SHEHU NUHU BABAJO & ANOR v. HON. MUSTAPHA BAWA & ORS
(2011)LCN/4847(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of October, 2011
CA/K/EP/SHA/12/2011
RATIO
INTERPRETATION OF STATUTE : WHETHER IN THE INTERPRETATION OF A STATUTE EVERY WORD IN THE STATUTE MUST BE CONSTRUCTED AND GIVEN EFFECT TO
It is the first principle of Interpretation that the maker of any law does not use any word in vain, nor indulge in tautology or in surplusage. It follows therefore that every word in a statute must be constructed and given effect to. See Joseph O. Idehen & Ors. v. George O. Idehen & Ors. (1991) 7 SCNJ (part II) page 196 at 298. Omibi v. NEC (1998) 5 NWLR (Pt.94) page 323. Tukur v. Government of Gongola State (1998) 1 NWLR (pt.68) page 39 at 579. PER ABDU ABOKI, J.C.A
WITHIN: WHAT THE WORD “WITHIN” AS USED IN THE 1ST SCHEDULE OF THE ELECTORAL ACT ENTAILS
The first segment speaks of “within 7 days after the filing and service of the Petitioners Reply on the Respondents.” The operative words under this segment are “within and after”. The Concise Oxford Dictionary of Current English Seventh Edition, edited by J.B. Sykes defines the word “within” at page 1237 to mean inter alia, inside, in, in a time no longer than, before expiration. The word “within” has also been judicially defined in the case of Ogbebor w Danjuma (2003) 15 NWLR (pt.843) page 403 at 432 per Augie, JCA: “when used relative to time, been the word ‘within’ has defined variously as meaning anytime before; at or before; at the end of, before expiration of not beyond; nit exceeding; and not later than. PER ABDU ABOKI, J.C.A
AFTER: WHAT THE WORD “AFTER” AS USED IN THE 1ST SCHEDULE OF THE ELECTORAL ACT ENTAILS
The word “after” has been defined by the Concise Oxford Dictionary at page 17 to mean inter alia; later in time, following in time, later than; at a later time than; coming at a later time; behind; Happening at a time subsequent to a reference time; later on; later; subsequently.” Within 7 days means before the expiration of 7 days and it includes the first day as well as the last day which is the seventh day of the event under consideration. PER ABDU ABOKI, J.C.A
JURISDICTION OF THE COURT: WHETHER LACK OF JURISDICTION OF A A COURT CAN BE WAIVED BY ONE OR BOTH PARTIES TO A PETITION
The lack of jurisdiction cannot be waived by one or both parties to the petition. This is because parties cannot vest jurisdiction on the Tribunal or Court, where there is none. See Okolo v. Union Bank (Nig) Ltd (2004) 3 NWLR (pt.859) page 87, Mobile Production (Nig) Unltd v. Monokpo (2003) 18 NWLR (pt.852) page 346. Federal Government of Nigeria v. Oshiomhole (2004) 3 NWLR (pt.860) page 305 at 324. PER ABDU ABOKI, J.C.A
STATUTORY PROCEDURE: POSITION OF THE LAW WHERE THE CONSTITUTION OR A STATUTE PROVIDES FOR A PRE-CONDITION TO THE ATTAINMENT OF A PARTICULAR SITUATION
In Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) page 427 at 590 and 697 per Tobi JSC: “It is good law that where the Constitution or a statute provides for a pre-condition to the attainment of a particular situation, the precondition must be fulfilled or satisfied before the particular situation will be said to have been attained or reached, Our common and popular pet expression is ‘condition precedent’ which must be unfilled before the completion of the journey.” Also at page 697 of the same report Ogbuagu JSC said on need to fulfill pre-condition stipulated by a statute thus: “It is now settled firstly, that where a statute or constitution, prescribes a procedure for seeking a remedy or the doing of anything or act and the language used is clear and unambiguous, that is the only procedure open to the parties concerned and any departure therefrom will be an exercise in futility. See the case of System Applications Products (Nig) Ltd. v. central Bank of Nigeria (2004) 15 NWLR (pt.897) page 663 at 687. PER ABDU ABOKI, J.C.A
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
1. SHEHU NUHU BABAJO
2. PEOPLES DEMOCRATIC PARTY Appellant(s)
AND
1. HON. MUSTAPHA BAWA
2. CONGRESS FOR PROGRESSIVE CHANGE (CPC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
ABDU ABOKI, J.C.A (Delivering the Leading Judgment): This appeal is against the Ruling of the National and State Houses of Assembly Election Tribunal, Kaduna State, delivered on the 16th of August 2011, dismissing the petition of the Appellants.
The Appellants at the Tribunal filed a petition on 18th May, 2011 challenging the election and declaration of the 1st and 2nd Respondents as winners of the Election into Zaria City Constituency of the Kaduna State House of Assembly held on the 28th April, 2011, conducted by the 3rd Respondent.
Upon being served with the petition the 1st and 2nd Respondents file their Reply on 14th June 2011 and same was served on the Appellants on 20th June 2011. The Appellants filed their Reply to the 1st and 2nd Respondents Reply on the same 20th June 2011 but served on the 1st and 2nd Respondents on the 22nd June, 2011.
Thereafter, the Appellants applied for issuance of Pre-hearing Information sheet by a letter dated 20th J une, 2011 and same was issued on 24th June, 2011.
On 30th June, 2011 the 3rd Respondent the Independent National Electoral Commission filed a motion for extension of time to file Conditional Memorandum of Appearance and Reply to the petition. The application dated 29th June, 201 was filed on 30th June 2011. The motion was moved on 8th July, 2011 and was granted by the Tribunal.
The Appellants filed a Reply to the 3rd Respondent’s Reply on the 11th July, 2011 and served on the 1st and 2nd Respondents on the 14th July, 2011. The Appellants also on the same 11th July, 2011 filed a Motion on Notice seeking for an order to issue Pre-Hearing Notice in the petition, and it was heard and granted on the 22nd July, 2011.
The 1st and 2nd Respondents Motion on Notice dated 1st August 2011 and filed on the 2nd August, 2011 seeking to set aside the Orders of the Tribunal made on 22nd July, 2011 and also to dismiss the petition on the ground that the said petition has been abandoned was granted on the 16th July, 2011.
It is this ruling that set the stage for the Appeal by the Appellants.
The Appellant’s brief of argument prepared by J.J. Usman, Esq, was dated 21st September, 2011 and filed on 22nd September, 2011.
The Appellant’s Reply brief dated 29th September 2011 was filed the same date.
Learned counsel for the Appellants S.O. Omoloba (Mrs) adopted both briefs on 11/10/11 as the submissions and arguments of the Appellants in this Appeal. From the four grounds of Appeal contained on the Notice of Appeal two issues were formulated by the Appellants for determination as follows:
1. Whether the Hon, Tribunal was right in setting aside the Pre-Hearing Notice and Information sheet on the ground that the Appellants did not fulfil the condition precedent for the issuance of the Pre-Hearing Notice.
2. Whether the Appellants have abandoned petition No. EPT/KD/HA/1/2011.
The 1st and 2nd Respondents brief of argument prepared and presented by learned counsel Garba U. Shehu Esq, was adopted as submissions and arguments on behalf of the 1st and 2nd Respondents in this Appeal.
Learned Counsel adopted the two issues distilled by the Appellants as their own for the determination of the Appeal.
On the first issue for determination learned counsel for the Appellants contended that the Appellants Appeal is premised on the provision of Paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 as amended.
Learned counsel submitted that where the Petitioner fails to apply for the issuance of Pre-Hearing Information sheet, the Respondents can also apply for issuance of same and that where the petitioner and the Respondent fail to apply for issuance of Pre-Hearing Information Sheet within 7 days, the Respondent can apply to Court by way of motion that the petition be dismissed.
Learned Counsel submitted that the intention of the lawmakers on paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 as amended, is that a Petitioner who brings petition should not abandon same only to come to re-awake it anytime the feels it is convenient to him.
Learned counsel defined the word abandoned to mean, to give up, to relinquish an interest with the intention of not claiming it back.
He referred in support of his definition the word abandoned the unreported case of Mohammed Ibrahim G. & Anor. V. Mohammed Sani Zorro CA/K/EPT/NA/7/2011 delivered by this Court on the 27th July, 2011 at page 16 where the court said:
“Abandonment is the relinquishing of a right or interest with the intention of never again claiming it. See also Blacks Law Dictionary 8th edition page 2.”
Learned counsel also cited the case- of Ali v. Osawe (2011) 7 NWLR pt.7245 page 68 at 706.
It has been submitted on behalf of the Appellants that the Appellants were very vigilant and deligent in prosecuting their petition and never abandoned their petition as alleged by the Respondents and that the Tribunal was in error to have upheld same.
Learned Counsel insisted that the essence of paragraph 18 of the 1st Schedule is to aid the Tribunal in the quick dispensation of the petition. He argued that a condition precedent to the filing of an application for the issuance of Pre-Hearing Notice is that pleadings must have closed or are deemed to have closed. Learned Counsel argued that where there are multiple parties pleadings are closed or deemed to be closed after the filing of the last Reply. He submitted that in the instant case, pleadings were closed or deemed to be closed on 20th June 2011 at first instance as the 3rd Respondent’s period within which to file its Reply had expired. He argued that after the extension of time granted to the 3rd Respondent to file its Reply and the Appellants having filed their Reply to the Reply of the 3rd Respondent on the 11th July, 2011, then pleadings closed or deemed to be closed in the second instance.
Learned Counsel submitted that the Honourable Tribunal was in grave error when it retied on the case of Ogunmodede Olayemi v. Fatai (2007) 7 EPR 355 at 375 in coming to the conclusion that the pre-Hearing Information sheet issued on 24th June 2011 without a prior application is a nullity. Learned Counsel argued that in that case the Court of Appeal agreed with the Tribunal on the point because there is no application for issuance of the Pre-Hearing Information sheet and no evidence that any application be it letter or Motion was made. He urged the Court to hold that the case of Olayemi v. Fatai is not applicable to the present case. Learned Counsel argued that in the instant case, the Appellants applied to the Honourable Tribunal by a letter before the Pre-Hearing Information Sheet was issued on 24th June 2011. The Court was referred to page 115 of the Record of Appeal containing the said letter.
Learned counsel for the Appellants argued that although they did not annexed the application letter to their counter-affidavit at the lower Tribunal same being in the Tribunals’ file formed part of the record of the Tribunal and the Tribunal ought to look at it while writing its Ruling. Learned counsel maintained that the Tribunal refused to look at and or give effect to this letter.
Learned counsel submitted that it is now settled law that a Court is entitled to look at document in its file while writing its judgment or ruling despite the fact that the document was not tendered and admitted as an exhibit at the trial. The court was referred to the cases of Akinola v. V.C. Uni-ilorin (2004) 11 NWLR pt.885 page 676 at 650, Agbaisi w Ebekerefe (1997) 4 NWLR pt.502 page 630, Agbahomovo v. Eduyegbe (7999) 3 NWLR pt.594 page 170.
Learned counsel contended that if the Honourable Tribunal had looked at the letter or any effect was given to the letter, it would not have reached the decision it reached. He urge the Court to discountenance the decision of the Tribunal on this issue.
It has been submitted on behalf of the Appellants that the application letter written by the Appellants to the Tribunal as seen on page 115 of the Record suffices as an application contemplated under Paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 as amended.
Learned Counsel argued that the said paragraph does not make an express provision for the mode of the application. He referred the court to the unreported cases of-
Abubakar U. Jarengol & Anor. V. Rev. Kelvin Unya Aguwa & Anor. CA/YL/EPT/ADS/HA/1/2011 delivered on 24th August 2011. Rev. Jolly Nyame & Anor. V. PDP & 111 ors. CA/YL/EPT/HR/S/6/2011 delivered on 24th August 2011.
Aliyu Ibrahim Gebi v. Alh. Garba Dahiru & g ors CA/J/EPT/HR/127/2011 delivered on 22nd August, 2011.
Gabriel Suswan v. Prof, Steven Ugba & 3 Ors. Delivered on 16th September, 2011.
He contended that all these authorities are on all fours with the instant case and he urged the court to so hold.
Learned Counsel submitted that an application by letter to the Tribunal for issuance of Pre-Hearing Information Sheet constitutes an application within the contemplation of Paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 as amended.
Learned Counsel argued that assuming but not conceding that the period within which the Appellants-had to apply for the Pre-Hearing commenced from 20th June 2011 and ended 26th June 2011, as contended by the 1st and 2nd Respondents in their motion to dismiss. He submitted that by virtue of the said letter, there is subsisting and valid Pre-Hearing Notice.
Learned Counsel for the Appellants contended that the argument of the 1st and 2nd Respondents that they were not served with the said Pre-Hearing Information sheet is of no movement, he insisted that service of court processes is the duty of the Bailiffs of the court and not that of counsel or litigants and thus, litigants cannot be penalized for domestic negligence of the court. He referred the court to the case of Bajoga v. Government of the Federal Republic of Nigeria (2008) 1 NWLR pt.1067 page 85 at 122.
Learned Counsel argued that in the instant case, the Appellants applied for the issuance of the Pre-Hearing information Sheet, and that the Tribunal issued same and the Appellants filed their answer to same, He said that it was assessed and fees paid by the Appellants.
He referred the court to page 116 of the Record of Appeal. He argued that failure of the Bailiffs to serve the 1st and 2nd Respondents is not the fault of the Appellants but that of the Tribunal. He urged the court to hold that the Appellants should not be penalized for the faults of the court.
Learned Counsel further argued that assuming (but not conceding) that there is no application made by the Appellants and that the Pre-Hearing Information sheet issued on 24th June, 2011 as contained on Page 116 – 118 was not issued by the Tribunal, it is his submission that by the order of the Tribunal extending time for the 3rd Respondent to enter appearance and file its Reply out of time which motion was not opposed by the 1s and 2nd Respondents, they have waived their right to complain of any irregularity, if any exist.
Learned Counsel maintained that the period for filing of pleadings was still opened until 11th July, 2011. He argued that the 1st and 2nd Respondents have indeed acquiesced to the irregularity if any exists and that it is clearly in contravention of Paragraph 53(2) of the First Schedule. He referred the court to similar provision of Paragraph 49 of the First Schedule to the Electoral Act, 2006 which he said is in pari materia with paragraph 53(2) of the First Schedule to the Electoral Act 2010 as amended. He also cited the case of Agagu v. Mimiko (2009) 7 NWLR pt.1140 page 342 at 390 – 391 where the court held that preliminary objection cannot be taken in a civil case where the Defendant has waived or acquiesced to any irregularity or informality or alleged incompetence. Learned Counsel
referred the court to the case of Ezeke v. Dade (1999) 5 NWLR pt.601 page 80 at 92.
Uzodinma v. Udenwa (2003) 3 LRECN 516 at 536.
He insisted that these cases are on all fours with the present case. He further argued that in the instant case, the 1st and 2nd Respondents having taken series of steps before filing the application to dismiss they are barred from raising the issue at the stage they raised same and that the court should so hold.
Learned counsel further argued on behalf of the Appellants that contrary to the view of the Tribunal that the application filed on 11th July, 2011 by the Appellants for issuance of Pre-Hearing Information
Sheet was done contemporaneously with the filing of the Appellants Reply to the 3rd Respondent’s Reply, he submitted that the provision of paragraph 18(1) of the 1st Schedule to the Electoral Act 2011 as amended does not accord the Petitioner to wait until the Bailiff show him the proof of service of the reply on the Respondent before the petitioner would apply for the issuance of Pre-Hearing Information sheet.
Learned Counsel referred the Court to paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 as amended and argued that the word “within” when used as relating to time means the commencement and the last day are inclusive. He referred to the case of Ogbebor v. Danjuma (2003) 15 NWLR pt.843 page 403 page 432.
Learned counsel submitted that this word “within” used in paragraph 18(1) of the Schedule means that Petitioner can apply for the issuance of Pre-Hearing Information sheet the day pleadings are closed or the day to filed his Reply and that he need not wait till the expiration of the 7 days.
He submitted that the Appellants who took prompt steps to ensure the expeditious hearing and determination of the petition has not run foul of the law. He argued that the case of Azudibia v. INEC retied upon by the Tribunal at page 262 of the Record of Appeal is not applicable to the instant case and urge the Court to so hold.
Learned counsel for the Appellant contended that before it could be said that the application for issuance of Pre-Hearing Information Sheet is premature, it must be filed with the sole purpose of shutting out a Respondent. He referred the Court to the case of Dr. Asogu Ohaka v. Mayor Eze & Ors. (Unreported Appeal No. CA/PH/EPT/547/2007 delivered on 10th December 2008.
Learned Counsel argued that in the instant case it has not been submitted by the Respondents before the Tribunal that any of them was shut out by the application filed for the issuance of the Pre- Hearing Notice. He maintained that the Respondents filed their respective Replies to the Petition and that it was the Appellants Reply that was the last in the chain. He urged the Court to hold that non of the Respondents was shut out.
Learned Counsel contended that the Tribunal failed to consider the several Authorities cited before it and relied upon by the Appellants in consideration of the case. He maintained that if the Tribunal had considered those authorities, it would have arrived at a just decision of the case by allowing the petition to be heard on the merit. The non-consideration of those authorities counsel submitted amount to miscarriage of justice. Learned Counsel urge the Court to resolve this issue in favour of the Appellant.
In his submission on the first issue for determination, learned counsel for the 1st and 2nd Respondents Garba U. Shehu Esq submitted that Paragraph 18(1) of the First Schedule to the Electoral Act is clear as to when an application for issuance of Pre-Hearing Information Sheet be made. He said they are categorized into two:
i, 7 days after the filing and service of the Petitioner’s Reply on the Respondent or
ii. 7 days after the filing and service of the Respondent’s Reply.
Learned Counsel for the 1st and 2nd Respondent’s submitted that the Appellants’ case falls under category (i) because he filed a Reply to the Replies by the Respondents.
He argued that the application for issuance of Pre-Hearing Notice via letter dated 20th July, 2011 did not comply with paragraph 18(1) as the Reply by the Appellants was only served on the 1st and 2nd Respondents on the 22nd July, 2011. He contended that the letter is premature as the time will begin to run after the 22nd July 2011, which he said clearly showed that they applied before the close of pleadings.
Learned counsel argued that a process filed prematurely is a mere piece of paper without any legal consequences. Learned Counsel argued that a condition precedent to the filing of an application for the issuance of Pre-Hearing Notice is that pleadings must have closed or are deemed to have closed and that until the happening of the condition precedent there can be no competent application for pre-hearing notice. Learned Counsel referred the Court to the cases of Azudibia v. INEC (2008) LRECN page 105 at 126. Aliyu Ibrahim Gebi v. Alhaji Garba Dahiru (Unreported) Appeal No. CA/J/EP/HR/127/2011 delivered on 22nd August, 2011.
Learned Counsel submitted that the second application for issuance of Pre-Hearing Notice via the Motion on Notice filed by the Appellants on the 11th July is premature as the Respondents were served the reply of the Appellants to the Reply of the 3rd Respondents on the 14th July, 2011 and that the motion was filed 3 days before the Reply of the Respondents were served on the Respondents, He said that both processes were filed on the 11th July, 2011 and served on the 14th July, 2011.
Learned Counsel argued that the wording of paragraph 18(1) of the First Schedule to the Electoral Act are very clear that the application shall be filed within 7 days after the filing and service of the petitioners’ Reply on the Respondent which in this case shall begin to run after the 14th July, 2011.
Learned Counsel for the 1st and 2nd Respondents insisted that both the letter dated 20th July, 2011 and Motion on Notice dated and filed on the 11th July, 2011 are premature and thus incompetent.
He submitted that where a statute presented the mode and time of filing of an application, a failure to file the application in the prescribed mode and time renders the application incompetent and the Tribunal was right to have dismissed the Petition of the Appellants. He referred the Court to the case of Inakoiu v. Adeteke (2007) 4 NWLR pt.1025 page 427 at 590 and 697.
In the Appellants Reply brief of argument learned counsel submitted that the case of Ohaka v. Eze (supra) is distinguishable from the case. In Ohaka’s case learned counsel argued the application was made to shut out the 2nd Respondents and that the Court declared that the application was prematured and incompetent because the 2nd Respondent in that case (the Peoples Democratic Party) was still within time to file it Reply to the petition, while in the instant case learned counsel argued that whether from the angle of the first application (letter) or from the second application (Motion on Notice) for issuance of Pre-Hearing Notice, no Respondent was shut out.
He argued that time for applying for Pre-Hearing Notice start running from the time the Appellants filed their Reply and not after the service of same on the Respondents as contended by the 1st and 2nd Appellants. Learned counsel submitted that in computing time for purpose of applying for Pre-Hearing Notice, the time of the Petitioner started to run from the time the last Reply is filed, and that in this case it is the Appellants Reply.
The first issue for determination in this appeal reads:
“Whether the Hon, Tribunal was right in setting aside the Pre-Hearing Notice and Information Sheet on the ground that the Appellants did not fulfill the condition precedent for the issuance of the Pre-Hearing Notice.”
The kernel of this issue for determination is the provisions of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended and same is for ease of reference adumbrated as follows:
“18(1), Within 7 days after the filing and service of the Petitioner’s reply on the Respondent or 7 days after the filing and service of the Respondent’s reply, as the case may be, the Petitioner shall apply for the issuance of Pre-hearing notice as in Form TF’007.”
In the instant case, the Appellants as can be gleaned from the record of Appeal filed two separate applications purporting them to be in compliance with the provision of paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended.
The first application is a letter to the Secretary of the Tribunal written by J. J. Usman Esq. Counsel to the Petitioners/Appellants.
The application is ‘for the issuance of Pre-Hearing Information Sheet in this Petition’.
The application is at page 115 of the record of Appeal and same is reproduced thus:
“20th June, 2011, The Secretary National and State House of Assembly Election Tribunal, Kaduna.
Dear Sir,
APPLICATION FOR ISSUANCE OF PRE-HEARING INFORMATION SHEET IN PETITION NO: EPT/KD/HA/1/2011 BETWEEN SHEHU NUHU BABAJO & ANOR V. HON. MUSTAPHA BAWA & 2 ORS.
We are Counsel to the Petitioner in PETITION No: EPT/KD/HA/1/2011 between SHEHU NUHU BABAJO & ANOR v. HON. MUSTAPHA BAWA & 2 Ors.
We wish apply for the issuance of Pre-hearing Information Sheet in this Petition. We shall pay the necessary fee if required. Thanking you for your usual co-operation.
Yours faithfully, (SGD) J. J. Usman, Esg, PP: Yunus Ustaz Usman (SAN) & Co.”
The provision of Paragraph 18(1) of the first Schedule to the Electoral Act 2010 as amended states that “a petitioner shall apply for the issuance of Pre-hearing notice as in Form TF 007”.
What the petitioners applied for in their letter dated 20th June, 2011 is not what they were required to apply for under the provisions of paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended.
The issuance of Pre-hearing Information Sheet is an event subsequent to the application for the issuance of Pre-hearing Notice and is not contemplated under Paragraph 18(1) of the Schedule to the Electoral Act 2010. The Pre-hearing Information Sheet accompanies Pre-hearing conference notice issued by the Tribunal upon an application by a Petitioner under Paragraph 18(1).
The Pre-hearing Information Sheet is totally different from the Pre-hearing Notice. Whereas the Pre-hearing Notice under paragraph 18(1) is as in Form TF 007, the Pre-hearing Information Sheet under Paragraph 18(2) is as in Form TF 008.
The Electoral Act provides for the Pre-hearing Information sheet under paragraph 18(2) as follows:
“18(2) Upon application by a petitioner under sub-paragraph (1) of the paragraph the Tribunal or court shall issue to the parties or their legal Practitioners (if any) a Pre-hearing Conference notice as in Form TF 007 accompanied by a Prehearing Information Sheet as in Form TF 008.”
It is only after a petitioner has duly applied for a pre-hearing notice that a pre-hearing information sheet as in Form TF 008 will be issued to him. The petitioner need not apply separately for a prehearing Information sheet, once the application for the pre-hearing notice as in Form TF007 is approved by the Tribunal, the petitioner will automatically be entitle to the issuance of a Pre-hearing Information Sheet as in Form TF 008.
In Co-operative and Commerce Bank (Nig) Plc v. A.G. Anambra state & Ors. (1992) 1 NWLR (pt.267) page 528 at 556 Nnaemeka-Agu JSC said:
“Now, it is the law that where a statute provides for a particular method of performing a duty regulated by the statute, that method and no other, must have to be adopted.”
See also Galandu v. Kamba (2005) All FWLR (pt.288) page 1119., Buhari & Ors. v. Dikko Yusuf (2009) 4 NWLR (pt.841) page 446 at 498 – 499.
On the first application for the issuance of the Pre-hearing Information Sheet the Hon. Tribunal made the following finding of fact at page 259 of the record of Appeal thus:
“A careful study of the case file also shows that there was no application before the Tribunal prior to the issuance of the pre-hearing information sheet.
The information sheet was issued by the Secretary of the Tribunal on 24/6/2011 as shown clearly on the face of Exhibit A to the counter-affidavit. The legal interpretation of this has been decided in the case of Ogunmodede Olayemi v. Fatai (2010) 7 EPR page 355 at 375 it was held that a pre-hearing notice issued by the Secretary of the Tribunal without any prior application is an exercise in futility.
It was further held in that case that without a prior application, the issuance of the notice was of no effect whatsoever and that any response to it amounted to putting something on nothing.
Therefore, the argument of the Petitioners Counsel that the 1st and 2nd respondents had taken steps in the information sheet, Exhibit ‘A’ is not a weighty argument since any such steps amounted to putting something on nothing.”
This finding of the Tribunal is correct and same has not been faulted by the Appellants in this appeal.
The first application of the petitioners/appellants in their letter dated 20th June, 2011 is incompetent not being an application for the issuance of a pre-hearing notice under the provisions of paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended.
The second application filed by the Petitioners/Appellants is by way of a Motion on Notice dated 11th July 2011 and is at pages 204 and 205 of the record of Appeal. It is reproduced as follows:-
“IN THE NATIONAL AND STATE HOUSE OF ASSEMBLY ELECTION TRIBUNAL HOLDEN AT KADUNA
PETITION No: EPT/KD/HA/1/2011
The Election to the Zaria City Constituency of Kaduna State House of Assembly held on the 28th Day of April, 2011
BETWEEN:
SHEHU NUHU BABATO PETITIONERS/RESPONDENTS
PEOPLES DEMOCRATIC PARTY AND
1. HON. MUSTAPHA BAWA RESPONDENTS 2. CONGRESS FOR PROGRESSIVE CHANGE (CPC)
3. INDEENDENT NATIONAL ELECTORAL COMMISSION
MOTION ON NOTICE BROUGHT PURSUANT TO PARAGRAPHS 18 AND 47 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010 AS AMENDED AND UNDER THE INHERENT POWER OF THE HON. TRIBUNAL
TAKE NOTICE that this Honourable Tribunal will be moved on the … day of … 2011 at the hour of 9 O’ clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the Petitioners/Applicants praying this Honourable Tribunal for the following Order:-
1. AN ORDER issuing Pre-Hearing Notice in this Petition. AND
2. FOR SUCH FURTHER order(s) or other orders as the Honourable Tribunal might deem fit to make in the circumstances.
TAKE FURTHER NOTICE that the grounds upon which the application is predicated includes:
i, Pleadings are closed
ii. There is need for the issuance of Pre-Hearing Notice. Dated this 11th Day of July, 2011.”
The application is supported by an affidavit of nine Paragraph.
Paragraph 6, 7, and 8 of the affidavit are pertinent and are hereby adumbrated as follows:
“6. That pleadings are closed now and there is need for the Tribunal to issue Pre-hearing Notice and Information sheet to all the parties.”
“7. That the Respondents will not be prejudiced if this application is granted.”
“8. That it is in the interest of justice to grant this application.”
The Tribunal on 22nd July 2011 granted the application on notice for the issuance of a pre-hearing notice filed on 11/7/2011 and petition was adjourned to 4/8/2011 and 5/8/2011 for pre-hearing.
The issue in controversy is whether this second application has also complied with the requirements under paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended for its issuance.
The 1st and 2nd Respondents contended that the Appellants have not satisfied the conditions for the issuance of a Pre-Hearing notice and on 2/8/11 they filed a Motion on Notice dated 1/8/11 praying for:
1. AN ORDER SETTING ASIDE the orders of the Tribunal made on the 22nd July, 2011 for the issuance of Pre-Hearing Notice.
2. AN ORDER DISMISSING PETITION No. EPT/KD/HA/1/2011 for being abandoned’
3. SUCH ORDER OR ORDERS as the Tribunal may deem fit to make in the circumstances.
AND TAKE NOTICE that the grounds upon which this application is brought are as follows:
(a) the Order for the issuance of Pre-Hearing Notice was made after the period allowed by the Electoral Act for doing same has expired.
(b) having failed to apply for issuance of the Pre-Hearing Notice within the time prescribed, the Petition is deemed abandoned.”
The application was supported by an affidavit of four paragraphs. Paragraph 3 is pertinent and it is reproduced thus:-
That I am informed by GARBA U. SHEHU ESQ. The Counsel handling this suit in our office on the 29th July, 2011 at about 9.30am and I verily believe him to be true and correct as follows:
(a) the 1st and 2nd Respondents filed their reply to the Petition on the 14h June, 2011.
(b) the Petitioners filed a reply to the 1st and 2nd Respondent’s reply on the 20th June, 2011 and same was served on the 1st and 2nd Respondents on the 22nd June, 2011.
(c) the Petitioners’ Counsel filed a Motion dated 11th July, 2011 seeking to issue Pre-Hearing Notice and same was granted on the 22nd July, 2011.
(d) the period between 22nd June, 2011 to 11th July, 2011 is more than 7 days.
(e) the application dated 11th July 2011 was granted on the 22nd July, 2011 in error as the period within which the Petitioners are to apply for the issuance of Pre-Hearing Notice had expired.
(f) it is on the interest of justice to grant this application.
(g) if this application is granted, the Petitioners will not be prejudiced.
(h) if this application is refused, the 1st and 2nd Respondents will be highly prejudiced.
In opposition to the application, the Petitioners/Appellants filed a 20 paragraph Counter-affidavit. Paragraphs 3, 4, 5, 6,7, 8, 9,10, 11, 12, 13, 14 are relevant to this appeal and they are hereby reproduced thus:
“3. That the Petitioners filed the instant petition on 18th May, 2011”
“4. That the 1st and 2nd Respondents filed their Reply and same was served on the Petitioners on 20th June, 2011.”
That the Petitioners filed their Reply to the 1st and 2nd Respondents’ Reply on 20th June, 2011.”
“6. That the Petitioners applied for the issuance of Pre-Hearing Information Sheet and same was issued on 24th June, 2011. A copy of the Pre-Hearing Information Sheet and the Receipt for payment of filing fee is annexed hereto and marked as EXHIBIT A and A1 respectively.”
“7. That on 30th June, 2011 the 3rd Respondent filed a motion for Extension of time.”
“8. That the said Motion was moved on 8th July 2011 without opposition by any of the parties and same was granted on the said date.”
“9. That on the Petitioners filed their Reply to the 3rd Respondent’s Reply on the 11th July, 2011.”
“10. That on the same 11th July, 2011, the Petitioners filed a Motion on Notice for Issuance of Pre-Hearing Notice.”
“11. That on 2nd July, 2011, the 2011, the heard the Motion, the Respondents did not oppose it and same was granted.”
“12. That on 27th July, 2011, the Hon. Tribunal issued Form TF 007 and TF 008 and the Petitioners have filed their answers to the Pre-Hearing Information sheet on the said date.”
“13. That pleadings were closed on the 11th July, 2011.”
“14. That the Petitioners did not abandon their petition.”
“15. That the 1st and 2nd Respondents have taken series of steps from 2dh July, 2011 till 4th August, 2011 when we were served with their Motion to set aside the order of the Hon. Tribunal made on 22nd July, 2011.”
The Tribunal made a finding on the competence of the application for the issuance of the Pre-hearing Notice made pursuant to the motion on notice dated and filed 11th July 2011 and its ruling setting aside its earlier order for issuance of a Pre-hearing notice gave rise to the appeal. The Tribunal held in the said ruling thus:
“The question that arise is this: was the application for the issuance of pre-hearing notice by the motion on notice filed on the 11th of July, 2011 made after the filing and service of the Petitioners’ reply on the 3rd Respondent? The answer is no, The application for the issuance of pre-hearing notice was not done after the filing and service of the Petitioners reply on the 3rd respondent, It was done contemporaneously with the filing and before service of the petitioners reply. The issuance of the Pre-hearing with reference to the 3rd Respondent was therefore premature, and with reference to the 1st and 2nd respondents completely out of time.”
It is the submission of learned counsel for the 1st and 2nd Respondents Garba U. Shehu Esq. before this Court that the application for issuance of the Pre-Hearing Notice via the Motion on Notice filed by the Appellants on the 11th July is premature as the Respondents were served the reply of the Appellants to the Reply of the 3rd Respondent on the 14th July, 2011 and that the Motion seeking for a Pre-hearing notice was filed 3 days before the service of the reply on the 1st and 2nd Respondents.
Learned counsel for the 1st and 2nd Respondents argued that the wordings of Paragraph 18(1) of the First Schedule to the Electoral Act are very clear that the application shall be filed within 7 days after the filling and service of the Petitioner’s reply on the Respondent. He submitted that the Motion on Notice dated and filed on the 11th July, 2011 is prematured and thus incompetent.
The Appellants in their reply brief submitted that pleadings are closed or deemed to be closed after the Appellants filed their Reply to the Respondents’ Reply and that the time for applying for Pre-Hearing Notice starts running from the time the Appellants filed their Reply. He argued that it is certainly not after the service of same on the Respondents as contended by the 1st and 2nd Respondents.
Learned counsel for the Appellants S.O. Omoloba (Mrs) contended that paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 as amended, places the duty of filing Court processes on the petitioner while the duty of service of the said processes is on the Tribunal’s Bailiffs or official. Learned Counsel submitted that time begins to run against a Petitioner from the time he file his reply and not from the time the Respondent is served as submitted by counsel to the 1st and 2nd Respondents. Learned Counsel maintained that the case of Azudibia v. INEC relied upon by the Tribunal is not applicable to the instant case.
Learned counsel referred the Court to the case of Sarafa Hassan v. INEC & Ors. (2008) LPELR-CA/I/EPT/HA/11/2007.
The crux of the argument of counsel on both sides is premised on the provisions of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended which I have earlier reproduced in this judgment.
It is the first principle of Interpretation that the maker of any law does not use any word in vain, nor indulge in tautology or in surplusage. It follows therefore that every word in a statute must be constructed and given effect to. See Joseph O. Idehen & Ors. v. George O. Idehen & Ors. (1991) 7 SCNJ (part II) page 196 at 298. Omibi v. NEC (1998) 5 NWLR (Pt.94) page 323. Tukur v. Government of Gongola State (1998) 1 NWLR (pt.68) page 39 at 579.
Another fundamental principle of interpretation of statute is that, where a word is plain on the face of it, the literal meaning should be given to it. See Niger Progress Limited v. North East Line Corporation (1989) 4 SCNJ (Part II) page 232 at 241, Latifi Salami v, Chairman L.E.D.B. & Ors. (1989) 12 SCNJ 130 at 142 – 143.,
The said Paragraph 18(1) of the First Schedule to the Act categorized the time and circumstances when an application for issuance of Pre-hearing Notice can be made, into two segments as follows:
(a) Within 7 days after the filing and service of the Petitioner’s Reply on the Respondent or
(b) 7 days after the filing and service of the Respondents reply. (underline mine)
It is important to make a distinction between the two segments of paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended.
The first segment speaks of “within 7 days after the filing and service of the Petitioners Reply on the Respondents.”
The operative words under this segment are “within and after”.
The Concise Oxford Dictionary of Current English Seventh Edition, edited by J.B. Sykes defines the word “within” at page 1237 to mean inter alia, inside, in, in a time no longer than, before expiration.
The word “within” has also been judicially defined in the case of Ogbebor w Danjuma (2003) 15 NWLR (pt.843) page 403 at 432 per Augie, JCA:
“when used relative to time, been the word “within” has defined variously as meaning anytime before; at or before; at the end of, before expiration of not beyond; nit exceeding; and not later than.”
The word “after” has been defined by the Concise Oxford Dictionary at page 17 to mean inter alia; later in time, following in time, later than; at a later time than; coming at a later time; behind; Happening at a time subsequent to a reference time; later on; later; subsequently.”
Within 7 days means before the expiration of 7 days and it includes the first day as well as the last day which is the seventh day of the event under consideration.
In relation to the time for applying for a pre-hearing notice under the first segment of paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended, the Petitioner after filing and serving his reply on the Respondents has a period of seven (7) days to apply for pre-hearing notice. The petitioner must not allow the seven (7) days to elapse before filing the application for a prehearing notice. He has to apply before the expiration of the seven days and must file and serve his reply on the Respondents before filing his application.
Where the Petitioner applies for a pre-hearing notice after the elapse of the seven days i.e. on the eighth day or thereafter, such an application will be incompetent and the Tribunal will lack the jurisdiction to issue a pre-hearing notice.
Also where the Petitioner files his application for a pre-hearing notice before he had filed and served his reply on the Respondents, such an application will be incompetent.”
The second segment of the provisions of paragraph 18(1) of the First Schedule to the Electoral Act speaks of “7 days after the filing and service of the Respondents reply.”
After 7 days under the second segment means that an applicant must apply for a pre-hearing notice at a later time than the seven days, i.e. on the eighth day or within any reasonable time subsequent to the 7 days and after the filing and service of the Respondents reply.
The instant case falls squarely within the first segment of the provisions of Paragraph 18(1) of the First Schedule to the Act. The Petitioners/Appellants second application dated and filed on 11th July, 2011, was simultaneously filed with the reply to the 3rd Respondent’s reply. The service of the reply on the 1st and 2nd Respondents was not carried out or effected until the 14th July, 2011, which is 3 days after filing the application for the pre-hearing notice but before service of same on the 1st and 2nd Respondents. The application was premature and therefore incompetent having been filed in violation of the provisions of paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended. The consequence of such breach is captured in the case of Azudibia v. INEC (2008) 4 LRECN 705 at 126 where it was held per Kekere-Ekun, JCA:
‘A process filed prematurely is a mere piece of paper without any legal consequence. A condition precedent to the filing of an application for issuance of pre-hearing notice is that pleadings must have closed or are deemed to have closed.
Until the happening of the condition precedent there can be no competent application for prehearing notice before the Tribunal.”
The service of the Appellants reply on the Respondents is one of the conditions precedent to the issuance of a pre-hearing notice.
The failure to serve the 1st and 2nd Respondents with the Appellants reply to the 3rd Respondents reply, striped the Tribunal of jurisdiction. The lack of jurisdiction cannot be waived by one or both parties to the petition. This is because parties cannot vest jurisdiction on the Tribunal or Court, where there is none. See Okolo v. Union Bank (Nig) Ltd (2004) 3 NWLR (pt.859) page 87, Mobile Production (Nig) Unltd v. Monokpo (2003) 18 NWLR (pt.852) page 346.
Federal Government of Nigeria v. Oshiomhole (2004) 3 NWLR (pt.860) page 305 at 324.
In Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) page 427 at 590 and 697 per Tobi JSC:
“It is good law that where the Constitution or a statute provides for a pre-condition to the attainment of a particular situation, the precondition must be fulfilled or satisfied before the particular situation will be said to have been attained or reached, Our common and popular pet expression is “condition precedent” which must be unfilled before the completion of the journey.”
Also at page 697 of the same report Ogbuagu JSC said on need to fulfill pre-condition stipulated by a statute thus:
“It is now settled firstly, that where a statute or constitution, prescribes a procedure for seeking a remedy or the doing of anything or act and the language used is clear and unambiguous, that is the only procedure open to the parties concerned and any departure therefrom will be an exercise in futility. See the case of System Applications Products (Nig) Ltd. v. central Bank of Nigeria (2004) 15 NWLR (pt.897) page 663 at 687.”
The failure to fulfill a condition precedent for the issuance of a pre-hearing notice which in this instance is the service on the 1st and 2nd Respondents of the Petitioners/Appellants reply to the 3rd Respondents reply, striped the Tribunal of its jurisdiction to issue a Pre-hearing notice. Consequently the Tribunal having issued the prehearing notice without jurisdiction, can rescind its order so as to restore the Status Quo. See F.A. Akinbobola v Plisson Fisko (Nig) Ltd & Ors. (1991) 1 SCNJ 129 at 134.
I am of the opinion that in the instant case the pre-hearing notice filed on 11th July 2011 was of no legal consequence and the Tribunal was right in setting it aside upon the application of the 1st and 2nd Respondents.
This first issue is resolved in favour of the Respondents.
The second issue for determination reads:
“whether the Appellants have abandoned petition No. EPT/KD/HA/1/2011.”
The consequence of an incompetent or invalid application for pre-hearing notice is that there is no application for pre-hearing notice in law. See Okereke v. Yar’adua (2008) 12 NWLR (pt.1100) page 95 at 118.
The provisions of Paragraph 18(4) of the First Schedule to the Electoral Act 2010 as amended provides thus:
“18(4) Where the Petitioner and the Respondent fail to bring an application under this paragraph, the Tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.”
It is very clear from the provisions of the paragraph reproduced above that the petition is deemed as having been abandoned and liable to be dismissed. See Ohaka v. Eze (2010) All FWLR (pt.525) page 880.
This second issue is also resolved in favour of the Respondents.
There is no merit in this Appeal and it is hereby dismissed. The decision of the Tribunal delivered on 16/8/2011 is hereby affirmed, there shall be no order as to costs.
AMINA ADAMU AUGIE, J.C.A.: I agree.
T.N. ORJI-ABADUA, J.C.A.: I agree.
Appearances
S.O. Omoloba (Mrs) with J.J. Usman and H.A. Yahaya,For Appellant
AND
Garba Shehu for the 1st and 2nd Respondents
F.T. Usman (Mrs) for the 3rd Respondent.For Respondent
