All FWLR This Week: Incompetence of Judgment Delivered by A Panel Where One of The Judges was Absent During Hearing

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Parties: Adeleke v. INEC

Court: Supreme Court

Justices:

  • IBRAHIM TANKO MUHAMMAD JSC (Presided)
  • OLABODE RHODES-VIVOUR JSC
  • KUMAI BAYANG AKAAHS JSC (Dissenting)
  • KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JSC
  • AMIRU SANUSI JSC PAUL
  • ADAMU GALUMJE JSC (Dissenting)
  • UWANI MUSA ABBA-AJI JSC (Read the Lead Judgment)

Citation: (2020) All FWLR (Part 1053) P. 80

Facts:

The Osun State Gubernatorial Election was contested by the 1st appellant, 2nd respondents among other candidates on the platforms of the 2nd appellant and 3rd respondents respectively. The 1st appellant scored the highest number of votes while the 2nd respondent came second. The election was subsequently declared inconclusive and a rerun election ordered. After the rerun election, the 2nd respondent was declared and returned as winner of the election. Dissatisfied, the appellants filed a petition at the Osun State Election Petition Tribunal, seeking declaratory reliefs to the effect that; the 2nd respondent was not duly elected by majority of lawful votes case, the 1st appellant having scored majority of lawful votes cast be declared winner; the rerun election be declared null and void; and order striking down paragraph 44(n) of 1st respondent approved guidelines and regulations for the conduct of the Osun State Governorship Election 2018 because it is in conflict with the cumulative provision of sections 69 and 70, Electoral Act, 2010 and section 179, 1999 Constitution. The 3rd respondent filed a preliminary objection to the appeal.

Principles:

Incompetence of judgment delivered by a panel where one of the judges was absent during argument or hearing

A judgment delivered by a panel, where one of them did not hear the argument nor was he present at the hearing, is a nullity. In the instant case, where a member of the election tribunal who did not participate in the hearing of the petition, was part of the judgment therein, the lower court rightly declared the judgment a nullity. [Sokoto State Government of Nigeria v. Kamdex (Nig.) Ltd (2007) 7 NWLR (Pt. 1034) 466 (2007) LPELR – 3093 (SC); Nyesom v. Peterside (2016) All FWLR (Pt. 824) 38, (2016) 7 NWLR (Pt. 1512) 452, (2016) LPELR – 40036 (SC) referred to] [Pp. 101 – 107; paras. H – A] Per AJI JSC: [Pp. 94 – 102; paras. D – H]

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“The 1st appellant was the candidate of the 2nd appellant at the 2018 Governorship election in Osun State. On 22 September 2018, the 1st respondent conducted the election into the office of Governor, Osun State, wherein 1st appellant scored the highest number of votes with 254,698 while the 2nd respondent came second with 254,345 votes. For some reasons, the said election was declared by the 1st respondent inconclusive and a rerun was ordered to take place in 4 Local Governments wherein the 2nd respondent scored the highest votes of 255,505 while the 1st appellant came second with 255,023 votes. Dissatisfied, the 1st appellant petitioned the respondents at the Osun State Election Petition Tribunal on 16 October 2018. In defence, the respondents on 9 November 2018 filed their reply challenging the competence of the petition and the jurisdiction of the Tribunal. On 16 November 2018, the appellants filed a reply to the respondents’ reply wherein new issues were raised which caused the respondents to object vide a preliminary objection on 26 November 2018. At the end of the proceedings, the tribunal gave judgment in favour of the appellants but struck out paragraphs 18, 23 and 24 of the appellants’ reply and held that it had no jurisdiction to nullify paragraph 44(n) of the 1st respondent’s Approved Guidelines which empowered it to declare the election inconclusive. The appellants as a result cross-appealed against these portions of the Tribunal’s decision but the lower court on 9 May 2019 dismissed the cross- appeal, hence this appeal before this Honourable Court…

In the sister case, Appeal No. SC. 553/2019, to the appeal at hand, my learned brother, Rhodes-Vivour, JSC, dismissed the proceedings and judgment of the trial tribunal as a nullity, having no foundation and stratum to stand on. In his judgment therein, the judgment of the tribunal was infected when a member of the Tribunal, who did not participate in the hearing of evidence was involved in writing the lead judgment as the record of the proceedings shows. It is now settled that a judgment delivered by a panel, where one of them did not hear the argument nor was he present at the hearing is a nullity. See Per Ogbuagu, JSC in Sokoto State Government of Nigeria v. Kamdex (Nig.) Ltd (2007) 7 NWLR (Pt. 1034) 466 (2007) LPELR – 3093 (SC). Per Kekere-Ekun JSC, rightly and boldly handled such a matter in Nyesom v. Peterside (2016) All FWLR (Pt. 824) 38, (2016) 7 NWLR (Pt. 1512) 452, (2016) LPELR – 40036 (SC), wherein he analyzed as follows: ‘…it is my view that the principle is applicable to any court or tribunal that sits in a panel of two or more members. In the instant case, Pindiga. J, as chairman with Leha. J, and Taiwo. J, heard the application. The ruling delivered on 9 September 2015 signed by Ambursa. J as chairman and Lena and Taiwo. JJ, as members, reviewed the submissions of learned counsel made at the hearing of the application before dismissing same. There is no doubt that Ambursa. J, could not have formed an opinion on the submissions of learned counsel, which he did not hear. In the eyes of the law only Leha, J and Taiwo, J delivered the ruling. The signature of Ambursa, J on’ the ruling was invalid. In the case of Sokoto State Government of Nigeria v. Kamdex (Nig.) Ltd (2007) 7 NWLR (Pt. 1034) 466 (2007) LPELR – 3093 (SC) a similar situation arose where a Justice of the Court of Appeal who did not participate in the hearing of the appeal wrote and delivered a judgment therein. The judgment so delivered was declared a nullity. See also; Ubwa Tiv Traditional Council (2004) 11 NWLR (Pt. 884) 427. The remaining two members of the tribunal who participated in the hearing of the application and delivered opinion therein could not form a quorum in the absence of the chairman who participated in the hearing.

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The Tribunal was not properly constituted for the delivery of the ruling and therefore lacked the competence to do so. See Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587, (1962) 2 SCNLR 341, (1962) 2 NSCC 374, (2001) 46 WRN 1… Any defect in the composition of an Election Tribunal is fatal, for the proceedings are a nullity no matter how well they were handled and decided. The defect is extrinsic to the proceedings. See Per Rhodes-Vivour, JSC in MPPP v. INEC & ORS (2015) LPELR – 25706 (SC). Having found that the judgment delivered on 22 March 2019 was a nullity as declared by my learned brother, Rhodes-Vivour, JSC, in his judgment in Appeal No. SC 553/2019, it constitutes a good ground for not considering the other issues for determination as all will become academic and hypothetical. Thus, a court and even this court has no jurisdiction to adjudicate over an appeal that was a nullity even before it was seized of it. This appeal shall be and is hereby struck out.”

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