HON. AGBOOLA ALFRED AJAYI v. OLOYE RAPHAEL NOMIYE & ORS.
(2011)LCN/4834(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of October, 2011
CA/AK/EPT/NAE/HR/04/2011
RATIO
GROUNDS OF APPEAL: WHETHER THE GROUNDS OF APPEAL AGAINST A DECISION MUST RELATE TO THAT DECISION
It has long been settled that grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio of that decision. See A.G. Anambra State v. Onuseloeu Enterprises Ltd [1987] 4 NWLR (Pt. 66) 547: Oniah v. Onvia [1989] 1 NWLR (Pt. 99) 514 @ 527: Osinupebi v. Saibu (1982) 7 SC 104 @ 110. PER CHINWE EUGENIA IYIZOBA, J.C.A.
INTERPRETATION OF STATUTE: THE PURPORT OF THE PROVISIONS OF THE PARAGRAPH 18 (4)
Paragraph 18 (4) did not oust the jurisdiction of the Tribunal. Its import is that if the petitioner did not act within the time frame provided for filing his application for pre-hearing, the time cannot be extended. The validity of the paragraph has been upheld in numerous decisions of this court and the Supreme Court. See Okereke v. Yar’Adua [2008] 12 NWLR (P1.1100) 95 @ 118: Maitsidau v. Chidari [2008] 6 NWLR (Pt.1114) 553: Enwezor v. INEC [2009] 8 NWLR (Pt.1143) 2233: Ogunmodede v. Fatai (supra): Olavemi v. Fatai (2010) 7 EPR 355. PER CHINWE EUGENIA IYIZOBA, J.C.A.
STARE DECISIS: CONSEQUENCE OF NOT FOLLOWING THE JUDGMENT OF THE SUPREME COURT
A judgment of the Supreme Court, the highest court of the land remains valid and binding on all courts in Nigeria. I agree with the submission of Mr. Osaze-Uzzithat the lower tribunal was certainly bound by the decisions of the court of appeal and the Supreme Court just as we in the court of appeal are bound by the decisions of the Supreme Court. The time honoured principle of stare decisis is the foundation of hierarchy and order in our judicial system. Not following the decision of the Supreme Court would, in the words of the Supreme Court itself amount to ‘Judicial impertinence” – Dalhatu v. Turaki [2003] 18 NWLR (pt. 843). PER CHINWE EUGENIA IYIZOBA, J.C.A.
ELECTION PETITION: WHETHER AUTHORITIES OF CIVIL CASES CAN BE APPLIED TO ELECTION PETITIONS
It has been repeated times without number that election cases belong to a class by themselves. They are sui generis. All the cases cited by Mr. Afolayan are civil cases, not election petitions. They cannot be used as authorities in determining the constitutionality or otherwise of Paragraph 18(4) of the 1st Schedule to the Electoral Act. PER CHINWE EUGENIA IYIZOBA, J.C.A.
ELECTION PETITION: ESSENCE OF TIME LIMIT IN ELECTION PETITION
Time is of the essence in election petitions. In the case of Odon v. Barigha-Amanee (No. 1) [2010] 12 NWLR (Pt.1207) 13. referred to by Chief Adeyeye, Garba JCA at page 10 observed: “In election petition, time is of the essence. The essentiality of time imposes a duty on the court, the parties and their counsel to dispose of same expeditiously. That duty on the court in election matters demand it to restrict the parties to time frame set in the Electoral Act, 2006 and the Practice Directions. See Bounwe v. R.E.C. Delta State [2006] 1 NWLR (Pt. 961) 286 @ 310-313” See also Ikoro v. Izunaso [2009] 4 NWLR (Pt.1130) 45 @ 70 where Garba JCA again observed: “The rules have adequately provided sufficient time and opportunity to all serious and diligent parties in an election petition based on need for such matters to be determined promptly and not to be allowed to be dragged by the usual clogs in other civil matters. Accordingly “the interest of justice” “justice of the case”, “hearing on the merits” et cetera, have been taken into account and included in the provisions of the rules and so should not be clung to by any unserious and indolent party to justify non-compliance with or breach of the rules to side track the provisions of the paragraph in the name of the rather sentimental use of the phrase above to permit the parties to conduct the petitions as they like would do real violence to the intention of the provisions and result in unnecessary and irksome delays that characterize the usual civil matters. The express provisions of the Electoral Act and the 1st Schedule thereto on the need for the expeditious disposal of election petitions would unjustifiably be defeated by such an approach and attitude.” The reasoning above is indeed sound. If the appellant’s contention is that he has no objection to time limits in election petitions but that provisions which prevent the tribunals from extending time are unconstitutional and should be expunged, then that would defeat entirely the objective of imposing time limits. Further, the principle of time frame in election petitions has been elevated to a constitutional pedestal by Section 285 of the Constitution (2nd alteration) Act 2010 which now prescribes 21 days within which to file election petitions and gives tribunals 180 days from the date of the filing of the petition within which to deliver its judgment. The issue of time within which to take steps laid down by the Electoral Act can no longer be regarded as mere technicality. The cases of Ado v. Mekara [2009] 9 NWLR (Pt.1147) 491; and Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446 referred to by Chief Adeyeye are very apposite. In Ado v. Mekara (supra) Okoro JCA at page 508 observed: “Election matters are by their nature sui generis and parties must carefully peruse the rules governing same before embarking on filing any petition as failure to abide by the rules would be fatal to the petition. This is more so as it relates to time of doing of an act because time is of essence in election petitions. See Emeka vs Emordi [2004] 16 NWLR (Pt.900) 433”. PER CHINWE EUGENIA IYIZOBA, J.C.A.
INTERPRETATION OF STATUTE: WHETHER THE PROVISION OF PARAGRAPH 45(1) OF THE 1″ SCHEDULE TO THE ELECTORAL ACT APPLIES TO APPLICATION FOR ISSUANCE OF PRE-HEARING NOTICE
Paragraph 45(1) of the 1″ Schedule to the Electoral Act provides: ‘The tribunal or court shall have power subject to the provisions of paragraph 16 of this schedule, to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this schedule.” Being of the view that Paragraph 18 (4) is not unconstitutional, the above paragraph 45(1) does not apply to it as Paragraph 18(4) clearly provides that application for extension of time shall not be filed or entertained. PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENI AIYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
HON. AGBOOLA ALFRED AJAYI Appellant(s)
AND
1. OLOYE RAPHAEL NOMIYE
2. LABOUR PARTY (LP)
3. INDEPENDENTNATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the National and State House of Assembly Election Tribunal Akure Ondo State in Petition No.EPT/ODS/HR/03/2011 delivered on the 1st day of August, 2011 in which the Tribunal dismissed the application of the appellants for extension of time within which to apply for the issuance of pre-hearing notice and also dismissed the petition as abandoned for failure to apply for issuance of pre-hearing notice as required by law.
We heard the appeal on the 19th day of September 2011. We delivered judgment that same day dismissing the appeal and indicated that reasons will be given later. We now give the reasons.
The appellant herein was the candidate of Peoples Democratic Party (PDP) at the House of Representatives election held in Ondo State on 9/4/11 for Ilaje/Ese Odo Federal Constituency. The 1st respondent who contested the election under the platform of the 2nd respondent, Labour Party (LP) was declared the winner of the election by the 3rd respondent, INEC. Being dissatisfied with the declaration of the 1st respondent as the winner, the appellant as petitioner on 29/4/2011 presented a petition before the Tribunal challenging the result of the election. Pleadings were duly exchanged. The last pleading was the petitioner’s reply to the 3rd respondent’s reply to the petition and was filed on 1/6/2011. Instead of filing an application for issuance of pre-hearing notice, the petitioner filed a motion for amendment of his petition. The Tribunal refused to hear the motion holding that the motion could only be heard during the pre-hearing session. The respondents now filed separately at different times applications to dismiss the petition for failure to apply for issuance of pre-hearing notice within the time allowed. The petitioner filed a counter affidavit in opposition and then also filed a motion for extension of time within which to apply for and file the pre-hearing Form TF 007 and a deeming order. The Tribunal refused the petitioner’s application and granted the application of the respondents dismissing the petition as abandoned, the petitioner having failed to apply for issuance of pre-hearing notice within 7 days of 1/6/2011 when the last pleading was filed. Aggrieved by the ruling of the Tribunal, the appellant approached this court with a notice of appeal containing five grounds of appeal.
The said grounds bereft of their particulars read as follows:
1. The lower Tribunal erred in law and came to a wrong decision when it held “the Tribunal holds the view that paragraph 13 (4) having made provision on the issue of extension of time for application for issuance of pre-hearing notice, it ousts the application of the provisions of paragraph 45 (1) to that issue”
2. The Lower Tribunal erred in law and came to the wrong decision when it held that paragraph 18 (4) of the First Schedule to the Electoral Act, 2010 (as amended) delimits the power of the Tribunal to extend the time to make application for issuance of notice for pre-hearing after the expiration of 7 days period.
3. The lower Tribunal erred in law and came to the wrong decision when it held that “the prayer therefore to deem as properly filed and served Form TF007, the requisite fees having been paid cannot be granted by this Tribunal as the Form is nothing but a nullity as it is void ab initio.”
4. The lower Tribunal erred in law when it dismissed the petitioner’s application for extension of time to apply for the issuance of pre-hearing notice.
5. The lower Tribunal erred in law when it held that the cases of ENWEZOR VS. INEC (2009) 8 NWLR (PART 1143): OKEREKE VS. YAR’ADUA (2008) 12 NWLR (Pt. 1100) 95: OGUNMODEDE vs. FATAI (2010) 7 EPR 355 AND MAITSIDAU VS, CHIDARI (2008) 6 NWLR (Pt.1114) 553 relied on by the respondents were not given per incuriam.
From these grounds of appeal, the appellant formulated four issues:
1. Whether a Statute can legally oust the Jurisdiction conferred on a Court/Tribunal established by the constitution. (Grounds 1 and 2)
2. Whether the decisions in ENWEZOR vs. INEC (2009) NWLR (PART 1143): OKEREKE VS. YAR’ADUA (2008) 12 NWLR (Pt.1100) 95: OGUNMODEDE VS. FATAI (2010) 7 EPR 355 AND MAITSIDAU VS. CHIDARI (2008) 6 NWLR (Pt.1114) 553 are not given per incuriam and if yes whether they are binding on the Lower Tribunal in view of the contrary decision against the aforementioned cases in ALI VS. OSAKWE (2009) 14 NWLR (Pt 1160)75 (Ground 5)
3. Whether the decision of the lower Tribunal that the Form TF 007 filed by the Petitioner is a nullity is not based on technicality and therefore liable to be set aside in view of the overriding judicial policy laid down by the Supreme Court to do substantial justice (Ground 3)
4. Whether paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended) is not unconstitutional and if the answer to this question is in the affirmative, whether the power of the Tribunal to grant extension pursuant to Paragraph 45(I) is not extant. (Grounds 1, 2 and 4).
Learned Counsel for the 1st and 2nd respondents, Chief Adeyeye in his brief of argument identified only one issue as arising for determination:
l. Whether in the circumstances of this case the Learned members of the Election Tribunal were right when they applied the provisions of paragraph 1S(4) of the Rules of Procedure for Election Petition contained in the First Schedule of the Electoral Act to refuse the application of the petitioner/appellant for extension of time and consequently dismissed the petition on the ground that no application for the issuance of notice of pre-hearing session was made by the petitioner. See the grounds of appeal on pages 895- 899.
Chief Oluwole Osaze-Uzzi for the 3rd respondent in his brief raised a preliminary objection to the competence of all the issues formulated by the Appellant and in the alternative formulated two issues for determination;
i.) Can the Tribunal enlarge time for a petitioner to apply for the issuance of a pre-hearing notice? and;
ii.) Was the Tribunal correct in dismissing the Petition for the failure of the petitioner/Appellant to apply for the issuance of a pre-hearing notice?
During the hearing of the appeal on 1919/2011, E. Afolayan, Esq., lead Counsel for the appellant moved a motion praying for an order of the Court for leave and also for an order to compile and serve additional record of Appeal. The additional record of appeal which learned counsel claimed was inadvertently left out in the record of appeal compiled by the Tribunal Secretary was the appellant’s letter to the Secretary dated 20/6/2011 applying for the issuance of Form TF 007. In opposing the application Counsel for the 3’d respondent Mr. Osaze-Uzzi submitted that by paragraph 9 of the Election Tribunal Court Practice Directions 2011, the time for compilation and filing of record of appeal is 10 days ; that the appellant was grossly out of time and did not apply for extension of time. Further, learned counsel drew our attention to page 879 of the record wherein the lower Tribunal observed that there was nothing in the record of proceedings to show that there was an application for issuance of pre-hearing notice. The application was therefore challenging the record of proceedings and not actually to supplement the records. Our ruling was that time is absolutely of the essence in these election matters. This Court had just 60 days from the date judgment was delivered within which to determine the appeal. The appellant upon receipt of the record of proceedings, instead of applying immediately to compile the supplementary record proceeded to file his brief of argument based on the record served on him. Then after briefs had been fully exchan9ed, he brought this application. The appellant did not show due diligence in filing this motion. Most importantly, he did not produce a certified true copy of the proposed supplementary record. We consequently dismissed the application as unmeritorious.
The preliminary objection, notice of which was duly given in writing and in court during the hearing was argued in the 3rd respondent’s brief. I shall deal with it first before proceeding to the appeal proper.
The argument of counsel is that the issues formulated by the appellant are incompetent. While conceding that an issue can deal with several grounds of appeal, counsel submitted relying on several authorities that no ground of appeal can constitute more than one issue. He submitted that issues 1 and 4 of the appellant’s brief cover the same grounds of appeal (grounds 1, 2, and 4); that where a ground of appeal transcends more than one issue, all such issues become tainted with an incurable vice and should be discountenanced and struck out. Counsel further submitted that issue 3 which is predicated on ground 3 is also incompetent. He argued that the facts contained in the particulars are not borne out by the record; that there is no letter in the entire 900 page record of proceedings by which the appellant applied for a pre-trial session; that the parties and the courts are bound by the records; that the appellant throughout the proceedings in the lower tribunal conducted his petition on the basis that his application for amendment re-opened pleadings and that until the respondents filed their reply to the amended pleading and the petitioner filed his if he so desired, the application for the issuance of pre-hearing notice was not ripe. Counsel argued that the appellant cannot on appeal resile from his stand in the lower tribunal and argue that he filed an application in the form of a letter. He cannot make a case different from that which he made in the Tribunal. Counsel urged us to strike out ground 3 and issue 3 formulated there from. Counsel further argued that issue 2 said to be formulated from ground 5 is predicated on a subversive and false premise in that it sought to incite the lower tribunal to subvert the doctrine of stare decisis and amounts to abuse of court process.
In his reply brief, Mr. Afolayan for the appellant dismissed the 3rd respondent’s contentions as totally misconceived and urged us to dismiss all of his arguments and uphold the issues and grounds of appeal as proper and well conceived. Counsel submitted that it is trite that an issue for determination can be formulated from several grounds of appeal and that issue 1 was formulated from grounds 1 and 2 of the grounds of appeal exclusive of ground 4. Counsel further submitted that it is not the argument of the 3’d respondent that the issues formulated were not supported by the grounds of appeal; it is also not their argument that the two issues (1 and 4) were formulated on one ground of appeal. Counsel consequently urged us to hold that the relevant grounds of appeal and the issues formulated there from are competent. On issue no 3 formulated from ground 3 of the notice of appeal, counsel referred to page 879, paragraph 2 of the record of appeal and submitted that ground 3 is based on the decision of the Tribunal as stated therein. Counsel further submitted that it is not correct to say that the appellant did not file any application as held by the lower Tribunal. Further, that the holding of the lower tribunal that the filing of form TF007 was a nullity was based on technicality which no longer represents the position of the law as the position of the law today is to do substantial justice as between the parties. Counsel argued that the ground of appeal was based on what transpired in the lower tribunal and is competent. On issue no 2 formulated from ground 5 being predicated on a subversive and false premise of inciting the tribunal to subvert the doctrine of stare decisis, Counsel submitted that the issue is well formulated from the ground of appeal which ground of appeal was based on the decision of the lower tribunal at page 887 of the record. Counsel, relying on the cases of ONYEKWELI VS. INEC (2009) 6 NWLR (PT.1136) 13 @ 32: EPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (PT.34) 162 @193 – 194: ALI VS. OSAKWE (2009) 14 NWLR (Pt.1160) 75, submitted that once it is proved that the decision of a court has been reached per incuriam, such decision will not be binding and cannot be used as authority or precedent by a court of concurrent or inferior jurisdiction. Counsel finally urged us to dismiss the preliminary objection in its entirety and hold that the issues formulated for determination by the appellant are competent and decide the appeal on its merit.
It has long been settled that grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio of that decision. See A.G. Anambra State v. Onuseloeu Enterprises Ltd [1987] 4 NWLR (Pt. 66) 547: Oniah v. Onvia [1989] 1 NWLR (Pt. 99) 514 @ 527: Osinupebi v. Saibu (1982) 7 SC 104 @ 110. I have examined carefully the grounds of appeal herein; it is not in doubt that they directly challenge the decision of the lower Tribunal. In other words, they all flow from the decision of the trial tribunal. See Uchegbu v. S.P.D.C. (Nig) Ltd [2010] 2 NWLR (Pt.1178) 285. Apart from Ground 5, Mr. Osazi-Uzzi had no problem with the other 4 grounds of appeal. His grouse is with the issues formulated there from. With respect to ground 5, that the lower Tribunal erred in law when it held that named cases relied on by the respondents were not given per incuriam; counsel argued that the ground and issue formulated there from is fraught with irregularity and predicated on subversive and false premise and therefore an abuse of court process. In terms of rules governing the formulation of grounds and issues for determination in an appeal, I see nothing wrong with ground 5. The appellant is complaining about the decision of the lower Tribunal; no matter how untenable and absurd his view or contention is, that is no basis for striking out the ground or issue in limine. If only grounds of appeal which are correct in law and substance are allowed to go to trial, then there will be no need for appeals. The case of Okereaffia v. Agwu (2008) 12 NWLR (Pt.1100) 165 @ 189 which Mr Osaze -Uzzi relied on in urging us to strike out ground 5 as an abuse of court process is certainly not apposite. The case dealt with the filing of an appeal in the court of appeal while at the same time pursuing a motion in the lower court for the court to set aside its decision. The case is not relevant and there is no abuse of court process here. Issues arise from grounds of appeal. Their essence is to narrow the relevant points in issue. The grounds of appeal are usually diffused or contracted to form issues for determination. The number of issues must therefore always be less than the number of grounds of appeal. The number of issues here are less than the number of grounds. Issues I and 4 were not formulated from one ground. I find no substance in the preliminary objection. It is hereby overulled.
I am however of the view that issues 1, 3, and 4 are identical and could easily be subsumed into one issue covering grounds 1, 2, 3 and 4. To that extent I prefer and shall adopt the sole issue formulated by learned counsel for the 1st and 2nd respondents in his brief. It covers all the issues raised by the appellant and all the grounds of appeal as set out in the notice of appeal. It is necessary to again set out the sole issue here:
i. Whether in the circumstances of this case the Learned members of the Election Tribunal were right when they applied the provisions of paragraph 18(4) of the Rules of Procedure for Election Petition contained in the First Schedule of the Electoral Act to refuse the application of the petitioner/appellant for extension of time and consequently dismissed the petition on the ground that no application for the issuance of notice of pre-hearing session was made by the petitioner.
I have considered carefully the briefs filed by all the parties in this appeal, the authorities referred to and the record of appeal. The crux of this appeal by the appellant is that the lower tribunal erred in law in refusing to grant his application for extension of time within which to apply for issuance of pre-hearing notice and instead dismissing the petition. The appellant apparently conceded that paragraph 18(4) & (5) of the 1st Schedule to the Electoral Act proscribe application for extension of time and further provides that the Tribunal/court shall be functus officio. But his contention is that these provisions are unconstitutional in so far as they tended to oust the jurisdiction of the Tribunal/court. In his brief, the appellant referred to several sections of the Constitution and decided authorities to support his contention that the said paragraph 18 cannot oust the jurisdiction conferred on the Tribunal being a court established by the Constitution. It is needless to reproduce his argument. Suffice it to say that I agree with the views of Chief Adeyeye in his brief that the said paragraph 18 (4) does not oust the jurisdiction of the Tribunal to hear and determine election matters brought before it. On the contrary, it is a rule regulating the practice and procedure for hearing petitions as prescribed in Section 145(1) & (2) of the Electoral Act 2010 (as amended). Such statutory provisions which stipulate the way and manner a litigant should proceed in the institution and prosecution of his case has been held not to be unconstitutional. In Amadi v. N.N.P.C. [2000] 10 NWLR (Pt.674) 76, Karibi-Whyte JSC recognized the fact that regulations of the right to access to the court abound in the rules of procedure and are legitimate. Also in Atolaebe v. Awuni (1997) 9 NWLR (Pt. 522) the Supreme Court per Wali JSC observed:
“Section 15 of Edict No 3 of 1988 does not curtail the right of a person to sue in a chieftaincy matter as enshrined in the provisions of section 6(6)(b) of the 1979 Constitution. It is merely a condition precedent which must be fulfilled before an action can be instituted. Condition precedent ordered to be done before a litigant is entitled to sue, by reason of the provisions of some statute, is not an ouster clause…”
Paragraph 18 (4) did not oust the jurisdiction of the Tribunal. Its import is that if the petitioner did not act within the time frame provided for filing his application for pre-hearing, the time cannot be extended. The validity of the paragraph has been upheld in numerous decisions of this court and the Supreme Court. See Okereke v. Yar’Adua [2008] 12 NWLR (P1.1100) 95 @ 118: Maitsidau v. Chidari [2008] 6 NWLR (Pt.1114) 553: Enwezor v. INEC [2009] 8 NWLR (Pt.1143) 2233: Ogunmodede v. Fatai (supra): Olavemi v. Fatai (2010) 7 EPR 355. Learned counsel for the appellant in his brief submitted that the above decisions were given per incuriam and therefore not binding on the courts. In arriving at this conclusion counsel in my humble view misquoted the view of Ogunwumiju J.C.A. in Onyekweli v. INEC (supra). What the Hon Justice said at page 32 of the report is this:
“A judgment per incuriam is one which had been rendered inadvertently. For example, where the judge has forgotten to take into consideration a previous decision to which the doctrine of stare decisis applies. .. .. such a judgment which contradicts a settled principle of law by a superior court is said to be per incuriam. It cannot for that reason only be set aside. When the judgment is deemed per incuriam the implication is that it cannot be used as authority or precedents by courts of concurrent or inferior jurisdiction. See Rossek v. A.C.B. Ltd [1993] 8 NWLR (Pt. 312) 382″
The judgments do not fall into the above category of cases. They are judgments of Superior courts which have not been declared by any lawful authority to have been given per incuriam. A judgment of the Supreme Court, the highest court of the land remains valid and binding on all courts in Nigeria. I agree with the submission of Mr. Osaze-Uzzithat the lower tribunal was certainly bound by the decisions of the court of appeal and the Supreme Court just as we in the court of appeal are bound by the decisions of the Supreme Court. The time honoured principle of stare decisis is the foundation of hierarchy and order in our judicial system. Not following the decision of the Supreme Court would, in the words of the Supreme Court itself amount to ‘Judicial impertinence” – Dalhatu v. Turaki [2003] 18 NWLR (pt. 843). We join the lower tribunal in declining the invitation by Mr. Afolayan to declare judgments of superior courts perverse and not binding on us. In his reply brief on points of law to the 1st and 2nd respondents brief of argument Mr. Afolayan cited the cases of Saleh v. Moneunu [2006] 15 NWLR (Pt.1001) 26; Stabilini Visinoni Ltd v. Federal Board of Inland Revenue (2009) 13 NWLR (Pt.1157) 200; S.E.C. v. Kasumu (2009) 10 NWLR (Pt. 1150) 509 where he said the courts declared statutory provisions which stipulate the way and manner a litigant should proceed in the institution and prosecution of his case unconstitutional. It has been repeated times without number that election cases belong to a class by themselves. They are sui generis. All the cases cited by Mr. Afolayan are civil cases, not election petitions. They cannot be used as authorities in determining the constitutionality or otherwise of Paragraph 18(4) of the 1st Schedule to the Electoral Act. In his reply, Mr. Afolayan further pointed out that their contention is not that the time limit provision in the Electoral Act is unconstitutional; rather that their complaint is in respect of the proviso in Paragraph 18(4), that no application for extension of time shall be filed and if filed shall not be entertained by the tribunal; that a court of law has the power to decide every application brought before it one way or the other. I am not quite sure I understand the argument because the contention of the appellant all along is that the proviso that time cannot be extended is an ouster clause and unconstitutional. It seems to me that the implication of Counsel’s new posture is that if Paragraph 18(4) had ended with the phrase “No application for extension of time shall be granted”; then it would not be construed to be an ouster clause as applications for extension of time can be brought and the court given the opportunity to rule on it. Mr. Osaze-Uzzi in his brief had submitted that the filing of an application for extension of time is unlawful as it is specifically prohibited by Paragraph 18 (4) and the application ought not to be heard or entertained by the tribunal and indeed ought to have been struck out for lack of jurisdiction as was done in Riruwai v. Shekarau (supra). Notwithstanding the proviso as is, Mr Afolayan filed his motion for extension of time. He duly presented his argument to the tribunal and after considering the submissions of counsel in detail, the Tribunal gave its ruling refusing his application for extension of time. The appellant had his day in court.
In dismissing the application of the appellant for extension of time, the lower tribunal ruled that the Form TF007 filed with his motion was a nullity. The court came to this conclusion because it found there was no application for the issuance of the notice. The appellant wants this court to set aside the decision of the Tribunal that the form TF007 is a nullity on the ground that the Tribunal placed undue reliance on technicality at the expense of substantial justice contrary to the overriding judicial policy laid down by the Supreme Court to do substantial justice.
The appellant tried to make heavy weather of a letter of application which he claimed to have filed along with his motion for extension of time on 20/6/2011 and wondered why it was not part of the record of appeal. It was in respect of this letter that the appellant belatedly moved his motion for leave to compile additional records which we refused for reasons earlier stated. The truth of the matter is that even if this letter had been part of the record, it would have made no difference, as the letter was dated 20/6/2011. The application for issuance of pre-hearing notice must be made within 7 days of the close of pleading. Pleadings closed on 1/6/2011. The application for pre-hearing should have been made latest by 7/6/2011. The lower Tribunal was therefore right in holding that there was no application for prehearing. Further the application, even if made was not part of the record of appeal and both the parties and the court are bound by the record. The stand taken by the Tribunal cannot be interpreted as placing undue reliance on technicality at the expense of substantial justice. Time is of the essence in election petitions. In the case of Odon v. Barigha-Amanee (No. 1) [2010] 12 NWLR (Pt.1207) 13. referred to by Chief Adeyeye, Garba JCA at page 10 observed:
“In election petition, time is of the essence. The essentiality of time imposes a duty on the court, the parties and their counsel to dispose of same expeditiously. That duty on the court in election matters demand it to restrict the parties to time frame set in the Electoral Act, 2006 and the Practice Directions. See Bounwe v. R.E.C. Delta State [2006] 1 NWLR (Pt. 961) 286 @ 310-313”
See also Ikoro v. Izunaso [2009] 4 NWLR (Pt.1130) 45 @ 70 where Garba JCA again observed:
“The rules have adequately provided sufficient time and opportunity to all serious and diligent parties in an election petition based on need for such matters to be determined promptly and not to be allowed to be dragged by the usual clogs in other civil matters. Accordingly “the interest of justice” “justice of the case”, “hearing on the merits” et cetera, have been taken into account and included in the provisions of the rules and so should not be clung to by any unserious and indolent party to justify non-compliance with or breach of the rules to side track the provisions of the paragraph in the name of the rather sentimental use of the phrase above to permit the parties to conduct the petitions as they like would do real violence to the intention of the provisions and result in unnecessary and irksome delays that characterize the usual civil matters. The express provisions of the Electoral Act and the 1st Schedule thereto on the need for the expeditious disposal of election petitions would unjustifiably be defeated by such an approach and attitude.”
The reasoning above is indeed sound. If the appellant’s contention is that he has no objection to time limits in election petitions but that provisions which prevent the tribunals from extending time are unconstitutional and should be expunged, then that would defeat entirely the objective of imposing time limits. Further, the principle of time frame in election petitions has been elevated to a constitutional pedestal by Section 285 of the Constitution (2nd alteration) Act 2010 which now prescribes 21 days within which to file election petitions and gives tribunals 180 days from the date of the filing of the petition within which to deliver its judgment. The issue of time within which to take steps laid down by the Electoral Act can no longer be regarded as mere technicality. The cases of Ado v. Mekara [2009] 9 NWLR (Pt.1147) 491; and Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446 referred to by Chief Adeyeye are very apposite. In Ado v. Mekara (supra) Okoro JCA at page 508 observed:
“Election matters are by their nature sui generis and parties must carefully peruse the rules governing same before embarking on filing any petition as failure to abide by the rules would be fatal to the petition. This is more so as it relates to time of doing of an act because time is of essence in election petitions. See Emeka vs Emordi [2004] 16 NWLR (Pt.900) 433”.
In Buhari’s case, Uwaifo JSC at page 498 observed:
“The jurisdiction of an Election Tribunal to deal with election petitions is of a very special nature different from that in ordinary civil cases. See Onitiri v. Benson (1960) SCNLR 314 @ 317. It is plain that the proceedings are special for which special provisions are made under the Constitution: See Oyekan v. Akinjide (1965) NMLR 381 @ 383, a decision of this court. Election petitions are distinct from ordinary civil proceedings. See Obih v. Mbakwe (supra) at p. 200 per Bello JSC; at p.211 per Eso and Aniagolu, JSC. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequence to the petition.”
Paragraph 45(1) of the 1″ Schedule to the Electoral Act provides:
‘The tribunal or court shall have power subject to the provisions of paragraph 16 of this schedule, to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this schedule.”
Being of the view that Paragraph 18 (4) is not unconstitutional, the above paragraph 45(1) does not apply to it as Paragraph 18(4) clearly provides that application for extension of time shall not be filed or entertained. Learned counsel for the appellant in his arguments urging us to set aside the ruling of the tribunal and remit the petition back to be decided on its merit, relied on a number of authorities which emphasize the need as a matter of public policy for tribunals to decide election petitions on their merits without allowing technicalities to fetter their jurisdiction. The appellant did not however refer to any Supreme Court judgment that is directly in point. He referred to cases from which analogies can be drawn. The case of Okereke v. Yaradua (supra). upheld the provisions of paragraphs 3 (1) and (a) of the Election Tribunal and Court Practice Directions 2007 which are identical with Paragraph 18(1) and (4) of the 1st Schedule to the Electoral Act 2010 (as amended). It is a Supreme Court judgment. On the doctrine of stare decisis, all courts in this country are bound by the decision. If the decision is per incuriam as, with all due respect learned counsel for the appellant in my humble view wrongly argued, until the Supreme Court reverses itself, we are bound by the decision. In his reply on law, Mr Afolayan again somersaulted from his view that the Supreme Court case of Okereke was given per incuriam, an issue he raised as a ground of appeal and now argued that the case is distinguishable from the facts of the instant appeal. Amongst the reasons he gave are that the appellant in Okereke did not apply for the issuance of forms TF007 and TF008 and did not file any application for extension of time; and that the constitutionality or otherwise of the provisions of paragraph 3(4) was neither raised nor decided. The fact that the appellant in the instant case had filed applications for extension of time and for the issuance of Forms TF007 and TF008 are of no moment in so far as the application was filed out of time. It is as if no application was filed at all. At page 129, in Okereke v. Yaradua (supra) the Supreme Court per Onnoghen JSC observed:
“…paragraph 3(4) supra gives power to the lower court, where the petitioner and the respondent fail to bring an application for prehearing session as in the instant case, to dismiss the petition as abandoned petition and that no application for extension of time to take that step i.e. apply for pre-hearing session, shall be filed or entertained. That is the law, though it may sound very harsh. It should however be borne in mind that the provisions apply to election petitions in which time is of the essence.
Not only did sub-paragraph 4 of paragraph 3 (supra) give the tribunal or court the power to dismiss the petition for the default, subparagraph 5 of the said paragraph 3 makes the dismissal of the petition in the circumstances final.”
The Supreme Court relying on the powers conferred on it by Section 22 of the Supreme Court Act assumed the powers conferred on the lower court by paragraph 3(4) supra to dismiss the petition since the petitioner and the respondent failed to bring an application for issuance of pre-hearing notice. The interpretation given to Paragraph 3(4) in Ali v. Osakwe [2009] 14 NWLR (Pt.1160) 75 and Kennedy v. INEC [2009] 1 NWLR (Pt.1123) 614 being court of appeal judgments must give way to the Supreme Court judgment. As pointed out by Mr. Osaze-Uzzi in his brief, Ogunwumiju JCA had stated in Alli v. Osakwe that if the Electoral Act had wanted to prohibit extension of time, it could have stated so expressly. Now the Electoral Act 2010 has not only incorporated the provisions of the Practice Directions in Paragraph 18, it specifically prohibited extension of time. Furthermore Ogunwumiju JCA six months later agreed with the leading judgment in Olayemi v. Fatai (2010) 7 EPR 355 that the petitioner’s failure to comply with the Practice Direction by applying for the issuance of pre-trial notice was fatal and no extension of time could be granted.
In the instant case, the respondents brought an application to dismiss the petition because the appellant failed to apply for the issuance of pre-hearing notice. It was after the respondents had filed their motion for dismissal that the appellant now filed his application for extension of time. So the true position is that the appellant did not file any application for pre-hearing and there is really no difference between this case and Okereke’s case. The Supreme Court has interpreted the relevant provision. Its interpretation will hold sway and be binding on all courts until and unless the Supreme Court itself rules the provision unconstitutional.
It is hoped that it never happens because the public policy need to determine election petitions on their merits must be balanced with the public policy need to determine election petitions expeditiously. We cannot continue to hear election petitions long after the tenure of the election complained about had lapsed. The courts must be strict in the application of provisions of statutes seeking to keep parties within the time frame laid down by law. As held in the case of Okoro vs. Izunaso (supra). the rules have adequately provided sufficient time and opportunity for all serious and diligent parties to comply with the provisions based on need to determine election petitions expeditiously and to avoid being bogged down by the usual clogs in civil matters. Counsel in the interest of their clients and the public at large must learn to keep to those time frames.
I hold that the appellant, having failed to apply for the issuance of prehearing notice within the stipulated time in accordance with the Electoral Act 2010 (as amended) is deemed to have abandoned his petition. The Tribunal has no jurisdiction to extend the time for so doing and was right to have dismissed both his application for extension of time and the Petition. This appeal lacks merit. It is hereby dismissed. I make no order as to costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I agree
MOORE A. A. ADUMEIN, J.C.A.: I read in draft the leading judgment just delivered by my learned brother, IYIZOBA (JCA),
I agree with my learned brother that this appeal ought to be dismissed as it lacks merit.
It seems very clear to me that the legislature, by the provisions in paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended), has deliberately placed a lot of emphasis on the need for a petitioner to timeously apply for the issuance of pre-hearing notice. Where there is a failure to do so, the time frame stipulated in the said paragraph cannot be extended and the terminal sanction for such a failure is dismissal of the petition To further confirm the importance of the need to comply with the time stipulated for applying for the issuance of a pre-hearing notice, the Tribunal immediately becomes “functius officio” if it dismisses a petition pursuant to paragraph 18 of the said Schedule as such a dismissal is “final”. See sub-paragraph (5) of paragraph 18 of the First Schedule to the Electoral Act. 2011.
Paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (as amended) provides thus:
“Within 7 days after the filing and service of the petitioners reply on the respondent or 7 days after the filing and service of the respondent’s reply, as the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in form TF 007”.
By paragraph 18 (3) of the Schedule to the Electoral Act, 2010 (as amended) a respondent may also apply for the issuance of a pre-hearing notice as in form TF 007 if the petitioner fails to apply, or by a motion on notice apply for the dismissal of the petition. In the instant case, the respondents chose the option of applying for the dismissal of the petition on the ground of failure by the petitioner to apply for the issuance of the prehearing notice. The respondents’ applications for the dismissal of the petition apparently woke up the appellant (as petitioner in the Tribunal) from his avoidable and unnecessary slumber. He then sought an extension of time within which he could apply for the issuance of the pre-hearing notice.
Paragraph 18 (4) of the First Schedule to the Electoral Act , 2010 (as amended) clearly, concisely and unambiguously forbids the filing or hearing of any application for extension of time to apply for the issuance of prehearing notice.
At the time that the appellant purportedly filed his motion for extension of time to apply for the issuance of pre-hearing notice, his petition was, under paragraph 1B (4) of the said Schedule to the Electoral Act, 2010 (as amended), an “abandoned petition”, legally dead and awaiting a mere formal order of dismissal by the Tribunal, The appellant’s motion, for extension of time to apply for the issuance of pre-hearing notice and the other relief sought therein, was not a magical prescription or concoction legally capable of reviving his dead and abandoned petition.
The law is well settled that an election petition is sui generis in nature, a species of legal action enjoying a special status. See OBI V. MBAKWE (1984) NSCC (Vo1.115) 127 at 326.
A non-compliance with a time-saving and mandatory provision such as paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (as amended) may deal a devastating or deadly blow to petition, as in the instant case.
For these reasons and the very comprehensive reasons in the leading judgment, I too dismiss the appeal.
I abide with the order as to costs.
Appearances
Ezekiel Afolayan Esq. with
Olumide Olaiya Esq.
Kayode Otufale Esq.For Appellant
AND
Chief B. F. Adeyeye
B. A. Amuwa Esq
Olumide Ogunje Esq
Oluwayemi Ojo Esq
Amusa Olomo Esq
Oluwole Osaze -Uzzi Esq with
Chioma Nwokeocha-Utah MrsFor Respondent
