MR. VALENTINE CHRIS OGAR ENEJI & ANOR. V. AJOR IDAGU AGAJI & ORS.
(2011)LCN/5081(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of September, 2011
CA/C/NAEA/203/2011
RATIO
INTERPRETATION OF STATUTE
An “irregularity” is that which is not in accordance with the law, method, or usage; an act or practice that varies from the normal conduct of an action. On the other hand a “nullity” is something that is legally void. See Black’s Law Dictionary, 8th edition pages 848 and 1098; Benjamin Mcfoy vs UAC (1961) 3 WLR 1405; Okoye vs Nigeria Construction Furniture Co. Ltd (1991) 6 NWLR (Pt.199) 501 at 539 and Bello vs INEC (2010) 8 NWLR (Pt.1196) 342. In construing the provisions of Section 140(4) of the Electoral Act, 2010 as amended, read together with paragraph 53(2) of the 1st Schedule the phrase “subject to” must never be ignored or lost sight of According to the learned author of Maxwell On the Interpretation of Statutes, 12th edition by P.St. J. Langen p.36, “A Construction which would leave without effect any part of the language of a statute will normally be rejected.” The intention of the legislature is to be garnered from the holistic reading of the provisions of Section 140(4) of the Electoral Act, 2010 (as amended) which has been subjected to the provisions of paragraph 53(2) of the 1st Schedule to the Act such that the striking out or dismissal of an election petition that is not within the provisions of the Act and 1st Schedule will not be allowed to stand by an appeal Court or Tribunal. PER. JOSEPH TINE TUR, J.C.A
THE POSITION OF THE LAW ON ELECTION PETITIONS
Election petitions are sui generis and must be so treated or regarded. As much as is possible they should be heard on the merit rather than relying on a whirligig of technicalities to derail the course of justice. See Bruce vs Ere (2004) 1 All FWLR (Pt.209) 987 at 1014; Nwobodo vs Onoh (1984) 1 SCNLR 1 at 100 and Owuru vs INEC & 2 Ors (1999) 10 NWLR (Pt.622) 210 at 212-213. But for the decision in Ohaka vs. Eze (2010) All FWLR (Pt.525) 380 the Tribunal would have, from her showing proceeded with the pre-hearing. PER. JOSEPH TINE TUR, J.C.A
JUSTICES
UZO NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. MR. VALENTINE CHRIS OGAR ENEJI
2. ACTION CONGRESS OF NIGERIA Appellant(s)
AND
1. AJOR IDAGU AGAJI
2. THE RESIDENT ELECTORAL COMMISSIONER CROSS RIVER STATE (MR. MIKE IGINI)
3. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. THE PEOPLE DEMOCRATIC PARTY Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National and State House of Assembly Election Petition Tribunal holden at Calabar.
The Appellants were the Petitioners at the Tribunal. They filed their motion for pre-hearing trial on the 16th June, 2011 prayed court for the following orders viz
(1) An order for leave of the Hon. Tribunal to move the motion for on order for issuance of pre-hearing notice Form TF. 008.
(2) An order for the issuance of pre-hearing notice as in Form T.F. 008.
(3) And for such further order or other orders as this Hon. Tribunal may deem fit to make in the circumstances.
The 4th Respondent also filed a motion on Notice on 6th July, 2011 praying for the following Reliefs:-
1. Leave to bring this application.
2. An order dismissing this Petition.
3. Such further order or orders as the Tribunal may deem fit to make in the circumstances.
Curiously these two motions were consolidated. The Appellants motion was one to sustain the Petition; the 4th Respondent’s motion was to destroy or cut short the life of the petition.
The Tribunal held inter alia “that the application for pre-hearing notice filed by the Petitioners on 16th June, 2011 was premature” The Tribunal relied on the authority of Ohaka Vs Eze (2010) All FWLR Pt 525 Pg 380 per Eko JCA as follows:-
“I agree as submitted for the Respondents that the effect of applying for pre-hearing session notice before the close of pleadings is to shut out the Respondents whose time was yet to effluxe. It is clearly the duty of every Court to protect the rights of the parties before it………. …….” 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 a 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 pre-hearing notice before the Tribunal.”
The Tribunal went on to observe as follows:-
“We would have regarded the action of the Petitioners as overzealousness and allow the application for pre-hearing session notice of the Court of Appeal as quoted above.”
The Tribunal thereafter went ahead and dismissed the Petitioners’ Petition.
Being dissatisfied, the Petitioners now Appellants filed a notice and 1 ground of appeal.
The appellants filed their brief of argument and articulated one issue for determination as follows:-
“whether or not having regard to the timeliness constitutionally provided for the disposal of election
Petitions, the trial Tribunal was right in holding that the application for the issuance of Pre-hearing notice as in Form TF 008 filed after the 2nd & 3rd Respondents had filed their Respondents’ Reply was premature”.
The 1st & 4th Respondents adopted the lone issue articulated by the Petitioners. The 2nd & 3rd Respondents filed no briefs.
In arguing this lone issue the 1st & 4th Respondents argued that a pre-hearing notice filed before the close of pleadings is no notice at all. They argued that its intention was to foreclose the Respondents.
Arguably paragraph 18(1) of the ETCPD states as follows:
Within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.
This supposes that the Petitioner must make his application not anytime after 7 days after the filing, and service of the Respondent Reply, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.
The Petitioners had filed application by way of motion and on the 23rd June, 2011 when the Petitioner was to move that motion, the Tribunal stated that it was “premature”
Curiously on the 24/07/2011 after pleadings have closed, the Tribunal consolidated the Petitioners motion for an application for pre-hearing notice with the 4th Respondent’s motion to dismiss the petition it being incompetent. The petitioners’ motion was as of that time ripe for hearing, the pleadings having now closed.
In the normal cause of the business of a court, if there are two conflicting motions in a file: one to sustain and one to kill the case which one should be heard first? Of course the one that is to sustain the appeal.
The application for pre-hearing notice was a motion seeking to regularize the entire petition while the 4th Respondent’s motion sought to end abruptly the petition. The practice has always been to give priority to a motion seeking to regularize a process. See John vs. Blakk (1998) 6 NWLR Pt 555 Pg 524, Basil Egbuonu vs. Borno Radio Television Corporation (117) 12 SCNJ 97 of 113. Curiously the Tribunal consolidated these two conflicting motions and had this to say:-
“We would have regarded the action of the petitioners as overzealousness and allow the application for pre-hearing session notice but for the decision of the Court of Appeal as quoted above “Moreover, there is no application before us to regularize the motion filed by the Petitioners”
The reasoning and statement of the Tribunal is correct, the Petitioners were overzealous. In following the decision of the Tribunal in Ohaka vs. Eze (2010) All FWLR Pt 523 Page 380 as per Eko JCA., it would be borne in mind that the Electoral Act of 2006 was open ended, there was no need for overzealousness. The Electoral Act 2010 (as amended) has a time frame on overzealous counsel cannot be blamed or penalized for his overzealousness at the detriment of the petitioner.
A motion was filed on the 16th June, 2011 before pleadings closed. The motion was not moved until pleadings were closed. The intendment of paragraph 18(1) ETPDC is to make sure that no desirous party is shut out. Moving the motion on the 14th July, 2011 after close of pleadings has not breached the intendment of paragraph 18(1).
An overzealous counsel cannot be penalized for being overzealous in an Election Petition where time is of the essence. Applying earlier before the end of pleadings was ‘premature’ but the motion was moved after the close of pleadings on 14th July, 2011. None of the parties has been shut out by the early application since it has not been moved and granted. None of the parties has suffered any harm.
I would tend to agree with the Tribunal that the counsel to the petitioners was overtly overzealous and nothing more. His overzealousness can stem from the lateness or delay in the 1st & 4th Respondents filing their reply a lot later than the 2nd & 3rd Respondents.
Time is of the essence in election matters particularly in this Electoral Act of 2010 (as amended). Thus as much as possible petitions are expected to be devoid of the procedural cogs that cause delay in the disposition of the substantive dispute. Akpokiniovo vs. Agas (2004) 10 NWLR Part 881 para 394.
I therefore hold that the application for pre-hearing notice should have been taken and the Tribunal ordered for Forms TF 007 and TF 008 issued for pre-hearing. None of the Respondent’s have suffered any harm by the overzealousness of the counsel to the petitioner.
Assuming the 4th Respondent did not move a motion to dismiss can the Tribunal suo motu dismiss the Petition for non-compliance when there was a motion for pre-hearing notice. The answer should be No!
As of the time the motion for pre-hearing notice was heard, the motion was ripe for hearing and pleadings have effectively closed.
I therefore hold that the Tribunal erred in dismissing the petition of the Petitioner. The motion for pre-hearing notice was ripe for hearing on the 24th June, 2011 when it was heard. I hereby set aside the ruling of the Tribunal to dismiss the petition EPT/CR/SA/7/2011. It is hereby ordered that this petition be remitted for trial by the Tribunal. Form TF 007 & TF 008 are to be issued as a consequential order of the Court. This consequential order is to give effect to this judgment. It is directly traceable to on flowing from the judgment or order duly prayed for. Inakoju vs. Adeleke (2007) 4 NWLR Pt 1025 Pg. 423, Limain vs. Mohammed (1999) 9 NWLR Pt 617 Pg 116 A-G Fed. vs. AIC Ltd (2000) 6 SC Pg 175.
I make no orders as to costs.
JOSEPH TINE TUR, J.C.A: I had the privilege of reading in advance the judgment just delivered by my Lord, Anyanwu-Ndukwe, JCA, and I concur.
In this appeal, as can be garnered from the record of proceedings and the briefs of argument there were four Respondents before the National and State House of Assembly Election Petition Tribunal holden at Calabar, Cross River State. The petitioners filed their petition on 16-05-2011 challenging the result of election declared by the 2nd and 3rd Respondents into the House of Assembly seat for Bekwara in Cross-River State wherein Ajor Idagu Agaji (1st Respondent) of the Peoples Democratic Party (4th Respondent) was returned as the duly elected member of the State House of Assembly having polled 24,975 votes as against 2,021votes polled by Mr. Valentine Chris Ogar Eneji (1st Petitioner) of the Action Congress of Nigeria (2nd Petitioner). 320 votes were credited to Abua Egbeyin Afabuchi; 17 votes for Mathew Eteriji and 14 for Ushie Innocent Eneji.
The Respondents filed their replies as follows: 1st Respondent – 20-06-2011. The 2nd and 3rd Respondents 16-06- 2011 while the 4th Respondent did so on 24-06-2011. The petitioner responded by filing a Reply in respect to the issues raised by the 2nd and 3rd Respondents in their Joint Reply on 20-06-2011.
On 16-06-2011 the petitioner filed an application seeking direction from the Tribunal that he be issued Forms TF007 and TF008 for pre-hearing conference to commence.
On 05-07-2011 the 1st Respondent brought an application seeking that the depositions of some of the petitioners’ witnesses be struck out for failing to meet the requirements of paragraph 90(b) of the Evidence Act, 1990 because, rather than naming the witnesses they were designated as “ABC, DEF, GHI, JICL, MNO’ TQR, STV, YZA and ABA.” The second relief was for the Tribunal to strike out certain paragraphs of the petition as they bordered on pre-election matters and for non-joinder of Security Agencies/Organizations whose conducts were subject of complaint in the petition.
The 4th Respondent filed an application on 06-07-2011 seeking the dismissal of the petition on the grounds of non-compliance with the requirement of paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 as amended. The motions were consolidated and heard on the 14th July, 2011. On 27th July, 2011 the Tribunal found as follows:
“In the instant case, the 1st Respondent was the last to be served with the petition on the 9th June, 2011. He filed his reply on the 20th June, 2011 and same was served on the petitioners on 23rd June, 2011. Curiously enough, the Petitioners filed their application for pre-hearing notice on the 16th June, 2011 before the filing and service on them of the 1st Respondent’s Reply. The act of filing an application for pre-hearing session before the closing of pleadings is certainly in contravention of paragraph 18(1) of the 1st schedule to the Electoral Act, 2010 as amended. It provides thus:
“(1) Within 7 days after the filing and service of the petitioner’s reply on the Respondents or 7 days after the filing and service of the Respondent’s Reply, whichever is the case, the respondent shall apply for the issuance of pre-hearing notice as in Form TF008 (sic). There is no doubt that the application for pre-hearing notice filed by the petitioners on 16th June, 2011 was premature. We rely on the authority of Ohaka vs Eze (2010) All FWLR (Pt.525) 380 cited by Applicant’s Counsel.”
After citing the dictum of Eko, JCA, the Tribunal continued:
“We would have regarded the action of the Petitioners as overzealousness and allow the application for pre-hearing session notice but for the decision of the Court of Appeal as quoted above. Moreover, there is no application before us to regularize the motion filed by the Petitioners. In the circumstance therefore, the application for pre-hearing session notice filed by the Petitioner’s on 16th June, 2011 is hereby refused for being premature. On the other hand, the 4th Respondent’s application to dismiss the petition is granted and the petition is accordingly dismissed.”
See pages 366 lines 4 – 29 and page 367 lines 1 – 23 of the printed record.
Section 140(4) of the Electoral Act No. 6 of 2010 (as amended) provides as follows:
“(4) Subject to the provisions of paragraph 53(2) of the First Schedule to this Act, on the motion of a respondent in an election petition, the Election Tribunal or the Court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this part of this Act, or the provisions of First Schedule of this Act.”
The Tribunal did not strike out the petition on the 27th day of July, 2011 for the reason that by prematurely applying for a pre-hearing notice as in Form TF 007 this violated any provision of the Electoral Act, 2010 as amended.
The power to strike out or dismiss a petition duly filed within the period prescribed under the Act supra is as provided under Section 140(4) of the Act which is “subject to the provisions of paragraph 53(2) of the First Schedule to this Act.” Paragraph 53(2) of the 1st Schedule reads as follows:
“53(2) An application to set aside any election petition or a proceeding resulting therefrom for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.
(3) xxxxxxxxxxxxx
(4) xxxxxxxxxxxxx
(5) An objection challenging the regularity or competence of an election petition shall be heard and determined after the close of the pleadings.”
Thus, Respondents are empowered to attack an election petition on the grounds that it is not competent or is bedeviled with an irregularity as provided under paragraph 53(2) of the 1st Schedule to the Electoral Act, 2010 as amended. Competency touches on the issue of jurisdiction whereas irregularity may not. However, the proceedings may, because of irregularity be set aside on the grounds that it renders the petition incompetent which is an issue of jurisdiction. See Madukolu vs Nkemdilim (1962) 1 All NLR 587 at 595; Adeigbe vs Kusimo (1965) NMLR 284 at 287 – 288 and Laniyan vs Dadeowo & Ors (1971) All NLR 169 at 172 – 173.
Moreover since Section 140(4) of the Electoral Act, 2010 as amended is subject to the provisions of paragraph 53(2) of the 1st Schedule to the Act supra. It follows that the power to strike out or dismiss the petition is limited in accordance with the ground that the petition was incompetent and therefore the Tribunal had no jurisdiction to entertain it or that it violates the provisions of the First Schedule of this Act. This is because a Court or Tribunal must be competent and have jurisdiction before she can make binding orders. See Kalu vs Odili (1992) 6 SCNJ (Pt.1) 76; Nyarko vs Akowuah 14 WACA 426.
Under paragraph 53(2) of the 1st schedule to the Act, the respondent who applies for the striking out or dismissal of a petition should prove that the irregularity rendered the petition a nullity and void under paragraph 53(1) of the Schedule.
An “irregularity” is that which is not in accordance with the law, method, or usage; an act or practice that varies from the normal conduct of an action. On the other hand a “nullity” is something that is legally void. See Black’s Law Dictionary, 8th edition pages 848 and 1098; Benjamin Mcfoy vs UAC (1961) 3 WLR 1405; Okoye vs Nigeria Construction Furniture Co. Ltd (1991) 6 NWLR (Pt.199) 501 at 539 and Bello vs INEC (2010) 8 NWLR (Pt.1196) 342.
In construing the provisions of Section 140(4) of the Electoral Act, 2010 as amended, read together with paragraph 53(2) of the 1st Schedule the phrase “subject to” must never be ignored or lost sight of According to the learned author of Maxwell On the Interpretation of Statutes, 12th edition by P.St. J. Langen p.36, “A Construction which would leave without effect any part of the language of a statute will normally be rejected.”
The intention of the legislature is to be garnered from the holistic reading of the provisions of Section 140(4) of the Electoral Act, 2010 (as amended) which has been subjected to the provisions of paragraph 53(2) of the 1st Schedule to the Act such that the striking out or dismissal of an election petition that is not within the provisions of the Act and 1st Schedule will not be allowed to stand by an appeal Court or Tribunal. In Turkur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 the phrase “subject to” was defined by Nnaemeka-Agu, JSC, at page 580 as follows:
“….whenever the expression is used at the commencement of a statute, it is an expression of limitation. It implies that what the section or sub-section is “subject to” shall govern, control and prevail over what follows in that section or sub-section of the enactment.”
In Idehen v. Idehen (1991) 6 NWLR (Pt.198) 382 Karibi-Whyte, JSC, held at page 418 that:
“The phrase has been construed in Oke vs. Oke (supra), Olowu vs. Oluwo (1985) 3 NWLR (Pt.13) 372; Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 Olatunbosun vs. NISER (1988) 3 NWLR (Pt.80) 25; Aqua Ltd. vs. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622. In each of these cases the phrase has been construed to render the provision to which it is subject conditional upon compliance with what is required in the provision referred to.”
My humble view is that Section 140(4) of the Electoral Act, 2010 as amended vests a discretion in the Tribunal to strike out or dismiss an election petition that violates the provisions of the Act or the First Schedule subject to any of the events prescribed under the provisions of paragraph 53(2) of the 1st Schedule happening or occurring.
The Tribunal, in dismissing the petition in this case did not advert her mind to the limitations placed on her powers under paragraph 53(2) of the 1st Schedule to the Act as amended supra, namely, whether the complaints of the 1st Respondent touched on the petition being a nullity or a mere irregularity that was curable or may not be held to vitiate the proceedings, the objection not having been brought timeously but after the 1st Respondent had taken fresh steps in the proceedings.
No provision is made for the dismissal of a petitioner’s petition because the application for the issuance of a pre-hearing notice was brought prematurely under paragraph 18(1) of the 1st Schedule.
The power to dismiss a petition, conferred on the Tribunal under paragraph 18(3)’ (4) and (5) of the schedule comes into operation where the petitioner did not bring the application, “Within 7 days after the filing and service of the petitioner’s reply on the Respondent or 7 days after the filing and service of the Respondent’s Reply whichever is the case… “but certainly not where there was pending before the Tribunal an application for that purpose as the facts before the Tribunal showed.
In dismissing the petition reluctantly, the Tribunal did not also take into consideration the provisions of paragraph 19(2) (b) and (c) of the 1st Schedule which is that the Tribunal should give such directions as to the future course of the petition as appear best adapted to secure the just, expeditious and economical disposal of the petition in view of the urgency of election petitions. The Tribunal should have borne in mind the need for the expeditious disposal of election petitions and at the same time the desire to ensure that the petitions are dealt with in such manner and on such terms as the Tribunal may deem fit and just. See paragraph 53(2) of the 1st Schedule to the Electoral Act, 2011.
In questions of discretion there is no hard and fast rule in the matter. The Tribunal is to determine applications brought before her based on the peculiar facts and circumstances of each petition. A judgment is of value for the principles of law which it applies to the facts of the case to which it decides. See FBIR vs Rezcallah & Sons Ltd (1962) 1 All NLR (Pt.1) 1 at 14. A defect in procedure is not the same as in competence or jurisdiction. See Saude vs. Abdullahi (1989) 7 SC (Pt.2) 116. Election petitions are sui generis and must be so treated or regarded. As much as is possible they should be heard on the merit rather than relying on a whirligig of technicalities to derail the course of justice. See Bruce vs Ere (2004) 1 All FWLR (Pt.209) 987 at 1014; Nwobodo vs Onoh (1984) 1 SCNLR 1 at 100 and Owuru vs INEC & 2 Ors (1999) 10 NWLR (Pt.622) 210 at 212-213.
But for the decision in Ohaka vs. Eze (2010) All FWLR (Pt.525) 380 the Tribunal would have, from her showing proceeded with the pre-hearing. For the above reason I also allow this appeal and remit the petition to be heard on the merit. I abide by any other order made by my Lord.
ISAIAH OLUFEMI AKEJU, J.C.A: I had the opportunity of reading before now the lead judgment of my learned brother, Uzo I. Ndukwe-Anyanwu, JCA just delivered.
I agree that there is merit in the appeal and I accordingly allow it. I abide by the order remitting the petition for trial by the Tribunal.
I make no order as to costs.
Appearances
William Ballantyne Esq.,For Appellant
AND
Julius O. Idiege Esq;
B. Oloyo Esq;
Barth A. Izato Esq;For Respondent
