ACTION CONGRESS OF NIGERIA & ANOR v. RAPHAEL NOMIYE & ORS.
(2011)LCN/4807(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of September, 2011
CA/AK/EPT/HR/3/2011
RATIO
OBJECTION TO JURISDICTION: REASON FOR CONSIDERING OBJECTION TO JURISDICTION FIRST BEFORE CONSIDERING THE MAIN APPEAL
Objection to jurisdiction is usually taken so to speak at the doorway of the court before entering into the house proper for the simple reason that no matter how well conducted a trial, if the court has no jurisdiction, then the whole trial is a nullity. It is a principle of law that seeks to prevent a waste of judicial time and effort. It neither removes the jurisdiction of the court if there is one nor does it confer jurisdiction where there is none. PER CHINWE EUGENIA IYIZOBA, J.C.A.
INTERPRETATION OF STATUTE: MEANING OF THE PHRASE “RETURNABLE IN THREE CLEAR DAYS” AS CONTAINED IN PARAGRAPH 18(3) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT
Paragraph 18(3) of the 1st Schedule to the Electoral Act provides: “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 three clear days, apply for an order to dismiss the petition”. The appellants contend that the requirement that the motion should be “returnable in three clear days” is mandatory and requires the Tribunal to hear the motion for dismissal in three clear days. The phrase “returnable in three clear days” cannot be interpreted to mean that the Tribunal must hear the motion for dismissal in three clear days. Blacks Law Dictionary defines “return day” as (1) a day on which the defendant must appear in court (as for an affaignment), (2) a day on which a defendant must file an answer, (3) a day on which proof of service must be returned to the court, (4) a day on which a writ of execution must be returned to court, (5) a day specified by law for counting votes in an election. The word “Return” is also defined as “A court officer’s bringing back of an instrument to the court that issued it” It is clear therefore that in the context of the proviso what is meant is that the petitioner on whom the motion for dismissal is served must be given three clear days to respond, that is the return date on the motion paper should be three days from the date of the filing of the motion. It certainly does not mean that the motion must be heard on that day. The view of the Tribunal upholding the contention of the respondents herein that the phrase is a directive to ensure that at least 3 clear days is allowed for the petitioner to respond to the motion for dismissal of the petition before the motion is heard and determined is unassailable. PER CHINWE EUGENIA IYIZOBA, J.C.A.
INTERFERENCE WITH THE LOWER COURT’S JUDICIAL DISCRETION: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL NOT INTERFERE THE EXERCISE OF THE LOWER COURT JUDICIAL DISCRETION
If judicial discretion has been exercised bona fide, not arbitral or illegally by a court of law, an appeal court will not ordinarily interfere with that exercise. D.P.C.C. Ltd v. B.P.C. Ltd [2008] 4 NWLR (P1.1077) 376 @ 403. PER CHINWE EUGENIA IYIZOBA, J.C.A.
APPLICATION FOR ISSUANCE OF PRE-HEARING NOTICE: WHETHER THE APPLICATION FOR ISSUANCE OF PRE-HEARING NOTICE MENTIONED UNDER PARAGRAPH 18 (1) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT MUST BE MADE BY WAY OF A MOTION
Without much ado, it is necessary to point out that at the time the Tribunal delivered the ruling appealed against; the prevailing view of this court based on the cases referred to above was that the application must be by motion. But in the recent yet unreported case of Gebi v. Dahiru Appeal No. CA/J/EP/HR/127/201, a full court of this Court sitting in Jos reversed the dominant view as laid down in the above mentioned cases that the application must be by motion. They held that the word “application” in paragraph 18 (1) of the 1st Schedule to the Electoral Act must be given its literal ordinary meaning. The application must not be by motion only. A written application or any other means which puts the facts of the request on record as evidence of compliance will suffice. In her contribution to the lead judgment, His Lordship, Monica B. Dongban-Mensem (JCA) observed: “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 puts the fact of the request on record as evidence of compliance. The application/request to issue activates the process of issuing Form TF007 which is done by the Secretary to the Tribunal (paragraph 7 (i) of 1st Schedule of the Electoral Act). It befuddles me that so much ado is made about this very unambiguous provision and it is even more curious to expect that a Petitioner can be shut out at infancy, upon an alleged failure to make this application by way of a motion!” The appellants herein are consequently right that the “application” under Paragraph 18 (1) need not necessarily be by motion. PER CHINWE EUGENIA IYIZOBA, J.C.A.
ABANDONED ELECTION PETITION: CIRCUMSTANCE IN WHICH THE TRIBUNAL OR COURT SHALL DISMISS THE PETITION AS AN ABANDONED PETITION
Paragraph 18 (4) provides that where the Petitioner and the Respondent fail to bring an application under the 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. The argument that the Tribunal raised the issue suo motu and proceeded to rule on it without giving the parties the opportunity to address the Tribunal on the issue is clearly misconceived. The Tribunal on being satisfied that neither the appellants nor the respondents applied for issuance of pre-hearing notice within the time allowed by the rules was correct in doing exactly what the rule says it should dismissing the Petition as abandoned. PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES:
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. ACTION CONGRESS OF NIGERIA (ACN)
2. RAWA FELIX EMILOJU – Appellant(s)
AND
1. RAPHAEL NOMIYE
2. LABOUR PARTY (LP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the National and State House of Assembly Election Tribunal Akure Ondo State delivered on the 14th day of July, 2011 in which the Tribunal dismissed the petition of the appellants as abandoned for failure to apply for pre-hearing session as required by law. We heard the appeal on the 25th day of August 2011. We delivered judgment that same day dismissing the appeal and indicated that reasons will be given later. We now give the reasons.
The 2nd appellant, Rawa Felix Emiloju was sponsored by the 1st appellant Action Congress of Nigeria (ACN) in the election conducted by the 3rd respondent, INEC for the Ilaje/Ese-Odo Federal Constituency in the House of Representatives held on 9/4/2011. The 1st respondent, Raphael Nomiye sponsored by the 2nd respondent, Labour Party (LP) was declared the winner of the election with 29,905 votes. The 2nd appellant scored 3,394 votes. There were other candidates sponsored by other political parties including PDP whose candidate scored 22,945 votes.
Being dissatisfied with the declaration of the 1st respondent as the winner of the election, the appellants as petitioners on 29/4/2011 presented a petition before the Tribunal challenging the result of the election. The petition was wrongly headed “Senate/House of Representatives Tribunal”. The respondents filed their respective replies and therein raised objection to the competence of the Petition on the ground that it was presented before a Tribunal unknown to Law. The appellants filed their reply to the 2nd respondent’s reply on 23/5/2011 and to the 1st and 3rd respondents’ replies on 31/5/2011.
Then instead of applying for the issuance of pre-hearing notice as required by the Rules of Procedure of the Tribunal, the appellants proceeded to file a series of motions including one for the amendment of the heading of the petition. The Tribunal granted the amendment despite the objection of Counsel to the 3rd respondent that the hearing of the motion for amendment was premature as it should be dealt with during the pre-hearing session.
On 9/6/11, the 3rd respondent filed a motion to dismiss the Petition for failure of the petitioners to apply for issuance of pre-hearing notice, the time provided by the rules having lapsed. On that same 9/6/11 the appellants filed their amended petition and Forms TF007 and TF008. The two forms were apparently filed without any formal application or motion to the Tribunal and after the time allowed by the Rules had lapsed. The appellants claimed an oral application was made.
On 20/6/11, the 1st and 2nd respondents also filed a motion for the dismissal of the Petition on the ground that no application for issuance of pre-hearing notice was filed and that the hearing notice was issued after the time limited for so doing had lapsed.
The appellants filed a preliminary objection to the hearing of the respondents’ applications. All the applications were consolidated and heard by the Tribunal on 4/7/11. In its ruling delivered on 4/7/11, the Tribunal overruled the appellants’ preliminary objection, set aside the pre-hearing notice TF007 and dismissed the petition as abandoned.
Dissatisfied and aggrieved by this ruling, the appellants on 28/7/11 filed a notice of appeal with 12 grounds of appeal. It is pertinent to mention that the 1st respondent was not listed as a person directly affected by the appeal in the Notice of appeal. Another name appeared in place of the 1st respondent’s name. From the 12 grounds of appeal, the appellants formulated the following six issues for determination:
1. Whether the Tribunal erred in consolidating notice of preliminary objection of the Appellant dated 24/6/2011 and 1/7/2011 with the 1st and 2nd respondents’ application dated 20/6/2011 and 3rd respondent’s application dated 9th June 2011.
2. Whether the Tribunal has jurisdiction to entertain the application of the 1st and 2nd respondents dated 20/6/2011 and the 3rd respondent’s application dated 9th of June 2011
3. What is the exact interpretation of the application contained in paragraph 18 (1) of the Rules of Election Petition and whether the alleged failure to apply for pre-hearing session by motion is not an irregularity as to procedure and form and can the trial Tribunal under the rules of Procedure of Election Petition exclude the rules of Federal High Court 2009 and decisions of the Appeal Court and Supreme Court given pursuant to its civil jurisdiction from being applicable to the application before the Tribunal.
4. Whether the Tribunal can raise abandonment of the petition as a ground of dismissal of petition suo motu in its ruling on application of parties without hearing from any party in the petition on the said issue of law.
5. Whether the Tribunal can disregard the amended petition which it ordered in computation of time in respect of close of pleadings before the Tribunal.
6. Whether the ruling of the Tribunal dated 14/7/2011 which was not signed by the three judges of the Tribunal is valid and regular.
The 1st and 2nd respondents in their brief gave notice of a preliminary objection to the effect that the honourable court has no jurisdiction to hear and determine the appeal on the ground that the 1st respondent was not listed as a person directly affected by the appeal in the notice of appeal and no address for service was indicated for the 1st respondent. In the alternative, Counsel for the 1st and 2nd respondents identified just the following single issue for determination in this appeal:
1. Whether in the circumstances of this case the learned members of the Election Tribunal were right when they dismissed the petition on the ground that no application for the issuance of Notice of pre-hearing session was made by the petitioner.
Learned Counsel for the 3rd respondent in his brief formulated the following three issues for determination:
1. Whether the Tribunal was right in considering/hearing the respondents’ ‘application’.
2. Whether the amendment of a petition reopens pleadings for the purpose of computation of time within which a petitioner should apply for a pre-hearing session under paragraph 18 of the rules of procedure for Election Petitions.
3. Whether the failure of the Petitioner to formally apply for the issuance of a pre-hearing notice is fatal to the Petition.
Learned Counsel in his brief also contended by way of preliminary objection that the appeal is incompetent and should be struck out on the ground that there is no valid notice of appeal as all the grounds of appeal are incompetent, argumentative and replete with legal conclusions. Further, that the issues formulated from the grounds are incompetent for various reasons.
When the appeal came up for hearing, the court on the application of the appellants. Counsel and in the absence of opposition from the respondents granted leave to the appellants to amend paragraph 5 of their notice of appeal by deleting Arowele Samuel Ayodeji from the list of persons directly affected by the appeal and adding Raphael Nomiye the 1st respondent in this appeal. This then rendered otiose the preliminary objection of the 1st and 2nd respondents which they consequently abandoned. Learned Counsel for the 3rd respondent allowed the appellant’s counsel to argue his brief without moving his own preliminary objection and thereby is deemed to have abandoned same. In spite of the criticism of the issues formulated by the appellants, the 3rd respondent’s counsel in discussing his lone issue dealt with nearly all the issues raised by appellants’ counsel. I shall consequently adopt the issues formulated by the appellants in the determination of this appeal notwithstanding that some of the issues could have been more elegantly and concisely framed.
Issue 1:
Whether the Tribunal erred in consolidating notice of preliminary objection of the appellant with the respondents’ application for dismissal of the petition. The contention of the appellants on this issue is that the Tribunal erred in law in consolidating all the four applications that is, the appellants’ two notices of preliminary objection challenging the jurisdiction of the Tribunal to hear the applications in the first instance; and the two applications for dismissal of the petition. They argued that the Tribunal should have first heard their own two applications on jurisdiction being a thresh-hold issue and given its ruling thereon before proceeding further. They relied on the case of Obi vs. INEC [2007] NWLR (Pt.1046) 436. The appellants further contended that the Trial Tribunal by consolidating the applications had already pre determined the preliminary objection in favour of the respondents.
In response Chief Adeyeye for the 1st and 2nd respondents conceded that jurisdiction is a thresh-hold issue and fundamental to the hearing or decision of the court. Objection to jurisdiction is usually taken so to speak at the doorway of the court before entering into the house proper for the simple reason that no matter how well conducted a trial, if the court has no jurisdiction, then the whole trial is a nullity. It is a principle of law that seeks to prevent a waste of judicial time and effort. It neither removes the jurisdiction of the court if there is one nor does it confer jurisdiction where there is none. Learned Counsel submitted that the Tribunal in the exercise of its discretion consolidated the applications but decided first the issue of jurisdiction. Having found that it had jurisdiction, it went ahead to consider the application for dismissal of the petition. The appellants did not show that there was any miscarriage of justice by the Tribunal in adopting this procedure or that the discretion was wrongly exercised. I agree totally with the submission of Counsel for the 1st and 2nd respondents. It is a matter at the discretion of the Tribunal whether or not to consolidate the applications. Given that time is of the essence in these election matters, the exercise of its discretion and the decision of the Tribunal to consolidate the applications cannot be impugned especially as it ruled on the issue of jurisdiction first before proceeding further with the applications for dismissal of the petition. As contended by the respondents, the appellants did not show that any miscarriage of justice was occasioned by the exercise of the Tribunal’s discretion to consolidate the applications. There is equally no basis for the allegation that the Tribunal had pre determined the matter by its decision to consolidate the applications. Its either there is jurisdiction or there is none. The procedure adopted can never confer jurisdiction where there is none. If judicial discretion has been exercised bona fide, not arbitral or illegally by a court of law, an appeal court will not ordinarily interfere with that exercise.
D.P.C.C. Ltd v. B.P.C. Ltd [2008] 4 NWLR (P1.1077) 376 @ 403. Issue 1 is resolved against the appellants.
Issue 2:
Whether the Tribunal had jurisdiction to entertain the application of the respondents.
The complaint of the appellants here are three-fold:
a. That the applications for dismissal of the petition were not fixed for hearing in 3 clear days as specified in paragraph 18(3) of the 1st schedule to the Electoral Act
b. That the respondents waived their right to complain, having participated in the pre-hearing session.
c. That the applications for dismissal of the petition were brought during prehearing session without the respondents filing form TF008 within 7 days of the service on them of form TF007.
On the above grounds, the appellants submitted that the Tribunal lacked the jurisdiction to hear the motions for dismissal of the petition.
This issue is exactly the purport of the preliminary objection raised by the appellants in the lower Tribunal. With all due respect to Learned counsel for the appellants, it is my view that the Tribunal correctly and exhaustively dealt with the issue.
Paragraph 18(3) of the 1st Schedule to the Electoral Act provides:
“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 three clear days, apply for an order to dismiss the petition”.
The appellants contend that the requirement that the motion should be “returnable in three clear days” is mandatory and requires the Tribunal to hear the motion for dismissal in three clear days.
The phrase “returnable in three clear days” cannot be interpreted to mean that the Tribunal must hear the motion for dismissal in three clear days. Blacks Law Dictionary defines “return day” as (1) a day on which the defendant must appear in court (as for an affaignment), (2) a day on which a defendant must file an answer, (3) a day on which proof of service must be returned to the court, (4) a day on which a writ of execution must be returned to court, (5) a day specified by law for counting votes in an election. The word “Return” is also defined as “A court officer’s bringing back of an instrument to the court that issued it”
It is clear therefore that in the context of the proviso what is meant is that the petitioner on whom the motion for dismissal is served must be given three clear days to respond, that is the return date on the motion paper should be three days from the date of the filing of the motion. It certainly does not mean that the motion must be heard on that day. The view of the Tribunal upholding the contention of the respondents herein that the phrase is a directive to ensure that at least 3 clear days is allowed for the petitioner to respond to the motion for dismissal of the petition before the motion is heard and determined is unassailable.
On the contention that the respondents waived the right to complain having participated in the pre-hearing session, the Tribunal rightly held that the proceedings of 10/6/2011 cannot by any stretch of the imagination constitute an estoppel in favour of the appellants in view of their failure to comply with the requirements of Paragraph 18(1) of the 1st Schedule to the Electoral Act. I think it is necessary here to set out the proceedings of the Tribunal on 10/6/11 which the appellant with all due respect wrongly interpreted to imply a waiver:
“Parties – Absent
Titilaye C. for the Petitioner
Chief B. F. Adeleye with Prince A. I. Ojopagogo O., Ogunje Esq., and A. Olomo Esq for the 1st and 2nd Respondents.
O. Osaze-Uzzi with C. Nwokeocha for the 3rd Respondent.
Titilaye: We have two applications, the 1st dated and filed 1/6/2011 and the second dated and filed 2/6/2011. We seek to withdraw that dated 1/6/2011.
Chief Adeyeyi; No objection.
Uzzi: No objection
Tribunal: The application to withdraw motion dated and filed 1/6/2011 (sic) as granted and same is hereby struck out.
Titilaye: We apply that the motion dated 2/6/2011 be adjourned to be heard at the Pre-trial session which we have just applied for.
Chief Adeyeyi: No objection
Uzzi: No objection
Tribunal: In the circumstances the motion is hereby adjourned to the Pre-hearing session.”
The contention of the appellant is that the adjournment of the petition for pre-trial session without objection by the respondents estops them from filing the motions for dismissal of the petitions. There is absolutely nothing in the proceedings set out above that can be construed to amount to a waiver. It cannot also be said that the respondents participated in a pre-hearing session as the session was yet to take place. In the proceedings, the appellants merely applied for a certain motion to be taken at the pre-hearing session which they said they had just applied for. It will certainly be quite unusual for the respondents to object to such an application. The Tribunal rightly pointed out that the 3rd respondent’s motion was filed on 9/6/2011 before the proceedings of 10/6/2011 and that at any rate, the principle of waiver cannot apply in a situation where there is an allegation of failure to comply with a fundamental positive provision of a Statute.
There is also no substance in the contention that the Tribunal ought not to have heard the respondents’ applications for dismissal of the petition since they failed to file form TF008 within 7 days of the service on them of form TF007. The respondents’ argument is that the Form TF 007 was improperly issued as there was no application for its issuance by the appellants and that the time within which it could properly be issued had lapsed. Why then should they respond to a process which as far as they are concerned is null and void? Besides, all that Paragraph 18(3) of the 1st Schedule requires a respondent to do in the event of the petitioner failing to bring the application for issuance of pre-hearing notice is to bring the application himself or by motion apply for an order to dismiss the petition. The respondents chose to file a motion for dismissal. The appellants’ contention is therefore completely misconceived. The Tribunal rightly determined that it had jurisdiction to hear the applications of the respondents. Issue 2 is resolved against the appellants.
Issue 3:
The exact interpretation of the word ‘application’ contained in paragraph 18(1) of the Rules of Election Petition and whether the alleged failure to apply for pre-hearing session by motion is not an irregularity as to procedure and form.
The appellants’ contention here is that the Tribunal erred in law when it failed to give a literal interpretation to Paragraph 18 (1) and relied on Paragraph 47 (2) of the 1st schedule to rule that application for pre-hearing session must be by motion. Chief Adeyeye for the 1st and 2nd respondents in his brief relying on Paragraph 47(2) of the Rules and the cases of Ado v. Mekara [2009] 9 NWLR 491: Riruwai v. Shekarau [2008] 12 NWLR (Pt.1100) 142 @ 159: Okereke v. Yaradua [2008] 12 NWLR (Pt. 1100) 95: Fatai vs. Ogunmodede (2010) EPR 7 355 also argued that the application envisaged under Paragraph 18 (1) is by motion. Without much ado, it is necessary to point out that at the time the Tribunal delivered the ruling appealed against; the prevailing view of this court based on the cases referred to above was that the application must be by motion. But in the recent yet unreported case of Gebi v. Dahiru Appeal No. CA/J/EP/HR/127/201, a full court of this Court sitting in Jos reversed the dominant view as laid down in the above mentioned cases that the application must be by motion. They held that the word “application” in paragraph 18 (1) of the 1st Schedule to the Electoral Act must be given its literal ordinary meaning. The application must not be by motion only. A written application or any other means which puts the facts of the request on record as evidence of compliance will suffice. In her contribution to the lead judgment, His Lordship, Monica B. Dongban-Mensem (JCA) observed:
“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 puts the fact of the request on record as evidence of compliance. The application/request to issue activates the process of issuing Form TF007 which is done by the Secretary to the Tribunal (paragraph 7 (i) of 1st Schedule of the Electoral Act). It befuddles me that so much ado is made about this very unambiguous provision and it is even more curious to expect that a Petitioner can be shut out at infancy, upon an alleged failure to make this application by way of a motion!”
The appellants herein are consequently right that the “application” under Paragraph 18 (1) need not necessarily be by motion. An oral application which the appellants claimed to have made here is a different matter altogether. There was nothing in the record of proceedings to show that any such oral application was made. It then appeared as if the Secretary issued the Form TF007 suo motu. Learned counsel for the appellants in his brief had posed the question whether the Tribunal did not have the power to treat an oral application as a procedural irregularity which ought not to have nullified the proceedings. It is difficult to consider the issue of oral application being treated as a mere irregularity in the absence of hard proof that application was indeed made orally. Such would obviously create room for abuse by unscrupulous Tribunal Secretaries. On the contention of the appellants that the Tribunal erred in law in refusing to apply Order 51 rule 1 of the Federal High Court Rules and the decisions of the Supreme Court on the need not to sacrifice substantial justice on the altar of undue technicalities, it is necessary to point out that Paragraph 18 of the 1st Schedule is a typical example of one of the features in the law governing election petitions that make them sui generis. Time is of the essence. While it is necessary that cases be determined on their merits, provisions in the Electoral Law which terminate cases in limine are there for the purpose of keeping litigants and their lawyers alert and to avoid unnecessary delays. The Tribunal committed no error of law in holding that it is only where there is a lacuna in the rules that the courts may fall back on the Federal High court Civil Procedure Rules. There is no such lacuna in Paragraph 18 of the 1st Schedule. On the contrary its provisions are completely exhaustive and covered the field adequately obviating the need to fall back on the Federal High Court Rules. Issue 3 is resolved in favour of the appellants only to the extent that an application for the issuance of pre-hearing notice need not be by motion only. A letter of application duly filed with the Tribunal will suffice. It is necessary to point out here that writing to the Secretary of the Tribunal without formally filing the letter with the Tribunal could create problems where the letter as a result of not being duly filed does not become part of the record of the proceedings of the Tribunal. What is important here is that there should be evidence of a request to issue prehearing notice. The Tribunal has discretion to determine the adequacy of the method adopted in making the request. It is the failure to make the application within the time frame stipulated that is fatal to the petition. It amounts to failure to comply with a condition precedent to the exercise of the court’s jurisdiction. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Okereke v. Yaradua (supra).
It is also important to mention that in all the earlier cases where the petitions were thrown out, apart from the fact that the applications for issuance of pre-hearing notice were not made by motion, there were other features in the petitions justiffing the dismissal of the petitions. In many of the cases no application at all was made or time within which the application could be made had expired. See Riruwai v. Shakarau (supra): Okereke v. Yaradua(supra).
Issue 4
Whether the Tribunal can raise abandonment of the petition as a ground of dismissal of petition suo motu in its ruling on application of parties without hearing from any party in the petition on the said issue of law.
The complaints of the appellants on this issue are two fold: (1) that the Tribunal erred in law in raising suo motu the issue of abandonment of the Petition under paragraph 18 (4) of the Rules and in going ahead to determine the issue without giving the parties the opportunity to address the Tribunal on it. (2) That the Tribunal erred in law in invoking Paragraph 13 (4) when the condition precedent therein – failure of the Petitioners and the Respondents to bring an application under 18 (1) or (3) was non existent. Counsel in his brief had argued that the appellants applied orally for pre-hearing session and that Form TF007 was actually issued and the petition adjourned for pre- hearing. Question of abandonment of the petition did not therefore arise.
With all due respect to Learned Counsel, the stand taken by the Tribunal and rightly in my view is that the oral application, if any, was made outside the 7 days stipulated by Paragraph 18 (1) and once the petitioner is out of time, the Tribunal has no jurisdiction to extend the time. Pleadings closed on 31/5/2011 when the Petitioner served the last of his replies on the respondents. The seven days commenced on 1/6/2011 and ended on 7/6/2011. The purported oral application made on 9/6/2011 is consequently out of time. The implication therefore is that neither the appellants nor the respondents applied for pre-hearing session as a required by law. Paragraph 18 (4) provides that where the Petitioner and the Respondent fail to bring an application under the 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. The argument that the Tribunal raised the issue suo motu and proceeded to rule on it without giving the parties the opportunity to address the Tribunal on the issue is clearly misconceived. The Tribunal on being satisfied that neither the appellants nor the respondents applied for issuance of pre-hearing notice within the time allowed by the rules was correct in doing exactly what the rule says it should dismissing the Petition as abandoned. The matter would have been different if the contention of the appellants was that the purported oral application was made within the 7 days prescribed by the Rules. It is wrong to contend that the Tribunal raised the issue suo motu and decided without hearing from the parties. The parties did address the Tribunal and from the proceedings it was obvious that the appellants were out of time. The fact is that the Tribunal no longer had jurisdiction to continue with the Petition. Once the Petitioner is out of time in applying for the issuance of prehearing notice, and the respondent did not apply within the time prescribed, the Tribunal has no power to extend time. The Petition is dead from that point in time. Anything else done from then on is an exercise in futility. The provision is indeed a harsh one but that is what the law says and it has to be so if election petitions are to be determined timeously. The Courts would not be contributing towards the entrenchment of true democracy in the country if hearings in election petitions continue way beyond the tenure of the seats for which the petitions were filed as happened in the 2007 elections. Although a similar provision was in place in 2007 but it was only a practice direction and may not have been strictly enforced. That is why it was now made part of the rules of procedure in the 1st Schedule to the Electoral Act.
Issue 5
Whether the Tribunal can disregard the amended petition which it ordered in computation of time in respect of close of pleadings before the Tribunal.
Here, the appellants contend that since the Tribunal had granted their prayer to amend their Petition, time for the filing of the application for issuance of prehearing notice should begin to run from the date of the filing of the amended Petition that is 9/6/2011. This reasoning is clearly misconceived. The Tribunal rightly held that the law is that such amendment is taken to date back to the original process as it is that original process that gives it its validity. As pointed out by the Tribunal in its ruling, if the appellants’ contention that computation of time should take effect from 9/6/2011 when the amended petition was filed, then it means that the purported oral application for and issuance of pre-hearing notice Form TF007 was premature as Petitioners should have waited for the Respondents to file their amended replies before applying for issuance of pre-hearing notice. Further if the original petition should be discarded and the computation of time for the petition deemed to have commenced from the date of filing of the amended petition, then the petition would have fallen foul of the constitutional requirement that the petition must be filed within 21 days from the date of the declaration of the result of the election. It is pertinent to mention here that this problem arose because the appellants jumped the gun by failing to abide by the provision of Paragraph 47 (1) of the 1st Schedule that no motion shall be moved and all motions shall come up at the pre-hearing session. It is thus a misconception of the law to argue that time within which to apply for pre-hearing session should begin to run from the date of the filing of the amended petition when the motion for amendment should have been taken at the pre-hearing session. This issue is again resolved against the appellants.
Issue 6:
Whether the ruling of the Tribunal dated 14/7/2011 which was not signed by the three Judges of the Tribunal is valid and regular.
Relying on the case of Aregbesola v. Oyinlola [2011] NWLR (Pt.1253) 485 and Section 294(1) of the Constitution of Nigeria, it was argued for the appellants that the failure of the Judges of the Tribunal to sign the certified true copy of the ruling vitiated its authenticity. We were urged to invalidate the ruling and to return the petition to the Tribunal before another panel of Judges for continuation of the prehearing session.
The respondents on the contrary submitted that the ruling of the Tribunal delivered to the parties was signed. The record of proceedings contains a certified true copy with the notation ‘SGD’ on the names of the Tribunal Judges. Counsel submitted that in practice such notation on a certified true copy means that the original was signed. I agree with the respondents. The supplementary record irregularly filed with the signatures of the Tribunal Judges shows that the Ruling was duly signed. The substance of the ruling as contained in the certified true copy is not being challenged. In the absence of any such challenge, there is no merit in the argument of the appellants. This issue is resolved against the appellants.
In the final analysis it is now established by a number of recent authorities of this court that the “application” for issuance of pre-hearing notice under paragraph 18(1) need not necessarily be by motion. It could be by motion or an ordinary letter to the Tribunal. It is a matter within the discretion of the Tribunal to determine the adequacy of the method adopted. See the following recent unreported Judgments: Gebi v. Dahiru & 3 Ors. Appeal No. CA/J/EP/HR/127/2011 of 22/8/2011: Bagudu & anor v. Aliero & 4 ors. Appeal no. CA/S/EPT/SN/2/2011 of 24/8/2011; Ezeudu v. John & 6 ors Appeal No.CA/E/EPT/06/2011 of 5/9/2011.
In the above judgments, the courts in more or less upholding the earlier stand that application could also be by motion, did not consider the effect of Paragraph 47(1) of the 1st Schedule to the Electoral Act which provides that no motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of the Tribunal or court. Does the petitioner who chooses to make his application for issuance of pre-hearing notice by motion have to first obtain the leave of the court and if he fails to obtain such leave, does it render the application incompetent? In Okereke v. Yar’Adu? (supra), the Supreme Court held that such failure renders the application incompetent. But the motions in the Supreme Court case was not for issuance of pre-hearing notice. It is hoped that in due course the Supreme Court will make a pronouncement on the issue. In the meantime, it seems safer to apply for issuance of pre-hearing notice by a simple letter to the tribunal or court.
The application for issuance of pre-hearing notice (in whatever form) must be made within seven days after the filing and service of the petitioner’s reply on the respondent or seven days after the filing and service of the respondent’s reply as the case may be. Failure to comply within the time frame is fatal to the petition. Time cannot be extended and the Tribunal has no option but to dismiss the petition as abandoned. The lower Tribunal is consequently right to have dismissed the petition as abandoned. This appeal lacks merit. It is hereby dismissed. I make no order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A: I agree
MOORE A. A. ADUMEIN, J.C.A.: I read in draft the judgment delivered by my learned brother – IYIZOBA (JGA). I agree with her reasoning and conclusion that the appeal be dismissed.
The appeal is hereby dismissed.
I abide with all the consequential orders in the leading judgment.
Appearances
Titiloye Charles Esq.
Gbadebo Olubanke (Mrs) For Appellant
AND
Chief B. F. Adeyeye
A. Olatubora Esq.
O. Oluwayomi Esq.- for 1st and 2nd Respondents
Oluwole Osaze Uzzi Esq.
Chioma Nwokeocha-Utah (Mrs)- for 3rd RespondentsFor Respondent
