FACTS The third respondent conducted governorship election in Delta State. At the conclusion of the election in question, the Appellant was declared the winner and returned by the 3rd Respondent. The 1st and 2nd Respondents were dissatisfied with the declaration of the Appellant as the winner of the said election. Consequently, both the 1st and 2nd Respondents filed in the lower Tribunal the petition (EPT/DT/GOV/32/2015). The Appellant filed a reply to the said petition and raised a preliminary objection challenging the jurisdiction of the lower tribunal to entertain the petition. The appellant equally filed a separate motion on notice once again challenging the jurisdiction of the lower tribunal to determine the petition for being incompetent. Upon taking argument of the respective parties, the lower tribunal in a reserved ruling granted the application. The present appeal is against ruling delivered by the Chairman and the two other members of the Tribunal. Appellant’s issues for determination The Appellant’s brief raised two issues for determination viz: Whether the decision of trial tribunal made on 30th June, 2015 is not a nullity having regards to the provisions of paragraph 27(1) and (2) of the 1st Schedule of the Electoral Act, 2010 (as amended) and Section 23 of the Federal High Court Act, 2004. Whether the trial Tribunal’s decision that by virtue of paragraph 12 (5) of the 1st Schedule to the Electoral Act, 2010 (as amended) all objections irrespective of whether they are on jurisdiction or competency of the petition, must be heard along the substantive petition, is not erroneous in law. Appellant’s submission The submission of Appellant on the first issue is that the decision of the trial Tribunal is a nullity by virtue of the provisions of paragraph 27(1) & (2) of the First Schedule to the Electoral Act, 2010 (as amended), and Section 23 of the Federal High Court Act, 2004. It was contended, that paragraph 27(1) of the First Schedule to the Electoral Act, 2010 (Supra) stipulates the composition of the Election Petition Tribunal, with regards to the determination of interlocutory questions and matters, to be the Chairman of the Tribunal or the Presiding Justice of the Court (of Appeal). It was further contended, that the word “may” used in paragraph 27(1) of the First Schedule (Supra) connotes mandatory adherence to the said provisions. See OKONKWO VS. UBA PLC (2011) 16 NWLR (Pt. 1274) 614 @ 628 paragraph E; BAMISILE VS. OSASUYI (2007) 9 NWLR (Pt.1042) 225 @ 270 – 271 paragraphs G – C; (2007) LPELR-8221(CA). The learned silk accordingly urged the Court to resolve the Issue No. 1 in favour of the Appellant, and set aside the proceedings of the trial Tribunal and the decision therefrom. On Issue No. 2 it was submitted by the learned SAN, that the lower Tribunal acted in error when it held that all objections, irrespective of whether they are on jurisdiction or competency of the petition, must be heard alongside the substantive petition. It was contended that the objections of the Appellant herein raise issues of jurisdiction, which are the life-wire or spinal cord of any case, thus must be handled before any step is taken in any proceedings. The Court was urged to so hold, and resolve the issue No. 2 in favour of the Appellant. Consequent whereupon, the Court was urged to invoke Section 15 of the Court of Appeal Act, 2004 to hear and determine Appellant’s preliminary objections in question. See INAKOJU VS. ADELEKE (2007) 4 NWLR (Pt. 1025) 423 @ 616 paragraphs A – B; DAPIANLONG VS. DARIYE (2007) 8 NWLR (Pt. 1036) 332 @ 404 paragraphs C – D; (2007) LPELR-928(SC). Respondents’ issues for determination 1st and 2nd Respondents raised two issues for determination viz: Whether or not the ruling of the Governorship Election Tribunal delivered on 30/06/2015 is a nullity on the ground that the Tribunal heard the application and delivered the ruling instead of only the chairman hearing the application and delivering the ruling? Whether the Tribunal was wrong in its decision that applications and objections intended to terminate the petition without hearing it on its merit be taken along with the hearing of the substantive petition? 3rd-6th Respondents adopted the issues formulated by the Appellant. Respondents’ submissions 1st and 2nd Respondents on Issue No. 1 submitted that the Tribunal below acted within its powers and jurisdiction in the ruling delivered on 30/06/15 in question, to the conclusive effect that the preliminary objections were to be heard along with the petition. Regarding the question as to the composition of the Tribunal, which heard the oral application and delivered the ruling on 30/06/15, it was allegedly not objected to by Appellant at the pre-hearing session on 23/06/15. That there is no basis for the Appellant’s complaint, having participated fully in the proceeding which resulted in the ruling in question. Thus, the Appellant is deemed to have acquiesced and waived any right to question the composition of the Tribunal of three (members) hearing and determining the issue. It was contended, that the alleged non-compliance with paragraph 27(1) of the First Schedule is only an irregularity which parties can waive. The issue of three members of the Tribunal sitting, hearing and determining the application does not go to the issue of jurisdiction; because paragraph 27(1) of the 1st Schedule (Supra) is a procedural rule, which does not raise the issue of jurisdiction see SA’EED VS. YAKOWA (Supra); BELGORE VS. AHMED (Supra). On issue No. 2 it was submitted that the decision of the Tribunal, to the effect that objections and motions intended to terminate the petition without hearing on the merit be heard along with the substantive petition, is perfectly in order. See paragraph 12(5) of the First Schedule to the Electoral Act 2010 (as amended); Section 38 of the Electoral Act, 2010. see SA’EED VS. YAKOWA (Supra); BELGORE VS. AHMED (Supra). Furthermore, paragraph 18(2)(b) of the First Schedule (Supra) gives the Tribunal the discretion on how to conduct its proceedings. See NAA VS. OKORO (1995) 6 NWLR (Pt. 403) 510 @ 523 – 524; SARAKI VS. KOTOYE (1990) 4 NWLR (Pt. 143) 144 @ 171 paragraph G. The Court was thus urged to resolve the Issue No. 2 against the Appellant, and dismiss the appeal in its entirety. Regarding the Appellant’s prayer for invocation of the power of the Court under Section 15 of the Court of Appeal Act, 2004, it was argued that there is no valid basis known to law upon which the Court at this stage can hear and determine the issues in question. That the hearing of the petition has not commenced. The 3rd–6th Respondents’ adopted the appellant’s issues and urged the Court to allow the appeal. Determination of the appeal In determining the appeal the Court adopted the two issues raised by the Appellant. On issue 1 The Court considered the provisions of the First Schedule to the Electoral Act, 2010 (as amended) and Section 23 of the Federal High Court Act. It was stated by the Court that most ironically, however, contrary to the contention of the learned silk, the decisions of the Court in the cases of ADELEKE APAPA VS. INEC (Supra) and DR. WALE OKEDIRAN VS. AGBOOLA HOSEA AYOOLA (Supra), et al, undoubtedly no longer represents the correct position of the law regarding the provision of paragraph 27(1) of the First Schedule to the Electoral Act, 2010 (as amended). That indeed, the question of compliance or otherwise with any provision of the First Schedule to the Electoral Act, 2010 (as amended), inclusive of paragraph 27(1) thereof, has no bearing whatsoever to jurisdictional issue. That at best, the question of compliance or non-compliance with paragraph 27(1) of the First Schedule to the Electoral Act, 2010 (as amended), may amount to an irregularity only, which does not in any way go to the root of jurisdiction. See MOHAMMED DELE BELGORE, SAN & 2 ORS VS. ABDULFATAH AHMED & 3 ORS (2013) 8 NWLR (Pt. 1355) 60. Instructively, in BELGORE VS. AHMED (Supra), that the Apex Court held, inter alia, most authoritatively, that – Jurisdiction is only donated by the constitution and/or statutes. That the First Schedule to the Electoral Act, 2010 being rule of procedure for election petitions, do not confer jurisdiction. See SA’EED VS. YAKOWA (2013) 7 NWLR (Pt. 1352) 124, BELGORE VS. AHMED (Supra), DADA VS. OGUNREMI (1962) 2 SCNLR 417. That regarding the attitude of Court to non-compliance with rules thereof, the Supreme Court laid down a proposition to the effect, that the current and prevailing principle in the administration of justice is that where in the beginning or in the course of the proceedings, a party commits an omission or mistake in the laid down practice and procedure, it can be regarded as an irregularity which the tribunal or Court can and should rectify or even ignore so long as it is satisfied that the omission or mistake occasions or is incapable of occasioning any injustice to the other party. That this is the principle deliberately engrafted by the legislature into paragraph 53 (1) (2) and (4) of the First Schedule to the Electoral Act, 2010 (as amended). See BELGORE VS. AHMED (Supra) @ 91 – 92, paragraphs G – B per Tabai, JSC; SA’EED VS. YAKOWA (Supra) 1 @ 144 – 145 paragraphs H – B per Tabai, JSC. That against the backdrop of the foregoing far-reaching reasoning, it is obvious that the provisions of paragraph 27(1) of the First Schedule to the Electoral Act 2010, as amended notwithstanding, by virtue of Section 285(2) & (4) of the 1999 Constitution, (as amended), it is only the Tribunal as duly constituted of not less than three members (including the Chairman) that has the exclusive jurisdiction to entertain, hear and determine petition questioning the election of a person as Governor of a State. Arguably, the proceedings in an election petition include all matters, questions or issues that may arise in the proceedings up to the final determination of the petition. That the exclusive jurisdiction accorded the Tribunal under Section 285(2) & (4) of the 1999 Constitution, (as amended), undoubtedly includes the power to deliver interlocutory as well as final decisions in the petition. See OMEJEB VS. ODUM (2011) ALL FWLR (Pt. 600) 1328, NGIGE VS. OBI (2006) NWLR (Pt. 999) 1 @ 209 – 210, NGIGE VS. INEC (Supra) per Agim, JCA, @ 22 – 23; LPELR-25413(CA). It was held to be obvious that paragraph 27(1) of the First Schedule to the Electoral Act, 2010 (as amended) is ultra vires the provision of Section 285(4) of the 1999 Constitution (as amended), regarding quorum of the Tribunal when it sits to hear and determine interlocutory questions and matters in the election. Yet, by virtue of the provisions of Section 1(3) of the 1999 Constitution, the supremacy of the constitution over all other laws is not in doubt. Thus, in the event of any law being inconsistent with the provision thereof, the constitution shall prevail, and that other law shall, to the extent of the inconsistency, be declared void and of no effect whatsoever see Section 1(1) and (2) of the 1999 Constitution, (as amended); INEC VS. MUSA (2003) 1 SC (Pt. 1) 106; (2003) LPELR-1515(SC), OKOCHA VS. INEC (2010) LPELR (SC) 4718; OBASANJO VS. YUSUF (2004) 9 NWLR (Pt. 877) 144 @ 183; (2004) LPELR-2151(SC) SENATOR NGIGE VS. INEC (Supra); LPELR-25413(CA). Consequently, issue No. 1 was resolved against the Appellant. On issue No. 2 It was held that most instructively, the provisions of paragraph 12(5) of the First Schedule to the Electoral Act, 2010 (as amended) were introduced by the ELECTORAL (AMENDMENT) ACT, (No. 10) 2010, to the following effect: “38. The First Schedule to the Electoral Act, 2010 is amended – (c) in paragraph 12, by inserting a new subsection (5) (5) A respondent who has an objection to the hearing of the petition shall file his reply and state the objection therein, and the objection shall be heard along with the substantive petition.” It was held that from the unambiguous wordings as couched in the provision of paragraph 12(5) of the First Schedule to the Electoral Act, 2010 (as amended), the word ‘shall’ therein is mandatory, and ought therefore to be so construed. See BELGORE VS. AHMED (Supra) @ 92 – 93 paragraphs C – E per Tabai, JSC. That in the instant case, the Appellant has failed to establish, that the lower Tribunal has exercised the discretion thereof wrongly thus an appellate Court ought not to interfere with the exercising of discretion by a Lower Court, unless there is every cogent reason to do so. See NAA VS. OKORO (1995) 6 NWLR (Pt. 403) 510 @ 523 – 524 per Uwais, JSC (as His Lordship then was); GADI VS. MALI (2010) 7 NWLR (Pt. 1193) 225 @ 289 paragraphs E – H. As regards the question of whether the Court can exercise the power thereof under Section 15 of the Court of Appeal Act, 2004, and proceed to assume jurisdiction and determine all the preliminary issues raised by the Respondents before the Tribunal below. It was held that in the instant case, it’s obvious that there is no cogent basis whatsoever to warrant the Court to embark on the determination of the preliminary objections at this point and stage in time for the reasons adduced by the 1st and 2nd Respondents. See OYEYEMI VS. IREWOLE LOCAL GOVT. (1993) 1 NWLR (Pt. 270) 462; (1993) LPELR-2881(SC) A.N.P.P. V. R.E.C., AKWA IBOM STATE (2008) 8 NWLR (Pt. 1090) 453; (2008) LPELR-8322(CA). In the circumstance, the Issue No. 2 was equally resolved against the Appellant. On the whole in a unanimous decision having resolved both issues against the Appellant, the appeal failed, and was dismissed. Consequently, the ruling delivered by the lower Tribunal on 30/06/2015 in Petition No. EPT/DT/GOV/32/2015 was affirmed. Edited by LawPavilion Citation: (2015) LPELR-25656(CA) ]]>