PEOPLES DEMOCRATIC PARTY (PDP) & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS.
(2011)LCN/4845(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of October, 2011
CA/I/EPT/LH/4/2011
RATIO
NOTICE OF APPEAL: ULTIMATE OBJECT OF A NOTICE OF APPEAL
… this court in the case of NWAKODO VS. OHAJURUKA (2010) ALL F.W.L.R. Part 511 Page 849 at 868 Paragraphs A-C rightly held in line with earlier decisions of the apex court that the ultimate object of a notice of appeal is to convey to the Respondent and the Appellate court sufficient notice of nature of the complaints raised by an Appellant against the judgment appealed against so that the other party is not taken by surprise. PER MODUPE FASANMI, J.C.A.
RULES OF THE COURT: PURPOSE OF THE RULES OF COURT RELATING TO THE FORMULATION OF GROUNDS OF APPEAL
The purpose of the rules of court relating to the formulation of grounds of appeal is to give sufficient notice and information to the other side of the precise nature of the complaint of the Appellant and of the issues that are likely to appear in the appeal. Once an appeal satisfies this purpose, it should not be struck out even though it ‘did not conform to a particular form. This position was strengthened and given judicial assent in the case of OLUFEAGBA VS. ABDUL-RAHEEM (2010) 17 WR.N. at 23 Per FABIYI J.S.C where he stated that: “Rules of Court must be obeyed. But in obeying the rules of court, technicality should be avoided so as to pave way for the current notice of substantial Justice.” See also UNIVERSITY OF LAGOS VS. AIGORO (1985) 1 N.W.L.R. Part 1 at 143 and AFOLABI VS. ADEKUNLE (1993) 8 S.C. at 198. PER MODUPE FASANMI, J.C.A.
VAGUE GROUND OF APPEAL: CIRCUMSTANCES WHERE VAGUENESS OF A GROUND OF APPEAL MAY ARISE
In OLORUNTOBA-OJU VS. ABDULRAHEEM (2009) 26 W.R.N. page 1 at 120 – 121 Paragraphs H – A. and 122 Paragraphs B – C ADEKEYE J.S.C. had cause to pronounce on what is tantamount to a vague ground of appeal and the treatment thereof by the Appellate Court when she stated thus: “By virtue of Order B rule 2(4) of the Supreme Court Rules 1990, no ground of appeal which is vague or general in terms and which discloses no reasonable ground of appeal shall be permitted save the general ground that the judgment is against the weight of evidence. Vagueness of a ground of appeal may arise where it is couched in a manner which does not give allowance for its being understood or where what is stated there is so uncertain and robs it of any form of intelligibility. It may also be vague why the complaint is not defined in relation to the subject matter or the particulars are clearly irrelevant to the ground.” PER MODUPE FASANMI, J.C.A.
INTERPRETATION OF STATUTE: POSITION OF THE LAW WHERE THE PROVISION OF A STATUTE IS CLEAR AND UNAMBIGUOUS
It is trite law that where the provision of a statute is clear and unambiguous, it should be given its ordinary meaning or interpretation. See the cases of AWOLOWO VS. SHAGARI (1979) ALL N.L.R. at 120 and AGBAREH VS. MIMRA (2008) 2 NWLR Part 1071 at 378. PER MODUPE FASANMI, J.C.A.
RULES OF THE COURT: WHETHER RULES OF THE COURT ARE MEANT BE OBEYED
Each court is guided by its own rules or procedure for an orderly conduct of its affairs. These rules are not made for the fun of it. They are meant to be obeyed. See AKINPELU VS. ADEGBERE (2008) 10 NWLR Part 1096 page 531 at 554. PER MODUPE FASANMI, J.C.A.
SUBSTANTIAL JUSTICE: DUTY OF THE COURT TO ENSURE SUBSTANTIAL JUSTICE
The era of technicality is over and courts are enjoined to do substantial Justice. See the cases of IGB0KWE vs. NLEMCHI (1996) 2 NWLR Part 492 at 185, ONWADIKE & CO. LTD. VS. BRAWEL SHIPPING NIG. LTD. (1996) 1 NWLR Part 422 page 65, AKUNYILI VS. EJIDIKE (1996) 5 NWLR Part 449 at 381 and AKUMECHIEL VS. BCC LTD (1997) 1 NWLR Part 484 at 698. PER MODUPE FASANMI, J.C.A.
Justice
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
Justice
1. PEOPLES DEMOCRATIC PARTY (PDP) & ANOR V
2. OTUNBA ALHAJI AGORO AKINLAGUNAppellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. OBAFEMI SUNDAY OLOWOOLAJA
3. ACTION CONGRESS OF NIGERIA (A.C.N.)Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the National Assembly/Legislature Houses Election Petition Tribunal sitting in Abeokuta, Ogun State, delivered on the 18th of August 2011 in petition No.EPT/OG/LH/10.2011 wherein the Tribunal dismissed the petition for lack of diligent prosecution.
The facts of the case are that 1st Respondent conducted into the State House of Assembly on the 26th of April 2011. The 2nd Appellant and the 2nd Respondent contested the House of Assembly seat for the Ijebu East State Constituency, Ogun State. 1st Appellant was the flag bearer of the 2nd Appellant while the 2nd Respondent was sponsored by the 3rd Respondent. At the conclusion of the election exercise, the 1st Respondent announced the results and declared the 2nd respondent as the winner of the election. The Appellants as petitioners before the lower Tribunal brought a petition dated and filed on the 18th of May 2011 challenging the result declared by the 1st Respondent in respect of the election to the Ogun State House of Assembly for the Ijebu East Constituency and the election of the 2nd Respondent. The Respondents duly field their replies to the petition and joined issues with the Appellants. Parties filed and exchanged pre-hearing documents.
On the 18th of June 2011 before the matter pre-hearing session, the lower tribunal granted the parties order of inspection of the materials used for the election and to obtain certified true copies of same. By the order of inspection, the inspection was to take place from 24th June 2011 to 1st July 2011. The matter proceeded to pre-hearing session which ended on the 5th of August 2011 and in which date, the matter was adjourned till 18th of August 2011 for trial.
On the day of trial, which was the 18th of August 2011, the lower tribunal directed the Appellants to commence the trial of the petition. Learned Counsel for the Appellants said he was not ready to open the Appellants case because the various documents the Appellants will be relying upon have not been released by the 1st Respondent. Learned Counsel for the Appellants filed notice of consequence of disobedience of court order (Form 48) on the 1st Respondent before the lower court in of the 18th of August 2011. Learned Counsel for the respectively urged the Tribunal to dismiss the lack of diligent prosecution. The petition was accordingly dismissed by the lower Tribunal under Section 46 subsection 3 of the First Schedule to the Electoral Act 2010 as amended.
Dissatisfied with the said ruling, Appellants appealed to this court vide the-notice of appeal filed on the 25th of August 2011 complaining on one ground of error in law and seeking the relisting of the petition for hearing on the merit.
Appellants filed their brief of argument on the 16th of September 2011 while the 2nd and 3rd Respondents filed their brief of the 27th of September, 2011. 1st Respondent did not file any brief and was not present at the hearing. there is however on our record evidence of the service of the hearing of the appeal on that day on the 1st Respondent. appellants distilled a sole issue for determination from the one ground of appeal. The sole issue states:
Whether the lower Tribunal was right when it dismissed the Petitioners petition pursuant to paragraph 46(3) of the 1st Schedule to the Electoral Act 2010.
The 2nd and 3rd Respondents distilled a sole issue for determination thus:
Whether in the circumstances, the Honourable Tribunal was right and justified in dismissing the Appellants Petition.
However 1st Respondent did not file any brief and as such did not distil any issue for determination. The issues formulated by the Appellants and the 2nd and 3rd Respondents are the same although couched differently. In the circumstance, the appeal will be determined on the issue distilled by the Appellants.
Learned counsel for the 2nd and 3rd Respondents filed a preliminary objection in an application dated and filed on the 27th of September 2011 and the preliminary objection was argued in their brief. The preliminary objection will be taken first before delving into the merits of the case.
For the 2nd and 3rd Respondents, Learned counsel submitted on the preliminary objection that the notice of appeal filed in this case is incurably defective and this renders the appeal itself incompetent and consequently robs this court of its jurisdiction to entertain and determine same. He argued further that the notice of appeal is not directed at any of the two separate rulings of the lower tribunal delivered on the 18th of August 2011. On the 18th of August 2011, the lower Tribunal delivered two separate rulings on different applications. The grounds of the applications as well as basis of the rulings were different. The first application was an application for adjournment made by the Appellants Counsel Mr Amao. The Respondents opposed the application on the ground that the basis for same was false as notice of consequences of disobedience to court order filed in the morning of the day of trial did not constitute application for committal proceedings. The Tribunal ruled and refused the application as there was no complaint of any disobedience of court order until the morning of the trial. The second application was made by the Respondents for the dismissal of the petition for want of diligent refused the order of the tribunal to open their case. Learned Counsel for the 2nd and 3rd Respondents argued further that a careful examination of the lone ground of appeal shows that the grounds seems to be directed at the second ruling dismissing the petition while the particulars are directed at the first ruling refusing application for adjournment. Submitted further that contrary to Order 6, rules 2(2) and (3) and 3 of the Court of Appeal Rule 2011, the lone ground of appeal is vague, general in terms, argumentative, narrative and devoid of any particulars in support thereof. The consequence is that the appeal is rendered incompetent. Learned Counsel referred to the case of NWAIGWE & ORS VS. OKERE 2008 13 N.W.L.R. Part 1105 at page 445. Lastly Learned Counsel submitted that since the notice of appeal was not served on the 2nd and 3rd Respondents, this court has no jurisdiction over them. He placed reliance on the case of CADBURY NIGERIA-PLC ORS vs. F.R.N (2005) 5 N.W.L.R, Part 978 at 332.
Appellants reply brief filed on 5/10/11 which was deemed properly filed pursuant to the order of the court made on 11/10/11 contended that the preliminary objection of the 2nd and 3rd Respondents is clearly baseless and unfounded in law.
Learned Appellants Counsel contended that the steps taken by the 2nd and 3rd Respondents in this appeal after seeing a copy of the notice of appeal either in the record of appeal or as a separate process shows clearly that they had notice of this appeal and were afforded opportunity to defend the appeal.
He submitted further that the notice of appeal is not vague and it is competent. It has complied Order 6 rule 2 subrules (2) and (3) of the court of Appeal Rules 2011 contrary to the submission of the 2nd and 3rd Respondents. He urged the court to so hold and dismiss the preliminary objection.
The notice of appeal at page 196 of the record states:-
“Take notice that the Appellants being dissatisfied with the decision of the Ogun State National and State House of Assembly Election Petition Tribunal, Abeokuta, contained in the ruling of Honourable Tribunal coram Hon. Justice Obi, Hon. Justice Ogunmoye and Hon. Justice E. A. Karatu (Chairman) delivered on Thursday 18th August 2011 do hereby appeal to the Court of Appeal upon the grounds set in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in the paragraph 4”
GROUNDS OF APPEAL
A. Error In Law
The Honourable Tribunal erred in law when it proceeded pursuant to paragraph 46(3) of the 1st Schedule to the Electoral Act 2010 (as amended) to dismiss the petitioners petition on the grounds that the petitioner was not prepared to commence with the trial of the petition.
PARTICULARS OF ERROR
The Petitioners had applied for and obtained an order of the Tribunal for the inspection and procurement of certified true copies of electoral materials including ballot papers, result sheets e.t.c.
(ii) The 1st Respondent had frustrated the implementation of this order by refusing or failing to make the documents available to the petitioner.
(iii) The Petitioners had therefore brought the disobedience to the attention of the Tribunal and applied for a subpoena for a principal officer of the 1st Respondent to produce the documents at the Tribunal but the Tribunal refused to grant the subpoena for a principal officer of the 1st Respondent to produce the documents at the Tribunal but the Tribunal refused to grant the subpoena.
(iv) The Petitioners therefore filed an application for committal proceedings at the Tribunal’s registry and at the next available date (the date set for the commencement of the trial) informed the Tribunal and sought a postponement of the trial until the issue of the alleged contempt of court had been determined.
(v) The Tribunal however rejected the application and instead dismissed the petition.
I have had a careful perusal of the notice of appeal, grounds of appeal and the particulars of error as reproduced above, and this court in the case of NWAKODO VS. OHAJURUKA (2010) ALL F.W.L.R. Part 511 Page 849 at 868 Paragraphs A-C rightly held in line with earlier decisions of the apex court that the ultimate object of a notice of appeal is to convey to the Respondent and the Appellate court sufficient notice of nature of the complaints raised by an Appellant against the judgment appealed against so that the other party is not taken by surprise. The purpose of the rules of court relating to the formulation of grounds of appeal is to give sufficient notice and information to the other side of the precise nature of the complaint of the Appellant and of the issues that are likely to appear in the appeal. Once an appeal satisfies this purpose, it should not be struck out even though it ‘did not conform to a particular form. This position was strengthened and given judicial assent in the case of OLUFEAGBA VS. ABDUL-RAHEEM (2010) 17 WR.N. at 23 Per FABIYI J.S.C where he stated that:
“Rules of Court must be obeyed. But in obeying the rules of court, technicality should be avoided so as to pave way for the current notice of substantial Justice.”
See also UNIVERSITY OF LAGOS VS. AIGORO (1985) 1 N.W.L.R. Part 1 at 143 and AFOLABI VS. ADEKUNLE (1993) 8 S.C. at 198.
In OLORUNTOBA-OJU VS. ABDULRAHEEM (2009) 26 W.R.N. page 1 at 120 – 121 Paragraphs H – A. and 122 Paragraphs B – C ADEKEYE J.S.C. had cause to pronounce on what is tantamount to a vague ground of appeal and the treatment thereof by the Appellate Court when she stated thus:
“By virtue of Order B rule 2(4) of the Supreme Court Rules 1990, no ground of appeal which is vague or general in terms and which discloses no reasonable ground of appeal shall be permitted save the general ground that the judgment is against the weight of evidence. Vagueness of a ground of appeal may arise where it is couched in a manner which does not give allowance for its being understood or where what is stated there is so uncertain and robs it of any form of intelligibility. It may also be vague why the complaint is not defined in relation to the subject matter or the particulars are clearly irrelevant to the ground.”
The ground of appeal in the case at hand has particulars that are clear enough. 2nd and 3rd Respondents are not misled. They i.e 2nd and 3rd Respondents filed their joint brief challenging the appeal. This shows that they understood the complaint in the appeal. See the case of MOHAMMED VS. BABALOLA (2011) 13 W.R.N. Page 110 at 145 lines 20-45 and page 146. It is clear that the Appellants appealed against the decision of the lower Tribunal dismissing the petition and not the ruling declining adjournment as postulated by the 2nd and 3rd Respondents. The notice and grounds of appealed had been served on the 2nd and 3rd Respondents when the record of appeal containing it was served on the 2nd and 3rd Respondents. The preliminary objection lacks merit and it is accordingly dismissed.
The court will now proceed to determine the lone issue formulated by the Appellants. It states thus:
“Whether the lower tribunal was right when it dismissed the petitioners petition pursuant to paragraph 46(3) of the 1st schedule to the Electoral Act 2010.”
Learned Counsel for the Appellants submitted that the Appellants application for inspection of election material used in the conduct of the election and forensic examination was heard and granted on the 18th of June 2001. On the 5th of August 2011, pre-hearing session was closed and the case adjourned to 18th August 2011. When the matter was called for trial, Learned counsel for the Appellants informed the tribunal that the 1st Respondent had frustrated all their efforts aimed at procuring the material required for the trial of the petition. He submitted that they filed a notice of consequence of disobedience of court order on the 1st respondent. He urged the lower Tribunal for a postponement of the trial until the issue of contempt is determined. The Tribunal refused to grant the Appellants request for an adjournment and directed the Appellants to commence the trial of the petition. The tribunal dismissed the petition pursuant to paragraph 46 (3) of the 1st Schedule to the Electoral Act. 2010.
Learned Counsel for the Appellants submitted that paragraph 46(3) of the 1st Schedule to the Electoral Act 2010 does not empower the Tribunal to dismiss the Petition as it had done in this case. He argued further that no rule of law or practice empowers the Tribunal to dismiss the case of a petitioner who is ready to prosecute his case but was frustrated by a Respondent from gaining access to the materials needed for the case which the Tribunal had expressly ordered that Respondent to produce for the petitioners inspection and use to maintain its petition.
Learned counsel for the Appellants submitted that although the Tribunal’s order of 18th June 2011 stipulated that the inspection and copying of documents in the custody of the 1st Respondent be done by the 1st of July 2011. Appellants made concerted efforts to obtain the documents from the 1st Respondent without success. Appellants filed and served a notice to produce on the 1st Respondent on the 10th of August 2011. They applied for the issue of a subpoena duces tecum on the 17th of August 2011 but the lower Tribunal refused to grant same. Appellants filed and served Form 48 on the 18th of August 2011 to mark the commencement of the contempt proceedings. Submitted that it is immaterial that a motion on notice pursuant to order 35 Rule 1 of the Federal High court (civil procedure) Rules had not yet been filed as at the 18th of August 2011 when the case came up for trail before the Tribunal. Learned counsel referred to the case of EBHODAHE VS. OKOYE (2004) 18 NWLR Part 905 Page 472 at 495.
It was further submitted that the date fixed for the trial of the petition had been rendered impracticable by the 1st Respondent for frustrating the Tribunal’s schedule. Learned counsel for the Appellants submitted that the Tribunal was in error to have dismissed the petition on the basis of paragraph 46(3) of the 1st schedule to the Electoral Act 2010. The paragraph is inapplicable to the situation before the Tribunal and the tribunal had no jurisdiction to dismiss the petition when the Appellants were present on the date fixed for the hearing of the petition. Learned Counsel for the Appellants urged the court to resolve the sole issue in favour of the Appellants and allow the appeal.
Learned counsel for the 2nd and 3rd Respondents submitted that the lower Tribunal reserves the right to dismiss the petition which is not diligently prosecuted. He argued that Appellants failed to challenge the adverse finding of the lower Tribunal that the Appellants were not deligent in prosecuting the petition. They are deemed to have accepted same. He placed reliance on the case of SHELL PETROLEUM DEVELOPMENT COMPANY NIG. LTD VS. EDAMKWE (2009) 14 NWLR, Part 1160 Page 1 at 32 Paras G-H
On the contention of the Appellants that paragraph 46 of the First Schedule to the Electoral Act 2010 does not empower the Tribunal to dismiss the case of the Petitioners who were present in court on the day of trial. Learned Counsel for the 2nd and 3rd Respondents submitted that the essence of the said provision is to empower the Tribunal to dismiss the petition which is not being diligently prosecuted. He urged the court to determine the correctness or otherwise of the decision of their Tribunal and not the reasons given for same. He cited the case of OGUNTAYO VS. ADELAJA (2009) 15 N.W.L.R. Part 1163 Page 15 AT pages 191-192 Paras H-A.
Learned Counsel for the 2nd and 3rd Respondents contended further that the processes filed by the Appellants did not in anyway constitute a good ground for the refusal of the Appellants to proceed with the hearing of the petition on the day of trial. He submitted that the consequence of failure to produce documents by a party served with notice to produce is that such party shall not afterwards be at liberty to put such documents in evidence.
Learned Counsel for the 2nd and 3rd Respondents argued further that the application for subpoena duces tecum filed by the Appellants did not state what documents they wanted the Resident Electoral Commissioner to produce and no subpoena was prepared and filed by the Appellants stating such documents. The Resident Electoral Commissioner was not listed as one of the Petitioners witnesses.
The case of EBHODAGHE VS. OKOYE supra is distinguishable from the case at hand because it did not decide that committal proceedings if any, had priority of hearing over the hearing of an election petition on the day fixed for trial in which time is of essence and the determination of which is statutorily limited to a period of time.
Learned Counsel for the 2nd and 3rd Respondents urged the court to resolve the lone issue in favour of the Respondents and dismiss the appeal.
Like any other rules of court, the First Schedule to the Electoral Act 2010 (as amended) prescribes rules of procedure for election petitions. It covers from how and why election petitions
are presented up to and including appeals. Specifically Section 145(1) of the Electoral Act 2010 (as amended) provides that :-
“the rules of procedure to be adopted for election petitions and appeals arising therefrom shall be set out in the First Schedules to this Act.”
Paragraph 46 subparagraph 3 of the First Schedules to the Electoral Act 2010 as amended is the cynosure of the Appellants sole issue for determined in this appeal.
What does it say? It says:
“When a petition comes up for the hearing, if the Respondent appears and the Petitioner does not appear, the Respondent shall be entitled to final judgment dismissing the petition.”
As earlier stated that from the ground of appeal filed, Appellant are appealing against the decision of the lower Tribunal dismissing the petition and not the ruling declining adjournment as proposed by the 2nd and 3rd Respondents.
A combine reading of paragraph 46(1) and (3) of the First Schedule to the Electoral Act 2010 reveal that the paragraph only empowers the Tribunal to dismiss the petition where the Petitioner is absent on the date fixed for hearing. It is trite law that where the provision of a statute is clear and unambiguous, it should be given its ordinary meaning or interpretation. See the cases of AWOLOWO VS. SHAGARI (1979) ALL N.L.R. at 120 and AGBAREH VS. MIMRA (2008) 2 NWLR Part 1071 at 378.The lower Tribunal was wrong in law to have expanded the horizon of paragraph 46 subparagraph 3 of the First Schedule to the Electoral Act 2010 as amended to dismiss the Appellants petition when they were present in court.
Each court is guided by its own rules or procedure for an orderly conduct of its affairs. These rules are not made for the fun of it. They are meant to be obeyed. See AKINPELU VS. ADEGBERE (2008) 10 NWLR Part 1096 page 531 at 554.
Learned counsel for the Appellants filed application for inspection of documents for forensic examination of electoral documents in the custody of the 1st Respondent. The application was granted on the 18th of June 2011 by the lower Tribunal for the parties to jointly inspect at the I.N.E.C. office in Abeokuta, Ogun State all the election materials used in the conduct of the election and any other document in the custody of I.N.E.C. which parties may think necessary for the purpose of prosecuting or defending the petition.
1st Respondent had not produced these documents up till the date fixed for the trial of the petition. The lower Tribunal dismissed the petition for lack of diligent prosecution. I do not think it is right for the lower Tribunal to penalize the Appellants for the lapses of the 1st Respondent who has exclusive custody of the election documents. See the case of ATTORNEY GENERAL OF THE FEDERATION VS. AJAYI (2000) 12 N.W.L.R. Part 682 Page 509 at 532 thus:-
“As I have said, the fixing of matters for hearing in the court (or Tribunal) is an exclusive function of 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 duty under the law or the rule”.
See also C.C.B. (NIG.) PLC. VS. ATTORNEY GENERAL OF ANAMBRA STATE & ANR. (1992) 8 N.W.L.R. Part 261 page 528 at 561 and MANYE VS. PRESIDENTIAL TASK FORCE ON TRADE MALPRACTICES & ORS (2002) 15 NWLR Part 789 at 209.
The era of technicality is over and courts are enjoined to do substantial Justice. See the cases of IGB0KWE vs. NLEMCHI (1996) 2 NWLR Part 492 at 185, ONWADIKE & CO. LTD. VS. BRAWEL SHIPPING NIG. LTD. (1996) 1 NWLR Part 422 page 65, AKUNYILI VS. EJIDIKE (1996) 5 NWLR Part 449 at 381 and AKUMECHIEL VS. BCC LTD (1997) 1 NWLR Part 484 at 698.
The Justice of this case demands that it should be remitted for adjudication before another panel of the Election Petition Tribunal on the merit. The other arguments raised by Counsel to the parties are discountenanced as they have become academics. The lone issue is hereby resolved in favour of the Appellants. I allow the appeal as it has merit and set aside the ruling of the lower Tribunal dismissing the Appellants petition on the 18th of August 2011. 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 have had the opportunity of reading in draft the judgment just delivered by my learned brother, Fasanmi, J.C.A. I agree with his reasoning and conclusion that the appeal has merit and should be allowed. I also allow same and remit the petition back for adjudication before another panel of the Election Petition Tribunal to be constituted by the Hon. President of the Court of Appeal. I abide by the order as to costs contained in the lead judgment.
ADZIRA GANA MSHELIA, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my learned brother, FASANMI, J.C.A, I am in complete agreement with the reasoning and conclusions arrived thereat. My learned brother has adequately treated both the Preliminary objection raised by the 2nd and 3rd Respondents and the sole issue formulated by the appellants for determination in this appeal. I will only add few words of mine in agreement.
By a motion on notice dated 27th day of September, 2011 and filed same date, 2nd and 3rd Respondents challenged the competency of the notice of appeal filed by the appellants. The 2nd and 3rd Respondents incorporated arguments relating to the Preliminary objection in their brief of argument. The law is settled that where a Preliminary objection is raised against the hearing of appeal, same must be taken first. See: Jaiye vs. Abioye (2003) 4 NWLR (pt 870) 397 at 414 paragraphs E-F and Osun State Government vs. Olami (Nig) Ltd (2009) 7 NWLR (Pt.818) 72 paragraphs D – E.The contention of the 2nd and 3rd Respondents is that the lone ground of appeal formulated by the appellant is vague, general in terms, argumentative, narrative and is devoid of any particulars in support thereof. I have carefully examined the ground and its particulars. I do not share the view that the ground of appeal was not framed in compliance with order 6 Rules 2(2)and (3) of the Court of Appeal Rules, 2011. The ground is clearly a complaint that the Tribunal erred in dismissing the petition under Paragraph 46 (3) of the 1st schedule to the Electoral Act. It is settled that the essence of particulars of error in law is to project the reason for the ground in point. The fact that a particular of error is inelegantly drafted does not invalidate the ground from which it flows. It is sufficient if it briefly or clearly highlights when and how the error in law occurred. The adequacy of particulars depends on the skill of counsel. See: D. Stephens Industries Ltd & Anor v. Bank of Credit and Commerce International (Nig.) Ltd (1999) 11 NWLR (Pt.625) 29 at 34 and N.N.B. Plc v. Imonikhe (2002) 5 NWLR (Pt.760) 244 at 310. In the circumstance, it is my considered view that the Preliminary Objection is devoid of merit and same is dismissed.
The complaint of the appellants; is that the lower Tribunal wrongly invoked paragraph 46 (3) of the Electoral Act 2010 (as amended) to dismiss their petition for want of prosecution. Paragraph 46 (3) provides:-
“When a Petition comes up for hearing, if the respondent appears and the Petitioner does not appear, the respondent shall be entitled to final judgment dismissing the Petition”.
The provision referred to supra is clear and unambiguous. It is trite Law that where the Provision of statute is clear and unambiguous, it should be given its ordinary meaning/interpretation. See: Awolowo vs. Shagari (1979) All NLR 120 and Okhae vs. Governor Bendel State (1990) 4 NWLR (pt.144) 327. I agree with the submission of appellants’ counsel that paragraph 46 (3) of the 1st schedule to the Electoral Act 2010 cannot by any stretch of imagination be construed as empowering the tribunal to dismiss the Petition other than where the petitioner is absent on the date fixed for hearing. The record showed that appellants were in court on the date of trial. Appellants offered reasonable explanation as to why they could not proceed on the date fixed for hearing. Although in election matters time is of the essence, technicalities should not be allowed to defeat the course of Justice. The Tribunal was clearly in error to have come to the conclusion that the Petitioners were not diligent in prosecuting the Petition.
For these and the more detailed reasons contained in the lead judgment, I also hold the view that the appeal has merit and same is allowed. The Ruling of the Lower Tribunal dismissing the Appellants petition on the 18th of August, 2011 is set aside. The appropriate order to make in the circumstance is to remit the petition for hearing denovo by another panel of the Election Petition Tribunal to be set up by the Honourable President of the Court of Appeal. I also make no order as to costs.
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Appearances
T. O. Amao appears for the AppellantsFor Appellant
AND
Fayemi Adedayo appears for the 2nd and 3rd Respondents.For Respondent
