AMBASSADOR DR. (MRS.) KEMA CHIKWE v. SENATOR CHRIS ANYANWU & ORS.
(2011)LCN/4942(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of December, 2011
CA/OW/EPT/8/2011
RATIO
NOTICE OF APPEAL: IMPORTANCE OF THE NOTICE OF APPEAL
In OKOKWO vs INEC Supra at page 275, His Lordship OLAGUNJU, JCA, relied on the position of the Supreme Court in AMADI vs OKOLI (1977) 7 SC 57 per Idigbe JSC at page 58 that: “The Notice of Appeal is a very important document because it is the foundation of the appeal and if it is defective, the Court of Appeal has inherent power to struck(sic) it out on the ground that it is incompetent…” PER UWANI MUSA ABBA AJI, J.C.A.
RULES OF INTERPRETATION: HOW THE WORDS USED IN A STATUTE SHOULD BE CONSTRUED
It is a trite and well established doctrine of interpretation, that statutes are normally given a holistic construction. The words employed in a statute ought not be construed in isolation of the section or phrase on which they occur, but rather in the context of the entire statute. PER UWANI MUSA ABBA AJI, J.C.A.
GOLDEN RULE OF INTERPRETATION: ESSENCE OF THE GOLDEN RULE OF INTERPRETATION
The essence of the golden rule of interpretation is to guard against any likelihood of inconsistency or repugnancy either within the section liable to be construed or other provisions of the statute per Saulawa JCA in the unreported case of DANKARO and ANOR v. PDP and 2 ORS in CA/YL/EPT/TR/SE/5/2011 delivered on the 6th day 6 day of September. 2011. See also INEC vs A.C. (2009) ALL FWLR (PT.480) 733 at 740. PER UWANI MUSA ABBA AJI, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPH 18 OF THE 1ST SCHEDULE TO THE ELECTORAL ACT 2010 AS TO THE TYPES OF APPLICATIONS ENVISAGED BY THE PROVISION
Suffice it also to state that paragraph 18(3) of the 1st Schedule to the Electoral Act (Supra), envisages two types of applications; The said provision provides: (3) The Respondent may bring the application in accordance with sub-paragraph (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 (underling mine for emphasis). The above provision implies two modes of application: 1) application in accordance with sub-paragraph one 2) or by motion which shall be served on the Petitioner and in 3 clear days, for an order to dismiss the Petition (that is where neither the Petition nor the Respondent brought the application for issuance of a pre-hearing notice). It is therefore my candid view that the type of application expected or required by the Electoral Act, of the Petitioner is the type of application in accordance with subparagraph one. Since the same does not require any prayer for any exercise of judicial direction by the Tribunal but just a demand by the law, to activate the issuance of the pre-hearing notice (FORM TF 007) and fixing of a date for the pre-hearing session. I adopt wholly the view expressed by ITA G. MBABA JCA in SIMON ISA and ANOR vs ACHAJI SA’AD TAHIR and ANOR in Appeal No. CA/YL/EPT/ADS/HA/2/2011 delivered on the 6th day of September, 2011 at pages 32-34 (which views apply mutatis mutandis to the instant appeal) thus: “As ably argued by the Learned Counsel for the 1st Respondent, the general rule of interpretation of a statutory provision is construing the statute as a whole – INEC vs AC (2009) 2 NWLR (PT 1126) 524 at 591- 592. The words should not be construed in the part of the section or phrase in which they occurs, but in the contest of the whole statute” The Legislature could not have intended to introduce mischief or inequitable result when it required either the Petitioner or the Respondent to apply for the prehearing notice in paragraph 18(3) of the 1st Schedule, and so would not permit the Respondent to ambush the Petitioner by bringing a motion for striking out or dismissal of the Petition, when the Petitioner is actually ready and willing to prosecute it and has activated the issuance of the Pre-hearing notice and fixed the process for pre-hearing session. I believe the mischief which paragraph 18 of the 1st Schedule sought to cure was dilatory approach to the prosecution of petition, not a bubby trap to manipulate the frustration of hearing on the Petition and give a Respondent a technical victory and the Petitioner technical knock-out. “?since the main issue in this appeal touched on the interpretation of paragraph 18(1) of the 1st Schedule to the Electoral Act, relating to what form the application for the pre-hearing notice should, take whether the phrase “the petitioner shall apply for issuance of pre-hearing notice” implies bringing a motion on notice or a motion exparte before the Court or writing a simple letter to the Secretary of the Tribunal for issuance of the prescribed Form TF 007, it is my view that the heavy weather made over the whole issue was completely unnecessary as the intention of the legislature is quite clear on the need to apply for issuance of the form in the paragraph, without any suggestion of a Motion (which would even be absurd in the circumstance). Thus Paragraph 47(2) of the 1st Schedule cannot be read into paragraph 18(1). Once a formal application has been made to the requisite officer of the Tribunal, authorized to issue the Form and the Form TF 007 issued, as in this case, that should suffice as compliance with paragraph 18(1) of the 1st Schedule, in the light of paragraph 53(1) and (a) of the 1st Schedule to the Electoral Act, 2010 (as amended).” The erudite and well articulated view expressed by the Learned Brother I. G. Mbaba JCA, encapsulates my view on the interpretation of paragraph 18(1) of the 1st Schedule (Supra). It is clear from the records before this Honourable Court that the Appellant applied to the Secretary of the Lower Tribunal for the issuance of a prehearing notice as in FORM TF 007. Accordingly, I hold that the Appellant complied with paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 (as amended). PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES:
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
AMBASSADOR DR. (MRS.) KEMA CHIKWE – Appellant(s)
AND
1. SENATOR CHRIS ANYANWU
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. RETURNING OFFICER, IMO EAST SENATORIAL DISTRICT – Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the National Assembly Election Petition Tribunal, holden at Owerri, in Petition No: EPT/IM/NASS/SN/04/2011, delivered on the 2nd day of August, 2011, per Hon. Justice Ishaq Bello (Chairman), Hon. Justice S. A. Bola (Member) and Hon. Justice Kadi Kabir Abubakar (Member).
The Appellant, herein Ambassador Dr. (Mrs.) Kema Chikwe, was a candidate of the Peoples’ Democratic Party (PDP) (2nd Petitioners at the Lower Tribunal) at the election held on the 9th day of April, 2011. The 1st Respondent, Senator Chris Anyanwu contested the said election, on the platform of the All Progressive Grand Alliance (APGA). The 2nd and 3rd Respondents declared the 1st Respondent the winner of the election having polled the highest number of votes cast at the election and returned her accordingly as the winner of the Imo East Senatorial District in the said election,
The Appellant, not satisfied with the election and return of the 1st Respondent filed a Petition before the National Assembly Election Tribunal holden at Owerri on the 28th day of April, 2011 upon the following grounds:
1. That the election of the 1st Respondent was invalid by reason of corrupt practices and or non-compliance with the provisions of the Election Act 2010 as amended; and or
2. That the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
The Appellant (petitioner) prayed the Honourable Tribunal as follows:
a) A declaration that the 1st Respondent was not validly elected and or returned by majority of valid votes cast at the said election by reason of the irregularities and substantial non-compliance to the Election Act as amended
b) A cancellation of all the invalid votes allocated to the 1st Respondent
c) A declaration that the 1st Petitioner is validly elected by majority of the valid votes cast in the Imo East Senatorial Election and an Order made for the 2nd Respondent to issue the 1st Petitioner with a Certificate of Return.
IN THE ALTERNATIVE
d) An Order of this Honourable Tribunal nullifying the election to the Imo East Senatorial District in Owerri Municipal Council, Owerri North Local Government Area for being a nullity by a reason of corrupt practices and substantial non-compliance with the Election Act 2011 (sic) and consequently ordering the 2nd Respondent to conduct fresh election in Owerri Municipal Council, Owerri North Local Government Area, Ahiazu Mbaise Local Government Area within the time fixed by this Honourable Tribunal.
e) And any Order that this Honourable Tribunal may deem fit to make in the circumstances.
On the 12th day of July, 2011, the Appellant wrote a letter to the Secretary of the Tribunal for the issuance of a prehearing notes titled: “RE: APPLICATION FOR THE HEARING NOTICE AS IN FORM TF 007”.
However, on the 13th day of July, 2011, the 1st Respondent filed a motion on Notice, with a supporting Affidavit of seven (7) paragraphs, deposed to by the 1st Respondent herself, along with a written address in support of the Motion on Notice to wit.
“An Order dismissing this petition for the failure of the Petitioners/Respondents to apply for the issuance of pre hearing notice as in form TF 007.”
The GROUND for this application is want of diligent prosecution of the petition by the Petitioners.
AND for such further Order or other Orders as this Honourable Tribunal will deem fit to make in the circumstances.
Issues were joined by the parties and the motion proceeded to hearing on the 29th day of July, 2011. Ruling was reserved and accordingly delivered on the 2nd day of August, 2011. The Lower Tribunal in its Ruling came to the conclusion, inter alia that:
“All said and done in this action, the Petitioners have failed to comply with paragraphs 18(1) and (2) of the schedule to the Election Act, 2010. The corollary of this is that, the Petition is deemed abandoned. The consequential effect is dismissal of same by this Tribunal.”
This is the Ruling the Appellant has appealed against being aggrieved by the whole decision. The Appellant filed her Notice of Appeal on the 17th day of August, 2011 containing Six (6) grounds of appeal. The Grounds of Appeal without their particulars are hereby reproduced.
GROUNDS OF APPEAL
GROUND ONE
The learned Tribunal Judges erred in law when they determined the Application for the dismissal of the Petitioners/Respondents/Appellant’s Petition even when the 1st Respondent/Respondent failed to obtain leave of the Lower Tribunal to move the said motion for the dismissal of the said petition and therefore occasioned a miscarriage of justice on the Petitioners/Appellants.
GROUND TWO
The Learned Tribunal Judges erred in taw when they neglected, failed and or refused to react to all the issues raised by the parties before arriving at their determination, thereby occasioning a miscarriage of justice on the Petitioners/Appellant.
GROUND THREE
The Learned Tribunal Judges erred in law when they suo motu raised the issue of “whether exhibit “No I” – Letter written by the Petitioners to the Secretary of the Tribunal, filed on 12th day of July, 2011 applying for issuance of Prehearing Notice satisfies the provision of paragraph 18(1) and (2) of the 1st Schedule to the Electoral Act, 2010, without inviting parties to address them on the new issue formulated by them.
GROUND
The Learned Tribunal Judges erred in Law when they granted the Reliefs sought by the 1st Respondent/Respondent whose application had become inconsistent thereby occasioning miscarriage of justice on the Petitioners/Appellants.
GROUND FIVE
The Learned Tribunal Judges erred in law when they accepted and acted on the 1st Respondent/Respondent’s Reply on points of law in the determination of the motion for the dismissal of the Petition, thereby occasioning a miscarriage of justice on the Petitioners/Appellants.
GROUND SIX
The Learned Tribunal Judges erred in law when they declared the Petitioner’s letter of Application of 12th day of July, 2011 incompetent and held that the Petitioners have failed to comply with paragraphs 18(1) and (2) of the 1st Schedule to the Electoral Act.
In the Appellant’s brief, settled by Emeka Etiaba, Esq, the following four (a) issues were formulated for determination namely:
1) Whether the motion (Subject-matter of this Appeal) was not incompetent, thereby denying the Lower Tribunal the requisite jurisdiction to entertain the motion (distilled from ground I).
2) Whether the Learned Tribunal Judges’ neglect, failure and or refusal to react to all the issues raised by the petitioners especially the issues bordering on the 1st Respondent’s reply and the inconsistencies in the presentation of the motion was not wrongful thereby occasioning miscarriage of justice on the Appellant (distilled from grounds 2, 4 and 5).
3) Whether the action of the Learned Tribunal Judges in raising the issues relating to whether the Petitioner’s letter of Application for issuance of Form TF 007 without inviting the Petitioners to proffer argument on the same was not wrongful and occasioning miscarriage of justice (distilled from ground 3).
4) Whether the Petitioner’s letter of Application for issuance of pre-hearing Information Notice is not competent (distilled from ground 6).
On the 22nd day of September, 2011, the Appellant was granted leave to raise and argue for the 1st time, ground one of her Notice and Grounds of Appeal filed on the 17th day of August, 2011, which borders on the competency of the 1st Respondent’s motion filed on the 13th day of July, 2011. Leave was also granted the Appellant to compile, file and serve on the Respondents, supplementary record, which supplementary record included the Appellant’s letter for Pre-Hearing Information Notice as in form TF 007, filed on the 12th day of July, 2011.
Consequent upon the above, the 1st, 2nd, and 3rd Respondents refiled their various amended briefs of argument.
The 1st Respondent’s refiled brief, settled by Sir. Bon Nwakanma (SAN) OON, the issues as formulated by the Appellant were adopted.
The 1st Respondent also incorporated in her brief, a Notice of Preliminary objection to the hearing of the Appeal.
In the 2nd and 3rd Respondents’ refilled brief of argument, settled by Udechukwu, A. T. Esq, three (3) issues were distilled for determination to wit:
1. Whether the Notice of Appeal dated 17th day of August, 2011, upon which this Appeal is predicated upon is incurably defective, entitling the Court to struck-out (sic) same.
2. Whether the petitioner’s letter dated 11th day of July, 2011, without more to the Secretary of the issuance of Pre-Hearing Forms TF 007 by the Petitioner/Appellant is sufficient to meet the requirement of paragraph 18(1) and 47(2) of the first schedule to the Electoral Act, 2010 as amended.
3. Whether the 1st Respondent’s motion on Notice dated 12/07/2011 and filed on 13/07/2011 to dismiss the Petition at the Lower Court is one on jurisdiction of the Court, to which all the established principle of law relating to raising objection on jurisdiction is applicable.
Counsel to the 2nd and 3rd Respondents also raised and incorporated in their brief a notice of preliminary objection to the hearing of the appeal.
At the hearing of the Appeal on the 26th day of September, 2011, Learned Counsel adopted and relied on their respective briefs of argument.
Appellant adopted and relied on her brief of argument, filed 1st day of September, 2011 as well as the Appellants reply to the 1st, 2nd and 3rd Respondents refilled brief of argument each filed separately on the 26th day of September, 2011 and urged this Honourable Court to allow this appeal in the interest of justice.
Counsel to the 1st Respondent, adopted and relied on the 1st Respondent’s refilled brief of argument filed on the 23rd day of September, 2011 and urged this Court to dismiss the Appeal.
In the same vein, Counsel to the 2nd and 3rd Respondents, adopted and relied on the 2nd and 3rd Respondents refilled brief, filed on the 23rd day of September, 2011 and urged the Court to dismiss the appeal.
NOTICE OF PRELIMINARY OBJECTION
Counsel to the Respondents raised in their respective briefs notice of preliminary objection to the hearing and determination of this appeal.
The 1st Respondent’s Notice of Preliminary/Objection was predicated upon two grounds while the 2nd and 3rd Respondents raised a sole ground of objection. The grounds raised by the 1st Respondent will be adopted to determine the objection as the 2nd and 3rd Respondents sole ground is subsumed therein.
The two grounds of the 1st Respondent’s Notice of Preliminary Objection are reproduced here under:
1. From page 244-264 of the record of appeal, this Honourable Court will see that there are 2(two) Petitioners
2. The parties at the Election Petition Tribunal and the parties in this appeal are not the same
3. There is a material alteration of the parties in this appeal.
GROUND TWO
1. The Election Petition Tribunal 2, sitting in Owerri was constituted in accordance with the provisions of section 285 of the constitution of the Federal Republic of Nigeria.
2. It has 3 (three) members who heard the argument on the matter and not Hon. Justice Ishaq Bello alone. The Notice of Appeal in this Appeal refers to the Election Petition Tribunal 2 sitting in Owerri presided over by Hon. Justice Ishaq Bello.
In arguing these grounds, Learned Counsel to the 1st Respondent submitted that by virtue of ORDER 6 Rule 2(1) of the Court of Appeal Rules, 2011 an incompetent notice of appeal is liable to be struck out. He referred further to AMADI VS OKOLI (1977) SC 57 at 58; AKINLOYE VS ADELAKUN (2005) 5 NWLR (Pt.657) 530 @ 535; BILAM DAMBAM VS ARDO LELE (2000) 11 NWR (PT.678) 413 at 437.
It is further submitted that the defect complained of in this appeal involves alteration of the parties to this appeal. The PDP was the 2nd Petitioner in the Lower Tribunal and any Notice of Appeal which does not contain the name of the 2nd Petitioner is defective, misleading and incompetent.
It is submitted also that the restructuring of the petition on Appeal by the Appellant is not a defect that can be cured by ORDER 19 Rule 5(1) and (2) of the Court of Appeal Rules 2011 as an irregularity. The case of OKONKWO VS INEC (2004) 1 NWLR (PT 854) 242 @ 275 paras C – H was referred to.
Learned Counsel further opined that any omission or contradiction in the Notice of Appeal by the Appellant failing to clearly and specifically state the membership of the tribunal whose decision is being challenged is defective in material respect. He referred to SECTION 285(3) as well as paragraph I(1) of the Sixth Schedule to the 1999 Constitution. He also referred to the case of OKONKWO VS INEC (supra) @ 275 – 276 paras H – B and urged this Court to strike out this appeal for being incompetent.
In his reply to the preliminary objection, Learned Counsel to the Appellant submitted that the Notice of Appeal satisfies fully the provisions of Order 6, Rule 2(1) of the Court of Appeal Rules 2011. He submitted that the non-inclusion of the 2nd Petitioner in the Notice of Appeal does not vitiate the said Notice of Appeal as such non inclusion is a mere irregularity. He referred to the case of OSIGWELEM Vs INEC (2011) 1 NWLR (Pt.1253) 425 at 441.
Learned Counsel for the Appellant also distinguished the case at hand with the case of OSONKWO vs INEC (2004) 1 NWLR ( PT. 854) 242 as well as AMADI vs OKOLI (1977) SC 57; AKINLOYE vs ADELAKUN (2005) 5 NWLR (PT 657) 530 at 535 and BILAM DAMBAM VS. ARDO LELE (2000) 11 NWLR (PT.678) 413. His view is that the above cited cases discussed the importance of a Notice of Appeal which is not in doubt.
On the second ground of objection, it is also submitted that the Appellant left nobody in doubt that the appeal is against the decision of the Election Tribunal Panel 2, presided over by Hon. Justice Ishaq Bello sitting in Owerri. He went on to define the words “Panel” and “Presiding Judge” and submitted that at no time did the Appellant foist on the Court the duty and responsibility of determining which Tribunal or Court determined the Petition. He relied on OSIGWELEM Vs INEC (Supra) 441; OKONKWO vs INEC (Supra) 276, 285 – 286 and submitted that these are mere irregularities which can be waved and that the 1st Respondent having taken steps by filing and serving her brief, is foreclosed from submitting that the appeal is incompetent. He therefore urged this Court to overrule the preliminary objection and determine the appeal on its merit. A thorough view at the grounds of the preliminary objection will reveal that the 1st Respondent has placed reliance on ORDER 6 RULE 2(1) of the Court of Appeal Rules 2011 as well as SECTION 285 (3) of the 1999 Constitution (as amended) to invalidate the Notice of Appeal. For avoidance of doubt, the following provisions state thus: ORDER 6 RULE 2(1) of the Court of Appeal Rules 2011:
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “Notice of Appeal) to be filed in the registry of the Court below which shall set forth the grounds 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 sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.”
SECTION 285 (3) of the 1999 Constitution (as amended) provides:
“The composition of the National and State Houses of Assembly Election Tribunals respectively shall be as set out in the sixth schedule to this constitution.”
SIXTH SCHEDULE
A -National and State Houses of Assembly Election Tribunal
“1 (1) A National and State Houses of Assembly Election Tribunal shall consist of a Chairman and two other members.”
Learned Counsel to the 1st Respondent strongly argued that the said Notice of Appeal is incompetent and liable to be struck out. The Appellant however argued that these axe mere irregularities that should not invalidate the Notice of Appeal.
In OKOKWO vs INEC Supra at page 275, His Lordship OLAGUNJU, JCA, relied on the position of the Supreme Court in AMADI vs OKOLI (1977) 7 SC 57 per Idigbe JSC at page 58 that:
“The Notice of Appeal is a very important document because it is the foundation of the appeal and if it is defective, the Court of Appeal has inherent power to struck(sic) it out on the ground that it is incompetent…”
On the issue of misrepresentation of the panel, the case at hand can be distinguished with that of OKONKWO vs INEC (supra). While it is not in doubt that a Notice of Appeal is fundamental to a valid appeal and any defect thereof goes to the roots of the appeal, a look at the Notice of Appeal in the OKONKWO’s case will reveal a radical difference from the case at hand. At page 274 – 275 of OKONKWO v. INEC supra, OLAGUNJU JCA held thus:
“Whereas in the Notice of Appeal the names of the members who heard and deliberated on the appeal are given as Hon Justice D. I. Ahura; Hon. Justice A. A. Elelegu; Hon. Kadi T. Mahmud; and D. T. Isede (C. M) in Petition No. EPT/AN/GOV/14/2003, considered by this Court as Appeal No.CA/E/EPT/85/2003 heard by the Tribunal on the 28/5/2003 (See pages 44 – 45 of the record) and on which ruling was given on Page 50 of the record, on 28/5/2003 the names of the members of the Tribunal were enumerated as I. T. Agube, J. B. Kaladejana, P. A. Onamade and A. J. Maru. The result is that as regards the membership of the panel of Judges, the difference between the decision on appeal and the decision being appealed from is so glaring as to depict two separate cases which are totally unrelated, that is to say, the membership of the Tribunal which decision is being challenged (by the Notice of Appeal) does not match up with the membership of the Tribunal which decision is proffered here for a review”.
   This is a different scenario from the case at hand. At page I of the Notice of Appeal, it was indicated thus: NOTICE OF APPEAL
“TAKE NOTICE that the Appellant being dissatisfied with the decision of the Election Petition Tribunal Panel 2, presided over by Hon. Justice Ishaq Bello sitting in Owerri contained in their Ruling delivered on the 2nd day of August, 2011 in Petition NO: EPT/IM/NASS/SN/04/2011…”
At page 264 of the records, it will be revealed that Hon. Justice Ishaq Bello was the Chairman of Election Petition Tribunal Panel 2, and that the ruling was delivered on 2od August, 2011. The only quarrel is that the names of the other panel members were not expressly stated in the Notice of Appeal. This in my view constitutes a mere irregularity which does not mislead this Court or the Respondents as to the membership of the Tribunal which decision is being challenged by the Notice of Appeal. The reasons stated above informed our decision to dismiss the Preliminary Objection.
Before proceeding on the merits of the appeal, I will pause to consider the first issue formulated for determination by the Counsel to the 2nd and 3rd Respondents. The said issue, one provides:
“Whether the Notice of Appeal dated 17/8/2011, upon which this Appeal is predicated upon is incurably defective, entitling the Count (sic, Court) to struck-out (sic) same.”
This issue was argued by way of preliminary objection in the 2nd and 3rd Respondents brief of Argument. See pages 5 and 6 thereof.
It is true that arguments on the competence of a Notice of Appeal should come by way of preliminary objection, and not as an issue for determination. Accordingly, having argued this issue in their preliminary objection, the said issue one as well as arguments canvassed therein goes to no issue and same is hereby discountenanced.
The point has been made earlier on in this Judgment that the Appellant raised four (4) issues for determination which issues were adopted by the 1st Respondent. 2nd and 3rd Respondents raised three (3) issues of which issue one has been struck out.
I shall consider this appeal on the issues raised by the Appellant, which also subsumes the remaining two issues of the 2nd and 3rd Respondents.
In arguing issue one to wit:
“Whether the motion (subject – matter of the Appeal) was not incompetent thereby denying the Lower Tribunal the requisite jurisdiction to entertain the Motion.”
Learned Counsel for the Appellant submitted that the Motion filed on 13th day of July, 2011 for an order of the Tribunal to dismiss the Petition was moved in contravention to the express provisions of paragraph 47 (1) of the 1st schedule to the Electoral Act 2010 (as amended). It is further submitted that having moved the motion outside the pre-hearing session, the leave of the Tribunal ought to have been obtained and such leave was neither sought for nor obtained. This according to him denied the Tribunal of the jurisdiction to hear and determine the petition. He relied on the following cases:
“MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 589 SANI vs OKENE LOCAL GOVERNMENT TRADITIONAL COUNCIL (2008) 5 KLR (PT 255) 247.” Learned Counsel went on to define “extreme circumstances” which definition was also given by the Supreme Court in the case of NWANKWO vs YAR’ADUA (2010) 12 N.W.L.R (PT.1209) 518 at 557. He also cited the case of BUHARI vs INEC (2008) 19 N.W.L.R (PT.1120) 246 at 446 and submitted that no motion ought to be entertained before the pre-hearing session without leave of Court and in extreme circumstances.
He submitted further that the use of “shall” in paragraph 47(1) (supra) reinforces the obligatory nature of the provision. It leaves the Tribunal without a discretion. He relied on the following to buttress his point: EMORDI vs IGBEKE (12011) 14 N.W.L.R (PT.1251) 34 at 35 paras A-B: BAMAIYI vs A.G. FED and ORS (2001) 12 NWLR (Pt.727) 468. He urged this Court to resolve issue one in favour of the Appellant.
In his response, Counsel to the 1st Respondent submitted that the said motion is competent and further submitted that where a petition becomes abandoned by virtue of the failure of the parties to apply for the issuance of a Pre-Hearing Notice as in form TF 007, no pre-hearing session will be held and what will be left will be the hearing of the motion for dismissal.
Learned Counsel further distinguished the case of NWANKWO vs YAR’ADUA supra with the case at hand and submitted that paragraph 47(1) of the 1st Schedule to the Electoral Act 2010 is inapplicable to the present appeal. His view is that the legal maxim of generalia specialibus non-derogant, that is, general words in a later statute do not repeal an earlier statutory provision dealing with a special subject. He respectfully submitted that paragraph 18(4) which is a special provision on abandoned petitions supersedes paragraph 47(1) which is a general provision on moving motions and referred and relied on a plethora of authorities to wit KALU vs ODILI (1992) 5 NWLR (PT.240) 130 at 196 EGOLUM vs OBASANJO(1999) 7 NWLR (PT.611) 355 at 393 EGBE vs ALHAJI and ORS (1990) 1 NWLR (PT.129) 546 at 606 and BENDEL STATE vs FEDERATION (1982) 3 NCLR 1 at 66.
It is also submitted that the 2nd arm of Paragraph 47(1) states that leave was to be applied for in exceptional circumstances. Learned Counsel’s view is that the case of OKEREKE vs YAR’ADUA (2008) 12 NWLR 95 referred to by the Appellant was quoted and used out of context. He further relied on MADAM ALICE OKESUJI vs FATAI ALABI LAWAL (1991) 1 NWLR (PT.170) 661 at 672 to submit that EXHIBIT ‘ON I’ was an improper method of application for Pre-Hearing session and urged this Court to resolve this issue against the Appellant.
In his argument on issue 2 to wit:
“Whether the learned Tribunal Judges’ neglect, failure and or refusal to react to alt the issues raised by the Petitioners’ especially to issues bordering on the 1st Respondent’s Reply and the inconsistencies in the presentation of the Motion was not wrongful, thereby occasioning miscarriage of justice on the Appellant.”
Learned Counsel to the Appellant submitted, it is a settled principal of law that a Court or Tribunal must react to all issues raised before it in every matter before arriving at a determination. He relied on the case of ANI vs ANI (2002) 5 NWLR 166 at 176 paras F-G.
It is his view that the Lower Tribunal did not react to the issue that the 1st Respondent’s Reply was incompetent and that the Lower Tribunal ought to have discountenanced same rather that found its Ruling on the said incompetent Reply. He submitted further that the procedures as it relates to Motions in Election Petitions is as envisaged by Paragraph 47(2), (3), (4) and (5) of the 1st Schedule to the Election Act, 2010 (as amended) and that any process which negates the laid down procedure in these above cited provisions is irregular, null and void. His further view is that the Lower Tribunal Judges ought not to have ignored the inconsistencies in the 1st Respondent’s brief and such inconsistencies are fatal to the case. He cited and relied on the following authorities AYINDE vs KELANI (1985) 3 N.W.L.R (PT.12) 248 at 269 APGA vs UME (2011) 8 NWLR (PT.1250) 544 at 569 – 570. NGIGE vs OBI. (2006) 14 NWLR (Pt.999) 1 at 226.
It is submitted that the Petitioners were denied fair hearing in that the issues raised in the 1st Respondent’s Reply were outside the issues already joined by the parties and this occasioned a miscarriage of justice. He therefore urged this Honourable Court to resolve this issue in favour of the Appellant.
In his response, Counsel to the 1st Respondent submitted that the 1st Respondent never at any point saw the said Exhibit “ON I” until same was attached to the Petitioner’s Counter Affidavit and Written Address in support for which the 1st Respondent reacted to in her Reply. Since the 1st Respondent had a right of reply to any new issue raise do the said 1st Respondent’s Reply cannot be said to be incompetent.
Learned Counsel further submitted that there were no inconsistencies in the 1st Respondent’s Reply to the Appellant’s Counter Affidavit and Written Address. Her case was based on the failure of the Appellants to comply with the provisions of paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 and she did not depart from that. He further submitted that the cases of AJIDE vs KELANI (1985) 2 NWLR (PT 12) 248 at 269 and APGA vs UME (Supra) cited by the Appellant are inapplicable because in those cases, the Appellants abandoned their cases as contained in their pleadings at the trial Court and Tribunal respectively and presented a different case at the Court of Appeal and at the Supreme Court respectively.
That in the present case, the 1st Respondent has been consistent in contending that the Petitioners did not comply with the provisions of Paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 and urged this Court to hold that failure of the Honourable Tribunal to hold that the 1st Respondent’s case was full of inconsistencies did not occasion a miscarriage of justice as no inconsistency existed in the case presented by the 1st Respondent.
In this reply on points of law, Learned Counsel to the Appellant submitted that the allegation that the letter of Application was never filed is inconsequential as same form part of the records of this Court. He referred to ORDER 8 RULE 6 of the Court of Appeal Rules and submitted that the 1st Respondent never denied knowledge of the said letter. All she is saying is that it did not satisfy the provisions of Paragraph 18(1) of the 1st Schedule to the Act and the subsequent denial of the existence cannot now avail the 1st Respondent and he urged this Honourable Court to so hold.
In arguing his issue three (3) to wit:
“Whether the action of the Learned Tribunal judges in raising the issues relating to whether the Petitioner’s letter of Application for issuance of Form TF 007 without inviting the Petitioners to proffer argument on the same was not wrongful and occasioned miscarriage of justice.” Learned Counsel for the Appellant submitted that since the Lower Tribunal had made up its mind to make a finding on the letter, it ought to have extended an invitation to the Petitioners to proffer their argument on the letters, no matter how hopeless. He relied on the Supreme Court decision in AJUWON vs AKANNI (1993) 9 NWLR (Pt.316) 182 at 198 – 199. EJOWHOMU vs EDOK-ETER LTD (1986) 5 NWLR (PT 39) 1 at 39.
It is thus submitted that the Learned Tribunal Judges erred when they raised the new issue bordering on the Petitioners letter of application and determined the Motion by ordering a dismissal of the Petition without giving the Petitioners the opportunity to be heard. He urged this Honourable Court to resolve this issue in favour of the Appellant.
In his response, Learned Counsel to the 1st Respondent submitted that the foregoing argument canvassed by the Appellant is misconceived because the Petitioner/Appellant was given ample opportunity to proffer oral submission on his case. He referred this Honourable Court to pages 240 – 241 of the Records and submitted that the Appellant was given opportunity to address the Tribunal on Exhibit “ON I”
His further view is that if a party fails to make maximum use of the opportunity given to it by the Tribural to present its case, he cannot later on appeal complaining that he was denied fair hearing. He relied on the case of INAJOKU vs ADELEKE (2007) 4 NWLR (PT.1025) 423 at 627-628. He placed further reliance on the followings authorities. HASSAN vs INEC (2008) 39 WRN 31: AMADI vs CHINDA and 6 ORS (2009) 4-5 SC (Pt.II) 1 at 30 – 31. AJUWON vs AKANNI (1993) 9 NWLR (PT.316) 182 and 198, and submitted that these authorities cannot avail the Appellant as the Tribunal did not go outside the cases presented by the parties. It merely discharged its burden of evaluating the case presented by the parties He urged this Honourable Court to so hold and resolve this issue against the Appellant.
In his Reply on points of law, Learned Counsel to the Appellant submitted that the case of INAJOKU vs ADELEKE supra cited by the 1st Respondent to buttress the fact the Appellant had ample time to address the issue of the propriety of a letter as a means of satisfying paragraph 18(1) of the 1st Schedule to the Act is misconceived. His view is that the time given the Appellant to adumbrate on his written submission is not for new issues but for elucidation of submissions already made in the Written Address and urged this Honourable Court to uphold this line of argument.
In arguing his issue 4 to wit:
“Whether the Petitioner’s letter of Application for issuance of Pre-Hearing Information Notice is not competent,” Learned Counsel for the Appellant submitted that the said letter was competent as envisaged by paragraph 18(1) of the 1st Schedule of the Electoral Act 2010. He referred to the Supreme Court’s decisions in OKEREKE vs YAR’ADUA (2008), 12 NWLR (PT.1100) 95 at 120 per Muhammed J.S.C: DIKE vs ADUBA (2000) 3 NWLR (Pt.647) 1.
He further submitted that having regard to the limitation in Paragraph 47(1), the provision in Paragraph 47(2) of the 1st Schedule on the meaning of “Application” does not apply to the special provision in para1graph 18(l), (3) thereof. He relied on the case of FMBN vs OLLOH (2002) 9Â Â NWLR (PT 773) 475 at 489 and since paragraph 18 of the 1st Schedule provides that all motions shall be taken at the pre-hearing session, it would be absurd to provide in the same breadth, that the application for a Pre-hearing session should be by way of Motion.
Thus, his view is that the decision of the Tribunal declaring that an application by a letter for the issuance of pre-hearing Notice is incompetent is misconceived and urged the Honourable Court to hold that the Application by letter filed 12th day of July, 2011 for the issuance of pre-hearing Notice in this Petition and acted upon by the Tribunal is competent and that this issue should be resolved in favour of the Appellant.
In his response, Learned Counsel to the 1st Respondent submitted that the said letter of Application is incompetent. He placed reliance on Paragraph 18(1) and (2), Paragraph 47(2) and the case of IKORO vs IZUNASO (2009) 4 NWLR (PT.1130) 45 at 71 to submit that a community reading of all the authorities would reveal that an application for the issuance of Pre-Hearing Notice as in FORM TF 007 is to be by way of motion and not by letter writing.
He referred this Honourable Court again to the case of ABUBAKAR vs INEC (2004) 1 NWLR (PT.854) 207 at 239: NWANKWO vs YAR’ADUA (2010)12 NWLR (Pt.1209) 518 at 559 and submitted that where a statute has provided for the procedure or manner in which a particular thing is to be done, the provision in the statute must be complied with and no other procedure should be adopted.
It is therefore submitted that the mere letter dated 11th day of July, 2011 written to the Secretary of the Tribunal is not an application for the issuance of the Pre-Hearing Notice as in FORM TF 007 as required by law.
Learned Counsel further submitted that the letter is also incompetent as it bears no endorsement of fees. He referred this Court to the case of ADO vs MEKARA (2009) 9 NWLR (Pt.1147) 491 at 505 – 506. He also further opined that for the letter to qualify under Paragraph 18(1), the following conditions must be met:
1. Leave must be sought to file the letter of Application. He referred this Court to the unreported case of PPP vs UGBA and ORS in Appeal No. CA/MK/EPT/10/2011 delivered on the 15th day of September, 2011.
2. The letter of Application must be duly filed at the Registry of the Tribunal and filing fees paid on it, He referred to the case of ADO vs MEKARA supra 491 at 505 – 506, as well as Paragraph 37(4) of the 1st Schedule to the Electoral Act.
3. The letter of Application must be served on the parties to the Petition. He relied on the unreported case of MR. SIMON ISA and ANOR Vs ALHAJI SA’AD TAHIR and ANOR, in CA/YL/EPT/ADS/HA/2/2011 delivered on 24th day of August, 2011, as well as Paragraph 47(2) of the 1st Schedule to the Electoral Act 2010.
Not having met any of these conditions, this Honourable Court is urged to resolve this issue in favour of the 1st Respondent and dismiss the appeal.
In his reply on points of law, Learned Counsel to the Appellant submitted that the issue of Application for pre-hearing information sheet as in FORM TF 007 is solely an administrative function executed by the Secretary of the Tribunal (on behalf of the Tribunal) as soon as an application is made.
Learned Counsel further argued that since the 1st Respondent is seeking to vary the decision of the Lower Tribunal while seeking for the sustenance of the decision, ORDER 9, RULE 1 of the Court of Appeal Rules 2011, which provides for a respondent’s Notice ought to avail the 1st Respondent and having filed no Respondent’s Notice, every argument on non-filing of the letter ought to be discountenanced. He relied on the case of OGUMA vs IBWA (1988) 1 NWLR (PT.73) 658 at 661; WILLIAMS vs DAILY TIMES (1990) 1 NWLR (PT.124) 1 at 21.
In responding to whether or not the Appellant met with the above cited conditions, learned counsel for the Appellant submitted that:
1. In all the cases where letters were accepted by the Court as a proper mode of Application” for the Pre-hearing Notice as in FORM TF 007, none came by way of leave. He relied on and ANOR vs PDP and 111 ORS (unreported) delivered on 6/9/2011 by this Court sitting in Yola; HASSAN v. INEC (Supra)
2. On the submission that the letter must be duly filed and fees paid, he referred to Page 2 of the supplementary Record, and the cases of EZEUDU vs JOHN CA/E/EPT/06/2011 delivered 5/9/2011: DANKARO and ANOR vs PDP and ORS in CA/YL/EPT/TR/SE/5/20011 delivered 6th September, 2011 per Saulawa JCA.
3. On the submission that the letter must be served on the Respondents, he referred this Court to Paragraph 18 (1) and (2) and submitted that a community reading of both provisions will reveal that the Petitioner is not to serve the Respondents but the Court or Tribunal.
He therefore urged this Honourable Court to discountenance the argument canvassed by the 1st Respondent and resolve this issue in favour of the Appellant.
In their amended Brief of argument, the 2nd and 3rd Respondents raised three issues for determination. The issues save issue one which has been struck out read thus:
2) Whether the Petitioners letter dated 11th day of July, 2011 without more to the Secretary of the Tribunal requesting for the issuance of pre-hearing FORM TF 007 by the Petitioner/Appellant is sufficient to meet the requirement of Paragraph 18(1) and 47(2) of the 1st Schedule to the Electoral Act 2010 as amended.
3) Whether the 1st Respondent motion on notice dated 12/07/2011 and filed 13/07/2011 to dismiss the Petition at the Lower Court is one on jurisdiction of the Court, to which all the established principal of law relating to raising objection on jurisdiction is applicable.
In arguing their issue 2, Learned Counsel to the 2nd and 3rd Respondents submitted that the letter dated 12/07/2011 to the Secretary for issuance of pre-hearing is defective for the following reasons:
1) Leave of the Lower Tribunal was not first sought and granted.
2) The said letter being a Court process was not filed and filing lees were not paid as required by law.
3) The said letter was not served on any of the Respondents.
He referred to the unreported case of PDP vs UGBA and ORS in Appeal NO.CA/MK/EPT/10/2011 delivered on 18th September. 2011. He cited also the provisions of Paragraph 18(1) and 47(2) of the 1st Schedule to the Electoral Act as well as ONWUGBUFOR vs OKOYE (1996) 1 SCNJ 1 at 36 to buttress his point.
In his reply on points of law, Learned Counsel to the Appellant submitted that the letter in question was dated 11th day of July, 2011 and not 12th day of July, 2011 as contended by the 2nd and 3rd Respondents. Accordingly, the Appellant will not reply on issues raised therein as they do not relate to the letter of Application written by her at the Lower Tribunal.
In their issue 3, Learned Counsel to the 2nd and 3rd Respondents submitted that the Petitioner had seven (7) days to apply to the Tribunal for issuance of FORM 007 and the motion filed by the 1st Respondent on 13/07/2011, was filed after the expiration of the 7 days granted the Petitioner by law and therefore competent to foist jurisdiction on the Lower Tribunal. He referred also to the case of GALADIMA vs TAMBAI (2000) 6 SCNJ (PT.1) 196 at 207 or (2000) 11 NWLR (PT 677)?
He urged this Court to hold that the 1st Respondent’s motion filed 13/07/2011 was competent and resolve this issue against the Appellant.
In his Reply, Learned Counsel for the Appellant argued that the issue of application for issuance of pre-hearing Notice is procedural and cannot be elevated to a constitutional issue and therefore the case of GALADIMA vs TAMBAI (supra) cannot apply. He relied also on the case of OBIWUEUBI vs CBN (2011) 7 NWLR (PT 1247) 465 at 506-507 and urged this Honourable Court to discountenance all the arguments proffered by the various Respondents, allow this appeal and make an order for retrial.
A holistic perusal of all the issues raised by the parties would show that the fundamental question begging to be answered is whether the Letter written by the Appellant to the Secretary of the Lower Tribunal for the Issuance of a Pre-Hearing session as in FOBM TF007 is in conformity with the provisions of Paragraph 18(1) to (3) and Paragraph 47 (2) of the 1st Schedule to the Electoral Act 2010 (as amended). If answered in the negative, whether the motion for dismissal filed by the 1st Respondent, (which is the subject matter of this appeal) was competent, thereby foisting on the Lower Tribunal, the necessary jurisdiction to hear the said motion for dismissal.
It is my candid view that the answer to that fundamental question may not be far fetched. The requirement for the pre-hearing session has been explicitly provided in the Electoral Act 2010 as amended; most especially the 1st Schedule to the Act has provided inter alia, as follows:
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 which is the case, the petitioner shall apply for the issuance of pre-hearing notice as in FORM TF 007.
(2) Upon application by a Petitioner under sub-paragraph (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:
(a) the disposal of all matters which can be dealt with on interlocutory application;
(b) giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions;
(c) giving directions on order of witness to be called and such documents to be tendered by each party to prove their cases having in view the need for the expeditious disposal of the petition; and
(d) fixing clear dates for hearing of the petition.
The Respondent may bring the application in accordance with sub-paragraph (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.
47 (1) 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.
(2) Whereby these Rules any application is authorized to be made to the Tribunal or Court such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the Respondent.
It is evident from the supplementary records before this Court that the Appellant had applied to the Secretary of the Tribunal for issuance of pre-hearing notice dated 11th day of July 2011 and same was duly filed in the Registry of the Tribunal on 12th July, 2011 (See page 2 of the supplementary Record which shows thus:
11/07/11
The Secretary
National Legislative House
Election Tribunal
Owerri, Imo State
Sir,
RE: APPLICATION FOR PRE-HEARING NOTICE AS IN FORM TF 007
May we by this letter and on behalf of the Petitioners apply pursuant to paragraph 18(1) of the 1st Schedule to the 2010 Electoral Act, as amended, for the issuance of the above FORMS as in FORM TF 007 in respect of Petition No.EPT/IM/NASS/SN/04/2011. We shall be obliged if same is issued to us. Thank you.
Yours faithfully,
Obinna Nnaka Esq
(Counsel to Petitioners)
The contention of the Respondents is that this letter is not consistent with the requirements of the 1st Schedule to the Electoral Act, particularly paragraph 47(2) thereof.
I find it imperative for avoidance of doubt to copy verbatim, the said paragraph
47 (2).
47 (2)
“Where by these Rules, any application is authorized to be made to the Tribunal or Court, such application shall be by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the Respondent.”
It is a trite and well established doctrine of interpretation, that statutes are normally given a holistic construction. The words employed in a statute ought not be construed in isolation of the section or phrase on which they occur, but rather in the context of the entire statute.
The essence of the golden rule of interpretation is to guard against any likelihood of inconsistency or repugnancy either within the section liable to be construed or other provisions of the statute per Saulawa JCA in the unreported case of DANKARO and ANOR v. PDP and 2 ORS in CA/YL/EPT/TR/SE/5/2011 delivered on the 6th day 6 day of September. 2011. See also INEC vs A.C. (2009) ALL FWLR (PT.480) 733 at 740.
In the instant case, the Appellant’s application for the issuance of Pre-hearing notice bears in it the suit number, the relevant provisions of the law under which it is brought. At page I of the supplementary Record there was evidence of payment of filing fees. The letter itself bears the signature and stamp of the Secretary of the Tribunal indicating that it is a process properly filed at the Lower Tribunal.
It is trite that a party who has formally applied for the issuance of a judicial process (in the instant case, a Pre-hearing notice) can be held responsible for the negligence, failure or lapses occasioned by a judicial staff saddled with the responsibility of issuing processes. See SAUDE vs ABDULLAHI (1989) 4 NWLR (Pt.116) 387 at 424; FAMFA OIL LTD vs AG FEDERATION (2003) 51 WRN 1. Even if the application was by letter, it conveyed the information that was required to cause the issuance of the pre-hearing notice, as it did not mislead or prejudice the parties and the authority that was to issue the pre-hearing notice. Consequently, Paragraph 53(1) of the 1st Schedule to the Electoral Act (supra), should have been invoked by the Lower Tribunal to save the petition from doom.
Paragraph 53 (1) provides.
“Non compliance with any of the provisions of this schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deem fit and just.”
In IBRAHIM vs SHERIFF (2005) ALL FWLR (Pt.245) 1098 at 1116, this Court per Fabiyi JCA (as he then was) opined:
“The vogue these days is to hear election petitions on their merit where such petitions can be saved. In NWOBODO vs. ONOH (1984) II SCNLR I, the Supreme Court maintained that election petitions are by their nature peculiar from other proceedings. They are very important from the point of view of public policy. It is the duty of Courts therefore to hear them without allowing technicalities to unduly fetter their jurisdiction…” And I so hold.
Suffice it also to state that paragraph 18(3) of the 1st Schedule to the Electoral Act (Supra), envisages two types of applications; The said provision provides:
(3) The Respondent may bring the application in accordance with sub-paragraph (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 (underling mine for emphasis).
The above provision implies two modes of application:
1) application in accordance with sub-paragraph one
2) or by motion which shall be served on the Petitioner and in 3 clear days, for an order to dismiss the Petition (that is where neither the Petition nor the Respondent brought the application for issuance of a pre-hearing notice).
It is therefore my candid view that the type of application expected or required by the Electoral Act, of the Petitioner is the type of application in accordance with subparagraph one. Since the same does not require any prayer for any exercise of judicial direction by the Tribunal but just a demand by the law, to activate the issuance of the pre-hearing notice (FORM TF 007) and fixing of a date for the pre-hearing session.
I adopt wholly the view expressed by ITA G. MBABA JCA in SIMON ISA and ANOR vs ACHAJI SA’AD TAHIR and ANOR in Appeal No. CA/YL/EPT/ADS/HA/2/2011 delivered on the 6th day of September, 2011 at pages 32-34 (which views apply mutatis mutandis to the instant appeal) thus:
“As ably argued by the Learned Counsel for the 1st Respondent, the general rule of interpretation of a statutory provision is construing the statute as a whole – INEC vs AC (2009) 2 NWLR (PT 1126) 524 at 591- 592. The words should not be construed in the part of the section or phrase in which they occurs, but in the contest of the whole statute”
The Legislature could not have intended to introduce mischief or inequitable result when it required either the Petitioner or the Respondent to apply for the prehearing notice in paragraph 18(3) of the 1st Schedule, and so would not permit the Respondent to ambush the Petitioner by bringing a motion for striking out or dismissal of the Petition, when the Petitioner is actually ready and willing to prosecute it and has activated the issuance of the Pre-hearing notice and fixed the process for pre-hearing session. I believe the mischief which paragraph 18 of the 1st Schedule sought to cure was dilatory approach to the prosecution of petition, not a bubby trap to manipulate the frustration of hearing on the Petition and give a Respondent a technical victory and the Petitioner technical knock-out.
“…since the main issue in this appeal touched on the interpretation of paragraph 18(1) of the 1st Schedule to the Electoral Act, relating to what form the application for the pre-hearing notice should, take whether the phrase “the petitioner shall apply for issuance of pre-hearing notice” implies bringing a motion on notice or a motion exparte before the Court or writing a simple letter to the Secretary of the Tribunal for issuance of the prescribed Form TF 007, it is my view that the heavy weather made over the whole issue was completely unnecessary as the intention of the legislature is quite clear on the need to apply for issuance of the form in the paragraph, without any suggestion of a Motion (which would even be absurd in the circumstance).
Thus Paragraph 47(2) of the 1st Schedule cannot be read into paragraph 18(1). Once a formal application has been made to the requisite officer of the Tribunal, authorized to issue the Form and the Form TF 007 issued, as in this case, that should suffice as compliance with paragraph 18(1) of the 1st Schedule, in the light of paragraph 53(1) and (a) of the 1st Schedule to the Electoral Act, 2010 (as amended).”
The erudite and well articulated view expressed by the Learned Brother I. G. Mbaba JCA, encapsulates my view on the interpretation of paragraph 18(1) of the 1st Schedule (Supra). It is clear from the records before this Honourable Court that the Appellant applied to the Secretary of the Lower Tribunal for the issuance of a prehearing notice as in FORM TF 007.
Accordingly, I hold that the Appellant complied with paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 (as amended).
I hold also that the motion on notice filed by the 1st Respondent on the 13th day of July, 2010 for an order of dismissal is incompetent and hasty and the Lower Tribunal was wrong to have determined this appeal in limine based on the motion for dismissal brought by the 1st Respondent.
It is for the above reasons that we allow this appeal on the 28th day of September, 2011 and ordered for the trial of the petition No. EPT/IM/NASS/SN/04/2011 on the merit by another panel to be constituted by the President of the Court of Appeal.
There was an award of costs of N50,000.00 only in favour of the Appellant against the 1st Respondent.
CHIDI NWAOMA UWA, J.C.A.: I agree.
HARUNA M. TSAMMANI, J.C.A.: I agree
Appearances
Emeka Etiaba Esq with Chief Julius Onyenucheya Esq., N. N. Kalejaiye (Mrs.), Chris Okoro, Esq, L. E. M. Danielson, Esq, Obinna Nnaka, Esq, and Nkechi Anyira (Miss) For Appellant
AND
Prince Odi Nwafor-Orizu, Esq, with Eneka O. Nwagwu Esq., A. I. Nwachukwu, Esq. Ijeoma Egole (Mrs.), C. C. Uzoma, Esq, and G. O. Nwobo, Esq. for the 1st Respondent.
A. T. Udechulcwu, Esq with N. I. Nwagwu Esq for the 2nd and 3d Respondents. For Respondent
