Action comes fewminutes before verdict' Petition invalid afterNov. 13WITH a single phone call, the Court of Appeal has stirred a fresh controversy. The source of the contention that may soon rage in the political and judicial spheres of the nation is the appellate court's dissolution of the Borno State Election Petition Tribunal.The disbandment came a few minutes before the tribunal was to deliver its decision on the petition filed by the candidate of the Peoples Democratic Party (PDP), Mohammed Goni, challenging the declaration of Governor Kassim Shettima as the winner of the April polls.The dissolution violates the order of the Supreme Court issued on October 31, 2011 directing that parties return to the same tribunal for continuation of hearing in the petition filed by Goni.The decision of the acting President of the Court of Appeal (PCA), Justice Dalhatu Adamu disbanding the panel was announced by the secretary to the tribunal to counsel representing the parties, their supporters, journalists and other members of the public who were in court to hear the tribunal's verdict on Goni's petition.Meanwhile, counsel for Governor Shettima, Dr. Alex Aigbe Izinyon (SAN) has written to Justice Adamu, faulting the decision to grant administratively the request of Goni to disband the panel, which was rejected by the Supreme Court on October 31, 2011.'What is more' Appeal No. SC / 352/ 2011 by the petitioners at the Supreme Court was dismissed. In the said appeal, they had invited the Supreme Court to invoke all its powers under Section 22 of the Supreme Court Act to hear the appeal as that of the Court of Appeal, Jos Division. One of the reliefs before the Court of Appeal is the disbandment of the panel and a new panel being set up. Now that the appeal No. SC/452/2011 was dismissed, that relief goes with it. How can it now be granted administratively'' Izinyon wondered.The secretary who refused to disclose his name said: 'The Chief Registrar of the Court of Appeal just spoke with me on phone. The panel will not be sitting again as he said I should inform you all that the PCA has ordered dissolved the present panel. A new panel will be re-constituted and communicated to parties.'This development triggered a fresh controversy as to why at this stage the PCA would choose to dissolve a panel by just an oral communication through an officer of the court.A similar development had resulted in an unprecedented face-off between the then Chief Justice of Nigeria (CJN), Aloysius Iyorgher Katsina-Alu and the suspended President of the Court of Appeal, Ayo Isa Salami.Katsina-Alu had barred the then Sokoto State Election Petition Tribunal from delivering its verdict on the governorship election petition at the time, a controversial directive that climaxed in a face-off between the two principal officers in the judiciary that has since enmeshed it in a credibility battle.Most lawyers who were in court were astounded at the development and could not hide their consternation as they condemned the manner of the dissolution. Speaking amongst themselves, they lamented that the manner of the panel's dissolution was suspicious and did not help the effort of the Chief Justice of Nigeria (CJN), Dahiru Musdapher and other stakeholders to restore public confidence to the judiciary.A few who spoke freely with reporters on the basis of anonymity said beyond the further erosion of public confidence, the dissolution of the panel did not serve the interest of justice.'Why should the PCA announce the dissolution of the panel whose decision is to be made today through oral information from a court official' It ought to be communicated vide an official instrument, which should also communicate a cogent basis for that action', a female lawyer, who said she had been following the Borno case keenly stated.Another senior legal practitioner stated: 'I am worried for our nation. The judiciary is eroding our faith in it as the hope of the common man. The dissolution is not in the interest of justice. By the clear provision of section 180 of the 1999 Constitution (as amended), the petition becomes dead, lifeless by November 13, 2011 because it would become exactly 180 days old. That is the Constitution and no court can breathe fresh life to it given the provision of section 180.'Yet another lawyer wondered why the PCA would not let the tribunal conclude a job that has a time line of November 13.'I believe the decision is ill-advised. What was the reason' A petition. If the PCA received a petition, the parties ought to have been notified and carried along. From what I hear now from counsel in the matter, they had no inkling of this dissolution until it was announced a few minutes ago. This is bad for justice and for the image of the judiciary', he stated.The Guardian recalls that on October 31, 2011, the Supreme Court had set aside the stay of proceedings granted by the Court of Appeal to halt proceedings at the Borno State Election Petition Tribunal in the Goni petition, seeking to nullify Shettima's victory at the gubernatorial polls.The apex court also ordered parties in the petition to return to the tribunal to continue its hearing from where it had stopped.Justice Walter Onnonghen, who vacated the order of the Court of Appeal, held that an interlocutory appeal in a case could not operate as a stay in an election matter, which must be concluded within a stipulated period of time.The Electoral Act 2010 said that any petition filed after an election must be concluded within 180 days after it was filed.Justice Onnonghen, who led four other justices of the court in deciding the appeal, held that the Court of Appeal has no power to stay the proceedings of the tribunal because the tribunal has automatic accelerated hearing as provided for in the Electoral Act 2010.Goni is challenging the ruling of the state election petition tribunal, which adjourned the sitting of the tribunal indefinitely after the Court of Appeal stayed the proceedings at the tribunal.Shettima, in his appeal asked the apex court to set aside an interim order stopping the tribunal from going ahead to deliver a ruling earlier slated for September 20, 2011.The governor had through his counsel Yusuf Ali (SAN), prayed the five-man panel of the Supreme Court to hold that the stay of proceedings granted by the Court of Appeal, Jos was illegal.He contended that the mandatory provisions of paragraph 18 of the Election Tribunal and Court Practice Direction 2011, made by President of the Court of Appeal for the regulation of proceedings before the trial tribunal, forbids the granting of stay of proceedings in an interlocutory appeal at the tribunal.He prayed the apex court to set aside the ruling of the court of appeal, Jos and also asked the apex court for an order remitting the matter to a different panel of the Court of Appeal constituted by the President of the Court of Appeal to be heard on the merit.Counsel to Goni and PDP, Lateef Fagbemi (SAN) who has Chief Joe Kyari-Gadzama (SAN) on his team, said that they proceeded to the Court of Appeal in order to ensure that their case before the tribunal did not become extinct on November 13, 2011 pursuant to section 285 (6) of the 1999 Constitution as amended.After November 13, 2011, the appellant would have been shut out completely with regard to their challenge of the election into the office of the governor and deputy governor of Borno State of Nigeria conducted on April 26, 2011.But Fagbemi stressed that for the mere fact that an interlocutory application was before an appellate court did not mean that a substantive judgment had been entered at the tribunal to warrant counting of the 60 days constitutional provision within which the appellate court was supposed to resolve the application in question.He said that in the instant case, since the tribunal had not delivered judgment, the 60 days referred to in that section had not started, adding that the issue of the case being statute-bared did not arise.
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