 20th of May 2019 despite the clear and unambiguous provisions of Order 19 Rule 10(1) of the Federal High Court (Civil Procedure) Rules 2009. Whether the learned Tribunal Justices were right when they granted the reliefs of the petitioners to call and file written deposition on oath of one BO and additional witness statement on oath of the 1st Petitioner despite the fact that both written depositions on oath clearly introduced new facts not contained on the Petition filed on the 14th of March 2019 in flagrant contravention of Section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

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RATIONES DECIDENDI

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RIGHT OF APPEAL – WHETHER INTERLOCUTORY APPEALS FROM THE NATIONAL AND STATE HOUSES OF ASSEMBLY ELECTION TRIBUNAL IS AS OF RIGHT OR WITH LEAVE

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“The decision of the Supreme Court in APC V. Marafa (supra) cited by the appellant represents the current Law. The objectors did not advert their minds to section 246 of the 1999 Constitution (as amended) Section 246 (1) of the Constitution provides as follows:
1. An Appeal to the Court of Appeal shall lie as of right from –
(a) Decisions of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution;
(b) Decisions of the National and State Houses of Assembly Election Tribunals; and
(c) Decisions of the Governorship Election Tribunals, on any question as to whether – (i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution, (ii) any person has been validly elected to the office of a Governor or Deputy Governor, or (iii) the term of office of any person has ceased or seat of any such person has become vacant.
By this provision of the constitution it is very clear and obvious that appeal form the lower tribunal in the instant case is as of right. In the case of Saraki & Anor V. Kotoye (1992) LPELR — 3016 (SC), the Supreme Court held that:
“The Constitution of this Country and the law and practice in the administration of justice have vested in the aggrieved a right of appeal to a superior court against any decision in respect of which he is aggrieved on the grounds of law or fact on who he considers the court is in error.”
The 1999 Constitution of Nigeria (as amended) has by Section 246(l)(b) made the right of appeal from any decisions of the National and State Houses of Assembly Election tribunal to be as of right. Being of right means taking the prerogative to appeal without any leave or permission of the Court. Since the Constitution has given the right to appeal without Leave in respect of decisions of the lower tribunal the 1st and 2nd Respondents cannot in any guise lump the decisions of the lower tribunal – an election petition Tribunal, with the regular counts decisions. Released for by Section 241 and 242 of the 199 Constitution. It is the law that the right of the appellant to appeal the decisions of the lower tribunal whether interlocutory or final, is as of right and no leave is required. –

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ELECTION PETITION – NATURE OF AN ELECTION PETITION

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“It is to be noted that this is an election matter and the general principle of the law is that election matters are Sui Generis. They are limited by time especially the gubernatorial one. They cannot withstand everlasting time {ad infinitum). They must be concluded within a given time unlike in other Ordinary Civil Matters with no time bar. See Oke & Anor V. Mimiko & Ors (2013) LPELR-20645 (SC); Omisore & Anor V. Aregbesola & Ors. Furthermore, where any election is challenged, it is not only beneficial and crucial to our democracy but in the interest of justice for the parties to be allowed within the ambit of the law to place before the tribunal or the court the real issues and the supporting facts for determination. –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Electoral Act, 2010 (as amended)|Federal High Court (Civil Procedure) Rules 2009.|

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