AUGUSTINE ONYEDEBELU V. OYIBO N. NWANERI & ORS.
(2008)LCN/2729(CA)
In The Court of Appeal of Nigeria
On Monday, the 14th day of April, 2008
CA/PH/EPT/370/2007
RATIO
APPEAL-GROUNDS OF APPEAL: WHETHER ISSUES FOR DETERMINATION MUST ARISE OR RELATE TO THE GROUNDS OF APPEAL
“In the case of UGO v OBIEKWE (1989)) 1 NWLR (Pt.99) p. 566, it was held that issues for determination in a brief must arise from and relate to the grounds of appeal filed and no more. Conversely any issue formulated which has no ground of appeal to support it is worse than useless. See OSINUPEBI V. SAIBU (1982) 7 SC. 104 at 110 – 111; WESTERN STEEL WORKS LTD. V. IRON AND STEEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (Pt. 49) 284 at 304.” PER TIJJANI ABDULLAHI, J.C.A.
INTERPRETATION OF STATUTE- PARAGRAPH 3(1) OF THE PRACTICE DIRECTIONS 2007: AS IT RELATES TO WHEN THE PETITIONER IS REQUIRED TO APPLY FOR ISSUANCE OF PRE-HEARING NOTICE
“Paragraph 3(1) of the Practice Directions 2007 provides as follows: “Within 7 days after filing and service of the Petitioner’s reply on the Respondents or 7 days after the filing and service of the Respondents; reply whichever is the case the Petitioner shall apply for the issuance of pre-hearing notice as in form TP007.”Sub-paragraph (4) of the above paragraph states that: “Where the Petitioner and the Respondent fail to bring an application under this paragraph the Tribunal shall dismiss the petition as abandoned petition and no application for extension of time to take step shall be filed or entertained. (Underlining supplied for emphasis). It is instructive to state at this stage that the provisions of the Practice Directions quoted above are clear, simple and unequivocal. By the rules of interpretation of statutes or rules of Court they are to be given their plain and ordinary meaning. There is nothing in those paragraphs that will lead to absurdity in the adoption of their plain meaning. See the case of BUHARI v OBASANJO (supra).In the case of LAGOS STATE v M.I. AIGORO (1984) 11 SC. 152 at 196 the Apex Court per Obaseki, JSC held thus: “It is my view that the Practice Directions more than anything else enhance the prospect of securing compliance with the provisions of the rules and limit the incidence of non-compliance thereby securing quick dispensation of justice. The Court’s principal function is the adjudication of cases coming before it with justice and fairness. The rules of Court are designed to secure the ends of justice in each case within a reasonable time. That was the expressed principal aim of the Practice Directions (as contained in paragraph 6 thereof) in consonance with the entrenched rights of parties in Section 33(1) of the 1979 Constitution.” PER TIJJANI ABDULLAHI, J.C.A.
PRACTICE AND PROCEDURE-CONDITION PRECEDENT: WHAT IS THE EFFECT OF FAILURE TO COMPLY WITH A PRE-CONDITION FOR THE PERFORMANCE OF A LEGAL STEP
“It is trite law that where a condition precedent for the performance of a legal step has been provided by the law, failure to take step as stipulated will render every other action null and void. In the case of GUARANTY TRUST BANK PLC v TANIK INVESTMENT LTD & ANOR (2005) Vol. 13 WRN 25 at 31 this Court per Muhammad, JCA (as he then was) held thus: “Where a law requires the fulfilment of a precondition before a particular act, substantive or main act is done, non fulfilment of the pre-condition will be prejudicial to the party in default. By the requirements of the law he must take first things first. He cannot jump the initial hurdle set by the law itself.” See AINA v JINADU (1992) 4 NWLR (Pt.233) 91 at 109 para B and ALHAJI ABUBAKAR AIIMED & ANOR v CROWN MERCHANT BANK LIMITED (2005) 41 WRN 117 at 126 para.” PER TIJJANI ABDULLAHI, J.C.A.
DEFINITION OF WORDS: WHAT IS THE MEANING OF SHALL
“Again, in the case of ILOBI v UZOEGWU (supra) this Court per Ogunbiyi, JCA said:”Further still, I will wish to restate that the use of the word ‘shall’ presupposes that a Petitioner must comply with the express provision in point and which cannot be compromised. The failure in the matter in issue is fundamental being a condition precedent. In other words that issue of the incompetent nature of the petition goes to the jurisdiction of the tribunal to entertain the suit.” PER TIJJANI ABDULLAHI, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
Between
AUGUSTINE ONYEDEBELU Appellant(s)
AND
OYIBO N. NWANERI & 54 ORS Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): The Governorship and Legislative Houses Election Tribunal (henceforth referred to as the lower Tribunal) in a Ruling delivered on 16th day of August, 2007 dismissed a petition filed by the petitioner on 14th of May, 2007 challenging the return of the 1st Respondent, as a member representing Oru East Constituency in the Imo State House of Assembly.
The Tribunal on the said date held thus:
“On the whole, the Petitioner having failed to bring an application in accordance with paragraph 3(1) of the Practice Directions, this petition is deemed abandoned by virtue of para 3(4) thereof and ought to be dismissed. Accordingly, petition is hereby dismissed.”
Dissatisfied with this ruling, the petitioner filed a Notice of Appeal which initially carried four grounds of appeal and with the leave of this Court, the 5th ground was filed on the 11th of December, 2007 from which he distilled four issues for determination. Devoid of their particulars, the grounds are as follows:
“GROUND 1 – ERROR IN LAW
The Honourable Tribunal erred in law when it held that the Petitioner is under duty to apply for pre-hearing conference 14 days after entering appearance by the Respondent pursuance (sic) to paragraph 3 of the Election Petition and Court Practice Directions 2007 whether or not the respondents filed any reply to the petition and by the said error arrived at a wrong construction of paragraph 3(1) of the Election Tribunals and Court practice Directions 2007.
GROUND 2 – MISDIRECTION OF LAW
The Honourable Tribunal misdirected itself in law when it held that:
‘The necessary intendment of paragraph 3 of the Practice Direction is that if the Petitioner is not vigilant and fails to apply for pre-hearing conference within 14 days after entering appearance his petition cannot be revived.’
GROUND 3 -ERROR IN LAW
The Honourable Tribunal erred when it held that the provision of paragraph 3(1) (2) (4) of the Election Petition Practice and Court Direction are mandatory and applicable to Petitioner notwithstanding that non of the respondents had filed and served any reply to the petition.
GROUND 4 – ERROR IN LAW
The Honorrrabie Tribunal erred in law when it held that “the provision of Order 28 Rule 7(1) of Federal High Court Civil Procedure Rules cannot apply to the present situation because unlike in civil cases there in provision under the Practice Direction and the first schedule :as to what the respondents should do failing which the Petition should apply for pre-hearing conference and consequently dismissed the petition notwithstanding the provision of paragraph 35(d) of the first schedule to the Electoral Act 2006.
GROUND 5 – ERROR IN LAW
The Honourable Tribunal erred in law when it held that the petition is deemed abandoned by virtue of paragraph 3(4) of the Election Tribunal and Court Practice Direction 2007. A holding contrary to law and thereby occasioned a miscarriage of justice.”
The facts of the case that gave rise to the appeal under consideration are that: On the 14th day of April, 2007 elections were held in respect of the Oru East State Constituency. The Petitioner, the 1st Respondent and five others were candidates at the election. The Appellant was the candidate of the Democratic Peoples Party (DPP), while the 1st Respondent was the candidate of Peoples Democratic Party (PDP). At the end of the election, the 1st Respondent was declared the winner by the 2nd and 4th Respondents.
The Appellant naturally was not happy with the declaration of the 1st Respondent as the winner of the election wherefore he filed an election petition on the 14th of May, 2007 before the lower Tribunal. He challenged the election on the ground that the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
After service of the petition on 1st Respondent, she filed a memorandum of conditional appearance on the 21st day of May, 2007. The Appellant subsequently filed a Motion on Notice to amend his petition. She also on the 16th July, 2007, filed a Motion on Notice praying the Tribunal for an order:
“(a) Setting down the petition for hearng/pre-hearing session.
(b) Granting leave to the Petitioner/Appellant to prove his case in the absence of reply from the Respondent in the alternative entering judgment for the Petitioner.”
The Appellant equally made an application for pre-hearing session scheduling on 17/07/07. The 1st Respondent also filed Motion for extension of time to file their replies to the petition which is contained at pages 159 – 192 of the records of appeal.
On the 23rd day of July, 2007 when the motion came up for hearing, the tribunal invited Counsel on both sides to address it on whether or not the petition was competent before it for failure to file the mandatory Pre-hearing Notice within the time allowed by the Practice Direction. The Tribunal heard arguments from the parties and on the 16th of August, 2007 delivered its ruling dismissing the petition.
Pursuant to Practice Direction No. 2 of 2007, the parties duly filed and exchanged brief of arguments. The Appellant’s brief dated 28th day of September, 2007 was filed on 2nd October, 2007. The 1st Respondent’s brief dated 9th day of October was filed the same day. 2nd to 55th Respondents filed theirs on the 28th January, 2008. In response to the brief of the respondents, the Appellant filed a reply-brief on the 18th of February, 2008.
From the five grounds of appeal, learned Counsel as stated earlier in this judgment distilled four issues for determination as follows:
“1. When does the duty to apply for pre-hearing conference arise in an Election Petition pursuant to the provisions of Election
Tribunal and Court Practice Directions 2007. (This issue is distilled from ground 1 of the Notice of Appeal).
2. Whether in the circumstances of this case where the Respondents have failed to file any reply, the duty to apply for pre-hearing conference as envisaged by paragraph 3(1) of the Election Tribunal and Court Practice Directions 2007 has arisen. (This issue is distilled from the grounds 2 and 3).
3. Whether in the provision of paragraph 5 of the first schedule to the Electoral Act, 2006 and the Federal High Court Civil Procedure Rules as applicable can avail the Petitioner/Appellant in the circumstance having regards to the provisions of S.35(d) of the first schedule to the Electoral Act, 2006. (This issue is distilled from ground 4).
4. Whether a petition can be deemed to have been abandoned when the parties (i.e. Petitioner and Respondents) have filed before the tribunal, several applications; seeking extension of time to file a reply (pleadings) and also application to set down for hearing by the Petitioner/Appellant. (This issue is distilled from ground 5 of the grounds of appeal).
Learned Counsel for the 1st Respondent, distilled one for determination from the five grounds of appeal and it reads thus: “Whether the Tribunal below was right in dismissing the petition.”
For his part, learned Counsel for the 2nd to 55th Respondents, equally distilled one issue for the consideration of this Court to wit:
“Whether the Tribunal acted within the purview of paragraph 3 of the Election Tribunal and Court practice Directions, 2007 in dismissing the petition.”
On the 3rd of March, 2008 when the appeal came before us for hearing, the Appellant appeared in person and informed the Counsel that he did not see his client. However, since the Appellant’s brief had been filed, we deemed same to have been argued ii accordance with the Rules of this court. Counsel for the respondents both adopted their respective briefs and urged us to dismiss the appeal.
Learned Counsel for the Appellant in a brief settled by Chris O. Ahumibe argued issues number 1 and 2 together. After questing the provision of paragraph 3(1) of the Practice Direction, 2007, learned Counsel submitted that the said provision is clear, simple and unequivocal and ought to be given its ordinary meaning. He relied on the case of BUHARI v OBASANJO (2005) ALL FWLR (Pt 273) p.1 at 133 – 134. Given its ordinary meaning, learned Counsel submitted that, there must be filed and served the Respondents’ reply or Petitioner’s reply whichever is applicable before the duty to apply for pre-trial conference arises.
It is the submission of the learned Counsel that in the case on hand, the filing and service of reply aforesaid is a condition precedent to the application for pre-hearing conference. We were urged to so hold. Conversely, learned Counsel further submitted, that an application for pre-trial conference made before the filing and service of the respondents’ reply is irregular and premature. Learned Counsel opined that none of the Respondents had filed any reply and without the respondents’ reply there cannot be any Petitioner’s reply.
It is the contention of the learned Counsel that none of the Respondents filed and served any reply as at 18th July, 2007. Unfortunately, learned Counsel went on the Election Tribunal and Court Practice Direction, 2007 is silent on this situation. Learned Counsel argued that in an attempt to find a solution to the problem, the tribunal drew inferences or conclusions that amounted to judicial legislation which the Tribunal had no powers to do. The conclusion or inference made by the Tribunal, learned Counsel further argued, did not flow from the interpretation of the Practice Direction but the enacting or stating of further rules in a situation where the provisions were silent. The Supreme Court, he went on disagreed with this Practice in the case of BUHAHI v OBASANJO (supra) Part 174 page 329 at 386 paragraphs A – B.
It was submitted by the learned counsel that a distinction exists where a Court is called upon to interpret the provisions of a rule of Court or statute from where the Court embarks on “feeling the gap” in a situation where there exists no provision at all. Though the Practice Direction 2007 has provided for the application for pre-hearing conference in a situation where the Respondent has filed a reply, it has not provided for a situation where no reply has been filed.
In the above scenario, learned Counsel further submitted that it is not the duty of the Tribunal to speculate on the intention of the legislature no matter the compelling invitation to dos so by the circumstance. Learned Counsel urged us to resolve this issue in favour of the Appellant and hold that the duty to apply for a pre-hearing conference has not arisen in the circumstance where no replies have been filed by the Respondents.
Assuming without conceding that the tribunal was entitled to interpret or provide any lacuna in paragraph 3 of the Practice Direction, 2007 as it did, learned Counsel submitted that the Court ought to avoid an interpretation or the application of the law which will give primary to technicality. He relied on the cases of EKPUK v OLWN (2002) FWLR (Pt. 84) page 145, SOLEYE v. SONIBARE (2002) FWLR (Pt.95) page 221 at 235 (0 – 9), UNIVERSITY OF LAGOS v. AIGORO (1985) 1 NWLR (Pt.1) 143; U.B.A. PLC v MODE NIGERIA LTD (2001) FWLR (Pt. 40) 1664 referred to) p. 235, paras D – G.
Learned Counsel for the 1st Respondent on the other hand, contended that Election Petitions are proceedings sui generis. It is abundantly regulated by statute which sets out the procedures to be adopted including matters that are obligatory and mandatory as well, learned Counsel further contended.
It is the submission of the learned Counsel that the President of the Court of Appeal pursuant to the express provisions of Section 285(3) of the Constitution of the Federal Republic of Nigeria. 1999 made the Election Tribunal and Court Practice Directions 2007 which as a constitutional directive is binding and carries the full force of the Constitution being a subsidiary legislation made pursuant to powers granted by the Constitution.
Learned Counsel submitted that it is misconceived for the Appellant to suggest that the duty imposed on him by the Practice Directions will not be performed by him until all the respondents file their replies even when the law stipulates the period allowed for filing of petition and reply.
Learned Counsel for the 2nd to 55th Respondents for his part, submitted that the provisions of paragraph 3 of the Practice Directions are clear and unambiguous that within 7 days after filing and service of Petitioner’s reply on the Respondents or 7 days after the filing and service of the Respondents’ reply, whichever is the case the Petitioner shall apply for the issuance of pre-hearing notice as in form 7F 007.
It is the submission of the learned Counsel that an election petition is heard and determined by an appropriate election Tribunal. The jurisdiction of an election Tribunal is of a special nature, such that a slight default in complying with the procedural step which otherwise could be cured or waived in other proceedings could result in fatal consequences for the petition, except to the except to which the provision of the Electoral Act 2006 relaxed.
Learned Counsel further submitted that it is a misconception of law for the Appellant to suggest that the duty imposed on him by the Practice Direction will not be performed by him until the Respondents file their replies even when the law stipulates the time allowed for filing of petition and reply.
Now, let me begin by saying that a careful perusal of the grounds of appeal filed by the Appellant would reveal the fact that there is nothing absolutely in the said grounds that questions the legality of the Practice Directions.
In the case of UGO v OBIEKWE (1989)) 1 NWLR (Pt.99) p. 566, it was held that issues for determination in a brief must arise from and relate to the grounds of appeal filed and no more. Conversely any issue formulated which has no ground of appeal to support it is worse than useless. See OSINUPEBI V. SAIBU (1982) 7 SC. 104 at 110 – 111; WESTERN STEEL WORKS LTD. V. IRON AND STEEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (Pt. 49) 284 at 304.
The grounds of appeal as can be gleaned from their contents merely raise issues in a matter in which the Tribunal has been excised of all discretion as long as the Practice Direction issued by the President legitimately. The question that arises for determination in this appeal to my mind is whether it was applied rightly or wrongly. Lest I am misunderstood, the issues canvassed by the learned Counsel for the Appellant as I have already started will be given full consideration.
Paragraph 3(1) of the Practice Directions 2007 provides as follows:
“Within 7 days after filing and service of the Petitioner’s reply on the Respondents or 7 days after the filing and service of the Respondents; reply whichever is the case the Petitioner shall apply for the issuance of pre-hearing notice as in form TP007.”
Sub-paragraph (4) of the above paragraph states that:
“Where the Petitioner and the Respondent fail to bring an application under this paragraph the Tribunal shall dismiss the petition as abandoned petition and no application for extension of time to take step shall be filed or entertained. (Underlining supplied for emphasis).
It is instructive to state at this stage that the provisions of the Practice Directions quoted above are clear, simple and unequivocal. By the rules of interpretation of statutes or rules of Court they are to be given their plain and ordinary meaning. There is nothing in those paragraphs that will lead to absurdity in the adoption of their plain meaning. See the case of BUHARI v OBASANJO (supra).
In the case of LAGOS STATE v M.I. AIGORO (1984) 11 SC. 152 at 196 the Apex Court per Obaseki, JSC held thus:
“It is my view that the Practice Directions more than anything else enhance the prospect of securing compliance with the provisions of the rules and limit the incidence of non-compliance thereby securing quick dispensation of justice. The Court’s principal function is the adjudication of cases coming before it with justice and fairness. The rules of Court are designed to secure the ends of justice in each case within a reasonable time. That was the expressed principal aim of the Practice Directions (as contained in paragraph 6 thereof) in consonance with the entrenched rights of parties in Section 33(1) of the 1979 Constitution.”
Learned Counsel for the Appellant submitted that in view of the provision of Practice Directions 2007 the filing and service of reply is a condition precedent to the application of paragraph 3(4). In other words, before the duty to apply for pre-trial conference arises, replies by either Respondents or Appellants as the case may be ought to have been filed. Learned counsel further submitted that in the case on hand, none of the Respondents had filed any reply, and without the Respondents, reply there cannot be any Petitioner’s reply. With due respect to the learned counsel his submissions on this point are most incorrect and cannot help the case of the Appellant in any way.
It is trite law that where a condition precedent for the performance of a legal step has been provided by the law, failure to take step as stipulated will render every other action null and void.
In the case of GUARANTY TRUST BANK PLC v TANIK INVESTMENT LTD & ANOR (2005) Vol. 13 WRN 25 at 31 this Court per Muhammad, JCA (as he then was) held thus:
“Where a law requires the fulfilment of a precondition before a particular act, substantive or main act is done, non fulfilment of the pre-condition will be prejudicial to the party in default. By the requirements of the law he must take first things first. He cannot jump the initial hurdle set by the law itself.”
See AINA v JINADU (1992) 4 NWLR (Pt.233) 91 at 109 para B and ALHAJI ABUBAKAR AIIMED & ANOR v CROWN MERCHANT BANK LIMITED (2005) 41 WRN 117 at 126 para.
In view of the above, I am of the considered opinion that paragraph 3(1) of the Practice Direction mandatorily enjoins the Appellant to apply for the issuance of a pre-hearing notice. The duty to be vigilant and ensure the sustenance of the petition by applying for pre-trial conference lies on the petitioner/Appellant and his failure to be vigilant does not attract equity on his side as equity aids the vigilant.
Again, it is a misconception on the part of the Appellant to suggest that the duty imposed on him by the Practice Directions will not be performed by him until the Respondents file their replies even when the law stipulates the period allowed for filing of petition and reply.” It is trite that when the law makes provision for time to perform a certain act it is presumed that the period will come to close when the time allowed has lapsed. The cases of BUHARI v OBASANJO (supra) and BUHARI v YUSUF (2003) FWLR (Pt. 174, p. 329 cited by the learned Counsel are not apposite to the facts and circumstances of the case on hand. Learned Counsel yet cited the cases of SOLAYE v. SONIBARE; UNIVERSITY OF LAGOS v AIGORO; U.B.A. PLC v MODE NIGERIA LTD (supra) and submitted that in view of the dicta contained therein, it would amount to a miscarriage of justice to allow a defaulting party (the Respondents) who have failed to file a reply or any defence to the petition to go home smiling with a technical victory over the Petitioner/Appellant who in the circumstances has shown a strong desire to prove his case.
It is instructive at this juncture to pause and say that the learned Counsel has missed the point. The issue relating to noncompliance with the Practice Direction 2007 goes beyond a technical one. it is a substantial issue of jurisdiction. The seriousness of the provisions under s. 3(1) and (4) can be seen in the provisions of paragraph 3 (5) which provides that dismissal of the petition pursuant to sub-paragraph 3 and 4 shall be final and accordingly the tribunal shall be functus officio. The Tribunal lacked the jurisdiction to entertain the petition based on the mandatory provision of the Practice Directions, 2007. See the cases of ILORI v. UZOEGWU (2004) 19 WRN 93 para 17 at 105 per Ogunbiyi JCA; BAMIYI V ATTORNEY-GENERAL OF THE FEDERATION (2006) 6 NWLR (Pt. 66), p.421 and MADUKOLU v. NKEMDILIM (2001) 46 WRN 1. In the case of BAMIYI v A.G. (supra) the Apex Court per Karibi-Whyte JSC said:
“‘Where a provision provides that a thing shall be done, the natural meaning is that a peremptory mandate is enjoined.”
Again, in the case of ILOBI v UZOEGWU (supra) this Court per Ogunbiyi, JCA said:
“Further still, I will wish to restate that the use of the word ‘shall’ presupposes that a Petitioner must comply with the express provision in point and which cannot be compromised. The failure in the matter in issue is fundamental being a condition precedent. In other words that issue of the incompetent nature of the petition goes to the jurisdiction of the tribunal to entertain the suit.”
In the result, I am of the considered view that the lower Tribunal was right when it held inter alia thus:
“That what should the Petitioner do if the Respondent fails to file his reply as is required by law? Should he wait indefinitely until the Respondent – decide to file his reply. If that were to be the case, then an election petition will remain pending for as long as the respondent does not file his reply. That cannot be the intention of the President of the Court of Appeal who made the Practice Directions with a view to facilitating and ensuring expeditious disposal of election petitions which by their nature are sui generis. (Underlining supplied for emphasis).
In the light of all that have been said supra, issues numbers 1 and 2 formulated by the Appellant are resolved against him and in favour of the Respondents.
Issue number 3 is whether in the provision of paragraph 5 of the first schedule to the Electoral Act, 2006 and the Federal High Court Civil Procedure Rules as applicable can avail the Petitioner/Appellant in the circumstance having regards to the provisions of Section 35(d) of the first schedule to the Electoral Act 2006.
Learned Counsel for the Appellant began his consideration of this issue by submitting that this issue arises from the conclusion of the argument in issues 1 and 2. Learned Counsel submitted that the provision of paragraph 35(d) which specifies the procedure to be adopted by the Tribunal in the absence of reply is so clear and unambiguous and does not require the application of a pre-hearing conference which in itself entails the participation of both parties.
It is his further submission that it is no mistake when the Practice Direction omitted the issue of application for pre-hearing conference when the Respondents failed to reply or decline participation in an Electoral Proceedings. Learned Counsel contended that Order 28 Rule 7(1) Federal High Court Rules, 2000 can be invoked to give leverage for the application of provisions of paragraph 35 of the Rules of the Electoral Act, 2006.
It was submitted by the learned Counsel that where the Act or Statutes makes a provision for the doing of an act or thing, the provision of the Practice Direction cannot be applied or interpreted to fetter the provision of a statute. He relied on the cases of AFRIBANK v AKWARA (2006) ALL FWLR (Pt. 304) p. 401 at 429 and LAGOS STATE v AIGORO (1984) 11 SC 152.
Learned Counsel urged us to hold that recourse to the Federal High Court Rules and the provisions of paragraph 35(d) of the first schedule of the Electoral Act 2006 is proper and consistent with the justice of the case.
For his part, learned Counsel for the 1st Respondent contended that issue 3 and ground 4 of the grounds of appeal as well as issue 4 raise the issue of the application of paragraph 35(d) of the 1st schedule for the first time in this appeal. Learned Counsel further contended that they were not raised at the tribunal and no leave was obtained to argue them on appeal. It is the submission of the learned Counsel that the issue are incompetent and should therefore be discountenanced.
Learned Counsel submitted that these issues (3 & 4) did arise and could not have arisen from the conclusion of the argument in issues 1 and 2 of the Appellant’s issues determination.
It is pertinent to state from the on set that a careful perusal of the records of the lower Tribunal would leave no one in any doubt that the application of paragraph 35(d) is being raised for the first time in this appeal. That apart, no leave was sought to raise it in this Court as canvassed by the learned Counsel for the Appellant. The question that must be asked and answered is can the Appellant raise these issues for the first time without leave having been sought and obtained?
In the case of GABRIEL v THE STATE (1989) 5 NWLR (Pt. 122) p. 457 at p. 462 it was held thus:
“The Appeal Court will not entertain a new issue raised in the Court except question of law or the Constitution and then only with leave of Court.”
In the adversarial system we operate in this country, it is well settled beyond peradventure that there is no trial by ambush. As long as an issue is being raised for the first time on appeal without leave it should not be allowed. See the case of PROF. J.A. AKINNYANJU v. UNIVERSITY OF LAGOS (2005) 125 CNJ 159 and GLOBAL TRANSPORT SA v FREE ENTERPRISE (NIG) (2001) 12 WRN P. 136.
In view of the foregoings, issues 3 and 4 are resolved in favour of Respondents and against the Appellant.
In sum, with all the four issue resolved in favour of the Respondents, this appeal must be and it is hereby dismissed as lacking in merit with N30,000.00 costs in favour of the Respondents
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have read in draft the judgment of my learned brother, Abdullahi, J.C.A just delivered. I agree entirely with his reasoning and conclusion that there is no merit in this appeal and it should be dismissed.
Election petition matters, being sui generis are governed by rules of procedure strictly geared towards ensuring the speedy and efficient dispensation of justice. Unlike ordinary civil proceedings, in certain circumstances, the slightest default in complying with a procedural step, which would otherwise be cured or waived could be fatal to an election petition. See: Magaji vs. Balat (2004) 8 NWLR (876) 449 at 478-479 D-A; Buhari vs. Yusuf (2003) 14 NWLR (841) 446.
Paragraph 3(1) (3), (4) & (5) of the Electoral Tribunal and Court Practice Directions 2007 provides as follows:
3(1) “Within 7 days alter 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 is Form TF 007.
(3) The Respondent may bring the application in accordance with sub-paragraph (1) above where the petitioner fails to do so or by motion which shall be served on the (sic).
(4) Where the Petitioner and the Respondent fail to bring an application under this paragraph the Tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.
(5) Dismissal of a petition pursuant to sub-paragraphs (3) and (4) above is final, and accordingly the Tribunal or court shall be functus officio.” (Emphasis supplied).
It is the contention of learned counsel for the appellant therein that the duty to apply or pre-hearing notice as provided for in paragraph 3(1) of the Practice Directions would only arise after the respondent has filed a reply to the petition. In other words the petition remains pending at the pleasure of a respondent who may or may not file a reply thereto. This clearly cannot be the intendment of the Practice Directions, which were specifically enacted to ensure diligence in the prosecution and expeditious disposal of election petitions.
By paragraphs 7(2) and 9(1) (a) and (b) of the 1st schedule to the Electoral Act 2006, the time within which a respondent shall enter appearance in respect of an election petition is not less than 5 days but not more than 7. Where a respondent does not file a memorandum of appearance, by virtue of paragraph 10(2) he has 21 days from the receipt of the election petition to file his reply. Paragraph 12(1) provides that where the respondent files a memorandum of appearance he shall file his reply to the petition within 14 days of entering appearance.
The combined effect of these provisions is that the respondent is required to file his reply to the petition within 21 days from the date it is served on him, or within 14 days from the date of entering appearance thereto. Once the prescribed period has elapsed and the respondent has failed or neglected to file his reply the duty on the petitioner to file an application for a pre-hearing notice would arise.
The guiding principle in the interpretation of statutes is that the words must be given their ordinary and grammatical meaning. The primary concern of the court is the intention of the law makers. See: Ojokolobo vs. Alamu (1987) 3 NWLR (61) 377 at 402 – F – H; Ahmed v. Kassim (1958) SCNLR 28 at 30 C.
In my respectful view the intention of the law makers can be deduced from paragraph 3(4) and (5) reproduced above. The penalty for non-compliance is very strict.
The application for a pre-hearing notice within the time prescribed by paragraph 3(1) of the Practice Direction is a condition precedent to the invocation of the court’s jurisdiction to entertain the petition. The appellant having failed to make the necessary application within the stipulated time, the lower Tribunal rightly dismissed the Petition.
In the circumstances and for the more detailed reasons contained in the lead judgment, I find no cause to interfere with the decision of’ the Lower Tribunal. Accordingly I hereby dismiss the appeal. I award N30,000.00 costs in favour of each set of respondents.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A: I have had the opportunity of reading before now the lead judgment prepared and delivered by my learned brother, ABDULLAHI, J.C.A I concur with the reasoning and conclusion reached in the lead judgment, to the effect that the appeal lacks merit and ought to thus be dismissed by this court.
It’s instructive that on 14/5/07, the Appellant had filed in the lower tribunal petition No: EPT/LH/IM/13/2007 wherein he prayed for the following reliefs:
“a) That it be determined that the election and return at the 1st Respondent is void as the 1st Respondent did not have the majority lawful votes cast at the election.
b) That it be determined that the Petitioner polled the majority of lawful votes cast of the election in Oru East Constituency and thereby returned winner and member representing Oru East in Imo State House of Assembly.
OR IN THE ALTERNATIVE
c) That it be determined that the Election held at Oru East on the 14th April, 2007 for the office of the member Imo House of Assembly is inconclusive.
d) That the election and return of the 1st Respondent is void or invalid for reasons of non-compliance with substantial sections of the Electoral Act, 2006.
e) An order for fresh election or bye-election in the following areas.
Unit 005 – Unity Primary School – Awo Omamma Ward I
Unit 006 – Unity Primary School – Awo Omamma Ward I
Unit 002 – Okworji Primary School – Awo Omamma Ward II
On 23/5/07, the Appellant filed a motion on Notice seeking to amend the petition field on 14/5/07. However, on 18/7/07 that motion was struck out by the lower tribunal after it was withdrawn by Chris O.Ahumibe Esq. On 16/7/07, the said Ahumibe Esq field a second motion seeking to amend the petition in question. On 16/7/07, the Appellant filed a motion on Notice praying the lower tribunal for the following reliefs:
a) Setting down the petition for hearing pre-hearing session.
b) Granting leave to the petitioner/Applicant to prove his case in the absence of reply from the Respondents or in the ALTERNATIVE entering judgment for the petitioner.
The above motion was predicated on two grounds, namely:
a) The petitioner has filed and served the petition on all the Respondents.
b) Time as allowed by the rules has lapsed without any of the Respondents filing any Reply.
Not unexpectedly, the above motion was opposed by the Respondents. Counter-affidavits and written addresses were accordingly filed by the Respondents in opposition thereto. A reply to the petition, dated 21/7/07, was also filed by the 2nd – 55th Respondents.
As could be gleaned from the record, on 23/7/07 the lower tribunal invited the learned counsel to address it on not the petition was competent. In consideration of the submissions of the learned counsel on the vexed issue of competence of the petition, the lower tribunal delivered a ruling on 16/8/07 to the effect, inter alia, thus:
The effect of failure to apply is provided under paragraph 3(4) of the Practice Directions in clear and unambiguous terms the provisions of para 3(1), (2) and (4) of the Practice Directions are mandatory. In the light of the foregoing, the first issue ought to be resolved in the affirmative. On the whole, the petitioner having failed to bring the application in accordance with para 3(1) of the Practice Directions, this petition is deemed abandoned by virtue of para 3(4) thereof and ought to be dismissed. Accordingly, the petition is hereby dismissed.
The present appeal is against the lower tribunal’s ruling in question. The appellant has in the brief thereof formulated a total of four issues for determination viz:
1) When does the duty to apply for pre-hearing conference arise in an Election Petition pursuant to the provisions of Election Tribunal and Court Practice Directions, 2007. (This issue is distilled from grounds (sic) 1 of the Notice of Grounds of Appeal).
2) Whether in the circumstances of this case where the Respondents have failed to file any reply, the duty to apply for pre-hearing conference as envisaged by paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007 has arisen. (This issue is distilled from grounds 2 and 3).
3) Whether in the provision of paragraph 5 of the first schedule to the Electoral Act 2006 and the Federal High Court Civil Procedure Rules as applicable can avail the petitioner/Appellant in the circumstance having regards to the provisions of s.35(d) of the first schedule to the Electoral Act, 2006. This issue is distilled form Grounds (sic) 4 of the Notice and Grounds of Appeal.
4) Whether a petition can be deemed to have abandoned when the parties (i.e. petitioner and respondents) have filed before the Tribunal, several applications, seeking extension of time to file reply (pleading) and also application to set down suit for hearing by the petitioner/applicant. This issue is distilled from Grounds 5 of the Notice and Grounds of Appeal.
However, the 1st Respondent on the one hand, and the 2nd – 55th Respondents on the other, are ad idem that only one issue calls for determination in this appeal, that is whether the lower tribunal was right and acted within the purview of paragraph 3 of the Election Tribunal and Court Practice Directions, 2007 in dismissing the petition. I think, I cannot agree more with that contention. There is every reasoning to believe that the above issue is concise and sufficient to address all the in the 4 issues raised the Appellants’ brief.
Instructively, there is no dispute whatsoever as regards the date on which the petition was filed i.e. 14/5/07. The provision of paragraph 3(1) of the Election tribunal and Court Practice Direction, 2007 (supra) which is the bane of contention in this appeal, is to the following effect:
3(1) within 7 days after the filing and service of the Petitioners 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 Form TF007.
The petition, as alluded to above, was filed on 14/5/07, it was served on 1st Respondent and 2nd – 55th Respondents, on 17/5/07 and 31/5/07, respectively. The argument of the Appellant on issue 1 and 2 thereof is to the effect, inter alia, that the provision of paragraph 3(1) (supra) is plan and clear and unequivocal. That, there is nothing therein that will lead to absurdity in the adoption of its plan meaning. See BUHARI VS. OBASANJO (2005) ALL FWLR (Part 273) 1, 133- 134. It was further submitted that, given its ordinary meaning, the only out come of interpreting the provisions of paragraph 3(1) (supra), is that there must be filed and served the Respondents’ reply or petitioners reply, where applicable, before the duty to apply for pre-trial conference arises. According to the Appellant, the inference and conclusion made by the lower tribunal at page 227, lines 9 – 11 of the Record has amounted to a judicial legislation, as it does not flow from the interpretation of the provisions of the Practice Directions (supra). See BUHARI VS. YUSUF (2003) FWLR (Part 174) 329, 386 paragraphs A – B; EKPUK VS. OLWN (2002) FWLR (Part 84) 145; SOLEYE VS. SONIBARE (2002) FWLR (Part 95) 221; 235; UNIVERSITY OF LAGOS VS. AIGORO (1985) 1 NWLR (Part 1) 143; UBA PLC. V. MODE NIGERIA LTD. (2001) FWLR (Part 40) 1664.
It was further submitted that in the instant case, none of the Respondents had so far filed a reply to the petition. Accordingly the court was urged to hold that the filing and service of Respondents’ reply is a pre-condition to the application for pre-hearing conference. It was contended that it amounts to a miscarriage of justice to allow the defaulting Respondents, who have failed to offer any evidence to the petition, to go home smiling with technical victory over the Appellant who in the circumstances has shown a strong desire to prove his case.
On his own part, the 1st Respondent has submitted in the brief thereof, that election petitions are proceedings sui generic. That, the Practice Directions, 2007 (supra) were made pursuant to the express provisions of section 258(3) of the Constitution of the Federal Republic of Nigeria, 1999; thus carries the full force of the Constitution being a subsidiary legislation made pursuant to the powers granted by the Constitution.
It was argued that the grounds of appeal did not question the legality of the Practice Directions, 2007 (supra). That, the question that arises is whether, the Practice Directions, 2007 (supra) was applied rightly or not, That, its trite law that where o condition precedent for the performance of o legal step has been provided by the law, failure to take the step as stipulated will render every action null and void.
See GUARANTY TRUST BANK (PLC) Vs TANIK INVESTMENT LTD & ANOR (2005) VOL. 13 WRN 25; 31; AHMED & ANOR VS CROWN MERCHANT BANK LTD (2005) 41 WRN 117; 126 paragraph 4.
It was argued that the lower tribunal neither indulged in judicial legislation, nor drew inferences and conclusions that are perverse. That, the tower tribunal rightly applied the law to the given circumstance by calculating the period from the filing of the petition to the period provided for filing of replies, which amounted to the said 14 days. As such, the tribunal has a right to draw direct and reasonable inferences from facts, which inferences ore not perverse. See ILOBI VS. UZOEGWU (2004) 19 WRN 93 (Part 17) 105; BAMAIYI VS. AG OF THE FEDERATION (2006) 6 NWLR (Part 661) 421; MADUKOLU & ORS VS NKEMDILIM (2001) 45 WRN 1: (1962) 2 SVNLR 341, (1962) ALL NLR 387; 595, et al.
The court was urged to up hold the tribunals interpretation of the Practice Directions, 2007 (supra), and accordingly dismiss the arguments on issues 1 & 2 of the Appellants brief. The submission of the 2nd – 55th Respondents in the brief thereof, is to the effect, inter alia, that on election petition is sui generis, thus the procedure (as laid down in the Practice Directions) must be strictly followed, See HARUNA ABUBAKAR & ANOR VS INECT & ORS (2004) 1 NWLR (Part 384) 207; HAMED & ANOR VS CROWN MERCHANT BANK LTD (2005) 41 WRN 117; 126 paragraph 4; et al.
It is a well settled principle that election petition proceedings vis-a-vis the procedure rules applicable thereto, belong to a special class of their own, That’s, as a matter of fact, the very reason why election petitions are very often than not referred to as SUI GENERIS, which in Latin literally means of its own kind or class; unique or peculiar, See BLACK’S LAW DICTIONARY, 7TH Edition 1999 at page 1448.
They are bound and governed by their own special rules of procedure, mode pursuant to the provisions of the Constitution and the Law, See HARUNA ABUBAKAR & ANOR VS INEC & ORS (supra) 207.
As alluded to above, the provisions of paragraph 3 (1) of the Election Tribunal and Court Practice Directions, 2007 (supra) hove made it a point of duty upon the petitioner to within 7 days otter filing and service of the petitioners Reply on the Respondent, or 7 days after filing and service of the Respondents’ Reply, to apply to the lower tribunal for the issuance of a pre-hearing notice (as in Form TF007), However, its also trite that although election petitions have characteristics of their own, they are still a specie of civil cases. Thus, they are decided on the preponderance of evidence, See BUHARI VS OBASANJO (2005) 13 NWLR (part 941) 1, 282 – 283 paragraphs H – A; 286 paragraph B.
It’s not in doubt, that the Appellant had not complied with that directive.
His reason for not doing so was predicated on the belief, thus:
Given its ordinary meaning, the only outcome of interpreting the provisions of paragraph 3(1) of the Practice Direction (sic) quoted above is that there must be filed and served the Respondents reply or petitioner’s reply where applicable before the duty to apply for pretrial conference arises.
In this case, the filing and service of reply aforesaid is a condition precedent to the application for pre-hearing conference. I urge the court to so hold.
However, there is every reason to believe that the above contention was premised on wrong footing and thus grossly misconceived. For the avoidance of doubt, I am unable to appreciate, let alone above uphold, the parties view that the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007 (supra) are clear simple and unequivocal, and ought to thus be given their plain and ordinary meaning. Most undoubtedly, the well trite principle is that the actual words used in a statute should be accorded their literal, grammatical ordinary meaning devoid of any sentiment decoration or quibble. In essence a court has a onerous duty to give effect to words, used in a statute, where such words appear to the plain and unambiguous. A court has no business reading in to any statute words which are not used therein. See UBA PLC VS. AKPARABONG COMM. BANK (NIG.) LTD. (2005) 35 WRN 98 paragraph 8; OGUNADE VS. FADAYIRO (1972) 8 – 9 SC 1; NURW VS. NRC (1996) 6 NWLR (Part 473) 490; 503; BUHARI VS. OBASANJO (2005) ALL FWLR (Part 273) 1; 133 – 134.
Having accorded a considerable, albeit critical, regard upon the provisions of paragraph 3(1) of the Election tribunal and court Practice Directions, 2007 (supra), there is every reason to believe that the words used therein are far from being clear, plain and unequivocal as to warrant this court to accord them their literal and grammatical meaning, for some obvious reasons, i) The 1st phrase:
“(i) Within 7 days after the filing and service of the petitioner’s Reply on the Respondent…”
As couched in paragraph 3(1) (supra), may literally mean that the petitioner shall apply for the issuance of pre-hearing notice not later than 7 days after the service of the petitioner’s reply on the Respondent. ii) The 2nd phrase:
“(i) or 7 days after the filing and service of the Respondents’ reply…”
as couched in paragraph 3(1 ) (supra), denotes the second option or alternative in which the petitioner shall apply for the issuance of pre-hearing notice, not later than 7 days after filing and service of the Respondent’s Reply thereon.
It is rather obvious, that in each of the above two cases or option, one may be tempted to think that “the filing and service of the petitioners Reply” or “the filing and service of Respondent’s reply,” as the case may be, is a pre-condition for the application by the petitioner for eth issuance of a pre-hearing notice. Undoubtedly, one does not need a microscopic glass to discern the lacuna inherent in the provision of paragraph 3(1) (supra). The said paragraph 3(1) of the Practice Directions has not tied down the Respondents to a time limit within which to file and serve their reply to the petition. To make the provision of paragraph 3(1) (supra) more meaningful and self explanatory, a subparagraph ought to have been provided therein requiring the Respondents to file their reply to the petition without a stipulated time limit. Thus, the absence of such a vital provision requiring the Respondents to file their reply to the petition within a stipulated time limit has tendered the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007 (supra) rather ambiguous. It’s a fundamental principle that where, as in the instant case, the words of a statute are ambiguous, the court has an onerous duty to accord the words a meaning that with resonate with common sense, order and system, so as to make it realistically operative. See BUHARI V. OBASANJO (2005) 13 NWLR (Part 941) 1; 281 paragraph D.
It is also a veritable doctrine of law, that in construing the provisions of a section or paragraph of a statute, the entire provisions of the statute must be read in order to determine the meaning and effect of the words being interpreted, See GARBA VS FCSC (1988) 1 NWLR (part 71) 449; AWOKOWO VS SHAGARI (1978) 6-9 SC 51; BRONIK MOTORS VS WEMA BANK (1983) 1 SCNLR 296; BUHARI VS OBASANJO (supra) at 219 paragraphs D – F, respectively.
In the instant case, the Election Tribunal and Court Practice Directions, 2007 (supra) were issued by the Hon, president of the Court of Appeal in pursuance of the power conferred thereupon under section 151 of the Electoral Act 2006 (supra), and paragraph 50 of the First Schedule to the Electoral Act 2006 (supra), which ore to the following effect:
1. 151. The rules of procedure to be adopted for election petitions and appeals arising there from shall be those set out in First Schedule to this Act.
2. 50. Subject to the express provisions of this Act, the Practice and Procedure of the Tribunal or the court in relation to an election petition shall bears hearly as possible, similar to the practice and procedure of the Federal High in the exercise of its civil jurisdiction and civil procedure Rules shall apply with such acidifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the Respondent were respectively the plaintiff and the defendant in an ordinary civil action.
Thus, in the absence of any clear ad unequivocal Provision in the Practice Directions, 2007 (supra) requiring the Respondents to file and serve their Reply to the petition within a stipulated time limit, the provisions of paragraphs 12(1) and 16(1) of the First Schedule to the Electoral Act, 2006 (supra) must b resorted to thus:
12(1) The Respondent shall within Fourteen (14) days of entering on appearance 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 replies in opposition to the election petition.
16.(1) If a person in his reply to the election petition raises new issues of facts in defence of his case which the petition has not dealt with the petitioner shall be entitled to file in the registry within five (5) days from the receipt of the Respondent’s reply, a petitioners reply in answer to the new issues of fact, so however that:
(a) the petitioner shall not at this stage (sic) entailed to bring in new facts grounds or prayers tending to amend or odd to the contents of the petition filed by him; and
(b) the petitioner’s reply does not run counter to the provisions of sub-paragraph (1) of paragraph 14 of this Schedule.
(2) The time limited by sub paragraph (1) of this paragraph shall not be extended.
In the instant case, the 1st Respondent, on the one hand, and the 2nd – 55th Respondents on the other, were said to have been served with the copies of petition on 17/5/07 and 31/5/07, respectively. The time limits within which they were required to have filed their reply to the petition must have expired on 30/5/07 and 14/6/07, respectively. As alluded to above, by virtue of the provision of paragraph 16(1) of the First Schedule to the Electoral Act, 2006 (supra), “the petitioner shall be entitled to file in the registry within five (5) days from the receipt of the Practice Directions, 2007 (supra), that the petitioner was required to apply for the issuance of pre-hearing notice (as in Form TF007) either 7 days after filing and service of the Petitioner’s reply on the Respondent, or 7 days after filing and service of the Respondent’s Reply thereon.
It is not in doubt that the two sets of Respondents had defaulted in filing their respective reply to the petition served on them since on 17/5/07 and 31/5/07 in question. The Appellant ought to have applied to the lower tribunal for the issuance of a pre-hearing notice on 14/6/07 i.e. the very day the 2nd – 5th Respondents time to file their reply to the petition ought to have expired. There is a need to, at his stage, allude to (i) the motion filed by the Appellant on 23/5/07 contained of pages 82 – 109 seeking to amend the petition, which was however struck out on 18/7/07 at the instance of the Appellant’s counsel; (ii) the second motion session etc (contained at pages 110 – 121 of the record) which was still pending as at the date the petition was dismissed; (iii) the third motion filed on 16/7/07 seeking to amend the petition (contained at pages 122 – 145 of the Record, which was still pending; (iv) the 2nd – 55th Respondents’ motion filed on 21/7/97 (contained at pages 159 – 179 of the Record); (v) a motion on Notice filed by the 1st Respondent seeking 180 – 192 of the Record ), respectively. It was in record that, the lower tribunal had addressed its mind to the issue regarding whether or not the pending motions ought to have been argued before considering the petitioner’s application for a pre-hearing conference. According to the lower tribunal.
Our short answer to this argument is that the issues under consideration in this ruling touch on the jurisdiction of the Tribunal to hear the petition. Therefore, these issues have to be decided one way or the other first before any application in this petition can be considered. See MADUKOLU VS. NKEMDILIM (1962) NSCC 374.
I think I can not agree more, with that finding. There is no doubt that the above finding of the lower tribunal was in accordance with paragraph 6(1) of the Practice Directions, 2007 (supra) which provides thus:
“6(1) No motion shall be moved. All motions shall come up of the pre-hearing session except in extreme circumstances with leave of tribunal of Court.” Thus, by virtue of paragraph 6(1) of the Practice Directions, 2007 (supra), it has rather obvious that the lower tribunal was right in declining to entertain the applications in question. In the light of the above reasoning, the lower tribunal was right in holding that the Appellant having failed to apply for eth pre-hearing conference within the stipulated time limit, the petition thereof was deemed to have been abandoned. Both issues 1 and 2 of the Appellant ought to be, and are thus hereby resolved in favour of the Respondents.
It is trite that the issue jurisdiction of court is not only important but also very fundamental in the adjudication of cases before. Thus, where a court lacks jurisdiction to entertain a matter, it fundamentally lacks the vires to adjudicate upon any issue therein. As such the issue of jurisdiction, because of the fundamental nature thereof, can be raised at any time and stage of the proceedings, either in the trial court, the court of Appeal, or even the Supreme Court. See LABIYI VS. ANRETIOLA (1992) 8 NWLR (Part 258) 139; OBADA VS MIL. GOV. OF KWARA STATE (1990) 6 NWLR (Part 157) 482; KOTOYE Vs SARAKI (1994) 7 NWLR (Part 357) 414, respectively.
It may be reiterated that the essence of a pre-hearing session can not be over emphasized. The process of pre-hearing or pre-trial 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 paragraph 3(2) of the Practice Directions, 2007 (supra) thus:
(2) Upon application by a petitioner under subparagraph (1) above, the Tribunal or Court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF007 accompanied by a pre-hearing information sheet as in Form TF008 for the purposes set out hereunder:
(a) 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 adopted to secure its first 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 to expeditious disposal of the petition;
(d) Fixing clear dates for hearing of the petition.
Hence, having regard to the foregoing postulations, and the detailed reasoning and conclusion reached in the lead judgment. I have no hesitation whatsoever in coming to the conclusion that this appeal lacks merit and its accordingly dismissed by me.
Consequently, the ruling of the lower tribunal dated 16/8/07 dismissing the Appellant’s petition NO EPT/LH/IM/13/2007, is hereby affirmed.
I abide by the consequential order of costs of N30,000.00 awarded in favour of the Respondents.
Appearances
Appellant’s Counsel absentFor Appellant
AND
Mr. O.N. Agbodike holding the brief of C. O. C. Akaolishi
Mrs. B. I. AmadiFor Respondent
