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IN THE SUPREME COURT OF NIGERIA ON FRIDAY, THE 12TH DAY OF FEBRUARY, 2016 SC.1002/2015 BETWEEN WIKE EZENWO NYESOM. .................... Appellant AND 1. HON. (DR.) DAKUKU ADOL PETERSIDE 2. ALL PROGRESSIVES CONGRESS (APC). .............. Respondents 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION [INEC] 4. PEOPLES DEMOCRATIC PARTY (PDP)
MAIN JUDGMENT KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): This appeal was heard on 27th January, 2016 after hearing submissions from learned counsel. I pronounced my judgment allowing the appeal and adjourned till today to give my reasons for allowing the appeal. I now proceed to do so.
This is an appeal against the judgment of the Court of Appeal, Abuja Division delivered on 16th December 2015 affirming the judgment of the Rivers State Governorship Election Tribunal (hereinafter referred to as the Tribunal) delivered on 24th October 2015, which nullified the election and return of the appellant as Governor of Rivers State and ordered the conduct of a fresh election.
Election into the office of Governor of Rivers State was conducted by the 3rd Respondent [INEC] on 11th and 12th April 2015. The appellant, who was sponsored by the 4th, respondent [PDP] was returned elected, having scored the majority of lawful votes cast. The 1st respondent also contested the election on 2nd respondent [APC].
The 1st and 2nd respondents were dissatisfied with the return of the appellant and consequently filed a petition before the Tribunal on the following grounds: ''(i) That the 2nd respondent was not duly elected by majority or highest number of lawful votes cast at the election; (ii) That the election of the 2nd respondent was invalid and unlawful by reason of substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended), Manual for Election Officials 2015 as well as the 1st respondent's 2015 General Elections approved guidelines and regulations. (iii) The election was invalid by reason of corrupt practices."
They sought the following reliefs: (i) That it may be determined and thus determined that the 2nd respondent, WIKE EZENWO NYESOM was not duly elected or returned by the majority of lawful votes cast at the Governorship election in Rivers State held on 11th and 12th April, 2015. (ii) That it may be determined and thus determined that the said election and the return of the 2nd respondent, WIKE EZENWO NYESOM, are void by acts which clearly violate and breach various provisions of the Electoral Act (as amended), including but not limited to rigging and manipulation of election results, unprecedented acts of violence, thuggery, abduction, coercion of opponents, non-compliance with the provisions of the Electoral Act, manual for election and the guidelines etc, committed at the towns, villages, settlements, wards and polling stations aforementioned, as well as unlawful interference in the electoral process by political office holders. (iii) That it may be determined and thus determined that the results of the Governorship election for the Rivers State held on 11th and 12th April, 2015 for the entire Rivers State save Eleme Local Government Area, wards 1, 2, 3, 8, 9, 11 and 19 of Port Harcourt Local Government Area as declared and announced by the 1st respondent be nullified. (iv) That a fresh election in all the polling Units and Wards of Rivers State be conducted by the 1st respondent. (v) Any other appropriate relief(s) that this Honourable Tribunal may deem fit to grant in the circumstances of this petition."(Emphasis mine)
Upon being served with the petition, the appellant (as 2nd respondent) filed and gave notice of preliminary objection along with his reply to the petition. By the preliminary objection, he challenged the competence of the petition and the jurisdiction of the Tribunal to entertain it. The appellant filed a further three applications raising the earlier objection and in addition challenging the competence of the petitioners' Reply and witness statements on oath. The 1st and 2nd respondents joined issues with the appellant in respect of all the processes. After hearing the applications, the Tribunal ruled that it would consider the issues canvassed along with the substantive case. The appellant was aggrieved by this decision and appealed to the Court below in respect of the ruling on the motion filed on 30/6/2015 only.
While the appeal was pending, the Tribunal ordered and conducted pre-hearing and pre-trial conference and a pre trial conference report was drawn up and signed by the Tribunal as then constituted by Hon. Justice Mu'azu Abdulkadir Pindiga as Chairman. Before trial commenced, His Lordship Pindiga, J. was removed and the panel re-constituted by the Hon. President of the Court of Appeal with Hon. Justice Suleiman M. Ambursa as the new Chairman.
The re-constituted panel began hearing evidence immediately on 5/9/2015. While hearing at the Tribunal was going on, the Court of Appeal delivered its ruling on the interlocutory appeal and directed the
Tribunal to "immediately resolve the issue of the locus standi of the petitioners and the service of the originating processes, raised before it but which were not decided upon as yet." (See page 1993 - 1994 Vol. 3 of the record).
In compliance with this order the newly constituted panel with Ambursa, J as Chairman delivered the ruling on 9/9/2015. In compliance with another order of the Court of Appeal in favour of the 4th respondent, the Tribunal delivered another ruling on the same 9/9/2015 striking out several paragraphs of the petition, particularly paragraphs wherein allegations of crime were made against known and unknown individuals and security agencies, who were not parties to the petition. The Tribunal also made a consequential order barring or restricting the calling of evidence relating to such allegations in the case.
At the hearing, the 1st and 2nd respondents called 56 witnesses (including subpoenaed witnesses) and tendered electoral and other documents which were admitted in evidence. The appellant called 24 witnesses and tendered numerous documents while the 3rd respondent called 16 witnesses. The 4th respondent did not call any witness but tendered documents from the Bar.
At the conclusion of the trial and after considering the written addresses of learned counsel on both sides, the Tribunal delivered its judgment on 24/10/2015 wherein it allowed the petition and nullified the election and return of the appellant on grounds of substantial non-compliance with the Electoral Act.
The appellant was dissatisfied with the decision and appealed to the Court below, which on 16/12/2015 dismissed the appeal and affirmed the judgment of the Tribunal.
Not surprisingly, the appellant is still dissatisfied and has filed the instant appeal. The Notice of Appeal filed on 29/12/2015 contains 20 grounds of appeal. The appellant and 1st and 2nd respondents duly exchanged briefs of argument.
In the appellant's brief settled by EMMANUEL C. UKALA, SAN filed on 8/1/2016, the following issues were submitted for determination: "i. Was the Court of Appeal right when it failed to appreciate that the "ruling" of the Election Tribunal given on the 9th day of September 2015 signed by Hon. Justice S. M. Ambursa relied on by the Court of Appeal to arrive at the conclusion that the Election Tribunal considered and resolved all the issues raised in the appellant's motions filed on 30/06/2015, 01/08/2015 and 17/08/2015 respectively was not competent and valid?(Distilled from Ground 3 of the Appellant's Ground of Appeal) ii. Was the Court of Appeal right when it came to the conclusion that the appellant's constitutional right to fair hearing was not breached by the Election Tribunal? (Distilled from Grounds 1, 2 and 4 of the appellant's Grounds of Appeal) iii. Was the Court of Appeal right when it came to the conclusion that the Election Petition meant for service out of jurisdiction, subject matter of the appeal, was competently issued and served such as to cloth the Election Tribunal with the necessary jurisdiction to entertain the same? Distilled from Grounds 5 and 6 of the appellant's Grounds of Appeal). iv. Did the Court of Appeal came to the right conclusion when it held that the Election Petition to which no stamp and seal of the Nigeria Bar Association was affixed was cognizable and capable of being entertained and determined? (Distilled from Ground 7 of the appellant's Grounds of Appeal). v. Was the Court of Appeal right when it came to the conclusion that the 1st and 2nd respondents/petitioners had the locus standi to present the Election Petition subject matter of the appeal? (Distilled from Ground 8 of the appellant's Grounds of Appeal). vi. Was the Court of Appeal right when it sustained the reliance placed by the Election Tribunal on the Card Reader Report tendered in evidence by the petitioners and admitted as Exhibit 'A9'? (Distilled from Grounds 13 and 15 of the appellant's Grounds of Appeal). vii. Was the Court of Appeal right when it came to theýconclusion that the documents tendered by the petitioners were not documentary hearsay and documents that were merely dumped on the Election Tribunal and were capable of being relied on for the purpose of proving the Election Petition? (Distilled from Grounds 9 and 10 of the appellant's Ground of Appeal). viii. Was the Court of Appeal right when it came to the conclusion that the petitioners ground for the petition which included non-compliance with Manual for Election Officials 2015 and General Elections approved Guidelines and Regulations was within the purview of Section 138(1)(b) of the Electoral Act 2010 as amended? (Distilled from Ground 11 of the appellant's Grounds of Appeal). ix. Was the Court of Appeal right when it came to the conclusion that there was no conflict between the provisions of Section 49 and 52 (1) (b) of the Electoral Act 2010 as amended, on the one hand and the Manual for Election Officials 2015 and the Approved Guidelines and Regulations made by INEC for the election accordingly that failure to follow the Manual or Guidelines have the effect of rendering the election void? (Distilled from Grounds 12, 16 and 18 of the appellant's Grounds of Appeal). x. Was the Court of Appeal right when it failed to apply to the facts of the present case, the decisions of the Supreme Court in the case of KAKIH v. P.D.P. (2014) 5 NWLR (Pt.1430) 377 and UCHA v. ELECHI (2012) 13 NWLR (Pt.1317) 330 among other regarding the onus, method and standard of proof in election cases involving allegations of non-compliance with the provisions of the Electoral Act? (Distilled from Ground 19 of the appellant's Grounds of Appeal). xi. Was the Court of Appeal right when it came to the conclusion that the evidence in the election petition was properly evaluated by the Election Tribunal and that the petitioners were entitled to judgment? (Distilled from Grounds 14, 17 and 20 of the appellant's Grounds of Appeal)."
The 1st respondents brief was settled by CHIEF AKIN OLUJINMI, CON, SAN. Therein he formulated 8 issues for determination while in the 2nd respondent's brief settled by Yusuf Ali, SAN five issues were distilled for determination.
The appellant filed replies to the 1st and 2nd respondents' briefs. The 3rd and 4th respondents did not file any briefs in this appeal as they have also filed separate appeals in SC.1001/2015 and SC.1003/2015 wherein they also seek the reversal of the decision of the Court below.
After a perusal of the Notice and Grounds of Appeal and the issues formulated by the parties, I find the Appellant's issues apt for the determination of the appeal. Some of the issues will be considered together where appropriate.
Arguments on the Issues Issues 1 and 2 Issues 1 and 2 are concerned with the competence of the ruling of the Tribunal delivered on 9th September, 2015 signed by Ambursa, J, who did not participate in the hearing of the application that gave rise to the said ruling.
Learned Senior counsel for the appellant, E. C. Ukala, SAN, submitted that when the issue of the competence of the ruling delivered on 9/9/2015 was raised at the Court below, that Court failed to make any pronouncement on the issue and failed to address the appellant's contention that since Ambursa, J, was not competent to sign and deliver the ruling, it meant in effect that the issue relating to the issuance and service of the originating processes had not been resolved.ýHe submitted that in the face of a clear breach of duty by the Court below to consider and pronounce upon the competence of the ruling, this Court ought not to allow the judgment of the Court to stand. Reliance was placed on Samba Pet. Ltd v. U.B.A. PLC (2010) 5 ý?? 7 SC (Pt.11) 20 @ 23; Ojogbue v.ýNnubia (1972) 6 SC 127 @ 132.
Learned senior counsel noted that the panel that heard the motion consisted of Hon. Justice Mu'azu Abdulkadir Pindiga as chairman and that on 29/7/2015, it delivered a ruling resolving issue 1 out of the 8 issues for determination and deferred issues 4-8 to be taken along with the petition, That upon the directive of the Court of Appeal, after a successful appeal to that Court, that the ruling on issues 4-8 should be delivered, the Tribunal, under the chairmanship of Ambursa, J who had assumed duty during the pendency of the appeal, proceeded to deliver a ruling which was signed by him as chairman.
Relying on the authority of Sokoto State Govt v.ýKamdex (Nig) Ltd (2007) 7 NWLR (Pt.1034) 492-493, learned counsel submitted that once a judicial official who did not participate in the hearing participates in the delivery of the judgment or ruling, the Judgment or ruling becomes void ab initio notwithstanding the fact that the majority of the judges or judicial officers who delivered the judgment or ruling participated in the hearing. He also cited the cases of: Ubwa v.ýTiv Area Traditional Council (2004) 11 NWLR (PT.884) 427 @ 436 A & 437; Runka v.ýKatsina Native Authority 13 WACA 98: Adeigbe v.ýKusimo (1965) ALL NLR 260 @ 263.
With regard to the second issue, learned senior counsel argued that the ruling delivered on 9/9/2015 is null and void and therefore no decision at all and remains non-existent as if it had never been given. Apart from contending that the ruling is a nullity, he also argued that the ruling only dealt with the issue of locus standi and service of the originating processes as directed by the Court of Appeal and did not deal with issues 4-8 of the motion paper. He therefore contended that the Court below could not properly rely on the said ruling as the Tribunal's determination of all the issues raised in the Appellant's motion including issues 4-8 which were never considered by the Tribunal. He submitted that the Tribunal also failed to consider its motion filed on 1/8/2015 challenging the competence of the written statements on oath accompanying the petition as well as the motion filed on 17/8/2015, challenging the competence of the petitioner's reply to the Appellant's Reply to the petition which were also deferred to be taken along with the petition. He argued that the failure to consider and determine the applications and issues constitutes a violation of the appellant's right to fair hearing.
Learned senior counsel disagreed with the view of the Court below that the mere moving and hearing of the motion satisfied the requirement of fair hearing. He submitted that the right to fair hearing goes beyond merely affording the parties a hearing but necessarily includes a proper consideration and determination of the issues canvassed by the parties. He relied on: Oged Ovunwo v. Woko (2011) LPELR-2841 (SC) & Uzuda v.ýEbigah (2009) SC.348/2002: (2009) 15 NWLR (Pt.1163) 1.
In reaction to the above submission, learned senior counsel for the 1st respondent Chief Akin Olujinmi, SAN noted that the ruling delivered by the Tribunal on 9/9/2015 was delivered by Hon. Justice Leha who was one of the members of the Tribunal headed by Hon. Justice Pindiga.ýWhen the motion was heard,ýhe noted that the appellant did not appeal against the ruling and continued the hearing of the petition by cross-examiningýthe petitioners' witnesses and tendering documents.
On the competence of the Tribunal under Ambursa, J, to have delivered the ruling he relied in Paragraph 25 (2) of the 1st Schedule to the Electoral Act 2010 (as amended),ýwhich provides as follows: "(2). If the Chairman of the Tribunal or the Presiding Justice of the Court who begins the hearing of an election petition is disabled by illness or otherwise, the hearing may be recommenced and concluded by another Chairman of the Tribunal or Presiding Justice of the Court appointed by the appropriate authority."
ý??He submitted that in this case, hearing of the petition had not commenced. That the Tribunal as previously constituted had only concluded the pre-hearing session. Relying on the decision of this Court in P.D.P v. INEC (1999) 11 NWLR (Pt.626) 200 @ 261 B - C, he submitted that where the literal construction of a Statute will lead to absurdity, the Court should lean in favour of the purpose approach to avoid the absurdity. He submitted that the order of the Court of Appeal to deliver the ruling was directed at the Tribunal and that the signing of the ruling by the chairman along with the 2 other members who actually participated in the hearing was only to fulfil the quorum of the Tribunal.
He distinguished the authorities cited on the ground that no provision equivalent to Paragraph 25 (2) of the 1st Schedule of the Electoral Act was considered in any of the cases, He also noted that election petitions are sui generis and that the law ordinarily applicable to civil cases may not apply. He referred to the case of Ngige v. Akunyili (2012) 15 NWLR (Pt.1323) 343 @ 364. He argued that in the instant case there is no challenge to power or authority of the President of the Court of Appeal to constitute and reconstitute Tribunals.
He maintained that there was no breach of the Appellant's right to fair hearing as the Lower Court gave proper consideration to his complaint at pages 2943 to 2945 of Vol. 5 of the record and submitted that at the point the application was argued, it is deemed that all issues relating to the application had been canvassed before the Court. It is also contended that even if some issues were left out by the Tribunal when delivering its ruling and the Lower Court did not advert its mind to those issues, the appellant has not shown that this has occasioned a miscarriage of justice, bearing in mind that it is not every error that leads to a reversal of the judgment complained of. He cited the case of Bamaiyi v. The State (2001) 4 SC (Pt.1) 18 @ 25.
Learned senior counsel for the 2nd respondent, Yusuf Ali, SAN, made submissions substantially similar to learned senior counsel for the 1st respondent. He argued in addition that the Appellant, not having challenged the interlocutory ruling within 14 days as required by law could no longer raise the issue. He also maintained that the Tribunal considered all the Appellant's complaints in its final judgment and that there was no breach of the Appellant's right to fair hearing.
In reply on points of law to the submissions of learned counsel for the 1st respondent, learned senior counsel argued that the delivery of the ruling in the circumstances of this case was in breach of Section 27 (1) of the 1st Schedule to the Electoral Act and Section 285 (4) of the 1999 Constitution to the effect that the two members who participated in the hearing could not form the necessary quorum to deliver the ruling and the chairman who did not participate in the hearing could not constitute a quorum with any other member since he did not participate in the hearing. On the time limit for appealing against an interlocutory decision, it was also argued that the objection taken to the grounds of appeal at the Court below which was overruled on the ground that the grounds touch on the issue of jurisdiction and that there is no appeal against that finding. Similar submissions were made in the Reply to the 2nd respondent's brief.
Resolution Of Issues 1 And 2 The crux of these two issues is the validity of the ruling of the Tribunal delivered on 9/9/2015 by a panel constituted with Ambursa, J, as chairman, when the said chairman did not participate in the hearing of the application.
I must state at the outset that the contention of learned senior counsel for the two respondents that the appellant failed to appeal against the Interlocutory ruling within 14 days as required by law and thus cannot now raise it in this Court, is misconceived. As rightly pointed out by learned counsel for the Appellant, the grounds of appeal touching on these issues were challenged before the Court below by way of preliminary objection, which was overruled on the grounds that they raise the issue of jurisdiction. The law is well settled that the issue of jurisdiction is so fundamental to adjudication that it can be raised at any stage of the proceedings and even for the first time on appeal to this Court. See: Usman Dan Fodio University v. Kraus Thompson Ltd (2001) 15 NWLR (Pt.736) 305; Elabanjo v. Daurodu (2006) 15 (Pt.1001) 115 ý 116 G ý A; PDP v. Okorocha (2012) 15 NWLR (Pt, 1323) 205. The issues are therefore competent before this Court.
It is not in dispute that the panel of the Tribunal that heard the application dated 30/6/2015 was different from the panel that sat on 9/9/2015 when the ruling was delivered. By Section 285 (3) of the 1999 Constitution, the composition of the Governorship Election Tribunal shall be as set out in the sixth Schedule to the Constitution. Paragraph 2 (1) of the 6th schedule provides that the Governorship Election Tribunal shall consist of a chairman and two other members, while Section 285 (4) of the Constitution provides that the quorum of an Election Tribunal established under the section shall be the chairman and one other member.
It has been argued on behalf of the 1st and 2nd respondent's that the delivery of the ruling by the Tribunal headed by Ambursa, J. was in compliance with the directive of the Tribunal to deliver the ruling previously adjourned to be dealt with along with the main petition and that the signature of Ambursa, J was only appended to comply with the constitutional provision regarding quorum. That one of the Tribunal members who participated in the hearing of the petition, Hon. Justice Leha, delivered the ruling. It is also contended that the provision of Paragraph 25 (1) of the 1st Schedule to the Electoral Act was not applicable in the circumstances of this case, as the hearing had not commenced.
Section 294(1) and (2) of the 1999 Constitution (as amended) provides thus: (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. (2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justices who delivers a written opinion: Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice, whether or not he was present at the hearing." It is evident from this constitutional provision that the intention of the framers of the Constitution is that where a panel of Justices hears a cause or matter, each of them must express and deliver his opinion writing. Such written opinion may however be delivered by any other Justice of the Court on behalf of a Justice who participated in the hearing but is unavoidable absent. The opinion delivered must be the opinion of the Justices who participated in the hearing. Even though the provision of Section 294(1) and (2) refers specifically to Justices of the Supreme Court and the Court of Appeal, it is my view that the principle is applicable to any Court or Tribunal that sits in a panel of two or more members. In the instant case, Pindiga, J as chairman with Leha, J and Taiwo, J heard the application. The ruling delivered on 9/9/2015 signed by Ambursa, J as chairman and Lena and Taiwo, JJ as members, reviewed the submissions of learned counsel made at the hearing of the application before dismissing same. There is no doubt that Ambursa, J could not have formed an opinion on the submissions of learned counsel, which he did not hear. In the eyes of the law only Leha, J and Taiwo, J delivered the ruling. The signature of Ambursa, J on the ruling was invalid. In the case of Sokoto State Govt v. Kamdex Nig. Ltd (2007) 7 NWLR (Pt.1034) 466 a similar situation arose where a Justice of the Court of Appeal who did not participate in the
hearing of the appeal wrote and delivered a judgment therein. The judgment so delivered was declared a nullity. See also: Ubwa Tiv Traditional Council (2004) 11 NWLR (Pt.884) 427. The remaining two members of the Tribunal who participated in the hearing of the application and delivered opinion therein could not form a quorum in the absence of the chairman who participated in the hearing. The Tribunal was not properly constituted for the delivery of the ruling and therefore lacked the competence to do so. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
I therefore agree with learned counsel for the Appellant that the ruling delivered on 9/9/2016 was without jurisdiction. It is a nullity. It follows that the appellant's right to fair hearing was breached as there is no resolution of the issues submitted for determination in the said application.
Having found that the ruling delivered on 9/9/2015 was a nullity, it constitutes a good ground for setting aside the entire proceeding before the Tribunal. However, having regard to the fact that this is an election matter, which is sui generis and time bound and the fact that it would not be possible for the parties to return to the Tribunal having regard to the provisions of Section 285(6) & (7) of the 1999 Constitution, I deem it proper, in the interest of justice to consider the appeal on its merit.
I therefore resolve issues 1 and 2 in the Appellant's favour.
Issues 3 and 4 Issues 3 and 4 concern the competence of the issuance and service of the Election Petition outside the jurisdiction of the Tribunal in purported breach of Sections 96, 97, 98 of the Sheriffs and Civil Process Act Cap. S.6 LFN 2004 and the effect of noncompliance with the stamp and seal requirement as prescribed by the Rules of Professional Conduct for Legal practitioners made pursuant to Section 12 of the Legal Practitioners Act Cap L11 LFN 2004.
Arguments on the Issues E. C. Ukala, SAN, for the appellant argued that Paragraphs 6, 7, 8, and 10 of the 1st Schedule to the Electoral Act are concerned with the issuance and service of an election petition within the State or Territorial jurisdiction of the Tribunal. It is further contended that where the originating process is to be served outside the State or Territorial jurisdiction of the Tribunal, the Sheriffs and Civil Process Act, is applicable.
Learned senior counsel argued that there is nothing in the Electoral Act that excludes recourse to Sheriffs and Civil Process Act and that in law what is not expressly prohibited is permissible.
He submitted further that paragraph 54 of the 1st Schedule incorporates and adopts the provisions of the Federal High Court Rules and makes them applicable to election petition cases subject only to the provisions of the Electoral Act itself. On this premise, he posited that the provision of the Federal High Court Rules (Civil Procedure), including Order 6 Rules 13, 14, 15, and 16 are applicable in this case. He submitted that Paragraph 54 of the 1st Schedule permits the application of the Federal High Court Rules "with such modification as may be necessary to render them applicable having regard to the provisions of the Act, and therefore the alleged inconsistency as contended by the Lower Court between the 30 days stipulated by Section 99 of the Sheriffs and Civil Process Act for entering appearance and the 21 days limited under paragraph 10 (2) of the 1st Schedule, is misconceived. He distinguished the authority of Oloruntoba-Ojo v. Abdulraheem (2007) SCN 118 relied on by the Lower Court in this regard. He also contended that Section 19 of the Sheriffs and Civil Process Act, which defines "Court" to "include" the High Court of the Federal Capital Territory of Abuja or of the State, is a clear indication that the definition is not exhaustive and an Election Tribuna |