A law court is fundamentally competent when properly constituted – Part 3

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

Ground Three The lower court erred in law when it considered the 3rd and 4th Respondents’ brief of argument dated and filed on 12/08/2015, 20 which was incompetent, null and void as same was filed out of time without any subsisting order of the lower court extending time for the 3rd and 4th Respondent which to do so.
Parties and their respective counsel filed and exchanged briefs of argument. The Appellant adopted his brief of argument which contains three (3) issues.

1. Whether the chairman of the trial court, sitting alone, had the jurisdiction to have heard and determined the Respondents’ consolidated applications that gave rise to the ruling of the trial court delivered on 10/7/2015 (this issue is distilled from Ground 1 of the Appellant’s notice of appeal).

2. Whether the lower was right when it failed to consider its decision in the case of Kabir v. Action Congress (2012) All FWLR (Pt. 647) CA. 638 at pp. 657-658, Paragraphs D- A, pp 670 673, Paragraphs E-B and PDP v. CPC (2011) 10 S.C. 53, in computing and determining the final day for the filing of the Appellant’s petition. (This issue is distilled from Ground 2 of the Appellant’s notice of appeal). Whether the lower court was right when it considered the 3rd and 4th Respondents’ brief of argument which was filed out of time by virtue of the decision of this honourable court in Omisore & Anor. v. Aregbesola, (2015) 5-6 S.C. (Pt. III) 1. (This issue is distilled from Ground 3 of the Appellant’s notice of appeal). 20
The learned counsel for the 1st Respondent, A. Kayode, formulated one lone issue thus:- “The 1st Respondent humbly submits that the lone issue for determination of this appeal is:- “Whether the courts below were right or wrong in their concurrent decisions dismissing the Appellant’s petition on the ground that same which was filed outside the prescribed 21 days, from the date when the results of the election was announced, is time barred.”

Legal Arguments
The Appellant contended that the chairman of the trial court had no jurisdiction to have heard and determined the Respondents’ consolidated applications that gave rise to the ruling of the trial court delivered on 10/07/2015. It is his submission that the trial court had no jurisdiction to hear and determine the matter as the trial court was not properly constituted to do so. He further submitted that the trial court lacked jurisdiction at all to entertain the matter before it. He continued to submit that jurisdiction is a fundamental, intrinsic and threshold issue – and once raised, the court has to determine same before proceedings to any other thing. He cited in support the case of A.G., Anambra State v. A.G. Federation (2007) 5-6 S.C. 192.
It is clear that the issue of jurisdiction, counsel continues, can be raised at any stage because of importance, it can be raised at any stage and manner, even for the first time on appeal before the Supreme Court without seeking leave.

(a) Access Bank Plc. v. G. L.O Consult (2009) 12 NWLR (Pt. 1156) 534 CA.
(b) Nuhu v. Ogele (2003) 12 S.C. (Pt. I) 32. I also agree that issue of Jurisdiction can also be raised suo moto by this Hon. court i.e Supreme Court.
(c) Nasir v. C.S.C, Kano State (2010) 1-2 S.C. 65.
Learned counsel referred to the decision of this court as depicted in the judgment of Hon. Justice Tanko Muhammad, JSC., at 196 Paragraphs A -D, thus:-

“It is trite that the issue of jurisdiction by whatever name and under any shade can be raised at any stage. It can be raised viva voce or the court can raise it suo motu, see also Onyia v. Oniah (1989) 2 S.C. (Pt. I) 69. See also A.G., Oyo State v. Fairlakes Hotel Ltd. (1988) 12 S.C. 1.”
My lords, the issue of jurisdiction is over and above any legal manipulation. It has to be neatly observed and acted upon, whether it was raised in any ground of appeal or not. The jurisdiction, I can boldly state, is a question of law which can be mentioned and raised for the first time in appellate courts or even this court. It is also clear that there is no need for any leave of any court, sought and obtained, before it could be said to have been properly raised. No matter in what manner it was raised, it can lawfully be raised as a fresh issue on appeal. There is no doubt that a court of law is fundamentally competent when it is properly constituted. If a court is not properly constituted, when there is a defect in its membership then that court cannot be said to have been properly in place. It lacks jurisdiction to properly adjudicate. Whatever decision it reached is going to be a nullity. See Madukolu v. Nkemdilim (1962) 2 SC NLR 341. This court has this to say and stated thus:-
“1. It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another, and

2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and;

3. The case comes before the court initiated by due process of law, and’ upon fulfillment of any condition precedent to the exercise of jurisdiction.”
Learned counsel for the Appellant urged this court to hold that the trial court was not properly constituted when the matter before it was tried and determined by the chairman of the tribunal alone.
Without having lengthy discussions and analysis of the matter, I wish to state as follows:- Having considered all the illuminating authorities above can it be right for one single judge to have considered a matter before the Governorship Election Tribunal sitting at Abeokuta, Ogun State or anywhere. It was chaired by Honourable Justice Henry A. Olusiyi J, no other judge or member or members sat with the chairman.

My lords, it is in a nutshell, that the trial court was not properly constituted as regards membership. The relevant law says that tribunal be constituted with chairman and at least one member.

Any other law, Act or regulations which says otherwise cannot be correct. It is my view without much ado, that the trial tribunal was improperly constituted when it considered and determined the petition brought to it. Whatever decision or decisions it reached is a nullity no matter how beautifully the decision was written. That trial court could have heeded the challenge and complaint of the Appellant’s counsel and it should have declined jurisdiction. The provisions of the constitution of the Federal Republic of Nigeria, 1999 as amended, by its Section 285 (4) no tribunal can be properly constituted with the chairman alone. All other laws or Act which provides that a chairman alone, without any member can sit and determine a petition is void for inconsistency.

That being the case, the lower court in this appeal cannot be right in dismissing the appeal before it and affirming the decision of the trial court. The learned justices of the lower court, with respect, completely derailed. The appeal therefore deserved to be allowed on this issue one without more.

I have carefully gone through the submissions of all the Respondents and I hold that none of the Respondents ably addressed the issue of jurisdiction of the trial court. None of them had lawful answer to the appeal. Each and every Respondent agreed with the jurisdictional stance of the matter before the trial court.

The issue is clear and strong, the fact that the matter was taken, tried and determined by the trial court with only the chairman without any member or members with him made the decision null and void. This is a fact which cannot be altered.
The Court of Appeal, hereinafter called the lower court, inadvertently took the appeal as such and delivered a unanimous decision, wrongly dismissing the appeal before it and affirmed the decision of the trial court. The lower court for the reason best known to them, boldly ignored the correct submissions clearly stated by Omereonye Morgans Esq., learned counsel for the Appellant herein. The chairman of the tribunal has no power to say and act on the fact that Paragraph 7 of the Electoral Act permitted him to determine such matter alone its Provisions are inconsistent with Section 285 (4) of the 1999 constitution as amended. It is void ab initio.

After considering the briefs of all the Respondents, I read thoroughly the Ground 1 of the Appellants appeal together with the 1st issue distilled by the Appellant in his brief and I hold that the 1st Issue is capable, in law, in disposing of this appeal. There is no further pressing need to visit and analyse the remaining two issues left. That is to say issue one is enough to dispose of the entire appeal

20 and I so hold. Issue one is hereby resolved in favour of the Appellant and this court grants all the avoidance of any possible doubt, is allowed. Issues two and three therefore become academic. I order that this appeal shall be remitted back to the Court of Appeal for it to reconstitute a different fresh panel to hear and determine the petition forthwith.

I. T. MUHAMMAD, JSC.: My learned brother, Muntaka- Coomassie, JSC, afforded me the opportunity to read in advance, the judgment just delivered. My learned brother has, ably, set out the salient facts of the case and counsel’s relevant submissions. It is unnecessary for me to repeat same. In agreeing with my learned brother, I find it pertinent to say a word or two on Appellant’s issue one of the issues for determination. The issue is on whether the chairman of the trial (“court”) tribunal had the Jurisdiction to hear and determine, while sitting alone, Respondents’ consolidated applications that gave rise to the ruling of the tribunal of 10th July, 2015.

As captured in the leading judgment, the following processes were filed before the tribunal on different dates by the Respondents.

a. First Respondent’s motion on notice (undated) filed on 15th June, 2015;
b. Second Respondent’s motion on notice dated 13th May, 2015 and filed on 14th May. 2015;
c.Third and fourths Respondent’s motion on notice dated and filed on 14th May, 2015.
These motions were consolidated, taken together and determined single handedly by the chairman of the tribunal alone. It is my belief, My Lords, that a very important spring board of starting my consideration of this appeal is from Page 260 of the record of appeal. It was on a Friday (19th June 2015) when the tribunal sat with full coram consisting of the chairman and two other members of the tribunal. After taking appearances of learned senior and other counsel for the respective parties, below is what transpired: “Fagbemi: Akinsola: Osipitan:
We have two of the motion (Sic) listed for hearing today. We are ready.
We are also ready. We have two applications. Fagbemi: Oyeniyi: Akinsola: Fagbemi: Tribunal: My application is dated 10/6/2015 and filed on 15/6/2015. They are in (Sic) the same subject matter.