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A law court is fundamentally competent when properly constituted -Part 4

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IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON TUESDAY, THE 20TH DAY OF OCTOBER, 2015
BEFORE THEIR LORDSHIPS
IBRAHIM T. MUHAMMAD JUSTICE, SUPREME COURT MUHAMMADS.M.COOMASSIE JUSTICE, SUPREMECOURT
OLABODE RHODES-VIVOUR JUSTICE, SUPREME COURT
CLARA B. OGUNBIYI JUSTICE, SUPREME COURT
JOHN I. OKORO JUSTICE, SUPREME COURT
CHIMA C. NWEZE JUSTICE, SUPREME COURT
AMIRU SANUSI JUSTICE, SUPREME COURT
SC. 665/2015
BETWEEN:
MEGA PROGRESSIVE PEOPLES PARTY (MPPP) ………………………………………………………APPELLANT
AND
1.INDEPENDENTNATIONAL ELECTORAL COMMISSION (INEC)
2. ALL PROGRESSIVE CONGRESS (APC)
3. SENATOR IBIKUNLE AMOSUN
4. MRS. YETUNDE ONANUGA … RESPONDENTS

They both target the same thing. We suggest that both should be heard together.
Our own application is dated and filed on 10/6/2015. It is similar to the other ones referred to. It is rape for hearing. I align with my learned senior’s suggestion.
We concede.
We have agreed on 1/7/2015.
Application for adjournment is granted. All the motions so far filed in this petition, i.e EPT/GON/ABK/002/2015, are adjourned to Wednesday, July 1, 2015, for definite hearing by God’s grace.
SGD Hon. Justice H. A. Olusiyi Chairman 19/6/2015
SGD Hon. Justice M.A. Sadeq
Member 19/6/2015
SGD Hon. Justice A. O. U. Usman
Member 2 19/6/2015

Sitting of the tribunal resumed on the 3’ day of July, 2015. Full coram of the tribunal was indicated at the beginning of that day’s sitting. Pre-election sessions commenced. After recording appearances, the following proceedings followed: “Coram: Full tribunal for the pre-hearing session. However, only the Chairman shall take interlocutory applications.”

Learned counsel went ahead to move their various motions. There were arguments as to whether the tribunal should consider applications challenging the competence of the tribunal at pre- hearing stage. Fagbemi, SAN., drew attention of the tribunal: “We have gone past the stage of agreement as to which motions should come first. The tribunal has already ruled that all applications will be taken in the pre-hearing session. Your Lordship cannot sit on appeal over its (Sic) own ruling….”

The tribunal ruled: “I have carefully considered the submissions of learned counsel on the issue of whether the applications challenging the competence of the petition should be heard now or not. 1 agree entirely with the submissions of learned counsel for the .1st Respondent, learned counsel for the 2nd Respondent and the submissions of learned senior counsel for the 3rd and 4th Respondents that they should be heard and determined at this pre- hearing session…………………. There is no better time to take the applications challenging the competence of the petition than now…………The applications in question shall be taken now.

SGD H. A. OLUSIYI
JUDGE CHAIRMAN 3/7/2015.”
Learned senior counsel and other counsel for the respective parties proceeded to make their submissions.
On the 10th of July, 2015. ruling was delivered by Olusiyi, J. It was held, inter alia, as follows: “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. Each of the applications succeeds on the ground of limitation of time, and is accordingly granted.

The petition coded EPT/GON/ABK/002/2015, filed on 4/5/2015, is hereby struck out for being incurably incompetent.
SGD ILA. OLUSIYI JUDGE CHAIRMAN 10/7/2015.”

It is to be observed, your Lordships, that on the 16/6/15, when the tribunal sat for the first time, a full coram was constituted and the coram entertained and granted an application by learned counsel for the petitioner, Kayode Akinsola, Esq, for him and for any counsel of the Respondents who so desired to inspect the polling or electoral documents. The ruling was signed by the tribunal chairman and two members of the tribunal. Equally, when all the motions were adjourned to July 1st for a definite hearing, the full coram was reflected and the ruling was signed by the chairman and the other two members of the tribunal. When the motions were to be heard, the names of the chairman and the two members were reflected on top page of that day’s proceedings. When the motions were to be taken and determined, the following was recorded.
“Coram: Full tribunal for the pre-hearing session. However, only the chairman shall take interlocutory applications.” (Underlining for emphasis)

Thus, the chairman went ahead to hear and determine all the applications. At the end (i.e on 10/7/2015), he granted the applications and consequently, struck out the petition. He signed and dated the ruling alone in his capacity as the chairman of the tribunal. The court below, on appeal to it affirmed the tribunal’s decision.

Now, the challenge posed by the Petitioner/Appellant is encapsulated in issue one of the three issues he formulated in his brief of argument, to which I referred to earlier.

It is Appellant’s learned counsel’s submission that the trial tribunal had no jurisdiction to hear and determine the Respondents’ consolidated applications that gave rise to its ruling delivered on July, 2015, as the trial tribunal was not properly constituted to do so as it was constituted by only a single member of the three-man Governorship Election Tribunal sitting at Abeokuta, Ogun State, to wit: Hon. Justice Henry A. Olusiyi. This is a jurisdictional issue which is in disregard and in noncompliance with the mandatory 35 provision of Section 285(4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This, learned counsel for the Appellant said, occasioned a miscarriage of justice to the Appellant. He supported his submissions with a lot or decided authorities. He urges this court to hold that the proceedings were incompetent, null and void ab initio and liable to be set aside.

I carefully beamed my search light on all Respondents’ several briefs in order to afford me have a glimpse of a satisfying strong and pungent answer/answers but I was taken aback. I was amazed by the contradicting submissions and complete evasion of the all important first issue raised by the Appellant. The first Respondent, for instance decided to raise a single issue on whether the Courts below were right or wrong in their concurrent decisions in dismissing the Appellants petition on the ground that same was filed outside the prescribed 21 days when the results were announced. He made several submissions on jurisdiction. It is only in Paragraph 4.4 of his brief that the learned, SAN., for the 1st Respondent (on the brief of argument) made the following submissions in respect of the ruling of the tribunal: Earlier on, however, in Paragraphs 4.2 and 4.3, the learned SAN., had alluded to the trite position of the Law that the issue of Jurisdiction is fundamental and can be raised at any stage of the proceedings at any time and even for the first time on appeal and, or, even suo mote. He cited the decisions in Akere v. Governor of “4.4.

Furthermorethereisawellconsideredruling of the tribunal on the issue of number of members of the tribunal who can hear the objection. There is no appeal against that decision. Appellant is therefore estopped from raising the issue of composition of the tribunal which heard the objection and dismissed Appellant’s claim.” Oyo State (2012) 5-6 S.C. 1; Lastma v. Ezezoobo (2012) 3 NWLR (Pt 1286) 49 at 57E CA.

The second Respondent did not help matters either. Learned counsel for the 2nd Respondent made submissions on his lone issue on the striking out of the petition of the Appellant as it was filed out of time prescribed by Section 285(5) of the Constitution.

On Issue Number 1 canvassed by the Appellant, learned counsel’s contention is that being an issue of jurisdiction, it never arose from the decision of the court below, nor was it raised or argued before the tribunal or the court below; nor did the Appellant seek the leave of the court below to so raise and argue same. Learned counsel contended further that the chairman of the tribunal pursuant to Paragraph 27(1) of the First Schedule to the Electoral Act, 2010 (as amended) sat alone in the determination of the consolidated interlocutory applications of the various Respondents which led to the striking out of the petition which is the subject matter of this appeal. Learned senior counsel for the 20 3rd and 4th Respondents (on the brief of argument) Prince L. O. Fagbemi, SAN., formulated a lone issue for determination.

The issue is as well, on whether the petition was validly and competently dismissed on account of its incompetence occasioned by limitation of time. He too, dwelt deeply in his submission on this issue. He concedes that the position of the law has always been that jurisdictional issues and matters in any proceedings including the present appeal can be raised at any stage of any particular proceedings and as early as possible. He cited several decisions of this court. He argued that it would not be open to the Appellant to contend or agitate the puerile case that the trial tribunal sitting in Abeokuta was not properly constituted or that it was itself bereft of requisite jurisdiction to consider the clear case before it in the entire circumstances of this appeal. The learned, SAN., submitted further that the Appellant, apart from not raising any jurisdiction to contest the supposed jurisdiction of the trial tribunal before the tribunal itself, did not raise the issue as fresh one at the lower court of Appeal sitting at Ibadan nor has he sought to obtained any leave of the said lower court of appeal or this honourable court to so raise it.

I think it did not lie in the mouths of the Respondents to say that Appellant did not apply for leave to raise issue of jurisdiction. Appellant’s application of 176 September was duly served on all the Respondents. Counter-affidavits thereof, were filed by the 2nd, 3rd and 4th Respondents. In both counter-affidavits it was deposed to that no issue of jurisdiction or other “serious and fundamental issue of law” were raised in Exhibit 2 (notice of appeal dated 4th September, 2015). (See Paragraph 5 (ii) of the 2nd Respondent’s counter affidavit of 25/9/2015 and Paragraph 3 (i) of the 3rd and 4th Respondents’ counter-affidavit of 28/9/ 2015). Certainly, if there was no application to that effect, the Respondents could not have responded by filing counter affidavits. It was this application that was considered by the court on the 12’ day of October. Same was granted which paved the way for hearing the appeal.



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