DR. WALE OKEDIRAN v. AGBOOLA HOSEA AYOOLA & 2 ORS (2011)

DR. WALE OKEDIRAN v. AGBOOLA HOSEA AYOOLA & 2 ORS

(2011)LCN/4758(CA)

In The Court of Appeal of Nigeria

On Monday, the 26th day of September, 2011

CA/I/EPT/NA/1/2011

RATIO

INTERPRETATION OF STATUTE: EFFECT OF THE WORD “MAY” AS CONTAINED IN THE PROVISIONS OF PARAGRAPH 27(1) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT 2010 AS IT REGARDS WHETHER THE CHAIRMAN SHOULD SOLELY SIT AND DETERMINE ALL INTERLOCUTORY QUESTIONS AND MATTERS TO THE EXCLUSION OF THE OTHER MEMBERS OF THE TRIBUNAL

INTERPRETATION OF STATUTE: WHETHER THE PROVISIONS OF PARAGRAPH 27 (1) OF THE ELECTORAL ACT IS IN CONFLICT WITH THE PROVISIONS OF SECTION 285(4) OF THE 1999 CONSTITUTION

Section 285(4) of the 1999 Constitution (as amended) provides the quorum of an election petition Tribunal to be the chairman and two other members which, I respectfully believe, is for the purpose of hearing election cases on the merits, shorn of interlocutory matters or questions which are procedural and preliminary in dimension. Further, the petition in the lower Tribunal was in respect of a senatorial seat. By section 79(a)(1)(b) and (c) of the 1999 Constitution as amended, of which I take judicial notice, the National Assembly is empowered to make provisions spelling out the powers, practice and procedure of the Election Tribunal in relation to inter-alia a senatorial election petition dispute. For quick reference, the said section 79(a)(i), (b) and (c) of the 1999 Constitution, as amended reads: “79 The National Assembly shall make provisions as respects – (a) Persons who may apply to an election tribunal for the determination of any question as to whether- (i) Any person has been validly elected as a member of the Senate or the House of Representatives. (b) Circumstances and the manner in which, and the conditions upon which, such application may be made; and (c) Powers, Practice and Procedure of the election tribunal in relation to any such application” (My emphasis). In my respectful view, the above provision of the 1999 Constitution, as amended, clothed the National Assembly with the constitutional authority to enact the Electoral Act and the First Schedule thereto from which paragraph 27(1) thereof vests in the chairman of the election Tribunal the power to hear and dispose of interlocutory questions and matters sitting alone. In other words, the fountain or source of the said power is derived specifically from section 79(a)(c) of the 1999 Constitution itself, as amended, giving paragraph 27(1) of the First Schedule to the Electoral Act (supra) constitutional force or flavour – see by analogy Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40 at 56 thus: “The Civil Service Rules of the Federal Public Service govern conditions of service of Federal Public Servants and they are made pursuant to the powers conferred on the respondent by the virtue of the Constitutional provisions in the 1963 Constitution; and the rules relevant to these proceedings were made in 1974, pursuant to the provisions of section 160(1) of the 1963 Constitution, Act No. 20 1963. These Rules, therefore, in my view, have Constitutional force…”. (My emphasis). See also Dimegwu v. Ogunewe and Others (2008) 17 NWLR (Pt.1116) 358 at 377 – 378 as follows: “It is a well settled doctrine, that the rules governing the procedure and practice of the courts, which were made… pursuant to the powers conferred thereupon by the 1999 Constitution, form part and parcel of the Constitution. I think it may not be out of place to add that such procedural rules have the same force of law as the constitution itself. See Akanbi and Others v. Alao and Another (1989) 3 NWLR (Pt.108) 118; Abia State University v. Anyaibe (1996) 3 NWLR (Pt.439) 646; 660 paragraph A – B per Katsina-Alu, JCA (as he then was)” Consequently, it cannot be said with assurance that the constitutional force of paragraph 27(1) of the First Schedule to the Electoral Act is in conflict with section 285(4) of the 1999 Constitution, as amended. The contention by 1st respondent’s learned senior counsel that such conflict exists and section 285(4) of the 1999 Constitution should prevail is with immense respects, untenable and is hereby discounted. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

COURT PROCESSES: WHETHER PARTIES ARE BOUND BY PRAYER(S) IN THE MOTION PAPER

It is now trite that parties are bound by prayer(s) in the motion paper – see Commissioner for Works, Benue State and Another v. Devcon Development Consultants Ltd. & Another (1988) 3 NWLR (Pt. 83) 407 at 420 per Karibi-Whyte, J.S.C., thus: “It is well settled that a plaintiff is bound by the case put forward in a writ of summons, as in A.C.B. Ltd. v. Attorney-General, Northern Nigeria (1969) NMLR 231. Similarly, an applicant will be bound by the prayers in his motion”. (My emphasis). PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

RECORD OF COURT: WHETHER A COURT OR TRIBUNAL CAN RESORT TO ITS RECORD IN THE MANNER THE LOWER TRIBUNAL DID

I would agree with the respondents that, in deserving circumstances, a Court or Tribunal may resort to its record in the manner the lower Tribunal did – see Attorney – General of Anambra State & Ors v. Okeke & Ors (2002) 12 NWLR (pt. 782) 575 at 603-604 thus: “I am in agreement with the position taken by the court below that the court will take judicial notice of its own proceedings and records and also their contents. (See Osafile V. Odi (No.1) (1990) 3 NWLR (pt. 137) (130). Where in a proceeding the question arises whether or not a process of court has been served in the proceeding, it will be a strange thing were court to ignore the proof of service afforded by its own record in the proceeding and hold that such process has not been served. A different circumstance would arise were the question of service to arise in a different proceeding or, were the authenticity of what was filed on record or its adequacy be in issue.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICES

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

DR. WALE OKEDIRAN Appellant(s)

AND

AGBOOLA HOSEA AYOOLA & 2 ORS Respondent(s)

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The National and State Houses of Assembly Election Tribunal (the lower Tribunal) sitting at Ibadan in Oyo State of Nigeria dismissed the petition of the appellant on 26.7.2011, on a preliminary objection that he did not apply for the issuance of pre-hearing notice within 7 days of pleadings as required by paragraph 18 (1) of the First Schedule to the Electoral Act, 2010, as amended, hence this appeal.
A resume of the facts from the printed record of appeal (the record) disclosed the following. The appellant was sponsored by the Congress of Nigeria (A.C.N.) political party as a contestant senatorial seat of the Oyo North Senatorial district in the general election held on 9.4.2011. The scores recorded by the 3rd respondent, the Independent National Electoral commission (INEC), indicated 94,896 votes for the appellant and 133, 143 votes for the 1st respondent of the Peoples Democratic Party (PDP), the 2nd respondent. Six others candidates lesser scores than the appellant and the 1st respondent also contested the election.
Dissatisfied with the outcome of the election, the appellant presented a petition against it at the lower Tribunal on 30.4.2011, on the triple grounds that:
“6.01 The 1st Respondent was not validly sponsored by the 2nd respondent in accordance with section 65 (2) (b) and 228 of the 1999 constitution (as amended and therefore not qualified to contest the said election.
6.02 The 1st Respondent was not duly elected by majority of lawful votes cast at the said election.
6.03 There was substantial non-compliance with the provisions of the Electoral Act 2010 as amended which invalidates the said election”.
After the parties filed and exchanged their respective pleadings (petition and replies), the 1st respondent brought a motion on notice dated and filed on 7.7.2011, for dismissal of the petition on the grouse that appellant had abandoned the petition by his failure to apply for pre-hearing notice after the service of his reply to 1st respondent’s reply respondent. The motion was fixed by the lower Tribunal for hearing on the same 7.7.2011. Appellant’s learned senior counsel sought for and obtained an adjournment of the motion to 14.7.2011 to react to it.
The motion was argued on 14.7.2011, in the course of which 1st respondent orally replied on points of law to the written submissions of the appellant. The lower Tribunal comprising a chairman and two members (Nwizu, J. (chairman), Hon. Kadi Alkali (member) and Ajileye, J. (member) gave a considered ruling read by Ajileye, J. (member), upholding the preliminary objection of the 1st respondent and dismissing the petition as abandoned under paragraph 18 (1) (3) and (4) of the First schedule to the Electoral Act (First schedule).
In an amended notice of appeal dated and filed on 29.8.2011, but deemed duly fifed by leave of the court on 12.9.2011, the appellant raised sixteen grounds of appeals. Stripped of their particulars, the said grounds of appeal read
“(i) The learned members of the Lower Tribunal erred in law and acted without jurisdiction when all the three members heard the 1st Respondent’s application a ruled thereon jointly.
(ii) The learned Justice of the Lower Tribunal erred in law when they allowed the 1st Respondent’s solicitor to reply orally on points of law to the written address of the Appellant and thereby acted without jurisdiction.
(iii) The learned Justices of the Lower Tribunal erred in law when they relied on the oral address of the 1st Respondent to dismiss his objection to the competence of the 1st Respondent’s application dated 7th July, 2011.
(iv) The learned justice of the lower tribunal erred in when it held thus:
“understandably, the phrase “returnable in 3 clear days” within the con of paragraph 18(3) of the First Schedule to the Electoral Act can mean no more no more than that the petitioner be given three clear days before the date of hearing”
(v) That learned Justice of the Lower Tribunal erred in law when it held thus:
“The undisputable evidence before us is that service of the motion was affected on the 7th July, 2011. The motion was not heard on that day but adjourned to the 14th day of July, 2011 it follows that, the petition had not less than six clear days before the hearing of the motion. The argument of Mr. Lana that the petitioner was not given a fair hearing because the application was not made ‘reputable’ in 3 clear days therefore does not hold water”.
(vi) The learned Justices of the lower tribunal erred in law when they held that there was non-compliance with paragraph 18(1) and (3) of the First Schedule to the Electoral Act 2010 (as Amended) on the basis of the time when the application to issue Pre-Hearing Notice was made.
(vii) The learned Justice of the Lower Tribunal erred in law when they raised issue of statute bar suo motu without affording the Appellant the opportunity to be heard.
(viii) The learned Justice of the lower tribunal erred in law when they invoked paragraph 18(1) and (3) of the First Schedule to Electoral Act 2010 (as amended) to strike out the petition.
(ix) The learned justices of the Lower Tribunal erred in law when they considered a ground which was not contained in the application before him.
(x) The learned justices of the Lower Tribunal erred in law when they held thus:
“Within the frame work of the facts presented in this application, one main issue can be distilled for determination.
Whether or not the petitioner complied with the provisions of paragraphs 18(1) and (18) 3 of the First Schedule to the Electoral Act 2010 (as amended)
Ultimately, the resolution of this issue will be predicated on two other ancillary issues viz:
(a) Whether or not the petitioner applied for a Pre-Hearing Notice.
(b) If the answer to (a) above is in the affirmative, when did he apply”.
(xi) The learned Justices of the Lower Tribunal erred in law when they discriminated against the Petitioner in the application of the time provisions of Electoral Act and thereby denied him a fair hearing.
(xii) The learned Justices of the Lower Tribunal erred in law when they dismissed the petition instead of giving judgment to the 1st Respondent on the admission of the 1st Respondent on non-qualification.
(xiii) The learned Justices of the Lower Tribunal erred in invoking paragraph 18(3) of the First Schedule to the Electoral Act 2010 (as amended) to strike out the petition when the 1st Respondent’s application did not come within its provision.
(xiv) The learned Justices of the Lower Tribunal erred in law when it invoked paragraph 18(4) of the First Schedule to the Electoral Act 2010 (as amended).
(xv) The learned Justices of the Lower Tribunal erred in law when they exercised their power under paragraph 18(4) of the First Schedule to the Electoral Act 2010 as amended when they had become functus officio.
(xvi) The learned Judges of the Lower Tribunal erred in law and came to the wrong conclusion when they held thus:
“As deposed to in the affidavit in support of motion (which fact has neither being disputed nor controverted) the petitioner filed his reply to the 1st Respondent’s reply on 25th May 2011 (paragraph 6 refers) the petitioner was served with the said reply on 6th June 2011. We confirmed this from the records from the state of the facts stated above, upon which there is no dispute, it is clear that the petition herein had up to the 13th day of June within which to have filed the application for Pre-Hearing Notice…The available record shows that he filed the letter of application on 27th June 2011. He fell out of time for 14 days (13th June 2011-27th June 2011) in effect he did not comply with the mandatory provisions of paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as Amended)”.
Appellants’ learned senior counsel, Mr. Akeredolu, settled the appellant’s brief of argument dated 17.8.2011, but filed on 18.8.2011, in which learned senior counsel formulated ten issues for determination on the appeal. For convenience, I copy the said issues below:
“i. Whether the Ruling delivered by the 3 members is not valid and made without Jurisdiction – GROUND 1.
ii. Whether a Respondent can orally reply on point of law at the hearing of an application without filing a Written Address – GROUNDS 1 and 2.
iii. Whether the phrase “returnable in 3 clear days” within the con of paragraph 18(3) of the 1st Schedule to the Electoral Act means 3 clear days before dated of hearing so as to validate the 1st Respondent’s Motion on Notice dated 7th July, 2011. GROUND IV and V.
iv. Whether the Lower Tribunal was right to dismiss the petition when it had issued a Pre-Hearing which was never set aside or annulled nor was any application made to annual same. GROUNDS VI.
v. Whether the Lower Tribunal was right to raise the issue of statute bar when there was no such application and no proof of relevant dates without affording parties opportunity of proper hearing. GROUNDS VII & IX.
vi. Whether having issued the Pre-Hearing Notice and fixed date for the Pre-Hearing Session, the Tribunal could turn around to dismiss the petition GROUNDS VIII, XIII, XIV & XV.
vii. Whether the issue decided was the issue before the court – GROUND X.
viii. Whether the Appellant was given a fair hearing in relation to the time limitations in the Electoral Act. GROUND XI.
ix. Whether in the circumstances the tribunal ought not to have given judgment to the petitioner by nullifying the election. GROUND XII.
x. Whether the tribunal was not wrong to hold that the petitioner’s application for the issuance of Pre-Hearing was made out of time. GROUND XIII.”
Presumably, and for the purpose of saving time and affording the appeal expeditious determination, learned senior counsel for the 1st respondent, Mallam Yusuf Ali, graciously co ceded to the understandable request by Mr. Akeredolu, learned senior counsel, for the appellant, for the preliminary objection raised in the 1st respondent’s brief of argument to be argued along with the briefs, deviating from the usual practice of arguing the preliminary objection first, to which we acceded, and permitted the appellant to start arguments on the appeal, out of turn, so to speak.
Upon adoption and reliance on the appellant’s elaborate brief of argument at the hearing of the appeal on 12.9.2011, learned senior counsel for the appellant preface his submission by stating that any effort to deny a party of justice technical ground must be well grounded and subjected to strict interpretation by the court.
Appellant’s learned senior counsel went on to canvass on issues (v) and (vii) that by 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, taken together with the cases of Galaudu v. Kamba (2004) 15 NWLR (Pt.895) 31 at 52, Awuse v. Odili (2004) 8 NWLR (Pt.876) 481 at 512 and Madukolu v. Nkemdilim (1962) ALL NLR (Pt.2) 581 at 589, the plural composition of the lower Tribunal consisting of the Chairman and two members when it heard and determined the interlocutory application that led to the threshold demise of the petition, in the ruling delivered by one of the members of the lower Tribunal (Ajileye, J.), was done without jurisdiction, as only the Chairman of the lower Tribunal was required by the specific and mandatory stipulation in paragraph 27(1) of the First Schedule to the Electoral Act (supra) and section 23 of the Federal High Court Act (supra) to hear and dispose of all interlocutory questions and matters.
Issues (v) and (vii) contended further that the lower Tribunal suo motu raised the question of when the application for the issuance pre-hearing notice was filed by the appellant and proceeded on it own, without affording the parties the opportunity to react to it, to proffer the answer that the application for the issuance of the pre-hearing notice was filed out of time, when the sole question before the lower Tribunal on which the parties joined issues was whether the appellant did not apply for the issuance of the pre-hearing notice simpliciter vide Okwaraoka v. Offonze (2007) ALL FWLR (Pt.361) 1771 and Adeniji v. Adeniji (1972) ANLR 298 at 305.
Still on issues (v) and (viii), appellant’s learned senior counsel contended that the crux of the appeal was on issue of service of the appellant’s reply to the reply of the 1st respondent, not when the 1st respondent served his reply on the appellant, on which there was unresolved conflicting affidavit evidence vide Falobi v. Falobi (1976) 1 NMLR 169 at 179; all the more so, paragraph 7 of the affidavit sworn to by a Mr. Gold, on behalf of the 1st respondent, in support of the motion was a piece of hearsay evidence and should not have been relied upon by the lower Tribunal to settle the issue of service vide section 86 of the Evidence Act and Orji v. Zaria Industry Ltd. (1992) 1 NWLR (Pt.216) 124; nor was the lower Tribunal right to search its own record to establish the issue of service of the process when such a disputed issue was resolvable only by affidavit evidence of the bailiff that effected the service vide Mark v. Eke (2004) ALL FWLR (Pt.200) 1455, Jikantaro v. Dantoro (2004) ALL FWLR (Pt.216) 390; The Queen v. Wilcox (1961) ALL NLR 658 at 661, Duriminiya v. C.O.P. (1961) NRNLR 70, Ossai v. Wakwah (2006) 135 LRCN 756 at 776 at 775 and Ogundele v. Agiri (2010) 180 LRCN 138 at 169.
It was added on issues (v) and (vii) that the proof of service of the appellant reply on the 1st respondent, Agboola Hosea, was not established by the supplementary record of appeal, therefore the said proof of service was not proved, and the court should so hold.
Issues (ii), (iii) and (viii), were argued together to the effect that the particular method of hearing interlocutory applications on written addresses provided for under paragraph 47 (4) and (5) of the First Schedule to the Electoral not (supra) was not followed by the lower Tribunal when it allowed the 1st respondent to contest the written submissions of the appellant orally in reply, which deprived the appellant of the right to fair hearing; or in the alternative, the failure of 1st respondent to reply in writing on points of law tantamounted to an admission of the points raised by the appellant in his written address and, the lower Tribunal having recognized the imperative to adhere strictly to the provisions of the First Schedule to the Electoral Act none-the-less paid lip service to it by the failure to apply paragraph 47(5) against the defaulting 1st respondent. The cases of Obasanya v. Babafemi (2000) 15 NWLR (Pt.689) 1 at 18, Cooperative and Commercial Bank v. Attorney General of Enugu State (1997) 7 NWLR (Pt.261) 528, Federal Ministry of Commerce and Tourism v. Eze (2006) ALL FWLR (Pt.323) 1704 at 1717 and Ikoro v. Izunaso (2009) 4 NWLR (Pt.1139) 45 at 69 – 70 were supplied in aid of the above contentions.
It was also argued on issues (ii), (iii) and (viii) that contrary to the established practice of given clear words in a statute their ordinary grammatical meaning, the lower Tribunal imported new meaning into the words used in paragraph 18(3) of the First Schedule to the Electoral Act by relying on the irrelevant cases of Patigi Local Government v. Eleshin-Nla (2008) ALL FWLR (Pt.421) 854 at 874-875 and Okunrinboye Export Co. Ltd v. Skye Bank Plc (2009) 2-3 SC (PT.1) 66 to hold that the phrase “returnable in 3 clear days” in paragraph 18 (3) of the First Schedule to the Electoral Act (supra) meant the petitioner had 3 clear days to respond to the motion in contradistinction to the true meaning of the words that the return date was a date for mention not hearing of the motion, or the day named in a court process upon which the officer of court is enjoined to return the process after service on the relevant party vide Black’s Law Dictionary (5th Edition) 1184 and Adefemi v. Abegunde (2004) 15 NWLR (Pt.895) 25 at 26-27 and that assuming the construction given by the lower Tribunal to the words of paragraph 18(3) of the First Schedule to the Electoral Act (supra) is correct, the date fixed for the hearing of the motion was 7.7.2011, not 14.7.2011, while the motion itself was filed on 7.7.2011, which did not give the appellant the 3 clear days contemplated by paragraph 18(3) of the First Schedule to the Electoral Act (supra), and denied the appellant fair hearing of the motion.
It was argued on issues (iv) and (vi) that an application for the issuance of a pre-hearing notice was made by the appellant, prompting the issuance of the pre-hearing notice that set in motion the issuance of the pre-hearing Forms TF 007 and TF 008 and the scheduling of the pre-hearing session to 7.7.2011, by the lower Tribunal, therefore the lower Tribunal, was functus officio on the issue of the pre-hearing notice and the dismissal of the petition under paragraphs 18(3) and (4) and 47(1) of the First Schedule to the Electoral Act (supra)
The appellant’s brief of argument adumbrated on issues (iv) and (vi) that there was no application before the lower Tribunal challenging the validity of the appellant’s application for the issuance of the pre-hearing notice; nor did any of the respondents apply to the lower Tribunal to set aside the pre-hearing notice issued by it, nor did the lower Tribunal make an order setting aside the pre-hearing notice, consequently the lower tribunal having held that the appellant had applied for the issuance of the pre-hearing notice, its other holding that the application in question was statute barred was obiter, as it was not based on any prayer in the motion paper and amounted to granting a relief not asked for by a party vide Bayo v. Njidda (2004) 8 NWLR (Pt.876) 544 at 587 – 588.
Submissions on issue (ix) hinged on the premise that the respondents did not make effective denial of the averments in the appellant’s petition that the 1st respondent did not go through the internal direct democratic process of elected delegates’ congress for his nomination and sponsorship by the 2nd respondent to contest the election contrary to section 65(2) (b) and 228 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, (1999 Constitution) and section 87 of the Electoral Act 2010, as amended, therefore the court should decide the petition in favour of the appellant on the undenied averments vide section 15 of the Court of Appeal Act, and the cases of Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 423 at 612 – 614, 655 and 707, Action Congress v. INEC (2007) ALL FWLR (Pt.378) 1012 at 1037, Abia State v. Attorney General of the Federation (2005) ALL FWLR (Pt.275) 414 at 470-471 and Ifezue v. Mbadugha (1984) 1 SCNLR 427, (on the need to read a statute as a whole to discover the legislative intent from the language used in the statute) taken together with the case of U.N.M.B. v. Nnoli (1997) 8 NWLR (Pt.363) 376 at 413 (on the necessity to observe statutory requirement on pain of rendering the act done a nullity) and the cases of R.C.C. (Nig.) Ltd. v. R.P.C. Ltd (2005) 10 NWLR (Pt.934) 615 at 628 and F.B.N. Plc v. Akinyosoye (2005) 5 NWLR (Pt.918) 340 at 373 (on the issue of undenied averments amounting to admission requiring no further proof).
The appellant’s brief concluded on issues (ix) that the failure of the 2nd respondent to hold a delegate’s congress to select or nominate 1st respondent as it flag-bearer at the general election was undemocratic, antithetical, unconstitutional, ultra-vires and, the purported nomination of the 1st respondent should be declared void or without foundation vide Raymond v. Honey (1983) A.C.I, R. v. Homes Secretary ex. P. Leach (1994)? QB 198, Action Congress v. INEC (2007) ALL FWLR (Pt.378) 1012 at 1036, Attorney General of the Federation v. Abubakar (2007) ALL FWLR (Pt.375) 405 at 461, Ugwu v. Ararume (2007) ALL FWLR (Pt.377) 807, Corpus Juris Secundum vol. 26A page 177 note 56, Macfoy v. U.A.C. (1961) 3 ALL ER 1169, and Folami v. Okege (2008) ALL FWLR (Pt.416) 1895 at 1909.
The 1st respondent’s comprehensive amended brief of argument dated and filed on 13.9.2011, pursuant to an order of the Court on 12.9.2011, was prepared by learned senior counsel, Mallam Yusuf Ali, who adopted and relied on same at the hearing of the appeal on 15.9.2011, as 1st Respondent’s arguments on the appeal.
Learned senior counsel for the 1st respondent opened his arguments by referring to the preliminary objection raised in the 1st respondent’s brief of argument against ground (xii) of the notice of appeal and issue (ix) built on it to submit that both are incompetent as they do not relate to the decision of the lower Tribunal, nor constitute a challenge to any ratio of the ruling of the lower Tribunal and should be struck out for being academic following the cases of Saraki v. Kotoye (1992) 12 SCNJ 26 43, Iwabachie v. Iloabachie (2000) 5 NWLR (Pt.626) 194 at 202, Ido/Osi Local Government v. Aluko (2007) ALL FWLR (Pt.352) 1807 at 1816 – 1817 Bello v. Aruwa (1999) 8 NWLR (Pt.615) 454 at 468, Mercantile Bank of Nigeria Plc. v. Nwobodo (2005) ALL FWLR (Pt.281) 1640 at 1647, Attorney General, Katsina State v. Greener Lands Ltd. (2005) ALL FWLR (Pt.256) 1342 at 1353, Alakija v. Abdulai (1998) 5 SCNJ 1 at 18, Chiorlu v. Akani (1994) 4 NWLR (Pt.71) 1781 at 1788, Dafa v. FCDA (1994) 4 NWLR (Pt.340) 549 at 555.
The 1st respondent’s learned senior counsel extracted the following issues for determination on the appeal in 1st respondent’s brief:
“i. Whether the lower tribunal acted without jurisdiction when all the 3 members heard and determined the 1st Respondent’s application – Ground i.
ii. Whether in the circumstances, the 1st Respondent as the applicant at the lower tribunal could not make oral reply on points of law to Grounds ii and iii.
iii. Whether the 1st Respondent’s application filed and served on 7/7/2011 but heard on 14/7/2011 was not competent having regard to the provisions of paragraph 18(3) of the First Schedule to Electoral Act – Ground iv and v.
iv. Whether having regard to the circumstances and the provisions of paragraph 18(1) (3) & (4) of the First Schedule to the Electoral Act, the lower tribunal was not right to have dismissed the Appellant’s petition – Grounds vi, viii, xiii, xiv and xv.
v. Whether the lower tribunal properly identified the issue involved to accommodation the time limit for the Appellant to apply for issuance of pre-trial notice and whether parties were not afforded proper hearing in respect of same – Grounds vii, ix and x and xvi.
vi. Whether the Appellant was denied a fair hearing by the lower tribunal in relation to the time limitations in the Electoral Act – Ground xi.
vii. Whether the lower tribunal could rightly and/or validly give judgment to the Appellant by nullifying the 1st Respondent’s election – Grounds xii.”
In arguing the first issue, 1st respondent’s learned senior counsel submitted that paragraph 27(1) of the First Schedule to the Electoral Act (supra) is permissive and is in conflict with section 285(4) of the 1999 Constitution, as amended, which provides that the quorum of the lower Tribunal shall be the chairman and two other members, consequently a rule of court such as paragraph 27(1) of the First Schedule to the Electoral Act (supra), cannot confer jurisdiction on the lower Tribunal vide the case of Dada v. Ogunremi (1962) 2 SCNLR 417 at 422 and that, its inconsistency with section 285 (4) of the 1999 Constitution should render it null and void to the extent of the inconsistency vide section (3) of the 1999 Constitution.
And that the court should depart from its earlier decision in the yet unreported case of Hon. Ayo Adeseun and Another v. Chief Luqman Oyebisi Ilaka and Others in Appeal No. CA/I/EPT/NA/3/11 decided on 12.9.2011, where we held that by paragraph 27(1) of the First Schedule to the Electoral Act (supra), only the chairman of the lower tribunal was competent to sit alone and hear and dispose of all interlocutory questions and matters in an election petition, as the said decision did not take into account the overriding provisions of sections 1 (3) and 285 (4) of the 1999 Constitution; and that, the facts in the earlier case which were on the amendment of a petition are distinguishable from the facts in the present case dealing with whether an application for pre-hearing notice was made by the appellant in the lower Tribunal under paragraph 18(1) of the First Schedule to the Electoral Act (supra).
Learned senior counsel for the 1st respondent argued further on the first issue that it is crass technicality to say no member of the lower Tribunal, such as Ajileye, J., was competent to read the ruling of the lower tribunal on behalf of the chairman of the lower tribunal as paragraph 27 (2) of the First Schedule to the Electoral Act is not confined to judgment in the substantive petition, as the phrase “or any other cause” contained in the said provision creates room for the chairman of the lower Tribunal to permit any other member of the lower tribunal to read the ruling or decision of the lower tribunal.
It was also submitted on the first issue that the appellant had previously benefited from some interlocutory decisions of the lower Tribunal composed of the chairman and two other members without let or hindrance and should not be seen to turn against the wisdom of the three man lower tribunal in respect of the application that sprout the appeal.
The second issue advocated the points that by the directory tenor of paragraph 47(5) of the First Schedule to the Electoral Act, the lower tribunal was right to allow the 1st respondent to reply orally on points of law to the written submissions of the appellant in line with Order 22 Rule 8 of the Federal High Court (Civil Procedure) Rules, 2009; that the lower tribunal gave the parties ample opportunity to make oral addresses, which they utilized, therefore, even if the making of the oral address by 1st respondent was wrong, it was a mere irregularity acquiesced in by the appellant, which did not occasion any miscarriage of justice and should not be disturbed vide Adeogun v. Fasogbo (2011) ALL FWLR (Pt.576) 485 at 409(?), Amaechi v. INEC (2008) ALL FWLR (Pt.407) 1 and Awuse v. Odili (2005) ALL FWLR (Pt.261) 416 at 480.
The third issue articulated that the phrase “returnable in 3 clear days” in paragraph 18(3) of the First Schedule to the Electoral Act means the date inserted in the court process or other dates that the court may appoint or direct as stated in Order 1 Rule 5 of the Federal High Court (Civil Procedure) Rules, or the date for the hearing of the application as held in the cases of Okunrinboye Export Co. Ltd. v. Skye Bank Plc.(2009) 2 – 3 MJSC 42 at 64 and Patigi L.G. v. Eleshin-NLA (2008) ALL FWLR 854 at 874 – 875; and that the appellant had 6 clear days from 11.7.011 to 14.7.011, more than the 3 clear days stated in paragraph 18(3) of the First Schedule to the Electoral Act, before the application was heard, showing compliance with the provision of the said enactment by the lower Tribunal.
It was contended on the fourth issue that the appellant had made the application for the issuance of the pre-hearing notice out of time, which amounted to no application or invalid application and the lower tribunal was right to put an end to the petition under the combined provisions of paragraph 18(1) (3) and (4) of the First Schedule to the Electoral Act read with the cases of Okunrinboye Export v. Skye Bank Plc (supra) at 65, Oyeneyin v. Akinkugbe (2010) 1 MJSC (Pt.11)1 at 19 c-e and Okereke v. Yar’Adua (2008) 12 NWLR (Pt.1120) 95 at 118; alternatively, that the application was conveyed in a letter not envisaged by paragraph 18(1) of the First Schedule to the Electoral Act and sub-paragraph (2) thereof read with the cases of Ibanga v. INEC and others (unreported) Appeal No. CA/C/NAEA/196/2011 delivered on 9.9.2011, Ado v. Mekara (2009) 9 NWLR (Pt.1147) 491 AT 502, Riruwa V. Shekarau (2008) 12 NWLR (Pt.1100) 142 at 164, Hope Democratic Party v. INEC and others (unreported) Appeal No.CA/A/EP/5/2007 and Ayuba v. INEC (unreported) Appeal No.CA/K/EP/LA/15/2007.
It was contended on the fifth issue that the grounds supporting the motion and paragraphs 7, 8, 9 and 10 of the supporting affidavit brought in the issue of the application for the issuance of the pre-hearing notice and made the issue of time ancillary to the application; that appellant had ample opportunity to respondent to the said affidavit and cannot now complain of denial of fair hearing; that Mr. B. R. Gold, the deponent of the supporting affidavit to the 1st respondent’s motion, gave the necessary introduction of himself as counsel in the law firm representing the 1st respondent by virtue of which position he deposed to the affidavit; that there was no conflict in the affidavit evidence; that assuming there was conflict, it was resolved by the lower Tribunal confirming from its own record the date the petitioner’s reply was served on 1st respondent, as it was entitled to do vide N.N.P.C v. Ibi (2009) ALL FWLR (pt.456) 1870 at 1887, Famudoh v. Aboro (1991) 9 NWLR (Pt.214) 210 and Onejeme v. Azodo (2005) ALL FWLR (Pt.275) 550 at 556, where the Court took judicial notice of its own record by looking at the endorsement and return copy of the record of appeal without calling for the bailiff’s affidavit of service.
And that pages 415 -426 of the record with emphasis on page 426 confirmed paragraph 7 of the affidavit to the 1st respondent’s application; and that, it was a clerical mistake by the lower tribunal to refer to “petitioner” instead of the “1st respondent” on the issue of service of reply as stated in page 398 of the printed record of appeal which this court can correct under section 15 of the Court of Appeal Act 2004 and the case of Bello Ho. V. Lands International Ltd. (2005) ALL FWLR (PT.254) 822 at 834, consequently the lower Tribunal did not make a new case for the parties on the issue of time, so submitted 1st respondent’s learned senior counsel.
The arguments on the third issue were adopted for the sixth issue with the conclusion that the appellant was not denied fair hearing.
It was contended on the seventh issue that quite apart from the issue which arose from issue (ix) of the appellant’s issues for determination being academic, the appellant had no application before the lower tribunal and the lower tribunal could not have given judgment for determination being academic, the appellant had no application before the lower tribunal and the lower tribunal could not have given judgment for the appellant in the circumstances; or in the alternative, 1st respondent denied the averments of the appellant on the issues of nomination and sponsorship by 2nd respondent with further facts pleaded and supported by statements on oath, all the more so pre-election matters such as brought by the appellant in the lower tribunal are not within the jurisdiction of Election Tribunals and should be discountenanced vide Odedo v. INEC (2008) 17 NWLR (Pt.1117) 554 at 602, Amaechi v. INEC (2008) 5 NWLR (1080) 227 at 314, and Ucha v. Onwe (2011) 1 MJSC (Pt.11) 52 at 100.
The 2nd respondent’s trim brief of argument dated 23.8.2011, but filed on 24.8.2011, was settled by Mr. Ogunwole, learned senior counsel. Three issues were formulated for determination on the appeal in the brief thus:
“3.01 Whether or not the petitioner complied with the mandatory provision of paragraphs 18(1) and (2) of the 1st Schedule to the Electoral Act 2010 (As Amended). This issue covers Ground 2, 3, 6, 8, 10, 13 and 14 and if the answer is in the negative whether the application brought by the 1st Respondent under paragraph 18 (3) and (4) was proper.
3.02. Whether or not the Election Tribunal lacks jurisdiction to entertain the Motion. This issue covers Grounds 1, 4, 5, 7, 9, 11 and 15.
3.03. Whether or not the Court of Appeal has jurisdiction to entertain and determine issue No.9 even though it was not raised and determined before the Election Petition Tribunal. This issue covers Ground 12.”
Arguments on the first issue rehashed paragraphs 18 (1) (2) (3) and (4) of the First Schedule to the Electoral Act and the grounds supporting the 1st respondent’s motion on notice in the lower Tribunal to support the ruling of the lower Tribunal that the appellant’s application through a letter dated 27.6.2011, for the issuance of the pre-hearing notice was filed out of time, therefore the pre-hearing form issued by the lower Tribunal was a nullity as it was statute-barred and robbed the lower Tribunal of the jurisdiction to entertain it; and that the lower Tribunal had no competence to waive the fundamental lapse, nor acquiesce in it, consequently the lower Tribunal was right in dismissing the petition as abandoned vide Okoreaffia v. Agwu (2008) 12 NWLR (Pt.1100) 165 at 187, Maitsidau v. Chidari (2008) 16 NWLR (Pt.114) 553 at 573 – 574, Kennedy v. INEC (2009) 1 NWLR (Pt.1123) 614 at 638, Okereke v. Yar’Adua and Ors. (2008) 12 NWLR (Pt.1100) 95 at 118, Ikoro v. Izumazo (2009) 4 NWLR (Pt.1130) 45 at 70 – 71, U.B.A. Trustees Ltd. v. Nigergrob Ceramic Ltd. (1987) 3 NWLR (Pt.62) 600 at 603, and Kolawole v. Alberto (1989) 1 NWLR (Pt.98) 382 at 388.
The 2nd respondent’s brief contended on the second issue that by paragraph 18 of the First Schedule to the Electoral Act, the issuance of the pre-hearing forms is the prerogative of the Tribunal not the chairman of the Tribunal, therefore the lower Tribunal was competent to hear and dispose of the interlocutory application respecting the pre-hearing aspect of the petition. It was also argued on the second issue that the lower Tribunal was right in interpreting the phrase “returnable in 3 clear days” to mean giving the “petitioner” 3 clear days before the hearing of the motion which tallied with the Supreme Court case of Okunrinboye Export Co. Ltd.. and Others v. Skye Bank Plc. (2009) 2 – 3 SC (Pt.1) 66 at 82; and that, in the instant matter, the appellant eventually had 6 clear days to react to the motion.
The 2nd respondent’s brief solicited on issue three issues (ix) of the appellant’s brief of argument was not raised and determined by the lower Tribunal, therefore it is a fresh issue requiring the leave of the Court for its agitation before the Court, which was not sought and had by the appellant, consequently the Court cannot entertain it, as it would be a wrong interpretation of section 16(15) of the Court of Appeal Act to seek to decide the substantive petition in this Court predicated on an interlocutory application that was made at the lower Tribunal vide Kaza v. The State (2008) 7 NWLR (Pt.1085) 125 at 189 – 190.
Mr. Olaniyan of learned counsel who held the papers of learned senior counsel, Mr. Ogunwole, for the 2nd respondent, at the hearing of the appeal, made the points in oral argument that appellant admitted service of the process in issue on him and facts admitted need no further proof and, that the consensus ruling delivered by the lower Tribunal did not occasion a miscarriage of justice.
The 3rd respondent’s moderate brief of argument dated and filed on 24.8.2011, was prepared by Mr. Saka on behalf of learned senior counsel, Mr. Oke, for the 3rd respondent. Three issues were identified in the brief for determination on the appeal as follows:
“(1) WHETHER THE HONOURABLE LOWER TRIBUNAL LACKS JURISDICTION TO HEAR AND DETERMINE THE 1ST RESPONDENT’S APPLICATION DATED 7TH DAY OF JULY, 2011.
(2) WHETHER THE FAILURE OF THE APPELLANT TO FILE AN APPLICATION FOR PRE-HEARING NOTICE WITHIN 7 DAYS AS STIPULATED BY THE ELECTORAL ACT, 2011 (AS AMENDED) WAS NOT FATAL TO HIS CASE AND THE SAID PETITION LAIBLE TO BE DISMISSED.
(3) WHETHER THE APPELLANT WAS NOT AFFORDED FAIR HEARING BY THE LOWER TRIBUNAL BEFORE DISMISSING THE PETITION.”
It was argued by Mr. Oke, of learned senior counsel that jurisdiction of a court or Tribunal is a threshold issue vide Ehirim v. I.S.I.E.C. (2008) 15 NWLR (Pt.111) 443 at 476; that by jurisdiction, it means the power of the court or Tribunal to decide a case or issue a decree vide
Black’s Law Dictionary (seventh Edition) 855; that the components of jurisdiction involve proper composition of the members with powers over the subject matter of the dispute and with the case or dispute initiated by due process of law, and complying with the condition precedent to the exercise of jurisdiction vide James v. Okereke (2008) 13 NWLR (Pt.1105) 544 at 565 – 566.
It was argued that flowing from the above background, paragraph 18(6)(c) and 7(d) of the First Schedule to the Electoral Act schedule be read side by side with the straight-forward permissive or discretionary paragraph 27(1) thereof vide Awuse v. Odili (2004) 8 NWLR (Pt.876) 481 at 521 and N.I.W.A. v. G.C.I.T.F. (2008) 7 NWLR (Pt.1085) 109 at 120, and when so considered, the three-man Tribunal comprising the chairman and two other members had the jurisdiction to hear and dispose of the interlocutory application of the 1st respondent; all the more so their sitting together as a panel of the lower Tribunal did not occasion any miscarriage of justice to the acquiesced appellant who did not show in his arguments that he suffered miscarriage of justice from the plural panel of the lower Tribunal disposing of the interlocutory application in question; and that by paragraph 27(2) of the First Schedule to the Electoral Act, a member of the lower Tribunal was competent to deliver the ruling at stake.
It was contended on the second issue that paragraph 18(1) of the First Schedule to the Electoral Act is mandatory, having used the word “shall” therein vide INEC V. Iniama (2008) 8 NWLR (Pt.1088) 182 NWLR (Pt.1048) 367 at 441 – 442; that the appellant was mandatorily required to apply for the pre-hearing notice within 7 days of close or exchange of pleadings, which was not complied with by the appellant who was 14 days out of time at the time he applied for the pre-hearing notice on 27.6.2011, rendering the issuance of the pre-hearing notice and the Forms issued pursuant to it time bar, and made the application of the appellant of no moment, as it amounted to no application, or akin to putting something on nothing, therefore the lower Tribunal was right in dismissing the petition vide Okereke v. Yar’Adua (2008) 12 NWLR (Pt.1100) 95 at 118 read with paragraph 18(5) of the First Schedule to the Electoral Act.
The 3rd respondent’s brief contended on the third issue that the appellant was afforded the opportunity to be heard at every stage of the proceedings and cannot be heard to complain of denial of fair hearing vide Jang v. INEC (2004) 12 NWLR (Pt.886) 46 at 72 and Aroyewun v. C.O.P. (2004) 16 NWLR (Pt.899) 414 at 427 – 428.
A consequential amended reply brief of the appellant to the 1st respondent’s amended brief dated and filed on 14.9.2011, and prepared by Mr. Akeredolu, learned senior counsel, referred to the case of Inakoju v. Adeleke (2007) ALL FWLR (Pt.353) 3 at 105 to contend on the preliminary objection that the Court has wide powers under section 15 of the Court of Appeal Act, 2004, to step in the shoes of the lower Tribunal for the purpose of hearing and determining the substantive petition.
Responding on the 1st issue, the appellant’s robust amended reply brief to 1st respondent’s amended brief stressed that the issue is not the sitting together of the other members of the lower Tribunal with the chairman over interlocutory applications per se, but whether the other members participated in the hearing and disposal of the interlocutory application which this Court held to be wrong in Hon. Ayo Adeseun and Another v. Chief Olabisi Ilaka (supra); and that , paragraph 27(1) is mandatory rule or practice for expeditious determination of election disputes and does not conflict with section 285(4) of 1999 Constitution.
The amended reply brief of the appellant responded to Order 22 Rule 8 of the Federal High Court (Civil Procedure) Rules, 2009, to the effect that the oral argument permitted therein is not in lieu of written submissions, but in amplification of written submissions and is, also, subordinate to paragraph 47(1) of the First Schedule to the Electoral Act and section 145(1) of the Electoral Act under which section 54 of the Electoral Act importing the Federal High Court (Civil Procedure) Rules in election petitions is moored; that in the con the word “may” is used in paragraph 47(5) of the First Schedule to the Electoral Act, it must mean “shall” vide Enakhimion v. Edo Transport Services (2006) ALL FWLR (Pt.334) 1882 at 1900 – 1901; that the new or fresh issue of timeliness of the application for the issuance of the pre-hearing notice raised in the oral reply of the 1st respondent informed the lower Tribunal to base its decision on it resulting in the dismissal of the petition without giving the appellant the right to be heard on it, when the appellant was not prepared to waive the right in question.
The appellant’s amended reply brief referred to Okunrinboye’s case (supra) to submit that it did not decide that the “return date” must be the date for the hearing of the application, but the date endorsed on the writ, not the date the case was first heard, consequently it was the date endorsed on the application, not the date the application was heard that was the “return date” within the con of paragraph 18(3) of the First Schedule to the Electoral Act and Order 23 of the Federal High Court (Civil Procedure) Rules (supra) making Order 1 Rule 5 of the Federal High Court (Civil Procedure) Rules irrelevant to the interpretation of paragraph 18(3) of the First Schedule to the Electoral Act.
It was argued on the fourth issued that the sole question before the lower Tribunal was whether the appellant had applied at all for the issuance of the pre-hearing notice not whether the appellant had applied for the issuance of the pre-hearing notice; out of time, therefore paragraph 18(4) of the First Schedule to the Electoral Act should be read as a whole vide Attorney-General of Abia State v. Attorney-General of the Federation (2005) ALL FWLR (Pt.275) 414 at 542, producing the result that no hearing notice returnable in 3 clear days is contemplated and would not apply where the “petitioner” applied to the Tribunal for the issuance of pre-hearing notice and, the Tribunal obliged by issuing the pre-hearing notice; as the Tribunal cannot issue a pre-hearing notice, give a date for the pre-hearing session, and sit in Chambers to dismiss the petition as abandoned, for failure to apply for pre-hearing notice.
It was also argued on the fourth issue that the onus was on the 1st respondent to prove that the application for the issuance of the pre-hearing notice was statute-barred vide Timothy v. F.R.N. (2008) ALL FWLR (Pt.402) 1136 at 1151 which the 1st respondent did not prove by further affidavit or documentary evidence; that 1st respondent did not produce evidence of proof of service on the appellant in the lower Tribunal, consequently the attempt to prove same by the supplementary record of appeal amounted to raising fresh evidence on appeal without obtained the leave of the Court vide Akano v. F.B.N. v. Okojie (2004) 10 NWLR (Pt.882) 488; also, there is nothing in page 426 of the record indicating which document was served, and the signature of the process sever for it to answer to an affidavit of service as defined by Black’s Law Dictionary (5th Edition) and the cases of Remawa v. N.A.A.C.B. Consultancy and Finance Company Ltd. (2007) ALL FWLR (Pt.1257) 48 at 114 and Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt.928) 547 at 581 and Order 6 Rule 27 of the Federal High Court (Civil Procedure) Rules, also, the same page 426 stated the document was for service on one Abioye Tajudeen “the 1st respondent”, not Agboola Hosea,’ the 1st respondent in this matter; further that the lower Tribunal held in page 426 that “the petitioner was served with the said reply on 6th June, 2011; we confirmed this form our record” and that, the said holding was not an accidental slip.
It was argued further on the fourth issue that the pre-hearing session actually started on 7.7.2011, not 14.7.2011, wrongly stated in the 1st respondent’s amended brief of argument; that if was otherwise as stated by 1st respondent, leave of the lower Tribunal to move the application would have been insisted upon to be obtained under paragraph 47(1) of the First Schedule to the Electoral Act and the case of Okereke v. Yar’Adua (2008) 12 NWLR (Pt.1100) 95 at 120 before the application would have been taken in the lower Tribunal; and that, having issued the pre-hearing notice and fixed same for the commencement of the pre-hearing session, the lower Tribunal was wrong to turn round to dismiss the petition.
The amended reply brief of the appellant raised a preliminary objection against paragraph 8.09 of the 1st respondent’s amended brief on ground of incompetence on the premise that the lower Tribunal did not decide the issue, nor does any ground of appeal bear it; neither was any respondent’s notice also filed covering it vide Direct on PC Ltd. v. Sof Technologies Ltd. (2011) 10 NWLR (Pt.1256) 442 at 453, 454, Anyaduba v. N.R.T.C. (1992) 5 NWLR (Pt.243) 535 at 553; Nwabueze v. Okoye (1999) 4 NWLR (Pt.91) 664 at 679 and R.M.A. and F.C. v. U.E.S. Ltd. (2011) 9 NWLR (Pt.1252) 379 at 423.
It was argued in the alternative that the cases relied upon in paragraph 8.09 of the 1st respondent’s amended brief were decided per incuriam the early decision of the same Court in Hassan v. INEC (unreported) Appeal No. CA/I/EPT/8A/2007 decided in 2008; and that, paragraph 47(2) of the First Schedule to the Electoral Act would not apply as the pre-hearing session at which motions are to be moved would not yet be in place until the pre-hearing notice is issued pursuant to an application or formal request to the Tribunal for its issuance vide Black’s Law Dictionary (supra) at page 91.
It was argued in reply in respect of issue (V) that the substantive prayer on the motion paper did not cover the time bar of the application for the issuance of the pre-hearing notice and, the lacuna cannot be filed by relegating the issue to an ancillary one and resorting to affidavit evidence to cure it; all the more so paragraph 4 of the supporting affidavit referred to the fact that the appellant had not applied for the pre-hearing notice.
The appellant’s amended reply brief adopted the arguments on issue (vi) in his brief of argument for the reply brief and stated on issue (vii) of the main brief that the admissions on lack of nomination of 1st respondent by the 2nd respondent in a democratic manner to contest the election could have been stream-lined by the lower Tribunal at the pre-hearing session under paragraph 18(7)(b) and (c) of the First Schedule to the Electoral Act and; the said admissions should have sufficed in proof of the appellant’s petition on the leg of sponsorship and nomination vide Andony v. Ayi (2004) ALL FWLR (Pt.227) 464 at 482 and NNPC v. Sele (2004) ALL FWLR (Pt.223) 1859 – 1887; and that, the issue of the jurisdiction of the lower Tribunal to adjudicate on the question of nomination and sponsorship of the 1st respondent by the 2nd respondent was raised in a preliminary objection by the 1st respondent in the lower Tribunal, but when it was due to be heard at the pre-hearing session, the 1st respondent did not raise the issue which was deemed abandoned vide Agbareh v. Mirura (2008) ALL FWLR (Pt.409) 559 at 579.
The appellant’s reply brief to 2nd respondent’s brief dated and filed on 29.8.11, submitted that the 2nd respondent did not address the issue raised in the first issued for determination in the appellant’s brief of argument and the case cited there by 2nd respondent are inapplicable and should be disregarded; that the Practice Directions referred to in the 2nd resident’s brief, which were issued by the Honourable President of the Court of Appeal on 1.4.2011, do not relate to interlocutory applications; that there was no application to invalidate or set aside the pre-hearing notice issued by the lower Tribunal and, the lower Tribunal never invalidated it, therefore the contention by 2nd respondent that the pre-hearing notice was null and void should be discountenanced; and that the invitation to the Court for the invocation of section 15 of the Court of Appeal Act, is not the raising of a fresh issue without the leave of the Court, but is based on the materials already before the lower Tribunal which are available to the Court.
It was argued in the appellant’s reply brief to the 3rd respondent’s brief dated and filed on 29.8.2011, that the word “may” in paragraph 27(1) of the First Schedule to the Electoral Act is mandatory and following Madukolu v. Nkemdilim (1962) ALL NLR (Pt.2) 581 at 589 the lower Tribunal was not properly constituted as regards numbers to determine the 1st respondent’s interlocutory application, as only the chairman of the lower Tribunal was competent to determine the interlocutory application and postpone the pre-hearing sessions under paragraph 18(9) of the First Schedule to the Electoral Act; that an issue of jurisdiction can be raised at any stage of the proceedings vide Access Bank Plc. v. U.I.O. Consult Ltd. (2009) 12 NWLR (Pt.1156) 534 at 553, nor can an issue of jurisdiction be waived.
The appellant’s reply brief to the 3rd respondent’s brief argued further that the issue of filing the application for the issuance of the pre-hearing notice out of time was not before the lower Tribunal and the parties and the lower Tribunal were bound by the prayer on the motion paper asking for the petition to be dismissed against the 1st respondent for failure to apply for the mandatory issuance of the pre-hearing notice; the 3rd respondent did not address the issue of filing the application for the issuance of the pre-hearing notice and should be deemed to have admitted the appellant’s assertion that such application was made by him vide FMCT v. Eze (2006) ALL FWLR (Pt.323) 1704 at 1717; that assuming without conceding that the application for the issuance of the pre-hearing notice was time-bar, the onus was on the 1st respondent, as sponsor of the motion, to prove same, as the presumption of regularity inured to the existence of such an application and the issuance of a pre-hearing notice pursuant to it vide Timothy v. F.R.N. (2008) ALL FWLR (Pt.402) 1136 at 1151; that nobody challenged the competence of the pre-hearing forms issued by the lower Tribunal and the presumption of regularity validated the pre-hearing notice and same continued to be valid until challenged and set aside by the Court; and that, the return date of the motion was 7.7.2011 during the pre-hearing session and, its adjournment to 14.7.2011 did not cure the defect of not giving 3 clear days notice for the service on the appellant of the Tribunal process under paragraph 18(3) of the First Schedule to the Electoral Act.
Section 15 of the Court of Appeal Act (supra) is the cynosure of issue (ix) of the appellant’s issues for determination, which is the subject matter of the preliminary objection, it was interpreted by the Supreme Court in the case of Ejowhomu v. Edok-Eter Ltd. (1986) 5 NWLR (Pt.39) 1 at 17 – 18 thus:
“The word “rehearing” within the con of section 16 of the Court of Appeal Act 1976 has been construed by this Court in Jadesimi v. Okotie-Eboh (1986) 1 NWLR 264 to mean a hearing on the printed record by examination of the whole evidence both oral and documentary tendered before the trial court and forwarded to it. It means an examination of the case as a whole”.
Then at page 34 to 35 of the same Law Report:
“The jurisdiction of the Court of Appeal is founded upon an appeal lodged to it by a complainant otherwise called an appellant. The Court of Appeal is not a Court of first instance and even though it possesses the powers of a Court of first instance when determining an appeal, it only embarks upon that determination when proceedings, are initiated by a complaint lodged to it by an appellant. Until it is awakened into action from its sleep by such a complaint, it remains a contented tiger sleeping in its lair.
I agree that, in the instant appeal, the Court of Appeal had no jurisdiction to hold, as it held, that the defendant was not liable in nuisance, there being no appeal lodged to it by any of the parties on that issue. See: Chief Frank Ebba v. Chief Warri Ogodo & Anor. (1984) 4 SCF 84 at 122.” (My emphasis).
In my considered opinion, leave is not required to rouse the Court to apply section 15 of the Court of Appeal Act, as it is available for use, in appropriate cases, in respect of the materials already available on the record of appeal, as rightly submitted by Mr. Akeredolu, learned senior counsel for the appellant. But where evidence has not been taken in the matter by the court of Tribunal of first instance and the credibility of the witnesses is likely to be in issue as in the instant matter, the Court would be slow to invoke section 15 of the Court of Appeal Act (supra).
Because the Court would be saddled with the onerous task of taking evidence viva-voce from the listed witnesses and thereafter assessing their credibility to arrive at a decision in the matter, an exercise scarcely fit for section 15 of the Court of Appeal Act, especially in election petitions where primary jurisdiction is constitutionally vested in the lower Tribunal. Also, it would have been otherwise if the appellant had made an application to the lower Tribunal to determine the petition on the pleadings and the lower Tribunal had refused the request and the appellant had appealed against the refusal, in which case the Court would have been seized of the matter under section 15 of the Court of Appeal Act, which was not the case here – see again Ejowhomu v. Edok-Eter Ltd. (supra).
Accordingly, there is merit in the preliminary objection raised by Mr. Yusuf Ali, learned senior counsel, for the 1st respondent, against issue (ix) of the appellant’s issues for determination built on ground (xii) of the appellant’s ground of appeal. I would uphold the preliminary objection and strike out issue (ix) of the appellant’s issues for determination together with ground (xii) of the amended notice of appeal tied to it, in consequence.
The other issues formulated by the appellant are, in my view, succinct and shall guide the hearing of the appeal. In respect of issue (i), the record of appeal is clear that the chairman of the lower Tribunal sat with two other members to hear and dispose of the motion brought by the 1st respondent to terminate the petition of the appellant at the preliminary stage of the proceedings. One of the members of the lower Tribunal, Ajileye, J., read the ruling of the lower Tribunal upholding the motion resulting in the dismissal of the petition.
It is undisputed that the application by the 1st respondent that ended the life of the petition in limine was interlocutory.

By paragraph 27(1) of the First Schedule to the Electoral Act-
“All interlocutory questions and matters may be heard and disposed of by the Chairman of the Tribunal or the Presiding Justice of the Court who shall have control over the proceedings as a Judge in the Federal High Court.”
We had cause to construe the above paragraph 27(1) of the First Schedule to the Electoral Act in the case of Hon. Ayo Adesun and Another v. Chief Luqman Oyebisi Ilaka and Others (unreported) Appeal No. CA/I/EPT/NA/3/11 delivered on 12.9.2011, where we unanimously held inter alia that;
“This provision is in no way ambiguous except for the interpretation that may be given to the word “may” in the said paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 as amended. In OGUALAJI V. ATT. GEN. RIVERS STATE (1997) 6 NWLR (PART 508) 209 AT 233, the Supreme Court in interpreting the word “may” under section 28(1) of the State Lands Law of Eastern Nigeria as applicable to Rivers State stated as follows per Iguh JSC,
“It therefore seems to me settled that although section 28(1) of the State Lands Law applicable to Rivers State provides that the lessor “may” enter a suit for recovery of possession on expiration of the lessee’s lease, the word “may” in that section must be construed as mandatory and/or as meaning “shall” or “must’ since it imposes a duty upon a public functionary for the benefit of a private citizen.”
In R. v. BISHOP OF OXFORD (1879) QBD 245 Lord Blackburn stated that the enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. In the interpretation of statutory provisions, the intendment of the drafters of the place of legislation must at all times be borne in mind. What does paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 as amended seek to achieve? Judicial Notice is taken of the fact that proceedings before the Federal High Court are before a single Judge sitting alone and reference to a single Judge of eh Federal High Court in paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 as amended with respect to interlocutory applications cannot mean otherwise than that with respect to the hearing and determination of interlocutory applications before the election tribunals, the Chairman alone should so sit and determine such interlocutory applications to the exclusion of the other members,. Two pertinent questions must therefore be asked at this stage viz-
(1) Was the application dated 7th July, 2011 before the lower tribunal an interlocutory application; and
(2) In the determination of the application if indeed it was an interlocutory application who and who sat to hear and determine same?
The answer to the first question is undoubtedly yes. With respect to the second question it is an undisputed fact that the interlocutory application was heard and determined by all the members of the tribunal who each signed same and not by the Chairman alone. We are not here concerned with the rationale behind paragraph 27 of the First Schedule to the 2010 Electoral Act as amended that the Chairman of the tribunal solely should sit and determine interlocutory applications to the exclusion of the other members of the Election Tribunal. What we are concerned about in this appeal is that it is the law. Issue 1 is therefore resolved in favour of the Appellants against the Respondents”.
Learned senior counsel for the 1st respondent invited us to depart from the decision in Hon. Ayo Adeseun and Others v. Chief Luqman Oyebisi Ilaka and Others (supra) on the dual grounds that it dealt with the issue of amendment of a petition which is not the case here, and that the decision was given in ignorance of sections 1(3) and 285(4) of the 1999 Constitution, as amended. In my respectful view, the present case arose from the determination of an interlocutory question or matter whether the appellant had applied for the issuance of pre-hearing notice pursuant to paragraph 18(1) of the First Schedule to the Electoral Act; and the Adeseun case (supra) also dealt with an interlocutory question or matter to wit – the amendment of a petition; consequently both cases share the same attribute of interlocutory matters or questions and are, with full respects to 1st respondent’s learned senior counsel, indistinguishable.
Section 285(4) of the 1999 Constitution (as amended) provides the quorum of an election petition Tribunal to be the chairman and two other members which, I respectfully believe, is for the purpose of hearing election cases on the merits, shorn of interlocutory matters or questions which are procedural and preliminary in dimension.
Further, the petition in the lower Tribunal was in respect of a senatorial seat. By section 79(a)(1)(b) and (c) of the 1999 Constitution as amended, of which I take judicial notice, the National Assembly is empowered to make provisions spelling out the powers, practice and procedure of the Election Tribunal in relation to inter-alia a senatorial election petition dispute. For quick reference, the said section 79(a)(i), (b) and (c) of the 1999 Constitution, as amended reads:
“79 The National Assembly shall make provisions as respects –
(a) Persons who may apply to an election tribunal for the determination of any question as to whether-
(i) Any person has been validly elected as a member of the Senate or the House of Representatives.
(b) Circumstances and the manner in which, and the conditions upon which, such application may be made; and
(c) Powers, Practice and Procedure of the election tribunal in relation to any such application” (My emphasis).
In my respectful view, the above provision of the 1999 Constitution, as amended, clothed the National Assembly with the constitutional authority to enact the Electoral Act and the First Schedule thereto from which paragraph 27(1) thereof vests in the chairman of the election Tribunal the power to hear and dispose of interlocutory questions and matters sitting alone. In other words, the fountain or source of the said power is derived specifically from section 79(a)(c) of the 1999 Constitution itself, as amended, giving paragraph 27(1) of the First Schedule to the Electoral Act (supra) constitutional force or flavour – see by analogy Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40 at 56 thus:
“The Civil Service Rules of the Federal Public Service govern conditions of service of Federal Public Servants and they are made pursuant to the powers conferred on the respondent by the virtue of the Constitutional provisions in the 1963 Constitution; and the rules relevant to these proceedings were made in 1974, pursuant to the provisions of section 160(1) of the 1963 Constitution, Act No. 20 1963. These Rules, therefore, in my view, have Constitutional force…”.
(My emphasis).
See also Dimegwu v. Ogunewe and Others (2008) 17 NWLR (Pt.1116) 358 at 377 – 378 as follows:
“It is a well settled doctrine, that the rules governing the procedure and practice of the courts, which were made… pursuant to the powers conferred thereupon by the 1999 Constitution, form part and parcel of the Constitution. I think it may not be out of place to add that such procedural rules have the same force of law as the constitution itself. See Akanbi and Others v. Alao and Another (1989) 3 NWLR (Pt.108) 118; Abia State University v. Anyaibe (1996) 3 NWLR (Pt.439) 646; 660 paragraph A – B per Katsina-Alu, JCA (as he then was)”
Consequently, it cannot be said with assurance that the constitutional force of paragraph 27(1) of the First Schedule to the Electoral Act is in conflict with section 285(4) of the 1999 Constriction, as amended. The contention by 1st respondent’s learned senior counsel that such conflict exists and section 285(4) of the 1999 Constitution should prevail is with immense respects, untenable and is hereby discounted.
I share the view of Mr. Akeredolu, learned senior counsel, for the appellant, that paragraph 27(1) of the First Schedule to the Electoral Act (supra) is there to fast – track proceedings by vesting the chairman with exclusive procedural powers to deal with interlocutory question and issues in the interest of speedy or urgent/expeditious dispensation of electoral justice. Therefore, even where the other members are physically present at the interlocutory sittings of the Tribunal, it appears their presence would be passive without more, in my considered view.
Learned senior counsel for the 1st respondent and the learned senior counsel for the 3rd respondent argued that the word “may” in paragraph 27(1) of the First Schedule to the Electoral Act (supra) is directory.
With full respects, the word “may” as used in the said enactment has compulsory meaning as held by us in the yet unreported case of Adeseun v. Ilaka (supra). See also Ude v. Nwara and Another (1993) 2 NWLR (Pt.278) 638 at 661 thus:-
“…I believe that it is now the invariable practice of the courts to interpret “may” a mandatory whenever it is used to impose a duty upon a public functionary the benefit of which enures to a private citizen. See on this Chief J.O. Edewor v. Chief M. Uwegba and Others (1987) 1 NWLR (Pt.50) 313; at p. 339; Mokelu v. Federal Commissioner of Works and Housing (1976) 1 ALL NLR (Pt.1) 276 at p. 487; Kotoye v. C.B.N. & Ors. (1989) 1 NWLR (Pt.98) 419.”
Moreover, in the analogous case of Omeh v. Okoro & Ors. (1999) 8 NWLR (Pt.516) 356 at 368, this Court (powerfully constituted by Ubaezonu, JCA (as he was) Galadima and Fabiyi J.J.C.A. (now J.J.S.C.) held inter-alia that:
“…the question is whether the Tribunal had the jurisdiction to hear and determine an interlocutory matter under the Decree in the way and manner it did. One of the conditions laid down by the Supreme Court in Madukolu v. Nkemdilim (1962) ALL NLR 581; (1962) 2 SCNLR 341 for the proper assumption of jurisdiction is that the Tribunal or Court must be properly constituted. To be properly constituted means properly constituted under the law establishing the Tribunal or Court. Now, paragraph 27(1) of the Schedule 5 to the Decree:-
“27(1) All interlocutory questions and matters shall be heard and disposed of by the Chairman who shall have control over the proceedings as a judge in the Federal High Court.”
Thus, the Decree gives the chairman alone the jurisdiction to hear and dispose all interlocutory questions and matters. The hearing of an application for amendment of the petition is an interlocutory matter or question. The chairman alone has the jurisdiction to hear and dispose of it. The hearing and disposal of the appellant’s application by the Tribunal i.e. the entire members of the Tribunal sitting together as the Tribunal is contrary to paragraph 27 (1) of the Schedule 5 to the Decree and therefore null and void and of no effect. The Tribunal was merely meddling in an assignment given to the Chairman alone under the Decree. The Tribunal had no jurisdiction to so hear and dispose of the application”.
I, therefore, find myself unable to depart from the case of Adeseun v. Ilaka (supra). I follow it along with Omeh v. Okoro (supra). The composition of the lower Tribunal with the chairman and two other members when it heard and determined the interlocutory application of the 1st respondent was, accordingly, in violation of paragraph 27 (1) of the First schedule to the Electoral Act (supra) and struck at the root of the jurisdiction of the lower Tribunal and, I respectfully so hold. I equally hold that the issue of jurisdiction cannot be waived or acquiesced in by the parties – see Adetipe V. Amodu (1969) 1 NWLR 62 at 65.
Ajileye, J, a member of the lower Tribunal, read the ruling of the Lower Tribunal in the said interlocutory application. Paragraph 27 (2) of the First schedule to Electoral Act was relied upon by the respondents in order to justify the right of a member of the lower Tribunal to read the ruling of the lower Tribunal in respect of interlocutory questions or matters.
For quick reference, paragraph 27 (2) of the First schedule provides:
“After the hearing of the election petition is concluded, if the tribunal of court before which it was heard has prepared its judgment but the chairman or the presiding justice is unable to deliver it due to illness or any other cause, the judgment may be delivered by one of the members and the judgment as delivered shall be the judgment of the Tribunal or Court and the member shall certify the decision of the Tribunal or Court to the Resident Electoral Commission, or to the Commission”. (my emphasis).
The underlined portions of the above reproduced paragraph 27(2) of the First schedule to Electoral Act clearly refer to the judgment of the Tribunal after it had heard the petition on the merits; not in respect of interlocutory questions or matters. The phrase “any other cause” in paragraph 27 (2) of the said First Schedule to the Electoral Act would, in my considered view, apply to other reasons (s) aside, illness, that might keep the chairman away from reading the judgment of the Tribunal. Since the delivery, or reading of a ruling is part of the hearing of the matter covered y the ruling Akoh and Other v. Abuh (1988) 3 NWLR (pt. 85) 696 at 713 per Bello, C.J.N. (now of blessed memory), Okoye v. Nigeria Construction and Furniture Co. Ltd. (1991) 6 NWLR (pt. 198) 501 at 522, and Ukachukwu v. Uba (2004) 10 NWLR (pt 881) 294 at 301, the reading of the ruling of the lower Tribunal by one of the members of the lower Tribunal infringed paragraph 27 (1) of the First Schedule to the Electoral Act and vitiated the said ruling, in my respectful view.
Issue (i) is, accordingly, resolved in favour of the appellant, which should suffice to dispose of the appeal in favour of the appellant. But out of extra caution, the other issues may be looked into.
It is pertinent to refer to the motion filed by the 1st respondent in the lower Tribunal for the purpose of shedding light on what he had specifically sought to achieve by the motion. pages 252 to 253 of the record of appeal contain the application. The body of the application prayed for:
“1. AN ORDER dismissing the petition of the petitioner against the 1st respondent for failure to apply for the mandatory issuance of pre-trial notice.

2. SUCH FURTHER ORDER(s) as the Honourable Tribunal may deem fit to make in the circumstances of this case”.
I agree with learned senior counsel, Mr. Akeredolu, for the appellant, that an application purposed to put an end to a matter, such as an election petition affecting the interest of the electorate, on preliminary grounds must be approached with the finesse of a tooth-comb or examined, very carefully. Looking at the prayer sought in the above reproduced application, it is manifest that the 1st respondent did not pray for the dismissal of the petition on the ground that the appellant had applied for the issuance of the pre-hearing notice out of time.
Timeliness or time-bar of the appellant’s application was for the prayer in the application before the lower Tribunal. What was before the lower Tribunal in the said application was whether the appellant had applied for the issuance of the pre-hearing notice at all? It is now trite that parties are bound by prayer(s) in the motion paper – see Commissioner for Works, Benue State and Another v. Devcon Development Consultants Ltd. & Another (1988) 3 NWLR (Pt. 83) 407 at 420 per Karibi-Whyte, J.S.C., thus:
It is well settled that a plaintiff is bound by the case put forward in a writ of summons, as in A.C.B. Ltd. v. Attorney-General, Northern Nigeria (1969) NMLR 231. Similarly, an applicant will be bound by the prayers in his motion”. (My emphasis).
The grounds of the application also stated that:
“1. The petitioner filed his reply to the 1st Respondent’s reply on 25-5-2011.
2. The said petitioner’s reply was served on the 1st Respondent on 6-06-2011.
3. The petitioner is ordained by the Rules of Procedure for Election petition, Electoral Act, 2010 to apply for the issuance of pre-hearing Notice within 7 days after the service of the petitioner’s reply on the 1st Respondent.
4. The petitioner is already out of time to apply for the issuance of the pre-hearing notice.
5. The petitioner abandoned his petition after service of his reply on the 1st respondent’s reply”.
A holistic consideration of the above reproduced grounds of the application boils down, in my respectful view, to the complaint that the appellant was yet to apply for the issuance of the pre-hearing notice; thus abandoning his petition. Again, unless the above produced grounds are given strained consideration, the message conveyed by them was that the appellant had not applied for the issuance of the pre-hearing notice, in my view.
“The lower Tribunal also acknowledged the sting of the application when it stated in the summary of the 1st respondent’s application in 393 of the record inter-alia that:
“It is contention that the petitioner is already out of time to apply for the issuance of the pre-hearing notice and his petition should accordingly be treated as having been abandoned and be dismissed”.
So the issue that was actually before the lower Tribunal in the 1st respondent’s application was whether the appellant had applied for the issuance of the pre-hearing notice not whether he had applied out of time in my view. The lower Tribunal found that the appellant had applied for the issuance of the pre-hearing notice. Insofar as the 1st respondent’s said application was concerned, the lower Tribunal’s finding that the appellant had indeed applied to the lower Tribunal for the issuance of the pre-hearing notice, the substantive prayer in the said application should have been dismissed by the lower Tribunal, as the gravamen of the application was exhausted or spent by the discovery of the existence of the appellant’s application for the issuance of the pre-hearing notice in the record of the lower Tribunal by the lower Tribunal.
Having failed to dismiss the application upon discovery of the fact that the appellant had in fact applied for the issuance of the pre-hearing notice thus knocking off the bottom of the 1st respondent’s application, the lower Tribunal was, with deference, wrong to have unilaterally or suo motu expanded the horizon of the 1st respondent’s application to accommodate the issue of the appellant applying for the issuance of the pre-hearing notice out of time – see Adeniji v. Adeniji (supra) following Ochonma v. Unosi (1965) NMLR 321 cited by the appellant’s learned senior counsel, and Obomhense v. Erhahon (1993) 7 NWLR (Pt. 303) 22 at 41.
The moment the lower Tribunal introduced the new dimension of statute bar of the appellant’s application for the issuance of the pre-hearing notice into the 1st respondent’s application, it behoved it to have given the appellant the opportunity to react to the fundamental twist in the application, as it eventually formed the fulcrum of the ruling delivered by the lower Tribunal dismissing the petition. It did not do so. I hold that it seriously erred in not so doing. Its failure to do so led the lower Tribunal into the tedium of searching in its correspondence file for the bailiff’s affidavit of service to supply the answer to the new issue of time-bar of the appellant’s application it had raised on its own in the ruling, dismissing the petition on the said ground, without any substantive prayer in the motion paper covering the issue. See Ekpenyong v. Nyong (1975) 2 SC 71.
A lot of arguments were devoted on the propriety or otherwise of the lower Tribunal going behind the parties to search its correspondent file for evidence of service of appellant’s reply to 1st respondent’s reply to the petition on the 1st respondent. I would agree with the respondents that, in deserving circumstances, a Court or Tribunal may resort to its record in the manner the lower Tribunal did – see Attorney – General of Anambra State & Ors v. Okeke & Ors (2002) 12 NWLR (pt. 782) 575 at 603-604 thus:
“I am in agreement with the position taken by the court below that the court will take judicial notice of its own proceedings and records and also their contents. (See Osafile V. Odi (No.1) (1990) 3 NWLR (pt. 137) (130). Where in a proceeding the question arises whether or not a process of court has been served in the proceeding, it will be a strange thing were court to ignore the proof of service afforded by its own record in the proceeding and hold that such process has not been served. A different circumstance would arise were the question of service to arise in a different proceeding or, were the authenticity of what was filed on record or its adequacy be in issue. But that was not the case here. I am in entire agreement with Tobi JCA, (as he then was) who qualified the general proposition that the court is entitled to make use of any document or documents in its file when he said:
“There is one basis qualification of this principle of law and it is that the document or documents must have undergone the litigation process or the process of adjudication by the court or the parties have mutually come to an agreement as to their status in the litigation”.
However, that qualification does not take an affidavit of service filed on record out of the general proposition that the court is entitled to make use of document or documents in its file. An affidavit of service of a court process is normally a non-contentious document required to be put on record for information of the court and the parties as to the fact and date of service of a process in the proceeding. It cannot be a reasonable proposition that in that same proceeding in which it was filed the law requires that the self-same document should be proved before the court before it can be relied on”. (My emphasis).
Se also Oji Ada & Ors v. Ossai Uku and others (1977) 5 F.C.A. 217 at 227, and Fumudoh v. Aboro (supra) at 229 letter (E).
But, in my respectful view, the issue of whether, when, and how the appellant served his reply to the 1st respondent’s reply to the petition on the, 1st respondent was not a live issue in the motion filed by the 1st respondent at the lower Tribunal, therefore it was an exercise in futility for the lower Tribunal to have taken the extra trouble of searching its record for the ascertainment of the matter. Speaking for my modest self, I do not find it imperative to delve into the issue of service or non-service of the said Tribunal process, as the issue did not squarely arise from the 1st respondent’s application before the lower Tribunal.
Learned senior counsel for the 1st respondent ingeniously argued that the issue of time-bar arose as an ancillary question in the lower Tribunal. I do not, with full respects, subscribe to the point that such an important issue that was used by the lower Tribunal as the central reason for the dismissal of the petition in limine should have come an ancillary issue. In my view, the issue of time-bar was local and deserved to have been made a substantive prayer in the motion paper. Giving it the toga of an ancillary issue would not, again, with full respects, meet the justice of the matter. See paragraph 53 (3) of the First schedule to the Electoral Act cited by appellant’s learned senior counsel.
In the absence of any substantive prayer on time-bar in the 1st respondent’s said application, I find it unnecessary to deal with the issue of service to the said Tribunal process and when time stated to run against the appellant to apply for the issuance of the pre-hearing notice to activate the pre-hearing session; and whether the lower Tribunal intended to refer to 1st respondent, not appellant, as the person that was served the last reply closing the pleadings before the lower Tribunal, but in the process made a clerical mistake, never arose from the application fifed by the 1st respondent before it. And, I hereby most respectfully reserve my comments on it.
It appears to me the phrase “returnable in 3 clear days” in paragraph 18 (3) of the First Schedule to the Electoral Act may have diverse connotations. With respects to the draftsman, the phrase is not happily worded. It has given even experienced learned senior counsel in this matter trouble such that there is not consensus on its true import.
In my humble opinion, the use of the word “clear” has the result that both the date from which the period commences and the day the act is to be performed are excluded from computation. Giving the notice of the application in “3 clear days” to the “respondent” is undoubtedly a paramount matter. I strongly believe the phrase “3 clear days” was deliberately inserted in the provision for the protection of the respondent to the application and in order that he may have advance notice of the application and thus give time to him to prepare his response upon the point(s) raised by the application.
In other words, the number of days (3 clear days) must intervene between the day on which service of the application or motion is effected and the date on which the application is returnable, as rightly submitted by Mr. Akeredolu, learned S.A.N. Except in exceptional circumstances, a shorter return date, as was the case here, is never allowed.
Perhaps due to the now constitutionally time – bound nature of election petitions requiring as may be gathered from paragraphs 25-26 of the First Schedule to the Electoral Act, for example, I would give the phrase the meaning assigned to it by Mr. Yusuf Ali, learned S.A.N., for the 1st respondent, where he wrote in his client’s brief that the return date is the date inserted in the process for the hearing of the Tribunal process – in this case the 1st respondent’s motion on notice – as stated in the ruling of the lower Tribunal.
It is true that the lower Tribunal did not give “3 clear” days in the return of the Tribunal process: It gave the same date the motion was filed – 7.7.2011. With respects to the lower Tribunal, it breached paragraph 18 (3) of the First Schedule to the Electoral Act by abridging the time specified therein from “3 clear days” to one day. The 1st respondent, however, had no control over the assigning of the date the Tribunal process was to be heard. I do not think it right to penalise 1st respondent for the lapse of the lower Tribunal – see Attorney General of the Federatoin V. Ajayi (2000) 12 NWLR (pt. 682) 509 at 532 thus:
“As I have said, the fixing of matters for hearing in the court (or Tribunal) is an exclusive function of the court officials. Where there is any default in the performance of the functions of the officials of the court the blame cannot and must never be placed at the door step of a litigant who is seen to have carried out his own duty under the law or the rule”.
See also C.C.B. (Nig.) Plc. v. Attorney General of Anambra State and Anor (1992) 8 NWLR (Pt. 261) 528 at 561, Monye v. Presidential Task Force on Trade Malpractices and Ors (2002) 15 NWLR (pt. 789) 209.
Through the 1st respondent’s application was fixed for hearing on 7.7.11, on the request of appellant’s learned senior counsel for an adjournment to react to it, the lower Tribunal adjourned it for hearing on 14.7.11, giving the appellant 6 clear days to meet the 1st respondent’s application. The appellant made use of the 6 clear days, which was more than the 3 clear days stipulated by paragraph 18 (3) of the First Schedule to the Electoral Act, to confront the 1st respondent’s application without complaint of handicap or hardship of shortage of time. The interval of 6 clear days between the date the 1st respondent’s application was fixed for hearing and the date it was adjourned for hearing afforded the appellant adequate opportunity to recover his feet and respond to the application without let or hindrance. I would agree with the respondents that the appellant was not denied the right to fair hearing in the circumstances. It would have been otherwise, if the application was heard on the abridged date of 1.7.11.
The lower Tribunal allowed the 1st respondent to reply orally on points of law to the written submissions of the appellant in violation of paragraph 47 (5) of the First Schedule to the Electoral Act. But the appellant did not register his protest before the lower Tribunal against the procedural infringement and must be deemed to have waived the compliance, in my view – see Osigwe v. PLS Management Consortium Ltd. & Ors (2009) 1 SCNJ 1 at 18 as follows:
“The mere fact that there was no formal application in writing did not render the decision wrong. Breach of a rule of practice and procedure does not render the proceedings a nullity but merely an irregularity. See Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 387”.
See also Ayanwale & Ors v. Atanda & Anor (1988) 1 NWLR (pt. 68) 22.
Since the appellant has not shown convincingly that he offered to reply to the 1st respondent, reply on points of law to meet any fresh issue raised by the 1st respondent, but was denied the opportunity by the lower Tribunal, I find it hard to agree with the appellant that the breach of said provision denied him fair hearing.
The dismissal of the petition at the end of the ruling of the lower Tribunal swept along with it the steps the lower Tribunal took by the issuance of the pre-hearing notice and the pre-hearing Forms and adjourning the petition for pre-hearing. In other words, the effect of the toll on the said steps taken by the lower Tribunal without requiring any specific prayer by the 1st respondent to get rid of them, in my modest view.
The mode the appellant made the application for the issuance of the pre-hearing notice was not an issue before the lower Tribunal and, it wisely, in my view, refused to be drawn into it; consequently the arguments are of the 1st respondent on it are incompetent, more so 1st respondent did not cross – appeal the refusal of the lower Tribunal to delve into the issue and the said arguments are hereby discountenanced – see Direct on PC Ltd. v. Sof Technologies Ltd (supra), R.M.A. and F.C. v. U.E.S. Ltd. (supra) cited by the appellant’s learned, senior counsel.
I conclude the discourse by allowing the appeal and setting aside the ruling of the lower Tribunal dismissing the appellant’s petition. I hereby remit the petition for adjudication before another panel of the Election Petition Tribunal to be determined by the Honourable President of the Court of Appeal. No order as to costs.

STANLEY SHENKO ALAGOA, J.C.A: I read before now the lead judgment just delivered by my brother Ikyegh, J.C.A. which I agree with. I consider it necessary to say a few words of mine especially with respect to the assertion of learned Senior Counsel to the 1st Respondent that we should depart from our decision in the as yet unreported case HON. AYO ADESEUN & ANOR V. CHIEF LUQMAN OYEBISI ILAKA CA/I/EPT/NA/3/11 delivered on the 12th September 2011 on the ground that the said decision was given in ignorance of sections 1(3) and 285(4) of the 1999 Constitution of the Federal Republic of Nigeria as amended. I had said at page 8 of the judgment as follows,
“It is pertinent at this stage to examine the provisions of paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 as amended. It states that,
“All interlocutory questions and matters may be hard and disposed of by the Chairman of the Tribunal or the Presiding Justice of the Court who shall have control over the proceeding as a Judge in the Federal High Court”.
One of the issues for determination in that appeal was whether the lower Election Petition Tribunal acted with jurisdiction when all the three members comprising of the Chairman and two members, sat, heard and delivered a ruling on Petitioner’s interlocutory application before it Reliance had been placed on the cases of OGUNLAJI V. ATT. GEN. RIVERS STATE (1997) 6 NWLR (PART 508) 209 AT 233 SC and R. V. BISHOP OF OXFORD (1879) QBD 245.
to hold that the word “may’ ” in paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 as amended should be interpreted as “shall” to give that provision a mandatory flavour, the effect being that only the chairman of the Tribunal could sit to determine interlocutory applications to the exclusion of the other members. Judicial Notice was taken of the fact that at the Federal High Court, the practice and procedure is for a single Judge to sit alone. Counsel had submitted in reliance inter alia on AWUSE V. ODILI (2004) 8 NWLR (PART 876) 481 at 512 and MADUKOLU V. NKEMDILIM (1962) ALL NLR (PART 2) 581 at 589 that the Election Petition Tribunal could not have been properly constituted when the chairman and the two other members sat 2011, which the Court agreed with in its judgment. The reasoning of learned Counsel for the 1st Respondent is that paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 as amended is in conflict with section 285(4) of the 1999 Constitution as amended which provides that the quorum of the lower tribunal shall be the chairman and two other members and as such paragraph 27(1) of the 1st Schedule to the Electoral Act cannot confer jurisdiction on the lower tribunal and therefore paragraph 27(1) of the 1st Schedule to the Electoral Act is null and void to the extent of the inconsistency reliance placed on section 1(3) of the Constitution.
The Petition in the Tribunal below is with respect to a senatorial seat. To this end, recourse must be had to the provisions of section 79(c) as amended which states as follows-
“The National Assembly shall make provisions as respects powers, practice and procedure of the election tribunal in relation to any such application.”
The term “any such application” in section 79 (c) refers in section 79(a) and (b) as –
79(a) Persons who may apply to an election tribunal for the determination of any question as to whether –
(i) any person has been validly erected as a member of the senate or House of Representatives,
(ii) the term of any person has ceased, or
(iii) the seat in the Senate or in the House of Representatives of a member of that House has been vacant.
(b) Circumstances and manner in which and conditions upon which such application may be made.
By this provision the National Assembly is empowered to enact the Electoral Act 2010 and the 1st Schedule thereto. By paragraph 27(1) of the 1st Schedule to the Electoral Act 2010, the Chairman to the exclusion of the other members of the lower Election Tribunal is to hear and determine interlocutory matters. Paragraph 27(1) of the 1st Schedule to the Electoral Act, 2010 is and should therefore be seen as having constitutional flavour and not inconsistent with the Constitution as canvassed by Counsel to the 1st respondent. In the case of BELLO AKANBI & 3 ORS. V. MAMUDU ALAO & ANOR. (1989) 3 NWLR (PART 108) 118 the Supreme Court had to consider the Court of Appeal Rules which were made under powers conferred on the Honourable President of the Court of Appeal by section 227 of the 1979 Constitution and held as follows:
“The legal effect is that once it is shown that the rules are made under powers conferred by the Constitution, they would have the same force of law as the Constitution itself.” (underlining mine for emphasis).
It is for these reasons and the fuller reasons given by my brother Ikyegh (J.C.A.) that I also am of the view that the appeal be and is hereby allowed by me. I also set aside the ruling of the lower tribunal dismissing the Appellant’s petition while remitting the petition for hearing and determination before another Election Petition Tribunal to be constituted by the Honourable, the President of the Court of Appeal. I however make no order as to costs.

MODUPE FASANMI, J.C.A: I read in advance the lead judgment just delivered by my learned brother J.S. IKYEGH J.C.A. I am in complete agreement with his reasoning and conclusions.
I wish to support the judgment further as follows:
A ground of appeal defines or isolates and fully identifies a wrong committed by a court its judgment for the purpose of attack and also furnishes the rationale for challenging the decision that aggrieves an Appellant. See the case of FARDOUN V. M.B.C. INTERNATIONAL BANK LTD. (2006) ALL F.W.L.R. Part 297 at 1130 and OZIGBO V. P.D.P. (2010) 9 N.W.L.R. Part 1200 page 601 at 630 Paras C – D.

Where the court deems that an issue formulated for determination of an appeal from a ground does not derive its source from the judgment complained about, such issue is incompetent. It is trite law that issues for determination must be distilled from the grounds of appeal which is turn must be predicated upon the ratio decidendi of the decision of the court appealed against.
Ground XI of the appeal states:
“The learned Justices of the lower Tribunal erred in law when they dismissed the petition instead of giving judgment to the 1st Appellant was entitled to judgment based on any purported admission in respect of the 1st Respondent’s qualification for the election was made an issue before the lower Tribunal and was nowhere pronounced upon by that Tribunal in its ruling of 26/7/2011. The ruling was based on the 1st Respondent’s application. Appellant had no application praying for anything before the lower Tribunal to warrant the Tribunal making pronouncement thereof.
Consequently, ground XII contained in the Appellant’s Notice of Appeal as well as issue ix based on the said ground are strangers to this appeal. They are grossly incompetent and accordingly struck out. See the case of SARAKI V. KOTOYE (1992) 12 S.C.N.J. Page 26 at 43 where the Supreme Court had this to say;
“It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. See EGBE V. ALHAJI (1990) 1 N.W.L.R. at 590 grounds of appeal are not formulated nubi bus. They must be in firma tera, namely arise from the judgment. However, meritorious the ground of appeal, based on either on points of critical constitutional importance or general public interest, it must be connected with a Respondent on the admission of the 1st Respondent on non qualification.
Particulars
(a) It is the law that a fact admitted need no further proof;
(b) Where there is such admission, the lower Tribunal cannot dismiss the petition but give judgment in respect of that admission;
(c) A person must be qualified as to sponsorship before he can contest the election;
(d) Section 87 of the Electoral Act 2010 (as amended) provided the procedure for sponsorship;
(e) There is un-contradicted and uncontroverted evidence before the Tribunal that there was no delegate congress by the 2nd Respondent upon which any Primary Election could be held;
(f) Non conduct of the delegates congress renders the sponsorship of the 1st Respondent null and void and of no effect;
(g) This issue alone nullifies the Election of the 1st Respondent.”
I have gone through the ruling in the instant case over and over and I am unable to see where the learned trial Judge made mention of whether controversy between parties. This is the pre-condition for the vesting of the judicial powers of the constitution in the Courts.”
The preliminary objection is meritorious and it is hereby sustained. Ground XII and issue ix formulated from the ground are accordingly struck out.
Based on the above and having entirely agree with the well considered reasons and conclusions in the judgment, I too allow the appeal and I endorse the consequential orders made in the lead judgment.

Appearances

Mr. O. O. Akeredolu, SAN. with Mrssrs. Oladokun, Lana, Lawal and AkinolaFor Appellant

AND

Mallam Yusuf Ali, SAN with messrs. Lawal, Jimoh, Gold, Adegboye and Akintade
Mr. J. D. Olaniyan with Miss O. O. Adedeji
Mr N. O. O. Oke, SAN, with Messrs. Oladele and AkinbodeFor Respondent

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