ALL PROGRESSIVES CONGRESS v. SENATOR IYIOLA OMISORE & ORS
(2014)LCN/7524(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of November, 2014
CA/AK/EPT/GOV/203/14
RATIO
APPEAL: APPEAL AS OF RIGHT; WHEN SHALL AN APPEAL TO THE COURT OF APPEAL LIE AS OF RIGHT FROM THE DECISION OF THE GOVERNORSHIP ELECTION TRIBUNAL
It seems to me that none of these grounds of objection by the Respondents do in fact affect the competence of the Appellant’s Notice and Grounds of Appeal in all the circumstances of the case. For example, Section 246 (1) (b) (ii) of the 1999 constitution as amended truly gives a leeway to the Appellant to file an appeal on any decision (including interlocutory) decisions of a Gubernatorial election tribunal.
Thus, in the case of Awuse v Odili (2003) 18 NWLR (pt.851) 116 at 119, Ejiwunmi JSC supported the lead judgment of I. L. Kutugi JSC quoted the provision of Section 246 (1) (b) (ii) of the 1999 constitution as amended and said of the Section as follows:
“An appeal to the Court of Appeal shall lie as of right from the decision of the Governorship Election Tribunal on any question as to whether any person has been validly elected to the office of Governor”. “Though the word “any” when used as an adjective is defined in Longman Dictionary of the English Language thus:
“One or some indiscriminately, whichever is chosen”. It would appear that the word “any” qualifying “question” was deliberately used by the law makers to indicate that an appeal to the Court of Appeal was not limited only to hearing appeals only to whether any person has been validly elected to the office of Governor It follows therefore that the provisions of Section 246 (1) allows appeals to lie to Court of Appeal in respect of interlocutory decision of the Governorship Election Tribunals and the other tribunals named in that section of the constitution”.
Also in the case of Maduako v. Onyejiocha (2009) 5 NWLR (pt. 1134) 259 at 280 the Court of Appeal per Eko JCA held as follows:-
“By way of emphasis, I wish to add that the decision of the Supreme Court in Alhaji Atiku Abubakar & Ors v. Alhaji Umaru Musa Yar’ Adua & Ors SC.288/2007 of 25th January 2008 (reported in (2008) 4 NWLR (Pt.1078) 465 Per Niki Tobi JSC, leave no doubt in me that an aggrieved party has right of appeal against an interlocutory decision of an election tribunal. That right is a constitutional right by dint of Section 246 (1) (b) of the 1999 constitution, which is in pari materia with Section 233 (2) (3) of the constitution under which Atiku v. Yar’ Adua case was decided”. per. MOJEED ADEKUNLE OWOADE, J.C.A.
ELECTION PETITION; THE NATURE OF ELECTION PETITIONS
In Abubakar v Nasamu (No.2) (2012) 17 NWLR (Pt.1330) 523 at 582 it was held that procedural laws which cover election petitions being sui generia should not be interpreted rigidly so as to defeat substantial justice of the case. The Tribunal in our view cannot act on technicalities to defeat the course of justice, more so when the Applicant was equally granted leave to inspect the same electoral documents by the Tribunal—-“. per. MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
ALL PROGRESSIVES CONGRESS Appellant(s)
AND
1. SENATOR IYIOLA OMISORE
2. PEOPLES DEMOCRATTC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This interlocutory appeal arose from the decision/ruling of the Governorship Election Tribunal Holden at Osogbo (Coram Justices Suleiman Ambrusa, A. N. Awulu and Benson ogbu) respectively who sat on the Governorship election that held in Osun State on 9th day of August 2014. The Ruling was delivered on Friday the 12th day of September 2014.
In an ex parte motion dated 22nd day of August, 2014, the 1st and 2nd Respondents sought, inter alia, an order for inspection of all electoral materials used in the conduct a of the election held on the 9th day of August 2014. The said application was moved and granted on 27/8/2014. The petition of the 1st and 2nd Respondents was filed on 28/8/2014.
Meanwhile, the Appellant brought an application challenging the jurisdiction of the tribunal to hear and grant the 1st and 2nd Respondent motion outside pre-hearing period and without leave as the said application did not comply w1h the provisions of paragraph 47 (1) of the first schedule to the Electoral Act 2010 and urged the tribunal to set aside the said order.
The 1st and 2nd Respondents filed a counter-affidavit and written address to which the appellant filed further affidavit and written address. All these were adopted before the tribunal and the tribunal on 12th September, 2014 ruled on the said objection and dismissed the Appellant’s application.
Dissatisfied with the said Ruling, the Appellant filed a Notice of Appeal containing six (6) grounds of appeal on 30/9/2014.
The relevant briefs of argument for this appear are as follows:
i. Appellant’s brief of argument dated 15/10/2014 and filed on the same day.
ii.1st and 2nd Respondent’s Brief of Argument incorporating a Notice of Preliminary objection dated 23/10/2014 and filed on 24/10/2014.
iii. Appellant’s Reply to the 1st and 2nd Respondent’s Brief of Argument dated 27/10/2014 and filed on the same day.
Learned Senior Counsel for the Respondent’s submitted on the Respondent’s Notice of Preliminary objection that a careful perusal of grounds 1, 2, 3, 4, 5 and 6 of the Notice of Appeal border on mixed law and facts for which leave of the Tribunal or this Honourable Court must be first sought and granted:
That in grounds 1 and 2 the issue of filing is a matter of facts. Ground 3 he said is simply a note which is an Obiter Dictum to which no appeal can lie.
He referred to the cases of Idris V ANPP (2008) 8 NWLR (Pt.1088) 1 at 11; Abacha V. Fawehinmi (2000) 6 NWLR (Pt.660) 229.
Again, said Counsel, Ground 3 involves facts as it involves Appellant notice of 27/8/2014 and all the surrounding facts. That Ground 4 tells of Exhibit B which is an issue of fact raised in the said ground.
Learned senior counsel also submitted that Ground 5 relate to the issue of fact of the Tribunal’s findings on 27/8/2014 in a motion. And, that finally, Ground 6 is an issue of fact as it borders on the grant of an application which particulars are shown in particulars (ii) and (iii).
Learned Senior Counsel submitted that where no leave is sought as in this interlocutory appeal such is incompetent and must be struck out.
He referred to the cases of Audu V INEC (No.1) (2010) 13 NWLR (Pt.1212) 431 at 454 – 455; Ndayako v Mohammed (2005) 6 NWLR (Pt.920) 86 at 92.
He further submitted that interlocutory appeal in election petition as in the instant case must await the outcome of the substantive petition.
He referred to the case of Osunbor v Oshiomole & ors (2007) LRECN 79.
Counsel submitted that Grounds 1, 2, 3, 4, 5 and 6 of the Notice of Appeal no doubt involved an exercise of discretion by the Tribunal which is a matter of mixed law and facts. This is because it is settled law that the grant or refusal of a motion is an exercise of discretion by a Court or Tribunal.
He referred to the case of Excel Plastic Ind. Ltd v. FBN Plc (2005) 11 NWLR (Pt.935) 59 at 94.
Learned Senior Counsel for the Respondent submitted further that this appeal is incompetent as same was filed out of time. It is not in dispute that the Ruling was delivered on 12/9/14. It is not also in dispute that this is an interlocutory appeal which must be filed within 14 days from date of the Ruling. After referring to the provision of Section 24 of the Court of Appeal Act Cap. C. 36 LFN, Counsel argued further that it is not in dispute that the appeal was filed on 30/9/14. That, this is outside 14 clear days and rendered the appeal incompetent.
Furthermore, said Counsel, leave of the Tribunal or Court of Appeal must be sought for an interlocutory appeal pursuant to the provision of Section 14 of the Court of Appeal Act Cap c. 36. That in the instant case, no such leave was sought and granted and therefore the Notice of Appeal filed on 30/9/14 is incompetent and should be struck out. On another wicket, said Counsel, the appeal is also incompetent as the record of appeal was compiled and transmitted outside the 7 days period as required by the Court Practice Direction 2013.
He submitted that the Election Tribunal and Court Practice Direction, 2oL3 in Section 6 (b) provides only for 7 days for compilation of record in interlocutory appeal pursuant to Section 3, (a) (ii) of the same Court Practice Direction. That the use of shall in Section 6 (b) of the said practice Direction is mandatory and must be obeyed.
He referred to the cases of Minjibir & Anor v. Minjibir (2008) 3 LRECN 222; Folarin v Ibrahim (2003) 3 LRECN 332 at 340 – 341; Ishola v Ajiboye (1998) 1 NWLR (Pt.532) 71; Mohammed v. Kayode (1997) 11 NWLR (Pt.530) 584 at 598; Alase v. Olori-ilu (1964) 1 LRECN 390 at 397.
Therefore, said counsel, since the record was compiled and transmitted outside the 7 days period and is incompetent, it must be struck out.
In the premises above, we are urged to strike out the said 6 (six) grounds as incompetent and pro tan to the appeal will have nothing to stand on.
He referred to the case of Macfoy v UAC (1962) AC 52
Learned counsel for the Appellant contended that by the provision of Section 246 (i) (c) (ii) of the 1999 constitution as amended, an appeal to the Court of Appeal shall lie as of right from the decision of the Governorship Election Tribunal on any question whether any person has been validly elected to the office of Governor. He referred on the above to the cases of Awuse v Odili (2003) 18 NWLR (Pt.851) 116 at 169 and Maduako v. Onyejiocha (2009) 5 NWLR (Pt.1134) 259 at 280.
On the Respondent’s counsel contention that the Appellant’s Notice of Appeal was filed out of time in breach of Section 24 of the Court of Appeal Act Cap. C 36, LFN, Learned counsel for the Appellant submitted that the court of Appeal Act as to time for filing Notice of Appeal are not applicable in election petition cases. That this is why the Election Tribunal and Court Practice Directions 2011, made by the president of the court of Appeal was made pursuant to Sections 243, 285 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 145 of the Electoral Act 2010.
He submitted that the appropriate law in this instance is the Election and court practice Directions, 2011 which in paragraph 6 provides that:
“The Appellant shall file in the Registry of the Tribunal his notice and grounds of appeal within 21 days from the date of the decision appealed against”.
Appellant’s counsel submitted further that the provisions of the Court of Appeal practice Direction, 2013 are made to apply principally to criminal and civil appeals and not to election petition cases. That, in addition, the said practice Direction is not headed “The Election Tribunal and court practice Direction, 2013”. But, rather, it was headed “The Court of Appeal practice Direction 2013, and that nowhere in the said Court of Appeal Practice Direction, 2013 are Election Tribunal or Election petitions specifically mentioned.
Learned counsel submitted that the extant provision of paragraph 6 of the Election Tribunals and court Practice Directions 2011 regulates the time for filing Notice of Appeal in election petitions.
He referred to the case of Samuel v. Etubi (2011) LPELR 4200 at page 52 for the proposition that specific provisions of the law have precedent over general provisions. And that to further demonstrate the above view, that the Court Practice Direction 2013, specifically refers to the court below in:
(a) Paragraph 1 (ii) relating to “Interlocutory Appeals challenging the ruling of the court below on an interlocutory application”.
(b) Paragraph 3 (a) (ii) relating to “interlocutory Appeals challenging the ruling of the court below on an interlocutory application heard in that court”.
(c) Paragraph 6 (b) relating to the duty of the Registrar of the court below to not later than seven days after filing Notice of Appeal, to compile and transmit the record of appeal to the court”.
Learned counsel referred to the case of Prince Abubakar Audu v Captain Idris Wada & Ors SC.332/2012 delivered on the 10th day of September, 2012 per Clara Bata Ogunbiyi JSC to the effect that election matters are sui generis and submitted that rules regulating appeals in election petition cases are as contained in the Election Tribunals and Court Practice Directions 2011 whereof the Appellant has 21 days within which to give his notice of appeal. On the contention that the Appellant’s record of appeal was not compiled and transmitted within 7 days in line with paragraph 6 (b) of the Court of Appeal Practice Direction, 2013, Appellant’s Counsel further submitted that pursuant to paragraph 9 of the Election Tribunal and Court Practice Directions 2011, the secretary of the Tribunal has a period of 10 days within which he shall compile and serve the record of proceedings. That the record of proceedings in the instant case was compiled on the 8th of October 2014 and same was transmitted on the 9th day of October 2014. The required steps were, therefore taken within 10 days of filing the notice of appeal which was filed on 30/09/2014.
Counsel submitted that the provision of paragraph 6 (b) of the Court of Appeal Practice Direction 2013 which stipulates 7 days for the Registrar of the court below (and not the Secretary of the Tribunal) to compile and transmit the record of appeal cannot be applicable as same was meant for the Registrar of the court below and not the secretary of the Tribunal. In fact, the choice of language between the two practice Directions become most material and compelling to be taken into consideration by this court.
Learned counsel submitted that even if paragraph 6 (b) of the court of Appeal practice Direction 2013 were to be applicable, same cannot be interpreted in isolation. That it must be read together with paragraph 6 (h) which provides that.
“In pursuit of 6 (b) above, where at the expiration of seven (7) days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transmit the records of appeal in accordance with the preceding provisions of this practice direction, it shall become mandatory for the Appellant to compile the records of all documents and Exhibits necessary for his appeal and transmit same to court within seven (7) says after the registrar’s failure or neglect,’.
In effect, Counsel submitted that the Appellant has fourteen (14) days cumulatively within which to compile and transmit records of appeal to this honourable court. He concluded that the record of appeal transmitted on the 9th day of October 2014 to this honourable court was done within the period allowed by the cumulative effect of paragraph 6 (b) and (h) of the 2013 Court of Appeal Practice Direction.
There are three main grounds in the preliminary objection of the Respondents against the Notice and Grounds of Appeal of the Appellant in this case. The first is that leave of the Tribunal or this court was necessary as the grounds of appeal are of mixed law and facts. The second is that the appeal was filed out of time as it should have been filed within fourteen (14) days after the delivery of the judgment. And, the third is that the record of appeal was equally compiled out of time as it would have been transmitted not more than 7 days under the Election Tribunal and Court Practice Direction 2013.
It seems to me that none of these grounds of objection by the Respondents do in fact affect the competence of the Appellant’s Notice and Grounds of Appeal in all the circumstances of the case. For example, Section 246 (1) (b) (ii) of the 1999 constitution as amended truly gives a leeway to the Appellant to file an appeal on any decision (including interlocutory) decisions of a Gubernatorial election tribunal.
Thus, in the case of Awuse v Odili (2003) 18 NWLR (pt.851) 116 at 119, Ejiwunmi JSC supported the lead judgment of I. L. Kutugi JSC quoted the provision of Section 246 (1) (b) (ii) of the 1999 constitution as amended and said of the Section as follows:
“An appeal to the Court of Appeal shall lie as of right from the decision of the Governorship Election Tribunal on any question as to whether any person has been validly elected to the office of Governor”.
“Though the word “any” when used as an adjective is defined in Longman Dictionary of the English Language thus:
“One or some indiscriminately, whichever is chosen”. It would appear that the word “any” qualifying “question” was deliberately used by the law makers to indicate that an appeal to the Court of Appeal was not limited only to hearing appeals only to whether any person has been validly elected to the office of Governor
It follows therefore that the provisions of Section 246 (1) allows appeals to lie to Court of Appeal in respect of interlocutory decision of the Governorship Election Tribunals and the other tribunals named in that section of the constitution”.
Also in the case of Maduako v. Onyejiocha (2009) 5 NWLR (pt. 1134) 259 at 280 the Court of Appeal per Eko JCA held as follows:-
“By way of emphasis, I wish to add that the decision of the Supreme Court in Alhaji Atiku Abubakar & Ors v. Alhaji Umaru Musa Yar’ Adua & Ors SC.288/2007 of 25th January 2008 (reported in (2008) 4 NWLR (Pt.1078) 465 Per Niki Tobi JSC, leave no doubt in me that an aggrieved party has right of appeal against an interlocutory decision of an election tribunal. That right is a constitutional right by dint of Section 246 (1) (b) of the 1999 constitution, which is in pari materia with Section 233 (2) (3) of the constitution under which Atiku v. Yar’ Adua case was decided”.
From the above authorities, it becomes clear that the Appellant has a constitutional right to appeal without leave of court on any interlocutory decision of a Governorship Election Tribunal and that put paid to the objection by the Respondents that the Appellant needed to have sought leave of the tribunal or this court on his grounds of appeal on questions of mixed law and facts.
Furthermore, this appeal was not filed out of time. As rightly pointed out by the Learned counsel for the Appellant it is the Election Tribunal and court practice Direction 2011 and not the provision of Section 24 of the Court of Appeal Act, Cap. C 36 LFN that governs the time for filing Notice of Appeal in the instant case.
Paragraph 6 of the said Election Tribunal and court practice Direction 2011 provides thus:
“The Appellant shall file in the Registry of the Tribunal his notice and grounds of appeal within 21 days from the date of the decision appealed against”.
In the instance case, the Appellant’s notice of appeal was duly given within the said period and hence was validly issued,on the time for compiling and transmitting record, paragraph 9 of the Election Tribunal and Court Practice Directions 2011 says that the secretary of the Tribunal shall within a period of not more than 10 days of the receipt of the notice of appeal, cause to be compiled and served on all the parties, the record of proceedings.
In the instant case, the record of proceedings was compiled on the 8th of October 2014 and transmitted on the 9th of October 2014. All the required steps were thus taken within 10 days of filing the notice of appeal which was filed on 30/09/2014.
By the above, each of the grounds of objection to the Appellant’s Notice of Appeal by the Learned senior counsel for the Respondents fails.
Accordingly, the Notice of preliminary objection by the Respondents is overruled and dismissed.
Learned Counsel for the Appellant nominated three (3) issues for determination. They are:
1. Whether the tribunal was right in its interpretation of Section 151 (1) and paragraph 47 (1) of the first schedule to the Electoral Act, 2010 (as amended) in hording that the 1st and 2nd Respondents needed not seek leave of the Tribunal to move the said motion same having been filed before a petition was instituted (Grounds 1, 2 and 4 of the Notice of Appeal).
2. Whether the Tribunal did not err in law in holding that even where leave was necessary before the 1st and 2nd Respondent’s application could be moved, the prayer I of the Appellant which was abandoned in their written address was sufficient to meet the requirement for leave (Ground 3 of the Notice of Appeal).
3. Whether the Tribunal was right in deploying paragraph 53 (1) of the first schedule to the Electoral Act, 2010 to remedy the fatal error committed by the 1st and 2nd Respondents and thereafter characterizing the Appellant’s objection as mere technicalities (Grounds 5 and 6 of the Notice of Appeal).
The 1st and 2nd Respondents formulated a singular issue for the determination of this appeal as follows:
Whether having regards to the combined provision of Section 151 (1), paragraph 45 (1) and 53 (1) of the 1st schedule to the Electoral Act 2010 (as amended) the learned tribunal was right in granting 1st and 2nd Respondents application. (Encompassing grounds 1, 2, 3, 4, 5 and 6 of the Notice of Appeal).
This appeal will be decided on the issues formulated by the Appellant.
On issue 1, Learned Counsel for the Appellant submitted that the Honourable Tribunal was wrong in its interpretation of Section 151 (1) and paragraph 47 (1) of the Electoral Act 2010 (as amended).
He argued that Rules of procedure for Election Petition are contained in the first schedule to the Electoral Act, 2010 (as amended). That, Section 151 of the Electoral Act, 2010 is the substantive provision which only authorizes the making of an order for inspection by the Tribunal but does not stipulate the time for moving same, the time for hearing the motion, the manner of making the motion and or other procedural steps required to be observed by an Applicant.
He submitted that it is paragraph 47 of the first schedule to the Electoral Act, 2010 that regulates the time for moving any motion before the Tribunal, the manner of making the motion and the need to seek leave before moving the motion where same is outside the pre-hearing session.
Learned counsel reproduced the provision of paragraph 47 (1) of the 1st schedule to the Electoral Act and submitted that the provision casts certain responsibilities on a party seeking to move a motion outside, which are:
(a) The Applicant must show that there are extreme circumstances necessitating the motion being brought outside the pre-hearing session;
(b) The Applicant must seek leave of the tribunal to move the said motion.
Counsel submitted that the 1st and 2nd Respondents did not seek leave of the Tribunal to move the said application outside the pre-hearing session. That it is the law that an Applicant in a motion must seek leave of the tribunal before moving an application outside the pre-hearing session whether such an Applicant has an extant petition before the Tribunal or he is just an intending Petitioner as paragraph 47 does not make any distinction between an Applicant who is an existing Petitioner or an intending petitioner so far the application is being made before the Election Tribunal or court pursuant to the holding of an election. The dichotomy, sought to be made by the Tribunal, said Counsel is without basis in law.
Appellant’s counsel referred to the cases of Egbuchunam v Aideyan (2012) LPELR – 7996 (CA); (1992) 8 NWLR (Pt.216) 528; Orjiekwe v Orjiekwe (2002) 6 NWLR (Pt.762) 31 at 32; Osulu v Osulu (1998) 1 NWLR (Pt.535) 532; Onyari v Okpara (2001) 1 NWLR (Pt.694) 282 at 302 and submitted that Rules of court are meant to be obeyed and that a court cannot recreate another procedure by converting a mandatory procedure to another with a view to making a case for a party.
He submitted that the provisions of Section 151 (1) of the Electoral Act, 2010 and paragraphs 47(1) of the 1st schedule to the Electoral Act 2010 are complementary to each other the first being substantive while the second is purely procedural and are to be applied to all proceedings before the tribunal irrespective of whether it is before or after the presentation of the petition.
The only exception to moving an application outside the pre-hearing session is where it is proven that there is a case of extreme circumstance and the leave of tribunal or court must be obtained to move the application.
Learned Counsel submitted further that the holding of the Tribunal is a technical way of dispensing with a mandatory condition precedent as contained in the provision of paragraph 47 (1) of the First Schedule to the Electoral Act, 2010 which requires an Applicant to obtain leave to move a motion outside the pre-hearing session. This, he said is mandatory as the operative word used is “Shall”.
Counsel referred to the cases of Ukangwu v Pitt. (2008) 9 NWLR (Pt.1093) 583 at 592; Bayero v Mainasara & sons Ltd (2006) 8 NWLR (pt. 982) 391 at 423 and submitted that the provision of paragraph 47 (1) of the first schedule to the Electoral Act requires strict compliance and same cannot be waived by reliance on Section 151 (1) of the Act as the latter only provides for substantive power to order inspection but the procedure by which the order is to be obtained is regulated by paragraph 47 of the schedule to the Act.
Appellant’s Counsel further referred first to the cases of Ngere & Anor v. Okuruket XIV & 3 Ors (2014) 5 SC (Pt.11) 1 at 30; Otu v A.C.B. (2008) vol. 3. MJSC 191 at 206 – 207; Ume v. Nigeria Renowned Trad. Co. Ltd (1997) 8 NWLR (PT.516) 344 at 353 and secondly to the case of Nwankwo v. Yar’dua (2010) 12 NWLR (pt. 1209) 518 at 589 to show that the word “shall” in law is mandatory and has been so interpreted in relation to paragraph 47 (1) of the schedule to the Electoral Act which is in pari materia with paragraph 6 (1) of the Election Tribunal and court Practice Directions, 2007.
He urged us to resolve issue 1 in favour of the Appellant.
Learned senior counsel for the Respondents submitted on issue 1, that it is not in dispute that the 1st and 2nd Respondents application was moved and granted on 27th August 2014. That it is also not in dispute that the 1st and 2nd Respondents election petition was filed on the 28th day of August 2014. Therefore, he said, their motion for inspection of all electoral material was moved and granted before the election petition was filed.
He submitted that the law governing this kind of application before any election petition is filed is Section 151 (1) of the Electoral Act 2010 (as amended).
That the argument of the Appellant in paragraphs 3.1-3.14 of his brief is legally preposterous. This, he said is because no petition has been filed yet. The said paragraph 47 (1) only comes into play when a petition has been filed, therefore before a petition is filed, any motion brought pursuant to Section 151 (1) of the Electoral Act is not governed by paragraph 47 (1) of the 1st schedule.
Learned Senior Counsel submitted further that there are three phrases envisaged under Section 151 (1) of the Electoral Act, 2010 (as amended).
(i) Motion or order for the purpose of instituting an election petition;
(ii) An order for maintaining an election petition or
(iii) An order for defending an election petition.
Counsel argued that it is instructive to note that the use of “Or” between maintaining and defending envisage a Petitioner and Respondent where a petition is already instituted. It is disjunctive and exclusive of the first limb of maintaining. He referred to the case of Atiku Abubakar v Yar’ Adua (2009) 19 NWLR (pt.1120) 1 at 83 – 84 on the disjunctive use of the word “Or”.
He submitted that after instituting, the Petitioner will then invoke the provision of paragraph 47 (1) in his application before the Tribunal either to hear it before the pre-hearing session upon extreme urgency prior or during pre-hearing session. And, that the same goes for the Respondent who is defending.
Counsel submitted that the first phrase is “instituting” which was at play in this matter on 27th August, 2014 before the petition was filed on 28/8/2014. Therefore no leave is needed and none envisaged during the pre-hearing session.
He referred to the cases of Aregbesola V Oyinlola (2009) 14 NWLR (pt.1162) 429 at 477 – 478; Hon. Bashir Adeyela v. Olajide Adeyeye & Ors (unreported) Appeal No. CA/I/EPT/HA/73/2008 delivered on 24/03/2010.
He submitted that in all the cases cited by the Appellant there was none on instituting an election petition, which is the first phrase of the three phrases distilled above.
He further submitted that the learned tribunal was right at pages 60-70 of the record having regards to the circumstances of the case under Section 151 (1) of the Electoral Act, 2010 (as amended). That in any event, paragraph 47 (1) will be at sleeping bay when the provision of Section 151 (1) of the Electoral Act as to instituting not maintaining or defending an election petition is at play.
He urged us to disregard the submission in paragraphs 3.18 to 3.31 of the Appellant’s brief and all the cases cited as they are inapplicable to the first limb of Section 151 (1) for the purpose of instituting an election petition.
Learned counsel for the Appellant furnished a reply to the above arguments in his Appellant’s reply brief but the arguments therein are not different from what he had earlier on stated in his Appellant’s brief of argument.
In deciding Appellant’s issue 1 it is only appropriate to restate the relevant provisions of the Electoral Act 2010 (as amended) as well as that of the first schedule to the Electoral Act. In this respect and for ease of reference I will reproduce the provisions of Section 145 (1) 151 (1) of the Electoral Act 2010 (as amended) and paragraph 47 (1) of the first schedule to the Electoral Act.
Section 145 (1)
The rules of procedure to be adopted for election petitions and appeals arising there from shall be as set out in the first schedule to this Act.
Section 151 (1)
An order for an inspection of a polling document or an inspection of a document or any other packet in the custody of the Chief National Electoral commissioner or any other officer of the commission may be made by the election tribunal or the court if it is satisfied that the inspection is required for the purpose of instituting, maintaining or defending an election petition.
Paragraph 47 (1)
No motion shall be moved and all motions shall come up at the prehearing session except in extreme circumstances with leave of tribunal or court.
I am convinced that a holistic reading of the provisions of Sections 145 (1) 151 (1) of the Electoral Act 2010 (as amended) and paragraph 47 (1) of the first schedule clearly shows that the provision of paragraph 47 (1) would only apply to “election petitions” and would therefore not apply to a motion brought in pursuant to the provision of Section 151 (1) prior to the filing of an election petition.
In the instant case, the 1st and 2nd Respondent’s application in pursuant of the provision of Section 151 (1) was filed on 22nd August 2014. Meanwhile, the petition of the 1st and 2nd Respondents was fired on 28th day of August 2014.
In simple parlance, to borrow the expression of the Learned Senior counsel for the Respondents, “their motion for inspection of all electoral material was moved and granted before the election petition was filed”
I do agree with the Learned Senior Counsel to the 1st and 2nd Respondents that the cases cited by the Learned Counsel for the Appellant including the case of Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt.1209) 518 at 519 are not applicable to the facts
and circumstances of the instant case.
In these circumstances and in answer to Appellant’s Issue 1, the Tribunal was right in its interpretation of Section 151 (1) and paragraph 47 (1) of the First Schedule to the Electoral Act 2010 (as amended) in holding that the 1st and 2nd Respondents needed not seek leave of the Tribunal to move the said motion same having been filed before a petition was instituted.
Issue No. 1 is resolved against the Appellant.
On issue 2, Learned counsel for the Appellant noted that at pages 69 – 70 of the Record of Appeal, the Tribunal held that:
“We further noted that even in a circumstance where the leave of the Tribunal was required before the Ex parte application filed on 22/8/2014 was moved, prayer one of the application had adequately satisfied that requirement. For avoidance of doubt we here under reproduce the prayer –
“An order granting leave to the Applicants to seek the prayers contained hereunder, before the presentation of the substantive petition”.
Counsel submitted that the dictum of the Tribunal quoted above is a departure from the state of the facts and the law. That the said prayer one of the 1st and 2nd Respondents was not made for the purpose of hearing the application outside the pre-hearing session. Furthermore, the said prayer one was clearly abandoned in the written address of the 1st and 2nd Respondents.
Learned counsel referred to the case of Sowemimo v State (2004) 11 NWLR (Pt.885) 515, 523 at 524 and submitted that the situation is similar to abandonment of issues on appeal and that any prayer contained in a motion but not addressed in a written address is deemed abandoned. He submitted that it is therefore not available to the tribunal to rely on the said prayer which has been abandoned to hold that the prayer as contained on the motion papers was sufficient to meet the requirement of seeking leave to move same outside the pre-hearing sessions.
In the said written address, said counsel, no issue was formulated by the 1st and 2nd Respondents on whether the motion could be heard outside the pre-hearing session thereby rendering same abandoned. No court of law or Tribunal said Counsel, is a Father Christmas to grant a prayer that is abandoned in a written address by an Applicant who never formulated an issue on the relevant prayer which is germane to the application.
He referred to the cases of Eyigebe v Iyaji (2013) 11 NWLR (Pt.1365) 407 at 422, Edibiri V Edibiri (1997) 4 NWLR (Pt.498) 165 at 176 on the point that the court is not a charitable institution. A relief that is not addressed in a written address, said Counsel, is as good as not being supported by a written address. It is as good as abandoned.
Learned Counsel submitted that the need to prove that the 1st and 2nd Respondent’s motion ex-parte ought to be heard outside the pre-hearing session due to an extreme circumstance was fundamental and central to the exercise of jurisdiction to grant same by the Tribunal. It is a distinct relief to be sought that an application ought to be heard outside the pre-hearing session. That this fundamental requirement was ignored by their Lordships of the Tribunal thereby acting without jurisdiction and the order granted thereof was a nullity as held in Ngere & Anor v Okuruket XIV & 3 Ors (2014) 5 SC (Pt.11) 1 at 30. Also, that failure to declare the said order a nullity is an act done in excess of jurisdiction and is therefore a nullity in itself.
On issue 2, I do not accept the contention of the Learned counsel for the Appellant that the Tribunal erred in law in holding that even where leave was necessary before the 1st and 2nd Respondents applications could be moved, the prayer 1 of the Appellant which was abandoned in their written address was sufficient to meet the requirement for leave. There are two related reasons for my position on this. The first is that whether or not the 1st and 2nd Respondents alluded to their prayer 1 in their written address, the said prayer was nevertheless granted by the Honourable Tribunal in its Ruling on inspection of documents delivered on 27th August, 2014. The second is that the present appeal does not relate to the Ruling of 27th August, 2014 but rather on the Ruling of 12th September, 2014 which was the Ruling refusing to declare the Ruling of 27th August 2014 a nullity or to set it aside. The argument of the learned Counsel for the Appellant that prayer 1 was abandoned would only have been relevant in my opinion if it were an appeal on the Ruling of 27th August, 2014.
In the circumstance, Issue No. 2 is also resolved against the Appellant.
On issue 3, Learned Counsel for the Appellant submitted that the Tribunal, at pages 70 – 71 of the Record of Appeal held that the provision of paragraph 53 (1) of the 1st schedule can cure non-compliance with the provision of paragraph 47 (1) of the Electoral Act, 2010. He argued that the provision is of general application which may only have an exception in the case of paragraph 18 (1) dealing with filing of application for pre-hearing sessions.
He referred to the cases of Okpa v. Irek (2011) LPELR – 4249 and Agbakwuru & Anor v. Igbokwe (2011) LPELR – 4249
Learned Counsel for the Appellant reiterated their position that the extant provision of paragraph 47 (1) of the first schedule to the Electoral Act is mandatory and carries the implication that non-compliance therewith renders the proceeding liable to be set aside.
He submitted the Appellant’s prayer, was to set aside the order of the Tribunal by which the Tribunal granted the 1st and 2nd Respondents the order to inspect electoral documents in custody of the 3rd Respondent for failure to obtain leave to move the said motion outside the pre-hearing session. That paragraph 53 (1) of the first schedule to the Electoral Act contemplates setting aside proceeding where same is irregular as in the instant case in which condition precedent to obtaining an order was not obtained.
Counsel submitted that paragraph 53 (1) of the First Schedule to the Electoral Act 2010 only attempts to save a proceeding from being rendered void where there is noncompliance with the provisions of the schedule and does not prevent a proceeding from being irregular. That the implication is that the Act recognizes the right of a party to make an application for setting aside a proceeding and the power of the Tribunal to set aside a proceeding for being an irregularity provided the application is made within a reasonable time and when the party making it has not taken any fresh step in the proceeding after knowledge of the defect.
He submitted that in the instant case, the provision of paragraph 53 (1) cannot save the 1st and 2nd Respondents from the consequence of their deliberate ignorance of the requirement of paragraph 47 (1) of the first schedule. That the fatal error of not seeking leave to move the motion for inspection outside the pre-hearing session cannot be characterized as mere irregularity and the application of the Appellant to set the order obtained cannot be addressed as mere reliance on technicalities.
Counsel further submitted that even assuming without conceding that the paragraph 53 applies, it relates only to acts or omissions done in a proceeding after the institution of the petition and not that prior to the institution of the petition. The import of which is that any proceeding prior to the institution of the petition is excluded from the ambit of Order 53 (1) of the First Schedule to the Electoral Act 2010 (as amended).
He referred to the case of Awuse v Odili (2004) 8 NWLR (Pt.876) 481 at 513.
In defence of the position of the Tribunal on issue 3, Learned Senior Counsel for the 1st and 2nd Respondents submitted that if any, the irregularity raised by the Appellant is cured by the provision of paragraph 53 (1) of the 1st schedule to the Electoral Act 2010.
He submitted that the application was to institute an election petition. Under Section 151 (1) of the Electoral Act 2010 (as amended) and therefore any objection to this is mere technicality, the tribunal was therefore on strong wicket to invoke the provision of paragraph 53 (1) of the 1st Schedule. The provision of paragraph 53 (1) of the first schedule reads thus:
“53 (1)Non-compliance with any of the provisions of this schedule, or with a rule of practice for the time being operative except otherwise stated or implied shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular or amended or otherwise dealt with in such manner and on such terms as the Tribunal or court may deem fit and just”.
It seems to me in relation to issue 3 that paragraph 53 (1) provides a discretionary saving clause for the Tribunal to decide what path to take in the event of its acts of omissions on non-compliance with ANY of the provisions of the First Schedule. The Tribunal was therefore not wrong in dealing with the Appellant’s application for setting aside to make reference and/or rely on the said provision of paragraph 53 (1) as a saving clause in the event of an error of non-compliance purportedly committed by the Tribunal.
In this respect, I believe that the Tribunal’s discretion not to set aside the Order made on 27/8/2014 was exercised judiciously and judicially when it held at pages 70 – 71 as follows:
“We further find paragraph 53 (1) of the 1st schedule to the Electoral Act, as amended which provides that non-compliance with any of the provisions of the first schedule is an irregularity relevant in saving the order of the Tribunal made on 27/8/2014 in favour of the 1st and 2nd Respondents.
In Abubakar v Nasamu (No.2) (2012) 17 NWLR (Pt.1330) 523 at 582 it was held that procedural laws which cover election petitions being sui generia should not be interpreted rigidly so as to defeat substantial justice of the case. The Tribunal in our view cannot act on technicalities to defeat the course of justice, more so when the Applicant was equally granted leave to inspect the same electoral documents by the Tribunal—-“.
Issue No. 3 is resolved against the Appellant.
The three (3) issues in this appeal have been resolved against the Appellant. The appeal lacks merit and it is accordingly dismissed.
N30,000.00 costs is awarded to the 1st and 2nd Respondents against the Appellant.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read the lead Judgment dismissing the appeal of the Appellant herein, and I agree wholly that this appeal lacks merit. This appeal stems from the dissatisfaction of the Appellant against a Ruling granting leave to the 1st Respondent, who was an intended petitioner, to inspect and obtain certified copies of the Electoral Documents used at the Osun State Governorship Election held on 9th August, 2014.
The said Ruling delivered on 12th September was made pursuant to an exparte application filed, moved and granted on 27-8-14.
I have no difficulty in agreeing that paragraph 47 (1) Electoral Act, 2010 on the face of it applies only to a situation where an election petition had been instituted; in that wise “all Motions shall come up at the pre-hearing sessions, except in extreme circumstances with leave of the Tribunal or court.”
Indeed, even for the purpose of argument, it is said that “a period before the filling of an election petition” is “a period outside the pre-hearing session and leave has to be sought,” this may be met with the argument that reference to the words “pre-hearing session” therein in S.47 (1) connotes that its applicability relates to a “pending” election petition, which is the only act or fact that provokes the period called “pre-hearing session.”
The thoughts of the learned senior counsel for the Respondent in that respect was correct. What is more, paragraph 151 (1) of the Electoral Act 2010, which gives the Tribunal the sundry powers and discretion to order inspection of materials does not, in my view, de-limit the stage when it may make such an order, more so that it includes prior to the petition, during the subsistence and at the continuation thereof of the petition.
It is also not difficult to appreciate that every application, whether on Notice or ex-parte as in the instant case leading to this appeal is one that seeks the indulgence of a court or a Tribunal.
The word “Motion” is defined in the Blacks Law Dictionary 9th Edition, By Bryan A. Garner @ page 1108 thereof as follows:
“A written or oral application requesting a court to make a specific ruling or order.”
An ex-parte motion as was made was in any case still a motion and also has the inherent fact that it seeks a specific order or Ruling thus constituting it into the seeking of leave even. This, Ipso facto,satisfies the need for “leave’ if it were desirable or compulsory. It had by its grant, therefore been granted thereof. Head or tail, the argument in respect of “leave” cannot succeed.
What is more, a prayer is not “a ground of Appeal” or “an Issue”, and the doctrine of abandonment is therefore inapplicable to same. The leave granted to inspect materials was proper as it was necessary to obtain certified true copies by which an election petition may be hinged. This procedure, is to my mind a good one towards the speedy adjudication of electoral matters -so as to avoid time wasting,in the course of the petition by applying for certified true copies of Public Electoral Documents to maintain or defend petitions. It is good practice for petitions to obtain all materials before hand if need be, as election petitions are extra-ordinary processes for the good of the polity and should not be unduly protracted such that governance and socio-economic development and peace are jeopardised by same.
The ample provisions of paragraph 53 (1) of the First Schedule to the Electoral Act, 2010 is such a saving provision crafted responsibly and is put in our Electoral law to ensure that irregularities, if any, in the prosecution of Electoral matters do not hamper or hump string the will of the electorates acting through either a petitioner or Respondent.
It is in consonance with the phraseology that election petitions are sui generis and must be so seen. The avoidance and departure from the Cabin of technicality by both the drivers and passengers in the modern train of Justice, is still the accepted practice.
If I or one may ask what injustice or prejudice has been caused to the Appellant? I cannot see.
In the same vein, the arguments relating to the grounds of appeal being of law or mixed law and fact and without leave been sought and granted to make those grounds of appeal valid do not fly, in the face of the fact that election petitions are sui generis and the procedural principles of practice may not be strictly applied to defeat substantial Justice, more so when the appeal was not on a final decision of the Tribunal on a mixed law and fact. It should also be reasoned that the Respondents had no role whatsoever, in contesting an application to obtain materials to institute a petition, as they would have no locus standi to prove how they will be adversely affected by such an application at that stage.
There is no doubt in my mind that paragraph 47 (1) of the 1st schedule is intended to hasten election petitions after its institution and does not derogate/abrogate the existence of the specific provisions of S.151 (1) of the Amended Electoral Act 2010.
In the A. G. Lagos State Vs Attorney General, Federation 2014 9 NWLR Pt.1412, page 217 @ 275, Fabiyi, JSC in his Judgment stated clearly as follows:
“The express mention of one thing in a statutory provision automatically excludes any other stipulation which would otherwise have been applied by implication. See Ogbunaya Vs. Okudo (1979) 6 – 9 SC 32 see DPP V. INEC (1999) 11 NWLR (Pt.626) 200.”
In conclusion, therefore, I hold that the right of appeal in the interlocutory Ruling was extant and uncanalysed under the constitution of Nigeria and the authority of Awuse Vs Odili (2003) 18 NWLR (Pt. 851) 116 @ 169, and cannot be affected by any technicality; and furthermore, under the provisions of paragraph 151 (1) of the 1st schedule to the Electoral Act 2010, the Motion Exparte and its grant was proper and saved, in the event of any challenge by paragraph 53 (1) of the 1st schedule to the same Act.
Appeal against the motion and its grant is dismissed for want of merit.
For the aforesaid and the comprehensive reasoning in the Lead Judgment which I agree with, I, too, dismiss this appeal and abide with the consequential order made in the said Judgment as relating to costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read before now the draft of the Judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA.
He has exhaustively dealt with all the issues for determination. I have nothing more to add.
The application for leave to inspect the electoral materials was filed on the 22nd August, 2014 before any petition was filed. Leave to hear the application for inspection of the electoral materials outside pre-hearing session provided for under paragraph 47 (1) of the 1st schedule to the Electoral Act should not have been sought.
For the reasons ably demonstrated in the lead judgment, I too dismiss the appeal. I abide by the order as to costs.
Appearances
Olayinka OkedaraFor Appellant
AND
Afolabi Fashanu (SAN) for the 1st & 2nd RespondentsFor Respondent
