ABDULLAHI AHMAD & ANOR v. AHMAD HASSAN JUMARE & ORS. (2011)

ABDULLAHI AHMAD & ANOR v. AHMAD HASSAN JUMARE & ORS.

(2011)LCN/4749(CA)

In The Court of Appeal of Nigeria

On Thursday, the 22nd day of September, 2011

CA/K/EP/NA/10/2011

RATIO

PRE-HEARING NOTICE: WHETHER APPLICATION FOR THE ISSUANCE OF A PRE-HEARING NOTICE CAN BE BY A MERE LETTER

Generally, applications to the Tribunal under the Electoral Act are initiated pursuant paragraph 47(2) of the first schedule to Electoral Act 2010 as amended which state: “whereby these rules any application is authorized to be made to the Tribunal or Court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the Respondent: However, following the decision in Aliyu Ibrahim Gebi v. Alhaji Garba Dahiru (supra) the present stand point of this Court with regards to the method of applying for the issuance of a Pre-hearing Notice is that a mere letter will suffice. The current position of the law has been captured vividly in the contribution of Dongbam Mensem JCA as follows: “Paragraph 18(1) is clear, unambiguous and indeed simple, the petitioner shall apply for the issuance of Pre-hearing Notice. In fact, the description of what the petitioner shall apply for clearly shows that a simple request suffices. A written application prove the facts of the request on record as evidence of compliance. The application/request to issue activates the process of issuing Form TF 007, which is done by the Secretary to the Tribunal (paragraph 7(1) of the 1st schedule of the Electoral Act). ..a failure to put in the application at all could be fatal to the petitioner (Refers Okereke v. Yar’adua (2008) 4 FWLR (pt.430) page 626 at 246). An application for an application, as in a simple request is a simple application a “please”. Issue Form TF 007 should be sufficient”. See Mohammed Umar Ibrahim & 1 Or v. Yakubu Yusuf & 2 Ors (unreported) CA/K/EPT/SHA/13/2011 delivered on 22 September 2011. PER ABDU ABOKI, J.C.A.

INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPH 18(2) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT AS TO WHEN THE TRIBUNAL SHALL ISSUE TO THE PETITIONER A PRE-HEARING NOTICE AND A PRE-HEARING INFORMATION SHEET

The provisions of the Electoral Act stipulates that the Tribunal can only issue a Pre-hearing Notice upon an application by a Petitioner or a Respondent. Paragraph 18(2) of the 1st schedule to the Electoral Act provides as follows. “(2) upon application by a petitioner under subparagraph (1) of this paragraph the Tribunal or Court shall issue to the parties or their legal practitioner (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet or in Form TF 008…” PER ABDU ABOKI, J.C.A.

INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPHS 18(1) & (2) OF THE 1ST SCHEDULES TO THE ELECTORAL ACT 2011 AS IT REGARDS THE MANDATORY DUTY ON BOTH PETITIONERS OR THEIR COUNSEL TO APPLY FOR A PRE-HEARING NOTICE AND ON THE TRIBUNAL TO ISSUE SAME AS IN FORM TF 007

INTERPRETATION OF STATUTE: CONSEQUENCE OF NON-COMPLIANCE WITH THE PROVISION OF PARAGRAPH 18(1) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT 2010 (AS AMENDED)

The Electoral Act 2010 (as amended) provides for the consequence of non-compliance with the provision of paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 (as amended) in paragraph 18(4) of the 1st schedule to the Act which is reproduced thus: “18(4) where the petitioner and the respondent fail to bring an application under this paragraph, the Tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained” (underline mine) The Provisions paragraph 18 of the 1st schedule to the Electoral Act 2010 (as amended), and all its sub-paragraphs are a class of special provisions which are complete in form. There is no room for importation of any general rule. Under the provision of paragraph 18(4) a Tribunal or Court is prohibited from granting an extension of time or entertaining any application of such nature from a petitioner or Respondent who fails to apply for a pre-hearing notice. In Aliyu Ibrahim Gebi v. Alhaji Garba Dahiru (supra) at page 12-13, per Dongban-Mensem JCA: “Paragraph 18(1) here, underlying its seemingly plain unambiguous and ordinary provisions, some mandatory interjection which take away the discretion of the Tribunal or Court. Herein lies the siu generis status of electron proceedings. A typical example is the failure of the parties to request for the issuance of a Pre-hearing Notice. Paragraph 18(4) provides for the outright dismissal of the petition by the Tribunal and such dismissal is irrevocable, it cannot be set aside”. PER ABDU ABOKI, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

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

Between

1. ABDULLAHI AHMAD
2. CONGRESS FOR PROGRESSIVE CHANGE (CPC) Appellant(s)

AND

1. AHMAD HASSAN JUMARE
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): In compliance with the provision of section 116(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended the 3rd Respondent conducted an election into the Kaduna State House of Assembly on the 28th April, 2011. The record of Appeal disclosed that both the 1st Appellant and the 1st respondent were amongst the candidates that contested the election for Makarfi Constituency.
The 1st Respondent was returned and declared the winner of the election having scored 29,754 votes while the 1st Appellants scored 22,078 votes. Dissatisfied with the result of the election and the return of the 1st Respondent as the winner of the Election, the 1st and 2nd Appellants filed a petition at the Kaduna State National and State Houses of Assembly election petition Tribunal.
The grounds of the petition without their particulars are as follows:
“Your 1st petitioner relies on the following grounds in justification of his complaints of the 1st Respondent’s undue election:
1. AND your petitioners state that the 1st Respondent was not duty elected by majority of lawful votes cast at the election held in Makarfi State Assembly Constituency of 27th April, 2011.
2. That the election was characterized by corrupt practices perpetrated by the 1st Respondent, the representative of the 2nd Respondent and with the assistance of Security Agents that were present at the various wards and polling units of the 1st Petitioner’s Constituency.
3. The petitioners aver that the Respondents jointly and severally by themselves and through their agents committed corrupt practices or breach of Electoral Act 2011 in various places where the election took place”.
The petitioners urged the Tribunal to:
i. Determine that the State House of Assembly Election in Makarfi Constituency of 28th April, 2011, conducted by the 3rd Respondent was marred by corrupt practices, fraud and outright rigging.
ii. Determine that the 1st Respondent herein was not duly elected and did not score the lawful majority votes cast at the 28th April, 2011 State House of Assembly Election in Makarfi and ought not to have been returned by the 3rd Respondent.
iii. Determined that the total number of votes cast at the 27th April, 2011 State House of Assembly Election in Makarfi Constituency were for the petitioners and the 1st petitioner ought to have been returned by the 3rd Respondent as the winner of the said election
iv. AND to determine that the State House of Assembly Election in Makarfi Constituency of 27th April, 2011 suffered from non-compliance with the Electoral Act, 2010 as amended.
v. AN ORDER declaring the 1st petitioner as the winner of the State House of Assembly Election in Makarfi Constituency of 27th April, 2011 having scored the highest votes of the total votes case in the said election.
vi. AN ORDER compelling the 3rd Respondent to present to the 1st petitioner a Certificate of Return as the validly elected member of Kaduna State House of Assembly Election in Makarfi Constituency of 27th April, 2011.
ALTERNATIVELY
vii. AN ORDER nullifying the entire State House of Assembly Election conducted in Makarfi Local Government on 28th April, 2011 on the grounds of corrupt practices or non compliance with the Electoral Act 2010 as amended”.
The 1st and 2nd Respondents in an application dated and filed 8/7/2011 prayed the Tribunal to dismiss the petition on the ground that the Appellants failed to apply for issuance of a Pre-Hearing Notice in the manner provided by the fit schedule to the Electoral Act, 2010 as amended.
In an attempt to cure the irregularity, the Appellants filed an application dated 11th July, 2011 for extension of time for issuance of the Pre-Hearing Notice, but the Tribunal on 25th July, 2011 refused to hear the application and went ahead to dismiss the Appellants’ petition as abandoned. The Tribunal in its ruling said inter alia at page 106
108 of the Record of Appeal thus:
“The petitioner filed a pre-hearing information sheet. It has been held that the issuances of a Pre-hearing Notice by the Secretary of the Tribunal without a prior application for the issuance of a Pre-hearing Notice is an exercise in futility and has no effect whatsoever. See Ogunmidede Olayemi v. Fatai (2010) 7 EPR page 354 at 375.
In this case the petitioners did not file a prior application for the issuance of a Pre-hearing Notice before the Pre-hearing information sheet was issued.
I think if is also clear that an application for Pre-hearing Notice must be by motion. See Riruwai v. Shekarau (2010) 6 EPR page 462 at 483 – 484. Finally, the Supreme Court has held that failure to apply for a pre-hearing Notice in the prescribed manner renders the petition liable to dismissal. See Okereke v. Yar’adua (2009) 4 EPR page 46 at 63.
……………..
……………..
It is clear to me that the petitioners have not applied for a Pre-hearing Notice as required by paragraph 18(1) of the 1st schedule to the Electoral Act 2010. The result is that which the Supreme Court has made clear in the case cited above. And that is that the petition must be dismissed as abandoned.
Consequently, it is ordered as follows:
“The petitioners petition is dismissed as an abandoned petition for failure of the petitioners to apply for a pre-hearing notice in the manner provided for in paragraph 18(1) of the 1st schedule to the Electoral Act 2010 as amended”.
Dissatisfied with this ruling, the Appellants’ appealed to this Court by a Notice of Appeal dated and filed at the Registry of the Tribunal on the 5th August 2011.
The record of proceedings of the Trial Tribunal was received in this Court on 19/9/2011.
The Record of Appeal and the Appellants brief were served on the Respondents on 20/9/11
The need to make an order abridging time became necessary so as to comply with the provisions of section 285(7) of the Constitution of the Federal Republic of Nigeria as amended by alteration 29 (First Alteration) Act 2010, which stipulates that an appeal from the decision of an Election Petition Tribunal or Court shall be heard and deposed of within 60 days from the date of the delivery of the judgment of the Tribunal.
In the instant case a careful computation of time from 25/7/2011 to 22/9/2011, will reveal that the 60 days provided for the hearing and disposal of this Appeal comes to an end at the midnight of Saturday 24/9/2011 It is for this reason that time was abridged, for the hearing and disposal of the Appeal, so as to save it from lapsing.
On the orders of the Court on 22/9/2011 the 1st and 2nd Respondents prepared, filed and served their joint brief of argument within two hours after the order of the Court.
The manner learned counsel to the 1st and 2nd Respondents Samuel Atung Esq. attended to this appeal most commendable, he exhibited a high standard commitment and best practice of the legal profession.
The 3rd Respondent did not however file any brief of argument.
The Appellants in their brief of argument formulated two issues for determination of this Appeal, reproduced as follows:
“1. Whether the lower Tribunal was right by dismissing the Appellant’s Petition as abandoned for non-compliance with paragraph 18(1) and 47 (2) of the 1st schedule to the Electoral Act 2010 (as amended)”
“2. Whether the Tribunal property exercised its discretion by refusing to hear, determine, and pronounce on the Appellants’ application for enlargement of time for the issuance of Pre-Hearing Notice before proceeding to dismiss the Appellants’ Petition upon the Respondents’ Application for dismissal”.
The 1st and 2nd Respondents formulated a lone issue for the determination of the Appeal and it reads:
“whether taking into consideration the entire provision of paragraph 18 of the 1st schedule to the Electoral Act 2010 (As amended) the decision of the trial Tribunal has occasioned any miscarriage of justice to the Appellant”
Learned counsel for the Appellants Abdulazeez Malik Esq in his argument on the first issue for determination submitted that paragraph 18(1) of the first schedule to the Electoral Act 2011, did not make any specific provision, as to the manner by which a petitioner can apply for the issuance of Pre-hearing Notice. He argued that the purpose of Pre-Hearing information sheet and the answers by the Petitioners is to give the Respondents an insight on the issues to be dealt with during the Pre-hearing session. It also serves to prevent parties from springing surprise at each other.
He maintained that the contention of the Respondents application for dismissal is not that the Petitioners have not filed any pre-hearing information sheet before the lower Tribunal, or that the answers supplied by the Petitioners are ambiguous, not detailed and therefore not suitable for a Prehearing session, but that the petitioners did not apply for the issuance of Pre-hearing notice by way of motion and as such none is filed.
Learned counsel submitted that assuming but not conceding that they have filed their Pre-trial Notice out of time or did not initiate same by way of formal motion, the omission is but an irregularity which ought to have been cured by the Appellants motion for extension of time to regularize that defect.
Learned counsel submitted that it is trite that procedural irregularity should not vitiate the suit or petition, especially where none of the parties has suffered a miscarriage of justice. He referred the Court to the case of Famfa Oil Ltd v. AGF (2003) 2 NWLR, page 453 at 467 .
Learned counsel for the Appellants submitted that under paragraph 18(1) of the first schedule to the Electoral Act 2010 as amended there is a corresponding duty on the Respondents to also apply for the issuance of Pre-Hearing Notice as in Form TF 007 after filing their reply to the petition which they did not do. He cited the provisions of paragraph 18(3) of the first schedule to the Electoral Act, (supra).
Learned Counsel for the petitioners argued that the dismissal of a petition can only operate in circumstances provided under paragraph 18(4) & (5) of the first schedule to the Electoral Act, (supra). He insisted that the failure by the Respondents to discharge their duty under paragraph 18(3) and the misapprehension by the lower Tribunal of the provisions of paragraph 18(3) & (4) of the Electoral Act before the dismissal of the Appellants’ petition amounted to a miscarriage of justice. He referred the Court to the case of Mohammed Ibrahim & Anor v. Mohammed Sani Zorro & Anor (unreported appeal) delivered on 27th July 2011 in Appeal No.CA/K/EPT/NA/1/2011 of Court of Appeal,
Kaduna.
Learned counsel submitted that the trend now is to hear election petitions on their merit and not to shut out any petition on the ground of perceived irregularity at the instance of the Respondent. He insisted that several decided authorities on election petition have reiterated that election petitions are to be heard on their merit and not dismissed on mere technicalities. He cited the cases of Oni v. Fayemi (2008) WRN page 127 at 164-165,
Ojo v. INEC (2008) 42 WRN page 49 at 54. He argued that even if (but not conceding) that the petitioner had filed their Pre-Hearing Notice out of time, that could be cured under paragraph 45(1) of the first schedule to the Electoral Act 2010 (as amended), pursuant to which the Appellants brought their application for enlargement of time to file their Pre-Hearing Notice. He referred the Court to the case of Ali v. Osakwe (2009) 14 NWLR (pt.1160) page 75 at 142 where the Court of Appeal said:
“…then the Tribunal would have been doing substantial justice instead of clinging tenaciously to technical rules. As Niki Tobi JSC opined in Abubakar v. Yar’adua (2008) 4 NWLR (pt.1078) page 465 at 512, what is wrong in the Tribunal giving an extra Kilometre to the Appellant in order to achieve substantial justice?
Learned counsel urged the Court to resolve the first issue in favour of the Appellants based on the reasons adduced
In the brief prepared and presented by Samuel Atung, Esq of counsel on behalf of the 1st and 2nd Respondents, learned counsel submitted that the provisions of paragraph 18(1) of the 1st schedule to the Electoral Act 2010 as amended is clear and unambiguous and that accordingly same should be given their ordinary grammatical meaning. He referred the court to the case of Uwagba v. FRN (2009) 5 NWLR (Pt.1163) page 91 at 113 – 114.
Learned counsel argued that ‘if the provisions of paragraph 18 of the 1st schedule to the Electoral Act are given their ordinary grammatical meaning, it can be discerned that a condition precedent or precondition to the issuance of pre-hearing Notice is the making of an application by a petitioner (the Appellants) or by a Respondent pursuant to paragraph 18(3) of the 1st schedule to the Electoral Act 2010 (as amended)
Learned counsel maintained that it is now trite that where a Pre-condition for initiating a legal process is laid down, any process instituted or initiated in contravention of the Pre-condition is incompetent. He referred the Court to the case of D.E.N.R Ltd v. Trans International Bank Ltd (2008) 18 NWLR (pt.1119) page 388 at 431 and 436 – 437. Learned counsel argued that in the instant Appeal, the Appellants did not filed or make any application for the issuance of Pre-hearing Notice as provided or contemplated by paragraph 18(1) of the 1st schedule to the Electoral Act, 2010 as amended, instead the they went ahead to issue the Pre-hearing Notice without any application.
Learned counsel submitted that the trial Tribunal had no option and was duty bound to entertain the 1st and 2nd Respondents motion on notice which was ripe for hearing. He argued that the motion for dismissal of a petition for noncompliance with the provision of the 1st schedule to the Electoral Act as provided under paragraph 18(3) is different in law from other provision of the Act on none compliance. Learned counsel for the 1st and 2nd Respondents urged the Court to return a negative answer to the sole issue for determination and to accordingly hold that the decision of the trial Tribunal to dismiss the Appellants’ petition for noncompliance with the provisions of the Electoral Act, 2010 did not occasioned any miscarriage of justice to the Appellants.
This Appeal revolves round the provisions of paragraph 18(1), (2), (3), (4) and (5) of the 1st schedule to the Electoral Act 2010 as amended. Paragraph 18(1) of the first schedule to the Electoral Act 2010 as amend stipulates:
“18(1) within 7 days after 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” (underline mine)
It is clear from the provisions of paragraphs 18(1) of the 1st schedule (supra) that a petitioner must apply for the issuance of Pre-hearing notice as in Form TF 007. It has been argued on behalf of the Appellants that paragraph 18(1) of the first schedule to the Electoral Act 2011 did not make any specific provision as to the manner by which the petitioners shall apply for the issuance of Pre-hearing Notice.
Generally, applications to the Tribunal under the Electoral Act are initiated pursuant paragraph 47(2) of the first schedule to Electoral Act 2010 as amended which state:
“whereby these rules any application is authorized to be made to the Tribunal or Court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the Respondent:
However, following the decision in Aliyu Ibrahim Gebi v. Alhaji Garba Dahiru (supra) the present stand point of this Court with regards to the method of applying for the issuance of a Pre-hearing Notice is that a mere letter will suffice. The current position of the law has been captured vividly in the contribution of Dongbam Mensem JCA as follows:
“Paragraph 18(1) is clear, unambiguous and indeed simple, the petitioner shall apply for the issuance of Pre-hearing Notice. In fact, the description of what the petitioner shall apply for clearly shows that a simple request suffices. A written application prove the facts of the request on record as evidence of compliance. The application/request to issue activates the process of issuing Form TF 007, which is done by the Secretary to the Tribunal (paragraph 7(1) of the 1st schedule of the Electoral Act).
..a failure to put in the application at all could be fatal to the petitioner (Refers Okereke v. Yar’adua (2008) 4 FWLR (pt.430) page 626 at 246). An application for an application, as in a simple request is a simple application a “please”. Issue Form TF 007 should be sufficient”.
See Mohammed Umar Ibrahim & 1 Or v. Yakubu Yusuf & 2 Ors (unreported) CA/K/EPT/SHA/13/2011 delivered on 22 September 2011.
On page 4 Paragraph 2.2 of the Appellants’ brief of argument they admitted that they filed a pre-hearing notice without applying to the Tribunal for its paragraph is reproduced as follows:
“2.2 after service of the petition and other processes, the 1st and 2nd Respondents filed a joint reply while the 3rd Respondent never filed any pleading. Thereafter the Appellants, went ahead to file their Pre-hearing Notice as no Form TF 007 accompanied by the necessary questions and answers without an application (motion) for issuance of the said Notice” (underline mine)
The provisions of the Electoral Act stipulates that the Tribunal can only issue a Pre-hearing Notice upon an application by a Petitioner or a Respondent.
Paragraph 18(2) of the 1st schedule to the Electoral Act provides as follows.
“(2) upon application by a petitioner under subparagraph (1) of this paragraph the Tribunal or Court shall issue to the parties or their legal practitioner (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet or in Form TF 008…(underline mine).

It is clear from the provisions of paragraphs 18(1) & (2) of the 1st schedules to the Electoral Act 2011 as amended that an application by a petitioner or his legal practitioner (if any) is a pre-condition for the issuance of the pre-hearing notice as in form TF 007. The makers of the law used the word shall to drive home the mandatory duty on both petitioners or their counsel to apply for a Pre-hearing Notice and on the Tribunal to issue same as In Form TF 007 after receiving such an application.
In Aliyu Ibrahim Gebi v. Alhaji Garba Dahiru & 3 Ors (supra) it was held that:
“none compliance is fatal and the tribunal/Court is circumscribed to do anything other than what paragraph 18(3) and (4) of the 1st schedule says. Due to the special nature of election proceedings any default in complying with mandatory procedural step which otherwise could either be cured or waived in an ordinary court procedure would have fatal consequences in electoral proceedings (Refers to Oyekan N. Akintide (1965) 2 Obih v. Mbakire (1984) 1 SCNR 192 and 3 Okereke v. Yar’adua (2008) FWLR (pt.43026) at 256”.
ln the instant case the Appellants by their own admission stated that they neglected to apply to the Tribunal either by a letter or a motion for the issuance of a prehearing notice. The trial tribunal was correct when it held that the issuance of a pre-hearing notice without a prior application for its issuance is an exercise in futility and has no effect whatsoever.
The first issue for determination in this Appeal is resolved in favour of the 1st and 2nd Respondents.
Issue two reads:
“Whether the Tribunal properly exercise its discretion by refusal to hear determine and province on the Appellant application for enlargement of time for the issuance of Pre-Hearing Notice before proceeding to dismiss the Appellants petition upon the Respondents’ Application for dismissal”.
Abdulazeez Malik Esq learned counsel for the appellants submitted on this, issue that the grant or refusal of an application for extension of time is no doubt the discretion of the Court or Tribunal but such discretion should be exercised judicially and judiciously, and considering the reasons and conditions under which such application is being made.
He insisted that a Court or Tribunal has the duty to pronounce on every application brought before it, before taking a final decision on it. He submitted that the refusal by the lower Tribunal to hear, determine and pronounce on the Appellants’ application for enlargement of time to regularize their petition has led to a miscarriage of justice.
Learned counsel contended that by the provisions of paragraph 45(1) of the first schedule to the Electoral Act 2010 (as amended), the Appellants are entitled to apply for the extension of time within which to do any act or take any proceeding and that the Tribunal is empowered to exercise its statutory power to grant such applications including extension of time to apply for issuance of Pre-hearing Notice.
Learned counsel submitted that the lower Tribunal and the Respondents would not suffer anything if the appellants were given time to regularize their petition by being allowed to bring their pre-hearing notice by way of motion outside the prescribed period.
He submitted that the provisions of paragraph 53(1) of the 1st schedule to the Electoral Act provides specifically that non-compliance with any provisions of the schedule to the Electoral Act, shall not render any of the proceedings void. Learned counsel urged that the purport of paragraphs 53 & 54 of the first schedule to the Electoral Act 2010 (as amended) is to save or preserve procedural blunders that can be cured by amendments or extension of time in order to meet the cause of justice.
He maintained that where there are competing applications the Court or Tribunal shall take that which will cure the defect in the proceeding and ensure hearing on the merit. He referred the Court to the case of Long John v. Black (1995)5 SCNJ page 68 at 91.
Learned counsel urged the Court to direct that the petition be referred to and heard by a different panel of Election Tribunal in Kaduna.
The Electoral Act 2010 (as amended) provides for the consequence of non-compliance with the provision of paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 (as amended) in paragraph 18(4) of the 1st schedule to the Act which is reproduced thus:
“18(4) where the petitioner and the respondent fail to bring an application under this paragraph, the Tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained” (underline mine)
The Provisions paragraph 18 of the 1st schedule to the Electoral Act 2010 (as amended), and all its sub-paragraphs are a class of special provisions which are complete in form.
There is no room for importation of any general rule. Under the provision of paragraph 18(4) a Tribunal or Court is prohibited from granting an extension of time or entertaining any application of such nature from a petitioner or Respondent who fails to apply for a pre-hearing notice.
In Aliyu Ibrahim Gebi v. Alhaji Garba Dahiru (supra) at page 12-13, per Dongban-Mensem JCA:
“Paragraph 18(1) here, underlying its seemingly plain unambiguous and ordinary provisions, some mandatory interjection which take away the discretion of the Tribunal or Court. Herein lies the siu generis status of electron proceedings. A typical example is the failure of the parties to request for the issuance of a Pre-hearing Notice. Paragraph 18(4) provides for the outright dismissal of the petition by the Tribunal and such dismissal is irrevocable, it cannot be set aside”.
…………………..
…………………..
Why did the legislators not allow the Tribunal or Court to exercise discretion in upholding the principles of fair hearing to extend the time within which to apply to set aside the judgment?
The reason is because election matters are cast within a time line which must be observed in order to give meaning to the democratic experience of governance without unnecessarily prolonging litigation.
The learned members of the Tribunal lack the jurisdiction to extend time within which the prehearing Notice shall be issued. It is a time line mandatory provision non compliance with which is fatal to the petition.
Here, the Tribunal has no option and such dismissal is final rendering the Tribunal/Court funtus officio”.
In the instant case the Trial Tribunal was proper in declining to exercise its discretion by refusing to hear, determine and pronounce on the Appellants’ application for enlargement of time for the issuance of Pre-hearing Notice and to have proceeded to dismiss the Appellants’ petition, upon the Respondents’ Application.
The second issue for determination is also resolved in favour of the 1st and 2nd Respondents.
The appeal lacks merit and it is hereby dismissed. There will be no order as to costs.