In The Court of Appeal
(Enugu Judicial Division)
On Tuesday, the 14th day of June, 2011
Suit No: CA/E/EPT/5/2010
Before Their Lordships
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AMINA ADAMU AUGIE |
....... Justice, Court of Appeal |
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RAPHAEL CHIKWE AGBO |
....... Justice, Court of Appeal |
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HUSSEIN MUKHTAR |
....... Justice, Court of Appeal |
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MOJEED A. OWOADE |
....... Justice, Court of Appeal |
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IGNATIUS IGWE AGUBE |
....... Justice, Court of Appeal |
Between
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Hope Democratic Party [HDP] |
Appellants |
And
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1. Mr. Peter Obi |
Respondents |
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RATIO DECIDENDI |
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WORDS AND PHRASES - "FUNCTUS OFFICIO": Definition of "Functus officio" |
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"Functus officio is Latin for "having performed his or her task", and "refers to one who has exercised his or her authority and brought it to an end in a particular case" - see The Longman Dictionary of Law 7th Ed. See also Black's Law Dictionary.6th Ed., wherein functus officio defined as - "Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority Applied to an officer whose term has expired, and who has consequently no further official authority; and also to an instrument, power, agency, etc., which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect". In effect, once a Court has delivered its decision on a matter, it becomes functus officio with regard to that matter. This is because a Court cannot sit as an appellate Court over its decision; once it has decided a matter, it ceases to be seized of it, and cannot re-open it for any purpose whatsoever - see Ogboru v. Ibori (2005) 13 NWLR (Pt. 942) 319, Sun Insurance v. LMBS Ltd. (2005) 12 NWLR (Pt. 940) 608, Ukachukwu v. Uba (2005) 18 NWLR (Pt. 956) 1, Ubeng v. Usua (2006) 12 NWLR (Pt. 994) 244; Onyekweli V. INEC (2009) 6 NWLR (Pt. 1136)" Per AUGIE, J.C.A (Pp. 11-12, paras. C-A) |
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ELECTION PETITIONS - CHALLENGE OF AN ELECTION UNDER SECTION 179 (2) OF THE 1999 CONSTITUTION: What a court or tribunal must do in resolving a challenge of an election founded on Section 179 (2) of the 1999 Constitution |
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"A challenge of an election founded on Section 179 (2) of the 1999 Constitution is a challenge of the computation of the votes scored by the parties and calls into question the arithmetic of the votes. The Court or Tribunal faced with such challenge can only resolve it by delving into the correctness of the computation placed before it." Per AUGIE, J.C.A (P. 19, paras. C-E) |
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COURT - COMPETENCE OF COURT: Whether a court can sit over its own judgment |
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"No court has the competence to sit on appeal over its own decision, including the Supreme Court. In Alao v ACB (2000) 9 NWLR (Pt. 672) 570 the apex court per Iguh, JSC observed, in very clear and concise terms, thus: "...a misdirection or error in a judgment, so long as such a judgment represents what the court decided or the actual decision of the court cannot be corrected, varied or amended under the 'slip rule' or at all otherwise than by an appeal. As I have observed, this court as a final court of appeal, has no jurisdiction to sit on appeal over its judgments." Per MUKHTAR, J.C.A (P. 26, paras. C-E) |
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JUDGMENT AND ORDER - DECISION OF COURT: Circumstances under which a court can set aside it's judgment |
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"However, the law also says that Courts of record have the inherent jurisdiction to set aside their Judgments/decision/order, in appropriate cases. When - (i) The Judgment is obtained by fraud or deceit either in the Court or of one or more of the parties; (ii) The Judgment is a nullity; (iii) It is obvious that the Court was misled into giving Judgment under a mistaken belief that the parties consented to it; (iv) The Judgment was given in the absence of jurisdiction; (v) The proceedings adopted was such as to deprive the decision or Judgment of the character of a legitimate adjudication; (vi) Where there is fundamental irregularity - see Alao v. ACB (supra). See also Tomtec (Nig.) Ltd. v. FHA. (2009) 18 NWLR (Pt. 1173) 358 SC." Per AUGIE, J.C.A (P. 12, paras. A-E) |
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COURT - DUTY OF COURT: Whether it is the duty of court to consider all issues argued by parties |
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"The law is settled that it is the duty of a court either of first instance or appellate jurisdiction to consider all the issues joined and argued by the parties before the court and where it failed so to do, valid reasons must be advanced for the neglect." Per AGUBE, J.C.A (P. 36, paras. F-G) |
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AMINA ADAMU AUGIE, J.C.A (Delivering the Leading Judgment): The Applicant fielded a candidate at the Anambra State Governorship Election that held on the 6th of February 2010, and dissatisfied with the declaration of the 1st Respondent as the Governor of Anambra State; it filed an election Petition at the Governorship Election Petition Tribunal.
After losing at the Tribunal, it filed an appeal in this Court, and in our Judgment delivered on 24th February 2011, this Court dismissed the appeal and affirmed the decision of the Tribunal. Ordinarily, the matter should have ended there as the appeal was filed before the Constitution was amended, and this Court was still the final Court in election matters.
But the Applicant wants to take one more bite at the cherry. It has come back to this Court to ask us to set aside the said Judgment because -
1) 'Exhibit "D" the certified true copy of the Judgment furnished to the Appellant by this Court on March 8, 2011 as the written Judgment delivered on February 24, 2011 , is a sham Judgment;
(a) The Judgment purports to be a written decision in the above appeal delivered on February 24, 2011.
(b) The content of the Judgment contradicts the fact that the decision was in writing when it was delivered on February 24, 2011.
2) The Judgment in the above appeal is null and void because the Court failed to deliver its decision in writing in fragrant violation of Section 29 (1) of the 1999 Constitution, as amended:-
(a) At page 22 of the lead Judgment Hon. Justice R.C. Agbo, JCA stated thus:
"In the words of my lord Hussein Mukhtar JCA in the lead Judgment delivered this morning.
"The words or phrase 'all the vote cast" under S. 179 (2)(b) must refer only to valid votes but certainly excludes invalid votes. After all an invalid vote is as good as never cast at all and cannot be countenanced in the calculation of % of votes in each of at least 213 of the local Government Areas in the State.
It will be like counting both the living and the dead in a census exercise. An invalid vote is not a vote at all and cannot be countenanced in the computation of the votes cast in an election." This determination is binding on us and determines the principal issue in this appeal."
(Underlining supplied for emphasis)
(b) The decision included events that took place on the day the Judgment was delivered.
3) The Judgment in the above appeal is null and void because the court failed to furnish the Appellant with duly authenticated copy of the decision within seven days of the delivery of the Judgment in fragrant violation of section 294(1) of the 1999 Constitution, as amended.
4) The Judgment in the above appeal is null and void because the Court failed to consider determine or pronounce on the Appellants' Grounds of Appeal. (Highlight mine)
The Application is supported by an 18-paragraph Affidavit, and four annexures, i.e. - Exhibit A [Notice of Appeal]; Exhibit B [hearing notice]; Exhibit C [acknowledgment letter]; and Exhibit D [a copy of the Judgment delivered on 24/2/11. The 1st - 3rd Respondents are opposed to the Application, and they filed a 1 -paragraph Counter-Affidavit to that effect.
They also filed a Notice of Preliminary Objection, wherein they contend "that the Application is incompetent and ought to be struck out in that -
(i) From the matters on which the Application is founded the Court of Appeal is functus officio and cannot revisit the Judgment on the said grounds.
(ii) Section 291 (1) of the Constitution does not support any of the ground on which the Applicant initiated this Application.
(iii)The Applicant did not place sufficient materials to establish that he made demand for the Judgment within seven (7) days of its delivery and was not given a copy of same.
(iv) The Court of Appeal pronounced its Judgment in accordance with Order 18 rule 1 of the Court of Appeal Rules within three (3) months of the hearing of appeal.
As it turned out, learned counsel for the Applicant, Mike Okoye, Esq., informed the Court at the hearing of the Application that he intended to argue only Ground 4 of the Application. In effect, Grounds 1 to 3 of the Application are deemed abandoned, and they will be discountenanced.
Mr. Okoye started off by saying that this Court did not consider "even one Ground of the Grounds of Appeal", but he narrowed down his arguments to Grounds 1 & 11, and the issues 1 & 7 distilled there-from.
He argued that the Applicant's evidence, when balanced against that of the Respondents, should have resulted in a favourable Judgment for it; that its issue 7 questions the appraisal and evaluation of the evidence, citing Mogaji v. Odofin(1978) 4 SC 91; that this Court inadvertently forgot to consider and determine the complaint made by the Appellant; that the Judgment of this Court resolved only a specific finding of the Tribunal on the correct interpretation of Section 179 (2) (b) of the 1999 Constitution, and since an appellate Court is to correct errors, if any, its Judgment must resolve the said complaint; that an appellate Court has a constitutional duty to do so, and an Appellant has a constitutional right to have his appeal considered and determined; that the omission to consider and determine its complaint before dismissing the appeal is a denial of fair hearing, which justifies setting aside the Judgment arrived as a result of such breach; that this Court has inherent jurisdiction to set aside a Judgment order, which is a nullity; that it is not necessary to appeal as the Judgment/order is made null and void by a fundamental defect, and can be set aside, citing Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) 506, and that re-hearing of this appeal is not a guarantee that the appeal will succeed but a guarantee that our justice system will work.
He also argued that the Applicant never asked for the interpretation of Section 179 (2) (b) of the Constitution, and never formulated any issue thereon; that it established a prima facie case that Peter Obi was not qualified, and that he, Mike Okoye, is the one qualified; that this Court failed to make a finding that he is the rightful Governor based on the authority of Amaechi v. Omehia (2008) 5 NWLR (Pt. 1080) 227 SC; and that the matter could be heard without setting aside the Judgment, citing Obasi Brothers Co. Ltd V. MBA Securities (2005)1 NWLR (Pt. 929) 111 @ 129. He also referred us to the Supreme Court case of Ibrunfemi v. Asho (2000) 2 NWLR (Pt. 643) 143, which set aside the earlier Judgment of the Supreme Court reported in (1999) 1 NWLR (Pt. 585) 1.
Dr. O. Ikpeazu (SAN), submitted that the Applicant's Ground 1 was exactly that, which was determined by the Tribunal, and its issue 7 was also determined; that the complaints, which they were not conceding to, may be termed "errors in law" but are matters which this Court by virtue of Section 246 (3) of the Constitution cannot at this stage embark on being functus officio, citing Alao v. A.C.B. Ltd (2000) 1 NWLR (Pt. 672) p 264, Akinde v NASU (1999) 2 NWLR, (Pt. 592) p 570 at 582, Adegoke Motors v. Adesanya(l989) 3 NWLR (Pt. 109) p 250 at 274 - 275.
Mr. Nnadi adopted the submissions of Dr. Ikpeazu (SAN), and added that the issue is whether there was any complaint that the appeal was wrongly dismissed; that if the appeal turns on the issue of Section 179 (2), and the evidence led, which show that the 1st Respondent met the requirements, then all the argument being rendered here is academic and a sheer waste of time; that the case of Eke v. Ogbonda (supra) is not applicable to this case; that a final Court can determine a case on one or two issues once it is convinced that the issue(s) so determined will resolve the appeal; and that this Court is the final Court in this matter, therefore, once it decides the appeal on one issue, no one can complain. Replying on points of law, Mr. Okoye submitted that the case of Nnaji v Agbo (2006) 1 NWLR (Pt. 981) 199, cited by Dr. Ikpeazu (SAN), is distinguishable from this case; and that "functus officio" is when all the grounds of appeal in an appeal are considered and determined.
Is this Court functus officio or not? That is the question before us, and I will quickly say functus officio is NOT - "when all the grounds of appeal in an appeal are considered and determined", as Mr. Okoye said.
Functus officio is Latin for "having performed his or her task", and "refers to one who has exercised his or her authority and brought it to an end in a particular case" - see The Longman Dictionary of Law 7th Ed. See also Black's Law Dictionary. 6th Ed., wherein functus officio defined as -
"Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority Applied to an officer whose term has expired, and who has consequently no further official authority; and also to an instrument, power, agency, etc., which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect".
In effect, once a Court has delivered its decision on a matter, it becomes functus officio with regard to that matter. This is because a Court cannot sit as an appellate Court over its decision; once it has decided a matter, it ceases to be seized of it, and cannot re-open it for any purpose whatsoever - see Ogboru v. Ibori (2005) 13 NWLR (Pt. 942) 319, Sun Insurance v. LMBS Ltd. (2005) 12 NWLR (Pt. 940) 608, Ukachukwu v. Uba (2005) 18 NWLR (Pt. 956) 1, Ubeng v. Usua (2006) 12 NWLR (Pt. 994) 244; Onyekweli V. INEC (2009) 6 NWLR (Pt. 1136) However, the law also says that Courts of record have the inherent jurisdiction to set aside their Judgments/decision/order, in appropriate cases. When -
(i) The Judgment is obtained by fraud or deceit either in the Court or of one or more of the parties;
(ii) The Judgment is a nullity;
(iii) It is obvious that the Court was misled into giving Judgment under a mistaken belief that the parties consented to it;
(iv) The Judgment was given in the absence of jurisdiction;
(v) The proceedings adopted was such as to deprive the decision or Judgment of the character of a legitimate adjudication;
(vi) Where there is fundamental irregularity - see Alao v. ACB (supra). See also Tomtec (Nig.) Ltd. v. FHA. (2009) 18 NWLR (Pt. 1173) 358 SC.
The Applicant herein is not saying that the Judgment of this Court delivered on the 24th of February 2011, was obtained by fraud or deceit. It is not complaining that this Court was misled into giving the Judgment, or that the Judgment was given in the absence of jurisdiction, and it is not objecting to the procedure adopted by the Court. From all indications, the Applicant is actually accusing this Court of not doing its job properly.
Its position is that this Court "has a constitutional duty to resolve its complaint", which it "inadvertently forgot to consider and determine", so, it was denied a fair hearing, and the Court's Judgment is null and void.
What is the complaint? Ground 1 of its Grounds of Appeal states that -
"The Election Tribunal erred in law in interpreting section 179 (2) (b) of the 1999 Constitution, outside the issue for determination, which led to the unwarranted, unjustified and perverse conclusion that the 1st Respondent secured one-quarter of all the votes cast in fifteen (15) local government areas in Anambra State and satisfied the requirements of section 179 (2) (b) of the 1999 Constitution, and was duly returned as the governor of Anambra State -".
Issue 1 formulated from this Ground of Appeal in the Appellant's brief, is-
Whether the Tribunal went outside the issue before it to interpret Section 179 (2) (b) of the 1999 Constitution which led to its perverse conclusion that the 1st Respondent secured one-quarter of all the votes cast in fifteen (15) LGAs of Anambra State and satisfied the requirement of the Constitution and was duly returned as Governor of Anambra State by the 6th Respondent.
Ground 11 is the omnibus ground of appeal, which complains that- "the Judgment of the Tribunal is against the weight of evidence and issue 7 formulated from the Ground 11 questions - " whether the Tribunal was not to have upheld the Appellant's claim that the 1st Respondent was not validly elected and was not qualified to contest the election.
The Appellant's case was that out of 8 LGAs, where it contended that the 1" Respondent did not secure one-quarter of all the votes cast, the Respondents joined issues with it in only two - Anambra East and
Anambra West, and the Respondents accepted that the 1st Respondent did not secure the requisite spread in 6 - (1) Ayamelum; (2) Dunukofia; (3) Idemili North; (4) Idemili South; (5) Nnewi South; and (6) Oyi.
Thus - " the only issue for determination from the pleadings among the parties is, Anambra East and Anambra West'. It was submitted that -
"The Tribunal were only to inspect INEC results Exhibit A", Exhibit "8", Exhibit "C", to see if it corroborates, the oral evidence of the Appellant that the 1st Respondent failed to obtain one-quarter of all the votes cast in Anambra East and Anambra West LGAs and therefore was not duly elected and returned by INEC in compliance with Section 179 (2) (b) of the 1999 Constitution".
To paint a clearer picture of the Applicant's grievance, and its reason for bringing this application, I will reproduce other arguments from the brief -
"The Tribunal completely abandoned the issue (it) formulated, and proceeded to determine an issue not arising out of the Petition....
The only issue arising for determination is whether the 1st Respondent obtained % of all the votes cast in the two LGAs - - The whole exercise of - - interpreting Section 179 (2) (b) - - was a complete waste of time since the outcome of such interpretation cannot be applied to the Appellant's case. The case of the Appellant from the issues joined in the Petition did not depend on the interpretation of Section 179 (2) (b) of the Constitution. The allegation that rejected votes were added to the total votes cast in the results declared by INEC was first raised in the Reply of the 1st, 2nd and Respondents in their Reply to the Petition.
Since the 1st Respondent did not challenge the figures of the declared results, the Tribunal had no business going into the interpretation of Section 179 (2) (b) - - lf the Respondents wanted to challenge the result - - - they must have to file a Cross-Petition and allege that the figures declared as total votes cast by INEC are incorrect because rejected votes were added to the figures declared, only at this point will the Tribunal have jurisdiction to interpret Section 179 (2) (b) - - and apply the outcome of their interpretation to the figures declared by INEC Since the 1st Respondent did not file a Cross-Petition, it was a worthless exercise for the Tribunal to have gone into the interpretation of the Constitution and to have applied the outcome of their interpretation to this case, as it did. - - - The Tribunal (with respect) grossly erred and abdicated their institutional role when they proceeded to interpret Section 179 (2) (b) - - and to write a Judgment of 176 pages which was delivered for 7 % hours - - on an issue not before the Tribunal-- - It was the interpretation of Section 179 (2) (b) - - that led to the unwarranted, unjustified and perverse conclusion by the Tribunal that the 1st Respondent secured % of all the votes cast in 15 LGAs - - when in fact from the evidence before the Tribunal the 1st Respondent did not secure % of the votes cast in 14 LGAs..."
There we have it - the Applicant is saying that the Tribunal did not tackle the issue on which parties joined, and "abdicated its constitutional role" when it interpreted Section 179 (2) (b) of the Constitution", which led to the "unwarranted, unjustified and perverse conclusion that the 1st Respondent secured % of all the votes cast in 15 LGAs", and this Court, which "has a constitutional duty to correct" the said error, failed to do so.
The argument makes no sense to me at all. Section 179 (2) (b) says -
"A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where, there being two or more candidates
(b) He has not less than one-quarter of all the votes cast in each of at least two thirds of all the local government areas in the State.
The Appellant reproduced paragraphs 10 - 19 of its Petition in its brief -
10. That the requirement of the Constitution is that the 1st Respondent must obtain % of all the votes cast in 14 LGAs - - before he could be deemed to have been duly elected to the office of Governor of Anambra State.
11. That the 1st respondent did not obtain the % votes in all the votes cast in 14 LGAs of Anambra State as required by the Constitution.
12. That the 1st Respondent was not duly elected or deemed to have been elected since he did not satisfy the requirement of the Constitution and the Electoral Act, 2006.
13. Your Petitioner states that the 1st and 2nd Respondents did not obtain % of all the votes cast in - -
14. Your Petitioner states that the return of the 1st Respondent - - was in violation of the provisions of Section 179 (2) (b) of the 1999 Constitution.
15. Your Petitioner will at trial rely on INEC issued Declarations of results - - -
16. Your Petitioner states that the gubernatorial election - - were inconclusive since no candidate obtained the constitutional required % of all the votes cast in each of at least two-third of all the LGAs in Anambra State.
17. Your Petitioner will therefore at trial contend that the 1st Respondent was not and could not have been duly elected and returned since he did, not obtain % of all the votes cast in two-thirds of all the LGAs
18. Your Petitioner will at trial contend that the return of the 1st Respondent as a Governor of Anambra State or take the oath of allegiance, unless he has satisfied the requirements of Section 179 (2) (b) of the Constitution.
The Appellant's case was that the 1st Respondent did not obtain % of all of Section 179 (2) of the 1999 Constitution since the 1st Respondent did not obtain % of all the votes cast in each of at least two-third of all the LGAs in Anambra State.
19.Your Petitioner states that the 1st Respondent is not entitled to be sworn in as a governor of Anambra State or take the oath of allegation, unless he has satisfied the requirements of section 179 (2) of the Constitution.
The Appellant's case was that the 1st Respondent did not obtain 1/4 of all the votes cast at the election, and that his return as the Governor "was in gross violation of section 179 (2) (b) of the 1999 Constitution". But that is the very Section of the Constitution, which it is contending that "the Tribunal had no business interpreting". What sense does that make? The word "lnterpret" means "to give the meaning of; explain or make clear; elucidate; to derive a particular understanding of; give a certain explanation to; construe" see Webster's Comprehensive Dictionary.
How did the Applicant expect the Tribunal to arrive at a decision without explaining what the Section 179 (2) (b) of the Constitution is all about?
What is more, I cannot for the life of me fathom why the Applicant would come up with a complaint that it was the interpretation of Section 179 (2) (b) of the Constitution that led to the Tribunal's conclusion that the 1st Respondent secured % of all the votes cast in 15 LGAs. Obviously, any Tribunal worth its salt would construe the said Section to see whether it applies to the case before it or not, which is what this did. The Applicant's attack makes no sense, and that is exactly what my learned brother, Agbo, JCA, said in our Judgment sought to be set aside-
"The Appellant attacked the Tribunal for interpreting Section 179 (2) (b) of the 1999 Constitution before applying it. That is strange. It was clearly within its right to show an appreciation of Section 179 (2) of the 1999 Constitution before applying it. There was no dispute before the Tribunal as to the votes scored by parties at the election. The dispute was as to the arithmetic of what constitutes 1/4 of votes scored. A challenge of an election founded on Section 179 (2) of the 1999 Constitution is a challenge of the computation of the votes scored by the parties and calls into question the arithmetic of the votes. The Court or Tribunal faced with such challenge can only resolve it by delving into the correctness of the computation placed before it. The Judgment of the Tribunal remains largely undented and is to be commended". (Highlight mine)
My learned brother said it all, and really hit the nail on the head at that.
What can anyone add to that? Section 179 (2) of the 1999 Constitution sets out the spread of votes a candidate must secure in order to be deemed to have been duly elected - see Ukpo v. Imoke (2009) 1 NWLR (Pt. 1l2l) 90 where this Court per Galadima JCA (as he then was) said -
"The emergence of a winner in an election is predicated upon his having satisfied the provisions of Section 179 (2) of the 1999 Constitution to the effect that in making the declaration the Returning Officer must show that the declared winner had the majority of the votes cast at the election and that he had not less than one-quarter of all the votes cast in each of at least two thirds of all the local government areas in Cross River State. All the relevant statistic must be clearly set out after which a sealed certificate of return would b issued in accordance with Section 76 (1) of the Electoral Act.
In this case, the Tribunal found as a fact that the 1st Respondent satisfied the requirements of Section 179 (2) (b) of the Constitution because he secured % of all the votes cast in 15 LGAs. But the Applicant insists that the only issue for determination, which was not resolved by the Tribunal, is whether the 1st Respondent obtained 1/4 of the votes cast in 2 LGAs.
It has also accused this Court of failing to grasp its actual gripe, which is that the issue before the Tribunal had to do with pleadings, and not the interpretation of the Section 179 (2) (b). All I can say is that the Applicant is merely grasping at straws. The Tribunal does not need to stand and shout - 1+1=2, 2+2=4, 3+3=6, 4+4=8, before it says 5+5=10.
The Tribunal is not a primary school pupil, and in affirming its decision, this Court did not have to go through its exercise book to cross check whether the Tribunal did the right sums or ticked the right answers.
The bottom line is that the Tribunal found as a fact that the 1st Respondent secured % of all the votes cast in 15 LGAs, which satisfied the provision of the said Section 179 (2) (b), and that is all there is to it.
But the Applicant did not end there, it also complained it had made out a prima facie case that the 1st Respondent was not qualified, and accused us of failing to make a finding that Mike Okoye, Esq., is the rightful Governor based on the authority of Amaechi v. Omehia (supra).
In other words, that we did not address the issue of qualification it raised.
Again, this Complaint has no legs to stand on. This Court clearly held -
"On the preliminary objection raised by the 1st, 2nd and 3rd Respondents, I had set out earlier the Ruling of the Trial Court on the issue of the qualification of the 1st Respondent to contest the election. That Ruling has not been challenged by the Appellant. No appeal was filed against it. Yet, the Appellant at the Tribunal after that Ruling still proceeded to raise issues thereto in its final address. On this issue, the Tribunal at page 210 of their Judgment had this to say - "The above quoted Ruling and decision of this Tribunal in this Petition on 12th May 2010 remains e