JUMMAI HANNATU SANKEY JUSTICE, COURT OF APPEAL
JOSEPH TINE TUR JUSTICE, COURT OF APPEAL
BIOBELE ABRAHAM GEORGEWILL JUSTICE, COURT OF APPEAL
APPELLANTS
RESPONDENTS
APPEALS, INTERPRETATION OF STATUTES, CIVIL PROCEDURAL LAW, ELECTORAL LAW, JURISDICTION, LAW OF EVIDENCE, PRACTICE AND PROCEDURAL LAW
The Independent National Electoral Commission (INEC) or “the Commission” in the exercise of these powers and authority, conducted elections into the Takum 1 State Constituency, Taraba State House of Assembly on 11th April, 2015 and declared the result on 12th April, 2015 in favour of Hosea Ibi of the Peoples’ Democratic Party who polled 14,367 votes as against Hon. Daniel G. Tsokwa of the Social Democratic Party who had 12,825 votes. The other contestant was Daniel Likam of the All Progressive Congress who polled 3,239 votes. Aggrieved with the declaration Hon. Daniel G. Tsokwa and the Social Democratic Party “the Petitioners” jointly presented a petition to the National and State Houses of Assembly Election Tribunal sitting in Jalingo, Taraba State on 27th April, 2015. The 2nd respondent was first to file a Reply to the petition on 27th May, 2015. The petitioners filed a Reply to the 2nd respondent’s Reply on 6th June, 2015. Thereafter the 1st respondent filed a Reply to the petition on 8th June, 2015. The Petitioners responded to the 1st respondent’s Reply on 20th August, 2015. As is usually the practice, all the allegations coupled with the reliefs claimed by the petitioners were denied by the 1st and 2nd respondents in their respective replies. Each respondent urged the Tribunal to dismiss the petition. In dismissing the petition the Tribunal was covered by the provisions of paragraph 18(11) of the First Schedule to the Electoral Act, 2010 (as amended). The Appellants were aggrieved by the decision of the tribunal hence the appeal to this instant Court.
Appeal dismissed.
The issue I have raised affects the competence of the motion on notice. The competency of an application, if successfully challenged, will rob or oust the jurisdiction of the Court to hear and determine the application. The issue can be raised suo motu by the Court of Appeal even if not part of the argument canvassed in any of the parties brief. I rely on the Supreme Court authority of Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 where Oputa, JSC held at page 557 paragraph “C” that:
“…By going to Kano State, the appellant contravened the very Section 42(1) of the 1979 Constitution on which he attempted to build his case. The issue of venue was not taken up and argued in the parties’ briefs but being an issue of jurisdiction, the Court can take it up itself and at any stage.”
PER – JOSEPH TINE TUR, JCA.
There are cases where the Court itself can take objection without waiting for Counsel to do so. See Bayero vs. Mainasara & Construction Nigeria Ltd. (2007) All FWLR (Pt.359) 1285. In Ogembe vs. Usman (2011) NWLR (Pt.1277) 638, Galadima, JSC held at page 656 paragraphs “E” to “F” that: “Because of its importance, a point of jurisdiction can be raised at any time and even viva voce for the first time during argument. The Court can suo motu raise it…” See also Olubode vs. Salami (1985) 2 NWLR (Pt.7) 282; Imah vs. Okogbe (1993) 9 NWLR (Pt.316) 159 and Effiom vs. C.R.S.I.E.C. (2010) 14 NWLR (Pt.1213) 107 at 133. PER – JOSEPH TINE TUR, JCA.
The party that complains on appeal that he or his Counsel were not given the opportunity to canvass the issue has the onus of showing in what manner a miscarriage of justice occurred. In Maxwell on the Interpretation of Statutes (supra) page 12 the learned author stated that:
“Schedules to statutes are as much part of an Act as any other, and may be used in construing provisions in the body of the Act. Similarly, provisions in a schedule will be construed in the light of what is enacted in the sections.”
See Exparte Rondel (1967) 2 Q.B. 482 and I.R.C. vs. Littlewoods Mail Order Stores, Ltd. (1963) A.C. 135. PER – JOSEPH TINE TUR, JCA.
I do hold that there is no room for this kind of application in the Court of Appeal. Such an application is merely a calculated attempt to delay speedy hearing. Had the legislature intended that preliminary objections should be determined during the hearing of appeals emanating from Election Tribunals that would have been clearly set out in the First Schedule to the Electoral Act, 2010 (as amended), or in the Practice Directions, 2011. But where the issue raised pertains to the competency of the Notice of Appeal and if upheld, the appeal would be dismissed, that may be raised viva voce by Counsel or suo motu by the Court of Appeal. In Maxwell On the Interpretation of Statutes, 12th edition, page 33 the learned author wrote that:
“It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: “It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.” “We are not entitled,” said Lord Lorebun, L.C., “to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.” A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.”
See Thompson vs. Goold & Co. (1910) A.C. 409 at 420; Vickers, Sons & Maxim, Ltd. vs. Evans (1910) A.C. 444 at 445 and Lloyds Bank vs. Elliot (1947) 1 All E.R. 79. PER – JOSEPH TINE TUR, JCA.
A preliminary objection, writes the learned authors of Black’s Law Dictionary is: “In a case before an international tribunal, an objection that, if upheld, would render further proceedings before the tribunal impossible or unnecessary. An objection to the Court’s jurisdiction is an example of a preliminary objection.” What is “preliminary” is defined as, “Coming before and usually leading up to the main part of something.” See Black’s Law Dictionary, 9th edition, page 1299. PER – JOSEPH TINE TUR, JCA.
All preliminary objections should be filed and argued before the adoption of briefs of argument by learned Counsel. PER – JOSEPH TINE TUR, JCA
The word “shall” employed by the draftsman in Section 145(1) of the Electoral Act, 2010 (as amended) was given meaning by the Supreme Court in Chief Mokelu vs. Federal Commissioner for Works and Housing (1976) 1 NMLR 239 by Madarikan, JSC at page 332 while construing Section 22(a) of the Federal Revenue Act, 1973 as follows: “…we are of the view that the word “shall” must be given its natural and proper meaning which is that a mandate is enjoined.” What then is a mandate?
In the Court of Appeal, a “mandate” is “An order from an appellate Court directing a lower Court to take a specified action – Also termed… order.” The adjective is “mandatory.” Henry Campbell Black, wrote in his Handbook On the Construction and Interpretation of the Laws 334 (1896) what is “Mandatory”: “A provision in a statute is said to be mandatory when disobedience to it, or want of exact compliance with it, will make the act done under the statute absolutely void.” Therefore, what is not set out in the Act, the First Schedule or the Practice Directions, 2011 should not be readily implied by the Court of Appeal sitting and exercising appellate jurisdiction. In Maxwell On the Interpretation of Statutes (supra) the learned author wrote at page 243 that: “Omissions will not readily be supplied in a Penal Act.” PER – JOSEPH TINE TUR, JCA
A motion on notice is not equivalent to “a written argument appearing in the briefs already filed in the Court” as contemplated by paragraph 15(1) of the Practice Directions, 2011. What the law maker envisaged was that an appellate brief filed by the appellant or respondent is what learned Counsel or a party should clarify or amplify by oral argument. In Briefing and Arguing Federal Appeals, Revised Edition, 1967, Frederick Wiener, wrote at page 37 that:
“An appellate brief is a written argument in support of or in opposition to the order, decree, or judgment below.”
On the other hand, a “motion” is “A written or oral application requesting a Court to make a specified ruling or order.” See Black’s Law Dictionary (supra) page 1106.. PER – JOSEPH TINE TUR, JCA.
When is an application or process filed in a Tribunal? A document or process is filed in a Court or Tribunal when it is deposited with the proper Court and the proper officer assigned the responsibility of handling it. The appropriate fees have to be paid by the person filing the process. See Mohammed vs. Musawa (1985) 3 NWLR (Pt.11) 83 at 95. Documents mentioned in affidavits are usually exhibited for they form part of the application. See Onwuagbu vs. Ezekwesili (1975) ECSLR 215 at 217; Apata vs. Awoyemi (1960) 5 FSC 275 at 276-277; Moya vs. Machie (1965) NMLR 83 and South Eastern State Newspaper Corporation vs. Edet Anwara (1975) 5 UILR (Pt.1) 106. PER – JOSEPH TINE TUR, JCA.
How may it be determined who presented a document in the Tribunal for filing if the maker did not sign it? The signing or non-signing of Exhibit “D” was an issue at the Tribunal and in this Court of Appeal. In Omega Bank. (Nig.) Plc Vs. O.B.C Ltd. (2005) All FWLR (Pt. 249) 1964 Niki Tobi JSC held at page 1999 paragraph “G” that:
“…It is my view that where a document is not signed, it may not be admitted in evidence, even if it is admitted in evidence, the Court should not attach any probative value to it. This is because a document which is not signed has no origin in terms of its makers. In view of the fact that the two makers or writers of Exhibit P6 did not sign the exhibit, it was not available to the two Courts to attach probative value to it”
In Attorney General, Abia State vs. Agharanja (1999) 6 NWLR (Pt. 607) 362 the Supreme Court held at page 371 that, “It is well settled that an unsigned document is worthless and void”
In NIDD Vs Olalomi Industries Ltd (2002) 5 NWLR (Pt. 761) 532 at 555 paragraphs “G” appears the following statement of fact:
“…a document speaks for itself and that oral testimony is inadmissible to vary, add to or take away from the contents of the document’
In Aiki Vs. Idowu (2006) All FWLR (Pt. 293) 361 Alagoa JCA (as he then was) stated thus:
“…where a document which ought to be signed is not, its authenticity is in doubt; pleadings fall into this category of documents. What for example would be the effect of attempting to tender a letter of employment which is unsigned by the employer? It would certainly not go in as an Exhibit…”
In Omega Bank (Nig.) PLC Vs. O. B. C. Ltd. (supra) Niki Tobi, JSC, once again held at page 1994 paragraphs “F” as follows:
“…The rationale behind this principle of law is that while a maker of a document is in a position to answer questions on it, the non-maker of it is not in such a position. In the later situation, a Court of law will not attach any probative value to the document and a document that a Court does not attach any probative value is as good as the mere paper on which it was made. After all, probative value is the root of admissibility of evidence.”
At page 1994 paragraph “D” of Omega Bank (Nig.) PLC. Vs. U. B. C. Ltd (supra) Niki Tobi JSC once finally held that:
“…A document which is not signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious.”
In Alfa vs. Zakari (2010) All FWLR (Pt.515) 283 at page 292 paragraphs “E” to “F” where the Court held that:
“An unsigned document altogether goes to no effect and value. It has been likened to one that is clearly of unexplained and dubious origin which cannot be relied upon by the Court in resolving a crucial issue in dispute in a case.”
PER – JOSEPH TINE TUR, JCA.
I have not seen where the law giver provided that a petitioner can apply that time be extended outside the period prescribed under the First Schedule to the Electoral Act, 2010 (as amended). Time is of essence in election petition trials. Where a petitioner is substantially unprepared to participate in the pre-hearing session or fails to participate in good faith, this is a clear indication that the petitioner has no intention that the Tribunal should issue a report and proceed to the hearing and determination of the petition on merit. But it is the petitioner that should ensure compliance with the provisions of the Schedule (supra) to ensure speedy trial. Where that is not so, the Tribunal is vested with jurisdiction to dismiss the petition. Power is also conferred on the Tribunal to set aside the order of dismissal if an application is made “within 7 days of the judgment (which shall not be extended) with an order as to costs of a sum not less than N20,000.00.” This is a penal legislation.
In Maxwell On the Interpretation of Statutes (supra) the learned author held at page 245 as follows:
“JURISDICTION AND PROCEDURE:
Similarly, statutes dealing with jurisdiction and procedure are, if they relate to the infliction of penalties, strictly construed: compliance with procedural provisions will be stringently exacted from those proceeding against the person liable to be penalized, and if there is any ambiguity or doubt it will, as usual, be resolved in his favour. This is so, even though it may enable him to escape upon a technicality.”
See R vs. Jones, Ex parte Dauton (1963) 1 W.L.R. 270 and R vs. Clarkson (1961) 1 W.L.R. 347.
Paragraph 6 of the Practice Directions, 2011 reads as follows:
“6. The Appellant shall file in the Registry of the Tribunal his Notice and Grounds of Appeal within 21 days from the date of the decision appealed against.”
The law giver did not make a difference as to whether the Grounds of Appeal should be restricted to a final or interlocutory decision or determination of the Tribunal. Therefore, every determination of the Tribunal constitutes a “decision” within the meaning of Section 156 of the Electoral Act, 2010 (as amended). An aggrieved party may appeal against any determination or decision of the Tribunal within 21 days from the date of the decision appealed against. PER – JOSEPH TINE TUR, JCA.
Indeed, in Atiku & Ors. vs. Yar’Adua & Ors. (2008) 4 NWLR (Pt.1078) 465 the Supreme Court settled the issue as to whether an aggrieved party may appeal as of right where any determination or decision of the Tribunal is final or interlocutory, Niki-Tobi, JSC held at page 494 paragraphs “D” to “F” as follows:
“Let me take the preliminary objection first. 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: not even in the way he has subtracted the contents of Section 233(2) from those of Section 233(3). 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. And so I will determine the objection in the light of Section 233(2) and (3). If I come to the conclusion that the grounds of appeal come within Section 233(2) then the objection fails. If I come to the conclusion that the appeal falls within the precinct of Section 233(3) then it will be upheld.”
His Lordship concluded at page 496 paragraphs “G” to “H” thus:
“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 adoption of written addresses, this Court is not competent to deny the appellants their constitutional right to file an interlocutory appeal. It does not even appear that learned Senior Advocate argued the first objection in his brief. That is enough for me not to take it. I have taken it with great caution and in the alternative that I am wrong in my conclusion that Counsel did not argue it in his brief.”
At page 530 paragraph “F” to page 531 paragraph “A”, Mohammed, JSC held thus:
“I have carefully considered all the submission of both learned Senior Counsel on their respective preliminary objections and I come to the followings conclusions:
I therefore dismiss both preliminary objections. I would rather consider the appeal on its merit.”
Therefore, whether a decision or determination of a Tribunal is final or interlocutory, no leave of the Court of Appeal is required to render the Notice and Grounds of Appeal competent. However what that means is that if the Tribunal “coughs” and that is capable of being interpreted as “any determination” or “decision” of the Tribunal, a party aggrieved has the constitutional right to appeal to the Court of Appeal. The end result is that parties aggrieved with any determination or decision of the Tribunal will have the freedom to inundate the Court of Appeal with appeals at the detriment of speedy hearing and determination of election petitions before Election Tribunals. PER – JOSEPH TINE TUR, JCA .
My humble view is that it should be enacted that only final decisions or determination by the Tribunal should be appealable if election petitions and appeals are to be speedily determined so that the electorate would know with immediate effect who are their representatives in the Legislative Houses. What is of importance is the final decision or determination by the Tribunal concerning the issues submitted for adjudication and not the outcome of interlocutory decisions or determination. PER – JOSEPH TINE TUR, JCA.
The law is now firmly established that a preliminary objection by a Respondent not argued at the hearing of an appeal is deemed abandoned and liable to be discountenanced and struck out. A Respondent’s counsel is therefore under a duty to timely, before the cornmencement of hearing of the appeal by the Appellant’s counsel, seek and obtain the leave of the Court to argue his preliminary objection, failing which he is deemed to have abandoned the preliminary objection. PER – BIOBELE ABRAHAM GEORGE WILL, JCA.
I have taken time to do a very deep thinking on this issue and I have come to the conclusion that a Respondent’s preliminary objection is deemed abandoned if not argued at the hearing of the appeal because a Respondent who had raised a preliminary objection before the hearing of the appeal may as well, as he has the liberty so to do, have decided either to withdraw it or simply ignore it and therefore unless and until it is argued before the hearing of the substantive appeal, it would be nigh impossible to expect the Court to read the construction of the Respondent’s mind merely on the face of his counsel and to know what he has on his mind to do with his preliminary objection unless it was argued before the commencement of the hearing of the substantive appeal. PER – BIOBELE ABRAHAM GEORGE WILL, JCA.
An unsigned document has neither any place nor any worth or use in law. It is worthless and never countenanced as amounting to anything and such was the sure fate of Exhibit D. See AG. Abia State V. Agharanya (1999) 6 NWLR (Pt. 607) 362. See also Omega Bank Nig. Pic V. OBC Ltd. (2005) All FWLR (Pt. 249) 1964; SLB Consortium V. NNPC (2011) 4 SC (Pt. 11 86; Tsalibawa V. Habiba (1991) 2 NWLR (Pt. 174) 461; Adefarasin V. Dayakh (2007) 11 NWLR (Pt. 1044) 89. PER – BIOBELE ABRAHAM GEORGE WILL, JCA.
Constitution of the Federal Republic of Nigeria 1999 (as amended) Electoral Act 2010 Court of Appeal Act 2004 Federal High Court Act No.13 of 1973 Practice Directions, 2011 Federal Revenue Act, 1973
Legalpedia Citation: (2015-08) Legalpedia (CA) 11297 In the Court of Appeal HOLDEN AT YOLA Mon…
Legalpedia Citation: (2015-09) Legalpedia (CA) 11108 In the Court of Appeal HOLDEN AT YOLA Tue…
Legalpedia Citation: (2022-04) Legalpedia 09452 (CA) In the Court of Appeal HOLDEN AT ABUJA Tue…
Legalpedia Citation: (2015) Legalpedia (CA) 78161 In the Court of Appeal HOLDEN AT ABUJA Thu…
Legalpedia Citation: (2015) Legalpedia (CA) 98151 In the Court of Appeal Thu Sep 17, 2015…
Legalpedia Citation: (2015) Legalpedia (CA) 15161 In the Court of Appeal Fri Sep 25, 2015…