OLAYINKA SOGAOLU v. INEC & ORS
(2008)LCN/2939(CA)
In The Court of Appeal of Nigeria
On Monday, the 27th day of October, 2008
CA/I/EPT/NAHR/3/07
RATIO
CONDITION FOR THE EXERCISE OF A COURT’S DISCRETION
Where the party seeking the exercise of the court’s discretion has failed to place the materials necessary for the exercise of the discretion of the court in the party’s favour, the application ought to fail. It is never the principle- that the party opposing the grant of the discretion has the corresponding duty of supplying the facts which the applicant omitted or failed to supply to enable the court exercise its discretion. See DANGOTE Vs. CIVIL SERVICE COMMISSION PLATEAU STATE (2001) 9 NWLR (Pt, 717) 132 and MENAKAYA Vs. MENAKAYA (2001) 16 NWLR (Pt.738) 203. Per MUSA DATTIJO MUHAMMAD, J.C.A.
JURISDICTION: WHEN AN APPLICATION GROUNDED ON JURISDICTION MAY BE RAISED ON APPEAL
It is trite law in civil matters as well as election petition matters that when an issue borders on the jurisdiction of the court or Tribunal as in the instant appeal, any application grounded on same can be brought at any stage, even on appeal: UNILORIN V. ADENIRAN (SUPRA).Per ISTIFANUS THOMAS, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
OLAYINKA SOGAOLU Appellant(s)
AND
INEC & 44 ORS Respondent(s)
ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of the National Assembly Election Tribunal, Abeokuta Ogun State, delivered on 21st August, 2007 and dismissed the appellant’s petition for non compliance of the Electoral Act 2006.
The brief facts of the petition at the lower Tribunal is that the 1st, 2nd, 4th – 44th respondents filed on 26-07-07 application on notice of an objection challenging the petition on the grounds of lack of jurisdiction and urged that the petition be dismissed or struck out. It was their contention that the petition is fundamentally defective in that it was not in compliance with the Electoral Act 1st schedule and Practice Directions 2007. During hearing of the application, the 3rd respondent verbally aligned himself with the 1st, 2nd, 4th-44th respondents application. In its decision, the Lower Tribunal upheld the said preliminary objection and declared that it had no jurisdiction to entertain the appellant’s petition since he had not applied for the issuance of pre-hearing Notice in Form TF007 within the time stipulated in the Electoral Act and Practice Direction. The Tribunal also found that the petition was not specifically signed personally or by his solicitor.
Dissatisfied with the decision the appellant has appealed to this court on 3 grounds of appeal from which he has formulated three issues for determination. They read as follows:-
ISSUE I
“Whether the Tribunal was right to have treated the petition as abandoned in accordance with paragraph 3 (4) of the Election Tribunal & Court Practice Direction, 2007 in the circumstance of this case. (Ground of Appeal No.3)
ISSUE II
Whether the Tribunal was justified in dismissing the petition for non-compliance with paragraph 4(3)(b) of the first Schedule to the Electoral Act 2006 and placing heavy reliance on Okafor v. Nweke (2007) ALL FWLR (Pt 368) 1066 when the said case differs significantly with the case of the appellant herein. (Ground of Appeal No.2) ,
ISSUE III
Whether haven taken fresh steps in the proceedings by virtue of paragraph 49 of the First Schedule to the Electoral Act, 2006, the 1st, 2nd, 4th-44th Respondents/Applicant are not stopped from raising objections to matter which they have impliedly waived. (Ground of Appeal No.1)”
On the part of the 3rd respondent he formulated similar issues for determination but in different words. They read thus:-
“(i) Whether the Honourable Tribunal was not right to have deemed the petition abandoned pursuant to paragraph 3(4) of the election Tribunal and Court Practice Directions, 2007 and in the face of noncompliance by the parties with the provisions of paragraph 3 (1) and (3) of the said Practice Directions.
(ii) Whether the Tribunal was not justified in dismissing the petition for non-compliance with paragraph 4(3)(b) of the First Schedule to the Electoral Act 2006 and the decision of the Supreme Court in the case of NWEKE (2007) ALL FWLR (PART 368) 1066.
(iii) Whether there was an implied waiver on the part of the Respondents by reason of any fresh steps taken in the proceedings by virtue of paragraph 49 of the 1st Schedule to the Electoral Act 2006 which rendered the application for dismissal belated and incompetent.”
At this stage, I have to point out that the 1st, 2nd, 4th-44th respondents who were the official Independent National Electoral Commission (INEC) officers who, actively participated and conducted the election on 14th April, 2007 were respondents at the Lower Tribunal. They were the applicants who raised the Notice of Preliminary objection and was sustained and hence the appeal. But to my utter surprise, the set of respondents have distanced themselves to this appeal. They deliberately refused to file their briefs of argument. Be that as it may, since INEC and its officers are party to the appeal, they will be bound by the decision in this matter.
When the appeal hearing was on, Learned Senior Advocate, Chief Roberts Clark for the appellant, informed the court that they would like to withdraw the name of 45th respondent (PDP) from the names of parties, Same was granted and struck out as prayed,
Appellant’s issue No.1 is similar to 3rd respondent’s issue No.3. The appellant is arguing that the two sets of respondents had much earlier, filed their respective replies on 21-6-2007 and 2-7- 2007 respectively before the Lower Tribunal adjourned the petition for hearing on 13-7-2007 and further adjourned severally up to 9- 8- 2007, That the 1st, 2nd, 4th-44th respondents filed on 26-07-2007 their motion for dismissal, but that before then, the appellant had moved an application for inspection of electoral materials which was granted by the Tribunal and that both sets of respondents actively participated and did not oppose the application for inspection. It is the contention of the appellant that, the respondent’s application to dismiss the petition was not lawful as it was not made within a reasonable time as stipulated in paragraphs 49 (2) and (5) of the 1st Schedule to Electoral act 2006. Appellant further submitted that having actively participated in the proceedings at the Tribunal, the respondents are deemed to have waived their right to object to the petition. Learned silk referred to the following cases:-
YUSUF v. AKINDIPE (2000) 8 NWLR (Pt.669). 376, 387: YUSUF v. OBASANJO (2003) 15 NWLR (Pt.843) 293, 308: ABUBAKAR v. INEC (2004) II NWLR (Pt.854) 207, 217: NGIGE V. OBI (2006) 14 NWLR (Pt.999) 1, 44; EZEKE v. DEDE (1999) 5 NWLR (Pt.601) 80, 83 and urged this court to hold that the respondents should not have been granted their application to set aside the petition since it was not made within a reasonable time after they had taken active steps in the proceedings and had therefore waived their right to complain. Learned Senior Advocate urged that the Issue be resolved in favour of the appellant.
On the part of the 3rd respondent, which is contained in his issue (iii), argued at pages 12-15 of his brief is that the application for the dismissal of the petition, was based on the incompetence of it by challenging the jurisdiction of the court or Tribunal. Learned counsel for the 3rd respondent submitted that it is trite law, that when an issue burders on jurisdiction of a Court or Tribunal as in the instant appeal, an objection challenging the jurisdiction can be brought at any stage. Counsel referred to the following cases:-
UNILORIN v. ADENIRAN (2007) 6 NWLR (Pt.1031) 521: MANAGEMENT ENTERPRISES LTD V. OTUNSANYA (1987) 2 NWLR (Pt.55) 179 EFFIONG V. IKPEME (1999) 6 NELR {Pt 606} 263, 272: BABA BICHI V. HALDU (2004) 1 EPR 604; NWOKE V. EBEOGU (1999) 6 NWLR (Pt.606) 247; EZEKE V. DEDE (supra)
Learned counsel for the 3rd respondent concluded their argument in this issue by submitting that proper trial was not commenced. Their objection was based on the competence of the petition and the jurisdictional power of the lower Tribunal. Counsel urged the court to resolve issue (iii) in their favour.
I have carefully perused the parties briefs of arguments including relevant court processes filed at the Lower Tribunal. After being served with the petition, both sets of respondents filed their respective replies within time. It is clear at page 139 of the record that the 3rd respondent had stated in his paragraph 1(a) of the reply as follows:-
“1. The 3rd respondent shall at the trial of the petition or on sooner determination thereof contend as follows:-
(a) That the entire petition as presently constituted is incompetent having regard to the provisions of the Electoral Act. 2006…”
The reply of the 1st, 2nd, 4th-44th reply at paragraph 24 page 75 of the record is similar to 3rd respondent’s reply. It reads:-
“24. The respondents shall contend at the trial of the petition or on sooner determination thereof that the petition as presented is incompetent as same has failed to comply with the provisions of the Electoral Act, 2006.”
In my considered view, in the Electoral Act, 2006, along with the Practice Direction, 2007, there are specific two stages in election petition proceedings. The first stage is the pre-trial. It gives the parties whether petitioner or respondent a directive to comply with Tribunal processes effectively before the second stage, which is trial proper see NWOKE V. EBEOGU (1999) 6 NWLR (PT 606) 247, 258.
It is therefore important that paragraphs 49 (2) and (5) are clear to the point. It is stated thus:-
“49 (2) An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”
(3) ……………………..
(4) ……………………..
(5) An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings of the objection if brought immediately the defect on the face of the election petition is noticed.”
In appellant’s brief in paragraph 4.6, appellant has conceded that the two sets of respondents had timeously raised an alarm in their reply in paragraphs 24 and 25 that they indicated they shall raise an objection to the petition for non-compliance. It is therefore not in dispute, that, the two sets of respondents, had intimated the appellant at the earliest opportunity, that they would challenge the competence of the petition. My findings in respondents’ replies stated above however, is not that it amounts to proper preliminary objection challenging the competence of the petition. Since the Tribunal was yet to start a proper hearing by taking evidence, it was proper and in accordance with Paragraph 49 (2) of 1st schedule to Electoral Act, 2006, as it was made within a reasonable time and the respondents had not taken any fresh step in the proper-hearing proceedings. Their motion on notice filed on 26-07-07, challenging the competence of the petition was in order to be heard and determined before any further steps in the proceedings. It was brought immediately the defect on the face of the election petition was noticed: EFFIONG VS. IKPEME (supra). It is trite law in civil matters as well as election petition matters that when an issue borders on the jurisdiction of the court or Tribunal as in the instant appeal, any application grounded on same can be brought at any stage, even on appeal: UNILORIN V. ADENIRAN (SUPRA).
The condition required in challenging the competence of an election petition is stated in paragraphs 49 (2) of the 1st Schedule to Electoral Act, 2006. The condition is “made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect”
In the instant appeal, the respondents in my considered view, did not jump the gun before the proper second-stage which is trial proper, when the first set of respondents (1st, 2nd, 4th-44th respondents) filed on 26-07-07 their motion or objection to the petition on grounds of no-compliance with the electoral act. The trial Tribunal therefore had not started proper hearing when the Tribunal heard and ruled on the application dismissing the petition.
I am of the considered view that, it is a misconception for the learned senior counsel for the appellant, who submitted that the respondents had waived their objection because they participated at the proceedings. Participation in inspection of election petition documents can never be regarded as proper hearing proceedings, but merely a pre-trial; moreover mere filing of replies to election petition is not hearing proper.
As submitted by learned counsel for 3rd respondent, once there is non compliance with the mandatory requirements in election petition as in the instant matter, no any party nor the Tribunal or this appellate court can waive or overlook the incompetence of the petition of which time is of the essence. In EFFIONG VS. IKPEME (SUPRA); and ONYEMA VS. OPUTA (1989) 1 NWLR (PT.98) 382 this court and the apex court have stated that the principle of waiver or acquiescence does not apply where there has been a fundamental failure to comply with the requirement of a statute as such is not a mere irregularity. In the instant appeal, there was no waiver raised or granted by the respondents.
I accept the submission of learned counsel for the 3rd respondent, that the application of 1st, 2nd, 4th-44th respondents’ motion filed on 26-07-07, was based on the incompetence of the petition which if sustained, the jurisdictional competence of the Tribunal to hear the petition had stopped. That was exactly what the lower Tribunal lawfully did by declaring that it had no jurisdiction to hear incompetent petition. In conclusion of appellant’s issue No. (1) which is in materia with the 3rd respondent’s third issue, I resolve that there was no waiver by the respondents and same is against the appellant.
In determining appellant’s issues (ii) and (iii) which are similar to 3rd respondents issues (i) and (ii), I deem it appropriate to consider them jointly and make my findings.
Appellant’s gravamen in issues (ii) and (iii) is that their inability in applying early for the issuance of Forms TF 007 and TF 008 in line with paragraphs 3 (1) of Practice Direction 2007 was not fatal to the petition as ruled by the tribunal; and that the Practice Direction is inferior to the Electoral Act, 2006; and that adherence to Practice Direction is crass technicality. Learned Senior Advocate for the appellant has submitted as per their paragraph 4.33 at page 10 of the brief that there is indeed a clash between paragraph 3 (4) of Election Tribunal and court Practice Directions 2007 and the combined provisions of paragraph 43 (1) – (6) of the 1st schedule to the Electoral Act & Order 23 of the Federal High Court (civil procedure) Rules 2000; and that the appellant has a right to take benefit of the provisions of paragraphs 43(1-7) of the same first schedule to the aforesaid Electoral Act and Orders 23 of the Federal High Court which was taken away by paragraphs 3 (4) of the Practice Direction, thus denying him the statutory rights to hear his petition. Another gravamen in issue (iii) is that in construing the provisions of paragraph 4 (3) (b) of 1st Schedule to Electoral Act, 2005, the lower Tribunal heavily relied on the Supreme Court decision in OKAFOR v. NWEKE (supra) which is not on all fours with the instant appeal. Counsel urged that the appellant’s solicitor, namely Adekunle Sulaiman ESQ. was written at the foot of the petition as the person who presented the petition and therefore argued that the appellant’s petition was dully signed by his solicitor. Appellant urged this court to resolve issues (ii} and (iii) in his favour.
The argument of 3rd respondent in his issues (i) and (ii) is that where words of a statute are clear and unambiguous, those words shall be so construed as to give effect to its ordinary or literal meaning as contained in Practice Direction paragraphs 3 (1) and 3 (4) and relied on the case of BERLIET(NIG) LTD VS. KACHALLA (1995) 9 NWLR (Pt.420) 478; EKEOGU VS. ALIRI (1991) 3 NWLR (Pt.179) 258. Counsel then submitted that the word “shall” in paragraphs 3 (i) and (4) is imperative, mandatory and directive, and that the appellant failed to apply for the issuance of Pre-hearing Notice as stipulated in the aforestated Practice Directions. Counsel further relied to OJUGBELE VS. LAMIDI (1999) 10 NWLR {pt 621} 167. 177; YUSUF VS. OBASANJO (2003) 16 NWLR (pt 847) 554. 603. Counsel further adopted their argument in their issue (iii) and the case of EFFIONG VS. IKPEME (supra) and contended that the competence of the Tribunal to adjudicate over the petition became a crucial issue when the due process before it did not conform with laid down due process. Learned Counsel further referred to the provisions in paragraph 4 (3) (b) of the First Schedule to Electoral Act that says election petition shall be signed by the petitioner or all petitioners or by the solicitor if any named at the foot of the election petition and then contended that in the instant petition, same was neither signed by the petitioner or solicitor, that it was rather signed by Adekunle Sulaiman & Co who is not a Legal Practitioner. Counsel urged the court to resolve issues (i) and (ii) in favour of the 3rd respondent.
In resolving appellant’s issue (ii) it is imperative to look at the provisions in Practice Direction No.1, 2007 as contained in paragraphs 3 (1) and (4) respectively. It provide as follows:-
“Paragraph 3 (1)
Within 7 days after the filing and service of the Petitioner’s reply on the respondents or 7 days after the filing and service of the respondent’s Reply, which ever is the case, the petitioner shall apply for the issuance of Pre-Hearing Notice in Form TF007.”
Paragraph 3 (4)
Where the Petitioner and the Respondent fail to bring an application under this paragraph, the Tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained”
(underlined are mine)
Now, by the appellant’s concession that it is true he did not apply for issuance of pre-trial Notice Direction in paragraph 3 (1) (4), it is only necessary to see the consequences. In the first place, it is trite law that Practice Directions shall apply to Presidential, Governorship, National Assembly and States Assembly Election petitions. This position of law is interpreted by the Appeal Court when considering the power given by the Honourable President of the Court of Appeal under Section 185 (3) of the 1999 Constitution and also under paragraph 50 of the 1st Schedule to Electoral Act 2006. The apex Court in a unanimous decision has forcefully stated that “by virtue of the aforesaid constitution and 1st schedule to Electoral Act, Practice Directions were made in exercise of the powers conferred on the Honourable President of the Court of Appeal. The Practice Directions must from all intents and purposes be taken to form part and parcel of powers conferred on the Honourable President of the Court of Appeal by all the powers exercisable by him in that behalf, with a view to facilitating the Tribunal or the Court to dispose of electoral matters with the urgency they require.” See OKEREKE v. YAR’ADUA (2008) ALL FWLR (Pt 430) 626, 644 PARAGAPH G – H.
Now by virtue of the decision of the apex Court in OKEREKE v. YAR’ADUA (SUPRA) there is no clash between the paragraph 3 (4) of Election Tribunal and Court Practice Directions 2007 as argued by the learned Senior Advocate for the appellant. By the consequential orders made in the Election Tribunals and Court Practice Direction 2007, paragraph 3 thereof is mandatory that where neither the petitioner nor the two sets of respondents as in the instant appeal have failed to file for a pre-hearing session, the Tribunal was under a duty to dismiss the petition as abandoned and no application for extension of time to take that step could be filed or entertained. Such steps, that is, applications for Notice of Pre-hearing are conditions precedence to the hearing of any matter in relation to the petition.
In the instant appeal, noncompliance of paragraph 3 of the Practice Direction had ripped off the Lower Tribunal’s jurisdiction to hear the appellant’s petition. see OKEREKE VS. YAR’ADUA (SUPRA) AT PAGE 646 PARAGRAPHS B – D, In the instant appeal, the Lower Tribunal was in perfect order by refusing to have jurisdiction to hear appellant’s petition. It is trite law, that a Tribunal is said to be competent to determine election petition if the four conditions are intact;
1. If it is properly constituted with respect to the number and qualification of its members.
2. The petition or matter is within its jurisdiction
3. The petition is instituted by due process of the law and electoral Act or law as the case maybe
4. Any action condition precedence to the exercise of its jurisdiction has been fulfilled. see MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR (pt 4) 587; AJEIGBE VS. KUSIRIO (1965) NMLR 284, 287; SANDE VS. ABDULLAHI (1989) 4 WLR (Pt.116) 387.
Based on the above finding of the competence of the Lower Tribunal, the appellant has woefully failed the acid test in pre-condition (3) and (4) stated above. When the Electoral Act, 2006 is saying the petition was not initiated by due process, it means the conditions of compliance with Practice direction paragraphs 3 was not carried out by the appellant. Since the time allowed for application of Pre-Hearing Notice had elapsed, the petition was not initiated by due process to clothe the Tribunal its jurisdiction; and I so hold.
As to the last issue of initiation by due process,paragraph 4 (3) (b) of the 1st Schedule to Electoral Act is very clear and unambiguous. It states thus:
“4(3). The election petition shall further:
(a) …………………………………..
(b) be signed by the petitioner or all petitioners or by the solicitor, if any named at the foot of the election petition.”
(underlined is mine)
In appellant’s brief at paragraphs 4.46 on page 12 thereof learned Senior Counsel has not been frank when he referred to page 34 of the record where he stated that it was written at the foot of the petition the person who presented the petition as:-
“Adekunle Sulaiman EsQ
Whose address for service
within jurisdiction is;
No. 26, Iyalode Street,
Opposite Akin Olugbode Hospital
Owu Abeokuta, Ogun State.”
A legal practitioner in the Temple of Justice has the duty to tell the truth as the case may be. In the instant appeal at page 35 of the record at the foot of the petition, the person who signed as the solicitor for the petitioner Is clearly the signature of a non-existing petitioner or petitioners, not a legal practitioner or solicitor of the appellant. The so called signature is signed by a
“Adekunle Sulaiman & Co”
47, Abeokuta Express Way Sango Otta,
Ogun State.”
This is contrary to the assertion of the appellant that this petition was presented by “Adekunle Sulaiman Esq.
I am therefore of the considered finding that the appellant’s petition which was not dated, was also not signed by the petitioner/appellant or his solicitor. This is flagrant non-compliance of paragraph 4 (3) (b) of the First Schedule to Electoral Act 2006 which is mandatory and directive. This has rendered the Tribunal no jurisdiction to hear undated and unlawfully signed (sic) by an unknown solicitor. The appellant has woefully failed to satisfy the Tribunal and this court, that “Adekunle Sulaiman & Co” is a name on the Register of Roll of legal practitioners or solicitor. see the Supreme Court decision in OKAFOR VS. NWEKE (2007) ALL FWLR (pt.368) 1066. It is worthy to note that the Court of Appeal and all other Lower Courts are bound to follow and comply with decisions of the apex Court.
In the final analysis, the Tribunal was justified in dismissing the petition for non compliance with paragraph 4(3)(b) of the 1st schedule to Electoral Act, 2006 and It was right that it relied on OKAFOR v. NWEKE, (SUPRA). Appellant’s issue (ii) which is similar to 3rd respondents issue (ii) is hereby resolved in favour of the 3rd respondent.
I further declare that the Tribunal was right in dismissing the petition as abandoned in accordance with paragraph 3 (4) of the Election Tribunals & Court Practice Direction 2007.
The appeal is unmeritorious and is dismissed with costs of N30,000.00 in favour of the 3rd respondent only.
MUSA DATTIJO MUHAMMAD, J.C.A.: My learned brother Thomas JCA had made available to me the draft of the lead judgment. Having read same I agree with his reasonings therein and the conclusion that this appeal has no merit. For the comprehensive reasons contained in the lead judgment as well as those stated hereunder for the sake of emphasis I also dismiss the appeal.
The Appellant filed a petition at the tribunal challenging the outcome of the election for the House of Representatives seat for the Abeokuta North/Obafemi Owode/Odede Federal Constituency conducted by the 1st, 2nd, 4th-44th Respondents on 21st April 2007. The 3rd Respondent who was sponsored by the 45th Respondent was declared the winner of the election.
While the 1st, 2nd, 4th-44th Respondent filed and served their reply to the Petition on the 21st June 2007, the 3rd and 45th Respondents filed and served theirs on 2nd July 2007.Paragraphs 22, 23, 24, 25 and 26 in the 1st, 2nd, 4th-44th Respondents’ reply to the petition it was averred thus:-
“22. In reply to paragraph 25 of the petition the Respondents shall contend that in seeking the reliefs contained therein the Petitioner failed to comply with the mandatory provision of the law.
23. The Respondents shall contend further that all the reliefs sought by the Petitioner are incompetent and cannot therefore be granted.
24. The Respondents shall contend at the trial of the Petition or on sooner determination thereof that the petition as presented is incompetent as same has failed to comply with the provision of the Electoral Act 2006.
25. The Respondents shall contend at this trial that this Honourable Tribunal lacks the jurisdiction to entertain this petition.
26. WHEREOF the Respondents state that the petition is incompetent, frivolous, vexatious and totally devoid of any merit and should be dismissed”.
In an application dated and filed on 26th July, 07, the 1st, 2nd, 4th and 44th Respondents sought the tribunal’s order to dismiss and/or strike out Appellant’s petition on the ground that:
“The petition is fundamentally defective in that: It is not in compliance with the Electoral Act, first schedule of the Act and Practice Directions thereto”
The application was argued on 4th and finally 9th of August 2007 after the petition had first been mentioned on 13th July and severally mentioned on 19th and 26th July 2007. In a well considered ruling, the tribunal having found that the petitioner had failed to comply with the mandatory provisions of paragraphs 4(3)(b) of the first schedule to the Electoral Act and paragraph 3(1) of the tribunal’s Practice Directions, dismissed the petition. The petitioner being dissatisfied with the tribunal’s ruling has appealed against same on a notice dated 10th September 2007 containing three grounds.
Parties have filed and exchanged briefs of argument. The three issue distilled in the Appellant’s brief from his grounds of appeal, which issues shall be considered in this contribution for the determination of the appeal reads:-
“(i) Whether having taken fresh steps in the proceedings by virtue of paragraph 49 of the first schedule to the Electoral Act, 2006, the 1st, 2nd, 4th-44th Respondents/Applicant are not estopped from raising objections to matter which they have impliedly waived. (Ground of Appeal No.1).
(ii) Whether the Tribunal was justified in dismissing the petition for noncompliance with paragraph 4(3)(b) of the first schedule to the Electoral Act 2006 and placing heavy reliance on Okafor v. Nweke (2007) ALL FWLR (Pt. 368) 1066 when the said case differs significantly with the case of the Appellant herein. (Ground of Appeal No.2).
(iii) Whether the Tribunal was right to have treated the petition as abandoned in accordance with paragraph 3(4) of the Election Tribunals & Court Practice Direction, 2007 in the circumstances of this case. (Ground of Appeal No.3)”.
Under the first issue Mr. Clarke Learned Senior Counsel in the Appellant’s brief and orally, submitted that the 1st, 2nd, 4th-44th Respondents having not challenged Appellant’s petition timeously the tribunal was for that reason and by virtue of paragraph 49 (2) and (5) of the first schedule to the Electoral Act 2006 wrong to have sustained the objection and struck out the petition.
He argued that the 1st, 2nd, 4th-44th Respondent filed their reply to the petition but deferred challenging the competence of the tribunal by virtue of the defect in Appellant’s petition till on 26th July 2007 when they filed their objection. In between the two dates, Learned Senior Counsel contended, the Respondents participated actively in the proceedings thereby waving their right to object to the defect in the petition. The tribunal’s reliance on the case of BABA BICHI Vs. HALADU (2004) 1 EPR 604 and its conclusion that the Respondents who were objecting to fundamental defects and not irregularities could still object inspite of their taking fresh steps after the discovery of the defects is a manifest error. If not anything the case of BICHI Vs. HALADU supra was decided under the 2003 Electoral Act that made no provision for the pre-trial session introduced for the first time by virtue of the Election Tribunal and Court Practice Direction 2007. Learned Senior Counsel relied on ABUBAKAR Vs. INEC (2004) 11 NWLR (Pt. 854) 207 At 217, NGIGE Vs. OBI (2006) 14 NWLR (pt.999) 1 At 44, EZEKE Vs. DEDE (1999) 5 NWLR (Pt.601) 80 At 83 and submitted that the 1st, 2nd, 4th-44th Respondents objection, with all the steps they took after the detection of the defects in the Appellant’s petition, in the light of the provision of paragraph 49(1) and (2) of the first schedule to the Electoral Act 2006, should have been dismissed. Learned Senior Counsel urged us to resolve the issue against the Respondent. Only the 3rd Respondent contested this appeal by filing a brief of argument. The 1st, 2nd, 4th -44th Respondents who brought about the up-set neither filed a brief of argument nor attended court inspite of their being served with hearing notice. The issues distilled in the 3rd Respondents brief are similar to the ones formulated in the Appellant’s brief the only difference being the numbering. The 3rd Respondent’s issues (i) and issue (ii) are similar to the Appellant’s issues (ii) and (iii) while the Respondents’ issue (iii) is similar to Appellant’s Issue (i).
In arguing their 3rd issue, Appellant’s first, Mr Ojutalayo Learned Counsel to the 3rd Respondent referred to paragraph 49(2) and (5) of the first schedule to the Electoral Act and submitted that the application for the dismissal of the petition was based on the competence of the petition and by extention the jurisdiction of the tribunal which can be raised at any stage of the proceedings. The question of the objectors waiving their right to challenge the jurisdiction of the court, Learned Senior Counsel contended, does not therefore hold. He relied on the Supreme Court decisions in UNILORIN Vs. ADENIRAN (2007) 6 NWLR 9Pt. 1031) 521, MANAGEMENT ENTERPREISES LTD. Vs. OTUSANYA (1987) 2 NWLR (Pt.55) 179 and further posited that the requirement of paragraph 4 (3)(b) of the first schedule to the Electoral Act 2006 is mandatory and noncompliance renders the petition a nullity. Learned Counsel further cited NWOKE Vs. EHEOGU (1999) 6 NWLR (pt.606) 247 At 25, EFFIONG. Vs. IKPEME: (1999) 6 NWLR (pt. 606) 263 At 272, KOLAWOLE Vs. ALBERTO (1989) 1 NWLR (Pt. 98) 382 and ONYEMA Vs. OPUTA (1987) 3 NWLR (Pt. 60) 259 SC and urged that the issue be resolved in their favour.
Now, the question to answer under Appellant’s first issue for the determination of the appeal is whether 1st, 2nd, 4th-44th Respondents’ Objection to the competence of Appellant’s petition was timeously made to have justified its being considered and eventually upheld by the tribunal under paragraph 49(2) of the Electoral Act’s first schedule which provides:
“49(2)An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity; shall not be allowed unless made within reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect”,
Learned Appellant Counsel has argued that the objection to his petition was not taken timeously. The 1st, 2nd, 4th-44th Respondents filed and served their reply to the petition on 21/6/07 but deferred filing the objection till on the 26th July 2007 before which date the petition had twice been mentioned on the 13th and 19th July 2007. The objection was eventually argued on the 4th and 9th August 2007. Between the 13th July 2007 and 9th August 2007 when the application for dismissal was taken the objector had actively participated in proceedings in respect of other applications filed by the Appellant and the 3rd Respondent. The objection, it is contended, should have been raised on the receipt of the petition as that was the time the Respondents, by virtue of paragraph 49 (2) of the first schedule, were deemed to have had the knowledge of the defect in the petition.
On the other hand, Learned Counsel to the 3rd Respondent submitted that since the objection raised was a jurisdictional one it could be raised at any stage of the proceedings not withstanding the provision of paragraph 49(2) of the first schedule. r am unable to agree with both Counsel.
By the combined operation of Section 151 of the Electoral Act and paragraph 50 of the Act’s first .schedule, the practice and procedure of the tribunal in relation to election petitions is governed inter alia by the Federal High Court (Civil Procedure) Rules Order 25 Rules 1, 2 and 3 which provide:-
“25
Rule 1: No demurred shall be allowed
2 (1) A party shall be entitled to raise by his pleading any point of law and any point so raised shall be disposed of by the judge who tries the cause at or after trial
(2) A point of law so raised may, by consent of the parties or by order of the court or a judge in chambers, on the application of either party be set down for hearing and disposed of at anytime before the trial.
(3) if in the opinion of the court or a judge in chambers the decision of the point of law substantially disposes of the whole action, ground of defence, set-off, counter claim, or reply therein, the court or judge in chambers may there upon dismiss the action or make such other order therein as may be just”.
Paragraphs 3 (7) (d) and 6 (10 and (3) of the Election Tribunal and Court Practice Directions 2007 which also supplements the tribunal’s rules of procedure are hereunder reproduced for ease of reference:-
“3(7) At the pre-hearing session, the Tribunal or Court shall consider and take appropriate action in respect of the following as may be necessary or desirable:-
(d) hearing and determination of objections on point of law
6 (1) No motion shall be moved. All motions shall come up at pre-hearing session except in extreme circumstances with leave of tribunal or court
(3) Every such application shall be accompanied by a written address in support of the reliefs sought”.
(underlining supplied for emphasis)
A community reading of the foregoing provisions brings out how and when objection on a point of law regarding an election petition is raised. Since by Order 2S Rule 1 of the Federal High Court (Civil Procedure) Rules, no objection can be taken by way of demurrer, same having been abolished, a Respondent to an election petition validly raises his objection, under Rule 2(1) to Order 2S, in his Reply to the petition which constitutes his pleading. The combined effect of Order 2S Rule 2(2), paragraph 3(7) and 6 (1) and (3) of the Practice Direction is that the tribunal is subsequently and by a formal motion on notice at the pre-hearing session or, where exceptional even before then, called upon to determine the objection as raised in the Respondent’s Reply. Thus, any objection on a point of law raised before the filing of the Respondent’s reply will be incompetent as same would be caught up by the provision of Order 25 Rule 1 that has abolished demurrer. By paragraph, 49(2) of the first schedule an objection on a point of law raised subsequent to the filing of the objectors pleading even if made out may he refused for not being raised timeously. In AJILOWURA Vs. DISU & ORS (2006) Vol. 10 MJSC 78, the Supreme Court in considering the import of Order 23 Rules 1, 2 and 3 of the Lagos State High (Civil Procedure) Rules 1972 which is similar to Order 25 Rules 1, 2 and 3 of the Federal High Court (Civil Procedure) Rules under reference held that an objection on a point of law raised outside the Defendant’s pleading is incompetent. It is validly raised in the pleading first before filing an application for the objection so raised to be set down for hearing before, at or after trial. See also DADA OGUNSANYA (1992) 3 NWLR (Pt. 232) 754 and IMADE Vs. MILITARY ADMINISTRATOR OF EDO STATE (2001) 6 NWLR (Pt.709) 478.
In the instant case 1st, 2nd, 4th-44th Respondents first ground of objection to the competence of Appellant’s petition was first alluded to in their Reply to the petition and followed by a formal application dated 26th July 2007 that the objection be set-down for hearing before trial as required by paragraphs 3 and 6 of the Practice Direction 2007. This certainly is what Order 25 rules 1 and 2 of the tribunal’s rules of practice also enjoined. The earliest time the objection could be raised after the receipt of the petition was at the filing of the Respondent’s Reply wherein the objection must mandatorily be. Having done so and complied with not only Order 25 of the tribunal’s rules but also paragraph 49(2) of the first schedule the objection became worthy of consideration and since it had been made out granted by the tribunal. But what of the second ground of objection on the Petitioner’s failure to apply for the issuance of a notice for the pre-hearing session?
The 2nd ground in 1st, 2nd, 4th-44th Respondents objection to the competence of Appellant’s petition was raised for the first time in the formal application in that behalf which was filed on 26th July, 2007 and pursuant to paragraph 3 of the Election Tribunal and Court Practice Directions 2007.
The paragraph provides:-
“3(1) Within 7 days after the filing and service of the Petitioner’s Reply on the Respondent, or 7 days after the filing and service of the Respondent’s Reply, whichever is the case, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.
(2) Upon application by a Petitioner under sub-paragraph (1) above, the Tribunal or Court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in Form TF 008 for the purposes set out hereunder:
(a) disposal of all matters which can be dealt with in interlocutory application;
(b) giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions;
(c) giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need to expeditious disposal of the petition;
(d) fixing clear dates for hearing of the petition.
(3) The Respondent may bring the application in accordance with sub-paragraph (1) above where the Petitioner fails to do so, or by motion, which shall be served on the Petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.
(4) Where the Petitioner and the Respondent fail to bring an application under this paragraph, the tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained”.
There is no doubt that the foregoing provision is mandatory and a Petitioner’s failure to apply for the issuance of the pre-hearing notice has the effect of stalling the hearing of the petition. Although non-compliance with the requirement of filing an application for the issuance of a pre-hearing notice does not abrogate the Petitioner’s right to approach the tribunal or defeat his cause of action, it entitles the Respondent to insist on the application and the issuance of the notice before the Petitioner can activate the jurisdiction of the tribunal. The practical effect of non-compliance here is that it puts the jurisdiction of the tribunal on hold, which by virtue of paragraph 3(4) of the practice Direction cannot be forever. Once raised, the issue of the Petitioner’s failure to apply for the issuance of a pre-hearing notice becomes a jurisdictional issue. See KATSINA LOCAL AUTHORITY v. MAKUDAWA (1971) 1 NMLR 100 and MADUKOLU Vs. NKEMDILIM (1962) 2 SCNLR 341. In NNONYE Vs. ANYICHIE (2005) 2 NWLR, the Supreme Court held that an objection to the jurisdiction of a court or tribunal may be raised in any of the following situations:-
(a) On the basis of the statement of claim or
(b) On the basis of the evidence received
(c) By motion supported by affidavit setting out the facts relied on or
(d) On the face of the writ of summons, where appropriate as to the capacity in which the action was brought or against who the action was brought. See also NDIC v. CHN (2002) 7 NWLR (Pt.766) 272 and AG, KWARA STATE Vs. OLAWALE: (1993) 1 NWLR (Pt.272) 645.
In the instant case, 1st, 2nd, 4th-44th Respondents, 1st ground of objection on the absence of the signature of the person who filed the petition comes under (d) above and in compliance with Order 25 rule 1 and 2 of the tribunals rules of court. It was however not possible for the Respondents to raise their 2nd ground of objection as the basis for doing same had not manifested itself either under category (a) or (d) above. It had to be raised soon after the occurrence of the fact on the basis of which the objection could be sustained. Mr. Ojutalayo is right therefore, to have submitted that issue of jurisdiction of a court being a threshold one can be raised any time since the procedure envisaged by order 25 rule 2 and 3 of the Federal High Court (Civil procedure) rules is glaringly in exhaustive. Whatever procedure an objector resorts to, the issue must be raised timeously. In the instant case paragraph 49(2) of the Electoral Act’s first schedule is specifically emphatic about the need to act timeously after the defect on the basis of which the tribunal’s jurisdiction is being challenged had come to the knowledge of the Respondent. See also TUKUR Vs. GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517; SANDE Vs. ABDULLAHI (1989) 4 NWLR (Pt.116) 517.
It follows that 1st, 2nd, 4th-44th Respondents 2nd ground of objection which equally raisesd a jurisdictional issue is competent. It is not an objection on a preliminary point which could be raise under Order 25 (2) and 3 of the rules of the tribunal but one which must necessarily be brought by a formal motion supported by an affidavit. See NNONYE Vs. ANYICHIE supra and ARJAY LTD Vs. AIRLINE MANAGEMENT SUPPORT LTD, (2003) 7 NWLR (Pt. 820 557)
From the plain and clear words of paragraph 3(1)(2)(3) and 4 of the Election Tribunal and Court Practice , Appellant being the Petitioner is obliged to apply for the issuance of the pre-hearing notice either within seven days after he has filed and served his reply on the 1st, 2nd and 4th-44th Respondents or seven days after the filing and service of their Reply on him whichever first occurs. When any of these events took place is a question of fact which fact must be supplied to the tribunal in the affidavit in support of 1st, 2nd, 4th-44th Respondents objection to assist the tribunal decide if indeed-the Petitioner had failed to apply for the issuance of the notice. These facts would also establish the Respondent’s right to insist that since Appellant has abandoned the petition the tribunal cannot proceed any further. It is only then that Appellant’s petition will, because of its being abandoned, be dismissed by the tribunal that has been moved under paragraph 3(4). These facts as indicated earlier in this contribution, have not been supplied by the 1st, 2nd, 4th-44th Respondents in their supporting affidavit.
Appellant’s complaint under his 2nd issue is that the holding of the tribunal under paragraph 3(4) of the Election Tribunal and Court Direction 2007 that he had abandoned his petition and the consequent dismissal of the petition is wrong in law. By Section 151 of the Electoral Act only the rules of procedure set out in the first schedule to the Act are to regulate the tribunal’s procedure. Learned Senior Counsel referred to the decisions in BONI HARUNA & ORS Vs. ADAMU M. MODIBBO & ORS (2004) 16 NWLR (Pt. 900) 487 and UNIVERSITY Vs. AIGORO (1984) 11 SC 152 At 171 and submitted that the Practice Direction that falls in conflict with the rules of procedure in the first schedule and, by the further application of paragraph 50 of the said schedule, the Federal High Court (Civil Procedure) Rules as well, should be ignored. Paragraph 43(1) and (6) of the first schedule as well as paragraph 23 of the Federal High Court (Civil Procedure) Rules allow for extension of time which opportunity was wrongly denied the Appellant by virtue of paragraph 3 (1) and (4) and (5) of the Practice Directions. It was further argued that notwithstanding Appellant’s defective application the tribunal had proceeded to issue a notice for pre-hearing session on the 6th July 2007 and it was wrong for the same tribunal to turn round and dismiss the petition for the lack of notice for the pre-hearing session. Days of sticking to technicalities are over and the tribunal’s decision, which smacks of same, should be up-turned. The petition could have been saved under paragraph 43(1) (7) of the first schedule and the Petitioner allowed to properly apply for the issuance of the pre-hearing notice. Learned Senior Counsel relied on BUCKNOR. MACLEANS Vs. INLAKS (1980) 12 NSCC 232 At 246, AWUSE Vs. PETER ODILI (2005) ALL FWLR (pt. 253)720 and EGOLUM Vs. OBASANJO (1999) 5 SCNJ 92 and prayed that their 2nd issue be resolved against the Respondents.
Arguing Appellant’s 2nd issue under their 1st issue, Learned Counsel to the 3rd Respondent Mr. Ajutalayo submitted that the clear and unambiguous words which make paragraph 3(1)(4) and makes it mandatory for a petitioner to apply for the issuance of a pre-hearing notice and failure to so apply renders the petition incompetent. Learned Counsel further submitted that the decisions in BONI HARUNA & ORS Vs. A. M. MODIBBO (supra) and UNIVERSITY OF LAGOS & ORS VS. AIGORO supra are no authorities for the non-applicability of the Practice Directions which as held in JIMOH OJUGBELE Vs. MUSEMILU O. LAMIDE & ORS (1999) 10 NWLR (Pt. 621) 167 At 111, must be complied with. Learned Counsel further relied inter alia on TIMITIMI Vs. AMABEB 14 WACA 374, MADUKOLU Vs. NKEDILIM (1962) 2 SCNLR 34, EFFIONG Vs. IKPEME (1999) 6 NWLR (Pt. 606) 263, BRONIK MOTORS LTD. Vs. WEMA BANK LTD. (1983) 1 SCNLR 296 and ONYEAMA VS. OPUTA (1987) 3 NWLR (Pt.60) 259 and urged that Appellant’s 2nd issue be resolved in favour of the 3rd Respondent.
Appellant’s 3rd issue raises questions on the tribunal’s heavy reliance on the Supreme Court’s decision in OKAFOR Vs. NWEKE (2007) ALL FWLR (Pt.368) 1066. Facts of the case in Nweke’s case (supra). Learned Senior Counsel to the Appellant submitted, differ significantly from the facts of the instant case and makes the earlier decision inapplicable. Paragraph 4(3)(b) of the first schedule to the Act only requires that the petition be signed either by the Petitioner or his Solicitor. Learned Senior Counsel contended that while in the Nweke’s case only the Name of the firm of Solicitors was appended, in the instant case the name of the Petitioner’s Solicitors and his address is clearly written at the foot of the petition. It is further argued that since there had been substantial compliance with paragraph 4(3)(b) the tribunal should have saved the petition under paragraph 49(1) of the first schedule. Senior Counsel relied on EGOLUM Vs. OBASANJO supra, AWUSE Vs. ODILI (supra) and NWOLE IWUAGWU & ORS (2004) 15 NWLR (Pt.895) 61 and prayed that we resolve the issue in Appellant’s favour and save the petition under paragraph 49(1) of the first schedule. On the whole he urged that the Appeal be allowed.
Reply by 3rd Respondent’s Counsel to arguments advanced by Learned Appellant’s Counsel under Appellant’s 3rd issue is terse. Paragraph 4(3)(b) of the first schedule to the Electoral Act which requires that a petition be signed by either the Petitioner himself or his Solicitor is a mandatory provision as well. Non-compliance with the provision on the authority of AJEIGBE Vs. KUSIMO (1965) NMLR 284 At 287 and SAUDE Vs. ABDULLAHI (1989) NWLR (PT.116) 387 rendered the petition incompetent. Appellant’s petition was neither signed by the Appellant nor his Solicitor. Instead, it was signed by Adekunle Suleiman & Co., the firm of Solicitor representing the Appellant. To that extent, Learned Counsel submitted, the tribunal is right to rely on the decision of the Supreme Court in OKAFOR Vs. NWEKE. Learned Counsel prayed that the issue be resolved against the Appellant and the appeal being without merit dismissed.
In the determination of Appellant’s first issue against him, we have resolved that the entire objection against Appellant’s petition was competent. What need to be further resolved in the determination of the entire appeal is whether one or both grounds of the objection had been made out to warrant the dismissal of the petition on either or both grounds. Appellant’s 2nd and 3rd issues for determination seem distilled on the basis of this crucial question. The two issues will be considered jointly in this contribution.
Three submissions of the Learned Counsel to the 3rd Respondent while arguing the two issues remain unassailable. Firstly, he contended that the meaning or a statute couched in clear and ordinary words comes through by giving effect to the plain and literal meaning of the words which make up the statute. This is a valid statement on a principle of law that has become trite and must, therefore, be conceded to Learned Counsel. See AG, ABIA STATE Vs. AG FEDERATION (2005) 12 NWLR (Pt.940) 452 SC and KRAUS THOMPSON ORG. Vs, N.I.P.S.S.(2004) 17 NWLR (pt.901) 44 SC.
Secondly, learned Counsel has also posited that where a statute provides for the manner of doing a particular act the act is adjudged done only if performed in the manner the law stipulates it should. Again, nobody takes this away from Counsel. See FALOYE Vs. OMOSENI (2001) 9 NWLR (Pt.717) 10 and AUCHI POLY Vs. OKUOGHAE (2005) 10 NWLR (Pt. 933) 1 279.
Thirdly, because the facts and even the legislation on the basis of which the decision in OKOLO Vs. NWEKE was arrived at are the same with those the tribunal contended with in the instant case the decision in the earlier case binds the tribunal and the tribunal’s decision which drew from the earlier decision of a superior court is beyond reproach. Again Learned Counsel’s position on what stare decissis is and its role in the adjudication process cannot be faulted. His is a correct statement on the principle. See CHIEF OF AIR STAFF Vs. IYEN (2005) 6 NWLR (Pt. 922) 496 SC and ODUGBO Vs. ABU (2001) 14 NWLR (Pt. 732).
Now, how do all these principles impact on the fate of the instant appeal?
The 1st, 2nd, 4th-44th Respondents challenged the competence of Appellant’s petition on two grounds. The affidavit in support of 1st, 2nd, 4th-44th Respondents’ motion of notice challenging the competence of the petition spans pages 225-226. The only statement of fact in the said affidavit is as contained in paragraph 5 thereof wherein it is averred thus:-
“5 That the petition before the Honourable Tribunal was neither signed by the Petitioner nor his Solicitor”.
Nowhere either in the paragraphs preceding or subsequent to the foregoing paragraph was any fact regarding the Petitioner’s failure to apply for the issuance of a pre-hearing notice averred to. The contention was only made in the written address in support of 1st, 2nd, 4th-44th Respondents formal application contemporaneously filed with the motion on notice on 26th July 2007. A Counsel does not supply facts. He guides the court on the law applicable to ascertained facts. That not withstanding, the tribunal was urged to decline jurisdiction in respect of the Appellant’s petition on two grounds: for its being in breach of paragraph 4(3)(b) of the first schedule to the Electoral Act 2006 and paragraph 3(1) and (4) of the Election Tribunal and Court Practice Directions 2007. The tribunal found as a fact that neither the Petitioner nor his Solicitor signed the petition as required by paragraph 4(3)(b) of the first schedule. Notwithstanding the paucity of facts in the affidavit in support of 1st, 2nd, 4th-44th Respondents formal objection, the tribunal also found that the Appellant had failed to apply for the issuance of a pre-hearing notice. I am unable to agree with the tribunal in its latter finding. I shall explain at once.
The powers the 1st, 2nd, 4th-44th Respondents asked the tribunal to exercise under paragraph 3(1) and 4 of the Election Tribunal and Court Practice Directions 2007 are discretionary powers. A party who seeks an exercise of discretion by the court or tribunal in his favour has the burden of presenting all the material and facts necessary for the exercise of the discretion in vacuum. It does so on legal evidence or materials placed before it by the -supplicant Where the party seeking the exercise of the court’s discretion has failed to place the materials necessary for the exercise of the discretion of the court in the party’s favour, the application ought to fail. It is never the principle- that the party opposing the grant of the discretion has the corresponding duty of supplying the facts which the applicant omitted or failed to supply to enable the court exercise its discretion. See DANGOTE Vs. CIVIL SERVICE COMMISSION PLATEAU STATE (2001) 9 NWLR (Pt, 717) 132 and MENAKAYA Vs. MENAKAYA (2001) 16 NWLR (Pt.738) 203,
In the instant case the 1st, 2nd and 4th-44th Respondents did not supply the facts to enable the tribunal exercise its discretion in their favour. Indeed as contended by Learned Senior Counsel, the record of proceeding at pages 207-209 seem to suggest that the notice for the pre-hearing session had already been issued by the tribunal. The objectors owed the court certain explanations and or disclosure of facts required to establish the Petitioner’s failure to apply for the notice as required by law. It is only upon established facts fully disclosed by the objectors that the tribunal could have equitably exercised its discretion. The tribunal that never had these necessary facts disclosed to it was in no position to have exercised its discretion judicially and judiciously. Since the tribunal’s exercise of its discretion and the dismissal of Appellant’s petition are wrongful, this court would interfere with such wrongful exercise of discretion and conclusions. See OKERE Vs. NKEM (1992) 4 NWLH. (Pt.234)132 and OYEYEMI Vs. IREWOLE LOCAL GOVERNMRNT (1992) 1 NWLR (Pt. 270) 462. This resolves Appellant’s 2nd issue in his favour. But does this mean the resolution of the appeal in his favour as well? The answer to the question must await the resolution of the 3rd issue for the determination of the Appeal.
The decision to make under the 31st issue is whether the tribunal had been rightly guided in its reliance on the Supreme Court’s decision in OKAFOR Vs. NWEKE supra in its decision that Appellant’s unsigned petition is incompetent. Unequivocally, my answer to this question is in the affirmative. The doctrine of stare decisis is about a subsequent decision being taken on the basis of an earlier one on the same or similar facts and/or law. Where the issue determined in the earlier case is same or similar to the one being subsequently decided, the latter court is, as a rule, bound by the earlier decision and its decision would be informed by the superior court’s earlier decision.
In OKAFOR Vs. NWEKE supra the supreme court per Oguntade JSC at pages 1028-1029 of the law report stated as follows:
“The issue under consideration is whether it is possible for a legal practitioner to sign court processes in a partnership name without additional indication on the process of the name of the practitioner who is a member of the partnership or firm handling the matter the simple question that arises in view of the clear provision of CAP 207 reproduced above, is whether or not the OKOLO & Co. SAN is a person entitled to practice as a barrister or solicitor. It seems to me that only human beings actually called to the Bar could practice by signing documents. The argument that it is an adherence to technicality to annul the process improperly signed and filed by JHC Okolo & Co. SAN fails to overlook the good sense in ensuring that our laws are strictly enforced and observed. It would have been quite another matter if what is in issue is a mere compliance with court rules”.
In the instant case paragraph 4(3)(b) of the first schedule to the Electoral Act requires an Election Petition to be signed by either the Petitioner himself of by his solicitor. At the bottom where Appellant’s Petition should and was signed, only the name of the firm of solicitors representing the petitioner was indicated as the signatory. The tribunal in its interpretation of the clear words of 4(3)(b) of the Electoral Act’s first schedule being bound by the earlier decision in NWEKE’s case that evolved as a result of a superior court’s consideration of facts and legislation similar to those the tribunal was asked to adjudicate upon, took the correct steps by applying the principle enunciated in the earlier case, that is what stare-decisis is all about. See BUHARI Vs. OBASANJO (2005) 2 NWLR (Pt.910) 241 and CHIEF OF AIR STAFF Vs. IYEN (2005) 6 NWLR 496 SC.
Appellant’s 3rd issue is by the foregoing resolved against him. Since his petition was neither signed by himself nor his solicitor, the tribunal is correct to have held same, on the authority of OKAFOR Vs. NWEKE (supra), incompetent. Such a petition that was not initiated by the due process of the law is incompetent and incapable of activating the tribunal’s jurisdiction see MADUKOLU Vs. NKEMDILIM supra.
On the whole the appeal that has failed is hereby dismissed. The decision of the tribunal is consequentially affirmed at a cost of N30,000 in favour of the 3rd Respondent.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading in advance the judgment of my learned brother I. Thomas, JCA. I agree with his reasoning and conclusion dismissing the appeal.
A petition that was not initiated by due process of the law is incompetent, no matter how well couched or the likelihood of its success had it been considered on its merit. Being incompetent the Tribunal was not competent to entertain same. The Tribunal was therefore right to have dismissed the petition on 21/8/07 for non-compliance with the Electoral Act and the Practice Direction. I also dismiss the appeal.
The judgment of the Tribunal is affirmed. I abide by the order of costs in the lead judgment.
Appearances
Chief Robert Clark – SAN with S. D. Zubair Esq.
Mrs. M. O. AdesanyaFor Appellant
AND
O. O. Ojutalayo Esq. with A. O. Daud Esq.For Respondent
