ALL PROGRESSIVES GRAND ALLIANCE & ANOR V. MODESTUS C. OHAZULUIKE & ORS (2011)

ALL PROGRESSIVES GRAND ALLIANCE & ANOR V. MODESTUS C. OHAZULUIKE & ORS

(2011)LCN/4897(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 16th day of November, 2011

CA/E/EPT/33/2011

RATIO

JURISDICTION OF THE ELECTION TRIBUNAL: THE SCOPE OF THE JURISDICTION OF THE NATIONAL AND STATE HOUSES OF ASSEMBLY ELECTION TRIBUNALS; WHETHER THERE ARE SEPARATE TRIBUNALS SET UP AS BETWEEN THE NATIONAL AND STATE HOUSES OF ASSEMBLY

Section 285 (1) of the 1999 constitution (as amended) heavily relied upon by 1st Respondent’s counsel in support of his objection provides for the establishment of one or more election tribunals to be known as the National and State Houses of Assembly Election Tribunals. In effect such tribunals are to hear petitions arising from elections into the National and State Houses of Assembly. In other words no distinct or separate tribunals are set up as between the National and State Houses of Assembly. The parallel line sought to be drawn between the two by the 1st Respondent’s counsel does not hold water and I agree entirely with the submission of learned Senior counsel for the appellant that the inclusion of the word “Assembly after National or omission of “Houses of in the name of the Tribunal as stated in the Notice of Appeal cannot invalidate the appeal having not created any misrepresentation, deceit or miscarriage of justice. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

ELECTION PETITION: WHEN ARE PLEADINGS IN ELECTIONS MATTERS ARE DEEMED TO HAVE CLOSED; HOW SERVICE; HOW SERVICE OF THE PETITION IS TO BE EFFECTED WHERE THERE ARE MORE THAN ONE RESPONDENTS

By a combination of paragraphs 7 (1), 12 (1) 16 (1) and l8 (1) of the 1st schedule to the Electoral Act 2010 as amended, pleadings in elections matters are deemed to have closed upon the filing and service of the Respondent’s reply to the petition or at the expiration of the 21 days within which a Respondent is to file his reply; or where the petitioner intends to reply to the respondent’s reply, then upon filing and service of the petitioner’s reply on the Respondents or at the expiration of 5 days within which he is allowed by the law to do so. A statutory guide which is specifically provided in paragraph 18 (1) reads thus:- “Within 7 days after the filing and service of the petitioner’s reply on the Respondent or 7 days after 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”. It is germaine to emphasise that where there are two or more respondents each of them stand on their own independently for the purposes of service of originating processes such as in this case where there are four Respondents to the petition. Equally, in the absence of any specific exclusion in the Electoral Act or its schedules thereto any reference to a ‘Respondent’ includes other respondents where applicable in any petition. This is by virtue of Section 14 of the Interpretation Act Laws of the Federation 2001 which provides that:- “In an Enactment:- (a) Words importing the masculine include females. (b) Words in the singular include the plural and words in the plural include the singular”. What I am driving at here is that in the instant case where there are four individual Respondents to the petition; service of the petition shall be made on them individually and personally. They are also expected to file and serve their Reply to the petition individually. This means that in the circumstance pleadings in the instant petition will be deemed to close when all the Respondents have filed and served their reply to the petition and the petitioner has, where necessary, filed and served his reply to the Respondent’s reply on the Respondents. This scenario is however subject to the time limitation as prescribed for doing so by the Electoral Act. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

SERVICE OF ORIGINATING PROCESSES: IMPORTANCE OF EFFECTING SERVICE OF ORIGINATING PROCESSES TO THE JURISDICTION OF THE COURT

It is trite that service of originating processes is fundamental to the jurisdiction of the court or tribunal. Where there is no such service, a court or tribunal is bereft of the competence to adjudicate and make any binding pronouncement on a party not brought before it. It is virtually impossible for a court or tribunal to genuinely assume jurisdiction to entertain any suit in which processes are not served or properly served on the parties. Proceedings conducted in defiance of such basic requirement are a nullity because any order made by a trial court or tribunal without the jurisdiction to do so is null and void. See AJIDAHUN V. AJIDAHUN (2000) 4 NWLR (pt 654) 605; NGIGE V. ACHUKWU (2005) ALL FWLR (pt 247) 1545. AYOGU V. NNAMANI (2005) ALL FWLR (pt 283) 46 at 58. ABE V. UBN PLC (2005) ALL FWLR (PT 291) 1727 and WEMA BANK NIGERIA LTD. V. ADELAJA (2000) 7 NWLR (PT 663) 1. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

DUTY OF THE COURT: CIRCUMSTANCES WHERE THE COURT WILL NOT BE UNDER THE OBLIGATION TO CONSIDER ALL OTHER ISSUES FORMULATED BY THE PARTIES

Where an appellate court is of the view that the consideration of an issue is enough to dispose of an appeal, it is not under obligation to consider all other issues formulated by the parties. See OKONJI V. NJOKANMA (1991) 7 NWLR (PT 202) 231; EBEA V. OGODO (984) 1 SCNLR 372, ANYADUBA V. NIGERIA RENOUNED TRADING COMPANY LTD. (1992) 5 NWLR (PT 243) 535 at 561. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICES

ABUBAKAR JEGA ABDULKADIR (PRESIDING JUSTICE) Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

1. ALL PROGRESSIVES GRAND ALLIANCE (APGA)
2. IDUU (SIR) LOUIS EMEKA EZE Appellant(s)

AND

1. MODESTUS C. OHAZULUIKE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. PATRICK OBI
4. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the National and State Houses of Assembly Election Tribunal (coram Onajite Kuejubola J., Udu-Eze J. and Y. Mukhtar J.), sitting in Awka, Anambra State, in PETITION No. EPT/AN/HA/44/2011 delivered on the 29th September 2011 wherein the appellants’ petition was dismissed on the ground that the application for pre hearing notice was made out of time contrary to the provisions of paragraph 18 of the 1st schedule to the Electoral Act 2010, as amended.
Election into the Anambra State House of Assembly for Ihiala I Constituency was conducted on the 26th April, 2011. The 1st Appellant herein was a candidate sponsored by the 2nd Appellant All Progressive Grand Alliance (APGA) for the said election. The 1st Respondent was also a candidate but sponsored by the 4th Respondent, Peoples Democratic Party (PDP). At the conclusion of the Election, the 1st Respondent was declared winner and returned as such by the 2nd Respondent (INEC). Being aggrieved with the Result so declared, the Appellants filed a petition at the lower tribunal on the 17/5/11. The 1st Respondent’s Reply to the petition was filed on 3/6/11 but served on the appellant on 13/6/11. From the records, it appears that all the Respondents were served with the appellants’ petition via an order of substitute service which was made at different time’s sequel to motions exparte praying for same by the appellants. The appellants subsequently by a letter dated 17/6/11 but served on the tribunal’s secretary on 23/6/11 applied for pre hearing notice. Pursuant thereto, the tribunal issued the parties with forms TF 007 and TF 008 which the Appellant and the 1st Respondent duly filled and filed on 15/7/11.
At the pre hearing session which resumed on 18/7/11 it was discovered that the 4th Respondent was not served with the originating process, (i.e. the appellant’s petition). The pre hearing was then adjourned to 20/7/11 for report of service on the 4th Respondent. On the said 20/7/11, the appellants’ counsel moved a motion exparte for substituted service on the 4th Respondent and this was granted by the tribunal and the matter adjourned further to 25/7/11. There is however no record of the sitting of the tribunal on the said 25/7/11. On the 10/8/11 the 3rd Respondent moved a motion on notice filed on 15/7/11 for extension of time to file his reply to the petition and this was granted by the tribunal. At the sitting of the tribunal on 13/9/11 the records showed that a new panel had taken over the hearing of the petition which was then adjourned to 16/9/11 for pre hearing conference. On the said 16/9/11 it was further adjourned to 22/9/11.
Meanwhile, on 30/7/11 the 1st Respondent filed a motion on notice praying for the following orders:-
1. An order setting aside all the petitioners pre hearing notice/forms for being incompetent, irregular and out of time.
2. An order setting aside the pre hearing information sheet (Form TF 088) issued by this tribunal on the 13th Day of July, 2011 as being null and void and of no effect whatsoever as same was issued without jurisdiction.
3. An order dismissing the petition as abandoned for failure to comply with the mandatory provisions of paragraph 18 of the 1st schedule to the Electoral Act 2010 (as amended).
The said motion was supported by a 6 paragraph affidavit and two Exhibits attached therewith, and written address was also filed along. See pages 302 to 313 of the record of appeal. The appellants also filed a counter affidavit of 14 paragraphs and a written address as shown in pages 314 to 325 of the record. The said motion was moved and argued by the parties on 22/9/11, in its ruling delivered on the 29/9/11 the trial tribunal in granting the 1st Respondent’s prayers in his motion on notice, dismissed the appellants petition.
The appellants being dissatisfied with the said Ruling filed a notice of appeal dated 8/10/11 and filed on 12/10/11. The said notice of appeal contained three grounds of appeals. Briefs of argument were subsequently filed and exchanged by the parties, except the 3rd Respondent. They also adopted and relied on same at the hearing of the Appeal on the 9/11/11.
This was however after the 1st Respondent’s counsel had with the leave of this court moved his notice of preliminary objection which submissions in support are incorporated in the 1st Respondent’s brief of argument. The said notice of preliminary objection filed on 28/10/11 seeks the order of this court to strike out the bundle of papers titled “Record of Appeal” in this Appeal and the Appeal itself for being incompetent. The grounds for the objection were listed as follows:-
1. The Notice of Appeal is not in compliance with the provision of order 6 (2) (1) of the Court of Appeal Rules 2011 and therefore renders the Appeal incompetent.
2. There are presently sitting at Awka three or more National/Legislative Houses Assembly Election Tribunals, the three or more tribunal could not have delivered the judgment Appealed against in this appeal as one.
3. That sufficient particulars including the parties, the Election petition in which the decision appealed against was delivered and which of the three or four tribunals’ decision is appealed against was delivered and which of the three or four tribunals’ decision is appealed against were not supplied in the Notice and Grounds of Appeal.
4. That the appeal in issue in this matter relates to the election to the Anambra State House of Assembly, Ihiala Constituency 1, it did not relate to any election to the National Assembly as falsely made out in the Notice of Appeal and included in the bundle of papers titled “record of Appeal”.
5. That only a tribunal sitting as a State Legislative Houses Election Tribunal could have delivered a verdict in respect of an election petition to the Ihiala State Constituency 1 election not the National Assembly Election Petition Tribunal.
6. The Appeal was filed on 12/10/2011 and on 13/10/2011; the Appellants’ counsel prepared the bundle of papers titled “Record of Appeal” in this Appeal contrary to the provisions of the law.
7. That a period of 10 days within which the Secretary of the tribunal is mandated by law to compile and serve the record had not elapsed to warrant the compilation of the records by the Appellants’ Counsel.
8. That until 10 days effluxes and the Secretary of the tribunal fails to compile and serve the record, the Appellants’ counsel is not permitted to compile and serve the record.
9. The bundle of papers is bereft of the contents of record of Appeal as provided in order 8 Rule 7 of the Court of Appeal Rules 2011.
10. The petition in the bundle of papers titled “record of Appeal” in this Appeal is different from petition No: EPT/AN/HA/44/2011 upon which this Appeal is brought.
11. All that occurred at the tribunal were not reproduced in the bundle of papers titled “record of Appeal”.
12. The bundle of papers titled “record of Appeal” is a hodgepodge of extraneous, irrelevant and unnecessary materials contrary to the provisions of order 8 Rule 8 of the Court of Appeal Rules 2011.
13. Relying on the incomplete hodgepodge of papers to determine this Appeal will occasion a miscarriage.
The appellants also responded to the preliminary objection by incorporating it in their “Appellants’ Reply brief to 1st Respondent’s brief”. I will now deal first with the preliminary objection.
In his argument in support therein, E.N. Onyibor of counsel for the 1st Respondent referred to Order 6 Rule (2) (1) Order 8 Rule (7) and (8) of the Court of Appeal Rules 2011 and paragraph 9 of the Election Tribunals and Court Practices Directions 2011 to submit that the appellants did not comply with their provisions and this renders the bundle of papers titled “Record of Appeal” incompetent.
He added that in the appellants Notice of Appeal, the exact nature of the relief sought and the addresses of all parties affected by the appeal were not stated therein. He cited a number of authorities on the imperative nature of a directive with the use of the word “shall”. Learned counsel argued therefore that the defects in the appellant’s notice of appeal had rendered the appeal incompetent and liable to be struck out.
He further submitted that though the appeal relates to the Ihiala I State Assembly, Anambra State, the Notice of Appeal, suggested in a misleading manner that the appeal is in respect of an election to the National Assembly. He referred to Section 285 (1) (a) and (b) of the 1999 constitution to show that there is a distinction between election petitions for the National Assembly and to the State Houses of Assembly.
Learned counsel also referred to the relief sought by the appellants as shown at page 604 of the Record of Appeal wherein they prayed that “the appeal be allowed and the case be remitted to another tribunal for retrial”.
He contended that it is impossible for the court to grant such a relief because it is not decisive, specific or precise, more so that there are three or more Election tribunals in Awka and the appellants did not specify the tribunal that delivered the judgment being challenged or the names of the judges who heard the matter. Also dwelling on paragraph 9 of the Election tribunal and court practices direction 2011, and Order 8 Rule (1) and (a) of the Court of Appeal Rules, 2011. Learned counsel submitted that the appellants counsel cannot compile and transmit the record until the effluxion of 10 days and the secretary to the tribunal had failed or neglected to do so and this the appellants have failed to show.
Also referring to Order 8 Rule (7) of the Court of Appeal Rules, learned counsel submitted that the appellants’ record of Appeal is bereft of the content of a Record of Appeal as it does not contain the petition, the endorsements and returns which shows when all the parties were served and this will lead to miscarriage of justice if it is used to determine the appeal. He then urged that the Notice of Appeal be struck out as well as the appeal itself.
Responding to the preliminary objection, learned senior counsel for the Appellant submitted that the failure of a Notice of Appeal to comply with Order 6 Rule (2) (1) as per the names and addresses of all parties directly affected by the appeal is an irregularity which will not render the appeal incompetent. He relied on HENKEL CHEMICAL LTD V. A.G. FERRERO & CO. (2003) 4 NWLR (PT 810) 306 at 327.
He added that the relief as sought by the appellants in the Notice of Appeal satisfied the requirement of Order 6 Rule (2) (1) of the Court of Appeal Rules and besides, the court is not bound by the reliefs sought as it can grant any relief it deems proper.
On the aspect that the Notice of Appeal suggest that the appeal was against a National Assembly election, learned counsel referred to the Notice of Appeal wherein it was stated that the appeal is against the judgment of the National Assembly/State Assembly Tribunal to contend that the nomenclature used cannot invalidate the appeal as even the trial tribunal used almost a similar heading.
On the computation and transmission of the Record of Appeal by the appellants within the ten days allowed by the statute for the secretary to the tribunal to do so and the incomplete record, learned Senior counsel submitted that it is not fatal to the appeal as it was duly certified by the Secretary to the tribunal and in addition the missing parts of the Record of appeal have been supplied in the Supplementary Record.
I have carefully gone through the appellants’ Notice of Appeal with particular reference to complaints of the 1st Respondent. The Relief as sought by the appellants in the Notice of Appeal read thus:-
“That the Appeal be allowed and the case be remitted to another Tribunal for trial”.
Now Order 8 Rule (2) of the Court of Appeal Rules 2011 reads thus:-
”All appeals shall be by way of rehearing and shall be brought by notice (Hereinafter called “the Notice of Appeal”) to be filed in the Registry of the court below which shall set forth the ground of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service”.
To my mind therefore, going by the above provision, the appellants have duly stated in specific terms, the relief being sought to the effect that the appeal be allowed and the case be remitted back for trial before another panel. This is no doubt a clear case of substantial compliance by the appellants and to reason otherwise will amount to stretching the requirement of the said Order 8 Rule (2) beyond reasonable limits. What is more, the Supreme Court in deciding on the issue whether the exact relief sought must be stated in the Notice of appeal, held in KATTO V. C.B.N. (1999) 9 NWLR (PT 214) 126 as follows:-
“While it is desirable that exact relief sought be stated in the Notice of Appeal so that the court may be guided in making its order at the conclusion of the Appeal, an appeal which is valid in other respects will not be dismissed or struck out merely because the relief sought is not inserted in the notice of appeal”.
Where the Rules of Court provide for the procedure or manner of doing anything in a matter, justice demands that where there is substantial compliance with the procedure by a party, he should be taken as having fully complied with the requirements of the Rules, more so where the opposing party or the court is not misled and there is no miscarriage of justice inherent therein.
On the issue of the names and addresses of the parties directly affected by the appeal, this was clearly provided by the appellants in the Notice of Appeal in substantial compliance with Order 6 Rule 2 as shown at page 604 to 605 of the Record of appeal. I see no basis therefore, on the part of the 1st Respondent to make it an issue.
As to the use of the words suggesting that the appeal is in respect of an election to the National Assembly and not Ihiala I State Assembly. The portion of the Notice of Appeal offensive to the 1st Respondent’s counsel reads thus:-
“Take notice that the Petitioner being dissatisfied with the final decision of the National Assembly/State Assembly Election Tribunal Holden at Awka delivered on 29th September 2011 doth hereby appeal to the court of Appeal etc.”
In my humbly view, I see nothing wrong in the above reproduced portion of the Notice of Appeal, the only strange word there is “Assembly” which appeared after National and omission of “Houses of” but nonetheless it does not in anyway mislead any of the parties or this court as to the message being conveyed.
Section 285 (1) of the 1999 constitution (as amended) heavily relied upon by 1st Respondent’s counsel in support of his objection provides for the establishment of one or more election tribunals to be known as the National and State Houses of Assembly Election Tribunals. In effect such tribunals are to hear petitions arising from elections into the National and State Houses of Assembly. In other words no distinct or separate tribunals are set up as between the National and State Houses of Assembly. The parallel line sought to be drawn between the two by the 1st Respondent’s counsel does not hold water and I agree entirely with the submission of learned Senior counsel for the appellant that the inclusion of the word “Assembly after National or omission of “Houses of in the name of the Tribunal as stated in the Notice of Appeal cannot invalidate the appeal having not created any misrepresentation, deceit or miscarriage of justice.
Learned counsel for the 1st Respondent had also contended that by virtue of paragraph 9 of the Election Tribunal and courts Practice Direction 2011, and Order 8 Rule (1) and (4) of the Court of Appeal Rules 2011, the appellants counsel cannot compile and serve the Record of Appeal until after the expiration of 10 days and the Secretary to the tribunal fails or neglects to compile and serve same as ordained by the Rules.
It seems to me however, that the provisions of Order 8 Rules (1) and (4) cannot apply in the present circumstance having regard to paragraph 9 of the Practice Direction 2011. In the instant appeal, paragraph 9 of the said Practice Direction has made specific provisions for the compilation and service of Record of appeal different from that as contained in Order 8 of the Court of Appeal Rules – in which case recourse cannot be had to it or else there will be serious confusion in the management of Election Appeals with particular reference to compilation and transmission of records of Appeal within different time frames.
Now paragraph 9 of the Election Tribunals and court Practices Direction 2011 provides:-
“The Secretary shall within a period of not more than 10 days of the Receipt of the notice of Appeal, cause to be compiled and served on all parties, the record of proceedings”.
The Notice of Appeal in this case was filed by the Appellants on 12/10/2011 and on 13/10/2011 the compiled Record of appeal was certified by the Secretary to the tribunal upon presentation by the Appellants. This was done within the 10 days period allowed for the Secretary to do the compilation and service on all the parties. As much as it is the statutory responsibility of the Secretary to compile and serve the record of Appeal within 10 days of receipt of notice of Appeal there is nothing to show that in this case the Secretary has set in motion any machinery to ensure compliance, rather, he certified the record as placed before him by the appellants which in the first place raises a presumption of genuiness and correctness. It also leads to no other conclusion than to state that he readily consented to the appellants carrying out his duties for him within the time frame of the Rules having not rejected the said records upon presentation or object to the act of the appellants in compiling the said record.
Bearing in mind the urgency associated with Election matters and the inherent anxiety that afflicts litigants seeking justice within the time limited by the Nigerian Constitution for Election petitions and appeals to be concluded, it will not to my mind be an aberration or fundamental vice if a litigant acts ahead of the period prescribed by any Rule of procedure provided it does not over reach the other party and I think that in this case the 1st Respondent was not over reached or suffered any disadvantage by the act of the appellants in helping the Secretary to facilitate the compilation and service of the record of Appeal. The Secretary by certifying the record compiled by the appellants has clearly authenticated same and also adopted the act of the appellants in compiling the record as his own. See ONYEMA V. OGENE (unreported Appeal No. CA/E/EPT/08/2011 delivered on 9th September, 2011.
On the contention by the 1st Respondent’s counsel that the Record is incomplete as it lacks the Petition and other endorsements and Returns which will occasion miscarriage of justice if the appeal is determined on that basis. A perusal of the supplementary Record compiled and transmitted to this court show that the relevant documents referred to are contained therein and I therefore agree with the appellants counsel that the Record of appeal substantially satisfied the requirement of Order 8 Rule 7 of the court of Appeal Rules 2011.
From the totality of the above consideration I hold that the Preliminary objection lacks merit. It is hereby overruled and dismissed.
THE SUBSTANTIVE APPEAL
On the substantive appeal, the appellants formulated two issues for determination as follows:-
1. Whether the decision of the Tribunal that the period of days within which the appellants were to apply for pre hearing notice in the Petition is to be reckoned from the date of service of the 1st Respondent’s reply on the appellants, was right (Grounds 1 and 2).
2. Whether the tribunal was right to have granted the application to dismiss the petition as abandoned.
(Ground 3).
For the 1st Respondent a sole issue was formulated for determination as follows:
“Whether the Tribunal was right in dismissing the petition as abandoned petition holding that the fate of the 1st Respondent cannot hang on the tardiness indolence or delay of other respondents.”
One sole issue was also formulated in the 2nd Respondent’s brief of argument. To wit:-
“Whether pursuant to the combined provisions of paragraph 18 (1) and 16 (1) of the 1st schedule to the Electoral Act 2010 as amended the appellants application for pre hearing Notice as in Form TF 007 was validly made within time as stipulated by law”.
The 4th Respondent equally formulated only one issue for determination thus:-
“When did the period of time the appellants are required to apply for issuance of pre trial form in this petition ought to commence to avoid the petition being dismissed as an abandoned petition”.
After a perusal of the Ruling of the trial tribunal, the grounds of appeal and the briefs of argument with particular reference to issues raised therein, I am of the view that the two issues raised by the appellant will suffice for the determination of the appeal and I as such adopt them accordingly.
ISSUE NO. 1
On this issue, O.A. Obianwu (SAN) of counsel for the appellants submitted that it is clear that the basis for the decision of the trial tribunal in its Ruling, is that the appellants application for issuance of pre hearing notice was made out of time because the 7 days period prescribed under paragraph 18 (1) of the 1st schedule to the Electoral Act 2010 started to run from the 13/6/11 when the appellant was served with the 1st Respondent’s reply and that the date of filing and service of the Respondents reply to the petition on the appellants was inconsequential.
He added that the reasoning of the trial tribunal is unsupportable in law because by Section 14 of the interpretation Act, words used in the singular in a statute includes it’s plural meaning. He also referred to the case of MINJIBIR V. MINJIBIR (2008) 3 LRECN 222 at 246-247 to support this stance while contending that the case of MOHAMMED V. ABDULAZIZ (2008) 3 LRECN 149 relied on by the trial tribunal does not support the view of the tribunal because in that case the time for all the Respondents to filed their reply had elapsed unlike in the instant case where the time for the 4th Respondent to file his reply to the petition was still running.
Learned senior counsel further submitted that by the provisions of paragraphs 10, 12 (1) and 18 (1) of the 1st schedule to the Electoral Act 2010, pleadings in an election petition closes upon the filing and service of a petitioner’s reply if filed within time or where a petitioner’s reply was not filed, at the expiration of the 21 days within which a Respondent is to file his reply or the date of service of the Respondent’s reply if filed before the expiration of the time prescribed for the filing of the Respondent’s Reply.
He added that in the instant case there are four Respondents and on 20/7/2011 the trial tribunal directed that the 4th Respondent in the petition be served with the appellant’s petition by substituted means and this was done on 21/7/2011. Therefore, he says, the time for the 4th Respondent to file his reply to the petition has not elapsed when the 1st Respondent filed his motion to dismiss the petition.
Learned senior counsel then submitted that the trial tribunal was in grave error when it calculated the time to file the application for pre hearing notice from the date of service on the appellants of the 1st Respondent’s reply because the correct date that ought to be reckoned with is the date for which the 4th Respondent is to file his reply elapsed or the date of service of his reply if filed within time. He then urged the court to set aside the ruling of the trial tribunal.
Responding in his brief of argument, E.N. Onyibor, learned counsel for the 1st Respondent submitted that the trial tribunal was right in dismissing the petition as abandoned petition as the fate of the 1st Respondent cannot hang on the tardiness, indolence or delay of the other Respondents.
He added that the 2nd and 4th Respondents were served the petition on 19/5/2011 while the 1st and 3rd Respondents were served on 24/5/2011 by substituted means as per the order of the tribunal made on 23/5/2011. The 1st Respondent filed his reply on 3/6/2011 and served it on the appellants on 13/6/2011 while the rest of the respondent’s failed to file their own replies within time and consequently, pleadings were deemed closed on 13/6/2011.
Learned counsel further argued that by law, the appellants are mandated to apply for issuance of pre hearing Notice within 7 days from the said 13/6/2011 but their application was made on 21/6/2011 contrary to the stipulated period of 7 days in paragraph 18 (1) of the 1st schedule to the Electoral Act 2011.
He further emphasized that having been served with the 1st Respondent’s Reply on 13/6/2011, the appellants had up to 19/6/2011 to apply for the issuance of the pre hearing forms but they did so on 21/6/2011 which is about 9 days after service of 1st Respondent’s reply instead of 7 days as prescribed.
It was learned counsel’s further contention that the other respondents having failed to file their replies to the petition, pleadings were deemed closed on 13/6/2011.
The 2nd Respondent in his brief of argument as presented by M.A. Emejulu of counsel made submissions similar to that of the 1st Respondent and cited a number of authorities in support. He then urged that the appeal be dismissed. The same goes for the 4th Respondent who through her counsel Clems Ezika Esq., proffered submissions in the brief of arguments and urged the court to dismiss the appeal. As stated earlier the 3rd Respondent did not file any brief of Argument.
Now the portion of the Ruling of the trial tribunal that has given rise to this appeal reads thus:-
“The tribunal is satisfied that the reply of the 1st Respondent was filed and served on the petitioners on 13/6/11 and that the petitioner filed his application for issuance of pre hearing notice on 21/6/11. The case that the 2nd petitioner is trying to set up as to when the other respondents were served is no longer the business of the court as the fate of the 1st Respondent cannot hang on the tardiness, indolence or delay of any other Respondent. See MOHAMMED V. ABDULAZIZ (2008) 3 LRECN pages 149 at 157…”
By a combination of paragraphs 7 (1), 12 (1) 16 (1) and l8 (1) of the 1st schedule to the Electoral Act 2010 as amended, pleadings in elections matters are deemed to have closed upon the filing and service of the Respondent’s reply to the petition or at the expiration of the 21 days within which a Respondent is to file his reply; or where the petitioner intends to reply to the respondent’s reply, then upon filing and service of the petitioner’s reply on the Respondents or at the expiration of 5 days within which he is allowed by the law to do so.
A statutory guide which is specifically provided in paragraph 18 (1) reads thus:-
“Within 7 days after the filing and service of the petitioner’s reply on the Respondent or 7 days after 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”.
It is germaine to emphasise that where there are two or more respondents each of them stand on their own independently for the purposes of service of originating processes such as in this case where there are four Respondents to the petition. Equally, in the absence of any specific exclusion in the Electoral Act or its schedules thereto any reference to a ‘Respondent’ includes other respondents where applicable in any petition. This is by virtue of Section 14 of the Interpretation Act Laws of the Federation 2001 which provides that:-
“In an Enactment:-
(a) Words importing the masculine include females.
(b) Words in the singular include the plural and words in the plural include the singular”.
What I am driving at here is that in the instant case where there are four individual Respondents to the petition; service of the petition shall be made on them individually and personally. They are also expected to file and serve their Reply to the petition individually. This means that in the circumstance pleadings in the instant petition will be deemed to close when all the Respondents have filed and served their reply to the petition and the petitioner has, where necessary, filed and served his reply to the Respondent’s reply on the Respondents. This scenario is however subject to the time limitation as prescribed for doing so by the Electoral Act.
In the instant case, records show that the 1st and 3rd Respondents were served with the petition on 23/5/11 by substituted means pursuant to the appellant’s motion exparte for order of substituted service, granted by the tribunal. The 1st Respondent upon service of the petition filed a reply to the petition on 3/6/11 which was served on the appellants on 13/6/11.
The appellants subsequently by a letter dated 17/6/2011 but received by the tribunal on 21/6/11 applied for pre hearing notice for the petition. On the strength of the said application, the tribunal issued Forms TF 007 and TF 008 which the appellants and the 1st Respondent duly filled and filed in the tribunal on 15/7/11.
Further records show that pre hearing session subsequently held on 18/7/2011 and 20/7/2011. At the session on 18/7/2011, it was recorded by the Tribunal at page 561 to 562 of the record of Appeal as follows:-
OKONKWO: The matter is for pre trial. We have filed our For TF 008. All parties were served with our petition but not our TF 008.
NSOBUNDU: – I am also prepared to go on. I have an application.
CLERK: All parties were served with today’s hearing notice except the 4th Respondent. The bailiff is here.
OSAKWE C. I. TRIBUNAL BAILIFF: I went to serve the 4th Respondent PDP but met their office under lock and key, nobody was there.
At this stage O.C. Onwuegbuke Esq., announces his appearance to lead Mrs. Okonkwo for the petitioners.
Also Sam Onyia Esq. announced appearance for the 3rd Respondent.
ONYIA: We have filed an application for extension of time to file our reply.
HIPO: We apply for asking (sic) time to enable us serve the 4th Respondent P.D.P. The 20th July 2011 will be alright.
NSOBUNDU: I oppose the application for adjournment. I withdraw my opposition.
ONYIA: We are not opposing the application.
TRIBUNAL: This petition is adjourned to the 20th day of July for reply (sic) of service on the 4th Respondent.
At the Resumed sitting of the tribunal on the 20/7/2011 it was recorded in the proceedings as follows:-
HIPO: We have a motion exparte for leave of court to serve the 4th Respondent by substituted means. The application is supported by a 12 paragraph affidavit and a written address. We rely on all the paragraphs of the affidavit and the written address. We apply that the petition be served on the 4th Respondent by pasting it on the walls of (sic) front gate of his office here in Awka at Udoka Estate. Awka. We urge that the application be granted.
TRIBUNAL: Having listened to Hipo Onwuegbuke Esq., of counsel in this application and upon a careful perusal of the application papers, affidavit in support and written address of the applicants in support of this application. We are satisfied that by pasting the PETITION No. EPT/AN/HA/44/2011 at the front gate of the office of the 4th Respondent, 4th Respondent will come to know of the existence and/or pending of this petition accordingly we order as prayed in the motion papers”.
(underlining for emphasis)
It is quite glaring from the above reproduced proceedings of the tribunal on 18/7/2011 that as at those dates, the 4th Respondent was yet to be served with the appellant’s petition which is an originating process.
It is trite that service of originating processes is fundamental to the jurisdiction of the court or tribunal. Where there is no such service, a court or tribunal is bereft of the competence to adjudicate and make any binding pronouncement on a party not brought before it.
It is virtually impossible for a court or tribunal to genuinely assume jurisdiction to entertain any suit in which processes are not served or properly served on the parties. Proceedings conducted in defiance of such basic requirement are a nullity because any order made by a trial court or tribunal without the jurisdiction to do so is null and void. See AJIDAHUN V. AJIDAHUN (2000) 4 NWLR (pt 654) 605; NGIGE V. ACHUKWU (2005) ALL FWLR (pt 247) 1545. AYOGU V. NNAMANI (2005) ALL FWLR (pt 283) 46 at 58. ABE V. UBN PLC (2005) ALL FWLR (PT 291) 1727 and WEMA BANK NIGERIA LTD. V. ADELAJA (2000) 7 NWLR (PT 663) 1.
In the instant case, time for the petitioner to apply for the issuance of pre Hearing Notice cannot therefore begin to run from the 13/6/11 when the 1st Respondent served the petitioners (now appellants) his reply to the petition. It can only be so if all the other respondents in the petition have been served with the petition and they all served their replies on the appellants on the 13/6/11, or that the 21 days allowed for them to do so elapsed on the said 13/6/11.
It is however to the contrary in this case having regard to the fact on record that the 4th Respondent was discovered not have been served with the appellants’ petition. In this regard, anything done or any order made by the tribunal will be a nullity having not been properly constituted.
Now the Record of appeal show that on that said 20/7/11 when the application for substituted service of the petition on the 4th Respondent was granted, the tribunal adjourned to 25/7/11 to enable the 4th Respondent to be served. There is however no record of what transpired on the said 25/7/11, but at the resumed sitting of the tribunal on 10/8/11, it heard and granted the 3rd Respondents motion for extension of time to file his reply to the petition and then adjourned the petition to the 17/8/2011. That seem however to be the last time the said tribunal panel (Coram, B.S.S. Mohammed J.C.C. Thomas Adiele J. and A.O. Jibodu J.) were to hear the petition as the record of appeal reveal that on the 13/8/11 a new panel (Coram Onajite Kuejubola J; Udu Eze J. and Y. Mukhtar J.) took over the hearing of the petition and adjourned it to 18/9/11 for Pre hearing conference. On the 22/9/11 during the Pre hearing session the tribunal heard two motions filed by the 1st Respondent including the motion on notice filed on 30/7/11 praying for the following orders:-
1. An order setting aside all the petitioners pre hearing notice forms for being incompetent, irregular and out of time.
2. An order setting aside the pre hearing information sheet (Form TF 008) issued by the tribunal on the 13th day of July, 2011 as being null and void and of no effect whatsoever as same was issued without jurisdiction.
3. An order dismissing the petition as abandoned petition for failure to comply with the mandatory provision of paragraph 18 of the 1st schedule to the Electoral Act 2010 as amended.
After due consideration of the party’s affidavit, counter affidavit and written address, the trial tribunal held inter alia as follows:-
“The tribunal is satisfied that the reply of the 1st Respondent was filed and served on the petitioners on 13/6/11 and that the petitioner (sic) filed his application for issuance of pre hearing notice on 21/6/11. The case that the 2nd petitioner is trying to set up as to when the other Respondents were served is no longer the business of the court as the fate of the 1st Respondent cannot hang on the tardiness, indolence or delay of any other Respondent. See Mohammed V. Abdulaziz (2008) 3 LRECN 149 at 157 … consequently petition No. EPT/AN/HA/44/2001 filed on 17/5/11 is accordingly dismissed”.
I will say straight away but with due respect that the trial tribunal seriously erred in it’s reasoning and wrong application of the case of Mohammed V. Abdulaziz supra.
The fundamental essence of service of originating processes as in this case, a petition cannot be glossed over and as earlier emphasized, it must be complied with failing which any subsequent proceeding or Order made thereon will be a nullity. I must add also, that the case of Mohammed V. Abdulaziz supra, heavily relied upon by the trial tribunal in reaching it’s decision was wrongly applied. In the said case, it was clear that all the Respondents were duly served with the petition and the 21 days permitted by the electoral Act for them to file their replies had elapsed, yet the petitioner did nothing to activate the pre hearing session in compliance with paragraph 3 (1) of the Practice Direction 2007 which is in pari materia with paragraph 18 (1) of the 1st schedule to the Electoral Act 2010 as amended; hence this court in affirming the decision of the lower tribunal held that the petition was deemed abandoned. For the avoidance of doubt and purposes of clarity I recast below a portion of the decision of this court per Oredola J.C.A. at pages 157 to 158.
“In the instant case, the petition was filed on 12th May 2007. The 3rd to 39th Respondents were served on 19th May 2007. The 2nd Respondent was served on 21st May 2007 while the 1st Respondent was served on 22nd May 2007. Going by paragraph 10 (2) of the first schedule to the Electoral Act, 2006, the Respondents have a maximum of twenty one days to file both their respective memorandum of appearances and replies and at least, the replies. The time within which to do these expired on 12th June, 2007. None of them validly filed the said court processes”. (Underlining for emphasis)
The above indeed speaks for itself to the extent that the two scenarios are not similar going by the fact that while in Mohammed’s case all the Respondents were duly served with the petition, it was not so in the present case as the 4th Respondent was not served with the petition until the 21/7/2011 vide an order of substituted service made by the tribunal on 20/7/2011.
Now, from the 21/7/2011 when service was effected on the 4th Respondent, it has 21 days to file his reply to the petition and this will expire on 11/8/2011. Going by the provisions of paragraph 18 (1) of the 1st schedule to the Electoral Act 2010, the Appellant has within 7 days after the 11/8/2011 to file his application for pre hearing notice. The said 7 days lapsed on the 18/8/2011. In the circumstance, I cannot but hold that the trial tribunal was wrong to have dismissed the appellant petition as having been abandoned for none compliance with paragraph 18 (1) of the Electoral Act 2010 as amended. Issue 1 is hereby resolved in favour of the Appellants.
In issue No. 2, that is, whether the tribunal was right to have granted the application to dismiss the petition as abandoned.
This issue no doubt flows from issue No. 1 exhaustively dealt with above and which clearly disposes of the appeal. In the circumstance, it will amount to embarking on a fruitless academic exercise if I am to consider issue No. 2 now. Where an appellate court is of the view that the consideration of an issue is enough to dispose of an appeal, it is not under obligation to consider all other issues formulated by the parties. See OKONJI V. NJOKANMA (1991) 7 NWLR (PT 202) 231; EBEA V. OGODO (984) 1 SCNLR 372, ANYADUBA V. NIGERIA RENOUNED TRADING COMPANY LTD. (1992) 5 NWLR (PT 243) 535 at 561.
In the light of the above considerations, I hold that this appeal has merit and it is hereby allowed.
The Ruling of the trial tribunal holden in Awka Anambra State (Coram P. Onajite Kuejubola J.; Udu Eze J. and Y. Mukhtar J.) delivered on 29/9/2011 in PETITION No. EPT/AN/HA/44/2011 and dismissing the said petition is hereby set aside.
The said petition is hereby remitted back for adjudication on the merit before another panel.
N30, 000 costs is awarded against the 1st Respondent in favour of the appellants.