SEN. NKECHI NWAOGU & ANOR v. CHIEF THEODORE A. ORJI & ORS (2019)

SEN. NKECHI NWAOGU & ANOR v. CHIEF THEODORE A. ORJI & ORS

(2019)LCN/13738(CA)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of August, 2019

CA/OW/EPT/SEN/4/2019

JUSTICES

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria

Between

1. SEN. NKECHI NWAOGU
2. ALL PROGRESSIVES CONGRESS Appellant(s)

AND

1. CHIEF THEODORE A. ORJI
2. INDEPENDENT NATIONAL ELECTORAL COMISSION
3. PEOPLES DEMOCRATIC PARTY Respondent(s)

RATIO

WHETHER OR NOT APPEALS LIE TO THE COURT OF APPEAL IN INTERLOCUTORY DECISIONS OF THE ELECTION TRIBUNALS

Now, by the provisions of Section 246 (1) (b) of the Constitution, appeals do not lie to the Court of Appeal in interlocutory decisions of the election tribunals. However, I hold that in this case the Ruling of the Tribunal that has generated this appeal is not an interlocutory decision, but rather a final one, as it has permanently determined the rights of the Appellants and the 2nd and 3rd Respondents as far as the petition before it is concerned. See ODEJIDE & ORS VS. AMCON (2017) LPELR?42005 (CA) pages 10-11 paras F-F; N.A.O.C. LTD. VS. NKWEKE (2010) ALL FWLR (PT.845 1 at 26-27; IGUNBOR VS AFOLABI (2001) FWLR (PT.59) 284 and the recent decision of this Court, unreported, in Appeal No. CA/OW/EPT/FHA/10/19 delivered on 1/8/2019. PER ANDENYANGTSO, J.C.A.

WHETHER OR NOT A PETITIONER NEEDS TO FILE MULTIPLE APPLICATIONS FOR ISSUANCE OF PRE-HEARING NOTICES WHERE THERE ARE MORE THAN ONE RESPONDENT

There are a plethora of authorities to the effect that the Petitioner need not file multiple applications for issuance of pre-hearing notices where there are more than one Respondent. Filing of one application at the close of pleadings suffices for all the Respondents. See UWAJUMOGU VS. NNEJI & ORS (2017) LPELR ? 41435 (CA); LABOUR PARTY VS. BELLO (2016) LPELR ? 40848 (CA); ONYERERI VS. NWADIKE & ORS (2015) 8 CAR 117.
It is also trite that where there are more than one Respondent, pleadings will not close until the expiration of the time limited in the 1st Schedule to the Electoral Act, 2010 (as amended) especially paragraph 16 thereof. It has been held even by the apex Court that a petitioner need not file more than one application for the pre-hearing, see SA?EED VS YAKOWA (2013) 7 NWLR (PT.1352) @ 164 ? 165 on the purpose of pre-hearing notices.
In the recent decision of this Court, in Appeal No. CA/OW/EPT/SHA/02/2019 (unreported) delivered on 19th July 2019 this Court held:
?It should also be noted that Courts are enjoined to ensure that Election Petitioners are heard as a matter of public policy, such that unless there are compelling reasons, the Court should guard against terminating the hearing of election matters in limine Per Haruna Simon Tsammani JCA. PER ANDENYANGTSO, J.C.A.

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the National and State House of Assembly Election Tribunal, (to be referred to as ?the Tribunal? for short) Umuahia, Abia State in Petition No. EPT/AB/SEN/10/2019, delivered on 27th May, 2019.

FACTS:
The 1st Appellant and the 1st Respondent contested the senatorial election on 23rd February, 2019 for the National Assembly under the platforms of the All Progressives Congress (2nd Appellant) and the Peoples Democratic Party (3rd Respondent) respectively.

The 2nd Respondent (INEC) which organized and conducted the election returned the 1st Respondent, Chief Theodore A. Orji, as the winner of the said election.

?Dissatisfied with the outcome of the election, the Appellants filed an election Petition No. EPT/AB/SEN/10/2019 at the National and State House of Assembly Election Tribunal at Umuahia, Abia State. The Petition was served on the Respondents on different dates, who also filed their replies to the Petition on different dates. The Petitioners filed and served their respective replies to the replies

of the Respondents on different dates.
The 1st Respondent was the first to file his reply and the Petitioners filed their last reply on 13/5/19.

With all pleadings filed, the Petitioners then applied for the issuance of pre-hearing notice in compliance with the provisions of Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended). The petition was then fixed for pre-hearing on 14/5/19, on which date the Tribunal suo motu raised the issue of the competence of the application for pre-hearing notice made on the 14/5/19, on the ground that separate applications for pre-hearing notice ought to have been made by the Petitioners for each of the Respondents, since the replies on each of the Respondents was filed and served on different dates.

?Counsel to the parties thereafter addressed the Tribunal during which the Counsel to the Petitioners informed the Tribunal that the pleadings closed on 13/5/2019, the day the Petitioners filed and served their last reply on the Respondents. The Petitioners? Counsel urged the Tribunal to defer its ruling on the issue to the time of judgment as stipulated in the provisions of

Section 285(8) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (henceforth in this judgment to be referred to as ?the Constitution?) and Paragraph 12(5) of the 1st Schedule to the Electoral Act, 2010 (as amended).

However, the Tribunal did not grant the prayers of the Petitioners? Counsel but proceeded and ruled on 27/5/19 that the application for pre-hearing made by the Petitioners on the 14/5/19 was only competent against the 1st Respondent, but was incompetent against the 2nd and 3rd Respondents and thereafter dismissed the petition against the 2nd and 3rd Respondents, hence the generation of this appeal. The Ruling is on pages 213-214 Vol.3 of the Record. The Notice of Appeal, containing 3 grounds, was filed on 3/6/19 and is contained on pages 2145-2151 Vol.3 of the Record. Henceforth I shall be addressing the Petitioners and Respondents respectively as the Appellants and Respondents, giving their appropriate numbering.

The 3 grounds of appeal, shorn of their particulars are as follows:
GROUND ONE:
The Tribunal erred in law when it decided to give its decision on the issue it raised rather than suspend its

ruling and deliver it at the stage of final judgment.
GROUND TWO:
The Tribunal erred in law when it held that the application for pre-trial made by the Petitioners/Appellants on 14/5/19 was incompetent in respect of the 2nd and 3rd Respondents.
GROUND THREE:
The Tribunal erred in law when it struck out/dismissed the Petition against the 2nd and 3rd Respondents.

From the 3 grounds, the Appellants in their Brief of Argument, filed on 14/6/19, distilled three issues for determination of this appeal. They are:
i. ?Whether the Tribunal was right when it decided to give its decision on the issue it raised rather than suspend its ruling and deliver it at the stage of final judgment ? Ground 1 of the Notice of Appeal.
ii. Whether the Tribunal was right when it held that the application for pre-trial made by the Petitioners/Appellants on 14/5/19 was incompetent in respect of the 2nd and 3rd Respondents and went on to dismiss the petition as against the 2nd and 3rd Respondents ? Ground 2 of the Notice of Appeal.
iii. Whether the Tribunal was right when it struck out/dismissed the Petition against the 2nd and 3rd

Respondents ? Ground 3 of the Notice of Appeal.?

The 1st, 2nd and 3rd Respondents filed their Briefs of Arguments on the 24/6/19, 27/6/19 and 21/6/19 respectively.

The Appellants filed Replies to the 1st and 2nd Respondents? Briefs on 1/7/19 while that of the 3rd Respondent was filed on 3/7/19.

The 1st Respondent filed a motion on notice on 24/6/19 opposing the hearing of the appeal under Order 10 Rule 1 of the Rules of this Court 2016 and under the inherent jurisdiction of this Court. The 3rd Respondent filed a Preliminary Objection on 4/7/19.

All the above processes were adopted by the various Counsel on 18/7/19 when the appeal was heard.
I shall begin the consideration of this appeal with the preliminary objections.

The 3rd Respondent in its Notice of Preliminary Objection urged us to strike out the Notice of Appeal filed on 3rd June, 2019 and/or strike out grounds 1, 2 and 3 of the Notice of appeal, on the following grounds:-
?1. That the Appellants did not seek and obtain the leave of Tribunal before filing the Notice of Appeal as the Notice of Appeal is on the interlocutory decision of the

Honourable Tribunal which the Appellant (sic) has no right of appeal under Section 246(1)(b) of the 1999 Constitution (as amended).
2. That Grounds 1, 2 and 3 contained in the Notice of Appeal are all grounds of mixed law and facts which require leave of the Court or Tribunal pursuant to Section 241 of the 1999 Constitution (as amended) and such leave was not first sought and obtained by the Appellants.
3. By reasons of (1) and (2) above, the notice of appeal is incompetent and the Honourable Court is stripped of the jurisdiction to entertain this appeal.
4. The appeal ought to be struck out as incompetent.?

In the preliminary objection, the 3rd Respondent raised the issue:
?Whether the notice of appeal filed without leave of the Honourable Tribunal in respect of Interlocutory Appeal over an interlocutory order of the tribunal and based on ground of mixed law and facts is competent and valid.?

?O. O. Nkume Esq. Learned Counsel for the 3rd Respondent, first submitted that the Appellants have no right of appeal in that the Ruling of the Tribunal was an interlocutory one, against which the Appellants cannot appeal as of

right under Section 246(1)(b) of the Constitution except with the leave of the Tribunal, failure of which has rendered the appeal incompetent, relying on OKON VS. BOB (2004) 1 NWLR (Pt.854) 378 at 394 paras C?H and AMADASUN VS. UME (2007) 13 NWLR (Pt.1051) 219.

Secondly, that the notice and grounds of Appeal were of mixed law and facts which require leave of either the Honourable Tribunal or of this Court, otherwise the appeal is incompetent, relying on ASOGWA VS P.D.P. (2013) 7 NWLR (Pt.1353) 250 paras F?H and that Grounds 1, 2 and 3 being grounds of mixed law and facts, are incompetent, without the leave of Court, despite their being described as ?error in law?, relying on UTOO VS. APC & ORS (2018) LPELR?44352 (CA).

In conclusion, Nkume Esq. urged us to strike out this appeal or alternatively strike out Grounds 1, 2 and 3 of the Notice of appeal as incompetent, being grounds of mixed law and facts.

RESOLUTION OF THE PRELIMINARY OBJECTION
The preliminary objection raised by the 3rd Respondent is grounded on the fact that the Appellants have no right of appeal in this matter as the Ruling being appealed against is

an interlocutory decision, relying on Section 246 (1) (b) of the Constitution.
Now, by the provisions of Section 246 (1) (b) of the Constitution, appeals do not lie to the Court of Appeal in interlocutory decisions of the election tribunals. However, I hold that in this case the Ruling of the Tribunal that has generated this appeal is not an interlocutory decision, but rather a final one, as it has permanently determined the rights of the Appellants and the 2nd and 3rd Respondents as far as the petition before it is concerned. See ODEJIDE & ORS VS. AMCON (2017) LPELR?42005 (CA) pages 10-11 paras F-F; N.A.O.C. LTD. VS. NKWEKE (2010) ALL FWLR (PT.845 1 at 26-27; IGUNBOR VS AFOLABI (2001) FWLR (PT.59) 284 and the recent decision of this Court, unreported, in Appeal No. CA/OW/EPT/FHA/10/19 delivered on 1/8/2019.

As to the grounds of appeal being those of mixed law and facts, it is observed that the learned 3rd Respondent?s Counsel made his submissions at large without demonstrating how the grounds of appeal are of mixed law and facts. It is not sufficient for Learned Counsel to tersely state that the grounds of appeal are of mixed law and

facts, without more. Accordingly I resolve this issue in favour of the Appellants and against the 3rd Respondent. Consequently I hold that the preliminary objection has no merit and same is hereby overruled.

I shall now take the motion filed by the 1st Respondent. In the motion, the 1st Respondent prays for the following orders:
1. An order striking out the notice of appeal dated 3rd June, 2019 and the entirety of this appeal.
2. An order striking out the Appellants? Brief of argument dated 11th June, 2019.
3. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
The objection is premised on the following grounds:
I. The Notice of Appeal does not contain a verifiable/physical address for service on the 1st Respondent/Applicant and thus incompetent.
II. The Appellants? Brief of argument does not contain a verifiable/physical for service on the Respondent/Applicant and thus incompetent.
III. The appellants? Brief of argument is defective having left blank spaces in various paragraphs including paragraph 1.12 at page 2,5.04 at page 7,5.10 at page 11,6.04 at

page 12, and 7.0, item ii at page 13.
IV. All particulars in the three Grounds of Appeal in the Notice of Appeal are repetitive.
V. Particulars VII and VIII in Grounds One, Two and Three of the petition constitute a misrepresentation of the decision of the lower Tribunal and the proceedings thereat to the extent that they state that, on 24/5/19, the Lower Tribunal was of the opinion that separate application for pre-hearing ought to have been made and it was after the said opinion that the Tribunal took address of Counsel.
VI. Particulars ii and iii in ground one, two and three are vague, generic and imprecise by vaguely referring to time consistently as ?different dates? in an appeal where computation of time is the deciding factor.
VII. Ground one of the Notice of Appeal does not arise from the decision of the Lower Tribunal.
VIII. Ground one of the Notice of Appeal is not a decision against the ratio decidendi of the Lower Tribunal?s decision.
IX. Ground one of the Notice of Appeal was not a part of the decision of the Lower Tribunal nor was it an issue raised before the said Tribunal to warrant Appellants

raising it herein without leave of Tribunal.
X. The entire Notice of Appeal does not disclose a reasonable Cause of Action.
XI. Relief (iv) in the Notice of Appeal is academic, ungrantable in the light of the Grounds of Appeal and has also been abandoned in Appellants? Brief.
XII. Arising from Ground I-XI supra, the entire appeal is incompetent.?

The motion is supported by a six paragraph affidavit deposed to by Ananyi Emeke Emedo, Legal Practitioner in the law firm of Wole Olanipekun & Co. Counsel to the 1st Respondent.
The averments contained in the affidavit are basically a reproduction of the grounds in the motion paper.

The 1st Respondent argued his motion in the brief of argument where he submitted on the grounds of the objection thus:
(1) ABSENCE OF PHYSICAL ADDRESS FOR SERVICE ON 1ST RESPONDENT IN APPELLANTS? NOTICE OF APPEAL AND BRIEF OF ARGUMENT.
On this ground, Learned Senior Counsel referred to pages 2150 and 2151 of the Record regarding the address of the 1st Respondent which was represented as ?UgbaIbeku, Umuahia North L.G.A? which Learned silk submitted did not convey

any meaning as it did not contain any specific location, with a verifiable number on a street and within a town in a local government area which is contrary to Order 7 Rule 2(1) of the Rules of this Court, 2016 which is couched in mandatory terms, relying on OGIDI VS. STATE (2005) LPELR?2303 (SC) at 48 para B?E; UGWU VS. ARARUME (2007) LPELR?3329 (SC); Order 2 Rules 5 and 6 of the Rules of this Court 2016 andABEGUNDE VS. ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR? 24588 (SC) 28?29.

Learned Silk argued that the address contained in the notice of appeal did not meet the mandatory requirement of the Rules of this Court, and urged us to strike out the notice of appeal, on the authority of IHEDIOHA VS. OKOROCHA (2016) 1 NWLR (Pt.1492) 147.

(2) VAGUE AND DEFECTIVE GROUNDS OF APPEAL, PARTICULARS AND RELIEFS.
Learned Silk submitted, relying on FMC IDO-EKITI VS. ISAAC OLUKAYODE OLAJIDE (2011) LPELR?4150 (CA) at 29; OSASONA VS. AJAYI (2004) 14 NWLR (PT. 894) 527 at 544-545 and Order 7 Rules 2 (3) and 3 that particulars of appeal accentuate the complaint in a ground of appeal, which must be concise

and not vague, and that all the Grounds of appeal in this appeal offend against the provisions of the Rules above cited, calling for their being struck out on the ground of incompetency; that they do not disclose any cause of action as no specific dates were therein mentioned. Learned Senior Counsel was so emphatic on particulars (vii) and (viii) which he stated, are full of repetitions; that contrary to the particulars (vii) and (viii) the Tribunal only intervened at page 2125 in the proceedings of 24/5/19 and nowhere else did the Tribunal state it had any view on filing separate application for pre-hearing, and therefore all the particulars in the grounds of appeal were misrepresentations, thus vitiating the grounds, relying on ILOABACHIE VS. ILOABACHIE (2000) 5 NWLR (PT.656) 178 at 203 para B-C and BANK OF INDUSTRY VS. ADEWALE (2015) 17 NWLR (PT.1487) 114 at 125 para G-H.

Olanipekun SAN also submitted that the Appellants by their misrepresentation of the proceedings of 24/5/19 had leveled an allegation of breach of fair hearing on the Tribunal, adding that records of Court are sacrosanct and should not be disparaged or impugned unless there is a serious

ground for challenging them and this, by laid down procedure, relying on DIGA VS. ADAM TONY (2013) LPELR ? 20768 (CA).

Learned Senior Counsel drew our attention to the impropriety of ground 1 of the notice of appeal as a basis for attacking the decision of the Tribunal, referring to Order 7 Rule 2(1) of the Rules of this Court 2016, to the effect that all appeals are by way of rehearing so that it is the same case at the lower Court that must be presented or continued at an Appellate Court, referring to JADESINMI VS. OKOTIE EBOH (1986) 1 NWLR (PT.16) 264 and AYEOLA VS. PEDRO (2014) 13 NWLR (PT.1424) 409 at 447. The essence of this objection, according to Senior Counsel, is that Ground 1 of the appeal as it relates to S. 285 of the 1999 Constitution, was neither raised at the lower Court/Tribunal nor did it form part of the decision of the lower Tribunal, referring to particular (ix) of Ground 1 dealing with the statement of the appellants that the attention of the Tribunal was drawn to S. 285 of the Constitution, which claim is not justified or supported by the record, particularly the proceedings of 24/5/19 (pages 2124-2128 Volume 3 of the

Record, leading to the Ruling on appeal. Learned Silk reiterated that the record of the Tribunal is correct as it is, in the absence of any challenge, and that a party can only appeal against the ratio decidendi of a case, referring to ORANEZI VS. PDP (2016) LPELR?41533 (CA) at 16 Para B-D.

Learned Senior Counsel referred to paragraphs 3(iii) and 4 of the affidavit in support of the motion and submitted that serious and vital omissions were committed by the Appellants in their brief leaving gaps which has rendered the brief incompetent. Concluding, he urged us to grant the prayers in the motion dated and filed 24/6/19 and then terminate this appeal in limine.

The Learned Appellants? Counsel replied to this objection generally and urged us to overrule the objection and hear the appeal on the merit.

RESOLUTION OF THE MOTION
Upon being served with the Reply to the Motion, Learned Senior Counsel replied on points of law by taking the contentions of the Appellants? Counsel in paragraphs 2.01, 2.02, 3.02 ? 7.05, 4.0 ? 4.07 and reiterating in some areas the points canvassed in the address/brief in support of the motion.

The first complaint is in respect of addresses of the 1st Respondent on the notice of Appeal. Having considered all submissions, together with the authorities cited therein, by the Learned Silk, I hold that the 1st Respondent is not misled by such address and in any event he is in Court defending the ruling of the Tribunal. The omissions or gaps complained about are not fundamental as to vitiate the appeal.

As to grounds of appeal not being grounded on the ruling of the Tribunal, I have scrutinized same vis–vis the said Ruling, and found it clearly contained in the proceedings of 24/6/19 that the Tribunal suo motu raised 3 issues and invited all Counsel in the case to address it. Therefore the complaint of the 1st Respondent in the motion about the vagueness and misrepresentation of facts in the record of appeal does not hold water.

?On the whole, I hold that the grounds of objection raised by the 1st Respondent are not such as would constitute the striking out or outright dismissal of the petition. The objection therefore fails and is hereby overruled. The appeal shall be heard on its merit.

In the Appellants? Brief of Argument, three issues were thus formulated:-
?1. Whether the Tribunal was right when it decided to give its decision on the issue it raised rather than suspend its ruling and deliver it at the stage of final judgment ? Ground 1 of the Notice of Appeal.
2. Whether the Tribunal was right when it held that the application for pre-trial made by the Petitioners/Appellants on 14/5/19 was incompetent in respect of the 2nd and 3rd Respondents and went on to dismiss the petition as against the 2nd and 3rd Respondents. ?Ground 2 of the Notice of Appeal.
3. Whether the Tribunal was right when it struck out/dismissed the Petition against the 2ND and 3RD Respondents. ? Ground 3 of the Notice of Appeal.?

The 2nd Respondent adopted only issues 1 and 2 of the Appellants while the 3rd Respondent adopted all the 3 issues.
The 1st Respondent formulated a sole issue thus:-
?Considering the facts and circumstances leading to the Ruling of the lower Tribunal delivered on 27th day of May 2019, whether the said decision was not rightly reached. (Grounds one, two and three)?

The issue formulated by the Learned Silk encapsulates all the issues formulated by the other Learned Counsel and therefore I shall adopt same in the determination of this appeal.

Okorie Perfect Esq submitted, referring to Section 285(8) of the Constitution, that the tribunal was wrong not to have abided by the mandatory provisions of the Constitution as well as those of Paragraph 12(5) of the 1st Schedule to the Electoral Act, 2010 (as amended), relying on BELGORE VS. AHMED (2013) 8 NWLR (Pt.355) 60 at 92; AREGBESOLA VS. OMISORE & ORS: CA/AK/EPT/GOV/OS/237/2014.

Counsel referred to Paragraph 18(1), and (4) of the 1st Schedule to the Electoral Act, 2010 (as amended) and submitted that in this case the 1st Respondent was the last to file his reply and the Appellants filed their Reply thereto on 13/5/19, and on the 14/5/19 applied for pre-hearing notice to be issued on the Respondents. Relying on ACN VS. NOMIYE (2017) 7 NWLR (PT.1300) 568; NWOGU VS. EKE (2015) LPELR ? 25996 (CA), UWAJUMOGU VS NNEJI & ORS (2017) LPELR ? 41435 (CA), and Paragraph 18 (4) of the 1st Schedule to the Electoral Act, 2010 (as amended) Counsel submitted that the Tribunal was wrong to have

dismissed the petition and urged us to resolve this issue in favour of the Appellants.
He then concluded thus:-
?By virtue of the foregoing premises, (sic) the Appellants respectfully urge that this appeal be allowed and the judgment of the Tribunal be set aside for the following reasons:
1. The learned judges of the Tribunal erred in law when they decided to give their decision on the interlocutory issue they raised rather than suspend the ruling and deliver it at the stage of final judgment, despite the fact that the issue touched on the jurisdiction of the tribunal and or on the competence of the petition itself, contrary to the provisions of Section 285 (8) of the Constitution of the Federal Republic of Nigeria (Fourth Alteration) No. 21) Act, 2017.
2. The learned judges of the Tribunal erred in law when they held that the application for pre-trial made by the Petitioners/Appellants on 14/5/19 was incompetent in respect of the 2ND and 3RD Respondents despite the fact that the application was made within seven days of the filing of the Appellants? reply to the Reply of the 1ST and?Respondents.

3. The learned judges of the Tribunal erred in law when they dismissed the Petition against the 2ND and 3RD Respondents despite the fact that the Appellants filed an application for the issuance of pre-hearing notice within seven of the filing of the Appellants? reply to the Reply of the 1ST Respondent as provided under Paragraph 18(1) of the First Schedule to the Electoral Act (as amended).

The Learned silk responding, quoted Paragraph 18(1), (3) and (4) of the 1st Schedule to the Electoral Act, 2010 (as amended), and referred to NYESOM VS. PETERSIDE (2016) 1 NWLR (PT.1492) 71 and a passage in the Ruling of the Tribunal and submitted that the finding of the Tribunal was not challenged in this appeal. He again referred to AKERE VS. GOV. OF OYO STATE (2012) 12 NWLR (PT.1314) 240 at 278; SCC NIG. LTD. VS. ANYA (2012) 9 NWLR (PT.1305) 213 at 222 and submitted that there was no appeal against the finding of the Tribunal captured on page 2140 of the Record and further that the petition was found to have been abandoned by the Petitioners because they did not apply for those separate pre-hearing notices.

?Learned silk referred to so many pages in the Record and

cited many cases including ARAKA VS. EGBUE (2003) LPELR ? 532 (SC); ADEWUNMI VS. A.G. EKITI STATE (2002) 2 NWLR (PT.751) 474; MARWA VS. NYAKO (2012) LPELR ? 7837 (SC); NOBIS ELENDU VS. INEC (2015) 16 NWLR (PT.1485) 223 and a number of the paragraphs of the 1st Schedule to the Electoral Act, 2010 (as amended) and urged us to dismiss the appeal and affirm the decision of the Tribunal which considered six different decisions of this Court and was well guided before coming to the informed decision in the light of the peculiar circumstances of the case before it. Learned Counsel then submitted that MATTHEW NWOGU & ANOR VS. HON. BEDE UCHENNA EKE & ORS (2015) LPELR ? 25996 and UWAJUMOGU VS NNEJI (2017) LPELR ? 41435 (CA) cited and heavily relied upon by the Appellants are not of any utility to this appeal as they have different facts, and urged us to uphold the decision of the tribunal.

The 2nd Respondent?s Learned Counsel cited Section 285(8) of the Constitution and RECTOR, KWARA STATE POLYTECHNIC VS. ADEFILA (2008) ALL FWLR (PT.431) 914 at 981, and submitted that the petition is incompetent by virtue of the fact that time had

lapsed between the Petitioners and 2nd and 3rd Respondents in respect to issuance of pre-hearing notices. He supported the decision of the Tribunal that the Petitioner sought to apply for pre-hearing notices as pleadings closed between the parties.

In paragraph 3.06 of his brief, Learned Counsel for the 3rd Respondent adequately and rightly captured the issue in controversy and, relying on UDO VS. AKPAN (2010) ALL FWLR (PT.538) 941, submitted that all the authorities cited and relied upon by the Appellants on the Electoral Act are inapplicable in the circumstances of this case.

Counsel noted that pleadings closed between the Petitioners and 2nd and 3rd Respondents on 27/4/19 and 30/4/19 respectively while the application for issuance of pre-hearing Form was made by the Appellants on 14/5/19, referring to page 2140 lines 20 ? 23 of the Record. He referred to Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) and the cases of PREYE OSEKE & ANOR VS. INEC (2011) LPELR ? (sic) CA/PH/EPT/25/2011; KOKO (JP) VS. INIMGBA & ORS Appeal No. CA/PH/EPT/20/2011; ACN & ANOR VS AMAEWHULE & ORS Appeal No.

CA/PH/EPT/6/2011; SARUADOR VS. INEC (2012) 7 NWLR (PT.1300) 417 at 444 E-H and ACN VS. NOMIYE (2012) 1 NWLR (PT.1300) 568 at 589 PARA A; OMISORE & ANOR VS. AREGBESOLA & 2 ORS (2015) ALL FWLR (PT.813) 1673 and submitted that the application made by the Appellants for the issuance of pre-hearing notice on the 2nd and 3rd Respondents was made out of time, therefore the Honourable Tribunal was right when it dismissed the Appellants? petition against the 2nd and 3rd Respondents respectively. He then urged us to resolve this issue in favour of the Respondents and against the Appellants and to dismiss the appeal for lacking in merit.

RESOLUTION
Putting the issue canvassed before us in another way it translates to this:
?Whether a petitioner is obligated to file separate applications for pre-hearing notices for different respondents.?

See UWAJUMOGU VS. NNEJI & ORS (2017) LPELR ? 41435 (CA); LABOUR PARTY VS. BELLO (2016) LPELR ? 40848 (CA); ONYERERI VS. NWADIKE & ORS (2015) 8 CAR 117.
It is also trite that where there are more than one Respondent, pleadings will not close until the expiration of the time limited in the 1st Schedule to the Electoral Act, 2010 (as amended) especially paragraph 16 thereof. It has been held even by the apex Court that a petitioner need not file more than one application for the pre-hearing, see SA?EED VS YAKOWA (2013) 7 NWLR (PT.1352) @ 164 ? 165 on the purpose of pre-hearing notices.
In the recent decision of this Court, in Appeal No. CA/OW/EPT/SHA/02/2019 (unreported) delivered on 19th July 2019 this Court held:
?It should also be noted that Courts are enjoined to ensure that Election Petitioners are heard as a matter of public policy, such that unless there are compelling reasons, the Court should guard against terminating the hearing of election matters in limine Per Haruna Simon Tsammani JCA.
I hold that the Lower Tribunal was in grave error to have terminated the election petition as it did, because the

Petitioners (Appellants herein) were within time in filing their application for issuance of pre-hearing notice as pleadings closed with their reply to the Reply of the 1st Respondent who filed his Reply last.

On the whole this appeal has merit and is hereby allowed. The Ruling of the Tribunal is hereby set aside. The petition shall be heard to its logical conclusion.
Cost of N50,000 each is awarded in favour of the Appellants and against the 1st and 3rd Respondents only.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

ITA GEORGE MBABA. J.C.A.: I agree, with the reasoning and conclusions of my learned brother, I.A. ANDENYANGTSO, JCA, that this appeal is meritorious, and should be allowed.

A Petitioner need not file separate Notices of pre-hearing applications in respect of each Respondent (Defendant), provided he files one at the close of pleadings – see Uwajumogu vs Nneji & Ors (2017) LPELR – 41435 CA; Labour Party vs Bello & Ors (2016) LPELR 40848 (CA).
See also the case of Onyereri Vs Nwadike & Ors (2015)8 CAR 117 where it was stated:

“…where there are more than one respondent in a petition, pleadings will not close until the expiration of the time limited in the 1st Schedule, particularly paragraph 16 thereof.”
In the Uwajumogu Vs Nneji & Ors (supra), it was held –
“…l cannot understand why such application (for issuance of pre-hearing notice) should be done more than once in a case, such that he is expected to do so (file the application) in respect of each Respondent in the same Petition, the moment each Respondent files a Reply (or the Petitioner responds to the Reply by each Respondent). See the case Of Sa’eed & Anor Vs Yakowa (2013)7 NWLR (Pt.1352) 126 at 164 – 165 on the purport of pre-hearing notice, where the apex Court, per Nwuta JSC stated that the purpose of prehearing notice is to inform the parties of the impending hearing and to ensure attendance at the hearing.
If for any reason or by any means, this purpose is achieved without formal application for issuance of pre-hearing notice, a party who has taken part in the proceedings cannot be heard to argue that the rule has not been complied with, more so when there is no allegation of miscarriage of justice from

the non-compliance… ”
See also CA/OW/EPT/SHA/02/19: Engr. Nwabueze Nnamdi Onwuneme & Anor Vs Hon. Kelechi Onwuzuruike & Ors, delivered on 19/7/19 – where it was held:
“…I have already pointed out that the filing of application for issuance of pre-hearing notice was made before the close of pleadings in the petition. It was erroneous for the Tribunal when it held that separate application for the issuance of Pre-hearing notices were required for each of the Respondents. That is not what Paragraph 18(1) envisages. The paragraph envisages one application for the issuance of Prehearing notice, which shall be made at the close of pleadings…” Tsammani JCA (Page 25 thereof).

I too allow the appeal and abide by the consequential orders in the lead judgment.

Appearances:

C.C. Nwachukwu with him O.U. OkaforFor Appellant(s)

Bode Olanipekun SAN with Mayowa Ajileye and Emeke Ananyi for the 1st Respondent.
F.A. Onuzulike with O.N. Azode and N.A. Igbojekwe for the 2nd Respondent.
Esther Wosu (Mrs.) with U.C. Nnenji for the 3rd Respondent.For Respondent(s)

Appearances

C.C. Nwachukwu with him O.U. OkaforFor Appellant

AND