ACTION CONGRESS OF NIGERIA & ANOR v. MR. MARTIN AMAEWHULE & ORS (2011)

ACTION CONGRESS OF NIGERIA & ANOR v. MR. MARTIN AMAEWHULE & ORS

(2011)LCN/4896(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 16th day of November, 2011

CA/PH/EPT/6/2011

RATIO

PRELIMINARY OBJECTION: DUTY OF THE COURT TO CONSIDER FIRST THE PRELIMINARY OBJECTION BEFORE VENTURING INTO THE MAIN ISSUES OF THE APPEAL

The 1st respondent has by a formal notice challenged the competence of the appeal which objection has been argued in the 1st respondent’s brief of argument. The law requires that I consider the preliminary objection first. See Ngige v. Obi (2006) 14 NWLR (pt.999) 1 and UBA Plc. V. ACB (Nig.) LTD (2005) 12 NWLR (Pt.939) 232. PER MUSA DATTIJO MUHAMMAD, J.C.A

CONSENT JUDGMENT: MEANING OF A CONSENT JUDGMENT

A consent judgment is one the terms of which are settled and agreed to by the parties to the action. For a judgment to be a consent judgment, the parties thereto must be ad idem and their consent freely and voluntarily given. See R. ASC Ltd. v. Akib (2006) 13 NWLR (Pt. 997) 333 SC, Ogoejofo v. Ogoejofo (2002) 12 NWLR (Pt. 780) 171 and Alpha Prop. International Ltd. v. NDIC (2006) 1 NWLR (Pt. 962) 624 CA. PER MUSA DATTIJO MUHAMMAD, J.C.A

OVERRULING PREVIOUS DECISIONS: CIRCUMSTANCES WHERE THE COURT OF APPEAL CAN OVERRULE ITSELF

INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPH 18 OF THE 1ST SCHEDULE TO THE ELECTORAL ACT 2010 AS AMENDED AS TO WHEN APPLICATION FOR THE ISSUANCE OF THE PRE-HEARING NOTICE IS TO BE MADE

Paragraph 18 (1) requires a petitioner to apply for the issuance of the pre-hearing Notice within either seven days after the filing and service of his reply on the respondent(s) or within seven days after the filing and service on the petitioner of the respondent(s) reply. Where the respondent’s reply though filed had not been served on the petitioner, the provision of paragraph 18(1) would not come into play. The paragraph is activated only when the reply of either the petitioner or any of the respondents, as the case may be, had been filed and served o either of the two opposing sides. See our reasons for our unreported decision in appeal No. CA/PH/EPT/8/2011 Adonye v. Aye Atamah Pebble & Ors. delivered on 23/9/2011. PER MUSA DATTIJO MUHAMMAD, J.C.A

INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPHS 18 AND 49 OF THE 1ST SCHEDULE TO THE ELECTORAL ACT 2010 AS AMENDED AS TO WHEN PARAGRAPH 18 WILL BE ACTIVATED WHERE THERE ARE MULTIPLE RESPONDENTS

Finally be it reiterated had learned appellants’ counsel read paragraph 18 along with paragraph 49 of the first schedule, the error in his submission that paragraph 18 is only activated at the conclusion of pleadings between all the parties to the petition would have been avoided. Paragraph 49 provides: “49, Two or more candidates may be made respondents to the same petition as their case may, for the sake of convenience be heard at the same time but for all purpose including the taking of security the Election petition shall be deemed to be a separate petition against each of the respondents.” In considering the implication of the foregoing paragraph against the background of paragraph 18 (1) of the 1st schedule of the electoral Act, we held in our unreported decision in appeal No. CA/PH/EPT/25/2011 delivered on 12/10/201 Preye Oseke & Anor v. INEC and 2 Others that where there are multiple respondents any one of them that served the petitioner with his reply is entitled to apply under 18 (3) either for the issuance of the Notice for the pre-hearing session within seven days after the service of the reply on the petitioner or by a motion on Notice returnable 3 days after serving same on the petitioner, apply for an order for the dismissal of the petition. see also Ikoro v. Izunaso (2010) ALL FWLR and AZUDIBIA v. INEC (2010) 4 LREP 105 at 121. In the instant case where the 1st respondent had filed and served the appellants with his reply the former was entitled under paragraph 18 (3) to urge the tribunal to dismiss the petition when the appellants appeared not to have activated paragraph 18 (1) by applying for the issuance of the Notice for the pre-hearing session. 1st respondent’s application, contrary to the finding of the tribunal, must however fail since by the combined effect of paragraphs 18, (1) (3) (4) 47 (2) and 53 (4) a letter written to the secretary of the tribunal by the petitioner within seven days of his being served of the particular respondent’s reply constitutes substantial compliance. The Tribunal is in manifest error to have held that the appellants’ petition had been abandoned inspite of the appellants, letter requesting for the issuance of the pre-hearing Notice dated 16/6/2011 after the service of the 1st respondent’s reply on 16/6/2011. PER MUSA DATTIJO MUHAMMAD, J.C.A

JUSTICES:

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

1. ACTION CONGRESS OF NIGERIA
2. MR. UCHENDU ORLU
(A.C.N. CANDIDATE, OBIO/AKPOR CONSTITUENCY 1) – Appellant(s)

AND

1. MR. MARTIN AMAEWHULE (P.D.P CANDIDATE OBIO/AKPOR CONSTITUENCY 1)
2. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. THE RESIDENT ELECTORAL COMMISSIONER, RIVERS STATE
4. THE ELECTORAL OFFICER, OBIO/AKPOR
5. THE RETURNING OFFICER, OBIO/AKPOR CONSTITUENCY 1 – Respondent(s)

MUSA DATTIJO MUHAMMAD, J.C.A (Delivering the Leading Judgment): On 17/9/2011, I allowed this appeal and remitted the case back to the tribunal wherefrom the appeal emanated for the case to be heard and determined on its merits. I deferred my reasons for the decision to a date to be communicated to the parties subsequently. I now state my reasons for that decision. Before doing so, let me however recount very briefly the facts of the case on which the appeal is predicated.
By their petition dated and filed on 17th May, 2011, the appellants challenged the return of the 1st respondent by the 2nd-5th respondents as the winner of the 26th April, 2011 House of Assembly Election for the Obio/Akpor constituency 1 in River state. Whereas the petition was served on the 2nd-5th respondents on the 23rd May, 2011, the 1st respondent had the petition served on him on 8th June, 2011. Although the two sets of respondents filed their respective replies to the petition on the same day, 13th June 2011, the record of appeal indicates that the replies were served on the Appellants on different dates. 1st respondents reply was served on the appellants on 16th day of June 2011; 2nd-5th respondents reply was, on the other hand, served on the appellants on 6th July 2011 before which date the appellants had, by a letter addressed to the secretary of the tribunal dated 21st June, applied for the issuance of pre-hearing Notice and information sheet as in Forms TF 007 and TF 008.
The 1st respondent by a Notice of motion dated 1st but filed on 4th July 2011 prayed the tribunal to dismiss appellants’ petition as having been abandoned. The application which was brought pursuant to paragraphs 18 (3) and 47 (1) of the first schedule to the Electoral Act 2010 as amended hinged principally on the ground that the appellants who were served with 1st respondent’s reply to their petition had failed, refused and/or neglected to apply formally for the issuance of the pre-hearing notice.
In a considered ruling delivered on 19th July 2011, the tribunal held that appellant’s petition had been abandoned and dismissed same.
Dissatisfied, the petitioners appealed against the tribunals ruling on a Notice containing six grounds.
The 1st respondent has by a formal notice challenged the competence of the appeal which objection has been argued in the 1st respondent’s brief of argument. The law requires that I consider the preliminary objection first. See Ngige v. Obi (2006) 14 NWLR (pt.999) 1 and UBA Plc. V. ACB (Nig.) LTD (2005) 12 NWLR (Pt.939) 232.
The main thrust of the arguments of the learned senior counsel Mr. Agi for the 1st respondent/objector is that the tribunal’s ruling being a consent decision, leave of either the tribunal or this court must be sought and obtained by the appellants for the validity of the appeal. Relying on sections 240 and 241 (2) (c) of the 1999 Constitution as amended and the decisions in AG Lagos State v. Osuoka (2010) 4 NWLR (Pt.1183) 68 at 77, Excel Plastic Ind. Ltd. v. FBN PLC (2005) 11 NWLR (pt.935) 59 at 95-96 and Shell Petroleum Dev. V. Nig. Ltd. v. Azukaeme (2001) 9 NWLR (pt.1252) 350 at 372, learned senior counsel submits that having not obtained the necessary leave, appellant’s appeal is incompetent and should be so adjudged.
Responding, Mr. Otiotio for the appellants/ respondents contends that the decision of the tribunal being appealed against is not a consent judgment and leave of either the tribunal or this court is not for that reason required for same to be competent. Appellants’ failure to oppose the 1st respondent/objector’s application at the tribunal does not amount to their consenting to the tribunal’s decision on the application. Appellants’ right of appeal, learned counsel further argues, is a constitutional one predicated on at least two grounds, 1 and 6, which involve questions of law alone. Learned counsel supports his contention with the decision in IBETO v. AMINU (2002) 5 NWLR (Pt.1028) 46 also relied upon by the 1st respondent/objector, as well as ACB (Nig.) PLC v. AG Anambra State (1992) 8 NWLR (pt.261) page 533 and Uchechukwu v. Belonwu (2009) ALL FWLR (Pt.458) 271 at 273. He concludes that the preliminary objection is misconceived and same be discountenanced.
I agree with learned counsel to the Appellants Mr. Otiotio. To appreciate the misconception of learned senior counsel to the 1st respondent/objector, a resort must be had to S.240, S.241, and S.242, of the 1999 constitution as amended. The sections are hereunder reproduced for ease of reference:
“240 Subject to the provisions of this constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal High court, the High court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal capital Territory, Abuja, Sharia Court of Appeal of a State and from decisions of a Court Martial or other Tribunal as may be prescribed by an Act of the National Assembly.
“241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone decisions in any civil or criminal proceedings;
(c) Not applicable;
(d) Not applicable;
(e) Not applicable;
(f) Not applicable;
(i) Not applicable;
(ii) Not applicable;
(iii) Not applicable;
(iv) Not applicable;
(v) In such other cases as may be prescribed by an Act of the National Assembly.
(2) Nothing in this section shall confer any right of appeal-
(a) not applicable;
(b) not applicable;
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.
242. (1) Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
It clearly draws from a community reading of the foregoing clear and unambiguous provisions that a person’s right of appeal and the powers of the court to determine the appeal pursuant to such right are as provided for by the constitution itself. Although s. 240 of the 1999 constitution as amended confers jurisdiction on the court of appeal “to the exclusion of any other court of law in Nigeria”, to hear and determine appeals from the courts and tribunals thereunder designated, including the National and State House of Assembly Election Petition Tribunal from which the instant appeal emanated, that jurisdiction is only exercisable in relation to such right of appeal created by virtue of either S. 241 and 242 or S.246 of the very constitution
I am of the firm and considered view that S.241 and s.242 of the constitution do not provide for rights of appeal in respect of decisions of the tribunal from which the instant appeal arose: the National and State House of Assembly Tribunal established under S.285 of the constitution. In the clear words that make up the sections, S.241 and S.242, the two species of right of appeal, an appeal as of right and one with leave of either the Court of Appeal or the Court from which the appeal emanates, “lie from decision of the Federal High Court or a High Court” only. The rights of appeal thereunder created are not in respect of decisions of the tribunal which decision brought about the instant Appeal. It follows that S.241(2) which requires that leave be sought and obtained in respect of an appeal against a decision made with the consent of the parties thereto does not apply to “the instant appeal since the decision being appealed against is neither from a Federal High Court nor a High Court.
In any event, the decision of the tribunal from which the instant appeal arose, as rightly submitted by learned counsel to the Appellants, is not a consent judgment that would have required leave of either this court or the tribunal for its validity were the provisions of S. 241 (2) (c) even to apply. A consent judgment is one the terms of which are settled and agreed to by the parties to the action. For a judgment to be a consent judgment, the parties thereto must be ad idem and their consent freely and voluntarily given. See R. ASC Ltd. v. Akib (2006) 13 NWLR (Pt. 997) 333 SC, Ogoejofo v. Ogoejofo (2002) 12 NWLR (Pt. 780) 171 and Alpha Prop. International Ltd. v. NDIC (2006) 1 NWLR (Pt. 962) 624 CA. In the case at hand the judgment of the tribunal appealed against does not fall into this particular class. The record of appeal bears out learned Appellants counsel that the Appellants did not consent to the tribunal’s ruling. The only right of appeal against the decision of the National and State House of Assembly Election Tribunal such as the one at hand is as provided for under S.246 of the 1999 Constitution as amended hereunder reproduced for ease of reference:
“S.246 (1) An appeal to the Court of appeal shall lie as of right from –
(a) Decisions of the National and State Houses of Assembly Election Tribunals; on any question as to whether
(i) Any person has been validly elected as a member of the National Assembly or of House of Assembly of a state under this Constitution.
(ii) The term of the office of any person has ceased or the seat of any such person has become vacant.”
The foregoing is a more specific provision which in law excludes the general provisions under s.241 and s. 242 of the same constitution in terms of an Appellant’s right of appeal arising from decisions of Election petition tribunals. The maxim generalia specialibus non derogant, applies. see Orubu v. NEC (1988) 5 NWLR (PT. 94) 323 at 349; Oyekan v. Akinjide (1965) 1 All NLR 200 and Chief Sam Mbakwe (1984) 1 SC 325. The section creates a single specie of right of appeal. An appeal to this court from decisions of the tribunal in the clear and unambiguous words of the section lie as of right. The appellants herein do not, therefore, require leave of either this court or the tribunal before appealing against the latter’s decision dismissing their petition which challenges the election and return of the 1st respondent/objector.
I must further observe that the section makes no distinction between a decision of the tribunal to which parties had consented following their agreement as to the terms of the judgment as against, other decisions.
Once the tribunal’s decision is being appealed against on any question as to whether the respondent has been validly elected as a member of the National Assembly or of House of Assembly of a state or whether the seat of such elected respondent has become vacant, appeals arising from such decisions would lie as of right.

It is the principle that for the right of appeal to exist, being a curtailment of the jurisdiction of the court or tribunal from which the appeal lies and an extension of the jurisdiction of the court to which the appeal lies, it must be statutorily, conferred. An appellant’s right of appeal exists and activates the jurisdiction of the appellate court only where same is within the purview of the statute that creates the right. see Onitiri v. Benson (1960) 5 FSC 150 at 155 and Ohai v. Akpemonye (1999) 1 NWLR at 529 (pt 588) 521. In the instant case, the appeal which arises from the tribunal’s decision terminating the appellants’ petition challenging the election and return of the 1st respondent is unquestionably competent. For all these, I find 1st respondent’s preliminary objection lacking in merit. I discountenance same and shall now consider the appeal on its merits.
Parties have filed and exchanged their briefs of arguments inclusive of appellants’ reply briefs to the two sets of respondents. The two issues formulated in the appellants’ brief as having arisen for the determination of the appeal read:
“1. Whether the tribunal had the jurisdiction to hear and determine the 1st respondent. Motion as it did not consider the circumstances of the case.
2. Whether the petition was rightly dismissed for non compliance with paragraph 18(1) of the first schedule in the Electoral Act 2010.”
1st Respondent appears to have adopted the foregoing issues of the appellants given the arguments proffered in his brief. The 2nd-5th respondents’ brief contain a sole but composite issue for the determination of the appeal thus:
“Whether on the facts before the Honourable Tribunal on the 13rd day of July 2011 the Tribunal was right to have heard the motion of the 1st respondent and dismissed the petition of the petitioners as abandoned.”
The appeal shall be determined on the basis of the complaints the appellants levied against the tribunals decision as contained in their two issues.
Learned appellants’ counsel Mr. Otiotio argued the two issues jointly in their brief. He contends that the motion for the dismissal of their petition, given the provision of paragraph 47 (1) of the first schedule to the Electoral Act 2010 as amended, was premature. The leave the tribunal granted the respondent to argue the motion before the pre-hearing session, during which it should have been moved, learned counsel submits, is a serious error in Law. Learned counsel contends that the affidavit in support of the motion did not disclose the urgency the existence of which warrants the exercise of the tribunal’s discretion in the applicants favour. Relying on the decisions in Okereke v. Yar Adua (2008) 4 FWLR (pt 443) 647 at 647 AGF V. Guardian Newspaper Ltd. (1999) NWLR (Pt618) 187, Ajao v. Ajao (1985) 5 NWLR (pt 45) 802, Madukolu v. Nkemdilim (1962) 1 ALL NLR 589 and Umon Bank plc v. Astra Builders Ltd (2010) 2 KLR (Pt 277) 769 at 771; learned counsel urges the resolution of the issue in appellants, favour on the 2nd issue, learned counsel argues that the tribunal was wrong to have decided that appellant’s petition had been abandoned. The record of appeal indicates that the 1st and 2nd-5th respondents to the petition served with the petition on the 8th June 2011 and 23rd May 2011 respectively. The former filed his reply on 13/6/2011 but served same on appellants on 16/6/2011. The latter who though filed their reply on 13/6/2011 had the very reply served on the appellants on 8/7/2011 with leave of the tribunal. The appellants, argues learned counsel, had seven days from the day they were served the reply of the 2nd and last set of respondents to apply for the issuance of the pre-hearing Notice. The dismissal of the petition by the tribunal on 13rd July 2011, submits, earned counsel, was therefore premature.
In any event, learned counsel further contends, appellants had, by a, letter written by their counsel to and duly acknowledged by the tribunals secretary, applied for the issuance of the prehearing notice on the 21/6/2011 well within the time stipulated under paragraph 18 (1) of the 1st schedule to the Electoral Act 2010 as amended. Buttressing these submissions with the decisions of this court in Ikoro v. Izunaso (2010) ALL FWLR (PT. 521) 1550 at 1567 1 and Ohaka v. Eze (2010) All FWLR (PT 525) 3S0 at 391 -392, Learned counsel insists that they have been unjustly foreclosed and this necessitates the resolution of their 2nd issue as well as the appeal in their favour.
Responding, learned senior counsel for the 1st respondent submits that the tribunal’s leave had been sought and obtained as required under paragraph 47 (1) of the 1st schedule to the Electoral Act before the application for the dismissal of appellants petition was moved. The abandonment of a petition, it is further submitted, constituted such extreme circumstance for the application to be heard before the pre
hearing session and granted. The facts of the instant case, counsel contends, disentitle the appellants’ reliance on the Supreme Court decision in Okereke v. Yar Adua (supra).
Under the 2nd issue, learned senior counsel concedes that 1st respondent’s reply to the petition though filed on 13th June 2011 was served on the petitioners/Appellants on the 16th June 2011. He further submits that with or without the appellants’ reply to 1st respondent’s reply, which by paragraph 16 (1) of the 1st schedule of the Electoral Act as amended the petitioners/appellants must file within five days of their being served the 1st respondent’s reply to the petition, the mandatory provision of paragraph 18 (1) gives the petitioner/appellants, seven days after the service of a reply to his petition to apply for the issuance of Notice for the pre-hearing session. Appellant’s seven days grace to apply for the Notice, since 1st respondents reply was filed on the 13th June, 2011, learned senior counsel argues, terminated on the 2011 June 2011. By the 21st June 2011 when appellants’ purported letter addressed to and acknowledged by the secretary of the tribunal was written, time for applying for the issuance of the notice had lapsed. Furthermore, the combined effect of paragraphs 18 (1) and 47 (1) of the 1st schedule of the Electoral Act as amended provides for a motion as the only mode of making any application to the tribunal.
Concluding, learned senior counsel submits that appellants are wrong in law to assert that their time within which to apply for the issuance of the pre-hearing notices commences only after the replies of all the respondents to their petition had been filed and served on them. Learned counsel urges that the two issues be resolved against the appellants and the appeals dismissed.
Aguma Esq. learned counsel for the 2nd – 5th respondents at paragraph 2.8 of the latter’s brief also admits that the appellants had by a letter dated 21st June, 2011 addressed to and received by the secretary of the tribunal applied for the issuance of the pre-hearing Notice as contained in Form TF 007 and TF 009. Paragraphs 18 (1) and 47 (1) of the Electoral Act allows application for that purpose only by way of motion. Election petition, counsel submits, is sui generis and the slightest infraction reads to fatal consequences in the proceedings relying on Okereke v. Yar Adua supra, Ado v. Makera (2009) a NWLR (pt.1147) 491 Riruwai v. Shekarau (2008) 12 NWLR (pt.1100) 142, Ikoro v. Izunaso (2010) ALL FWLR (pt 521) 1550 and Ohaka v. Eze (2010) ALL FWLR (PT 525), 1630 learned counsel also urges that the appeal be dismissed.
I hasten to state in respect of appellants’ first issue that paragraph 47 (1) of the 1st schedule of the Electoral Act 2010 as amended empowers the tribunal, where leave is sought and obtained by the applicant, to allow motions to be moved before or after the pre-hearing session. The record of appeal clearly shows that 1st respondent had sought, and the appellants did not oppose the relief so sought, the leave of the tribunal before moving his application for the dismissal of appellants’ petition. Time has always been of the essence of Election petitions and has become all the more so given S.285 (6) of the 1999 Constitution which requires that ”an Election Tribunal shall deliver its judgment in writing within 180 days from the date of filing the petition.” The provisions of the 1st schedule are put in place to actualize this constitutional requirement as to the essentiality of the time element in election matters. Compliance with these adjectival enactments and now more profoundly the constitutional requirement, as clearly enunciated in Okereke v. Yar Adua (supra), is an imperative.

The Tribunal’s powers to grant leave in “extreme” circumstances to enable applicant’s move their motion outside the prehearing session is discretionary. Where such powers have been exercised judicially and judiciously the appellate court would not interfere. See Offordile v. Egwuatu 1 NWLR (pt. 961) 421. In Re: Alase (2002) 10 NWLR (pt.776) 553 and Oduha v. Houtmangracht (1997) 6 NWLR (pt.508) 185.
In the instant case, the appellants whose duty it is to show that the tribunal in the exercise of its discretionary powers has done so arbitrarily failed to do so. I agree with learned respondents’ counsel that the essence of time in election matters constitutes an “extreme circumstance” justifying the leave granted to the respondent in the face of appellant’s seeming noncompliance with paragraph 18 (1) of the 1st schedule to move his motion for the dismissal of the petition outside the pre-hearing session. It is for this reason that I resolve the 1st issue against the appellants.
Ordinarily, the resolution of appellants’ 2nd issue for the determination of the appeal needs not take too much of our time.There certainly exist conflicting decisions of this court on the question the issue raises. The law however allows us to depart from our previous conflicting decisions and/or choose the one to follow in certain circumstances. The overwhelming unanimity in the court’s recent decisions on whether or not a petitioner’s letter to the secretary of the tribunal that Notice be issued for the pre-hearing session satisfies the requirement of paragraph 18(1) of the Electoral Act’s first schedule is a welcome and lawful departure from some of the court’s earlier decisions to the contrary.

In Young vs. Bristol Aeroplane Ltd, (1944) ALL ELR (VOL 2) 293 at 294, the court of appeal in England held that generally the court of Appeal is bound by its previous decisions as well as those of coordinate jurisdiction except where (I) there are two conflicting decision on the same issue in which case it is at liberty to chose either of its two conflicting decisions(II) where though not expressly overruled the court of appeal decision is inconsistent with a decision of the House of lords (III) where the court’s decision was given per incuriam. The same principle now forms part of our jurisprudence.

In C.C.B (Nig.) Ltd v. Onwuchekwa (2000) 3 NWLR (pt. 647) 65 at 73, while departing from our earlier decision, I said:
“As a general rule, this court does not have power to overrule it’s previous decisions, That exceptions to this general rule exist is equally not in doubt. See Megwalu w Magwalu (1996) 2 NWLR (PT. 425) 104; Emecheta v. Ogueri (1998) 12 NWLR (pt. 579) 502; Usuman v. Umaru (1997) 7 NWLR (pt.254) 377 at 398.
In a proper case, this court can decide to overrule itself. Thus where the court’s decision was given in ignorance or forgetfulness of some statutory provision or where the decision though not expressly overruled cannot stand with a decision of the Supreme Court, the Court of Appeal would be entitled to overrule itself by refraining from applying such of its decisions arrived at per incuriam. See Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt.184) 157; Utih v. Onoyivwe (1991) 1 NWLR (pt.166) 166 at 205 SC; Dr. Olu Onagoruwa v. The State (1992) 5 NWLR (PT. 244) 773; Camptel Intl. SPA V. Dexson Ltd. (1996) 7 NWLR (PT. 459) 170 AT 184.
This court’s decision in C.C.B. (Nig) Plc. v. Ositvawax (supra) stands in clear and violent conflict with the Supreme Court decisions in Tesi Opebiyi v. Shittu Oshoboja (1976) 9 and 10 SC 195 and Nzom v. Jinidu (1987) 1 NWLR (Pt. 57) 533 which it sought to apply” (underlining supplied for emphasis)
The foregoing remains the position of the law.
In concluding my judgment in that case I stressed the wisdom in the principle which allows a court to overrule its previous decisions thus:
“Before I conclude, the candour and sense of duty with which counsel presented their arguments need to be commended. The truth about knowledge is that it is frighteningly overwhelming in its depth and breadth. No matter how basic a seeming ignorance is, the commanding necessity to replace same with true knowledge cannot be over emphasized.
This is moreso, when law and justice form process and system which stand misinformed. It is no gainsay that where the law becomes uncertain the courts and the legal profession suffer most for the lapse. Confidence in them erodes fast. But most importantly justice accordance with the law is compromised. Together with counsel and the like of them shall remain alert and more dedicated in sustenance of the noble contribution dispassionately and honourably made.”
This appeal offers us another instance to discharge this duty. This court’s decisions in Riruwai & Ors. Vs. Sheharau & Ors. (2008) 12 NWLR (pt. 1100) 142 Garba Ado & Anor. v. Makera & Ors. (2009) 9 NWLR (pt.1147) 491 and Badamasi Ayuba v. INEC unreported Appeal No. CA/EP/K/15/2007 delivered on Thursday 14th May 2009 do not avail the respondents in this case. I shall immediately state the reasons some of which my brother Saulawi JCA admirably captured in his yet to be reported judgment in Appeal No. AC/J/EP/HR/127/2011 delivered on 22/8/2011.
The decisions relied upon by the respondent as reproduced supra were arrived at solely on the basis of paragraphs 3 and 6 (2) of the 2007 Election Tribunal and Court Practice Directions which are ipssi verba to paragraphs 18 and 47 (2) of the 1st schedule of extant Electoral Act 2010 which provides:
“47 (2) Where by 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 of the respondent.”
In determining the appeal in Riruwai v. Shekarau supra and the two other cases the court did not consider paragraph 49(1) of the 2006 Electoral Act which is similar to paragraph 53(4) of the 1st schedule to the electoral Act 2010 as amended. The paragraph reads:
“53 (4) An Election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the tribunal or the court.” (underlining supplied for emphasis)
Paragraph 18 (1)(2) (3) and (4) of the Electoral Act’s 1st schedule under which appellants’ petition was dismissed as having been abandoned is hereunder reproduced for ease of reference:
“18. (1) within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply, as the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.
(2) Upon application by a petitioner under subparagraph (1) of this paragraph, the tribunal or court shall issue to the parties or their legal practitioners (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in Form TF 008 for…………
(3) The respondent may bring the application in accordance with subparagraph (1) where the petitioner fails to do so, or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.
(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.”
A community reading of paragraphs 18(1)(2)(3) and (4), 47 (2) and 53 (4) of the Electoral Act’s 1st schedule support the Appellants contention that they had substantially complied with the requirement of paragraph 18(1), and assuming without so holding that their letter was not the motion contemplated under paragraph 47(2), the lapse is only as to the form rather than the substance of the letter by which the appellants “applied” for the issuance of the pre-hearing Notice. Our decisions in Riruwai v. Shekarau and such other decisions of this court on the same facts and law having been arrived at per incuriam, cannot continue to rule us. We are entitled to depart from them even on that ground alone. See C.C.B. (NIG.) LTD v. ONWUCHEKWA supra Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) 166 at 205 Ndili v. Akinsumade (2000) 8 NWLR (Pt.668) 293.
We must restate at this point those facts which ceased to be in dispute between the parties herein. Firstly, the record shows very clearly that though the 1st respondent’s reply to the petition was filed on 13th June, 2011, same was served on the petitioner on the 16/6/2011. Page 125 of the record, of appeal contains the petitioner’s letter to the secretary of the tribunal for the issuance of the pre-hearing Notice. The letter reads:
“21st June, 2011
The Secretary,
National and State House of Assembly
Tribunal,
Port Harcourt,
Rivers State.
Dear Madam,
APPLICATION FOR ISSUANCE OF FROM TF 007 AND TF 008: HEARING NOTICE FOR PRE-HEARING SESSION AND PRE-HEARING INFORMATION SHEET RESPECTIVELY
We Solicitors to the petitioners (who we hereinafter refer to as our client) in EPT/SHA/PH/25/2011: CAN & ANOR. v. MR. MARTIN AMAEWHULE & ORS.
We wish to apply for the afore-mentioned forms.

We are ready to pay applicable fees upon request.

Thank you in anticipation of your co-operation.

Yours faithfully,

Pp: H. E. Wabara & Co.
U.R. Ezekiel, Esq
Solicitor”

The tribunal granted 1st respondent’s application for the dismissal of appellants’ petition as same had been abandoned resulting from the latter’s failure to apply by way of motion as required by paragraph 47 (2) of the 1st schedule to the Act.
Appellants’ letter speaks for itself. It applies for the issuance of the Notice for the pre-hearing session as required by paragraph 18 (1) of the 1st schedule of the Act. Can the appellants in all honesty be adjudged as having “abandoned” their petition given their request for the issuance of the Notice as contained in their letter supra? I am certain the tribunal is wrong in their conclusion in this regard. By the 6th edition of the Oxford Advanced learner’s Dictionary, a thing is said to be “abandoned” if it is left because same is no longer wanted or useful. Abandonment, a noun, is the act of leaving a thing with no intention of returning to it. If appellants had no intention of prosecuting their petition they would not have asked, by their letter, to be allowed to fulfil a condition precedent to the attainment of that objective. The letter, contrary to the conclusion of the tribunal, signifies the petitioner’s resolve to pursue their case!
The content of the letter written by the appellants disentitles any court or tribunal from a contrary conclusion.
The Tribunal decision arrived at without adverting its mind to paragraph 53 (1) of the Electoral Act is manifestly wrong and unjust. Had the tribunal given a holistic interpretation of at the paragraphs on the subject under reference, it would have come to a decision contrary to the one it did. Again, for the further reasons contained in all our earlier decisions on the basis of which this court is entitled to depart from the decisions in Riruwai v. Shekarau supra and others, the tribunal’s ruling must not persist. That is what the justice of the instant case demands. In Erisi v. Idika (1987) 4 NWLR (Pt.66) 503, the Supreme Court stated Per Nnamani of blessed memory thus:
“It remains for me to say with all respects, that substantial and well reasoned as this objection has been, it is nevertheless a further journey into the arena of technicalities. This court has resolutely set its face against them. Preferring in decisions of which Nofiu Surakatu v. Nigeria Housing Society Ltd. Anor. (1981) 4 SC page 26 may be one of those making the beginning of that stance to do substantial justice between the parties. The courts are courts of law but may the day never come when they cease to be courts of justice.”
(underlining supplied for emphasis)
There is no doubt that the appellants letter was written, dispatched to and received by the secretary on the 21/6/2011. Since 1st respondent’s reply to the petition was served on the appellants on the 16/6/2011, their letter was within the seven days provided for making such application under paragraph 18(1). We must interfere with the tribunal’s decision that seeks to emphasize the technicalities rather than the justice of the case before it.

Before now this court had taken this wise and just position in Hassan v. INEC (2008) 39 WRN 31 and Dimegwu v. Ogunewe and Ors. (2008) 4 NRECN 458 wherein we held application for the issuance of Notice for the pre-hearing session by letter constitutes sufficient compliance. We cannot depart from the position.
A few words before I am done.
Learned counsel for the appellants as well as Mr. Agi SAN for the 1st respondent had sought to usurp the powers of the legislature in the course of arguing the appeal. Mr. Agi inter alia argues that appellants were to apply for the issuance of the Notice for the pre-hearing session within seven days after the filing of the reply of any of the respondents.
Learned counsel to the appellants, on the other hand, submits that appellants were to apply for the said Notice after pleadings between all the parties to the petition had been concluded. Mr. Otiotio contends that as at 8th July 2011 when 2nd – 5th respondents reply was deemed, following the tribunal’s order, filed and served and in-spite of the fact that 1st respondent’s reply had been served on the appellants since 16/6/2011, appellants still had time to file their application.
Both counsel are manifestly wrong in their submissions counsel do not have the legal right of either expanding or restricting the language or wordings of a statute. Their duty is limited to assisting the court in discovering the intention of the legislature which is attained by principally assigning to the clear and unambiguous words of the relevant sections of the statute their literal meaning within the purview of the entire statute see Ojukwu v. Yar’adua (2009) 12 NWLR (Pt.1154) 50 at 21.

Finally be it reiterated had learned appellants’ counsel read paragraph 18 along with paragraph 49 of the first schedule, the error in his submission that paragraph 18 is only activated at the conclusion of pleadings between all the parties to the petition would have been avoided. Paragraph 49 provides:
“49, Two or more candidates may be made respondents to the same petition as their case may, for the sake of convenience be heard at the same time but for all purpose including the taking of security the Election petition shall be deemed to be a separate petition against each of the respondents.”
In considering the implication of the foregoing paragraph against the background of paragraph 18 (1) of the 1st schedule of the electoral Act, we held in our unreported decision in appeal No. CA/PH/EPT/25/2011 delivered on 12/10/201 Preye Oseke & Anor v. INEC and 2 Others that where there are multiple respondents any one of them that served the petitioner with his reply is entitled to apply under 18 (3) either for the issuance of the Notice for the pre-hearing session within seven days after the service of the reply on the petitioner or by a motion on Notice returnable 3 days after serving same on the petitioner, apply for an order for the dismissal of the petition. see also Ikoro v. Izunaso (2010) ALL FWLR and AZUDIBIA v. INEC (2010) 4 LREP 105 at 121
In the instant case where the 1st respondent had filed and served the appellants with his reply the former was entitled under paragraph 18 (3) to urge the tribunal to dismiss the petition when the appellants appeared not to have activated paragraph 18 (1) by applying for the issuance of the Notice for the pre-hearing session. 1st respondent’s application, contrary to the finding of the tribunal, must however fail since by the combined effect of paragraphs 18, (1) (3) (4) 47 (2) and 53 (4) a letter written to the secretary of the tribunal by the petitioner within seven days of his being served of the particular respondent’s reply constitutes substantial compliance. The Tribunal is in manifest error to have held that the appellants’ petition had been abandoned inspite of the appellants, letter requesting for the issuance of the pre-hearing Notice dated 16/6/2011 after the service of the 1st respondent’s reply on 16/6/2011.
On the whole, I resolve the 2nd issue in appellants, favour. The foregoing, are the reasons for my earlier decision in allowing the appeal, setting aside the tribunal’s erroneous ruling of 19/7/2011 and remitting the petition to the tribunal for same to be determined on the merits, I assess the costs of the appeal at N30,000 naira against the 1st respondent in favour of the appellants.

P.A. GALINJE, J.C.A.: I agree.

T.O. AWOTOYE, J.C.A.: I agree.

Appearances For Appellant

AND For Respondent