APM & ANOR v. INEC & ORS (2020)

APM & ANOR v. INEC & ORS

(2020)LCN/14083(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/A/EPT/161/2020

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. ALLIED PEOPLES MOVEMENT 2. YUSUF MAMMAN DANTALLE APPELANT(S)

And

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 2. ALL PROGRESSIVE CONGRESS (APC) 3. YAHAYA BELLO RESPONDENT(S)

RATIO

THE PURPOSE OF PRELIMINARY OBJECTIONS

It is now settled by a plethora of authorities that a preliminary objection has one basic objective, to terminate the appeal in limine and without a hearing. So, when it is issued by a respondent, the Court is duty-bound to hear and determine same before hearing the appeal. This is so because the Court would have saved the energy it would have dissipated over the hearing of an incompetent appeal, if the appeal is indeed incompetent. See YARO V AREWA CONSTRUCTION LTD (2007) 17 NWLR (PT. 1063) 333; AGBAREH V MIMRAH (2008) 2 NWLR (PT. 1071) 378; ONYEMEH V EGBUCHULAM (1996) 5NWLR (PT.448) 255; EFET V INEC (2011) 7 NWLR (PT. 1247) 423 at 438.
Elucidating further, my Lord KEKERE-EKUN, JSC in KLM ROYAL DUTCH AIRLINES V ALOMA (2017) LPLER-42588(SC) held thus:
“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See ODUNUKWE VS OFOMATA (2010) 18 NWLR (PT.1225) 404 @ 423 C – F; NDIGWE VS NWUDE (1999) 11 NWLR (PT. 626) 314: N.E.P.A. VS ANGO (2001) 15 NWLR (PT. 734) 627; MUHAMMED V. MILITARY ADMINISTRATOR PLATEAU STATE (2001) 18 NWLR (PT.744) 183.” PER NIMPAR, J.C.A.

DEFINITION OF GROUND OF APPEAL

A ground of appeal was defined in the case of FASUYI & ORS V PDP & ORS (2017) LPLER- 43462(SC) as follows:
“Firstly, it is settled that Ground(s) of Appeal is the totality of reasons why the decision complained against is considered wrong by the Appellant – see Ehinlanwo V. Oke (2008) 6 -7 S.C. (Pt. 11) 123. See also FMBN V. NDIC (1999) 2 NWLR (Pt. 591) 333 and Metal Construction (W.A.) Ltd. D. A. Migliore & Ors (1990) 1 NWLR (Pt. 126) 299 at 311, where Karibi-Whyte, JSC, stated as follows – What then is a ground of Appeal, I consider it presumptuous, but will still venture to define a Ground of appeal as consisting of error of law or fact alleged by an Appellant as the defect in the Judgment appealed against and relied upon to set it aside. Thus, a ground of appeal consists of error of law or fact alleged by the Appellant as the defect in the Judgment he is appealing against.” Per AUGIE, J.S.C. PER NIMPAR, J.C.A.

THE CONCEPT OF FAIR HEARING

When the law and rules of procedure set times within to do an act and a party fails to so act, it cannot complain of breach fair hearing. See AYOADE V STATE (2020) LPELR- 41379(SC) where the Court held:
“The law is quite settled that a complaint of lack of fair hearing will only avail a party where he is able to show that he was denied the opportunity of presenting his case. Whether or not he was denied fair hearing depends on the facts and circumstances of the case. It has been held in several decisions of this Court that the crucial determinant of whether or not a party has been denied fair hearing is whether the parties were afforded an equal opportunity to present their case before judgment is delivered. The Court will take an objective view of the entire proceedings. The true test of fair hearing is the impression of a reasonable man present at the trial and whether from his observation, justice has been done in the case. See: Mohammed Vs Kano Native Authority (1968) 1 ALL NLR 424; Akaninwo Vs Nsirim (2008) 1 SC (Pt. III) 151; Otapo Vs Sunmonu (1987) 2 NWLR (Pt. 58) 587 @ 605. The effect of a breach of the right to fair hearing is that the entire proceedings and any judgment or order made therein become a nullity. See: Audu Vs F.R.N (2013) LPELR – 19897 (SC) 13; Akinfe Vs The State (1988) 3 NWLR (Pt. 85) 729; Bamgboye Vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290. Conversely, it has been held severally, that where the Court creates an enabling environment for the parties to ventilate their grievances, either in the prosecution or defence of their case, the failure of a party to take advantage of such conducive environment cannot be the basis for a complaint of lack of fair hearing. See Mfa & Anor Vs. Inongha (2014) 1-2 SC (Pt. 1) 43; Inakoju Vs. Adeleke (2007) LPELR – 1510 (SC). Per Kekere-Ekun, JSC.”PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the Kogi State Governorship Election Petition Tribunal (hereinafter referred to as the Tribunal) delivered on the 1st February, 2020 (Coram: Hon. Justice G.K. Kaigama-Chairman; Hon. Justice O. Ovbiagele – Member I and Hon. Justice Baraka I. Wali- Member II) wherein the Tribunal dismissed the brought petition brought by the Appellants for failure to apply for pre-hearing Notice as stipulated under Paragraph 18(1) of the First Schedule of the Electoral Act 2010 (As Amended). The application was made by the 3rd Respondent after the close of pleadings. Dissatisfied with the said decision the Appellants filed its Notice of Appeal on the 21st day of February, 2020 setting out 4 grounds of Appeal.

Facts leading to this appeal are amenable to brief summary. The 1st Appellant, a party which nominated the 2nd Appellant as a candidate for the Election into the office of Governor, Kogi State conducted by the 1st Respondent in which the 3rd Respondent was returned duly election. The 1st Appellant alleged that its nominated candidate (2nd Appellant) was excluded

from the election and therefore brought a petition on the 29th November, 2019 upon one ground namely:
“That the 1st Respondent unlawfully excluded the Petitioners from fully participating in the Governorship Election of Kogi State on the 16th November, 2019.”

The Respondents were duly served with the Petition, some by substituted means and the 3rd Respondent by way of motion filed on the 28/1/2020 challenged the competence and jurisdiction of the Tribunal on the ground that the Appellants as Petitioners failed to apply for Prehearing Notice within the stipulated time as provided by Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010. The motion was contested and after hearing, the Tribunal granted the application and dismissed the petition thus this appeal.

The Appellants’ Brief settled by REUBEN EGWUABA ESQ., is dated 9th day of March, 2020 filed on the same date. The Appellants distilled 2 issues for determination as follows:
i. Whether within the meaning of the Provisions of Paragraphs 18 and 49 of the 1st Schedule of the Electoral Act, 2010 (as Amended 2015), the Justices of the lower Tribunal were right

when they held that the Appellants’ Petition was abandoned.
ii. Whether within the meaning and intendment of Paragraph 53(1) of the 1st Schedule to the Electoral Act, 2010 (as amended 2015), read along with Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the dismissal of the Appellants’ Petition at the Lower Tribunal while other interlocutory Applications were pending was not in contravention of the Constitutionally protected rights of the Appellants.

In response to the Respondents Briefs, the Appellants filed Reply Briefs to the 2nd and 3rd Respondents’ briefs on the 20/3/2020 and 19/3/2020 respectively. The content of the two replies is the same and mostly a rehash of the Appellants’ Brief except new issues raised by the Appellants.

The 1st Respondent’s Brief settled by A.U. MUSTAPHA (SAN) is dated 17th March, 2020 filed on the same day, he formulated a solo issue for determination as follows:
Whether in the circumstances of the petition and the settled position of law the lower Tribunal was right when it dismissed the petition of the Appellants as being abandoned?<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The 2nd Respondent’s Brief settled by M. Y. ABDULLAHI ESQ., is dated 13th March, 2020 filed on the 16th March, 2020 and it adopted the Appellants’ 2 issues for determination.

The 2nd Respondent also filed a Preliminary Objection to the hearing of the appeal on the 16/3/2020, I shall return to it soon.

The 3rd Respondent’s Brief settled by P.B. DAUDU ESQ., is dated 16th day of March, 2020 and filed on the same day. It donated a sole issue for determination as follows:
Whether the lower Tribunal could be faulted in the way and manner it dismissed the Petition as being abandoned by the Petitioners?

At the hearing of the Appeal, the Appellants counsel made an oral application to withdraw the appeal against the 4th – 24th Respondent, the application was granted and the processes before the Court deemed amended on the manual endorsement made by the Appellants’ Counsel. It was expedient for the Appellants’ Counsel to do that to allow the appeal proceed to hearing because it was lapse in 3 days from that date of hearing. Therefore the appeal was heard against 3 Respondents only and who were before the Court. At the

hearing the 1st Respondent’s counsel who was duly served with a hearing, was absent. The Court pursuant to Order 19 (9)(2) deemed the 1st Respondent’s Brief as argued. The respective briefs were adopted at the hearing on the 27th March, 2020.

PRELIMINARY OBJECTION:
The 2nd Respondent filed a Preliminary Objection on the 16/3/2020 which states thus:
“TAKE NOTICE that the 2nd Respondent shall before or at the hearing of this appeal raise a Preliminary Objection to the competence of the Appeal and the jurisdiction of this Honourable Court to hear and determine the Appeal as presently constituted for the following reasons:
i. Ground 3 of the Notice of Appeal is incompetent for being a complaint not arising from the decision of the trial Tribunal.
ii. In the circumstances, ground 3 and the issue formulated there from ought to be struck out.
iii. Ground 3 and issue one formulated there from ought to be struck out for being incompetent.
iv. Issue one being incompetent has rendered grounds 1 and 2 of the Notice of Appeal distilled there from, incompetent.
v. Ground 4 of the Notice of Appeal is incompetent

being a complaint not arising from the decision of the trial Tribunal
vi. Ground 4 and issue Two formulated there from ought to be struck out for being incompetent.

The objection is supported by 16 grounds as spelt out in the Notice of Preliminary Objection filed on 16/3/2020. The 2nd Respondent supported the Preliminary Objection with arguments incorporated in the 2nd Respondent’s Brief also filed on the 16th March, 2020 particularly at pages 6-8 of the Brief.

Arguing the objection, the 2nd Respondent submitted that ground 3 of the Notice of Appeal is not arising from the decision appealed against at pages 354-358 of the Record of Appeal because paragraph 49 was not mentioned in the ruling appealed against and the Appellants imported it from an unknown source. Furthermore, that ground 3 of the Notice of Appeal has no connection with the ruling appealed against and it has long been settled that a valid appeal must constitute a complaint against the decision of the trial Court, referred to HON. NICHOLAS MUTU V REALVINE CONNECTION LIMITED (2016) LPELR-41807 (CA); STIRLING CIVIL ENGINEERING (NIG) V YAHAYA (2001) LPELR- 7046 (CA) and

MERCANTILE BANK OF NIGERIA PLC & ANOR V LINUS NWOBODO (2005) LPELR-1860 (SC).

Similarly, on ground 4, the 2nd Respondent submitted that it is incompetent because it was presented as an excerpt from the ruling of the Tribunal but in real sense it is not in the ruling. Learned counsel to the 2nd Respondent submitted that the trial Tribunal never used the words rehearing but pre-hearing. That the two are not the same and it means Appellants are manipulating the decision of the Court, citingUSMAN & ANOR V FRN (2018) LPELR-45629 (CA) to condemn it. The 2nd Respondent submitted that if the Appellants wanted to quote from the ruling it must quoted correctly.

The 2nd Respondent submitted that when the Court strikes out grounds 3 and 4 of the Notice of Appeal, grounds 1 and 2 will become incompetent for consideration because issue one is distilled from grounds 1, 2 and 3 of the Notice of Appeal and it cannot be severed. He referred toANYANWU V PDP (2020) 3 NWLR (Pt. 1710) 134 at 160. Furthermore, counsel argued that issue 2 is distilled from ground 4 of the incompetent Notice of Appeal and therefore incompetent too, he urged the Court to resolve the

preliminary Objection in favour of the 2nd Respondent.

The Appellants responded to the Preliminary Objection in their Appellants’ Reply Brief to the 2nd Respondent’s Brief filed on the 20/3/2020 particularly at pages 2-5 of the Reply Brief. Appellants submitted that the objection is misconceived and it showed lack of understanding of the Ruling appealed against by the 2nd Respondent’s Counsel. They contended that the Tribunal held that pleadings closed on 6/2/2020 when other Respondents were yet to file their Replies to the Petition. That a critical examination of the grounds of appeal reveals that they are predicated upon specific findings of the lower Tribunal and nothing stops the Court from reframing issues bearing in mind the grounds of Appeal, citing AGBAKOBA V INEC (2008) 18 NWLR (Pt. 1119) 489 in support.

On the 2nd Respondent’s contention that the grounds do not arise from the ruling of the Tribunal, Appellants argued that grounds of appeal are like pleadings meant to settle the issues to be tried. Relied on GEORGE V DOMINION FLOUR MILLS LTD (1963) 1 SCNLR 117 and AGINA V AGINA (1991) 4 NWLR (Pt. 185) 358. They

submitted that the Respondents were not misled by the grounds of appeal and the objective is to hear both sides. They quoted the definition of ratio decidendi given in the case of ONIWARA B. IBRAHIM V ISHOLA BALOGUN FULANI (2010) 17 NWLR (Pt. 1222) 24 (CA) and submitted that the objection is misconceived and out of palace, relying on MUSE V E.F.C.C (2015) NWLR (Pt. 1443) 237 and JACK V UNIMAKURDI (2004) 5 NWLR (Pt. 865) 208. Appellants submitted that the grounds are valid grounds of appeal and the preliminary objection should be discountenanced.

RESOLUTION OF THE PRELIMINARY OBJECTION:
It is now settled by a plethora of authorities that a preliminary objection has one basic objective, to terminate the appeal in limine and without a hearing. So, when it is issued by a respondent, the Court is duty-bound to hear and determine same before hearing the appeal. This is so because the Court would have saved the energy it would have dissipated over the hearing of an incompetent appeal, if the appeal is indeed incompetent. See YARO V AREWA CONSTRUCTION LTD (2007) 17 NWLR (PT. 1063) 333; AGBAREH V MIMRAH (2008) 2 NWLR (PT. 1071) 378; ONYEMEH V EGBUCHULAM (1996) 5

NWLR (PT.448) 255; EFET V INEC (2011) 7 NWLR (PT. 1247) 423 at 438.
Elucidating further, my Lord KEKERE-EKUN, JSC in KLM ROYAL DUTCH AIRLINES V ALOMA (2017) LPLER-42588(SC) held thus:
“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See ODUNUKWE VS OFOMATA (2010) 18 NWLR (PT.1225) 404 @ 423 C – F; NDIGWE VS NWUDE (1999) 11 NWLR (PT. 626) 314: N.E.P.A. VS ANGO (2001) 15 NWLR (PT. 734) 627; MUHAMMED V. MILITARY ADMINISTRATOR PLATEAU STATE (2001) 18 NWLR (PT.744) 183.”
The effect of a Preliminary objection which succeeds makes it a must to consider it before taking any step in this appeal. I shall now

consider the Preliminary Objection on its merit.

The objection of the 2nd Respondent seeks to strike out the grounds of appeal on certain grounds; the first is that grounds 1 and 2 do not arise from the ruling appealed against. A ground of appeal was defined in the case of FASUYI & ORS V PDP & ORS (2017) LPLER- 43462(SC) as follows:
“Firstly, it is settled that Ground(s) of Appeal is the totality of reasons why the decision complained against is considered wrong by the Appellant – see Ehinlanwo V. Oke (2008) 6 -7 S.C. (Pt. 11) 123. See also FMBN V. NDIC (1999) 2 NWLR (Pt. 591) 333 and Metal Construction (W.A.) Ltd. D. A. Migliore & Ors (1990) 1 NWLR (Pt. 126) 299 at 311, where Karibi-Whyte, JSC, stated as follows – What then is a ground of Appeal, I consider it presumptuous, but will still venture to define a Ground of appeal as consisting of error of law or fact alleged by an Appellant as the defect in the Judgment appealed against and relied upon to set it aside. Thus, a ground of appeal consists of error of law or fact alleged by the Appellant as the defect in the Judgment he is appealing against.” Per AUGIE, J.S.C.

I shall reproduce the 4 grounds of appeal shorn their particulars for a better understanding of the preliminary objection. They state thus:
GROUND ONE:
The lower Tribunal erred in law and reached a wrong conclusion, which occasioned miscarriage of justice when it held thus:
“From the record of this Hon. Tribunal, the third Respondent filed and served his reply to the petition on the Petitioner on the 6/01/2020 while the Petitioner who should have used 5 days to file and serve his reply to the 3rd Respondent’s reply and within 7 days thereafter file his application for pre hearing session failed or neglected to do so until the 26/01/2020. This is clearly out of time by about 8 days.”
GROUND TWO:
The learned trial Justices of the Tribunal erred in law when they dismissed the Appellants/Petitioners’ Petition on the ground that the Petition was abandoned for failure to apply for Pre-hearing Notice within the time allowed by Paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 as Amended.
GROUND THREE:
The learned Justices of the Trial Tribunal erred in law when they relied on

Paragraph 49 of the 1st Schedule to the Electoral Act, 2010 (as Amended 2015) in holding that the Petitioners ought to have filed separate applications for each of the Respondent on the grounds that the Petition is deemed to be separate Petition against each of the Respondents.
GROUND FOUR:
The lower Tribunal erred in law and thereby arrived at a wrong conclusion, which occasioned miscarriage of justice when it held that:
“Therefore it is our candid reasoning that the last valid pleading before this Tribunal in that file and served by the 3rd Respondent on the 6/01/2020 and we equally hold the view that the petitioners having failed to comply with the provision of Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as Amended) timeously has robbed this Tribunal the requisite jurisdiction to proceed with the re – hearing session in accordance with paragraph 18 (2, 6, 7, 8 and 9) of the 1st Schedule to the Electoral Act 2010 (as amended) and therefore make it liable to be dismissed. Consequently, Petition No. EPT/KG/GOV/01/2019 shall be and is hereby dismissed. We so hold. We make no order as to cost.”
Looking at grounds 3 and 4 against

the backdrop of the definition of a ground of appeal and the objection of the 2nd Respondent, it is obvious the 2nd Respondent’s contention that it does not arise from the ruling appealed against found at pages 355 – 358 of the Record of Appeal is valid. I have gone through the said Ruling of the trial Tribunal and there is nowhere in the said Ruling where Paragraph 49 of the 1st Schedule to the Electoral Act, 2010 (as Amended) was mentioned. The Appellants’ learned counsel did not respond to the objection on this point. The said ground 3 is not borne out of the record of appeal and the position is settled and restated in MERCANTILE BANK OF NIG PLC & ANOR V NWOBODO (2005) LPELR-1860 (SC) thus:
“It is always an elementary law that grounds of appeal must of necessity arise from the judgment, ruling or decision or any pronouncement of the Court below. When a ground has not the remotest connection with what the Court below decided and which agitated the mind of the appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confused himself by setting up a case not in existence, the

Appellate Court would naturally throw away the incompetent appeal. In the event that there is only one such ground, then of course, there would simply be no appeal as what is set down as a ground of appeal is non-existent being no more than a figment of imagination of the appellant.”
However meritorious a ground of appeal may be, it must be connected with the controversy between the parties, so also is the issue arising from the ground. This is indeed a pre-condition for the vesting of judicial powers under the Constitution in the Court. See Adesanya v. President of Nigeria (1981) 2 NCLR 358. In other words, like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds or raise issues not related to the judgment appealed against. See SARAKI V. KOTOYE (1992) 9 NWLR (PT. 264) 156 AT 184; BAKULE V. TANEREWA (NIG.) LTD. (1995) 2 NWLR (PT. 308) 724 AT 739-740 and in ILOABACHIE V. ILOABACHIE (2000) 5 NWLR (PT. 656) 194, the Court of Appeal held thus:
“A ground of appeal which purports to raise and attack an issue not decided by the judgment is incompetent. Thus, where the factual basis for attacking a judgment is

false or non-existent, the ground of appeal based on the fictitious or misleading premise is incompetent. It constitutes a clear misrepresentation of the decision of the trial Court which vitiates the basis of the complaint on appeal.”
Having found that the essence of ground 3 is not from the ruling, it cannot stand, it is incompetent and must be struck out. A party is not allowed to introduce into the ruling what the Tribunal did not say, that is obviously wrong and condemnable. Ground 3 is hereby struck out.

On Ground 4, the 2nd Respondent alleged that it is purported to be an excerpt from the Ruling appealed against but in reality, it is a distortion with new words introduced into the quotation as substitute of the word used by the Tribunal. The Appellants used the word re-hearing instead of pre-hearing. The 2nd Respondent submitted that using re-hearing has taken the ground outside the ruling appealed against. The two words, rehearing and pre-hearing are not the same and do not mean the same thing. Again, I have gone through the Ruling and the Tribunal did not use the word re-hearing but pre-hearing and observed the removal of the word

‘is’. That is the only distortion in the ground of appeal which does not correspond with the Ruling. I am of the candid view that the one word misrepresented and omitted would not change the essence of the complaint represented by the ground of appeal. It only calls for more caution in reproducing a portion of a judgment or Ruling by counsel. I sustain ground 4 of the Notice of Appeal.

Arguing further, the 2nd Respondent submitted that issues 1 and 2 distilled from the incompetent grounds are consequently incompetent. Issue one was distilled from grounds 1, 2, and 3, I just struck out ground three and sustained Ground 4. The said Ground 4 alone can sustain issue two and consequently, the appeal. It trite that when an issue is formulated from a combination of competent and incompetent grounds of appeal, the Court cannot do a surgical operation to separate competent grounds from incompetent grounds in order to sustain the issue, so such an issue is also declared incompetent and must be struck out and is hereby struck out. However, issue 2 distilled from Ground 4 survives and the appeal is competent on that sole ground and issue. Flowing from

above, the preliminary objection is sustained in part. Grounds 1, 2 and 3 and issue one are hereby struck out. I shall now proceed to the main appeal.

MAIN APPEAL
Upon a careful review of the Notice of Appeal, the Record of Appeal and respective Briefs of the parties, the issues donated all cover the same field with one basic issue in contention. The issue formulated by the 3rd Respondent is direct and shall cover all areas of complaint; it shall be adopted for determination in this appeal. It states thus:
Whether the Lower Court could be faulted in the way and manner it dismissed the Petition as being abandoned by the Petitioners?

APPELLANTS SUBMISSIONS:
The Appellants submits that as a petitioner in an election petition proceedings, they are mandatorily enjoined to apply for the issuance of prehearing notice as in FORM TF 007 upon the close of pleadings as regulated by paragraph 10, 11(1), 16(1) and 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended 2015). Paragraph 18(1) provides the clue by giving two options. The first situation is that the petitioner must apply for the issuance of prehearing notice 7 days after

filing and service of reply on respondent who has filed reply to the petition where the petitioner in accordance with the dictates of paragraph 16(1) finds it necessary to file a reply. The Petitioners are required to issue only one application for prehearing session in respect of petition after all the Respondents have duly filed their replies.

The Appellants’ submitted that their application for prehearing session filed before the Lower Tribunal was in respect of the 1st, 2nd and 3rd Respondents reply while pleadings were yet to close for the rest of the Respondents in respect of Appellants’ petition at the Lower Tribunal. That without other Respondents who were duly served with the petition but yet to reply, the pleadings were therefore not closed. It is the Appellants’ submission that where there is more than one Respondent to a petition as in this case, the reply talked about in paragraph 16(1) must be filed in respect of each and every one of the Respondents depending on which of the Respondents was last served with the petition and within the time frame provided. They relied on

HON. BARRISTER HARRISON NWADIKE & ANOR V. HON. JONES ONYERERI & ORS. CA/OW/EPT/1/2015 and CALLISTUS UDOCHUKWU AZUDIBIA V. INEC & ORS (2010) ALL FWLR (PART 505) 1684.

The Appellants further submitted that contrary to the holding of the Tribunal, pleadings cannot be closed where there are pending interlocutory motions pending before the Tribunal. The Tribunal was under obligation to rule on the pending applications before the dismissal of the Petitioners petition. They submitted that the dismissal of the Appellants petition was in contravention of their constitutionally protected rights pursuant to Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The Appellants argued that the purpose of an application for pre-hearing session is to signal close of pleadings and cause the Tribunal registry to issue the parties an invitation to come for pre-hearing session for the purpose of disposing off all interlocutory matters. The Appellants cannot understand why having applied within time, and more so with various applications at interlocutory stage filed by a Respondent seeking to file its reply and the petitioners seeking to amend their petition pending the

Tribunal, surprisingly, proceeded to dismiss the petition without making any pronouncements or allowing the parties to argue the pending applications before the Tribunal.

The Appellant argued that the purpose of pre-hearing notice is to inform the parties of the impending hearing and to ensure attendance at the hearing. If for any reason, this purpose is achieved without formal application before the Tribunal, a party cannot argue that the rule has not been complied with. SeeSA’EED & ANOR V. YAKOWA (2013) 7 NWLR (PART 1352) 124.

It is the Appellants’ submission that in the instant case, there is no miscarriage of justice because of the non-compliance with the rules or the 1st Schedule to the Electoral Act, 2010 (as amended). The appellant further argued that the current and prevailing principle in the administration of justice is that where in the beginning or in the course of the proceedings, a party commits an omission in the laid down practice or procedure, it can be regarded as an irregularity which the Court or Tribunal can rectify or even ignore as long as it is satisfied that the omission will not occasion a miscarriage of justice.

FIRST RESPONDENT’S SUBMISSIONS:
The 1st Respondent in response argued that the Tribunal was right when it dismissed the Appellants petition as abandoned based on the 3rd Respondent’s application dated and filed on the 28/1/2020 and pursuant to the 1st schedule to the Electoral Act 2010 (as amended). It contended that it is trite that the petition shall be dismissed by the Tribunal if the petitioner fails to comply with the provisions of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) mandating the Petitioner to apply for the issuance of pre-hearing notice within seven (7) days of close of pleadings. The 1st Respondent further argued that election matters are time bound and therefore complying with the provision of the law on time lines is mandatory. Referred to WAMBAI V. DONATUS & ORS (2014) LPELR 23303(SC) where the Court held that it is trite law that in election and election related matters time is of essence.

The Respondent argued that failure to apply for the issuance of pre-hearing notice makes it mandatory for the petition to be dismissed. The Respondent states that the Appellants did

not file their reply to the 3rd Respondents reply within time allowed and also did not apply for issuance of prehearing notice within 7 days. The Appellant waited until 27/1/2020 before applying for prehearing notice, which was 8 days after the prescribed period for them to do so.

The Respondent contended that the Appellants’ arguments on the 7th Respondent’s application for extension of time to file their reply to the petition meant that pleadings had not closed. The 1st Respondent’s reply to this is that a reply out of time with an accompanying application to regularize same is not the same as a reply filed within time in election matters.

The Respondent on BARR NWACHIKE & ANOR V. HON. ONYERERI & ORS (2010) CA/OW/EPT/1/2015 AND CHIEF OKEY IKORO V. IZUNASO & ORS (2010) ALL FWLR 1550 relied on by the Appellants to support their flawed assertion and contention that pleadings have not closed in this matter submitted that they are not applicable here. Learned counsel urged the Court to discountenance the Appellants contention and submission in their issue two that the pleadings cannot be closed because of the pendency of

an application filed by the 7th Respondent along its reply. It submitted that the Appellants argument herein completely veered off the issue under consideration herein and the reliance on the case of SA’EED & ANOR V. YAKOWA (2013) 7 NWLR (PART 1352) 124 AT 164-165 is misplaced. The authority cited is to the effect that a party who has taken part in the proceeding cannot complain of non-compliance with how the prehearing notice was applied. He argued that it is not the case here as the 3rd Respondent who filed the application for dismissal for non-compliance with paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 (as amended) has not taken any steps in the proceedings. Furthermore, that the Court in Sa’eed’s case held that a petition will be dismissed for failure to apply for prehearing notice.

2ND RESPONDENT’S SUBMISSIONS:
The 2nd Respondent presented a summary of steps taken and the time lines within which they were taken. It clearly identified the dates relevant, the election held on 16/11/2019 while the petition was filed on 29/11/2019. There were 24 Respondents listed and only 1st, 2nd and 3rd Respondents

filed their Replies. However, the Appellants did not file any reply to the replies within time. An order for substituted service on the 4th, 5th, 9th, 12th 13th, 15th, 18th, 22nd and 23rd Respondents was made by the Tribunal on 17/12/2019. Except the 3rd Respondent, all the others did not file a Reply within time allowed and the 3rd Respondent’s Reply was filed on the 6/1/2020. He submitted that the Appellants did not apply for prehearing Notice within 7 days and only did so on 27/1/2020, 21 days after close of pleadings and the 3rd Respondent filed his application to dismiss the petition on the 28/1/2020. This was 42 days after the order for substituted service. The motion was contested and ruling delivered with petition dismissed.

Reviewing the submission of the Appellants, the 2nd Respondent submitted that the Appellants failure to apply for prehearing Notice 7 days after pleadings had closed by effluxion of time defeated the petition and this appeal is empty because the purported 7th Respondent’s reply filed out of time is incompetent, referred to RUFAI-ADEYEMI & ANOR V AKANDE & ANOR (2016) ALL FWLR (Pt. 858) 652 to submit that

being a jurisdiction issue, non-compliance will automatically divest the Tribunal of jurisdiction. The 2nd Respondent further argued that the Appellants did not file a reply to the last valid reply from the 3rd Respondent, consequently the petition was abandoned, relied on NWANKWO & ORS V YAR’ADUA & ORS (2010) 12 NWLR (Pt. 1209) 518. He submitted that pendency of interlocutory applications cannot stop the Tribunal from dismissing the petition for failure to apply for prehearing notice and paragraph 53(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) cannot override Paragraph 18(4) to the 1st Schedule to the Electoral Act, 2010 (as amended) and as decided in OMISORE V AREGBESOLA (2015) 15 NWLR (Pt. 1485) 205.

On denial of fair hearing, the 2nd Respondent submitted that it does not arise in this appeal, not for the appellants or the 7th Respondent who neglected to appear in Court even after he was served. Learned Counsel submitted that fair hearing is not a magic wand used to obstruct justice because having given the appellants and 7th Respondent an opportunity, they cannot complain, citing DARMA V ECO BANK (2017) 9 NWLR (Pt. 1571) 481.

Still on pending applications and the Appellants complaint, the 2nd Respondent submitted that when the matter of jurisdiction is raised, interlocutory applications do not have to be considered particularly when the Court has no jurisdiction. On when the Appellants applied for pre-hearing, the 2nd Respondent submitted that it was made out of time and nothing can save it, relied on ALI & ANOR V OSAKWE & ORS (2009) 14 NWLR (Pt. 1160) 75 to say that Appellants did not file the application 7 days from day he received service of the 3rd Respondent’s reply and failed to file a reply to the 3rd Respondent’s reply. The 2nd Respondent submitted that the lifespan of the petition is dependent on appellants taking steps on the timings provided by the law. Furthermore, the Tribunal lacks the competence to over look non-compliance with a condition precedent to the hearing of the petition because it goes to the root of jurisdiction, relied on UBEH & ANOR V ETUK & ORS (2012) 15 NWLR (Pt. 1323) 387 to say the petition was abandoned and urged the Court to dismiss the appeal.

3RD RESPONDENT’S SUBMISSIONS:
The 3rd Respondent

submitted that the crux of the instant appeal is hinged on the determination of the time specified under Paragraph 18(1) & (4) of the First Schedule to the Electoral Act 2010 (as amended) for the Appellants to apply for the issuance of prehearing form TF007. He submits that the provision is not in doubt that the Petitioner(s) is expected to apply for prehearing session within 7days of the close of pleadings. The pleadings are deemed closed when the statutorily prescribed time for filling the pleadings by any party who intends to do the same lapses. The prescribed time is provided in Paragraph 10(2), 12(1), 16(1) of the 1st Schedule to the Electoral Act 2010 (as amended).

The 3rd Respondent argued that the above provision admits of only two scenarios where pleadings may close or be deemed by operation of law to have closed, particularly, upon the filing of Respondents Reply to the petition filed within 14-21 days as the case maybe or upon filing of Petitioners’ reply to the Respondents Reply within 5 days of receipt of the Respondents reply. The 3rd Respondent agreed with the Tribunal that pleadings had closed when it held that from the records of

this Hon. Tribunal, the Appellants were out of time by 8 days and the case of NWADIKE & ANOR V. ONYERERI & ORS CA/OW/EPT/1/2015 relied on by the Appellants clearly supports the 3rd Respondents position as the Court appreciated the key point being that the Petitioner was only constrained to “wait for the time frame or period of time allocated to the parties to file replies before the Petitioner can take out form TF 007 within 7 days of the service of the Respondents reply, filed within time..”

The 3rd Respondent contends that the Appellants have not canvassed any cogent reason in their brief why this finding as to when pleading had closed was indeed preserved. He therefore agreed that the Tribunal rightly considered the totality of the Appellants’ case. Furthermore, he argued that where the Rules of Court makes a mandatory provision, it is expected of a litigant to ensure that provision is complied with. It cannot be brushed aside even if advertently. On whether a trial or proceeding of a Tribunal or Court had been fair or not, 3rd Respondent submitted that it depends on the fact and circumstances of each case.

It was further

submitted that an objection to the competence of a petition must be raised as soon as the defect is discovered. The 3rd Respondent raised the objection before the Tribunal timeously and the issue of the failure to apply for issuance of prehearing notice as in Form TF 007 borders on jurisdiction which can be raised at any stage of the proceedings and once raised, it must be determined. He therefore urged the Court to discountenance the arguments of the appellant on the nature and purpose of prehearing notice because it is misconceived, he placed reliance on the decision of the Supreme Court in OKEREKE V. YAR’ADUA (2008) 12 NWLR(Pt. 1100) 95.

The 3rd Respondent further argued that a valid application for prehearing session in line with Paragraph 18 (1) of the 1st Schedule to the Electoral Act is a condition precedent to the Tribunal’s jurisdiction to entertain such a petition. The failure of the Petitioners to make such application for commencement of prehearing session renders that petition as abandoned and liable to be dismissed.

The 3rd Respondent submitted that the Court is indeed bound by the recent Supreme Court’s decision in

WIKE V FESTUS & 3 ORS (incomplete citation) which clearly supports the decision taken by the Tribunal to dismiss the Appellants petition as being abandoned. He urged the Court to dismiss the appeal.

The replies to the 2nd and 3rd Respondents’ briefs have the same content and a rehash of arguments in the Appellants Brief. Appellant also introduced new issues for which no opportunity was given to the Respondents to react to. That of course is a clear breach of the right to fair hearing and an ambush which the Court will not tolerate nor partake in. It will not serve any useful purpose to recast the same arguments taken in the Appellants’ brief. I will only highlight where the Appellants responded to issues in the Respondents briefs.

The Appellants Replies to the 2nd and 3rd Respondent’s Brief submitted that the contention that their petition was abandoned is misconceived. They further submitted that cases cited by the 3rd Respondent were totally misconceived in the circumstances of the Appellants Appeal. They further argued that at the time the petition was deemed abandoned, the other Respondents apart from the 1st, 2nd and 3rd

Respondents were yet to be duly served with the Appellants petition and the ones that were served were still within time to reply, which is within the meaning and intendment of paragraph 10(2), 12(1), 16(1) & 49 of the 1st Schedule to the Electoral Act, 2010 (as amended). The Appellants states that there was no proper service of the petition on all the Respondents. See ONYERERI V NWADIKE & ORS (2015) 8 CAR 117.

They contended that they had applied for pre-hearing session at the close of pleadings in this case, but the 1st, 2nd and 3rd Respondents felt they should have also applied for the pre-hearing Notice when they filed their replies. Appellants submitted that an election petition, being sui genesis, is where the Respondents usually delight in laying ambushes and employing of dilatory games against the Appellants. The Appellants submitted that it would be dangerous for them to wait until the last Respondent files a reply before applying for issuance of pre-hearing process. They cited the case of IKECHI PATRICK ANYA & ANOR V EGWORONU O. EGWORONU & ORS C/A/OW/EPT/HA/13/2015.

They finally urged the Court to find that their petition

was not abandoned and allow the appeal.

RESOLUTION OF THE APPEAL
The trial Tribunal dismissed the petition brought by the Appellants for failure to apply for pre-hearing notice within time stipulated by Paragraph 18(1) and (4) of the 1st Schedule to the Electoral Act, 2010 (as Amended) which provides 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, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in From TF 007.
(4) Where the Petitioner and the Respondent fail to bring an application under this paragraph, the Tribunal or the Court shall dismiss the petition as abandoned petition and no application for extension of time to take step shall be filed or entertained.”
The motion upon which the ruling was predicated upon contended that the Appellants failed to apply for the issuance of pre-hearing Notice as required by the paragraph quoted above and therefore the petition was abandoned. The Appellants were expected to make the application at the close of

pleadings for the issuance of prehearing Notice. The Appellants argued that pleadings had not close and therefore they were not out of time to apply for the pre-hearing Notice which they subsequently applied for on 26/1/2020. The question to ask is whether pleadings closed or were deemed closed in the election petition. It is trite that election petitions are sui generis, see OKE V MIMIKO (2013) LPELR-20645(SC) which held that:
“that in election matters time is of essence, this is because election matters are sui generis. They are unlike ordinary civil proceedings without a time bar.”
Therefore, election matters are considered within their peculiar circumstances and laws guiding them, see OKECHUKWU V INEC (2014) 17 NWLR (Pt. 1436) 255 in which the Apex Court held as follows:
“It is beyond argument now that every step in an election related matter is time bound and not left open ended or give room for applications for extension of time within which to take a step.” See also WAMBAI V DONATUS & ORS (2014) LPLER-23303(SC).
One of such timed steps is for a Petitioner to apply for pre- hearing Notice as stipulated in

paragraph 18(1) of the 1st Schedule to the Electoral Act (as amended) even though that is dependent on when the pleadings closed, the times to deem the pleadings as closed were also stated therein, I shall reproduce it for emphasis, it says:
“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, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in From TF 007.”
Time is limited for the Petitioner to file his petition and time is also limited for the Respondents to file their Replies from the date they were served. All the Respondents were served with the petition by the 17/12/2019, some by substituted means. Of those served by substituted means, only the 3rd Respondent filed a reply within time allowed. The 7th Respondent filed his reply out of time on the 14/1/2020 with a motion for extension of time to regularize the said Reply. For all intent and purposes, the 7th Respondent had no Reply before the Court. Therefore, the last competent Respondent’s Reply served on the Appellants

was the 3rd Respondent’s Reply served on the 6/1/2020 (3rd Respondent’s reply). The Appellant did not file a Reply to the 3rd Respondent’s reply within time allowed, in fact, did not file a reply to the 1st and 2nd Respondents Replies within time. Appellants did not apply for Pre-hearing Notice within 7 days as required. The Petitioners are also restricted to a time when they can respond to the replies filed by the Respondents. Failure to act within the time prescribed forecloses any step from such a defaulting party, see Paragraphs 10(2), 12(1), 16(1) of the 1st Schedule to the Electoral Act, 2010 (as amended). Consequently, pleadings can close under two scenarios as highlighted by the 3rd Respondent and these are:
i. By operation of law, after the expiration of time allowed by law.
ii. By the filing of pleadings within the time stipulated.
The Petitioner is required to file the application within 7 days of serving their reply to the Respondents Replies within time. The Appellants here contend that pleadings did not close by 26/1/2020. It is clear from record that the by the said 26/1/2020 all the Respondents were served and the

time allowed for them to have filed their memorandum of appearance and replies had expired. All other Respondents (3rd – 24th Respondents) were served on 17/12/2019 by substituted means. It was Appellants application that sought for substituted service which was effected. The Appellants in their reply raised a fresh issue, wherein they alleged that the petition was not served on other respondents, however having withdrawn the appeal against those parties, the appellant cannot proffer arguments that touch on them behind their backs, in any case, should that argument come from the Appellants? It is therefore not only unfortunate but sad that the Appellants would raked up the issue of Respondents not properly served in their Reply brief. If by 26/1/2020 a petition filed 29/11/2019 was still not served then something is obviously wrong with the Appellants. Anyway, the Appellant is just trying to misrepresent facts, this is unfortunate.
Probably, the contention that the petition not properly served was based on the proposed Amended Petition filed by the Appellants along an application which was not taken. I ask again, whether the Appellants can amend their

petition by 26/1/2020? The application was filed on the 11/12/2019 when the election held on the 17/11/2019 and they had 21days to file the petition. I find that the petition filed on the 29/11/2019 was duly served on all the Respondents by the 17/12/2019. Therefore by 26/1/2020 the filing of replies had expired for all the Respondents. If there were no replies filed, there was nothing for the Appellants to respond to. The Appellants cannot be expecting any competent Respondents’ reply. Therefore when the Appellants submitted that they are within time, the question is within time to take which particular step? The Appellants also argued that there was a pending application from one of the Respondents (7th Respondent) to file its Reply out of time. The motion was filed on 14th January, 2020 when the party was served on 17/12/2019. The motion was therefore filed outside the time allowed for the 7th Respondent to file a reply. It is settled that such an application is not competent and cannot be allowed in election matter, particularly coming long after the time limited to reply, see the case of OMISORE V AREGBESOLA (2015) LPELR-24803(SC) where NWEZE, JSC

on the vexed issue of time lines said:
“…as his reply was not filed in strict fidelity to the time protocol ordained in paragraph 16 (supra), the Lower Court, rightly struck it out. This must be so because the timelines therein are sacrosanct due to the peculiar nature of election matters which are time-bound, Buhari v. INEC and Ors (2008) 19 NWLR (Pt. 1120) 246. Strictly, speaking, this sort of invidious provision should not feature in a user-friendly judicial process. However, in the peculiar circumstance of the urgency involved in the determination of such electoral disputes, the much this Court can do is to wink at the tyranny of deadlines entrenched therein. In effect, any process filed out of time is incompetent and is liable to be struck out. See OKECHUKWU V. INEC AND ORS (SUPRA) 79.”
The Appellants submission that they still had time because there was a pending application by a party who obviously was out of time is pedestrian and misconceived, this being an election matter. It is absurd coming from the Appellants who should have stoutly fought that the reply was out of time and because no extension of time is allowed in election related

matters, it should be struck out, see OKUNOLA V FALEKE (2015) LPELR-26030(CA) where I emphasized on the sacrosanct nature of time lines in election matters with the following words:
“The filing of a Respondent’s reply is guided by Paragraph 12 (1) of the First Schedule to the Electoral Act, 2010 (as amended). It states thus: “The Respondent shall, within 14 days of service of the petition on him file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies in opposition to the election petition.” The said provision has received judicial interpretation by the Apex Court which dealt with similar issues of late filing of Respondent’s processes in the cases of PDP v INEC(2015) 1 NWLR (Pt. 1440) 281 and NGIGE V INEC (2015) 1 NWLR (pt. 1440) 281. Election petitions are indeed peculiar and enjoy a special status thus the tag sui generis. Time generally is of essence in the determination of election petitions and therefore timelines have been set to ensure that election petitions are determined expeditiously.

Paragraph 12 (1) of the First Schedule to the Electoral Act, 2010 (as amended) provides thus: “The Respondent shall, within 14 days of service of the petition on him file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies in opposition to the election petition.” It is settled that failure to abide by timelines set in the rules and practice directions for the determination of election petitions is fatal to the party required to have taken such a step, see MRS OLABISI AYODELE SALIS & ANOR v BAREEHU OLUGBENGA ASHAFA & ORS (2015) LPELR 25670 (CA). I agree with the Appellants that the default goes to the root of the Tribunal’s jurisdiction and is fundamental. Jurisdictional issues can be raised at any time so Paragraph 53(2) of the 1st Schedule to the Electoral Act as amended cannot affect issues of jurisdiction which can be raised for the first time on appeal and even orally, see the case of GALADIMA v. TAMBAI (2000) 11 NWLR (PT. 677) 1 where the Court held as follows: “It is trite law that the issue of jurisdiction can be taken up in the Supreme Court, or before the Court of

Appeal or the High Court at any stage of the proceedings, even for the first time on appeal… An attack or question as to jurisdiction cannot be properly glossed over by any Court once it is raised by the defendant or the Respondent. The procedure by which such a fundamental issue is raised may not be in consonance with the stipulated rules of Court for questioning a decision of the Court, nevertheless, that will never be allowed to defeat the right to question the jurisdictional defect. To do so is unwittingly to postpone the doom’s-day.” The fact of a party taking a step cannot erode a fundamental vice, in fact, no application to file a process out of time can be allowed once the time has expired as held by the Supreme Court, see NGIGE V INEC (2015) 1 NWLR (Pt. 1440) 281. Furthermore, the Supreme Court in the case of PDP V INEC (2014) LPELR – 23808 (SC) had this to say on failure of the respondent to file brief within the time stipulated. It said thus: “It has been stated in quite a number of decisions in this Court that election petitions are sui generis as such must be conducted strictly in compliance with the rules guiding them… On the whole, I hold

that the brief of the 26th Respondent filed on the 27th August, 2014 having been filed in flagrant disobedience to the paragraph 6 of the Practice Directions is incompetent and is hereby struck out.” Also, in the case of A.C.N v NOMIYE (2012) 7 NWLR (PT 1300) 568 at 588-589, the Court on the issue of failure to take a step within time allowed held that once time has lapsed, the Court will lack jurisdiction to consider any process from the defaulting party. The application of the 1st and 2nd Respondents that Paragraph 53(2) of the 1st Schedule to the Electoral Act be invoked is flawed. The times stipulated in the Electoral Act and practice directions are sacrosanct and must be strictly obeyed as failure to comply will render such process filed out of time incompetent and liable to be struck out. The 1st and 2nd Respondent filed their reply out of time. Having exceeded the time allowed, the 1st and 2nd Respondents’ reply is incompetent and is hereby struck out.”
The Appellants were expected to file one application for pre-hearing Notice but that is against the backdrop of time lines having been set by law for the taking of a step. When the time for

reply will lapse is guided by Paragraph 10(2) and 12(1), these provisions were further highlighted in the case of RUFAI- ADEYEMI & ANOR V AKANDE & ANOR (2016) ALL FWLR (Pt. 858) 652 which held thus:
“Paragraph 12(1) of the First Schedule of the Electoral Act, 2010 (as amended) with respect to filing of Reply by a Respondent to a Petition states: (1) The respondent shall, within fourteen days of service of the petition on him, file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies on in opposition to the election.” On the other hand, Paragraph 10(2) in relation to the non-filing of memorandum of appearance provides that: (2) The non-filing of a memorandum of appearance shall not bar the respondent from defending the election petition if the respondent files his reply to the election petition in the Registry within a reasonable time, but, in any case, not later than twenty-one (21) days from the receipt of the election petition.” It is apparent from the cumulative reading of the above provision of the Act that a Respondent to an

election petition has 21 days to file its reply to petition that was served on him. The provisions are mandatory and leave no room for the exercise of any discretion. This is in view of the fact that election related matter are sui generis wherein time is of the essence so that any provision under the Act requiring that something must be done within a particular time, such thing must be done, non-compliance may be fatal to the party defaulting. In OKE v MIMIKO (2013) LPELR – 20645 (SC), the Apex Court, Per MUHAMAD, JSC echoed: “The general principle of the law is that election matters are SUI GENERIS.”
Reiterating the sui generis nature of election related matters, OGUNBIYI, JSC, while adopting the view expressed by the Court inKALU v UZOR (2004) 12 NWLR (PT. 886) 1 at 20, held:
“Electoral Act contains mandatory provisions … thus, Election Petitions have certain peculiar features which make them sui generis. They stand on their own and bound by their rules under the law… Defects or irregularities which in the other proceedings are not sufficient to affect the validity of the claim are not so in an election petition … A slight default in

compliance with a procedural step could result in fatal consequence for the petition.” See also HASSAN v ALIYU (2010) 17 NWLR (PT. 1223) 547 at 599.
The Act prescribes that a Respondent’s reply shall be filed within 21 days, this must be complied with, as non-compliance will strip the Court of jurisdiction to consider such a process from the defaulting party. See ACN v NOMIYE (2012) 7 NWLR (PT 1300) 568 at 588 – 589; OKUNOLA & ANOR v FALEKE & ORS (2015) LPELR-26030 (supra)
My learned brother OSEJI, JCA also in the case of APGA & ANOR V OHAZULIUKE & ORS (2011) LPLER-9175(CA) reiterated the same position on when a Respondent’s reply must be filed failing which the Court will lack the competence to consider it. The alleged 7th Respondent’s reply coming after 21 days cannot be the window for the Appellants to assume pleadings were not closed. In this case pleadings closed by effluxion of time and if Appellants arguments are to be accepted, why then did the Appellants file an application for pre-hearing after 8 days of the close of pleadings because the replies were still outstanding and yet to be filed. This is because

the same worthless process they are hanging on was still pending and not granted. The trial Tribunal took all that into account when it said “last valid pleadings” was filed on the 6/1/2020. I agree with the Tribunal.
The effect of failure to file an application for the issuance of a prehearing notice is now settled like the rock of Gibraltar, firm and unmovable by any Court. Paragraph 18(4) of the First Schedule to the Electoral Act states:
“Where the petitioner and the Respondent fail to bring an application under this paragraph, the Tribunal or the Court shall dismiss the petition as abandoned petition and no application for extension of time to take that next step shall be filed or entertained.”
The use of the word shall make it mandatory. The same provision has received judicial interpretation in the case of OMISORE V AREGBESOLA (supra) which held:
“I find sufficient merit in the contention of the respondents here. I endorse the unanswerable submission that the Tribunal, having found that the said pre-hearing notice application was not filed within the time stipulated after close of pleadings pursuant to

paragraph 18(1) (supra), ought to have dismissed the petition under paragraph 18(4) (supra) as being abandoned, Enwezor v. INEC (2009) 8 NWLR (Pt. 1143) 223, 237; Okereke v. Yar’Adua [2008] 12 NWLR (Pt. 1100) 95; Dada v. Dosunmu [2006] 18 NWLR (Pt. 1010) 134, 166; Mohammed v. Martins Electronics (2009) LPELR-3708. It is not in doubt that the draftsperson of the said Act, aware of the obvious time constraints on the Tribunals dealing with election matters in complying with the timeframes therein, deliberately, wove some new case management techniques into the Act with a view to empowering them (trial Tribunals) to control and manage the proceedings expeditiously. Paragraph 18(1) is one of such mechanisms. It is, thus, a deliberate device which erected time frames by calendaring the permissible periods for consummating or accomplishing certain steps within the time management regime created in the Act itself, Okechukwu v. INEC (supra). The consequence is that if a petitioner fails to consummate the issuance of pre-hearing notice [From TF007] within seven days, he cannot fall back on paragraph 53(1), a provision which because Paragraph 18(4) (supra) prohibits the

extension of time, is inapplicable and so does not avail such a tardy petitioner.” Per NWEZE, J.S.C.
The consequence is that if a petitioner fails to consummate the issuance of pre-hearing notice [From TF007] within seven days, he cannot fall back on Paragraph 53(1), because Paragraph 18(4) (supra) prohibits the extension of time, and is therefore inapplicable and so not available such a tardy petitioner.
The Appellants also contended that the Tribunal breached their right to hearing by dismissing the petition, that line of argument is preposterous. When the law and rules of procedure set times within to do an act and a party fails to so act, it cannot complain of breach fair hearing. See AYOADE V STATE (2020) LPELR- 41379(SC) where the Court held:
“The law is quite settled that a complaint of lack of fair hearing will only avail a party where he is able to show that he was denied the opportunity of presenting his case. Whether or not he was denied fair hearing depends on the facts and circumstances of the case. It has been held in several decisions of this Court that the crucial determinant of whether or not a party has been denied fair

hearing is whether the parties were afforded an equal opportunity to present their case before judgment is delivered. The Court will take an objective view of the entire proceedings. The true test of fair hearing is the impression of a reasonable man present at the trial and whether from his observation, justice has been done in the case. See: Mohammed Vs Kano Native Authority (1968) 1 ALL NLR 424; Akaninwo Vs Nsirim (2008) 1 SC (Pt. III) 151; Otapo Vs Sunmonu (1987) 2 NWLR (Pt. 58) 587 @ 605. The effect of a breach of the right to fair hearing is that the entire proceedings and any judgment or order made therein become a nullity. See: Audu Vs F.R.N (2013) LPELR – 19897 (SC) 13; Akinfe Vs The State (1988) 3 NWLR (Pt. 85) 729; Bamgboye Vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290. Conversely, it has been held severally, that where the Court creates an enabling environment for the parties to ventilate their grievances, either in the prosecution or defence of their case, the failure of a party to take advantage of such conducive environment cannot be the basis for a complaint of lack of fair hearing. See Mfa & Anor Vs. Inongha (2014) 1-2 SC (Pt. 1) 43;

Inakoju Vs. Adeleke (2007) LPELR – 1510 (SC). Per Kekere-Ekun, JSC.”
Furthermore, a pre-hearing Notice application within time is a precondition to the hearing of the Petition. Failure to apply for the issuance of a Pre-hearing Notice divest the jurisdiction of the Court because it is a precondition to the Tribunal assuming jurisdiction to determine the petition, see OKEREKE V YAR’ADUA (2008) 12 NWLR(Pt. 1100) 95 and DINGYADI V INEC (2011) LPELR-950(SC) where the Apex Court held thus:
“Abuse of legal process identified here is of jurisdictional importance as where a condition for initiating a legal process is laid down, any suit instituted in contravention of the precondition provision is incompetent and a Court of law lacks jurisdiction to entertain the same. UBA Plc v. Ekpo (2003) 12 NWLR (pt. 834) pg. 322.”
Jurisdiction is very important and has been said to be the life wire of every Court in adjudication, the Apex Court in APGA V ANYANWU (2014) LPELR-22182(SC) said:
“The law is by now well settled that jurisdiction is the lifeblood of any adjudication and where it is lacking it would render any proceedings, no matter how well

conducted, liable to be set aside for being a nullity. Jurisdiction is so fundamental that once the Court’s jurisdiction to hear a matter is challenged, it must be dealt with and resolved first before any other step in the proceedings. It is because it is so fundamental that it can be raised at any time, in any manner and at any stage of the proceedings. In Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675 this Court per Belgore, JSC (as he then was) held: “This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it the trial, on appeal to Court of Appeal or to this Court; a fortiori the Court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and cost and to avoid a trial in nullity.” Also in: Issac Obiuweubi V. Central Bank of Nigeria (CBN) (2011) 7 NWLR (Pt. 1247) 465 @ 494 D- F per Rhodes-Vivour, JSC: “It is thus

mandatory that Courts decide the issue of jurisdiction before proceeding to consider any other matter. See Bronik Motors Ltd.” Per KEKERE-EKUN, J.S.C.
The failure of the Appellants to apply within time stipulated for pre-hearing notice has divested the Court of jurisdiction and consequently, the decision of the trial Tribunal is justified. Pre-hearing session is very important to the determination of an election petition as held in the case of NNAMELE & ORS V NJOKU & ORS (2018) LPELR-43987(CA) thus:
“The essence of pre-trial is to identify and delineate the boundaries of issues to be tried, at the hearing of the Suit and how to approach the trial by the Court, and after agreeing on the issues to be tried and the direction of the trial, it appears improper, wrong and unfair, in my view, to abandon the hearing of the case of the Plaintiff (the aggrieved) and entertain a technical point, introduced amply by the defence, meant to truncate the hearing of the Plaintiff’s case, and to use it to determine the claim of the Plaintiff, without hearing him on his case! In the case of Adegbuyi Esq. & Anor Vs Mustapha & Ors (2010) LPELR –

3600 CA, the essence of frontloading and pre-hearing was stated – that: “It affords the parties an opportunity… to object to certain documents at the earliest opportunity, to allow certain documents and/or to concede certain facts or issues, where appropriate.” See also Onyedebelu Vs Nwaneri & Ors (2008) LPELR – 4793 (CA), where this Court per Saulawa JCA said (particularly in election petitions): “It may be reiterated that the essence of a pre-hearing session cannot be over emphasized. The process… enables both the Court and parties to scale down the areas of dispute by consenting on the important issues that require full investigation and trial. The process also allows for summary disposal of matters…” See also Ali Vs NDIC (2014) LPELR – 22422 (CA) and Ikeyi Vs Crown Realities Plc (2010) 6 NWLR (Pt.1189) 144, where it was held that the pre-hearing, where successful, “reduces drastically a judges docket, thereby hopefully ensuring speedy conclusion of contested cases.” Per MBABA, J.C.A
The petition itself has a time line within which it must be determined so an interlocutory application made by a party out of time cannot stop the Appellant from

kick starting the process when the time to file a reply has lapsed. In OSHIOMOLE V AIRHIAVBERE (2013) 7 NWLR (Pt.1353) 376 at 404 the need for parties to stick to time lines was emphasized in this manner:
“Parties are bound to strictly comply with the dictates of the enabling statutes in drafting their pleadings and presentation of the petition as inadvertence or omissions can be costly as same will not be tolerated in election proceedings. SEE: OBIH V. MBAKWE (1984) 1 SCNL 192; BUHARI V. INEC (2008) 4 NWLR (PT. 1078) 546.”
The Appellants in their reply raised a fresh issue, wherein they alleged that the petition was not served on other respondents, however having withdrawn the appeal against those parties, the appellant cannot proffer arguments that touch on them behind their backs, in any case, should that argument come from the Appellants? On Appellants lamentation that landmines are placed on the path of a petitioner, the Appellants cannot be heard to say that, you cannot start a war you are not ready to fight. Election matters are technical and time is fundamental to its determination for obvious reasons advanced by NWEZE, JSC in the case of

OMISORE V AREGBESOLA (supra).
Finally, on the authority of WIKE V. AWARA (Unreported) Judgment of the Apex Court in SC 1112/2019 delivered on 25/10/2019, this appeal must fail. The Apex Court per EJEMBI EKO, JSC held thus:
“The Tribunal Pursuant to Paragraph 18(4) of the first schedule to the Electoral Act is empowered to legitimately dismiss an abandoned petition without venturing to hear evidence on it.”
And that:
“The Tribunal was right when it dismissed the petition, at the time it did, when it became, obvious that no valid prehearing application had been filed and the petition, in law had been abandoned.”
I follow in finding that the Petition herein was abandoned by the failure of the Appellants to bring an application for prehearing within the time stipulated by Paragraph 18(1).

Flowing from above, the appeal lacks merit, the Ruling of the Tribunal delivered on the 1st February, 2020 is hereby affirmed. Cost of N100,000 to each of the Respondents.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Yargata Byenchit Nimpar, JCA.

I am in agreement with his reasoning and the conclusion both on the Preliminary Objection and the Main appeal.

The Main appeal was on the grouse of the appellant that her Petition was dismissed for failure to apply for a pre-hearing notice under paragraph 18(1) of the First Schedule to the Electoral Act, 2010, as amended. Paragraph 18(1), (2), (3), (4) and (5) would bring out clearly the necessary intendment of this law. It reads 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, as the case may be, the petitioner shall apply for the issuance of pre- hearing notice as in Form TF 008.
(2) Upon application by a petitioner under sub-paragraph (1), the Tribunal or Court shall issue to the parties or their legal practitioners (if any) a pre-hearing conference notice as in Form TF 008 accompanied by a pre-hearing information sheet as in Form TF 009 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 witnesses 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.
(3) The respondent may bring the application in accordance with subparagraph (1) where the petitioner fails to do so, or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order, to dismiss the petition.
(4) Where the petitioner and the respondent fail to bring an application under this paragraph, the Tribunal or the Court shall dismiss the petition as abandoned petition and no application for extension of time to take step shall be filed or entertained.
(5) Dismissal of a petition pursuant to subparagraphs (3) and (4) is final, and the Tribunal or Court shall be functus officio.
This paragraph 18 of the 1st Schedule to the Electoral Act is part and parcel of the Act, so the general rule of interpretation of statute

applies to it. The words used in that paragraph are simple, clear and unambiguous. So, in line with our settled canon of interpretation of statutes the words therein used are to be given their ordinary plain meaning. The law is settled that election matters in Court are sui generis. They are time-specific and sensitive. They are to be handled methodically and arithmetically compliant in every aspect of the hearing. A Petitioner who moves the Court or the Tribunal with a Petition cannot throw in processes and go into lethargy. He must deploy his processes as prescribed and it must be within time. Under Paragraph 18(1), the Petitioner shall apply for the issuance of pre-hearing Notice as in FORM TF 008. The application is to be within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filing and the service of the respondent’s reply. This is to say, on the conclusion of pleadings, the phrase “shall apply” in the context in which it is used cannot be anything other than that it is a must, a matter that leaves no room for discretion. The “shall” is absolute, a matter of compulsion. See the

case ofAbubakar & Ors v. Nasamu & Ors. (2012) 17 NWLR (Pt. 1330) 523. It is so clear and certain that by the effect of paragraphs 18(3), (4) and (5), the law places sanction which has the goal of dismissing the petition if no application was made as required for the issuance of pre-hearing notice. The Court will even be functus officio after the Petition is dismissed in the circumstance. The Lower Court was in order in dismissing the petition of the appellant for failure to ask for pre-hearing notice as scheduled by the law.

It is for this and the detailed reasons advanced by my learned brother in the lead judgment which I completely agree with, that I also hold that this appeal is lacking in merit. I do dismiss the appeal and I abide by the consequential orders inclusive of the order as to costs.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Yargata Byenchit Nimpar, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

REUBEN EGWUABA ESQ., with him, A.S NNOK-NDUU ESQ.For Appellant(s)

M.Y. ABDULLAHI ESQ. for 2nd Respondent

P. B. DAUDU ESQ., with him, UMAR ABDULHAMEED ESQ. for 3rd RespondentsFor Respondent(s)