CHIEF (HON.) ALERUCHI WILLIAMS & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS.
(2011)LCN/4802(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of September, 2011
CA/PH/EPT/10/2011
RATIO
GROUNDS OF APPEAL: EFFECT OF AN ISSUE FOR DETERMINATION NOT DISTILLED FROM ANY GROUND OF APPEAL
It is trite law that any issue not distilled from any ground of appeal is incompetent and must be discountenanced by the court together with the argument advanced thereunder in the consideration of the appeal. See OSENII VS. BAJULU (2009) 40 NSCQR 289 at 309. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
ABANDONED PETITION: DUTY OF THE TRIBUNAL TO DISMISS A PETITION AS ABANDONED WHERE THERE IS NO APPLICATION FOR PRE-HEARING SESSION
It is trite law that a tribunal is under a duty to dismiss a petition as abandoned if there is no application for pre-hearing session as such a petition is deemed abandoned and no application for extension of time to take that step shall be filed or entertained. See OKEREKE v. YAR’ADUA (2008) 12 NWLR 95 at 118. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
STATUTORY PROCEDURE: WHERE A STATUTE LAYS DOWN A PROCEDURE FOR DOING ANYTHING WHETHER NO OTHER METHOD SHOULD BE EMPLOYED IN DOING THE THING
Where a statute lays down a procedure for doing anything no other method is to be employed in doing the thing. See S.C.B. Plc v. A.G ANAMBRA STATE (1992) 1 NWLR (Pt.261) 528 NWANKWO v. YAR’ADUA (2010) 45 WRN 1 at 40; ADESOLA v. ABIOYE & ANOR. (2005) 2 WRN 39 at 96. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF PARAGRAPH 18 (1 – 5) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT 2010 (AS AMENDED) AS REGARDS APPLICATION FOR ISSUANCE OF A PRE-HEARING NOTICE
The answer can be found in paragraph 18 (1 – 5) of the First Schedule to the Electoral Act 2010 (as amended) which reads: “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 Form TF 007. (2) Upon application by a petitioner under subparagraph (1) of this paragraph, the tribunal or court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF007 accompanied by a pre-hearing information sheet as in Form TF008 hearing information sheet as in Form TF008 for- (a) the disposal of all matters which can be dealt with on interlocutory application; (b) giving 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 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 subparagraphs (3) and (4) of this paragraph is final, and the tribunal or court shall be functus officio,” Paragraph 18(1) of the First Schedule states that the petitioner shall apply within 7 days. (a) After the filing and service of the petitioner’s reply on the respondent Or (b) The filing and service of the respondents, reply. Paragraph 18(3) states that the respondent, where the petitioner fails to so apply may bring the application (i) in line with subparagraph 1 i.e. by applying or (ii) by motion which shall be served on the petitioner and returnable in 3 clear days. It follows from the above that initially it is the duty of the petitioner to apply (NOT BY MOTION as only the Respondent is so allowed under paragraph 18 (3). Even then such motion shall be by leave of court in view of paragraph 47(1) of the First Schedule. When however, both fail to do so the tribunal is under a duty to treat the petition as abandoned and shall dismiss the petition. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. CHIEF (HON.) ALERUCHI WILLIAMS
2. ACTION ALLIANCE – Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. THE RESIDENT ELECTORAL COMMISSIONER RIVERS STATE
3. THE ELECTORAL OFFICER, RIVERS STATE
4. THE RETURNING OFFICER, RIVERS STATE
5. PEOPLES DEMOCRATIC PARTY (PDP)
6. HON. CHIBUIKE ROTIMI AMAECHI – Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Election Petition Tribunal at Port Harcourt, Division on the Preliminary objection filed by the Respondents in Petition No.EPT/GOV/PH/4/2011 made on 22/7/2011.
The 1st – 4th Respondents and 6th Respondent had filed a motion on notice to dismiss the petition for the petitioner’s failure to inter alia, apply for pre-hearing notice as required by the Rule.
After listening to all the parties the tribunal held as follows:-
“After the close of pleadings, when the petitioners’ counsel considered an application due wrote a letter to the secretary of the Tribunal on the 28/6/2011 applying for a pre-hearing notice. Upon the receipt of the letter, the Tribunal secretary on the 29/6/2011 wrote a reply to the petitioner’s counsel stating that the letter the counsel wrote for the pre-hearing notice was not a proper application. The letter was served on the counsel on the same 29/6/2011.
The said letter written by the Petitioners’ counsel, Exhibit A, was not acted upon by the Tribunal. No pre-hearing Notice was issued. In spite of the Secretary’s reply to the learned Petitioners’ counsel that the letter was not a proper application and the fact that no such pre-hearing notice forms which the letter purportedly sought, were issued, the petitioner’s did nothing, until the respondents on the 5/7/2011, 6 days after filed these motions praying for the dismissal of the Petition.
The judicial interpretation respect to a letter written for issuance of pre-hearing notice, such as exhibit A in these motions, as we have demonstrated in the cases of ADO vs. MEKARA (supra) and RIRUWAI V. SHEKARAU (supra is undoubtedly clear, that a letter does not amount to an application as envisaged by the Electoral Act. The legal and judicial effect that go with such interpretation which runs through the membrane of the cases from ADO v. MEKARA (supra) decided on 31/3/2008, to RIRUWAI vs. SHEKARAU decided on 10/4/2008, all by the KADUNA DIVISION of the Court of Appeal is that such a Petitioner has not applied for pre-hearing notice as mandatorily required. By the same token, the legal and judicial injunction is that effect must therefore be given to paragraphs 18(3) & (4) of the 1st schedule to the Electoral Act 2010, as amended which are in pari material with paragraph 3 (3) & (4) of the 2007 Practice Directions, under which these decisions were rendered. The injunction leaves no option or discretion to the tribunal to do anything other than dismiss the petition. We are therefore bound by these Judicial Authorities to do just that, and accordingly, this petition. No. EPT/GOV/PH/4/2011, is hereby dismissed vide paragraph 18(3) of the 1st Schedule to the Electoral Act, 2010, having answered the two issues formulated in the negative and against the petitioners.”
It is against the above decision that the appellant filed Notice of Appeal containing 3 grounds of appeal on 10/8/2011.
The grounds of appeal are (the particulars are excluded):-
GROUNDS 1
The lower tribunal erred in law when it held that the petitioner’s letter to the tribunal secretary on 28/6/2011 to apply for issuance of pre-hearing notice was improper and was written out of time.
GROUNDS 2
The lower tribunal erred in low when it dismissed the substantive matter based on rules of court instead of determining the matter on merit and do substantial justice.
GROUNDS 3
That lower tribunal erred in law when it dismissed the petition when it held that “the injunction leaves no option or discretion to the Tribunal to do anything other than to dismiss the petition.” After transmission of record of appeal parties exchanged briefs of argument.
The appellants formulated two issues for determination.
(1) Whether the learned Justice of the Tribunal were right in upholding the objections of the Respondents’ submission for not complying to the rules of court without doing substantial justice to the petition.
(2) Whether the petitioners were given fair hearing on the petition considering the circumstances of the case.
Surprisingly, the appellant having formulated, the two aforestated issues proceeded to argue other issues that are unrelated to the formulated issues and indeed the grounds of appeal filed.
I must state that the appellants’ brief is badly drafted. This has led to preliminary objections from each of the learned counsel for the Respondent’s in their respective brief.
It is trite law that any issue not distilled from any ground of appeal is incompetent and must be discountenanced by the court together with the argument advanced thereunder in the consideration of the appeal. See OSENII VS. BAJULU (2009) 40 NSCQR 289 at 309.Having carefully gone through the entire appellant’s brief and the issues formulated I hold that only issue one as formulated in the brief and which is apparently distilled from ground one of the Grounds of Appeal is worthy of consideration in the light of the above. Where issues postulated by parties an appeal are inappropriate or inadequate having regard to the grounds of appeal filed the court should without any hesitation attempt to identify the appropriate issues in the circumstances of the case. See TFABIYI V. ADENIYI (2000) 5 SC 31 at 42.
I shall proceed to consider this appeal in the light of the above.
In their argument in support of issue one the learned counsel for the appellant submitted that the lower tribunal erred in law by upholding the preliminary objection of the Respondents and dismissing the petition in view of the undetermined motion for extension of time before the Tribunal. He cited several cases including AGBAKOBA V. INEC (2008) 8 NWLR (Pt.1119) 489; and ALLI V. OSAKWE (2009) ALL FWLR (PT.467) 41 at 52.
He submitted that the lower tribunal failed to consider the substantive law and gave credence to the procedural law. He cited YUSUF vs. OBASANJO (2007) 6 NWLR (PT.847) 554. He submitted that dismissing the petition on the ground of applying for the pre-hearing notice was out of time was a mere technicality.
In conclusion he urged the court to set aside the dismissal order of the lower tribunal.
Learned senior counsel for the 1st – 4th Respondents in their brief urged the court to dismiss the appeal because:-
“(1) The grounds of Appeal and all the issues formulated therefrom are incompetent and liable to be struck out.
(2) The Respondents’ motion seeking to dismiss the petition were rightly heard and determined at the stage and time the motion were taken because they raised issues of jurisdiction.
(3) The decision in the case of OHEREHE VS. YAR’ADUA (supra) to the effect that the motions cannot be entertained by an Election Tribunal except at pre-hearing sessions on occasions of extreme circumstances does not Change the position of the law that issues relating to jurisdiction can be raised at any stage of the proceedings.”
Learned Senior Counsel for 5th Respondent, Iphodalo Imadegbelo SAN in his brief urged the court to strike out all issues relating to the proposed additional grounds of appeal which had been struck out.
Learned senior counsel formulated one issue for determination.
*WHETHER OR NOT THE LOWER TRIBUNAL WAS RIGHT IN DISMISSING THE PETITIONERS’ PETITION FOR NON-COMPLIANCE WITH THE PROVISION OF PARAGRAPH 18 (1) OF THE ELECTORAL ACT 2010 (AS AMENDED).”
Learned senior counsel urged the court to disregard the argument of the appellant as being after thought frivolous, baseless and unsubstantiated and to dismiss the appeal in favour of the 5th Respondent. He cited several cases including.
(1) OKEREKE vs. YAR’ADUA (supra)
(2) RIRUWAI VS. SHEKARAU (2008) 12 NWLR (Pt.1100) 142 at 159 and a host of others.
Learned Senior Counsel for the 6th Respondent Lateef O. Fagbemi SAN also filed a notice of preliminary objection.
He formulated one sole issue for determination by the court. It is as follows:-
“Whether the decision of the tribunal dismissing the petition of the Appellants on the ground that it was not brought within time and by prescribed mode was correct having regard to the provision of paragraph 18 of the 1st Schedule of the Electoral Act, 2010 on when and how to apply for a pre-hearing notice.”
Learned senior counsel in his brief finally submitted that the appeal must fail as “it is bedeviled by substance and lack of necessary materials upon which the court could consider it. He urged the court to resolve issues 1 to 3 in favour of the 6th Respondent uphold the judgment of the lower tribunal and dismiss the appeal. He relied on many authorities including RIRUWAI V. SHEKARAU (supra) GARBA ADO V. MAKERA (2009) 9 NWLR (PT.1147) page 491.
I have carefully considered the submission made on both sides by learned counsel.
It is trite law that a tribunal is under a duty to dismiss a petition as abandoned if there is no application for pre-hearing session as such a petition is deemed abandoned and no application for extension of time to take that step shall be filed or entertained. See OKEREKE v. YAR’ADUA (2008) 12 NWLR 95 at 118.
When should the petitioner apply for pre-hearing notice as in Form TF 007? The answer can be found in paragraph 18 (1 – 5) of the First Schedule to the Electoral Act 2010 (as amended) which reads:
“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 Form TF 007.
(2) Upon application by a petitioner under subparagraph (1) of this paragraph, the tribunal or court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF007 accompanied by a pre-hearing information sheet as in Form TF008
hearing information sheet as in Form TF008 for-
(a) the disposal of all matters which can be dealt with on interlocutory application;
(b) giving 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 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 subparagraphs (3) and (4) of this paragraph is final, and the tribunal or court shall be functus officio,”
Paragraph 18(1) of the First Schedule states that the petitioner shall apply within 7 days.
(a) After the filing and service of the petitioner’s reply on the respondent Or
(b) The filing and service of the respondents, reply.
Paragraph 18(3) states that the respondent, where the petitioner fails to so apply may bring the application (i) in line with subparagraph 1 i.e. by applying or
(ii) by motion which shall be served on the petitioner and returnable in 3 clear days.
It follows from the above that initially it is the duty of the petitioner to apply (NOT BY MOTION as only the Respondent is so allowed under paragraph 18 (3). Even then such motion shall be by leave of court in view of paragraph 47(1) of the First Schedule.
When however, both fail to do so the tribunal is under a duty to treat the petition as abandoned and shall dismiss the petition.
Where a statute lays down a procedure for doing anything no other method is to be employed in doing the thing. See S.C.B. Plc v. A.G ANAMBRA STATE (1992) 1 NWLR (Pt.261) 528 NWANKWO v. YAR’ADUA (2010) 45 WRN 1 at 40; ADESOLA v. ABIOYE & ANOR. (2005) 2 WRN 39 at 96.
It seems clear that a community reading of paragraph 18 (1) and paragraph 18 (3)”brings out the fact while paragraph 18 (1) permits applications simplicitier paragraph 18 (3) permits, in respect of respondent applications as opposed to motions or alternatively motions.
Paragraph 18 of the First schedule does not allow motion for dismissal of petition for non-compliance with paragraph 18 (1) by the petition from the Respondent but allows the Respondent when the petitioner fails to bring the said application under paragraph 18 (1). It is the Tribunal itself that has the duty to dismiss the petition should one of the petitioner and respondent fair to apply for pre-trial notice TF007. The Respondent’s duty should be constructive.
How is the petitioner to apply? I am not unaware of the conflicting decisions on this issue. Learned Counsel on both sides have cited several cases including petition No. CA/A/EP/5/2007 HOPE DEMOCRATIC PARTY V. INEC and other decided on 17/11/2009 and the very recent decision of CA/J/EP/HER/127/2011 ALHAJI IBRAHIM GEBI V. DAHIRU & ORS. Decided on 22/8/2011. I have deeply considered the case cited and the reasoning.
I must state that the effect of paragraphs 18 and 47 particularly the word “apply” as used in contradistinction to “motion” as used in paragraph 18(1) and 18(3) were never considered in all the previous decisions cited by learned counsel.
I am with due respect more persuaded by the decision in the recent case of GEBI V. DAHIRU & ORS (supra).
It does appear paragraph 47 (2) and paragraph 18 of the First Schedule do not flow together paragraph 47 (2) states.
“Where by the these Rules any application is authorized to be made to the Tribunal or court such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the respondent.
This subparagraph does not agree with paragraph 18 of the same First Schedule. In a situation like this a construction that will bring an effective result and achieve the manifest purpose of the registration should be preferred to that which would reduce the registration to futility or absurdity. See SUSSEX PEERAGE CLAIM (1844) CLAND FIN 85 at 143, R. V. CITY OF LONDON JUDGE (1892) 1 Q B273 at 290 MANDARA v. A-G FEDERATION (1984) NSCC 221 at 224, AWOLOWO v. SHAGARI (1979) 6 – 9 SC 51 at 65 – 66.
An interpretation that gives paragraph 47 (2) dominance over paragraph 18 will render paragraph 18 (3) absurd in that the words “may bring the application in accordance with subparagraph.
(1) Where the petitioner fails to do so OR by motion would be taken to do violence to the provision of paragraph 47 (2) and this cannot be the intendment of the law.
See ORUBU V. NEC (1988) 5 NWLR (PT. 94) 323 at 347 where UWAIS JSC stated that the rules of the Electoral Act are to be applied to ensure that effect is given to the intendment of the legislature.
I am more fortified in this view when the entire paragraph 47 is read together. Paragraph 47(1) restricts motions to pre-hearing session. Paragraph 18 (1) initiates a process that leads to the commencement of a pre-hearing session. It is the trigger that the petitioner must pull for the pre-hearing session to commence. It predates the pre-hearing session. It must be noted that a pre-hearing session does not automatically commence with the close of pleadings. It therefore follows that paragraph 47 in its application is limited to pre-hearing session and not what comes before the pre-hearing session. For purpose of clarity paragraph 47 of the First Schedule is hereunder quoted.
“47(1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of tribunal or court.
(2) whereby these Rules any application is authorized to be made to the Tribunal or court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the respondent.
(3) Every such application shall be accompanied by a written address in support of the reliefs sought.
(4) where the respondent to the motion intends to oppose the application, he shall within 7 days of the service on him of such application file his written address and may accompany it with a counter affidavit.
(5) The applicant may, on being served with the written address of the respondent file and serve an address in reply on points of law within 3 days of being served and where a counter affidavit is served on the applicant he may file further affidavit with his reply.”
I shall view this appeal in the above light.
The petitioner at the lower tribunal filed their petition on 18/5/2011. The 1st – 4th respondents filed their Reply on 6/6/2011.
By virtue of paragraph 18(1) of the First schedule the petitioners are to apply for form TF007 within 7 days after filing and serving of Respondents Reply. 6th Respondent filed his Reply on 21/6/2011
The petitioner was served with the reply of 1st – 4th Respondents, the 5th Respondent and 6th respondent on 7/6/11, 14/6/11 and 14/6/11 respectively. See paragraph 3 of the affidavit of petitioner on page 263 of record of appeal.
By virtue of paragraph 18 the petition should have applied for FORM TF 007 within 7 days after being served with the processes latest by 22/6/2011.
The petitioner though filed petitioners reply albeit out of time. This is contrary to the express provision of paragraph 16 (2) of the First schedule of the Electoral Act. For clarity’s sake I shall quote paragraph 16 of the First Schedule hereunder:
“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 petitioner’s reply in answer to the new issues of fact, so however that-
(a) the petitioner shall not at this stage be entitled to bring in new facts grounds or prayers tending to amend or add to the contents of the petition filed by him; and
(b) the petitioner’s reply does not run counter to the provisions of subparagraph (1) of paragraph 14 of this Schedule.
(2) The time limited by subparagraph (1) of this paragraph shall not be extended.
(3) The petitioner’s in proving his case shall have 14 days to do so and the respondent shall have 14 days to reply.”
It follows from the above that the petitioners who applied for FORM TF 007 on 28/6/2011 were late and this is fatal to their petition.
I therefore see no merit in this appeal.
I therefore hold that the learned Justices of the Tribunal were right in upholding the objection of the Respondent’s submission for not complying with the Rules of Court. I resolve issue one as formulated by the petitioners in favour of the respondent.
I need to comment however on the sole issue as formulated by learned senior counsel for the 6th Respondent. Having earlier stated that the word “apply” as used in paragraph 18(1) necessarily excludes the Word “motion” as used in paragraph 1 as formulated by the 6th Respondent in favour of the appellants but against the 6th respondent on the mode of applying for pre-hearing notice FORM TF007. An ordinary application (as opposed to motion) will suffice for the purpose of paragraph 18(1).
This appeal succeeds in part.
However, I affirm the decision of the Governorship Election Petition Tribunal holden in Port Harcourt delivered on 27/7/2011. I hold that the petition of the petitioners was rightly dismissed.
I award N30,000.00 as costs in favour of each of the Respondents.
MUSA DATTIJO MUHAMMAD, J.C.A.: I agree.
PAUL ADAMU GALINJE, J.C.A.: I agree.
Appearances
Chief F. O. Onyebuike, with him G. N. Okonkwo and C. N. Wosa Esq.For Appellant
AND
E. C. Ukala SAN with N. F. Odihiri Gaffar (Mrs) Dike Udenna for the 1st – 4th Respondents
Ighodalo Imadegbelo SAN with N. O. O. Oke SAN E. O. Kalu and U. Egbon for the 5th Respondent.
L. O. Fagbemi SAN with I. A. Adechipe SAN A. O. Dare, Ahmed Akanbi, O. A. Diyan and Donald. Atagbo for the 6th Respondents.For Respondent
