(2015) LPELR-26036(CA)

Transcription

1 PDP v. EL-SUDI & ORS CITATION: In the Court of Appeal In the Yola Judicial Division Holden at Yola ON FRIDAY, 11TH DECEMBER, 2015 Suit No: CA/YL/EPT/TRS/HR/102/2015(CONSOLIDATED) JUMMAI HANNATU SANKEY SAIDU TANKO HUSAINI BIOBELE ABRAHAM GEORGEWILL Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal PEOPLES DEMOCRATIC PARTY - Appellant(s) And 1. IBRAHIM T. EL-SUDI 2. ALL PROGRESSIVE CONGRESS (APC) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 4. DANSABE C. HOSEA - Respondent(s) RATIO DECIDENDI

2 1 PRACTICE AND PROCEDURE - SERVICE OF COURT PROCESS: Fundamental nature of service of originating processes; importance of keeping to time in serving court processes "Service of process of Court is a fundamental aspect in the adjudicative process without which the entire process can be set aside. Service of process is a pre-condition to the exercise of Jurisdiction by the Courts to which the process relates. Where therefore there is no service or there is a procedural fault in service, subsequent proceedings are a nullity. This is based on the principle of law that a party should know or be aware that there is a suit against him so that the party on the other side can prepare himself. See: Eimskip Ltd v. Exquisite Ind. (Nig.) Ltd (2003) 4 NWLR (Pt.809) 88; Uchandu v. Ogbani (1999) 5 NWLR (Pt. 603) 337; Scott- Emuakpor v. Ukavbe (1975) 12 SC (reprint) 91. Happy enough the complaint here is not one for total lack of service of process of Court but one of sufficiency of time within which the process was served vis a vis the date fixed for hearing. Order 10 Rule 1 of the Rules of this Court is the relevant legislation on the issue on hand. The rules require the person or respondent who intends to take preliminary objection to the hearing of appeal to give the appellant three clear days Notice before the date set for the hearing of that appeal. This is fair enough. Such provisions are made to create level playing fields such that no party or person is taken unaware over the case he was called upon to answer in the courts." Per HUSAINI, J.C.A. (Pp , Paras. C-C) - read in context 2 PRACTICE AND PROCEDURE - NOTICE OF PRELIMINARY OBJECTION : Proper use of a notice of preliminary objection; effect where it is employed only to disable some aspects of a case "A Notice of Preliminary Objection can be resorted to and employed so long as it will terminate an action or appeal. But if the purpose is only to disable aspects of the case without killing it (so to say) then resort to the objection by way of Preliminary Objection is not the proper approach. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt.1225) 404 (SC); NDIC v. Oranu (2001) 18 NWLR (Pt.744) 1, 83; Shell Petroleum Dev. Co (Nig.) v.21 Ojiowhor Monday Amadi (2011) LPELR-3204(SC); Nwaolisah v. Pascal (2011) LPELR-2115(SC). The proper approach in such circumstance will be to come by way of Motion on Notice seeking for an order striking out aspects of the case or appeal which is not competent. In this instant case, the objector is by his Notice of Preliminary Objection seeking to strike out Grounds 1, 2, 4 and 5 of the appellant's Grounds of Appeal on account of incompetence. By this procedure, the appeal still survives even if those grounds were struck out and for which reason I am of the view that the Preliminary Objection itself is not properly before us hence the same be and is hereby struck out." Per HUSAINI, J.C.A. (Pp , Paras. D-C) - read in context

3 3 ELECTION PETITION - ISSUANCE OF PRE-HEARING NOTICE: Whether payment of filing fees is the only requirement for the activation of court's jurisdiction to issue pre-hearing notice in an election petition "I have considered those submissions of Counsel relative to Paragraph 18 of the 1st Schedule of the Electoral Act. There is no express provision made thereat requiring the person who put in an application for issuance of pre-hearing Notice to pay any form of fees. This suggestion is coming from Counsel for the appellant and his reason is that the respondent who chose to apply for issuance of pre-hearing Notice by way of Motion, was required by law to pay some filing fees in respect of the Motion submitted by him. Paragraph 18(1) is indeed the authority which provides for the application to be made for issuance of pre-hearing Notice. It is couched in mandatory terms and by that provision, the petitioner is required to apply for issuance of pre-hearing Notice as in Form TF 008 within 7 days after close of pleadings. From the authorities available to me, the application for issuance of the Pre-hearing Notice under Paragraph 18(1) being purely administrative in nature would not require the intervention of Court as for instance the necessity of having to seek for leave of the Courts pursuant to Paragraph 47(1) of the 1st Schedule to perfect the application for the issuance of Pre-hearing Notice. See: Abubakar Abubakar v. Usman Nasamu (2012) 1 SCNJ 310; Ugba & Ors v. PDP (2011) LPELR-2927 (SC); Gebi v. Dahiru (2012) 1 NWLR (Pt.1282) 560; Awojobi v. INEC (2012) 8 NWLR (Pt. 1303) 528. Consequently the Jurisdiction of the courts would not be invoked in the pursuit of the application for issuance of pre-hearing Notice under Paragraph 18(1). And so the submission made by Counsel that the application or Motion presented by the Respondents was incompetent so far as requisite fees were not paid for issuance of prehearing Notice, is misplaced.i am in full agreement with Counsel for the Appellant that payment of requisite filing fees is all that the litigant needed to activate the Jurisdiction of the courts over processes filed by him." Per HUSAINI, J.C.A. (Pp , Paras. B-E) - read in context 4 PRACTICE AND PROCEDURE - FILING FEES: Effect of partial or inadequate payment of filing fee "When a process is not duly filed, it does not, in the eyes of the law, exist and as such issue of the jurisdiction of the courts cannot be invoked. Issue of payment of filing fees is not a matter of procedural jurisdiction but substantive jurisdiction. See: O. O. M. F. Ltd v. NACB Ltd (2008) 12 NWLR (Pt. 1098) 12; Okolo v. UBN (2004) 3 NWLR (Pt.859) 87; Onwugbufor v. Okoye (1998) 1 NWLR (Pt. 424) 252; Abia Transport Corporative v. Quorum Consortium (2009) 3-4 SC 187." Per HUSAINI, J.C.A. (Pp , Paras. F-A) - read in context

4 5 JURISDICTION - ISSUE OF JURISDICTION : When can the issue of jurisdiction be raised "Issue of jurisdiction being a threshold issue can be taken and addressed at any stage of proceedings. It can be taken even on appeal for the first time. See: Adegoke v. Adibi (1992) 5 NWLR (Pt. 242 or (1992) 6 SCNJ 138; Olutola v. Unilorin (2004) 18 NWLR (Pt.905) 416; Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) 28; Egharerba v. Eribo (2010) 9 NWLR (Pt.1199) 411 (SC)." Per HUSAINI, J.C.A. (P. 31, Paras. A-B) - read in context 6 ELECTION PETITION - GROUNDS OF ELECTION PETITION: Grounds upon which an election can be questioned as provided in Section 138(1) of the Electoral Act, 2010 (as amended) "... it is now settled that the Grounds upon which an Election Petition can be presented are those specified at Section 138(1) of the Electoral Act. Anything outside these grounds statutorily provided, will render the petition invalid. For the avoidance of doubt, Section 138(1) specifies grounds at Paragraphs (a), (b), (c) and (d) provide that: "(a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election; (b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act; (c) That the respondent was not duly elected by majority of lawful votes cast at the election; or (d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. Those grounds and none other are the only valid grounds upon which an election petition can be presented. Any addition to or reduction from the set grounds will invalidate the petition. See: Ojukwu v. Yar'adua (2009) 12 NWLR (pt. 1154) 50." Per HUSAINI, J.C.A. (Pp , Paras. F-E) - read in context

5 7 ELECTION PETITION - GROUNDS OF ELECTION PETITION: Whether a petitioner can only question an election on the grounds prescribed by the Electoral Act "The case of Ojukwu v. Yar'adua (2009) 12 NWLR (Pt. 1154) 50 admittedly the locus classicus in this area of our law has admonished at page 121 thus: "A Petitioner is required to question an election on any of the grounds in Section 145(1) of the Act. He is expected to copy the Section 145(1) Grounds word for word. I think a petitioner can also use his own language to convey the exact meaning and purport of the Sub-section. In the alternative situation, a petitioner cannot go outside the ambit of Section 145(1) of the Act. In other words, he cannot add to or subtract from the provision of Section 145(1). In other to be on the safer side, the ideal to do is to copy the appropriate grounds as in the subsection." Section 145(1) of the Electoral Act, 2006 is in pari materia with Section 138(1) of the extant Electoral Act 2010 (as amended). My understanding extent of Ojukwu's case (supra) is that the petitioner is not allowed to frame his grounds outside the grounds set by law under Section 138(1) of the Act." Per HUSAINI, J.C.A. (P. 36, Paras. A-F) - read in context

6 8 ELECTION PETITION - ALLEGATION OF NON-ACCREDITATION: Whether allegation of non-accreditation of voters amounts to noncompliance with the Electoral Act upon which an election petition may be grounded "... allegation of non-accreditation of voters in respect of units or stations where election results were returned, has direct effect on the outcome of the election. Hence in the presentation of an Election Petition on the ground specified under Section 138(1)(c), facts as to non-accreditation of voters are always relevant. In Fayemi v. Oni (2009) All FWLR (Pt. 493) 1254, , this court per Muhammed JCA, (as he then was) held: "The simple answer to this is that no lawful election can take place without strict compliance with the accreditation requirement. Unlike other species of non-compliance with effect on the result of the election that must be separately proved by the petitioner, non-compliance arising from nonaccreditation of voters is so fundamental and the effect it has on the result of the election lies in the fact of its occurrence. You must have an election lawfully so called to be able to talk of the result of that election. Election results ensue from lawful votes cast by voters in a manner recognized by the law. The appellant in the instant had pleaded in paragraph 37(1) thus: 'That the 1st respondent was not duly elected by a majority of lawful votes cast at the election.' An election the proceeded without accreditation of voters does allow for the casting of lawful votes and any person elected on the basis of votes cast by voters who had not been accredited cannot be said to have been duly elected. The election is voided ab initio and does not allow for the emergence of any result." See further decisions in Agagu v. Mimiko (2009) All FWLR (Pt.462) 1122; Osunbor v. Oshiomole (2009) All FWLR (Pt.463) 1363; Aregbesola v. Oyinlola (2011) All FWLR (Pt.570) 1292." Per HUSAINI, J.C.A. (Pp , Paras. D-A) - read in context

7 9 EVIDENCE - CERTIFICATION OF PUBLIC DOCUMENT: Process of certification of public documents "Section 104 of the Evidence Act provides as follows: "104(1). Every public officer having the custody of a public document which a person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be. (2). The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and be sealed, whenever such officer is authorized by law to make use of a seal, and such copies. (3). An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section." The process of certification of public document entails: 1. A demand is made by way of an application to the public officer having custody of the public document. 2. Necessary legal fees being made or paid upon the public document being assessed. 3. The public officer produces the document. 4. The public officer issues certified True Copies of those documents. 5. The public officer subscribes his name, title and signature on the document. 6. The public officer will date the document and deliver same to the applicant. See: Ekpo v. Ukaonu (2013) LPELR-2253 (CA)." Per HUSAINI, J.C.A. (Pp , Paras. E-F) - read in context 10 ELECTION PETITION - PROOF OF NON-ACCREDITATION OF VOTERS: Importance of the register of voters in proving non-accreditation of voters "It is instructive to note that register of voters used for the conduct of elections is the primary evidence of registration of voters and same should be resorted to in determining whether or not accreditation of voters have taken place in any particular unit. See: Agagu v. Mimiko (2009) 50 All FWLR (Pt.462) 1122; Fayemi v. Oni (2011) All FWLR (Pt.554) 1, " Per HUSAINI, J.C.A. (Pp , Paras. F-B) - read in context

8 11 ELECTION PETITION - PROOF OF NON-COMPLIANCE: How can a petitioner prove non-compliance in an election petition "A petitioner can only prove non-compliance if he can tender in evidence the documents in which the non-compliance took place and call eye witnesses to testify in each of the Polling Units where the non-compliance has taken place. In Abubakar v. Yar'adua (2009) 5 WRN where the apex Court held per, Tobi JSC that: "A petitioner who contest the legality or lawful votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the result of the votes are recorded. The witnesses are those who saw it all on the day of the election not those who picked the evidence from an eye-witness. No. they must be eye-witness too. Both forms and witness are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and the recording of votes; wrong doings or irregularities which affected substantially the result of the election." Per HUSAINI, J.C.A. (Pp , Paras. B-C) - read in context 12 EVIDENCE - ORAL/DOCUMENTARY EVIDENCE: The use of documentary evidence in assessing oral testimony "Where there is documentary evidence as well as oral evidence, documentary evidence would be used as hanger by the Court to assess the credibility of oral evidence. See: INEC v. Oshiomole (2008) 48 WRN 24; Ndayako v. Mohammed (2006) 17 NWLR (Pt.1009) 655, Kimday v. Military Governor, Gongola State (1998) 2 NWLR (Pt.77445; Arise v. Adetunbi (2011) All FWLR (Pt. 558) " Per HUSAINI, J.C.A. (P. 52, Paras. A-C) - read in context

9 13 ELECTION PETITION - PROOF OF NON-COMPLIANCE: Duty of a petitioner to prove non-compliance with the Electoral Act; how to prove non-compliance "Bearing in mind that the allegation before the Tribunal among others is one of non-compliance in terms of want of accreditation of voters in the 19 polling units to which the petition relates, It behoves OF the petitioners to lead evidence and prove non-compliance by tendering in evidence any document as would establish the fact that non-compliance with the principle of the Act did take place and lead further evidence of witnesses who will testify to facts that the illegality or unlawfulness substantially affected the result of the election. In other words oral as well as documentary evidence needed to be called and relied upon to establish a case of unlawfulness, as in the case of non-accreditation of voters relative to certain polling units. See: Abubakar v. Yar'adua (supra) at page 163 where the apex court held: "But Forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and the recording of the voters; wrong doings or irregularities which affected substantially the result of the election." The Supreme Court much later in the year 2013 still spoke in the same manner in the case of ACN v. Nyako (2013) All FWLR (Pt. 686) 224, , when it held thus: "It is the failure of the Appellant to call a witness to provide the necessary nexus between the documentary evidence tendered and the particular purpose or aspect of the case of the party tendering same that makes the difference between the notion of dumping Exhibit on the one hand, and tendering bulk exhibit on the other. See the case of Buhari v. INEC (2008) 12 SC 1. Contrary to the submission of the learned Appellant's Counsel, in the instant case at hand, none of the documents tendered were linked to the oral evidence as rightly submitted by the 1st and 2nd respondent's learned Counsel. The Appellant Counsel it a duty to have related witnesses on non-compliance to the documentary evidence tendered. This they had failed to do"from the above cited cases, it is beyond argument as it is the accepted practice that for a party who rely on documentary evidence to prove acts of unlawfulness to succeed must lead oral evidence to link aspect of the document where, as in this case, the unlawfulness was alleged." Per HUSAINI, J.C.A. (Pp , Paras. D-D) - read in context

10 14 ELECTION PETITION - ALLEGATION OF CRIME: What the court must do where an election petition contains allegations of crime "... Assuming that those various paragraphs of the Petition have elements of criminality embedded in them, then upon the principle of severance of criminal averment in pleadings, the Court is empowered to sever the said criminal averments and deal with the petition on the basis of the surviving averments. See: Omoboriowo v. Ajasin (1981) - (1990) LRECN 332; Nwobodo v. Onoh ( ) LRECN 369; Torti v. Ukpat (1981) -(1990) LRCN 221; Fayemi v. Oni (2011) All FWLR (Pt. 554) 1 57; Ogboru v. Uduaghan (2010) LPELR-398(CA)." Per HUSAINI, J.C.A. (Pp , Paras. F- B) - read in context

11 SAIDU TANKO HUSAINI, J.C.A. (Delivering the Leading Judgment): The Independent National Electoral Commission, the 3rd Respondent is the body with the statutory responsibility to conduct Elections in Nigeria. On the 28th March, 2015 the 3rd respondent conducted elections into the National Assembly for Gashaka, Kurmi and Sardauna Federal Constituency. The 4th Respondent was a candidate in that Election having been sponsored by the Appellant, in the said Election. The 1st respondent was sponsored by the 2nd respondent in the said election. Two other candidates participated in the election in the person of Denbe Musa Tamnyi, sponsored by the Labour Party and Musa Usman who contested the Election on the platform of the Social Democratic Party, SDP. At the conclusion of the exercise, the 4th respondent was declared and returned by the 3rd respondent as the winner of the said Election having polled a total of 37,167 votes. The 1st and 2nd respondents dissatisfied with the declaration of the 4th respondent as the candidate with the majority of lawful votes cast, presented a Petition on the 18/4/2015 to the National/State Houses of Assembly Election Tribunal 1

12 sitting in Jalingo, Taraba State in which the Independent National Electoral Commission (INEC), the Peoples Democratic Party (PDP) and Dan Asabe C. Hosea were 1st, 2nd and 3rd respondents respectively. The Petition is predicated on 2(two) Grounds as set out at paragraphs 10 and 11 of the Petition thus: "10. Your petitioners state that the ground for the presentation of this petition is that election conducted in nineteen (19) polling units and in seven (7) wards of Kurmi and Sardauna Local Government Areas within the Federal Constituency was invalid by reason of non-compliance with the provisions of the Electoral Act, 2010 (as amended). 11. The Petitioners state that the 3rd Respondent who was declared duly elected by the 1st Respondent as an elected member of the House of Representatives for Gashaka, Kurmi and Sardauna Federal Constituency was not duly elected by Majority of lawful votes cast at the election for Gashaka, kurmi and Sardauna Federal Constituency in the National Assembly of the Federation." Upon presentation of petition, the petitioners also sought the reliefs in terms of the prayers couched at paragraph 42(1)-(9) thus: "42.

13 WHEREOF your Petitioners state that it may be determined by this Honourable Tribunal that the Petitioners are entitled to Declarations or Orders of the Tribunal in the following terms: 1. A DECLARATION of this Honourable Tribunal that the Election Conducted by the 1st Respondent in Nineteen (19) Polling Units in Kurmi and Sardauna Local Government Areas of the Constituency for Gashaka, Kurmi and Sardauna Federal Constituency were conducted in non compliance with the Provisions of the Electoral Act 2010 (as amended). 2. A DECLARATION of this Honourable Tribunal that the Election conducted and return of votes made by the 1st Respondent in Nineteen (19) Polling Units in Kurmi and Sardauna Local Government Areas are null and void. 3. AN ORDER of the Honourable Tribunal deducting the void votes credited to the 1st Petitioner and the 3rd Respondent by the 1st Respondent in its declaration of 30th March, 2015 wherein the 1st Respondent declared the 3rd Respondent a duly elected Member of the House of Representatives for Gashaka, Kurmi and Sardauna Federal Constituency. 4. AN ORDER of the Honourable Tribunal setting aside the declaration made by the 3

14 1st Respondent on 30th March, 2015 declaring the 3rd Respondent as a duly elected Member of the House of Representatives for Gashaka, Kurmi and Sardauna Constituency. 5. AN ORDER of the Honourable Tribunal setting aside the Certificate of return issued to the Respondent by the 1st Respondent as a duly elected Member of the House of Representatives for Gashaka, Kurmi and Sardauna Federal Constituency. 6. AN ORDER of the Honourable Tribunal that the 1st Petitioner won a majority of the lawful and valid votes cast in the election conducted by the 1st Respondent on 28th March, 2015 for Gashaka, Kurmi and Sardauna Federal Constituency. 7. AN ORDER of the Honourable Tribunal directing the 1st Respondents to issue a Certificate of Return to the 1st Petitioner as a duly elected Member of the House of Representatives for Gashaka, Kurmi and Sardauna Federal Constituency. OR IN ALTERNATIVE TO THE DECLARATION OF THE 1ST PETITIONER AS A DULY ELECTED MEMBER OF THE HOUSE OF REPRESENTATIVES; 8. AN ORDER of this Honourable Tribunal that the Election into the House of Representatives for Gashaka, Kurmi and Sardauna Federal Constituency is 4

15 inconclusive as the number of registered voters in the polling Units where noncompliance occurred is more than the margin of votes between the 1st Petitioner and the 3rd Respondent. 9. AN ORDER of the Honourable Tribunal directing that Election be conducted by the 1st Respondent in the Nineteen (19) Polling Units where the non compliance have occurred and the Result of the Election in the Nineteen (19) Polling Units be added to the total votes of the parties in determining the winner of the Election under contest." The Petition of the 1st and 2nd respondents were served on the appellant and in its Reply to the petition filed a list of objections to votes credited to the 1st and 2nd respondents and contend that the 4th Respondent won a majority of lawful votes if those votes credited to the 1st and 2nd respondent were deducted. The matter went into full hearing after the completion of all prehearing issues during prehearing session. Counsel at the close of evidence filed and exchanged written addresses. The Tribunal at the conclusion of hearing and consideration of Counsel's written addresses, in its Judgment delivered on the 14th October,

16 found in favour of the 1st and 2nd respondents thereby nullifying the election in the 19 polling units in Kurmi and Sardauna Local Government Areas on account of failure of accreditation of voters. The Appellant, dissatisfied with the Judgment of the Tribunal, lodged appeal to this Court on the 30th October, 2015 vide the Notice of Appeal dated 29th October, See: Vol. II of the printed record of Appeal at pages Records of Appeal were transmitted to this Court in 2(two) volumes (1 & 2) on the 7th November, 2015 and thereafter, a supplementary record of appeal was compiled and transmitted to this Court on the 11th November, Learned Counsel have filed and exchanged their respective briefs of argument. The brief of argument for the appellant by which 9(Nine) issues were distilled from 15 grounds dated 9th November, 2015 was filed on the 12th November, Issues formulated by the appellant for determination in this Appeal are to this effect: "Issue One: Whether the Tribunal had the jurisdiction to have entertained the Petition that was abandoned by the 1st and 2nd Respondents. (GROUND 1). Issue Two: Whether the 6

17 Petition as presented at the Tribunal is competent in view of the fact that the grounds in support of the Petition are inconsistent with the fact and reliefs sought and the aforesaid grounds are not in conformity with Section 138(1)(b) and (c) of the Electoral Act, 2010 as amended. (GROUNDS 11 and 13). Issue Three: Whether the Tribunal was right to have entertained and granted an application for the recertification of Exhibit 1-44 and at the time it was presented or at all. (GROUNDS 2 and 3). Issues Four: Whether Exhibit 1-44 and were properly admitted, acted and relied upon by the Tribunal. (GROUNDS 4 and 5) Issue Five: Whether the Tribunal was right to have relied on the testimonies of PW2 - PW19 who claimed to be registered voters but failed to produce their voters' card at the trial. (GROUND 6) Issue Six: Whether the 1st, 2nd Respondents proved non accreditation and allocation of votes in 19 polling units to justify the nullification of the election in 19 units in Kurmi and Sardauna Local Government Areas of Taraba State. (GROUND 10, 12 AND 15) Issue Seven: Whether the Tribunal was right in allowing the witness of 7

18 the 1st and 2nd Respondent to examine documents already tendered pursuant to Paragraph 41(3) of the First Schedule to the Electoral Act, 2010 as amended. (GROUND 7). Issue Eight: Were the allegations against the 19 Presiding Officers in this Petition criminal in nature? If yes, is the non joinder of the 19 Presiding Officers in this petition fatal and renders the paragraphs of the Petition where the said allegations were made incompetent. (GROUND 8) Issue Nine: whether the Tribunal failed in its duty to properly evaluate evidence presented before it by the parties and draw necessary inference therefrom. (GROUND 1)." For the 1st and 2nd respondents the brief filed on their behalf is dated the 23rd November, 2015 and filed same date wherein the respondents at page 4-5 of their brief similarly distilled 9 issues for determination of this appeal thus: "1. WHETHER from the Record of Appeal the Petition was abandoned and the Tribunal robbed of jurisdiction to have heard and determined the Petition? (Distilled from ground 1 of the Appellant's Grounds of Appeal) 2. WHETHER in view of the two (2) grounds for the presentation of the Petition and

19 the fact pleaded in support of the Grounds of the Petition, the Petition was incompetent? (Distilled from ground 11 and 13 of the Appellants Grounds of Appeal). 3. WHETHER the Tribunal exercised its discretion judicially and judiciously in granting the application of the 1st and 2nd Respondents for the recertification of Exhibit 1-44 and before relying on them in the final Judgment? (Distilled from ground 2 and 3 of the Appellant's Grounds of Appeal) 4. WHETHER Exhibits 1-44 and were legally inadmissible documents at the Tribunal admitted them in evidence? (Distilled from grounds 4 and 5 of the Appellant's grounds of Appeal) 5. WHETHER the Tribunal properly relied on the evidence of the PW2 - Pw19 on the allegation of nonaccreditation on the voters register? (Distilled from ground 6 of the Appellant's Grounds of Appeal). 6. WHETHER from the pleadings and the evidence on record the Honourable Tribunal rightly nullified Election in the 19 Polling Units on account that the allegation of non-accreditation was proved by the 1st and 2nd Respondents? (Distilled from grounds 10, 12 and 15 of the Appellant's Grounds of Appeal) 9

20 7. WHETHER the Tribunal was right in allowing some witnesses of the 1st and 2nd Respondents to tie documents already in evidence as exhibits with their deposition adopted by them? (Distilled from ground 7 of the Appellant's Grounds of Appeal). 8. WHETHER the Tribunal decided rightly that the allegation of non-compliance alleged in the Petition did not constitute criminal allegation and therefore the Presiding Officer of the Polling Units are not necessary parties? (Distilled from ground 8 of the Appellant's Grounds of Appeal). 9. WHETHER the Tribunal properly discharged the primary duty of evaluating the pieces of oral documentary evidence adduced by the Parties and correctly ascribed probative value to them? (Distilled from grounds 14 of the Appellant's Grounds of Appeal)." No issue was formulated from ground 9 of the Grounds of Appeal either by the appellant or respondents in their respective briefs. The said ground is deemed abandoned and same must be struck out without much ado. The Appellant further filed a Reply brief of argument on 27th November, 2015 on point of law as their reaction to the brief filed by the 1st and 2nd 10

21 Respondents. No brief of argument was filed for and on behalf of the 3rd and 4th Respondents in this appeal. On the 30th November, 2015 when the appeal came up for hearing, Mr. George E. Ukaegbu of Counsel, by the application made viva voce sought leave to consolidate two appeals. Since the application was not opposed by counsel on the other side his request to consolidate the two appeals was granted without much ado hence Appeals Nos. CA/YL/EPT/TRS/HR/101/2015 and CA/YL/EPT/TRS/HR/102/2015 having been consolidated were taken and argued together on 30/11/2015 as consolidated Appeals. The order for consolidation having been made, F. K. Idepefo of Counsel, at the mention of Appeal case No. CA/EPT/TRS/HW/102/2015 indicated his intention to raise objection to grounds 1, 2 and 3 of the appellant's Ground of Appeal and issues distilled together with arguments canvassed thereto. Counsel had earlier served a Notice of Preliminary Objection to that effect. The Notice dated the 27th November, 2015 and filed on the 28th November, 2015 raised the following 3 (three) Grounds of Objections, namely: 1. Grounds 1 of the Appellant's Grounds of Appeal and issue 11

22 No. 1 formulated thereon are incompetent as Grounds 1 of the Grounds of Appeal relates to an issue not raised before the Tribunal. 2. Grounds 2 of the Appellant's Grounds of Appeal and issue No. 3 distilled thereon are incompetent as Grounds 2 and 3 of the Appellant's Grounds of Appeal relate to interlocutory decision of the Tribunal which was not appealed against within the period prescribed by statute. 3. Grounds 4 and 5 of the Appellant's Grounds of Appeal and issue No. 4 formulated thereon are incompetent as the issue of certification was not a life issue in the Judgment of the Tribunal and therefore argument on issue No. 4 constitutes an academic exercise. It is appropriate at this point to proceed and consider Counsel's argument on these preliminary issues and thereafter make a ruling on them preparatory to the main appeal being considered for Judgment should the need arise. The objection highlighted under Ground II of the Notice of objection is basically that Ground 1 of the Appellant's Ground of Appeal and the issues raised thereto were incompetent, the same not having been raised before the Tribunal. The question covered by this 12

23 objection is whether or not prehearing session fees had been paid by the petitioners to activate the jurisdiction of the Tribunal to hear the petition. Mr. Idepefo of learned Counsel has referred us to paragraphs 4.08 to 4.12 of the brief of argument for the 1st and 2nd respondent at pages 7-8 to which he said incorporated all the submissions on this point. We have considered those submissions of Counsel. Stated briefly, the submission is that an objection cannot be taken for the first time in this court on the failure of the petitioner to pay filing fees relative to his application for issuance of pre-hearing Notice. Such objection as it is argued, should have been taken at the Tribunal and since it is being raised in this court for the first time this court should be guided by the provisions of Section 23 of the Court of Appeal Act, It is further argued that the court would only exercise that power to entertain the question where it is established that the lower court or Tribunal (as in this case) has jurisdiction to entertain the matter since the jurisdiction of the Court of Appeal will be derived from the jurisdiction of the lower Court. 13

24 It is further argued that the petition to which this appeal relates having been filed on the 18th April, 2015 with the mandatory time line of 180 days to determine the Petition and any issue arising from it including issues of the payment of fees for pre-hearing session, that time period having now elapsed and the issue on non-payment was not so raised thereat, the issue can no longer be raised at this level of the Court of Appeal for the first time, the tribunal having lost jurisdiction over that question. It follows therefore, argued the Counsel, that the issue formulated not having emanated from the Judgment of the Tribunal, this court lack jurisdiction to entertain the issue. Learned Counsel cited a number of judicial authorities including the decision in Shettima & Anor v. Goni & Ors (2011) LPELR-417 (SC) 56; Ugba & Ors v. Suswam & Ors (2012) LPELR 9726 (SC); Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 342, ; Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1. It is argued in the alternative that it is the registry that is to be blamed if there is no endorsements stating on the record that fees had been paid upon the application being made for the

25 issuance of pre-hearing Notice. That the 1st and 2nd Respondents should not be punished for that error, relying on Ede v. Mba (2011) 18 NWLR (Pt. 1278) 236, The submission of Counsel on the Second Head of Objection is contained and incorporated at paragraphs of the 1st and 2nd respondents' brief of argument at pages wherein it is argued that Grounds 2 and 3 of the Appellants' Grounds of Appeal were incorporated and liable to be struck out so far as they relate to interlocutory decisions of the Tribunal delivered on 7th October, 2015 over which there was no appeal within the mandatory 21 days as set at Paragraph 6 of the Election Tribunal and Court Practice Directions, It is argued that the Notice of Appeal in this Appeal was filed on the 30th October, 2015 hence the appellant filed his appeal 24 days after the date of decision in the interlocutory matter and there being no leave of Court for extension of time to appeal, thereto then, Grounds 2 and 3 and issue (5) derived thereto were incompetent. The decision in Kalike v. PDP (2014) Vol. 238 LRCN 80, 110 was cited and relied on. The third and final Ground of Preliminary 15

26 Objection according to learned Counsel was incorporated and argued in their brief at paragraph 4.74 at page 22 wherein it was contended that Appellants' issue No. 4 in its brief was formulated out of Grounds 4 and 5 of the Appellant's Notice and Grounds of Appeal and that if issue No. 3 is resolved in favour of the 1st and 2nd Respondents issue No. 4 becomes an academic issue. In rounding up his argument on the Preliminary Objection, learned Counsel submitted that by the nature of the Objection taken which according to him is intrinsic to the point raised and canvassed in the brief of arguments, formal Notice was not required. He argued that a formal Notice of Preliminary Objection is only necessary where the Objection is capable of terminating the entire appeal. In this instant appeal he said, where the objection is meant to disable part of the appeal the requirement for a formal Notice was not necessary. Learned Counsel urged us therefore to strike out paragraphs 4.0 to 4.30 at pages 4-9 of the appellant's brief of argument and also all submissions made at paragraphs at pages of the appellant's brief and paragraphs at pages 16 to 16

27 20 of the same brief of argument. Chief Solo U. Akuma, SAN appeared for the Appellant in Appeal No. CA/YL/EPT/TRS/HR/102/2015. He would not accept that the Notice of the Preliminary Objection was competent. He argued that a Notice of Preliminary Objection is filed when the respondent seeks to terminate the appeal in limine. Where however a Respondent wants to challenge the competence of an issue in the appeal he is to file a Motion on Notice. It is argued by the learned silk that the document before the Court and filed on behalf of the 1st and 2nd respondents as Notice of Preliminary Objection was not a Motion on Notice there being no affidavit in support of same. He referred us to Order 10 Rule 1 of the Court of Appeal Rules to submit that the appellant or his Counsel is entitled to 3 days Notice. In reference to the Notice of Preliminary Objection again, he said that the process was filed on the 28/11/2015 and only served on the appellant on the 30/11/2015 i.e on the same day the appeal came up for hearing. He says that his time begins to run from 30/11/2015 when the process was served on him and not from the 28/11/2015 when the Notice was filed.

28 Learned Silk urged us to invoke Order 10 Rule 3 of the Court of Appeal Rules to refuse this Application as if it has not been heard. With respect to Grounds 1 and 3 in the Notice of Objection it is argued that the 1st and 2nd respondent never raised any preliminary Objection in those paragraphs mentioned in Respondents' brief of argument. What he said they did in those paragraphs was to argue the issue distilled by them in respect of Ground 1 of Appellant's ground and Grounds 4 and 5 of the appellant's Grounds contained in their Notice of Appeal. As regards the 2nd ground of Objection contained in the Notice of Preliminary Objection, it is argued that the 1st and 2nd respondents only presented what appeared to be a Notice of Preliminary Objection. What he says obtains, is that arguments on Preliminary Objection are given distinct place in the brief of argument and taken after which the main appeal is also taken. But strange enough as in this instant appeal, the alleged Preliminary objection is circumscribed in the main argument, to render same incompetent. He urged us to dismiss the Preliminary Objection. Messrs Olabode Makinde and Kanu Agabi, SAN 18

29 associated themselves with the submission made by Counsel to the Appellant on the issue of Preliminary Objection. RULING I have considered the argument and/or submissions of Counsel on those preliminary issues but permit me my Lords to first address the issue of sufficiency or otherwise of the Notice of Preliminary Objection served on the Appellant on the 30/11/2015, i.e the same day hearing in this appeal matter was billed to hold. Service of process of Court is a fundamental aspect in the adjudicative process without which the entire process can be set aside. Service of process is a pre-condition to the exercise of Jurisdiction by the Courts to which the process relates. Where therefore there is no service or there is a procedural fault in service, subsequent proceedings are a nullity. This is based on the principle of law that a party should know or be aware that there is a suit against him so that the party on the other side can prepare himself. See: Eimskip Ltd v. Exquisite Ind. (Nig.) Ltd (2003) 4 NWLR (Pt.809) 88; Uchandu v. Ogbani (1999) 5 NWLR (Pt. 603) 337; Scott-Emuakpor v. Ukavbe (1975) 12 SC (reprint) 91. Happy enough the 19

30 complaint here is not one for total lack of service of process of Court but one of sufficiency of time within which the process was served vis a vis the date fixed for hearing. Order 10 Rule 1 of the Rules of this Court is the relevant legislation on the issue on hand. The rules require the person or respondent who intends to take preliminary objection to the hearing of appeal to give the appellant three clear days Notice before the date set for the hearing of that appeal. This is fair enough. Such provisions are made to create level playing fields such that no party or person is taken unaware over the case he was called upon to answer in the courts. Appellant in this matter was only served with the Notice of Preliminary Objection on the 30/11/2015 which is the same day the appeal came up for hearing contrary to Order 10 Rule 1 of the Court of Appeal Rule, See: Nwaolisah v. Pascal (2011) LPELR-2115(SC). Counsel who appeared for him did not press for adjournment to secure the 3 days statutory Notice due to them rather, the learned silk was contented to see the Preliminary Objection being taken. That is not all. With all the emphasis at his command 20

31 he responded to arguments canvassed in support of the Preliminary objection. By this stance taken by the learned silk, he could no longer complain of the adequacy of time the Notice of objection was served on them. He is taken to have waived his right or entitlement to the 3 days notice. See: Auto Import Export v. Adebayo (2005) 19 NWLR (Pt. 959) 44. Eze v. Okechu (2002) 12 (Pt.11) 103; Ariori & Ors v. Elemo & Ors (1983) LPELR - 552SC). So the issue of adequacy of notice is no longer an issue. What I think is the issue now and where we should direct our attention is over the nature and character of the Preliminary Objection taken, the procedure for filing same and the whole purpose for filing of Preliminary Objection. A Notice of Preliminary Objection can be resorted to and employed so along, as it will terminate an action or appeal. But if the purpose is only to disable aspects of the case without killing it (so to say) then resort to the objection by way of Preliminary Objection is not the proper approach. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt.1225) 404 (SC); NDIC v. Oranu (2001) 18 NWLR (Pt.744) 1, 83; Shell Petroleum Dev. Co (Nig.) v. 21

32 Ojiowhor Monday Amadi (2011) LPELR-3204(SC); Nwaolisah v. Pascal (2011) LPELR-2115(SC). The proper approach in such circumstance will be to come by way of Motion on Notice seeking for an order striking out aspects of the case or appeal which is not competent. In this instant case, the objector is by his Notice of Preliminary Objection seeking to strike out Grounds 1, 2, 4 and 5 of the appellant's Grounds of Appeal on account of incompetence. By this procedure, the appeal still survives even if those grounds were struck out and for which reason I am of the view that the Preliminary Objection itself is not properly before us hence the same be and is hereby struck out. Now to the merit of the appeal. I have before now referred to issues as formulated by the respective parties in this appeal. Issues formulated by the Appellant and those of the 1st and 2nd Respondents in their respective briefs are similar in scope and content. I will adopt those issues formulated by the appellant in addressing this appeal. ISSUE NO. 1 Whether the Tribunal had the Jurisdiction to have entertained the petition that was abandoned by the 1st and 2nd Respondents (Ground 22

33 1) In arguing issue 1 Counsel for the appellant alluded to Paragraph 18(1) and (3) of the 1st Schedule to the Electoral Act which require of the Petitioner and Respondent to apply for Pre-hearing Notice for the commencement of preliminary session, failing which Tribunal is at liberty to dismiss the petition by reason of Paragraph 18(4) of the 1st Schedule. It is contended that although the Petitioners had applied to the Tribunal on 3rd June, 2015 for issuance of pre-hearing Notice, there is nothing to show for it that the petitioner was assessed and he paid appropriate fees in order to activate the Jurisdiction of the Tribunal. Counsel cited in his brief of argument, the decision in G.E. International Operation Ltd v. Q-Oil & Gas Service (2015)1 NWLR (Pt. 1440) 244 to emphasize on the importance of payment of filing fees. Relying also on Ugba v. PDP (2013) 4 NWLR (Pt. 1345) 486, 492, Counsel maintained that an application for issuance of Hearing Notice can be made by "mere" or ordinary letter or by way of Motion but argued that where the application is made by Motion, it is incumbent on the petitioner or the person presenting the Motion to submit the

34 Application (Motion) for assessment and pay appropriate filing fees. He argued that in this case appropriate filing fees not having been paid, it means that the Petitioners have failed to activate the Jurisdiction of the Tribunal and the Tribunal cannot act. He cited and relied on Philko Ltd v. WEMA Bank Plc (2012) All FWLR (Pt. 631) 1487 and Olusona v. Agedun (2012) All FWLR (Pt. 649) Learned Appellant's Counsel in his Submission emphasized on the necessity of payment of filing fees and referred us to the Electoral Act at Paragraph 37(4) of the 1st Schedule and Order 55 Rule 1 of the Federal High Court (Civil procedure) Rule, 2009 which he said were couched in mandatory language. Citing further the case of A.S.T.C. v. Quorum Consortium Ltd (Supra) he argued that non-payment of filing fees render the application invalid and the tribunal is robbed of Jurisdiction to entertain and determine the petition so far as the condition precedent to adjudication had not been fulfilled. He cited Olaniyonu v. Awah (1989) 5 NWLR (Pt.122) 493; Ezeani v. Okosi (1999) 3 NWLR (Pt. 596) 623; Emesin v. Nwachukwu (1999) 3 NWLR (Pt.596) 590; Okpoido v. Uduikong (1999) 5 24

35 NWLR (pt. 604) 595. He argued further that so far as appropriate filing fees were not paid for, all or any subsequent proceedings or further steps in terms of hearing of the Petition leading to Judgment being delivered were all a nullity. Decisions in Omale v. Safadoh (2013) LPELR (CA); Provisional Council, Ogun State University v. Iyabode Alari Makinde (1991) 2 NWLR (Pt. 175) 572 and Aja v. Okoro (1991) 7 NWLR (Pt.203) 260 were cited and relied on. On the strength of provisions of Paragraph 18(1), (3) and (4) of the 1st Schedule he further submit that the Petition has been abandoned and the Tribunal ought to have dismissed same relying on Olafemi v. INEC (2009) 25 WRN 169, 186; Okereke v. Yar'adua (2008) All FWLR (Pt. 430) 626. He urged us to so hold. There is the submission made to the contrary by Counsel for the respondents who argued that it was inconceivable in an election Petition or other related matters the Petitioner can be in default in the payment of filing fees considering that the petitioner was required by law to make a deposit N400, to cover all expenses the petitioner would incur in the course of the election petition and

36 this, it was argued, the petitioners (1st and 2nd respondents) had done. He said it was for the appellant to rebut the presumptions that the 1st and 2nd respondents have made all requisite payments. It was argued in any case that this question of non-payment of filing fees should have been raised before now at the Tribunal and that issue not having been raised at that level, the Court of Appeal will only exercise its powers under Section 23 of the Court of Appeal Act 2004 if the Court is satisfied that the lower Court or Tribunal has jurisdiction. In this instance it was argued, that the time allotted to Tribunal to hear election petition and other related matters within the space of 180 days having now elapsed since 16/10/2015 neither the Tribunal nor this Court has jurisdiction to entertain the issue of non-filing of fees raised for the first time in this Court. The case of Shettima & Anor v. Goni (2011) LPELR 417 (SC) 56; Ugba v. Suswam (2012) LPELR (SC); Agagu v. Mimiko (2009) 7 NWLR (Pt.1140) 332, ; Ngige v. Obi (2006) 14 NWLR (Pt.999) 1 were cited and relied on. It is argued that since the issue of filing of fees did not emanate

37 from the decision of the trial Tribunal, this Court lacked Jurisdiction to entertain same hence the Court is urged to strike out Ground 1 of the Appellant's Ground of Appeal and the issue arising from it. The argument canvassed in the alternative by Counsel is to the effect that the registry was in error for failing to notify the Appellant that filing fees for the application for pre-hearing session was deducted from monies deposited by Respondents to prosecute the petition, that the failure was the fault of the registry not that of the respondent hence the latter cannot be punished for it. Citing in his brief decision in: Ede v. MBA (2011) 18 NWLR (Pt.1278) 236, ; Famfa Oil Ltd v. Attorney General of the Federation (2003) 18 NWLR (Pt.852) 453, ; CBN v. Adedeji (2004) 13 NWLR (Pt.890) 226, 244. In their Reply brief on point of law, Counsel for the appellant at paragraphs at pages 2-3 submitted that the deposit of certain money by Petitioners as security for cost was not meant to obviate the duty on the Petitioner to pay fees for filing of processes. He argued that the requirement for payment of filing fees and those for security 27