ANDREW & ANOR V INEC & ORS

ANDREW & ANOR V INEC & ORS


IN THE COURT OF APPEAL
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN

ON FRIDAY, 7TH APRIL 2017


Appeal No: CA/B/EPT/EDS/GOV/80/2017

CITATION:

Before Their Lordships:

JIMI OLUKAYODE BADA, JCA

MOORE ASEIMO A. ADUMEIN, JCA

MUDASHIRU NASIRU ONIYANGI, JCA


BETWEEN
PASTOR IZE-IYAMU OSAGIE ANDREW
PEOPLES DEMOCRATIC PARTY
(APPELLANTS)

AND

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
GODWIN ENOGHEGHASE OBASEKI
ALL PROGRESSIVE CONGRESS (APC)
(RESPONDENTS)


PRONOUNCEMENT


A. APPEAL
1. Leave to Appeal – The two types of appeal and when leave to appeal is required as provided by the law
Circumstances when leave of Court must be sought and obtained to file an appeal and effect of failure to obtain same

In order to determine the first question on whether or not the Appellants needed leave to appeal, the provision of S.242(1) of the Constitution has to be considered along with ruling of the lower Tribunal appealed against. It is not in dispute between parties that the ruling appealed against is an interlocutory one. The Constitution distinctively provides for two types of appeal. See S. 241 and S. 242 of the 1999 Constitution of the Federal Republic of Nigeria. The classifications are –

(a) Appeal as of Right under S. 241(1) of the 1999 Constitution and appeal with leave of the High Court, Federal High Court or the Court of Appeal under S. 242(1) of the Constitution. Let me quickly put on record that it is not in respect of all interlocutory appeal that leave of Court is required. Again there is another classification. They are:

(1) Grounds of appeal which are purely and simply on point of law requires no leave;
(2) Grounds of appeal on fact requires leave of the lower Court or the Court of Appeal;
(3) Grounds of appeal on mix law and fact requires leave of the lower Court or the Court of Appeal.
It is trite that where leave is required and such leave is not sought and obtain, the appeal would be rendered incompetent. See the following cases of Arugu V. R.S.I.E.C (2011) ALL FWLR (PT. 602) 1706; Garuba V. Omokhodion (2011) ALL FWLR (PT. 596) 404; FBN PLC V. T.S.A. IND. LTD. (2010) 15 NWLR (PT. 1216) 247. Per ONIYANGI, JCA. read in context

2. Grounds of Appeal – Types of ground of appeal and when leave of appeal is required
Guiding principles in determining whether a ground of appeal is that of law, fact(s) or mixed law and facts

The next pertinent question is when is an interlocutory ground of appeal on fact, mixed law and fact and of law. As I said before, where an appeal is against an interlocutory decision of a Court and it raises a question of fact or mixed law and facts, leave of Court is required. Where an appeal is as of right, it requires no leave of Court. Where the decision appealed against is either interlocutory or final provided the ground of appeal involved a question of law alone, no leave is required. See the following cases of F.G.N. V. A.I.C. LTD. (2006) 4 NWLR (PT. 970) 337; PDP V. K.S.I.E.C (2006) 3 NWLR (PT. 968) 565; Alamieyeseigha V. CJN (2005) 1 NWLR (PT. 906) 60 and Maduabuchukwu V. Maduabuchukwu (2006) 10 NWLR (PT. 989) 476.

In order to determine whether a decision is final or interlocutory, it must be determined whether or not the decision finally disposes the right of the parties to the suit. Where it finally disposes the right of the parties, it is a final decision. But where it does not then, the ruling is an interlocutory decision. Where fact are settled as admitted, the appeal is on ground of law. See Ikem V. Nezianya (2002) FWLR (PT. 99) 1088 at 1098.

Where the complaint is on evaluation of evidence before application of law, that would constitute a ground of mix law and fact. See Olanrewaju & Anor. V. C.O.P. (2002) ALL FWLR (Pt.92) 1697 at 105; Thor Ltd. V. FCMB Ltd. (2002) ALL FWLR (Pt. 95) 279 at 287. Finding of the Court based on evidence is purely a ground of fact. See Union Bank Plc & Anor. V. Alhaji A. Ishola 2001) ALL FWLR (PT. 81) 1868 at 1885.

A ground of law is that which tend to challenge or reveal the misunderstanding by the lower Court of law or misapplication of law to fact proved. See UKACHUKWU & SONS LTD. & ANOR. V. OKEKE & ANOR. (2001) ALL FWLR (PT. 71) 1791 at 1802.

Where a judgment is a nullity, given without or touching on jurisdiction is a ground of law. See Union Bank Of Nigeria Plc V. Ekulo Farms Ltd. & Anor (2001) ALL FWLR (PT. 67) 1019 at 1032-1033. Per ONIYANGI, JCA. read in context

3. Grounds of Appeal – How a ground of appeal challenging the interpretation of a statute is a ground of law
Whether a ground of appeal challenging the interpretation of a statute is a ground of law

It is trite that a ground of appeal challenging the correctness of the interpretation given by a Court of law to the provision of a Statute or Rule of Court as in the subject matter of this appeal is a ground of law. See the case of Continental Trust Bank Ltd. & Ors. V. Otunba Balogun & Ors. (2003) ALL FWLR (PT. 162) 1908 at 1920; Medical and Dental Practitioners Disciplinary Tribunal V. Dr. John E.M. Okonkwo (2001) ALL FWLR (PT. 44) 542 at 573-574. Per ONIYANGI, JCA. read in context

4. Cross-Appeal – The meaning of cross-appeal and how it arises
Nature of a cross-appeal and how it arises

The term cross appeal, if properly examined from its function, and the word “cross” which is an adjective qualifying the word “appeal” connotes a demand or a proceeding connected in the subject matter but opposite or contradictory in purpose or object. See Black Law Dictionary 6th Edition page 375. It therefore suffice to say that a cross appeal is the means by which a Respondent who is dissatisfied with the decision of the Court below to have the said decision vide a notice of cross appeal varied or affirmed on other grounds. See the cases of LCC V. AJAYI (1970) 1 ANLR 293 at 298; American Cynamid Co . V . Vitality Pharmaceuticals Ltd. (1991) 2 NWLR (PT. 171) 15 at 31; Alhaji Mohammed V. Alhaji Abdulkadir & Ors. (2006) ALL FWLR (PT. 332) 1542 at 1550-1555.

Pertinent to the foregoing is the fact that a cross appeal arises where both parties are dissatisfied with the judgment of the Court below (underline is mine). See Milad Benue State & Ors. V. Ulegede & Ors. (2001) FWLR (Pt. 78) 1268 at 1291; Chief Ogolo V. Chief Fubara (2003) FWLR (PT. 169) 1285 at 1309. Per ONIYANGI, JCA. read in context

B. ELECTION PETITION
5. Computation of Time – The time limit placed on the petitioner to prove his case as provided by the law and effect
Whether the provisions of the Interpretation Act is applicable as regards computation of time in an election petition

PARAGRAPH 41(10) 1ST SCHEDULE TO THE ELECTORAL ACT 2010:

“The Petitioner proving his case shall have not more than 14 days to do so and each of the Respondents shall have not more than 10 days to present its defence.”

Bearing in mind the question posed hereinbefore, this provision in my understanding prescribed the time allotted to each party in the interplay in an election petition to prove its case. The use of the word shall in the said provision makes the time sacrosanct, mandatory and limits the parties to the number of days therein provided. This provision has received a lot of judicial pronouncements. The effect of such provision is that each party would be limited to the prescribed time in presenting its case before the Tribunal. Election petition matters are described as “sui generis” that is to say that they are in a class of their own. Because of this “sui generis” nature of election petition matters in which time is of essence, i.e. the provision of Paragraph 41(10) of the 1st Schedule prescribing time for respective party to proof their case in an election petition, and the stand of the apex Court and this Court in a legion of decided cases on the interpretation of the Practice Direction vis-a-vis the Interpretation Act, the provision of the Interpretation Act on computation of time shall not apply to the requirement of time by the Practice Direction. The effect of the time prescribed by the said Schedule is that the petitioners are limited and strictly confined to the time provided for the proof of their petition. That provision limits the doing of any act in presenting and proving the case of parties therein. Therefore any action done outside that time prescribed would be a nullity. See PDP V. INEC (2014) 12 NWLR (PT. 1437) 1437 525 at 553-554; Udenwa V. Uzodinma (2013) 5 NWLR (PT. 1346) 94; ANPP V. ALHAJI Mohammed Goni & 4 Ors. & Alhaji K. Shettima V. Alhaji Mohammed Goni & 4 Ors (2012) 5 NWLR (PT. 1298) 147, 180; Ugba V. Suswan (2013) 4 NWLR (PT. 1345) 427, 458; Akpamudoeiye V. Akpabio (2013) 7 NWLR (PT. 1354) 485 and Amad V. INEC (2013) 4 NWLR (PT. 1345) 595. Per ONIYANGI, JCA. read in context

6. Time Frame – When the time prescribed by Paragraph 41(10) of the 1st Schedule to the Electoral Act begins to run
When does time as provided by Paragraph 41(10) of the 1st Schedule to the Electoral Act begin to run

In answering the second leg of the question which is on whether the Tribunal was right when it took into account the period for ballot recount in computing the time allotted to the Petitioner to conduct their case. Again considering the purport of Paragraph 41(10) of the 1st Schedule to the Electoral Act 2010, which suggests that whatever any party desires to do in proving its case should and must be done within that time frame. The counting of ballot paper which is geared towards the prove of the averments, allegation or complaints in the petition are to be done within the time provided by the Schedule for prove of the petition by the Appellants. Once a party commences the prove of his case in an election petition trial the time prescribed by Paragraph 41(10) of the 1st Schedule to the Electoral Act would start to run. Ipso facto therefore, at the expiration of such time, the party would have no time at its disposal to do anything in proof of his case. Therefore, it would not be a product of any reason to suggest that the time spent for the recounting which is part of the desire and effort of the Appellants to prove their petition be deducted from the 14 days they are entitled to under Paragraph 41(10) of the 1st Schedule to the Electoral Act. Per ONIYANGI, JCA. read in context

7. Appeal Arising from Election Petition – The law that regulates filing appeals from Election Tribunal
The law regulating appeals from election petition tribunal

Upon a careful reading of the arguments for and against the provisions of Paragraph 6 of Election Tribunal and Court Practice Direction 2010 and S. 24(2)(a) of the Court of Appeal Act, it dawned on me, that this cross-appeal which sprang up from the interlocutory decision of the Edo State Governorship Election Tribunal is governed by the Electoral Act and the Practice Direction. Election petition case being described as “sui generis” being in a class of its own, has its own law and rules, I have no hesitation in agreeing with the learned senior counsel representing the 3rd Respondent/Cross-Appellant that the law regulating appeal from Election Tribunals as in the instant appeal is the Electoral Act 2010 as amended and the Practice Direction and the Schedule thereto. Therefore the notion or conception that appeals from the Governorship Election Tribunal as in the instance appeal is governed by S.24(2)(a) of the Court of Appeal Act 2016 is erroneous and should not be allowed to breath the air of continued existence. The space craft conveying the submission is strange and should not be allowed to land in the planet of this instant appeal. The decided authorities cited by the objector, 1st and 2nd Appellant/Cross Respondent does not support their contention. Rather, it is like signing a death warrant. It is self damaging. In other words, it supports the stand and contention of the 3rd Respondent/Cross Appellant. I therefore rely on the two cases which are – Oguma V. I.B.W.A. (1988) 1 NWLR (PT. 73) 568 at 682; Obo-Bassey V. Egbai (2010) ALL FWLR (PT. 521) 1576 at 1585, in concluding that it is the provision of Paragraph 6 of the Election Tribunal and Court Practice Direction 2010 and not Section 24 (2)(a) of the Court of Appeal Act 2016 that regulates the time for filing appeals against either an interlocutory or final decisions of an Election Tribunal. Per ONIYANGI, JCA. read in context


LEAD JUDGMENT DELIVERED BY ONIYANGI, JCA


This is an appeal against the interlocutory ruling of the Governorship Election Petition Tribunal for Edo State sitting in Benin and delivered on the 10th day of February 2017 wherein the Tribunal refused the Petitioners application for an order for continuation of the counting of the ballot papers until the counting is concluded. (see page 1432-1437 of vol.2 of the record).

The summary of the fact leading to this appeal as can be gleaned from record of appeal is that, on the 7th day of February 2017, the Petitioners before the lower Tribunal proceeded with a subpoenaed witness invited by a subpoena duces tecum in person of Ahmed Suleiman an Admin Officer with INEC office, Benin. The said INEC staff delivered to the Tribunal Eight (8) bags of used ballot papers for Akoko – Edo, Egor, Etsako East and Etsako West Local Government Areas.

Just after delivering the 8 (Eight) bags of the said used ballot papers for Akoko Edo, Egor, Etsako West and Etsako East Local Government Areas, an oral application was made by the learned senior counsel representing the Petitioners that the ballot papers be recounted. In his words, he said thus:

“I apply that the ballot papers just brought in be recounted. In order to allay the fears of all parties. I apply that one counsel from each of the parties that are interested, 2 officials of INEC and the Secretary of the Tribunal or any officer of the Tribunal that is designated to count the ballot papers and come up with a schedule which will be certified by the Secretary of the Tribunal.”

Counsel from inner and outer bar representing the 1st, 2nd and 3rd Respondents respectively, vehemently opposed the application. In its considered ruling delivered on the 9th day of February 2017, the lower Tribunal overruled the respective objections and granted the application by the Appellants for recounting. (See pages 1420 to 1422 of the vol. 2 of the record of appeal). The recounting commenced in the Court room at about 3 and lasted till 10 p.m. of the 9th day of February 2017. On the 10th February 2017, the recounting continued and was halted by the Tribunal after refusing the application by the Appellants learned senior counsel for continuation of the recounting vide its ruling of 10th February 2017. See pages 1436-1437 of vol. 2 of the record of appeal. Against the said ruling refusing continuation of recount of the ballot papers on 10th February 2017 hence this appeal vide the notice of appeal dated 22nd February 2017 and filed on the 23rd February 2017. See P. 1449-1454 of vol. 2 of the record of appeal.

NOTICE OF APPEAL:

The Notice of Appeal has seven grounds. For purposes of better understanding, the grounds of appeal plus the particulars are herein under reproduced:

GROUNDS OF APPEAL:

(1) The Governorship Election Petition Tribunal for Edo State erred in law when by its ruling of 10th February, 2017 refused to allow the recounting of the ballot papers produced under subpoena duces tecum to be completed notwithstanding its earlier decision on the 9th day of February, 2017 in respect of the same ballot papers and in the same proceeding that “stopping the Petitioners from making an application for the recount of ballot papers which they gave adequate notice in their petition which was not adequately opposed by the Respondents will tantamount to setting them up… the application for recounting ballot papers is hereby granted.

PARTICULARS OF ERROR:

(i) By refusing to allow the recounting of the ballot papers to be completed, the Governorship Election Petition Tribunal denied the Petitioners their constitutional right of fair hearing.

(ii) The Governorship Election Petition Tribunal by refusing to allow the recounting of the ballot papers to be completed, acted inconsistently with, and in contradiction of its earlier order directing that the ballot paper produced by the Respondent pursuant to the subpoena duces tecum should be recounted.

(iii) By refusing to allow the recounting of the ballot to be completed or concluded, the Election Petition Tribunal wrongly frustrated its own order of recount and rendered it odious.

(2) The Governorship Election Petition Tribunal for Edo State erred in law when it held as follows:

“since the time allotted to the Petitioners who choose to make the application for recounting 2 days before their time elapsed, they should be contented with the consequences of bringing the application late”

and thereby proceeded to the wrong conclusion that the time for the recounting of ballot papers ordered by the Tribunal formed part of the time allotted for the conduct of the Petitioners’ case and that the recounting exercise could not be continued and completed outside the time allotted to the Petitioners for the conduct of the case.

PARTICULARS OF ERROR:

(i) By so holding, the Election Petition Tribunal failed to correctly appreciate and apply the correct position of the law with regard to the procedure for ballot recount.

(ii) The Election Petition Tribunal wrongly failed to appreciate that ballot recount in an election petition proceeding is an independent proceeding which cannot be taken into account in computing the time allowed to or spent by any of the parties.

(iii) The Election Petition Tribunal wrongly failed to follow correctly and fully the decision of the Court of Appeal in Eke vs. Enang (1999) 5 NWLR (PT. 602) 261 which was duly cited to it.

(3) The Governorship Election Petition Tribunal erred in law when it took into account the period for ballot recount in computing the time available to the Petitioners for the conduct of their case and thereby came to the wrong conclusion that the Petitioners had exhausted the time allotted to them for the conduct of their case before the recount of the ballot papers produced before the Election Petition Tribunal could be completed.

PARTICULARS OF ERROR:

(a) By so holding, the Election Petition Tribunal wrongly denied the Petitioners of their constitutional right of fair hearing.

(b) The Election Petition Tribunal wrongly relied on and applied the provisions of Paragraph 41(10) of the 1st Schedule of the Electoral Act 20 0 as amended.

(4) The Governorship Election Petition Tribunal erred in law when it held as follows:

“By Paragraph 41(10) of the 1st Schedule to the Electoral Act, the petitioner’s time has elapsed and the Tribunal has no power to extend it. Indeed, the Petitioners time has expired by 1.00 p.m. this afternoon … Paragraph 41(10) of the Schedule to the Electoral Act 2010 as amended gave the Petitioners 14 days to present their Petition 1.00 p.m. of today is the 14th day the Petitioners had to conclude presenting their case”

and thereby arrived at a wrong conclusion that the time statutorily allotted to the Petitioners for the conduct of their case had exhausted and that the counting of their ballot papers duly produced before the Tribunal could not be completed.

PARTICULARS OF ERROR:

(a) The Election Petition Tribunal wrongly interpreted the provision of Paragraphs 41(10) of the 1st Schedule to the Electoral Act 2010.

(b) The Election Petition Tribunal failed to correctly appreciate the nature of the proceeding for the recount of ballot papers in an election petition.

(5) The Honourable Tribunal erred in law when it assumed jurisdiction on the 0th day of February, 2017 to review its order for a recount of the ballot papers used for the election (the subject matter of the petition) made on the 9th day of February, 2017.

PARTICULARS OF ERROR:

(1) The tying of the order for a recount of the ballot papers to the time which the Appellants had left to present their case was a variation of the original order of the Tribunal which did not tie that event.

(2) Having made its order for the recount of the ballot papers on the 9th day of February 2017, the Honourable Tribunal became functus officio as far as that issue was concerned and therefore lacked the jurisdiction to vary the said order as it did on the 10th of February, 2017.

(6) The Honourable Tribunal erred in law when it approbated and reprobated at one and the same time, on the issue of the recounting of the ballot papers used at the Edo State Governorship election held on the 28th of September 2016, by ordering a recount of the said ballot papers in the aforementioned four Local Government Area on the one hand and stopping of/or truncating the recount of the said ballot papers on the second hand.

PARTICULARS OF ERROR:

It is in law not permissible for a Court/Tribunal to approbate and reprobate on the same issue.

(7) The Honourable Tribunal erred in law when it truncated the recount of the ballot papers used at the Edo State Governorship Election held on the 28th of September 2016, at Akoko-Edo, Etsako East, Etsako West and Egor Local Government Areas midway into the exercise.

PARTICULARS OF ERROR:

(1) A Court or Tribunal does not make an order in vain.

(2) The Honourable Tribunal frustrated or rendered useless its order for recount of the ballot papers when it stopped the exercise midstream.

RELIEF SOUGHT FROM THE COURT OF APPEAL:

(1) An Order setting aside the Order/Ruling of the Governorship Election Petition Tribunal for Edo State subject matter of this appeal dated the 10th day of February, 2017 in its entirety and in its place to enter an order directing that the recount of all the ballot papers already produced before the Election Petition Tribunal be completed forthwith and that the result of the recount be taken into account in the determination of the election petition.

(2) An order directing that the period utilized for the recount of ballot papers be discounted from the time allotted to the Petitioners for the conduct of their petition and that the discounted time/period be restored to the Petitioners for the conduct of their case and for the purpose of calling witnesses, tendering document in evidence or generally giving evidence as they may desire.

BRIEFS:

Respective counsel from inner and outer bar filed and exchanged their brief of argument and other processes they consider necessary for and against the appeal. I herein under give a list of processes filed by respective party.

APPELLANT –

(1) Appellants brief of argument dated and filed on 3/3/2017.
(2) Appellants reply brief to the 1st Respondent’s brief of argument dated and filed on the 10th March, 2017.
(3) Appellants reply brief to the 2nd Respondent’s brief of argument dated and filed on 10/3/2017.
(4) Appellants reply brief to the 3rd Respondent’s brief of argument dated and filed on 10th March, 2017.
(5) Notice of preliminary objection to the cross-appeal by the 3rd Respondent dated and filed on 10th March, 2017.
(6) 1st and 2nd Appellants/Cross-Respondents brief of argument dated and filed on 10th March, 2017.
(7) Appellants list of additional authorities dated and filed on 14th March, 2017.

1ST RESPONDENT –

(a) 1st Respondent’s brief of argument dated and filed on 7th March, 2017.
(b) Notice of Preliminary Objection by the 1st Respondent to the appeal by the Appellants dated and filed on the 7th day of March, 2017.

2ND RESPONDENT –

(a) 2nd Respondent’s brief of argument dated and filed on 7th March, 2017.
(b) 2nd Respondent’s notice of preliminary objection to the appeal by the Appellants dated and filed on 7th March, 2017.
(c) Two additional list of authorities dated and filed on 13th March, 2017 and 15th March, 2017 respectively.

3RD RESPONDENT –

(i) 3rd Respondent’s brief of argument with a list of authorities attached dated and filed on the 7th day of March, 2017.

(ii) Cross/Appellant’s brief of argument with a list of authorities attached dated and filed on 7th March, 2017.

(iii) Cross/Appellant’s reply brief and response to preliminary objection with a list of authorities dated and filed on 13th March, 2017.

(iv) Motion on notice to set aside the supplementary record of appeal transmitted on 10th March, 2017 on behalf of the Appellant.

On the 16th day of March, 2017, the following under listed counsel from inner and outer bar representing the Appellants, 1st, 2nd and 3rd Respondents respectively adopted their aforelisted processes. They are:

(1) Petitioner: – Yusuf Ali, SAN.

(2) 1st Respondent: – Onyinye Anumonye Esq.

(3) 2nd Respondent: – Chief Wole Olanipekun, OFR, SAN;

(4) 3rd Respondent: – Prince Lateef Fagbemi SAN.

Consequent upon the adoption of the respective briefs, the Appellant urged the court to allow the appeal and grant the reliefs sought as contained in the notice of appeal while the Respondents in their respective request prayed the court to decree the appeal as lacking in merit and substance and dismiss it.

ISSUES FOR DETERMINATION

The Appellant distilled two issues for determination in his adopted brief of argument. The 3rd Respondent adopted the issues distilled by the Appellant but the 1st and 2nd Respondents differ. I herein under reproduce the issue formulated by the Appellants and adopted by the 3rd Respondent and thereafter that of the 1st and 2nd Respondents.

APPELLANTS ISSUES FOR DETERMINATION

(1) Was the Election Petition Tribunal right when it refused to allow completion of the recount of the ballot papers it had earlier ordered? (Grounds 1, 2, 5, 6 and 7 of the Appellants Ground of Appeal)

(2) Was the Election Petition Tribunal right when it took into account the period for recount in computing the time allotted to the Petitioners to conduct their case, if not, whether the Petitioners are not entitled to have the said period utilized for ballot recount restored to them? (Grounds 3 and 4 of the Appellants ground of appeal)

1ST RESPONDENT’S ISSUE FOR DETERMINATION

(1) Whether the Tribunal was not right when it refuse to extend time for the Appellants to prove their case.

2ND RESPONDENT’S ISSUES FOR DETERMINATION

(i) Having regard to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act 2010 (as amended) including Paragraphs 41(10) of the First Schedule to the said Act as well as the background of the proceedings before the lower Tribunal, whether the said Tribunal was not right in refusing to extend the time statutorily allotted to the Petitioners to present their petition. (Distilled from grounds 1, 2, 5, 6 and 7 of the Appellants notice of appeal).

(ii) Considering the provisions of the Constitution and the Electoral Act relating to the time frame within which the Petitioners are to present and close their case, coupled with the antecedents of the petition at the lower Tribunal, whether the lower Tribunal was vested with the jurisdiction to discount the time spent by the Petitioners on recounting the ballots from the time statutorily allotted to them to present their case. (Distilled from grounds 3 and 4 of the Appellants notice of appeal).

I have read and compare the respective issues put forward by the Appellants and the 1st and 2nd Respondents vis-a-viz the subject matter of the appeal. To my mind, the issues are designed to achieve the same goal. Therefore, I have decided to adopt the two issues formulated by the Appellant for the determination of this appeal.

But before my consideration of the two issues, the preliminary objection by the respective parties as identified herein before has to be determined. I would treat them in the following order:

The preliminary objection by the 1st and 2nd Respondents would be taken together and after, that of the Appellants against the 3rd Respondent’s cross/appeal.

PRELIMINARY OBJECTION BY THE 1ST AND 2ND

RESPONDENTS

1ST RESPONDENT –

The ground of objection by the 1st Respondent is herein under reproduced:

(1) The appeal is incompetent for the reason that no leave of Court was sought and obtained to appeal against the decision as contained in the ruling of the Tribunal, delivered on the 10th of February 2017, which restated the pre-hearing report on the number of days for presentation of the cases of the respective parties.

(2) 2nd Respondent’s grounds of objection are:–
(a) The Appellants herein filed a petition before the lower Tribunal on 19th October, 2016;
(b) At paragraphs 753 of the said petition, the Appellants indicated that they would before or at the trial of the petition move the lower Tribunal for an order directing the recount of the ballot papers used in some of the polling units in Edo State in open Court.

(3) On 7th February 2017, shortly before the time allowed for the Appellants to prove their case under Paragraph 41(10) of the 1st Schedule to the Electoral Act effluxes, the Appellants made the said application for recount which was granted by the lower Tribunal despite the stout objection of all the Respondents to same.

(4) At the proceedings of the Court on 10th February 2017, the time as prescribed by Paragraph 41(10) of the 1st Schedule to the Electoral Act for the Appellants to prove their case lapsed and the application for extension of time for the recounting to be completed was refused.

(5) Further to this, the case of the Appellant was closed on the said 10th February, 2017.

(6) Thereafter, the 1st Respondent on 14th February 2017, opened its case and after tendering documents from the bar closed same on 20th February, 2017.

(7) The 2nd Respondents also opened its case on 23rd February, 2017 and closed same on 6th March, 2017.

(8) Arising from (1)-(7) above, the appeal is premised on issues that have become academic.

(9) Grounds 1, 2, 3, 4, 5, 6 and 7 in the Appellants notice of appeal raise issues of mixed law and fact and also query the lower Court’s exercise of discretion in refusing the Appellants application for extension of time.

(10) Further to (9) above, leave of this Honourable Court was not sought and obtained before the Appellants filed their notice and ground of appeal.

(11) The record of appeal compiled and transmitted by the Appellants does not contain a signed copy of the ruling of the lower Tribunal being appealed.

(12) The record of appeal does not vest jurisdiction on this Honourable Court.

(13) Arising from (1)-(13) above, this Honourable Court lacks the jurisdiction to entertain the Appellants appeal.

A careful reading of the two preliminary objections by the 1st and 2nd Respondents in the main is that, after the conclusion of prehearing, parties agreed on allotment of time pursuant to Paragraph 41(10) of the 1st Schedule to the Electoral Act 2010 (as amended). By this provision, the Petitioners/Appellants has 14 days to present his case while each of the Respondent has 10 days. The Appellants having been given the 14 days and after utilizing the said number of days in the way they chose time cannot be expended for them. Further to this is the argument that the ground of appeal which is predicated on the refusal of the Tribunal to allow continuation of further recount outside the 14 days prescribed under Paragraph 41(10) of the 1st Schedule to the Electoral Act is a ground of mixed law and fact and hence the Appellants required leave of this Court to register their interlocutory appeal in line with S.241(2)(c) of 1999 Constitution of the Federal Republic of Nigeria. Failure to do that as in the instant appeal renders the appeal incompetent and liable for striking out. They relied on the following cases among others.

(1st Respondent) – See Dana Impex Ltd. V. Awukam (2006) 3 NWLR (PT. 968) 544; SPDC Nigeria Ltd. V. Azukaeme (2010) LPELR 4955; Anugu V. R.S.I.E.C. (2011) ALL FWLR (PT. 602) 1706; Garuba V. Omokhodion (2011) ALL FWLR (PT. 596) 404; F.B.N. PLC V. T.S.A. Ind. Ltd. (2010) 15 NWLR (PT. 1216) 247 and Samba Petroleum Co. Ltd. & Anor. V. FCMB (2013) LPELR 21874.

2nd Respondent – On the submission that the appeal is academic he relied on CPC V. INEC & Anor (2012) ALL FWLR (PT. 617) 605 at 651; ODEDO V. INEC (2007) ALL FWLR (PT. 392) 1907. On incompleteness of record, he relied on Garuba V. Omokhodio (2011) 14 NWLR (PT. 1269) 145 at 180; A.G. Leventis Nig. Plc V. Akpu (2007) ALL FWLR (PT. 388) 1028 at 1044; Mutual Life & General Insurance V. Iheme ( 12) ALL FWLR (PT. 610) 1401 at 1411.

On leave to appeal not sought before the filing of the appeal, he argued that the entirety of the Appellants’ complaints in their notice of appeal borders on the (judicious or otherwise) exercise of discretion by the lower Tribunal in an interlocutory decision. He relied on the case of UBA Plc V. Mode Nig. Ltd. (2001) 1 NWLR (PT. 693) 141 at 148; In Re The Vessel M.V. Lupex (1993) 2 NWLR (PT. 278) 670 at 682; Metal Construction (W.A.) Ltd. V. Migliore (1990) 1 NWLR (PT. 126) 299 at 312, 326; Abubakar V. Dankwambo (2015) 10 SC 1 at 28; Atolagbe V. Awuni (1997) 9 NWLR (PT. 522) 536 at 562-563; Ogbechie V. Onochie (1986) 1 NWLR (PT. 70) 370 and Abubakar V. Yar’adua (2008) 4 NWLR (PT. 1078) 465 at 495-496.

For the foregoing, they urged the Court to uphold the preliminary objection and accordingly terminate the appeal in limine.

As I said before, the contention of the Respondent to my understanding is that this interlocutory appeal by the Appellants is predicated upon the exercise of judicial discretion by the lower Tribunal wherein the application by the Appellant for continue counting of ballot papers was refused. Relying on the provision of S.242(1) (2) of the 1999 Constitution of the Federal Republic of Nigeria, they submitted that the issue appealed against being interlocutory in nature and based on exercise of judicial discretion of the Court, leave to appeal ought to be sought and obtained before the Appellant can appeal.

The reaction of the Appellant to the foregoing is that the argument of the Respondents is erroneous and most misconceived in law in that it is predicated on a factually incorrect assumption of the subject matter of this appeal. He also submitted that the preliminary objection of the 2nd Respondent is defective and incompetent because from its very nature, there ought to have been an affidavit of fact to support the allegations contained in paragraphs 1-13 of the grounds of the objection which left the exclusive domain of law and flirts with the fact of the case.

The learned senior counsel representing the Appellant contended that there is nothing in this appeal or in any of the grounds which attacks the consent of the parties as expressed in the prehearing report or any decision reached by the Tribunal with the consent of the parties. He argued further that it is evident from the ground of appeal that there is no attack against any decision reached by consent of parties and the Appellant is not appealing the ruling of the Tribunal which restated the prehearing report and the matter of days for presentation of the case of the respective parties as agreed and consented to by the parties. He therefore submitted that the provision of S.241(2) of the 1999 Constitution as amended is inapplicable and also the decisions in Dana Vs. Awukam (2006) 3 NWLR (PT. 968) 1544; Arugu V. R.S.I.E.C. (2011) ALL FWLR (PT. 602) 1706; Samba V. FCMB (2013) LPELR 21874.

He added that the law is well settled that a decided case would not constitute judicial precedent or binding authority for deciding another case unless the material fact of the two cases are the same. He relied on Abaedobe V. Ofodile (2001) FWLR (PT. 45) 7 8 at 732.

On the failure of the 2nd Respondent to support his objection with affidavit evidence, he urged the Court to discountenance and strike out the objection. He relied on A.G. Federation V. ANPP (2003) 8 NWLR (PT. 851) 207; Alhaji Lai Mohammed V. Chief Afe Babalola, SAN (2011) LPELR 8973.

On the submission by the Respondents that the appeal is academic, he submitted in response that the contention is erroneous and misconceived because the completion of the ballot recount exercise which is earlier ordered wrongly interpreted the provision of Paragraph 41(10) of the 1st Schedule of the Electoral Act. The appeal therefore is not academic. He relied on the case of Alhaji Atiku Abubakar. Gcon & Ors. V. Alhaji Umaru Musa Yar’adua & Ors. (2008) 1 SC (PT. 11) 77 at 99.

He contended that the recounting can be done at any time even after the close of the case of parties. He relied on Eke V. Enang (1999) 5 NWLR (PT. 602) 261.

On whether or not the appeal was filed within time, it’s subject matter remains a live issue before this Court. He relied on Plateau State V. Attorney General Of The Federation (2006) 3 NWLR (PT. 968) 346; Adeogun V. Ashogbon (2008) 17 NWLR (PT. 1115) 149 at 173.

On the contention of incomplete record, he sought refuge in the provision of S. 147(a) and (b) and 168(1) of the Evidence Act 2011 and the case of Fabian Ekpenyon V. Action Congress Of Nigeria & Ors. (2012) LPELR 20206. Responding to the complaint on failure to obtain leave before filing of notice of appeal, he submitted that the argument is misconceived and stem out of an unfortunate misconception of the true nature of the Appellants’ ground of appeal. He contended that the 7 grounds of appeal by the Appellants are all grounds of pure law in respect of which the Appellants are entitled to appeal as of right pursuant to S.242 of the 1999 Constitution as amended. He relied on the cases of Corporal Livinus Ugwu V. The State (2013) LPELR 20177; Nwadike V. Ibekwe (1987) 4 NWLR (PT. 67) 718 at 744-745 and General Electric Co. V. Akande (2010) 18 Nwlr (Pt. 1225) 596.

He urged the Court to discountenance the contentions of the 2nd Respondent for being erroneous and misconceived and that the preliminary objection be dismissed for lacking in merit.

In the light of the foregoing barrage of grounds of objections, spanning from complaint of failure to obtain leave to appeal and incomplete record, the pertinent questions are –

(1) Whether the Appellants needed leave to appeal against the ruling of the lower Tribunal delivered on the 10th day of February, 2017.

(2) Whether or not the record of appeal transmitted is incomplete and thereby rendering the appeal by the Appellants incompetent.

In order to determine the first question on whether or not the Appellants needed leave to appeal, the provision of S.242(1) of the Constitution has to be considered along with ruling of the lower Tribunal appealed against. It is not in dispute between parties that the ruling appealed against is an interlocutory one. The Constitution distinctively provides for two types of appeal. See S. 241 and S. 242 of the 1999 Constitution of the Federal Republic of Nigeria. The classifications are –

(a) Appeal as of Right under S. 241(1) of the 1999 Constitution and appeal with leave of the High Court, Federal High Court or the Court of Appeal under S. 242(1) of the Constitution. Let me quickly put on record that it is not in respect of all interlocutory appeal that leave of Court is required. Again there is another classification. They are:

(1) Grounds of appeal which are purely and simply on point of law requires no leave;
(2) Grounds of appeal on fact requires leave of the lower Court or the Court of Appeal;
(3) Grounds of appeal on mix law and fact requires leave of the lower Court or the Court of Appeal.
It is trite that where leave is required and such leave is not sought and obtain, the appeal would be rendered incompetent. See the following cases of Arugu V. R.S.I.E.C (2011) ALL FWLR (PT. 602) 1706; Garuba V. Omokhodion (2011) ALL FWLR (PT. 596) 404; FBN PLC V. T.S.A. IND. LTD. (2010) 15 NWLR (PT. 1216) 247.

The next pertinent question is when is an interlocutory ground of appeal on fact, mixed law and fact and of law. As I said before, where an appeal is against an interlocutory decision of a Court and it raises a question of fact or mixed law and facts, leave of Court is required. Where an appeal is as of right, it requires no leave of Court. Where the decision appealed against is either interlocutory or final provided the ground of appeal involved a question of law alone, no leave is required. See the following cases of F.G.N. V. A.I.C. LTD. (2006) NWLR (PT. 970) 337; PDP V. K.S.I.E.C (2006) 3 NWLR (PT. 968) 565; Alamieyeseigha V. CJN (2005) 1 NWLR (PT. 906) 60 and Maduabuchukwu V. Maduabuchukwu (2006) 10 NWLR (PT. 989) 476.

In order to determine whether a decision is final or interlocutory, it must be determined whether or not the decision finally disposes the right of the parties to the suit. Where it finally disposes the right of the parties, it is a final decision. But where it does not then, the ruling is an interlocutory decision. Where fact are settled as admitted, the appeal is on ground of law. See Ikem V. Nezianya (2002) FWLR (PT. 99) 1088 at 1098.

Where the complaint is on evaluation of evidence before application of law, that would constitute a ground of mix law and fact. See Olanrewaju & Anor. V. C.O.P. (2002) ALL FWLR (PT. 92) 1697 at 1705; Thor Ltd. V. FCMB LTD. (2002) ALL FWLR (PT. 95) 279 at 287.

Finding of the Court based on evidence is purely a ground of fact. See Union Bank Plc & Anor. V. Alhaji A. Ishola (2001) ALL FWLR (PT. 81) 1868 at 1885.

A ground of law is that which tend to challenge or reveal the misunderstanding by the lower Court of law or misapplication of law to fact proved. See Ukachukwu & Sons Ltd. & Anor. V. Okeke & Anor. (2001) ALL FWLR (PT. 71) 1791 at 1802.

Where a judgment is a nullity, given without or touching on jurisdiction is a ground of law. See Union Bank Of Nigeria Plc V. Ekulo Farms Ltd. & Anor. (2001) ALL FWLR (PT. 67) 1019 at 1032-1033.

Having said these, the ruling appealed against in this appeal is that delivered by the lower Tribunal on the 10th day of February, 2017. In order to determine where this appeal belong, whether of law, fact or mix law and fact, the said ruling has to be visited. So also the ground of appeal has to be examined. First is the ruling of the Court. I herein under reproduce the area I consider pertinent and germane to this issue. See pages 1436-1437 of the record where the Court said in part thus:

“… At about 2 minutes after 1.00 p.m., learned senior counsel for the Petitioners applied that the time for recounting of the ballot paper be extended to such a time when all the 3 counting centers will conclude their recounting and the result of their counting be available for tendering before the Tribunal and if that is not done, the order of the Tribunal for the recounting of the ballot papers will be in vain.

This application was vehemently opposed by all the Respondents. Their objection is premised on the fact that election is sui generis and is time framed.

By Paragraph 41(10) of the 1st Schedule to the Electoral Act, the Petitioners time has elapse and the Tribunal has no power to extend it. Indeed, the Petitioners time has expired by 1.00 p.m. this afternoon. The Petitioners’ counsel submitted that since the recounting exercise begun within the time allotted to them, counting should be concluded. We beg to disagree with the senior counsel’s submission in this regard. Paragraph 41(10) of the Schedule to the Electoral Act 2010 as amended gave the Petitioner 14 days to present their petition by 1.00 p.m. today which is the 14th day the Petitioners had to conclude presenting their case. We have no power to extend by a minute the time allotted to the Petitioners even though the recounting exercise started within time. If it was the Petitioners witness who was testifying when Petitioners time elapsed, will they ask us to allow him conclude his testimony? We believe no.

Since the time allotted to the Petitioners who chose to make the application for recounting 2 days before their time elapsed, they should be contended with the consequences of bringing the application late.

On the whole, we hold that the application for extending the time for counting of the ballot papers beyond the 14 days allotted to the Petitioners is lacking in merit and is hereby refused.”

I have reproduced the ground of appeal somewhere before now in this judgment. Therefore, I would not reproduce it again. Having done that and after a careful consideration of the part of the judgment herein before reproduced and the ground of appeal, it dawned on me clearly that the ruling of the Court below is anchored on the provision of the 1st Schedule to the Electoral Act 2010. Precisely, Paragraph 41(10) of the Schedule to the Electoral Act. The decision of the Tribunal having being anchored on Paragraph 41(10) of the Schedule ipso fact renders the grounds challenging the validity of the pronouncement of the lower Tribunal a ground purely on law. It is trite that a ground of appeal challenging the correctness of the interpretation given by a Court of law to the provision of a Statute or Rule of Court as in the subject matter of this appeal is a ground of law. See the case of Continental Trust Bank Ltd. & Ors. V. Otunba Balogun & Ors. (2003) ALL FWLR (PT. 162) 908 at 1920; Medical And Dental Practitioners Disciplinary Tribunal V. Dr. John E.M. Okonkwo (2001) ALL FWLR (PT. 44) 542 at 573-574.

Therefore, I answer the 1st question in the negative and hold that the Appellant needed no leave to challenge the ruling of the lower Tribunal as in the instant appeal.

Next is the second question touching on the completeness of the record. I seem to agree with the submission of the learned senior counsel to the Appellants on this question. The presumption of regularity of the records compiled by the Registrar of the lower Tribunal duly certified operates in favour of the Appellants. In effect, S. 147(a) and (b) and 168(1) of the Evidence Act 2011 would act as a shield in favour of the Appellants. Further to this, the provision of Order 8 Rule 6 of the Court of Appeal Rules 2016 also provide a remedy where such complain exists. Therefore, assuming without conceding that the record is incomplete as alleged, it does not render the appeal incompetent. I accordingly so hold and hence I answer the second question in the negative.

In the light of the foregoing, the other questions and grounds of objection by the respective Respondent are subsumed in the foregoing finding and conclusion on the preliminary objection. In effect, the objections are overruled in their entirety and accordingly dismissed.

Now the coast is clear for the determination of the main appeal.

MAIN APPEAL

ISSUE ONE:

Was the Election Petition Tribunal right when it refused to allow the completion of the recount of the ballot papers it had earlier ordered? (grounds 1, 2, 5, 6 and 7)

ISSUE TWO

Was the Election Petition Tribunal right when it took into account the period for ballot recount in computing the time allotted to the Petitioners to conduct their case, if not, whether the Petitioners are not entitled to have the said period utilized for ballot recount restored to them? (grounds 3 and 4 of the Appellants’ ground of appeal)

I have carefully read through the records of appeal, the ruling of the lower Tribunal in question contained on pages 1436-1437, the respective briefs of counsel from inner and outer bar and replies thereto and coupled with the ground of appeal and their respective particulars. I am not in doubt that both issues can be conveniently taken together. For exigency of time, I would not reproduce the argument by respective counsel in respect of the two issues herein before reproduced.

In my candid view the subject matter of this appeal is very narrow. The simple question is whether or not the Election Petition Tribunal was right in stopping and refusing the application for continuation of recounting of ballot papers in the named Local Governments after the expiration of 14 days allotted to the Petitioner.

In providing answers to this question, care must be taken so as not to out-step the bound on some of the argument canvassed on some of the issues because, the Tribunal is yet to get to its final destination and yet to make pronouncement on the life issues before it. Therefore, I would exercise great caution so as not to go out of bounds.

Let me quickly put on record what actually triggered off this appeal. The Petitioners before the lower Tribunal and who are the Appellants before this Court relying on the averments in paragraph 753 of their petition applied to the Tribunal for the issuance of subpoena “Duces Tecum” to be issued against the Resident Electoral Commissioner, Edo State and commanding him to produce from the custody of the commission the ballot papers used for the Governorship Election of Edo State in the following Local Government Areas-

1. Akoko-Edo Local Government Area;

2. Egor Local Government Area;

3. Etsako West Local Government Area and

4. Etsako East Local Government Area.

Consequent upon the service of the said subpoena, Ahmed Suleiman, an Administrative Officer of INEC, Benin came with the ballot papers on the 7/2/2017. After tendering the certified copy of the subpoena served on the Resident Electoral Commissioner and which was admitted as Exhibit PO 402 (CTC of subpoena issued on INEC Resident Electoral Commissioner, Edo State). The said Ahmed Suleiman put before the Tribunal the following;

(1) 4 bags of used ballot papers from Akoko Edo Local Government Area;
(2) 8 bags of used ballot papers for Egor Local Government Area;
(3) 5 bags of used ballot papers for Etsako West Local Government Area and
(4) 3 bags of used ballot papers for Etsako East Local Government Area.

Just immediately after the delivering of the aforelisted used ballot papers for the (4) four Local Government Areas, the learned senior counsel for the Appellants, Yusuf Ali (SAN) applied that the ballot papers should be counted. Both the counsel representing the 1st Respondent and the senior counsel representing the 2nd and 3rd Respondents respectively strenuously objected to the application. (See pages 1393-1405 of the record of appeal vol. 2). The Tribunal thereafter reserved the ruling on the application for recount till 9th February 2017. In its considered ruling delivered on the said date (9/2/2017) the Hon. Judges of the Tribunal in their unanimous ruling, overruled all the objection to the recounting of the ballot papers and thereafter recounting commenced on the 9th February, 2017.

On the 10th February, 2017 and at about 1.00 pm, learned senior counsel for the Appellants again applied that recounting should continue. This again met a stone wall. Respondents objected and relied on Paragraph 41(10) of the 1st Schedule to the Electoral Act 2010.

In its considered ruling delivered at 4.00 pm of the same date (10/2/2017), the Tribunal refused the application on the ground that it is lacking in merit. In its words, the Tribunal concluded as follows:

“… on the whole, we hold that the application for extending the time for counting of the ballot papers beyond the 14 days allotted to the Petitioner is lacking in merit.” (See pages 1436-1437 of the record of appeal vol. 2).

This is the crux of the matter and upon which this appeal is predicated. Since the Tribunal anchored its refusal on Paragraph 41(10) of the 1st Schedule to the Electoral Act, I consider it apt for purposes of better understanding to reproduce herein under the said Paragraph of the Schedule to the Electoral Act 2010.

PARAGRAPH 41(10) 1ST SCHEDULE TO THE ELECTORAL ACT 2010:

“The Petitioner proving his case shall have not more than 14 days to do so and each of the Respondents shall have not more than 10 days to present its defence.”

Bearing in mind the question posed hereinbefore, this provision in my understanding prescribed the time allotted to each party in the interplay in an election petition to prove its case. The use of the word shall in the said provision makes the time sacrosanct, mandatory and limits the parties to the number of days therein provided. This provision has received a lot of judicial pronouncements. The effect of such provision is that each party would be limited to the prescribed time in presenting its case before the Tribunal. Election petition matters are described as “sui generis” that is to say that they are in a class of their own. Because of this “sui generis” nature of election petition matters in which time is of essence, i.e. the provision of Paragraph 41(10) of the 1st Schedule prescribing time for respective party to proof their case in an election petition, and the stand of the apex Court and this Court in a legion of decided cases on the interpretation of the Practice Direction vis-a-vis the Interpretation Act, the provision of the Interpretation Act on computation of time shall not apply to the requirement of time by the Practice Direction. The effect of the time prescribed by the said Schedule is that the petitioners are limited and strictly confined to the time provided for the proof of their petition. That provision limits the doing of any act in presenting and proving the case of parties therein. Therefore any action done outside that time prescribed would be a nullity. See PDP V. INEC (2014) 12 NWLR (PT. 1437) 1437 525 at 553-554; Udenwa V. Uzodinma (2013) 5 NWLR (PT. 1346) 94; ANPP V. Alhaji Mohammed Goni & 4 Ors. & Alhaji K. Shettima V. Alhaji Mohammed Goni & 4 Ors (2012) 5 NWLR (PT. 1298) 147, 180; Ugba V. Suswan (2013) 4 NWLR (PT. 1345) 427, 458; Akpamudoeiye V. Akpabio (2013) 7 NWLR (PT. 1354) 485 and Amad V. INEC (2013) 4 NWLR (PT. 1345) 595.

In the light of the foregoing, I have no doubt nor legal right in this circumstance to fault the stand of the learned judges of the lower Tribunal refusing the application of the Appellants for continuation of recounting and hence I answer the first leg of the question in the affirmative. That is to say that the Tribunal was right when it refused to allow the completion of the recounting of the ballot papers after the expiration of the 14 days allotted to the Petitioners as prescribed under Paragraph 41(10) of the 1st Schedule to the Electoral Act 2010.

In answering the second leg of the question which is on whether the Tribunal was right when it took into account the period for ballot recount in computing the time allotted to the Petitioner to conduct their case. Again considering the purport of Paragraph 41(10) of the 1st Schedule to the Electoral Act 2010, which suggests that whatever any party desires to do in proving its case should and must be done within that time frame. The counting of ballot paper which is geared towards the prove of the averments, allegation or complaints in the petition are to be done within the time provided by the Schedule for prove of the petition by the Appellants. Once a party commences the prove of his case in an election petition trial the time prescribed by Paragraph 41(10) of the 1st Schedule to the Electoral Act would start to run. Ipso facto therefore, at the expiration of such time, the party would have no time at its disposal to do anything in proof of his case. Therefore, it would not be a product of any reason to suggest that the time spent for the recounting which is part of the desire and effort of the Appellants to prove their petition be deducted from the 14 days they are entitled to under Paragraph 41(10) of the 1st Schedule to the Electoral Act. Again, I answer this question in the negative.

Accordingly therefore, the two issues are hereby resolved against the Appellants. In effect therefore, the appeal is unmeritorious and hereby dismissed.

I would now proceed to consider the cross appeal by the 3rd Respondent.

3RD RESPONDENT’S CROSS APPEAL

The 3rd Respondent filed a notice of cross appeal on the 2nd day of March, 2017. Consequent on the main appeal by the 1st and 2nd Appellants Cross/Respondent. The said cross appeal has two grounds. They are:

GROUNDS OF CROSS/APPEAL BY 3RD RESPONDENT GROUND (1)

The Governorship Election Petition Tribunal for Edo State erred in law and acted without jurisdiction when it ordered its secretary to produce a report of the recount of ballot papers it ordered on the 9th February, 2017 and thereby came to a wrong decision occasioning a miscarriage of justice to the Cross/Appellant.

PARTICULARS OF ERROR

(1) The ballot papers recounted were brought by a witness summoned to the Court through a subpoena duces tecum applied for by the Petitioners/Appellants in a bid to prove their petition.

(2) The ballot papers were not tendered as exhibits before the Tribunal and never admitted as such.

(3) The secretary of the lower Tribunal is not a witness to any of the parties to the petition.

(4) The said report is a product of documents not known to law.

(5) The order of 9th February, 2017 on which the recount of ballot papers and the attendant report are based is a nullity.

(6) An order of Court or Tribunal which is a nullity confers no right or obligation on any of the parties to the dispute.

(7) Courts of law or Tribunal cannot descend into the arena of dispute or offer any assistance to parties before it.

(8) The burden of proving the purpose of ballot papers dumped on the Tribunal lies on the Petitioners/Appellants.

GROUND (2)

The Governorship Election Petition Tribunal for Edo State erred in law and acted without jurisdiction when it ordered the secretary of the Tribunal to file and serve the report of an inchoate and incomplete exercise of recount of ballot papers dumped on it by a subpoenaed witness on it and thereby occasioned a miscarriage of justice.

PARTICULARS OF ERROR

(1) All the parties to the petition and the Tribunal were ad idem as to the incompleteness of the recount of ballot papers exercise.

(2) Election petition is sui generis and strict compliance with the law is required.

(3) The recount of ballot papers was caught by effluxion of time allocated to the Petitioners/Appellants to prove their petition.

(4) An incomplete, improper or inconclusive right is not countenanced by law.

(5) The recount of ballot papers not properly tendered and admitted in evidence cannot be evaluated in evidence hence the needlessness of the report.

(6) Courts of law or Tribunals do not lend their purposes to frivolity.

RELIEF SOUGHT

(1) Allow the appeal.

(2) An order setting aside the order of the trial Tribunal ordering the secretary of the Tribunal to produce a report of the incomplete ballot recount exercise.

The fact briefly leading to this cross appeal is consequent on the order of the Tribunal handed down on 9th day of February 2017 on the oral application by the Appellants cross Respondents for recount of ballot papers of the election conducted in Akoko-Edo, Egor, Etsako West and Etsako East Local Government Areas on the 7th February 2017, the Court ruled against the objection of the Respondents but in favour of the Appellant and order the recount of the ballot papers from the aforementioned Local Government Areas. (See pages 1392-1407 of the record of appeal vol.2). In its considered ruling delivered on the 9th day of February 2017, the lower Tribunal granted the application by the Appellants for recounting of the used ballot papers for the said Local Government Areas hereinbefore stated. (See pages 1420-1422 of the record of appeal vol. 2).

On the 10th of February 2017, the learned senior counsel representing the Appellant applied to the Tribunal for an order to continue with the counting of the ballot papers until the counting is concluded. This application met a strong opposition. Respective counsel from inner and outer bar vehemently opposed the application on the ground that the Appellants had exhausted the 14 days allowed by the Rules for the Petitioners to present their case. (Paragraph 41(10) of the 1st Schedule to the Electoral Act 2010). In its considered ruling delivered on the 10th day of February, 2017, the application by the Appellants for extending the time for recounting of the ballot papers beyond the 14 days allotted to the Appellants was refused. Pained by the said ruling hence the main appeal by the Appellants and this cross appeal by the 3rd Respondent.

The records of appeal having been transmitted in the main appeal, respective counsel from inner and outer bar filed their briefs of argument. In the like manner, the 3rd Respondent cross/Appellant filed his cross/Appellant brief of argument on the 7th day of March 2017.

The 1st and 2nd Appellants/Cross Respondents’ brief of argument is dated and filed on the 10th day of March 2017. In response, the 3rd Respondent/Cross-Appellant filed the reply brief dated 13th March, 2017 on the same date (13th March 2017). He also filed a motion to set aside the Appellants cross Respondent’s supplementary record.

On the 16th day of March 2017, both the 3rd Respondent/cross-Appellant and the 1st and 2nd Appellants/Cross-Respondents adopted their respective processes for the cross appeal. In their respective adopted brief of argument, learned senior counsel formulated the following issues for determination.

3RD RESPONDENT’S/CROSS-APPELLANT’S ISSUE FOR DETERMINATION

Whether the Tribunal was right to have ordered the secretary of the Tribunal to give report of ballot papers counted being product of an incomplete exercise of ballot paper recount.

1ST AND 2ND APPELLANTS/CROSS-RESPONDENT’S ISSUE FOR DETERMINATION

Whether the trial Tribunal was not right in an attempt to give effect to its ruling on the ballot paper recount to have ordered the secretary of the Tribunal to give reports of ballot papers counted in the bowel of the Tribunal.

I have carefully read all the processes put forward in relation to the cross appeal by the 3rd Respondent, vis-à-vis the respective issues put forward for determination. In my view, the respective issues are designed, targeted and challenging the order of the lower Tribunal directing its secretary to make a report of the recounting and submit same to the Tribunal. They only differ on the use of words.

On that note, I would adopt the sole issue put forward by the 3rd Respondent/Cross-Appellant for the determination of this cross appeal.

But before proceeding on the resolution of the said issue, I would first attend to the preliminary objection raised by the 1st and 2nd Appellants/Cross-Respondents challenging the competence of the cross appeal and the jurisdiction of this Court to entertain it. The grounds upon which the objection is predicated are – GROUNDS OF OBJECTION

(a) The appeal filed by the 3rd Respondent/Cross-Appellant is against an interlocutory decision of the Edo State Governorship Election Petition Tribunal delivered on the 10th of February, 2015.

(b) The notice of appeal (cross appeal) was filed outside of the statutory period prescribed for appealing against an interlocutory decision by law.

(c) The notice of appeal (cross appeal) having been filed out of time is grossly defective, incompetent and cannot be entertained by the Honourable Court.

(d) The incompetence of the notice of appeal (cross appeal) renders it liable to be struck out as the Court has no jurisdiction to entertain it.

(e) The argument canvassed in substantial part of the cross-Appellant’s brief of argument are outside the scope of the grounds of appeal and the issue formulated therefrom.

ARGUMENTS

The summary of the argument of the learned senior counsel representing the 1st and 2nd Appellants/Respondents is that the cross appeal was filed outside the time limited by S.24(2)(a) of the Court of Appeal Act (14 days) hence the notice of appeal is incurably defective and liable to be struck out. Being in that state, this Court is robbed of the jurisdiction to entertain the cross appeal. He relied on the following cases – Oguma V. I.B.W.A. (1988) 1 NWLR (PT. 73) 658 at 682; NLC V. Pacific Merchant Bank Ltd. (2012) ALL FWLR (PT . 640) 1211 at 113; Zenith International Bank Ltd. V. Vickdab & Sons Nig. Ltd. (2011) ALL FWLR (PT. 564) 189 at 201; Obo-Bassey V. Egbai (2010) ALL FWLR (PT. 521) 1576 AT 1585 and Madukolu V. Nkemdilim (1962) 2 SC NLR 341.

On behalf of the 3rd Respondent/Cross-Appellant, the learned senior counsel contended and challenged the competence of the notice of preliminary objection by the 1st and 2nd Appellants/Cross-Respondents on the ground that it does not comply with the provision of Order 10 Rule 1 and Form II of the Court of Appeal Rules 2016.

On the main preliminary objection, he submitted that the argument of the 1st and 2nd Appellants/Cross-Respondents is based on a misconception. He added that the rule governing the filing of appeal against the decision of an Election Tribunal, be it interlocutory or final is Section 6 of the Election Tribunal and Court Practice Directions, 2011 and not Section 24(2)(a) of the Court of Appeal Act. He submitted that rather than 14 days prescribed for interlocutory appeals under the Court of Appeal Act, 21 days is prescribed for appeals either against an interlocutory or final decisions under Section 6 of the Election Tribunal and Court Practice Directions 2011. He relied on the case of Obo-Bassey V. Egbai (2010) ALL FWLR (PT. 521) P. 1576 at 1585 (relied on by the Appellants/Cross-Respondents).

He argued that the contention of the Appellants on issue formulated is merely on technicality and which Courts have departed from. He relied on C.C.B. Ltd. V. Nwokocha (1998) 9 NWLR (PT. 564) 98 at 124, paras A-B.; Agbeniyi V. Abo (1994) 7 NWLR (PT. 359) 242.

Based on the foregoing, he urged the Court to discountenance and dismiss the preliminary objection.

Upon a careful reading of the arguments for and against the provisions of Paragraph 6 of Election Tribunal and Court Practice Direction 2010 and S. 24(2)(a) of the Court of Appeal Act, it dawned on me, that this cross-appeal which sprang up from the interlocutory decision of the Edo State Governorship Election Tribunal is governed by the Electoral Act and the Practice Direction. Election petition case being described as “sui generis” being in a class of its own, has its own law and rules, I have no hesitation in agreeing with the learned senior counsel representing the 3rd Respondent/Cross-Appellant that the law regulating appeal from Election Tribunals as in the instant appeal is the Electoral Act 2010 as amended and the Practice Direction and the Schedule thereto. Therefore the notion or conception that appeals from the Governorship Election Tribunal as in the instance appeal is governed by S.24(2)(a) of the Court of Appeal Act 2016 is erroneous and should not be allowed to breath the air of continued existence. The space craft conveying the submission is strange and should not be allowed to land in the planet of this instant appeal. The decided authorities cited by the objector, 1st and 2nd Appellant/Cross Respondent does not support their contention. Rather, it is like signing a death warrant. It is self damaging. In other words, it supports the stand and contention of the 3rd Respondent/Cross Appellant. I therefore rely on the two cases which are – Oguma V. I.B.W.A. (1988) 1 NWLR (PT. 73) 568 at 682; Obo-Bassey V. Egbai (2010) ALL FWLR (PT. 521) 1576 at 1585, in concluding that it is the provision of Paragraph 6 of the Election Tribunal and Court Practice Direction 2010 and not Section 24 (2) (a) of the Court of Appeal Act 2016 that regulates the time for filing appeals against either an interlocutory or final decisions of an Election Tribunal.

That, therefore, ipso facto mean that the Notice of Appeal was filed within the 21 days prescribed by the Practice Direction and hence competent and that this Court’s competence and capacity to entertain the cross appeal by the 3rd Respondent/Appellant is not vitiated.

There is that seeming issue raised by the Cross/Appellant as to the form of the notice of preliminary objection and which he said does not comply with Order 10 Rule 1 and Form II of the Court of Appeal Rules. In my view, the complaint is against the style and not the substance and hence does not deserve the attention demanded by the learned senior counsel representing the 3rd Respondent/Cross Appellant. Accordingly, the objection is discountenanced.

In the final analyses and after having resolved that it is the provision of Paragraph 6 of the Election Tribunal and Court Practice Direction that regulates the filing of appeal against both an interlocutory and final decision of an Election Tribunal, the notice of preliminary objection by the Appellants to the cross appeal by the 3rd Respondent Cross-Appellant is decreed unmeritorious and accordingly overruled and dismissed in its entirety.

I am now back to the cross appeal.

ISSUE FOR DETERMINATION

Whether the Tribunal was right to have ordered the secretary of the Tribunal to give report of ballot papers counted being produce of an incomplete exercise of ballot papers recount.

Again, let me reiterate, that I have read and considered the briefs of argument by the respective learned senior counsel representing the 3rd Respondent/Cross-Appellant and that of the 1st and 2nd Appellants/Cross-Respondents.

The contention of the Cross/Appellant is on the appropriateness or otherwise of the order of the Tribunal handed down on the 10/2/2017 directing its secretary to give report of the ballot papers counted being produce of an incompetent exercise of ballot papers requested. The order of the Tribunal can be found on page 1439 of the record of appeal Vol. 2.

This is a cross appeal. The term cross appeal, if properly examined from its function, and the word “cross” which is an adjective qualifying the word “appeal” connotes a demand or a proceeding connected in the subject matter but opposite or contradictory in purpose or object. See Black Law Dictionary 6th Edition page 375. It therefore suffice to say that a cross appeal is the means by which a Respondent who is dissatisfied with the decision of the Court below to have the said decision vide a notice of cross appeal varied or affirmed on other grounds. See the cases of LCC V. Ajayi (1970) 1 ANLR 293 at 298; American Cynamid Co. V. Vitality Pharmaceuticals Ltd. (1991) 2 NWLR (PT. 171) 15 at 31; Alhaji Mohammed V . Alhaji Abdulkadir & Ors. (2006) ALL FWLR (PT. 332) 1542 at 1550–1555.

Pertinent to the foregoing is the fact that a cross appeal arises where both parties are dissatisfied with the judgment of the Court below (underline is mine). See Milad Benue State & Ors. V. Ulegede & Ors. (2001) FWLR (PT. 78) 1268 at 1291; Chief Ogolo V. Chief Fubara (2003) FWLR (PT. 169) 1285 at 1309.

\Why I have gone this far is to show that the main appeal stemmed out of the Ruling of the lower Tribunal delivered on the 10/2/17. See pages 1436 – 1437 of the Record of Appeal Vol. 2 whereas the subject matter of the cross/appeal by the 3rd Respondent/Cross/Appellant, is on the directive of the Tribunal handed down on the same 10/02/2017 and contained on page 1439 of the Record of Appeal Vol. 2.

What I am trying to bring out here is that the substantive interlocutory appeal is against the ruling on continuation of recounting whereas the Cross/Appeal is predicated on the directive of the Tribunal on its secretary to furnish it with the result of the recounting exercise before 13th day of February 20 . The said report is contained on page 1444B – 1444E of the Record of Appeal Vol.2.

Considering the state of the fact hereinbefore stated and that the report has been rendered by the secretary to the Tribunal, and the Tribunal having not said anything about the said report renders the subject matter of this Cross/Appeal by the 3rd Respondent a life issue.

This Court should decline to make any pronouncement on same as it may pre-empt the Tribunal on the subject matter. Therefore, I consider the Cross/Appeal to be at cross purpose to the main interlocutory appeal having not emanated from the same interlocutory decision of the Tribunal and also premature and having a preemptive character on the final determination of the subject matter of the petition before the Tribunal.

On that note, the Cross/Appeal by the 3rd Respondent/Cross-Appellant is accordingly struck out.

There shall be no order for cost.

BADA, JCA

I read before now the lead judgment of my Lord MUDASHIRU NASIRU ONIYANGI, JCA, just delivered, and I agree with my Lord’s reasoning and conclusion.

In view of the thorough analysis and reasons so ably set out in the said lead judgment, I am also of the view that this appeal lacks merit and it is dismissed by me. The Preliminary Objection to the Cross Appeal is hereby overruled and dismissed whilst the Cross Appeal is struck out.

There shall be no order as to costs.

ADUMEIN, JCA

I had the privilege of reading in draft form the judgment just delivered by my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA.

My learned brother has amply dealt with all the issues in this appeal. I adopt and rely on the reasoning and conclusions of my learned brother in also dismissing this appeal.

I abide by all the orders made in the leading judgment.