In The Court of Appeal
(Makurdi Judicial Division)
On Thursday, the 12th day of April, 2012
Suit No: CA/MK/EPT/10/2012
Before Their Lordships
MOHAMMED LADAN TSAMIYA....... Justice, Court of Appeal
ALI ABUKAKAR BABANDI GUMEL....... Justice, Court of Appeal
PHILOMENA MBUA EKPE....... Justice, Court of Appeal
ITA GEORGE MBABA....... Justice, Court of Appeal
UCHECHUKWU ONYEMENAM....... Justice, Court of Appeal
Between
1. PROF STEVE TORKUMA UGBA
2. ACTION CONGRESS OF NIGERIA (ACN) Appellants
And
1. GABRIEL TORWUA SUSWAM
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondents
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the interlocutory decision of the Governorship Election Petition Tribunal, Holden at Makurdi, in Petition No. GET/BN/02/2011, delivered on 13/2/12 [Coram: Hon. Justice H.S. Mohammed (Chairman), Hon. Justice M. A. Degbola (Member) and Hon. Justice E. S. Chukwu (Member)]. Appellant, at the Lower Tribunal, had filed a motion on 28/1/12, praying the Lower Tribunal, among other reliefs, for:
"(a) ....
(b) An order setting aside its decision granting 1st and 3rd Respondents' application in its ruling delivered on 23rd January 2012, since same was delivered without jurisdiction and is consequently a nullity.
(c) An Order Restoring Ground Three of the petition and hearing and determining same on the merits pursuant to the directive order of the Supreme Court
(d) An Order Entering Judgment against the 1st, 2nd and 3rd Respondent in respect of Ground 3 of this Petition in favour of the petitioners,
(e) such further order(s) ....."
Upon hearing the application, the learned Tribunal, in a considered Ruling, held for the Appellant (Applicant) in respect of prayers (a) (b) and (c) and restored the Ground 3 of the petition for hearing; "that ground 3 of the petition still subsist (sic) and this still forms part of this petition". But in respect of prayer (d) the Tribunal held at page 983 of the records, as follows:
"Haven (sic) held so, can we give judgment to the petitioners on their Relief? We had reproduced in extenso the various depositions and further oral submissions of learned Counsels to the parties on this issue as to what is a traverse, the proper traverse and improper traverse. We have also reproduced the submission of Counsel on the fact that declaratory relieves cannot be granted even when there is no pleadings. It is clear that any attempt by us to digest any of the issues raised above leads to delving into the substantive case. We find such a trap at dragging us to pronounce on the substratum of this petition at this stage unattractive. We therefore make bold to state that we resist the seeming attractive temptation... The application ... for judgment per ground D is accordingly refused. We shall hear this petition on the merit."
That is the decision Appellants have appealed against in this appeal as per the Notice and grounds of Appeal filed on 22/2/12, raising one ground of appeal, as follows:
"The learned Tribunal erred in law in refusing to enter judgment against the Respondent in favour of the Appellant when:
(a) There was unchallenged and uncontroverted evidence adduced by the Petitioners;
(b) There was, on authorities and the law no proper traverse on the relevant averments by the Respondents to the relevant paragraphs of the petition.
(c) There was express admission of non-qualification by the 1st, 2nd and 3rd respondents and no proper traverse to the plea of disqualification in Ground 3 of the Petition; and this error occasioned a grave miscarriage of justice to the appellants."
For Relief, Appellants prayed us for:
(a) An order allowing this appeal and setting aside the decision of the trial Tribunal made on the 13th day of February 2012.
(b) An order entering judgment against 1st, 2nd and 3rd Respondent on ground 3 of Appellants petition covering non-qualification and disqualification of the 1st Respondent to contest the April, 2011 Benue State Governorship Election.
(c) An order declaring that 1st Respondent was not qualified and/or was disqualified to contest the Benue State Governorship Election of 26th April, 2011.
(d) An order declaring the 1st Appellant sponsored by 2nd Appellant as duly elected Governor of Benue State.
(e) Such further order(s) this Honourable Court shall deem fit in the circumstance.
Appellants filed their Brief of argument on 9/3/2012 and distilled the following issue for determination:
"Whether in view of the state of the pleadings, the admissions and unchallenged and uncontroverted evidence adduced by the Appellants the decision of the trial Tribunal in refusing to enter judgment against the Respondents can be justified."
On being served with the Respondents' Brief of arguments, the Appellants filed Reply Briefs - 1st on 26/3/12 against the 1st and 2nd Respondents' Briefs and then on 28/3/12 against the 3rd Respondent's Brief.
The 1st Respondent's Brief was filed on 19/3/12, wherein he also raised a preliminary objection. He, however, also filed the preliminary objection separately on 21/3/12. 1st Respondents issue for determination was:
Whether in view of the facts and circumstances of the Petition, the Appellants made out a case to warrant the trial Tribunal entering judgment on Ground 3 of the Petition in their favour. Of course, that was to be considered, if overruled on the preliminary objection.
The 2nd Respondent also filed a preliminary objection on 19/3/12 challenging the competence of the Appeal, as well as the 2nd Respondent's Brief on the same date.
The 2nd Respondent's issue for determination was:
"Whether the Appellants' case was such that the Tribunal could enter judgment in their favour on ground 3 of the petition on the pleadings without hearing the case on the merits"
The 3rd Respondent filed its Brief on 26/3/12 and the same was deemed duly filed and served on 28/03/12. The 3rd Respondent too raised a Preliminary Objection in the Brief of argument, but later applied to withdraw the same on becoming aware that the same was incompetent for not being duly filed. The 3rd Respondent's preliminary objection (raised and argued in its Brief) was accordingly struck out, together with the Appellant's reply thereto, i.e. paragraphs 1.2 to 1.14 of the Appellant's Reply Brief filed on 28/3/12.
At the hearing of the Appeal on 28/3/12, the 1st and 2nd Respondents argued their preliminary objections and urged us to dismiss the Appeal on that premise, for being incompetent.
Parties finally adopted their Briefs and urged us accordingly.
It is necessary to consider the preliminary objections raised by the 1st and 2nd Respondents first, before going to the main appeal, if that still becomes necessary.
But before doing that, it is equally necessary to state that after the learned Tribunal had dismissed the motion for judgment on 13/2/12 and adjourned the case for determination of the main petition on the merits, that decision to hear and determine the Appellant's Petition on the merit later suffered a still birth, occasioned by some recent events in the judiciary relating to some travails in the struggles to birth substantial justice in election matters. Specifically, the learned Lower Tribunal had somersaulted on 28/2/12, and overruled itself, by striking out the Appellants' petition, relying on the latest Supreme Court's decisions which hold that the life span of an election petition of 180 days starts to run from the date of filing the petition and cannot be extended and so the Appellants' Petition was spent.
Being that the Appellants' Petition was sent back to the Lower Tribunal by the Supreme Court, on 14/11/2011 (and that was after the 180 days had expired) for the Lower Tribunal to hear it on the merits, and considering the fact that Appellants have also appealed against the order striking out the Petition, the apparent judicial dilemma thereof forms the substance of Appeal in CA/MK/EPT/9/2012, which is the parent appeal of the matter that threw up this appeal (CA/MK/ELP/10/2011). The Respondents were therefore quick to refer us to the pendency of the said parent Appeal (CA/MK/EPT/9/2012), saying that without the same being determined and decided in favour of the Appellants, this appeal (CA/MK/EPT/10/2012) cannot be determined in favour of the Appellants; that since the former was scheduled to be heard on 23/04/12, the latter is doomed to fail.
The 1st Respondent's Notice of Preliminary Objection was premised on the prayer that the appeal be dismissed for being an abuse of Court process, for incompetence for being academic and for want of jurisdiction.
The grounds upon which the application was brought are:
(a) The present interlocutory appeal is an attempt to re-litigate the Appellants' Ground 10 and Issue 6 in Appeal No. CA/MK/EPT/8/2012, between the same parties, which ground was abandoned and issue 6 withdrawn when the said appeal was argued on 8th of March, 2012.
(b) The withdrawal of issue 6 in Appeal No. CA/MK/EPT/8/2012 is deemed in law to be a dismissal of the Issue 6 (and supporting grounds) with or without an order of Court and the attempt (by) the Appellants to re-litigate the same issue earlier withdrawn, in the present appeal is a gross abuse of Court Process.
(c) On 28th of February 2012, the trial Tribunal relying on the Constitutional duty of stare decisis applied the cases of Alliance vs. Independent Electoral Commission & 4 ors in Appeal No. SC.23/2012, delivered on 14/2/12 (unreported) and consolidated Appeals on All Nigeria Peoples Party vs. Alhaji Kashim Shettima & Anor and Alh. Mohammed Goni & 2 Ors in Appeals Nos. SC.1/2012 and SC.2/2012 delivered on 17/2/2012, and struck out Appellants' Petition.
(d) The substantive Petition which gave rise to this interlocutory appeal, having been struck out there is no petition upon which reliefs sought in this appeal can be based.
(e) This appeal is now academic and bereft of any live issue and this Honourable Court determines only live issues.
(f) It is necessary to save the Honourable Court the trouble of dissipating energy and resources in deciding an appeal over a subject matter that is spent.
(g) The Honourable Court should not be made to act in vain."
The Preliminary objection was supported by an affidavit of 6 paragraphs (paragraph 3 having sub-paragraphs (a) to (e)) and 3 Exhibits.
The 2nd Respondent's Notice of Preliminary Objection is founded on the grounds that:
"(i) The Records of Appeal was compiled and transmitted to this Honourable Court ouside the time allowed by paragraph 9 of the Election Tribunal and Court Practice Direction, 2011.
(ii) This appeal is based on a null proceedings of the Tribunal and is an academic exercise as the Petition was struck out by the Governorship Election Tribunal on the 28th February 2012 for lack of jurisdiction."
The Preliminary Objection by the 2nd Respondent was supported by an affidavit of 7 paragraphs with one Exhibit- the Ruling of the Lower Tribunal striking out the two Consolidated Petitions (GET/BN/02/2011 and GET/BN/03/2011) on 28/2/2012.
Arguing the Preliminary Objection, Learned Senior Counsel for the 1st Respondent, D. D. Dodo SAN (leading other Senior Counsel and others) in his brief - pages 4 to 9 (that is paragraphs 4.0 to 4.9) - raised two issues for determination as follows:
"(1) Whether the appeal has not become an academic exercise, having regard to the non-existence of the petition which gave rise to the appeal, the petition having been struck out by the tribunal on the 28th day of February 2012.
(2) Whether the appeal is not incompetent the Appellant having withdrawn issue 6 in their Appeal No.
CA/MK/EPT/8/2012, after the appeal was fixed for hearing, which issue 6 is similar to the sole issue in the present appeal between the same parties."
Counsel answered the two issues in the affirmative.
On Issue one, he submitted that where an appeal has no practical or utilitarian value to the Appellant, even if judgment is given in his favour, such an appeal is said to be academic and Courts of law are enjoined not to embark on a fruitless academic venture as the Courts have no duty to do so. He relied on the Supreme Court decision in Adeogun vs. Fashogbon (2008 17 NWLR (pt.1116) 149 at 180, where it was held:
"This appeal centres on whether the issues involved in the matter are now academic and hypothetical or are still live issues. In Plateau State of Nigeria v. Attorney General of the Federation (2006) 3 NWLR (pt. 967) 346, 1 defined academic and hypothetical suits at page 419:
"A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the Plaintiff even if judgment is given in his favour."
Counsel also relied on Agbakoba vs. INEC (2008) 18 NWLR (pt. 1119 464 at 546-547:
"An action becomes hypothetical or raises mere academic point where there is no live matter in it to adjudicate upon or when determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. When an issue in an appeal has become defunct, it does not require to be answered or controvert about and leads to making bare legal postulations which the Court should not indulge in; it is like the salt that has lost its seasoning. And like the salt in that state, it has no practical value to anybody and so also, a suit in that state has none particularly and practically to the Plaintiff ."
He submitted that it is not in contention that on 28/2/2011, the trial Tribunal, relying on the constitutional duty of stare decisis applied the case of Alliance v. Independent Electoral Commission & 4ors in Appeal No. SC.23/2012, delivered on 14/2/12 (unreported) and the consolidated Appeal in All Nigeria Peoples Party v. Alhaji Kashim Goni & 2ors in Appeal No. SC.1/2012 and SC.2/2012 delivered on 17/2/2012, and struck out the Appellants' petition. He therefore prayed that since the petition that gave rise to this appeal has been struck out, there is no petition upon which the reliefs sought in the appeal can be validly anchored; that the life of the interlocutory appeal, having been snuffed out, the appeal has become an empty academic exercise. He urged us to decline embarking on an academic voyage.
On Issue 2, Learned Senior Counsel submitted that by virtue of Order 11 Rule 1 of the Court of Appeal Rules, 2011, which is impari materia with Order 3 Rule 18(5) of the Court of Appeal Rules, 1981, an appeal which is withdrawn after the appeal is either fixed or called for hearing, whether with or without an order or Court, shall be deemed to have been dismissed. He relied on the Supreme Court decision in the case of Y. S. G. Motors Ltd vs. Okonkwo (2010) 15 NWLR (pt. 1217) 524 at 541-542; Adeagbo vs.Yusuf (1990) 6 NWLR (pt. 158) 588 at 595-596.
Counsel submitted on the strength of the above cases that having withdrawn Issue 6 in Appeal No CA/MK/EPT/8/2012, which is similar to the sole issue for determination between the same parties in this appeal, the withdrawal of the said Issue 6 is in law deemed to be a dismissal of the issue 6, with or without an order of Court, and the attempt by the Appellants to re-litigate the same issue earlier withdrawn is a gross abuse of Court process. He urged us to uphold the preliminary objection and dismiss the Appeal.
The 2nd Respondent's Counsel, Chief Solo Akuma, SAN, on his part, arguing the preliminary objection in pages 3 to 11 (paragraphs 4.0 to 4.12) of the Brief, submitted, on the first ground of the objection, that by paragraph 9 of Election Tribunal and Court Practice Direction, 2011;
"The Secretary shall within a period of not more that 10 days of the receipt of the notice of appeal, cause to be compiled and served on all the parties, the record of proceedings."
He said that the Records (pages 985 - 988) show that the Notice of Appeal was filed on 22nd February 2012; that by the operation of the paragraph 9 (supra), the records of proceedings was to be compiled and served as at 5th March, 2012; but it was done on 6th March, 2012 (as can be seen on the face of the Records) outside the time allowed by the applicable rules, and without the leave of this Court first sought and obtained.
Learned Senior Counsel submitted that the provision of the said paragraph 9 (supra) places mandatory burden on the Appellants and non-compliance renders the Appeal incompetent and liable to be struck out; that the use of the word 'shall' in the provision was intended by the legislature to command absolute obedience and removes the provisions from the discretionary realm of this Court, when this Court is entitled to disregard non-compliance with its rules or allow a party to remedy the defect after it has been discovered and challenged. He relied on the case of Nnonye vs. Anyichie (2005) 2 NWLR (pt. 910) 623 at 656-657:
"Rules of Court are in the nature of beacon light to the parties to a dispute, illuminating the path leading to justice. It would in the end result in injustice if it were open to the Court to hold one party bound by the rules while allowing the other to ignore them without good reason."
He further submitted that the principle of compliance with the rules of Court is fundamental in our jurisprudence and that the apex Court and this Court have emphasized it in several cases, particularly in Williams & Ors vs. Hope Rising Voluntary Funds Society (1982) NSCC 36 at 39. He added that Election Tribunal and Court Practice Directions, 2011, have the force of law and must be complied with so as to confer jurisdiction on the Court.
He relied on the case of Orji vs. PDP (2009) 14 NWLR (pt. 1161) 310 at 404- 405; Johnson vs. Osaye (2001) 9 NWLR (pt.719) 729 at 750.
On its ground 2 of objection, the 2nd Respondent submitted that since this is an interlocutory appeal, it presupposes that the subject matter of the dispute between the parties is still live and pending at the trial Court. He relied on the definition of the word 'Interlocutory' in the Black's Law Dictionary, 8th Edition, page 832, and on the case of C.G.D.G. Nig Ltd vs. Odurusam (2009) 5 N (pt. 1135 465 at 475:
"An interlocutory decision has been defined in several judicial authorities to mean one in which the order therein did not finally dispose of the rights of the parties in the case in which it is made."
See also Auwape vs. Shodipe (1957) 2 FSC 12; Ude vs. Agu (1961) All NLC 65 and Omonuwa Oshodin (1985) 2 NWLR (pt. 10) 925.
Counsel submitted that the question in this appeal is whether the petition upon which the interlocutory decision of 13/2/2012 is based is still live and pending for this Court to hear and determine this appeal? That this Court in the case of Ahmed vs. FRN (2009) 13 NWLR (pt. 1159) 536 at 549 had held:
"In an appeal against an interlocutory decision, the appellate Court must bear in mind that the matter or case is still pending and yet to be tried to the conclusion on the merit."
He submitted that there is no matter pending before the Governorship Election Tribunal, which this Court must bear in mind in this appeal; that the petition which gave rise to the interlocutory appeal was struck out on 28/2/2012 on Grounds of lack of jurisdiction, on the basis of two decisions of the Supreme Court, namely:
(1) SC.23/2012 - Action Alliance vs. INEC & ors (unreported) delivered on 14/2/2012, where the Supreme Court held as follows:
"(a) The petition giving rise to this appeal was filed on 17th May, 2011 and by the provisions of Section 285(6) of the 1999 Constitution an Election Tribunal shall deliver its judgment in writing within one hundred and eighty (180) days from the date of filing of the petition. The relief sought by the Appellant includes an order that the petition be returned to the Tribunal to be heard de novo by another panel. As at today, the one hundred and eighty (180) days has long lapsed and by the decisions of this Court the time stipulated iii the Constitution cannot be extended, which an order of retrial will tend to effect. In the circumstance the appeal is misconceived as same is an exercise in futility and is consequently dismissed."
(b) Consolidated appeal Nos. SC.1/ 2012 - ANPP v. Alh. Mohammd Goni & 4ors and SC. 2/2012, Alhaji Mohammd Goni & 3 ors, delivered on 17/2/12, where the Supreme Court held (per Onnoghen JSC): It has been held by this Court in a number of cases including consolidated appeal SC.141/2011, SC. 266/2011, SC.267/2011, SC.282/2011, SC.356/2011 and SC.357/2011, Brig. Gen. Nyako & Ors delivered on 27th January, 2012 that the time fixed by the Constitution is like the rock of Gibraltar or Mount Zion, which cannot be moved; that the time cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not within the time so fixed, it lapses as the Court is thereby robbed of the jurisdiction to continue to entertain the matter. It is very worrisome that despite the decision of this Court, since October, 2011 on the time fixed in the constitution some of the Justices of the Lower Court still appear not to have gotten the message. From where will the election tribunal get the jurisdiction to entertain the retrial after the expiration of the 180 days assigned in the Constitution without extending the time so allotted? Do Courts have the vires to extend the time assigned by the Constitution? The answer is obviously in the negative."
Counsel added that the purport of the above cases/decisions was that all proceedings conducted by the Election Tribunal outside of the 180 days from 17th May 2011, and particularly the decision of 13/2/2012, the subject matter of this appeal, were a nullity. He then queried whether this Court can entertain an appeal arising out of a null proceedings of a trial Court, and proceeded to answer same in the negative, relying on the case of Okoro vs. State (2012) 4 NWLR (pt. 1290( 351 at 379, where the Supreme Court held:
"When a Judge makes a null order or one without jurisdiction, it is advisable but not mandatory to go to Court to set it aside. The only reason for going to Court is to have it put on record that it has been set aside."
Counsel submitted that the proceedings of the Tribunal conducted without jurisdiction is a nullity and not deserving of the attention of this Court by way of an appeal, as in this appeal; that apart from the fact that this appeal is based on a null proceedings, that there is no live issue between the parties, since the petition has been struck out by the Tribunal, on the decisions of the Supreme Court; that it is settled principle of law that Courts do not indulge in academic or hypothetical questions. He relied on the case of A. G. Federation vs. ANPP (2004) LRCN 2671, where the Supreme Court held:
"There cannot be said to be a live issue in a litigation if what is presented to the Court for a decision, when decided, cannot affect the parties thereto in any way either because of the fundamental nature of the reliefs sought or of changed circumstances since after the litigation started. So that in case of an appeal, the Appeal may become academic at the time it is due for hearing. Even though originally there was a living issue between the Parties."
Counsel submitted that the changed circumstances since after the litigation started is the fact that the petition was struck out - on 28/2/12.
He urged us to uphold the preliminary objection and dismiss the appeal.
Appellants' joint Reply to the two preliminary objections is as per the Reply Brief, filed on 26/3/12. Learned Counsel for the Appellants, Oluwarotimi Akeredolu SAN (who settled the brief), leading S. A. Orkumah and a team of other lawyers, said that a common point of the two objections is the fact that the petition has been struck out on 28/2/2012 and that this has rendered the appeal an academic exercise. He submitted that such argument was not based on the record of appeal before this Court; that there is no application challenging the record and none seeking to amend the record of appeal.
Counsel submitted that since this Court, the parties and Counsel are bound by the record, and cannot travel outside it on a voyage of discovery, this Court should disregard and discountenance this arm of the preliminary objection. He relied on the case of:
Tubara vs. Minimah (2003) 32 WRN 1 (2003) 5 SCNJ 142 at 168; Sommer vs. FHA (1992) 1 NWLR (pt 219) 548; Texaco Panama Inc. of Nigeria Ltd. vs. SPDC (Nig) Ltd. (2002) 5 NWLR (pt.759) 209; Ogolo us. Ubara (2003) 11 NWLR (pt. 831) 231; Nuhu us. Ogele (2003) 18 NWLR (pt. 852) 251, Orugbo vs. Una (2002) 9 SCNJ 12, Funduk Engineering Ltd. vs. M. V. Arthur (1995) 2 NWLR (pt.392) 640 at 652, Okochi v. Animkwoi (2003) 18 NWLR (pt.851) 1 (2003) 2 SCNJ 260 at 271.
Learned Senior Counsel added that the import of this is that appeal shall be argued by parties based solely on the printed records. He relied on Ojemen vs. Momodu (1994) 1 NWLR (pt. 323) 685 at 697 -a decision of this Court. He urged us to strike out the objection on that ground, for incompetence or to discountenance same.
However, if this Court is to consider the objection on the merit, Senior Counsel for the Appellants submitted that the objection constitutes a gross abuse of the process; that the 1st Respondent's appeal on the same matter against the decision of this Court delivered on the 4/2/12 is pending in the Supreme Court as Appeal No. 62/2012 and the same has been fixed for hearing on 29/3/12.
Similarly, Counsel said, Appeal No. 63/2012 filed by the 2nd Respondent against the Appellants herein has since been entered on 22/2/12 and is also pending at the Supreme Court for hearing; that the 1st Respondent herein filed his Appellants' Brief in the Supreme Court on 12/3/12; that there cannot be a stronger example of abuse of Court process! Counsel submitted that the argument canvassed here on this angle of objection should accordingly be dismissed as constituting a gross abuse of the process of this Court. He relied on the case of Dingyadi vs. INEC (2010 4 - 7 SC (pt. 1) 76 at 129-134 (I. T. Muhammed JSC), 208 - 209 (Adekeye JSC),
Counsel further submitted that the 1st and 2nd Respondents cannot validly argue that this appeal is academic, because the petition was struck out on 28/2/2012. Firstly, that the order referred to cannot obliterate the constitutional right of action conferred by S. 285(5) of the 1999 Constitution (as amended) nor remove the jurisdiction conferred on the trial Tribunal by Section 285(2) to hear and determine petition as to whether any person has been validly elected to the office of Governor or Deputy Governor of a state. He relied on the case of Eyisan vs. Sanusi (1984) 4 SC 115 (1984)1SCNLR 353, where the Supreme Court held that the right of action in Court is also a constitutional right exercisable by a person with complaints touching his civil rights and obligations against another person, government or authority and once the exercise of this right of action has commenced it is not completed until the action is finally and completely determined by the Court of first instance or the Appeal Court; that in this case, the trial Tribunal is yet to 'hear' and 'determine' the petition filed in accordance with S. 285(5) of the Constitution; that the Tribunal is yet to reach a final decision on the fortunes of the petition within the meaning of Section 285(2) of the 1999 Constitution (as amended).
Counsel also submitted that the proceedings of the Tribunal cannot also be validly stigmatized as null proceedings; that a more potent argument to project is that Section 36(1) of the 1999 Constitution (as amended) was not invoked nor complied with; that by its tenor and substance, the Court is required to hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case, and shall give equal treatment, opportunity and consideration to all concerned and allow the petitioners to call witness. He relied on Baba vs. Civil Aviation Training Centre, Zaria (1991) 7 SCNJ (pt. 1) at 24 - where he said, the term determination, in the context of Section 36(1) of the 1999 Constitution, was explained to mean reaching a decision. He also relied on the Black's Law Dictionary (supra) page 480- for "determination" meaning: "A final decision by a Court or administrative agency: the Court's determination of the issue"; that at page 859 of the Black's Law Dictionary, the word "Final Decision" or Final Determination" means:
"A Court's last action that settles the rights of the parties and disposes of all issues in controversy... Also termed final appealable judgment; final decision; final decree; definitive judgment; determinative judgment; final appealable order."
Counsel submitted that in purporting to strike out the petition, none of the above criteria nor attributes of fair hearing articulated in Baba's case (supra) were satisfied and there was no determination of the petition as stipulated by Section 36(1) of the Constitution nor Section 285(2) thereof; that the Tribunal did not hear and determine the petition as required by the Constitution, before purporting to strike it out; that in doing so, the tribunal acted in gross breach of Section 36(1), entrenching the fundamental right to fair hearing. He relied on the Baba's Case (supra) at page 33, where Kanbi-Whyte JSC said:
"This is where the tribunal must reach a decision either way, in determination of the rights or obligations in issue..."
Counsel also relied on the case of LPDC vs Fawehinmi (1985) 2 (NWLR) (pt.7) 300 at 373, where the Supreme Court said:
"section 33 is an entrenched provision which has the privilege of nullifying any other provisions of the Constitution or any other legislation inconsistent with in. It has the distinction of being subject to amendment only after compliance with the provisions for so doing in the Constitution. It therefore stands solidly behind the citizen who is legitimately apprehensive that in determination of his civil rights and obligations there was a likelihood that his right to natural justice might be denied him."
Counsel submitted that the above, coming from a full panel of the Supreme Court, it is fallacious to contend, as done by 1st and 2nd Respondents, that this appeal has become academic; that none of those points, referred above, was brought out and canvassed and pronounced upon in the much touted decisions, the fulcrum of the objection.
Finally, Counsel submitted that the decisions of the Supreme Court on which the objection is tethered was rendered in contravention of the mandatory provision to Section 234 of the 1999 Constitution (as amended), which requires that the com