CHIEF IGHOYOTA AMORI & ANOR V. EWHERIDO AKPOR PIUS & ORS.
(2011)LCN/4852(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of October, 2011
CA/B/EPT/207/11
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPH 18(1) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT AS REGARDS HOW AN APPLICATION FOR THE ISSUANCE OF PRE-HEARING MUST BE MADE
Paragraph 18(1) of the 1st schedule to the Electoral Act as amended prescribes the mode of activation of the transition to the next stage in an election petition procedure after close of pleadings as follows:- “18(1) within 7 days after the filling and service of the Petitioner Reply on the Respondent or 7 days after the filing and service of the Respondent Reply as the case may the Petitioner shall apply for the issuance of Pre-hearing as in Form TF 007 Paragraph 18(2) provides as follows: “18(2) upon an application by petitioner under sub Paragraph (1) of this paragraph, the tribunal or court shall issue to the petitioner or the legal practitioner if any) a pre-Hearing Notice as is form. TF 007 accompanied by a Pre-Hearing Information Sheet as in Form TF 008”. The question then is – does Paragraph 18(1) envisage an application by way of motion notwithstanding the provisions of Paragraph 47 (2), of the 1st schedule to the Electoral Act 2010 (As amended) which provides thus: “47(2) whereby this 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 an affidavit and shall state under what rule or law the application is brought and shall be served on the Respondent”. Application under paragraph 18(1) is peculiar and cannot be put into the class of application envisaged by Paragraph 47(2). If it is so Form TF007 would not have been prescribed and also Form TF008 which made it compulsory for the Tribunal to issue. The application envisaged to be made to the tribunal as in Form TF007 and further more the application is not meant to be served on the Respondent or to any other person other than the tribunal/Secretary. There is no doubt that Rules of Court are meant prima-facie to be obeyed and no favours should be shown for not obeying the same, the situation here is not whether the rules are obeyed or not but whether the compliance with the rules as competent. In SOLANKE V. SOMEFUN (1974)1 SC 141 (1974) 1 ALL NLR 586: Per Sowemimo JSC at Page 591 said: “Rules of court are meant to be complied with and therefore any party or counsel seeking the discretionary powers of the Court or Judge to be exercised in his favour must bring his case within the provision of the rules on which he purported to make his application. If court fail to discharge their duties in that regard it is but lair and right that the Court should refuse to exercise its discretionary power”. See also YESUF & ANOR V. OBASANJO (2003) 15 NWLR (PART 843). 293 AT 303 The requirement in 18(1) is mandatory and does not suggest the need for any formal motion as if applicants were asking for some special relief from the tribunal. Why will one require a motion to inform the tribunal for the issuance of the Pre-Hearing Notice. See: ISA & ANOR V. TAHIR (unreported) CA/YL/EPT/ADS/HA/2/2011, decided in Yola Division of this court on 6/9/2011, and GEBI V. DAHIRU (unreported) CA/J/EPT/HR/127/2011 delivered in Jos Division of this court. It is therefore our view that an application by a letter and not formal motion will suffice for the application envisaged under paragraph 18(1) of the 1st schedule to the Electoral Act 2010 as amended. PER GEORGE OLADEINDE SHOREMI, J.C.A.
ELECTION PETITIONS: INTERPRETATION OF PARAGRAPH 18(4),OF THE 1ST SCHEDULE TO THE ELECTORAL ACT 2010 (AS AMENDED) AS REGARDS WHETHER THE ELECTION TRIBUNAL HAS THE JURISDICTION TO GRANT AN ORDER OF EXTENSION OF TIME TO APPLY FOR THE ISSUE OF PRE-HEARING NOTICE
Paragraph 18(4), of the 1st Schedule to the Electoral Act 2010 (As amended) provides as follows: “18(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 entertained”. The position as at today is the case of OKEREKE V. YAR’DUA (2008) 12 NWLR (PT. 1120) 95 AT 118 PARA. D-G where the Supreme Court held that “Now although the stipulation under sub-paragraph (4) of the paragraph (3) of the practice directions appear to be harsh on the petitioner by making an order of dismissal of the petition which fore closes any chance for him to represent the petition. It still had to be complied with by the tribunal or court as such steps are a condition precedent to the hearing of any matter in relation to the petition pending before the tribunal or court. Non compliance therefore will strip off the tribunal or court of jurisdiction as one of the factors which confer jurisdiction on a court of law is not complied with”. The dismissal of a petition under this paragraph is tantamount to a final decision as such the tribunal is deprived of the power to relist the petition on its cause list. OKONEAFFIA V. AGWU (2008) 12 NWLR (PT. 1100) 165 AT 187 the oracle had spoken and it spoke rightly. In our view the lower tribunal was right in refusing to extend time for the Petitioner to apply for Pre-Hearing Notice. PER GEORGE OLADEINDE SHOREMI, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. CHIEF IGHOYOTA AMORI
2. PEOPLES DEMOCRATIC PARTY Appellant(s)
AND
1. EWHERIDO AKPOR PIUS
2. DEMOCRATIC PEOPLES PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A.: When the appeal came for hearing on 12/9/2011 and after the adoption of their briefs by parties and arguments canvassed by the parties Respective Counsel this court allowed the appeal and remitted the petition to the lower Tribunal for the petitions to be heard on merit.
The reasons for doing so are hereby set out:
The background of the appeal is that the 1st Appellant was the candidate of the 2nd Appellant who contested election to the Senate to represent Delta Central Senatorial District at the election which took place on the 9th of April, 2011 in Delta State.
The 1st Respondent was the candidate of the 2nd Respondent party and he was declared as the winner of the said election by the 3rd Respondent and duly returned as such.
Being dissatisfied with the said declaration and return, the Appellants filed an election petition before the appropriate tribunal in Asaba. Upon being served with the petition, the Respondents filed their various replies after which the Appellants, as Petitioners, made a written request in the form of a letter addressed to The Secretary of the Tribunal for the issuance of Pre-Hearing Notice.
Based on the said letter, the Secretary duly issued The Hearing Notice for Pre-Hearing Session Form TF007 and the Pre-Hearing Information Sheet Form TF008.
The parties filed their respective answers to the Pre-Hearing information sheet. See pages 226 to 230 and 329 to 331 of the records. Pre-Hearing actually commenced as scheduled by the tribunal and the 1st and 2nd Respondents were duly represented. This was on the 8th of June, 2011. The second session of Pre-Hearing was held on the 23rd of June, 2011. See page 360. The 1st and 2nd Respondents indicated at the second session that they have filed an application challenging the Pre-Hearing procedure.
Through an application dated and filed on 13th June, 2011, the 1st and 2nd Respondents applied for the petition to be struck out for failure of the Petitioner to apply for the issuance of Pre-Hearing Notice.
Through a ruling delivered on the 13th of July, 2011, the Tribunal held that the application for the issuance of the Pre-Hearing Notice ought to have been by way of motion either ex-parte or on notice. The Tribunal further held that the provision is “mandatory and goes to the jurisdiction of the tribunal. It is not a mere irregularity which ordinarily can be waived or cured” (Underlined Mine)
Applying the principle of “Ex Nihilo Nihil Nihil” i.e. that out of nothing, nothing ensues, the tribunal further determined that all subsequent processes filed were nullities.
The Appellants filed a motion for extension of time to file an application for the issuance of Pre-Hearing Notice in the alternative. The case made was that in the event of the tribunal reaching a determination that the application should have been made by way of a motion rather than by a letter, the Appellants should be granted an extension of time within which to so apply rather than for the petition to be dismissed as abandoned.
The tribunal however declined to do so holding that it had no powers to extend time for the application to be made. The petition was thus held to be “abandoned” and dismissed”.
Three grounds of appeal are at page 389 – 391. From the grounds of appeal the following issues were distilled for determination.
(a) Whether on application for issuance of o Pre-Hearing Notice made pursuant to the provision of paragraphs 18(1) of the 1st schedule to the electoral Act 2010 (As amended must be by motion for it to be competent (Ground 1).
(b) Whether the tribunal was right in declining to invoke the provision of paragraphs 53(2) of the 1st schedule to the Electoral Act Ground 2.
(c) Whether the tribunal was right in deciding that it locked jurisdiction to grant an order of extension of time to apply for the issuance of Pre-Hearing Notice (Ground 3).
Learned Senior Advocate for the Appellants Ken Mozia Esq. argued that it is settled law that the word shall, in its ordinary meaning is a command which is obligatory and allows of no discretion.
Refers to ADAMS V. UMAR & 2 ORS (2009) 5 NWLR (pt.1133) AT 101. BASHIRU V. INEC (2009) VOL. 39 WRN 158 AT 173.
He therefore submitted that the tribunal was under a duty or obligation to issue the Pre-hearing notice the moment the application was made. He submitted that the two paragraphs i.e. 18(1) and 18(2), of the Electoral Act 2010 (As amended) do not contemplate, allow or anticipate the filing of a motion praying for the issuance of the forms as that will call for the exercise of discretion of the tribunal on whether to issue the forms or not.
In furtherance of his argument he called in aid the provision of paragraph 47(1) which provides that no motion shall be moved and all motions shall come up at the Pre-Hearing session except in extreme circumstance with the leave of Tribunal/Court.
He submitted that the application which must necessary be made before the Pre-Hearing does not belong to the class of application which can only be taken outside the Pre-Hearing upon showing the existence of extreme circumstance.
He concluded that the ruling of the tribunal on the point is faulty. He relied on OKEREKE V. YAR’ADUA (2008) 12 NWLR {PT. 1100} 142.
He commended the case of ARAFA O. HASSAN V. INEC & ORS (2008) WRN 31. TONY DIMEGWU V. OGUNEWE (2008) 4 LRECN 458.
Where two decisions of this court held that an application made by letter for the Issuance of Pre-Hearing Notice was valid and properly made. Premised on his argument as contained in his brief and the case of NWBODO V. ONOH (1984) (SCNLR) 1 AT 92 he urged the court to resolve the issue in favour of the appellant.
In his response the 1st and 2nd Respondents through their counsel AKPOMUDJE SAN reiterated that rules of court including the practice Direction is there for strict compliance therefore he argued that an application in legal Parlance or court Procedure does not mean a letter written to the court but an application by Motion either ex-parte or on notice.
He relied on the case of ADO V. MEKARA (2008) ALL FWLR (PT. 44) 1208 where it was held that Rules of court are to be obeyed and complied with Stressing his argument he argued further that the Court proceeded to rely on series of authorities which included the following:
i. AKANBI V. ALAO (1989) 3 NWLR (PT 108) 118.
ii. AROMOLARAN V. OLADELE (1990) NWLR (PT. 162) 359
iii. DUIKE V. AKPABUYO LOCAL GOVERNMENT (2006) ALL FWLR (PT. 294) 559.
He submitted that the First Schedule to the Electoral Act is no longer mere Rules of the Honourable Tribunal but Legislation by virtue of its being part of the Electoral Act and by this is a Legislation /Act of the National Assembly.
This Honourable Court and as affirmed by the Supreme Court have repeatedly held that where a legislation lays down a procedure or method for doing an act no other method should be adopted.
He argued further that the Supreme Court in the case of OKEREKE V. YAR’ADUA 2007 12 NWLR (PT. 1100) 95 AT 127 paragraph E. Onnoghen JSC held,
“It is settled law that where legislation lays down a Procedure for doing a thing there should be no other method of doing it”.
This trite position of the law that where the provisions of a statute or Rules of court are very clear and unambiguous, the Honourable Court or Tribunal has a duty to give effect to same without any deviation from the intent and purpose of the provision of the statute. He said he is further fortified by the following cases Law/authorities.
1. ADEDEJI V. NAT. BANK OF NIG. LTD. (1989) 1NWLR (PT.96) 212
2. AMADI V. NNPC (2000)10 NWLR (PT. 674)76
3. ABROAD BANK OF NIG. LTD V. ALHAJI OLAYIWOIA & SONS LTD (2005) 3 NWLR (PT. 912) 434
4. INAKOJU V. ADELEKE (2007) 4 NWLR (PT. 1025)423.
In INAKOJU V. ADELEKE [Supra] the Supreme Court restated the age long position of the law at page 697 – 698 paras. H-B thus
“The Courts are bound to enforce the mandatory Provisions of a substantive law including the constitution. It is the duty of the courts to give effect to legislation. Therefore parties cannot, by consent or acquiescence or failure to object, nullify the effect of a statute or constitution. In other words, it is the duty of a court to enforce mandatory provisions of an enactment.”
The Appellants herein in conceding that an application under the 1st schedule to the Act is by a motion as prescribed by the Act itself proceeded to file a motion for extension of time to apply for the issuance of pre hearing Notice by way of a motion.
Submit that the Appellants having filed the said motion they cannot be heard to be contending at the same time that the application for the issuance of pre hearing Notice should be by a Letter.
The Court proceeded further to hold most firmly at page 506 Paras. C-D.
He urged the court to resolve this issue against the appellants. The 3rd Respondent arguing in the same vein as the 1st and 2nd Respondent said that in legal parlance an application refers to or means a motion either on notice or exparte but does not certainly refer to a letter.
MR IDAYE of counsel referred in paragraphs 47(2) of the 1st schedule to the Electoral Act 2010 as amended. He relied much on the case of ADO V. MEKARA (2009) 9 NWLR PT. 1147 (P. 491) AT 509.
He contested that the appellants having failed to comply with the provision of the Electoral Act 2010 as amended with regards to application for the issuance of pre-hearing notice time cannot be extended for the appellants to apply for same therefore prayed the court to dismiss the appeal.
Paragraph 18(1) of the 1st schedule to the Electoral Act as amended prescribes the mode of activation of the transition to the next stage in an election petition procedure after close of pleadings as follows:-
“18(1) within 7 days after the filling and service of the Petitioner Reply on the Respondent or 7 days after the filing and service of the Respondent Reply as the case may the Petitioner shall apply for the issuance of Pre-hearing as in Form TF 007 Paragraph 18(2) provides as follows:
“18(2) upon an application by petitioner under sub Paragraph (1) of this paragraph, the tribunal or court shall issue to the petitioner or the legal practitioner if any) a pre-Hearing Notice as is form. TF 007 accompanied by a Pre-Hearing Information Sheet as in Form TF 008”.
The question then is – does Paragraph 18(1) envisage an application by way of motion notwithstanding the provisions of Paragraph 47 (2), of the 1st schedule to the Electoral Act 2010 (As amended) which provides thus:
“47(2) whereby this 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 an affidavit and shall state under what rule or law the application is brought and shall be served on the Respondent”.
Application under paragraph 18(1) is peculiar and cannot be put into the class of application envisaged by Paragraph 47(2).
If it is so Form TF007 would not have been prescribed and also Form TF008 which made it compulsory for the Tribunal to issue. The application envisaged to be made to the tribunal as in Form TF007 and further more the application is not meant to be served on the Respondent or to any other person other than the tribunal/Secretary.
There is no doubt that Rules of Court are meant prima-facie to be obeyed and no favours should be shown for not obeying the same, the situation here is not whether the rules are obeyed or not but whether the compliance with the rules as competent. In SOLANKE V. SOMEFUN (1974)1 SC 141 (1974) 1 ALL NLR 586:
Per Sowemimo JSC at Page 591 said:
“Rules of court are meant to be complied with and therefore any party or counsel seeking the discretionary powers of the Court or Judge to be exercised in his favour must bring his case within the provision of the rules on which he purported to make his application. If court fail to discharge their duties in that regard it is but lair and right that the Court should refuse to exercise its discretionary power”.
See also YESUF & ANOR V. OBASANJO (2003) 15 NWLR (PART 843). 293 AT 303
The requirement in 18(1) is mandatory and does not suggest the need for any formal motion as if applicants were asking for some special relief from the tribunal.
Why will one require a motion to inform the tribunal for the issuance of the Pre-Hearing Notice.
See: ISA & ANOR V. TAHIR (unreported) CA/YL/EPT/ADS/HA/2/2011, decided in Yola Division of this court on 6/9/2011, and GEBI V. DAHIRU (unreported) CA/J/EPT/HR/127/2011 delivered in Jos Division of this court. It is therefore our view that an application by a letter and not formal motion will suffice for the application envisaged under paragraph 18(1) of the 1st schedule to the Electoral Act 2010 as amended.
The tribunal therefore was wrong in deciding contrary to the above views. For the above reason we resolved this issue in favour of the appellants.
ISSUE 2 Whether the Tribunal was right in declining to invoke the provision of paragraph 53(2) of the 1st schedule to the Electoral Act 2010 (As amended) which is distilled for Ground 2.
Paragraph 52(2) provides as follows:
“53(2) An application to set aside an election petition or a proceedings resulting there from for irregularity or for being a nullity shall not be allowed unless made within a reasonable and when the party making the application has not taken any further step in the proceedings after knowledge of the defect.
The appellants admitted in their brief that the tribunal did not make any findings on this submission. The tribunal could not have made any finding since it found that there was no competent application for Pre-Hearing Notice and it was mandatory for it to dismiss the petition. Therefore this Issue is of no moment and therefore struck out.
ISSUE 3 Whether the tribunal was right in deciding that it lacked the jurisdiction to grant an order of extension of time to apply for the issue of Pre-Hearing notice.
We have considered the submission of learned counsel in this appeal.
Paragraph 18(4), of the 1st Schedule to the Electoral Act 2010 (As amended) provides as follows:
“18(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 entertained”.
The position as at today is the case of OKEREKE V. YAR’DUA (2008) 12 NWLR (PT. 1120) 95 AT 118 PARA. D-G where the Supreme Court held that
“Now although the stipulation under sub-paragraph (4) of the paragraph (3) of the practice directions appear to be harsh on the petitioner by making an order of dismissal of the petition which fore closes any chance for him to represent the petition. It still had to be complied with by the tribunal or court as such steps are a condition precedent to the hearing of any matter in relation to the petition pending before the tribunal or court.
Non compliance therefore will strip off the tribunal or court of jurisdiction as one of the factors which confer jurisdiction on a court of law is not complied with”.
The dismissal of a petition under this paragraph is tantamount to a final decision as such the tribunal is deprived of the power to relist the petition on its cause list. OKONEAFFIA V. AGWU (2008) 12 NWLR (PT. 1100) 165 AT 187 the oracle had spoken and it spoke rightly.
In our view the lower tribunal was right in refusing to extend time for the Petitioner to apply for Pre-Hearing Notice.
For the main reason that the 1st issue was resolved in favour of the appellants and that we are of the view that the petition should be heard on merit, we allowed the appeal and remitted the case to the lower tribunal for trial. No order as to cost.
RAPHAEL CHIKWE AGBO, J.C.A: I agree.
CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A: I have been privileged to read in draft the reasons for judgment just read by my learned brother G.O. SHOREMI JCA and the reasons set out therein founded our decision to allowed the appeal.
I adopt the reasons as mine.
Appearances
KEN E. MOZIA. (SAN), WITH HIM A. OJO.For Appellant
AND
AKPOMUDJE (SAN), WITH HIM ONOME EGBON FOR 1ST AND 2ND RESPONDENTS
M.A. IDAIYE WITH HIM O.A. ADEYEMI AND 2ND P.E. AIGBOKIA FOR 3RD RESPONDENTFor Respondent
