CHIEF SHERIFF F.O. OBOREVWORI & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2011)LCN/4827(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of October, 2011
CA/B/EPT/236/2011
RATIO
PRE-HEARING NOTICE: WHETHER THE APPLICATION FOR THE ISSUANCE OF A PRE-HEARING NOTICE CAN VALIDLY BE MADE BY A LETTER
Several divisions of the Court of Appeal including this division have variously held that an application under paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 can validly be made by letter. Indeed, as recently as 17/10/2011, this court, in its reasons for judgment in AJUDUA V. INEC Appeal No, CA/B/EPT/208/2011 (Unreported) held that a letter was sufficient to satisfy the requirement of paragraph (18(1) aforesaid. By the same token, therefore, Petitioners/Appellants’ letter for the issuance of a pre-hearing notice in the petition subject of this appeal dated 21/6/11 at page 167 of the Record of Appeal and acted upon by the lower tribunal at page 168 was within time and sufficiently satisfied the requirement of paragraph 18(1) of the 1st Schedule to the Electoral Act 2010. It was, therefore, superfluous, unnecessary and share waste of time to have filed all the motions that followed that letter and proceeded to argue the motions and deliver rulings on them leading to the dismissal of the petition on the ground that it was abandoned. The lower tribunal in the face of the facts and circumstances of the matter should have known better and held otherwise. PER CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A
WHETHER IN MAKING AN APPLICATION UNDER PARAGRAPH 18(1) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT LEAVE OF THE COURT MUST BE SOUGHT AND OBTAINED
Paragraph 18(1) of the 1st Schedule to the Electoral Act being a specific provision dealing with applications for issuance of pre-hearing notices, it derogates from the general provision in paragraph 47(1) dealing with other motions. This principle of the law on the subject is expressed in the maxim: Generalibus speccialia derogant which means that special provisions derogate from general ones. See SCHERODER & CO. V. MAJOR & CO. (NIG) LTD (1989) 2 NWLR (Pt. 101) 1 at 18 – 19. It is also expressed in the maxim Generale tantum valet in generalibus quantum singulare in singulis which means that what is general prevails as much amongst things general as what is particular amongst things particular. Therefore, by holding as it did that an application for the issuance of a prehearing notice must first seek leave to argue same before a pre-hearing session, the tribunal was importing the general provisions of para graph 47 (1) into the special provisions of paragraph 18(1) which it is enjoined by the above principles of law not to do. It was also putting the cart before the horse. PER CHIOMA EGONDU NWOSU-IHEME (Ph. D), 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 SHERIFF F.O. OBOREVWORI
2) PEOPLES DEMOCRATIC PARTY Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. DEMOCRATIC PEOPLES PARTY
3. MR. JULIUS OKPOKO Respondent(s)
CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A (Delivering the Leading Judgment): The appeal to which these reasons for the judgment delivered on 28/9/11 relates is against the ruling of the National Assembly and Legislative Houses Election Tribunal sitting at Asaba delivered on 9th August 2011 by which that Tribunal dismissed the petition filed by Chief Sheriff Oborevwori of the Peoples Democratic Party as 1st Petitioner, and Peoples Democratic Party (PDP) as 2nd Petitioner against the Independent National Electoral Commission (INEC) as 1st Respondent, Democratic Peoples Party (DPP) as 2nd Respondent, and Julius Okpoko as 3rd Respondent in the election for Okpe Constituency into the Delta House of Assembly held on 26/4/11. The Petitioners had in their petition sought orders nullifying the election and directing the conduct of a fresh election; withdrawing or directing the withdrawal of the Declaration of Results issued in favour of 3rd Respondent; nullifying the entire results in Ward 4 of the Constituency; and directing the 3rd Respondent to vacate the seat he occupied in the State House of Assembly pending the conduct of a fresh election in the Constituency.
The petition was served on each of the Respondents following which the 3rd Respondent filed his reply. 1st Appellant filed a reply to 3rd Respondent’s reply and followed it up with an application by letter of 21/6/11 for the issuance of a pre-hearing notice and a motion on notice for the same purpose. It is worthy to note that the aforesaid letter of application for the issuance of a pre-hearing notice was brought to the attention of the Tribunal Chairman by the Secretary of the Tribunal and the Chairman directed the Secretary to issue pre-hearing notice tor 23/6/11 as borne out by page 168 of the Record of Appeal. 1st Appellant later on 11/7/2011 filed a Motion Exparte also praying for the issuance of a prehearing notice. When the two motions for the issuance of a pre-hearing notice (i.e. the Motion on Notice and the Motion Exparte) came up for hearing on 6/7/2011, 1st Appellant withdrew the motion on notice and argued the Motion Exparte which was granted by the tribunal which had earlier ordered the issuance of a pre-hearing notice.
With the withdrawal by 1st Appellant of the aforesaid motion on notice for the issuance of a pre-hearing notice filed on 21/6/11, the 3rd Respondent filed a motion on notice dated 19/7/11 by which he sought an order setting aside the order of the Tribunal granting the relief for the issuance of a pre-hearing notice contained in the 1st Appellants aforesaid Motion Exparte and an order dismissing the petition for abandonment on the ground that the Motion Exparte filed on 1/7/2011 was filed out of time and the Tribunal had no jurisdiction to make the order for the issuance of a pre-hearing notice based on that motion. The 1st Respondent filed a similar motion.
The lower tribunal took arguments on the motion, and in its ruling delivered on 9/8/2011 allowed both motions and dismissed the petition observing in the process at page 305 of the Record of Appeal, inter-alia as follows:
“Based on the foregoing, we hereby set aside our proceedings and orders made pursuant to the said Motion Exparte for the issuance of prehearing notice. That being so, legally speaking there is no application made pursuant to paragraph 18(1) of the First Schedule to the circumstance the tribunal is left with no option than to apply paragraph 18(3) and (4) to dismiss this petition as an abandoned petition”?
Aggrieved by this decision, the Appellants filed the present appeal on three grounds which as contained at pages 307 – 310 are (without their particulars):
“GROUND 1
ERROR IN LAW
The Honourable Tribunal erred in law and thereby occasioned miscarriage of justice when it held as follows:
From the foregoing therefore we are in total agreement with the learned counsel to the 3rd Respondent that pleading were deemed closed from the 22/06/2011 , and not 01/07/2011 as contended by the Petitioners’ counsel.
That being the case, it only follows that the said motion ex-parte was not filed within 7 days after the close of pleadings as required by paragraph 18 (1) of the first schedule to the Electoral Act 2010 (as amended). It was therefore filed out of time, and to that extent it is incompetent, and we are so hold.
GROUND II
ERROR IN LAW
The Tribunal erred in law when it assumed jurisdiction to set aside an order previously made by it for issuance of pre-hearing notice.
GROUND III
ERROR IN LAW
The Tribunal erred in law and thereby occasioned miscarriage of justice when it held thus:
Having said so as a fact the petition (sic) exparte dated and filed on 01/07/2011, for the issuance of pre-hearing notice and moved outside the pre-hearing session without the leave of the Tribunal sought and obtained the motion exparte is incompetent and thereby robs this Tribunal of its jurisdiction to have had and determined same.
From the foregoing grounds, Appellants distilled three issues for determination as-
(i) WHETHER THE LOWER TRIBUNAL WAS RIGHT WHEN IT ASSUMED JURISDICTION AND SET ASIDE ITS PREVIOUS ORDER FOR ISSUANCE OF PRE-HEARING NOTICE. (GROUND 2)
(ii) WHETHER THE LOWER TRIBUNAL WAS RIGHT WHEN IT HELD THAT THE APPELLANTS REQUIRED LEAVE TO APPLY FOR THE ISSUANCE OF PREHEARING NOTICE OUTSIDE THE PREHEARING SESSION AND DISMISSED THE PETITION AS ABANDONED. (GROUND 3)
(iii) WHETHER THE LOWER TRIBUNAL WAS RIGHT WHEN IT HELD THAT THE APPELLANTS WERE OUT OF TIME AS AT 01/07/2011 WHEN THEY APPLIED FOR THE ISSUANCE OF PREHEARING NOTICE. (GROUND 1)
The 1st Respondent adopted the foregoing three issues identified by the Appellants while the three issues set out in the 2nd and 3rd Respondent’s brief of argument are similar to if not identical with the issues set out by the Appellants. However compressed in their nature, content, essence and import, these three issues come to this;
Whether the tribunal was right in dismissing the petition of the Appellants for abandonment having regard to the facts and circumstance of this matter.
All the arguments of counsel in this appeal revolve around this singular issue.
In his argument in support of the appeal, learned counsel for the Appellants, Mr. Asala, in summary, contended that the lower tribunal was wrong to have set aside its order for the issuance of pre-hearing notice because it had jurisdiction to make the order for the issuance of the notice. He drew a distinction between an order made with jurisdiction and one made without jurisdiction. In the former, the order would be valid and can only be set aside on appeal if it was erroneous. The court that made the order could not; he said revised its order to set it aside. In the latter, the order, he argued, would be void and the court that made it could set it aside. In the instant case, he contended, the lower tribunal had the jurisdiction to make the order for the issuance of a pre-hearing notice and having made it, the only option by an aggrieved party was one of appeal if it considered it erroneous. Counsel further argued that it was not the law that a party must first obtain leave of the tribunal before applying for the issuance of a pre-hearing notice outside the pre-hearing session counsel argued that paragraph 18(1) of the First Schedule to the Electoral Act 2011 was a specific provision intended to deal with issuance of pre-hearing notices as against paragraph 47 (1) of the same schedule which is a general provision governing all other motions. Learned counsel then argued that by their letter of 21/6/11 requesting for the issuance of a prehearing notice the Appellants had satisfied the requirements of paragraph (18)(1) of the 1st Schedule to the Electoral Act. The Appellants, in the premise were, therefore, not out of time on this score. Counsel then went on to argue that computation of time would commence from 1/7/2011 when the lower tribunal granted 1st Respondent motion for extension of time to file his reply and deemed the reply filed with the motion as properly filed.
The arguments of each of the learned counsel for the 1st Respondent, Mr. Oserada, and for the 2nd and 3rd Respondents, Mr. Egbon were identical and followed the same pattern and tone. In summary, their arguments in reply, were that the lower tribunal was right in setting aside its order of 6/7/11 by which it ordered the issuance of a pre-hearing notice on the ground that the Motion Exparte filed by the Appellants on 1/7/11 upon which that order was made was filed out of time. Therefore the order was void and the tribunal was entitled ex debito justitiae to have it set aside on the motions of the 1st Respondent and 2nd and 3rd Respondents dated 19/7/11 and 28/7/11 respectively by virtue of paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010. Both counsel further argued that that leave was required before the Motion Exparte filed by the Appellants for the issuance of a pre-hearing notice could be heard outside the pre-hearing session by virtue of paragraph 47(1) of the 1st Schedule to the Electoral Act and since no such leave was obtained, the hearing of the motion and the order made thereon outside the pre-hearing session were null and void and of no effect.
The resolution of this issue is simple and straightforward. It appears to me that the bulk of the arguments at the lower tribunal on the motions to dismiss the petition of the Petitioners/Appellants, the ruling of the tribunal on those motions and the arguments of counsel before us in this appeal save those of counsel for the Appellants lost sight of the application of the petitioners/Appellants by letter dated 21/6/11 at page 167 of the Record of Appeal and the action of the tribunal at page 168 thereof. If all the counsel in the matter, particularly counsel for 1st and 2nd and 3rd Respondents had painstakingly adverted to this aspect of the case and the lower tribunal had also adverted to it and brought its full import, impact and essence into play in this case, the effort, energy and time dissipated in the matter would have been minimized, and indeed abated
Page 167 of the Record of Appeal clearly shows that the Appellants, as stated in paragraph 2.05 at page 3 of their brief of argument, applied for the issuance of a pre-hearing notice on 21/6/11 upon the service of the 3rd Respondent’s reply to the petition and the filing of the Appellants’ reply thereto. The 3rd Respondent’s reply was filed on 16/6/11 as shown at page 61 of the Record of Appeal. The Petitioners filed their reply thereto on 21/6/11 as shown at pages 153 and 160 of the Records. Therefore whether calculated from 16/1/11 or 21/6/11, the application (letter) of 21/6/11 for the issuance of a pre-hearing notice was made within the 7 (seven) days prescribed by paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010. It is also pertinent to note that the tribunal acted on the letter of the Petitioners/Appellants dated 21/6/11 for the issuance of prehearing notice as shown at page 168 of the Record of Appeal by directing its Secretary to issue a pre-hearing notice.
Now neither the Petitioners/Appellants’ said letter of 21/6/11 nor the directive for the issuance of a pre-hearing notice based on letter was set aside. In other words, at the time of the motions for the issuance of a prehearing notice and other motions on the issue were filed and argued, both the letter and the directive aforesaid were subsisting.
Several divisions of the Court of Appeal including this division have variously held that an application under paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 can validly be made by letter. Indeed, as recently as 17/10/2011, this court, in its reasons for judgment in AJUDUA V. INEC Appeal No, CA/B/EPT/208/2011 (Unreported) held that a letter was sufficient to satisfy the requirement of paragraph (18(1) aforesaid. By the same token, therefore, Petitioners/Appellants’ letter for the issuance of a pre-hearing notice in the petition subject of this appeal dated 21/6/11 at page 167 of the Record of Appeal and acted upon by the lower tribunal at page 168 was within time and sufficiently satisfied the requirement of paragraph 18(1) of the 1st Schedule to the Electoral Act 2010. It was, therefore, superfluous, unnecessary and share waste of time to have filed all the motions that followed that letter and proceeded to argue the motions and deliver rulings on them leading to the dismissal of the petition on the ground that it was abandoned. The lower tribunal in the face of the facts and circumstances of the matter should have known better and held otherwise.
One more point before I conclude. It was contended by counsel for the Respondents that leave was required before a motion filed for the issuance of a pre-hearing session could be heard outside the pre-hearing session. By virtue of paragraph 47 (1) of the 1st Schedule to the Electoral Act. Even though a resolution of this point is not now necessary having regard to the fact that I have held that a letter as the one in this case is sufficient to satisfy the provisions of paragraph 18(1) aforesaid and a letter is not a motion, I must state for the avoidance of doubt and ex abundante cautela, that while paragraph 18(1) deals specifically with applications (either by letter or by motion) for the issuance of pre-hearing notices, paragraph 47(1) deals generally with motions (and I dare say other motions) in election petitions. In my view, it is indeed, an application for the issuance of a pre-hearing notice, especially when made by letter, and the issuance of that notice that calls up, generates and sets in operation a pre-hearing session. In other words it is the pre-hearing notice that calls a pre-hearing session into play and it is an application for the issuance of a prehearing notice that calls the issuance of a pre-hearing notice into play for a pre-hearing session to commence. There are, therefore, three steps in the process. First: an application for the issuance of a pre-hearing notice. Second: the issuance of a pre-hearing notice. Third: the pre-hearing session. The first and second steps must first be exhausting before the third. It cannot, therefore, be seriously contended that an application for the issuance of a pre-hearing notice which from the above analysis is one of the primary steps in the generation of a pre-hearing session will be heard in a session which it has itself generated. That will be putting the cart before the horse. It will be wrong to do so because it is the horse that draws the cart. Here the horse is the application to issue a pre-hearing notice and the issuance of that notice. The cart is the pre-hearing session.
Paragraph 18(1) of the 1st Schedule to the Electoral Act being a specific provision dealing with applications for issuance of pre-hearing notices, it derogates from the general provision in paragraph 47(1) dealing with other motions. This principle of the law on the subject is expressed in the maxim: Generalibus speccialia derogant which means that special provisions derogate from general ones. See SCHERODER & CO. V. MAJOR & CO. (NIG) LTD (1989) 2 NWLR (Pt. 101) 1 at 18 – 19. It is also expressed in the maxim Generale tantum valet in generalibus quantum singulare in singulis which means that what is general prevails as much amongst things general as what is particular amongst things particular. Therefore, by holding as it did that an application for the issuance of a prehearing notice must first seek leave to argue same before a pre-hearing session, the tribunal was importing the general provisions of para graph 47 (1) into the special provisions of paragraph 18(1) which it is enjoined by the above principles of law not to do. It was also putting the cart before the horse.
In the premise, the issue in this appeal is resolved in favour of the Appellants against the Respondents. The Grounds of Appeal succeed. It was for the foregoing reasons that we allowed the appeal when it came up on 28/9/11.
RAPHAEL CHIKWE AGBO, J.C.A: I Agree.
GEORGE OLADEINDE SHOREMI, J.C.A: I have had the privilege of reading in draft the Judgment read by me learned brother, NWOSU-IHEME, JCA. I agree with the reasons given and I have nothing to add. I adopt the reasons given as mine. I also allow the appeal as meritorious.
I also agree with the consequential orders made therein.
Appearances
AYO ASALAFor Appellant
AND
A. ODAFE OSERADA
A. AKPOMUDJE SAN for the 2nd & 3rd Respondents with him O. EGBON.For Respondent
