DR ARTHUR ARGUNCHA NWANKWO & ORS V. ALHAJI UMARU MUSA YAR’ADUA & ORS
(2011)LCN/4391(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2011
CA/A/EP/06/2007
RATIO
STATUTORY PROVISION: PROVISION OF PARAGRAPH G OF THE PRACTICE DIRECTIONS 2001 AS TO THE STEPS THAT MUST BE FOLLOWED FOR A PRE-HEARING SESSION
There is no doubt that the Practice Directions 2001 (hereinafter referred to as “the Practice Directions) applies to Presidential Election which is the subject matter of this Petition. Paragraph G of the Practice Directions prescribes the steps which must be followed for the pre-hearing session. It is set out as follows:- “3(i) 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 the pre-hearing notice as in Form TF007. (2) Upon application by a Petitioner under paragraph (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 purpose set out hereunder. (a) Disposal of all matters which can be dealt with on interlocutory Application; (b) Giving such direction as to the future course of the Petition as appears best adapted to secure its just, expeditious and economical disposal in view of the urgency of Election Petition. (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 expeditious disposal of the Petition. (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 Petitioner and, returnable in three clear days, apply for an order to dismiss the Petition. (6) 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.” It is very clear that by virtue of paragraph 3(1) and (2) of the Practice Directions, 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. Upon an application made by a Petitioner for a pre-hearing session, 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 purpose set out as business to be done in the pre-trial session. PER JIMI OLUKAYODE BADA, J.C.A
INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPH 6(2) OF THE PRACTICE DIRECTIONS 2001 AS TO WHETHER AN APPLICATION FOR PRE-HEARING NOTICE MUST BE BY WAY OF MOTION AND SUPPORTED BY AN AFFIDAVIT
In paragraph 6(2) of the Practice Directions, the manner in which an application for issuance of the pre-hearing notice as in Form TF007 was clearly stated. It is reproduced as follows:- Paragraph 6(2) “Where by these Direction 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 Respondents.” It is axiomatic and mandatory that by virtue of paragraph 6(2) of the practice Directions, any application authorized to be made to Tribunal or Court shall be by way of motion on notice which shall be served on the Respondent. It is therefore necessary to comply with the said paragraph in view of the fact that it cannot be circumvented. My view above is supported by the following cases:- -Riruwai v. Shekaruru (supra); -Ojugbele v. Lamidi (supra); -Boni Haruna v. Modibo (supra). PER JIMI OLUKAYODE BADA, J.C.A
APPLICATION FOR PRE-HEARING SESSION: WHERE NEITHER THE PETITIONER NOR THE RESPONDENT FILES AN APPLICATION FOR PRE-HEARING SESSION, WHETHER THE TRIBUNAL OR COURT IS UNDER A DUTY TO DISMISS THE PETITION AS ABANDONED AND NO APPLICATION FOR EXTENSION OF TIME TO TAKE THAT STEP SHALL BE FILED OR ENTERTAINED
…the decision of the Supreme Court in the case of:- -Okereke v. Yar’adua & 34 Others (2008) 4 – 5 S. C. Part 1 Page 206 at 225 Paragraph 5 where Muhammed JSC held as follows:- “It has not been clear for me to decipher from the record of appeal, nor from the Counsel’s submission, whether all the steps stipulated above were followed by parties, especially the Petitioner/Applicant. Secondly, sub-paragraph 4 of paragraph 3 as quoted above, makes it mandatory that where neither the Petitioner nor the Respondent files an application for pre-hearing session, the Tribunal or Court is under a duty to dismiss the Petition as abandoned and no application for extension of time to take that step shall be filed or entertained. Now, although the stipulation under subparagraph 4 of paragraph 3 of the Practice Directions appears to me to be harsh on the Petitioner by making an order for dismissal of the Petition which forecloses 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 decision of the Supreme Court above was followed by this Court in the case of:- -Hope Democratic Party v. INEC & 3 others Judgment delivered on 17th November 2009 in CA/A/A/EP/5/2007 (Unreported). See also the case of:- -Buhari vs. INEC (2009) All FWLR Part 459 at Page 419. PER JIMI OLUKAYODE BADA, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
(1) DR ARTHUR ARGUNCHA NWANKWO
(2) COMRADE MUHAMMED ABDULAHI
(3) PEOPLES MANDATE PARTY (PMP) Appellant(s)
AND
(1) ALHAJI UMARU MUSA YAR’ADUA
(2) DR GOODLUCK JONATHAN
(3) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
(4) CHIEF ELECTORAL OFFICER AT THE PRESIDENTIAL ELECTION
(5) CHIEF RETURNING OFFICER AT THE PRESIDENTIAL ELECTION
(6) RESIDENT ELECTORAL COMMISSIONER ABIA STATE
(7) RESIDENT ELECTORAL COMMISSIONER ADAMAWA STATE
(8) RESIDENT ELECTORAL COMMISSIONER ADAMAWA STATE
(9) RESIDENT ELECTORAL COMMISSIONER BAUCHI STATE
(10) RESIDENT ELECTORAL COMMISSIONER BAYELSA STATE
(11) RESIDENT ELECTORAL COMMISSIONER BENUE STATE
(12) RESIDENT ELECTORAL COMMISSIONER BORNO STATE
(13) RESIDENT ELECTORAL COMMISSIONER CROSS RIVER STATE
(14) RESIDENT ELECTORAL COMMISSIONER DELTA STATE
(15) RESIDENT ELECTORAL COMMISSIONER EBONYI STATE
(16) RESIDENT ELECTORAL COMMISSIONER EDO STATE
(17) RESIDENT ELECTORAL COMMISSIONER EKITI STATE
(18) RESIDENT ELECTORAL COMMISSIONER ENUGU STATE
(19) RESIDENT ELECTORAL COMMISSIONER GOMBE STATE
(20) RESIDENT ELECTORAL COMMISSIONER IMO STATE
(21) RESIDENT ELECTORAL COMMISSIONER JIGAWA STATE
(22) RESIDENT ELECTORAL COMMISSIONER KADUNA STATE
(23) RESIDENT ELECTORAL COMMISSIONER KANO STATE
(24) RESIDENT ELECTORAL COMMISSIONER KATSINA STATE
(25) RESIDENT ELECTORAL COMMISSIONER KEBBI STATE
(26) RESIDENT ELECTORAL COMMISSIONER KOGI STATE
(27) RESIDENT ELECTORAL COMMISSIONER KWARA STATE
(28) RESIDENT ELECTORAL COMMISSIONER LAGOS STATE
(29) RESIDENT ELECTORAL COMMISSIONER NASARAWA STATE
(30) RESIDENT ELECTORAL COMMISSIONER NIGER STATE
(31) RESIDENT ELECTORAL COMMISSIONER OGUN STATE
(32) RESIDENT ELECTORAL COMMISSIONER ONDO STATE
(33) RESIDENT ELECTORAL COMMISSIONER OSUN STATE
(34) RESIDENT ELECTORAL COMMISSIONER OYO STATE
(35) RESIDENT ELECTORAL COMMISSIONER PLATEAU STATE
(36) RESIDENT ELECTORAL COMMISSIONER RIVERS STATE
(37) RESIDENT ELECTORAL COMMISSIONER SOKOTO STATE
(38) RESIDENT ELECTORAL COMMISSIONER TARABA STATE
(39) RESIDENT ELECTORAL COMMISSIONER YOBE STATE
(40) RESIDENT ELECTORAL COMMISSIONER ZAMFARA STATE
(41) RESIDENT ELECTORAL COMMISSIONER FEDERAL CAPITAL TERRITORY ABUJA Respondent(s)
JIMI OLUKAYODE BADA, J.C.A (Delivering the Leading Ruling): This Ruling is in respect of the motion filed by the 1st, 2nd and 3rd Petitioners/Applicants on 1st day of February 2011 and the objections filed by the 1st and 2nd Respondents and that of 3rd to 41st Respondents in relation to the said motion.
Briefly, the facts of this case are that on the 18th day of May 2007 the Petitioners filed a Petition challenging the validity of the Presidential Election held on the 21st day of April 2007.
The 3rd to 41st Respondents filed a Preliminary Objection challenging the competence of the Petition at the Presidential Election Tribunal in this Court.
The objection was based among others on the fact that it was incompetent for failing to comply with the provisions of paragraphs 4(1) (a), 4(2) and 4(4) of the First Schedule to the Electoral Act 2006.
At the conclusion of hearing of the objection by the Tribunal, the Petition was struck out.
The Petitioners appealed to the Supreme Court. On the 5th day of March 2010, the Court allowed the appeal and ordered that the Petition be heard by another panel to be constituted by the President of the Court of Appeal.
This application filed by 1st, 2nd and 3rd Petitioners/Applicants on 1/2/2011 prayed for the following reliefs:-
“(1) An order striking out the name of the 1st Respondent who is now deceased.
(2) An order for the accelerated hearing of the petition.
(3) An order of interlocutory injunction restraining the 3rd to 41st Respondents whether by themselves or through their agents or privies from conducting any fresh Presidential Election in Nigeria on 9th April 2011 or any other date or otherwise taking any steps or further steps whatsoever and howsoever towards the conduct of any such election for the office of President of Nigeria pending the determination of this appeal.
(4) An order of interlocutory injunction restraining the 2nd Respondent from presenting himself or allowing himself to be presented to the 3rd Respondent or any other authority as a candidate in any presidential Election to be held in Nigeria on any date pending the determination of this Petition.
AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.”
The application is supported by a 12 paragraph affidavit, pertinent paragraphs of which are 2 to 12 set out as follows:-
“(2) That I have the consent and mandate of the Petitioners and my employers to depose to this affidavit.
(3) That the Petitioners filed this Petition on 18th May 2007 to challenge the validity of the Presidential Election held on 21st April 2007 in which the 3rd Respondent announced the 1st and 2nd Respondents as President and Vice President elect respectively of the Federal Republic of Nigeria.
(4) That the 1st Petitioner and 2nd Petitioner were the Presidential and Vice Presidential candidates of the 3rd Petitioner in the said election.
(5) That the Petition was struck out by the Court of Appeal in a Ruling delivered in September 2007.
(6) That the Petitioners promptly appealed the Ruling to the Supreme Court of Nigeria which on 5th March solo upheld the said appeal as meritorious by declaring the aforesaid Ruling of the Court of Appeal as null and void having been delivered without requisite jurisdiction.
(7) That the Supreme Court consequently remitted the Petition to the Court of Appeal to be tried on the merit by a new panel of Justices to be constituted. The Supreme Court decision is reported in (2010) 12 NWLR (Pt 1209) 518 and (2010) 3 – 5 S. C. (Pt. III) among other Law Reports.
(8) That without waiting for the determination of this Petition the 3rd Respondent has already fixed a date for the conduct of yet another Presidential Election on 9th April 2011.
(9) That the Petitioners informed me and I verily believe as follows:-
(i) That this Petition will be rendered nugatory and a mere academic exercise if the Respondents are not restrained from conducting any new Presidential election pending the determination of this Petition.
(ii) That the Petitioners would suffer irreparable injury if the Respondents are not restrained as the Petitioners are already prepared for a re-run Presidential Election in the event of the likely success of this Petition.
(iii) That holding a Presidential Election in Nigeria without determining this Petition will amount to denying the Petitioners and their supporters their constitutional right to participate in such exercise.
(iv) That the Petitioners made every effort to ensure the expeditious hearing of their Petition from the date of filing in May 2007 to date and cannot be accused of any willful delay in prosecuting their Petition.
(v) That millions of the supporters of the Petitioners are eagerly awaiting the outcome of this Petition in order to participate in a re-run Presidential Election as was the case in the successful Gubernatorial Election Petitions in such States as Cross River, Delta, Adamawa and Ekiti States among others.
(10) That the 1st Respondent died on 5th May 2010 and the 2nd Respondent succeeded him as President on the basis of the disputed election held on 21st April 2007.
(11) That it will be in the interest of Justice to grant an accelerated hearing of this Petition.
(12) That none of the Respondents will be prejudiced by this Application.”
There is no Counter affidavit in opposition to this application. But the learned Senior Counsel for the 1st and 2nd Respondents in response to the application filed a Notice of Preliminary Objection to challenge the Jurisdiction of this Court to entertain the Petition and other interlocutory applications filed by the Petitioners.
The learned Senior Counsel for the 3rd to 41st Respondents also filed a Notice of Preliminary Objection in which he prayed among others for the dismissal of the Petition No: CA/A/EP/6/07 for failure to comply with the mandatory rules of this Court relating to pre-hearing.
In compliance with paragraph 6(3) of the Election Tribunal and Court Practice Directions 2007 all the parties have filed their written addresses in respect of their applications.
At the hearing, learned Senior Counsel for the 1st and 2nd Respondents applied for leave to rely on the address he filed in support of his Notice of Preliminary Objection against the application filed on behalf of the Petitioners which was earlier withdrawn and struck out on 3/3/2011.
The learned Counsel for the Petitioners/Applicants did not oppose the application by learned Senior Counsel for 1st and end Respondents to rely on the earlier address filed on 25/1/2011 in support of his notice of Preliminary Objection to the Petitioners/Applicant application which was withdrawn and struck out on 3/3/2011.
Since the learned Counsel for the Petitioners has filed a similar application to the application withdrawn and struck out on 3/3/2011 coupled with the fact that he is not opposed to the use of the earlier address filed in support of the Notice of Preliminary Objection against the application withdrawn and struck out on 3/3/2011, leave is accordingly granted to learned Senior Counsel for the 1st and 2nd Respondents to rely on the address in support of the Notice of Preliminary Objection filed on 25/1/2011 against the present application filed on behalf of the Petitioners which is similar to that which was struck out on 3/3/2011.
In moving the application, learned Counsel for the Petitioners referred to the relief sought and the 12 paragraphs affidavit in support of the application as well as the written address attached to it.
He adopted the written address as his argument in support of the application.
He submitted that since there is no counter affidavit the averments in the affidavit in support of the application are uncontradicted.
He urged this Court to grant the application.
In their response to the application, the learned Senior Counsel for the 1st and 2nd Respondents and learned Senior Counsel for the 3rd to 41st Respondents have both filed Notices of Preliminary Objection to the Petitioners application. For convenience sake I will take the objections of learned Senior Counsel for the 3rd to 41st Respondents first.
The learned Senior Counsel for the 3rd to 41st Respondents referred to the application for the dismissal of the Petition in which he prayed for the following reliefs:-
“(1) An order setting aside the hearing of pre-hearing session and the pre-hearing information sheet issued by the Secretary/Registrar of this Court on the 18th day of January 2011 for want of fulfillment of a condition precedent.
(2) An order dismissing Petition No: CA/A/EP/6/07, the same having been abandoned by the Petitioners by virtue of their failure to comply with mandatory rules of this Honourable Court relating to pre-hearing.
And for such further orders(s) as this Honourable Court may deem fit to make in the circumstances.”
The Grounds upon which the motion is brought are:-
(1) Whereby the Election Petition and Court Practice Direction 2007 any application is directed to be made to this Honourable Court such application shall be made by motion on notice.
(2) Neither the Petitioners nor the Respondents to this Petition have applied for the issuance of pre-hearing notice as in Form TF007 as required under paragraph 3 sub paragraphs 1 – 5 of the Election Petition and Court Practice Directions, 2007.
(3) It is mandatory that where neither the Petitioners nor the Respondents apply for a pre-hearing notice, the Tribunal or Court is under a duty to dismiss the petition as abandoned and no extention of time to take that step shall be filed or entertained.
(4) The hearing notice for pre-hearing session and the pre-hearing information sheet issued by the Secretary/Registrar of this Court on the 18th day of January 2011 were issued without jurisdiction.
The notice of Preliminary Objection is supported by an affidavit of 10 paragraphs pertinent paragraphs of which are paragraphs 2 to 9 set out as follows:-
“(2) I have the consent and authority of the 3rd – 41st Respondents and of my employers to depose to this affidavit.
(3) I am aware that the Respondents have filed their Replies to his Petition and the Petitioners have since been served with the Replies.
(4) In response to the said Replies filed by the Respondents, the Petitioners filed two Replies on the 28th day of August, 2007 which were served on all the Respondents on the same day.
(5) On the 5th day of March 2010 the Supreme Court remitted the case to this Honourable Court for trial following the Judgment of that Court upholding the appeal of the Petitioners against the order of this Honourable Court striking out the Petition.
(6) Time continued or began to run for the Petitioner to comply with the rules of this Honourable Court relating to pre-hearing on the 6th of March 2010.
(7) Since the 6th day of March 2010 till date the Petitioners have not applied to this Honourable Court.
(8) On the 18th day January, 2010 the Secretary/Registrar of this Court, without the required application for pre-hearing notice from any of the parties to this petition issued and served a Hearing Notice for Prehearing Session and a Pre-hearing Information Sheet on the 3rd – 41st Respondents. Copies of the Hearing Notice and Information Sheet are here shown to me and marked as Exhibits A and B respectively.
(9) I verily believe that the Petitioners have abandoned their Petition and there was no basis for the issuance of the Pre-Hearing Notice and the Pre hearing Information Sheet.”
The learned Counsel for the Petitioners/Applicants/Respondents opposed the application and relied on 31 paragraphs counter affidavit, pertinent paragraphs of which are 3 to 30 reproduced as follows:-
“(3) That I have seen the Affidavit of Okwa Murphy in support of the motion filed on behalf of the 3rd – 41st Respondents dated 25th January 2011.
(4) That paragraphs 6, 7, 8 and 9 of the Affidavit are NEITHER TRUE NOR CORRECT.
(5) That the Petitioners in this case filed the Petition on 18th May 2007 and the Respondents were dully served the following day.
(6) That after much delay, the 3rd – 41st Respondents filed their reply on 2nd August 2007.
(7) The 3rd – 41st Respondents also filed a Notice of Preliminary Objection on the said 02/08/2007 which was served on the Petitioner’s Counsel in Court on 13/7/2007.
(8) The 1st and 2nd Respondents similarly filed their Reply after much delay on 21/08/07.
(9) The 1st and 2nd Respondents also filed a motion dated 21/08/07.
(10) The Petitioners filed a Reply dated 27/8/07 to the Reply of 3rd – 41st Respondents.
(11) The Petitioners also filed a Reply dated 27/8/07 to the Reply of the 1st and 2nd Respondents.
(12) That without waiting for any Pre-hearing, the Honourable Court peremptorily struck out the Petition on 03/09/2007.
(13) That the Petitioners consequently appealed to the Supreme Court which unanimously upheld the said appeal in a considered Judgment delivered by the full court on 05/03/2010.
(14) That the apex Court while allowing the appeal held inter alia “In conclusion, the appeal is allowed for being meritorious. The Ruling of the lower Court delivered on the 3rd day of September 2007 is hereby set aside for being null and void, the same having been rendered without jurisdiction. The matter is consequently remitted to the lower Court to be dealt with according to law by another panel to be constituted by the President of the Court of Appeal.”
(15) That after the Supreme Court Judgment on Friday, 05/03/2010, the Petitioner’s Counsel promptly on the following working day, Monday 08/03/2010 addressed a letter to the President of the Court of Appeal at Abuja forwarding the Certified True Copy of the Supreme Court Judgment and applying for the reconstitution of a fresh panel to try the Petition. A copy of the letter which was personally delivered by my principal, Nnabuike Edechime Esq. accompanied by me is attached herewith marked Exhibit VC1.
(16) That after waiting for over one month and no action had been taken, our law firm addressed another letter dated 19/04/2010 to the President of the Court of Appeal at Abuja, copy of which is attached herewith marked Exhibit VC2.
(17) That after several follow-up visits by my Principal, Nnabuike Edechime Esq. accompanied by me to the Chief Registrar’s Office at the Court of Appeal Headquarters Abuja for the reconstitution of a panel to hear the Petition we received a letter dated 30/04/2010 from the Honourable President of the Court of Appeal stating as follows:-
“With reference to your letter of 8th March 2010, I have not been able to set up a panel to hear your petition because the relevant enrolled order has not been forwarded from the Supreme Court notwithstanding several visits to the Supreme Court by the Assistant Chief Registrar (Election Petition). In the Circumstance, no action will be taken until an enrolled, order is forwarded to this Court.” A copy is attached herewith as Exhibit VC3.
(18) That upon the receipt of Exhibit VC3, we followed the matter up at the Supreme Court and even had to write a formal request to the Honourable Chief Justice soliciting his intervention to ensure that the enrolled order is forwarded to the Court of Appeal. A copy of the letter dated 11/05/2010 is attached herewith marked Exhibit VC4.
(19) That we finally succeeded through our efforts to obtain an enrolled order of the Judgment from the Supreme Court on 22/06/2010 and we accompanied the Supreme Court Bailiff, Mr. Idris to serve same on the Chief Registrar of the Court of Appeal the same day. A copy of the enrolled order is attached herewith marked Exhibit VC5.
(20) That two weeks later, on 05/07/2010, we addressed another letter to the Court of Appeal to intimate the Court of the development. A copy is attached herewith marked Exhibit VC6.
(21) That thereafter my Principal Nnabuike Edechime, Esq. and myself continued visiting the Court of Appeal Headquarters Abuja every forthright from July through December 2010 to press for a hearing date and the reconstitution of a fresh panel to hear the Petition.
(22) That on 02/12/2010 whilst we were in the Court of Appeal Headquarters Abuja, a directive was issued that the matter be listed in the Abuja Division and we were assured that a Hearing Notice to that effect will be sewed on us.
(23) That on 10/12/2010 we were served a Hearing Notice dated 02/12/10 fixing the Petition for hearing on 14/12/2010. A copy is attached herewith marked Exhibit VC7.
(24) That on the 13/12/2010, we promptly filed a formal application for the issuance of Pre-Hearing Notice in the Court of Appeal Abuja. A copy is attached herewith marked Exhibit VC8.
(25) That the Registrar’s of the Court duty accepted our application as being proper and in accordance their practice and procedure in Election Petition matters.
(26) That the Court of Appeal consequently issued a Hearing Notice for pre-hearing Session as all conditions precedent to the issuance have been fulfilled by the Petitioners.
(27) That I verily believe that the Hearing Notice was properly issued as all conditions precedent to the issuance has been fulfilled by the Petitioners.
(28) That the Petitioners have been very diligent in prosecuting this Petition from the date of filing on 18th May 2007 through the Supreme Court proceedings and back to the Court of Appeal to date.
(29) That I verily believe that the Respondents from the onset have been making every effort to frustrate the hearing of the Petition on the merit and to deprive the Petitioners their constitutional right to fair hearing and the present application is part of it.
(30) That the order of the Supreme Court is definite, to wit, that the matter be heard on the merit for whatever it is worth.”
At the hearing, the learned Senior Counsel for the 3rd to 41st Respondents/Applicants referred to the application filed on 25/1/2011 which prayed this Court to strike out the Petition for non-compliance with the rules.
He referred to the address attached to the application which he adopted as his argument in this matter.
He also referred to the reply filed on point of law on 1/3/2011 which he also adopted.
He finally submitted that having withdrawn against the 1st Respondent, the entire Petition should fail. And he urged that the Petition be dismissed.
The learned Counsel for the Petitioners/Applicants/Respondents in his response referred to the reply on point of law filed on 1/3/2011, he said that it was filed outside the 3 days granted to 3rd to 41st Respondents. He urged this Court to discountenance the reply.
He then referred to the 31 paragraphs counter affidavit filed on 1/2/2011.
He adopted the written address in opposition to 3rd to 41st Respondents’ motion dated 25/1/2011 which is attached to the counter affidavit.
He finally urged that the preliminary Objection should be dismissed.
The learned Senior Counsel for the 3rd to 41st Respondents/Applicants in his written address formulated a sole issue for determination reproduced as follows:-
“Whether given the failure by the parties to apply for the issuance of a pre-hearing Notice as in form TF007, as prescribed under the Election Tribunal and Court Practice Direction 2007, this Petition ought not to be dismissed.”
The learned Counsel for the Petitioners/Applicants/Respondents on the other hand formulated two issues for determination, the issues are set out as follows:-
“(i) Whether time started to run from 5th March 2010 when the Supreme Court Judgment was delivered.
(ii) Whether the application for issuance of pre-hearing Notice dated 13th December 2010 is valid.”
I have carefully examined the issues formulated for determination on behalf of the parties in this application and it is my view that the lone issue formulated by the Counsel for the 3rd to 41st Respondents/Applicants encapsulates the issues formulated on behalf of the Petitioners/Applicants/Respondents. I will therefore rely on the lone issue as set out in the 3rd to 41st Respondents’/Applicants’ written address in the determination of this application.
“Whether given the failure by the parties to apply for the issuance of a pre-hearing Notice as in form TF007, as prescribed under the Election Tribunal and Court Practice Direction 2007, this Petition ought not to be dismissed.”
The learned Counsel for the 3rd to 41st Respondents/Applicants referred to paragraph 6(2) of the Practice Direction which shows the manner in which an application for the issuance of pre-hearing notice as in Form TF007 shall be made to the Court.
He stated that paragraph 6(2) of the Practice Direction was given Judicial Interpretation in the following cases:-
– Riruwai v. Shekarau (2008) 12 NWLR Part 1100 Page 142 at 149 and 159;
– Ojugbele v. Lamidi (1990) 10 NWLR Part 621 Page 167;
– Boni Haruna v. Modibo (2004) 16 NWLR Part 900 Page 487.
He submitted that the cases referred to above are in agreement that the type of application envisaged by the Practice Directions in relation to pre-hearing session is a motion and not a letter.
He went further that no motion was filed by any of the parties to this Petition and none was served on the 3rd to 41st Respondents.
He submitted that the notice for Pre-hearing Session and the Pre-hearing Information Sheet issued by Secretary/Court Registrar of this Court served on 3rd to 41st Respondents/Applicants were issued when non-compliance with the steps in paragraphs 3(1-3) and 6(2) of the Practice Directions has stripped the Court of the Jurisdiction to entertain the Petition.
He relied on the following cases:-
– Okereke v. Yar’adua & 34 Others (2008) 4 – 5 S. C. Part 1 Page 206 at 225 paragraphs 5;
– Hope Democratic Party v. INEC & 3 Others, Judgment delivered on 17/11/2009 in CA/A/EP/5/2007. (Unreported)
He finally submitted that the Petition ought to be dismissed.
The learned Counsel for the Petitioners/Applicants/Respondents submitted that time cannot start to run on the date the Supreme Court delivered its Judgment on 5/3/2010. He referred to the counter affidavit and Exhibit VC3.
He also submitted that the application for issuance of the pre-hearing notice dated and filed on 13/1/2011 was properly filed in accordance with paragraph 3(3) of the Practice Directions 2007.
He finally urged this Court to dismiss the application.
In the application filed by the Petitioners/Applicants/Respondents on 1st day of February 2011 one of the reliefs prayed for is:-
“An order striking out the name of the 1st Respondent who is now deceased.”
The learned Counsel for the 3rd to 41st Respondents/Applicants did not oppose this leg of the application.
In the circumstance the name of the 1st Respondent – Alhaji Umaru Musa Yar’adua who is now deceased is hereby struck out.
Also the reply on point of law filed on 1/3/2011 on behalf of the 3rd to 41st Respondents/Applicants which was filed out of time without any application to regularize it is accordingly struck out.
The 2nd, 3rd and 4th legs of the application are opposed by Counsel for the 3rd to 41st Respondents/Applicants hence the application for the dismissal of the entire Petition filed on 25/1/2011.
A careful perusal of the affidavit evidence and the submissions of Counsel in their written addresses would reveal that in response to the replies filed by the 3rd to 41st Respondents to the Petition, the Petitioners had since the 28th day of August 2007 filed and served their replies on all the Respondents.
On 13/12/2010 the Petitioners/Applicants/Respondents filed a formal application (not a motion) for the issuance of pre-hearing notice in this Court.
The Judgment of the Supreme Court which upheld the appeal of the Petitioners to that Court and remitting the Petition for trial by this Court was delivered on 5/3/2010.
The contention of the learned Counsel for the 3rd – 41st Respondents/Applicants is that both parties have failed to apply for the issuance of a pre-hearing notice as in Form TF007, as prescribed under the Election Tribunal and Court Practice Directions 2007.
There is no doubt that the Practice Directions 2001 (hereinafter referred to as “the Practice Directions) applies to Presidential Election which is the subject matter of this Petition.
Paragraph G of the Practice Directions prescribes the steps which must be followed for the pre-hearing session. It is set out as follows:-
“3(i) 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 the pre-hearing notice as in Form TF007.
(2) Upon application by a Petitioner under paragraph (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 purpose set out hereunder.
(a) Disposal of all matters which can be dealt with on interlocutory Application;
(b) Giving such direction as to the future course of the Petition as appears best adapted to secure its just, expeditious and economical disposal in view of the urgency of Election Petition.
(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 expeditious disposal of the Petition.
(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 Petitioner and, returnable in three clear days, apply for an order to dismiss the Petition.
(6) 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.”
It is very clear that by virtue of paragraph 3(1) and (2) of the Practice Directions, 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.
Upon an application made by a Petitioner for a pre-hearing session, 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 purpose set out as business to be done in the pre-trial session.
The learned Senior Counsel for the 3rd to 41st Respondents/Applicants contended that neither the Petitioners nor the Respondents applied within the period stated in the Practice Directions.
The learned Counsel for the Petitioners/Applicants/Respondents submitted that an application for the issuance of pre-hearing notice dated and filed on 13th January 2011 was properly filed. He went further that a motion is not intended. He referred to paragraph 3(3) of the Practice Directions.
In paragraph 6(2) of the Practice Directions, the manner in which an application for issuance of the pre-hearing notice as in Form TF007 was clearly stated. It is reproduced as follows:-
Paragraph 6(2)
“Where by these Direction 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 Respondents.”
It is axiomatic and mandatory that by virtue of paragraph 6(2) of the practice Directions, any application authorized to be made to Tribunal or Court shall be by way of motion on notice which shall be served on the Respondent. It is therefore necessary to comply with the said paragraph in view of the fact that it cannot be circumvented.
My view above is supported by the following cases:-
-Riruwai v. Shekaruru (supra);
-Ojugbele v. Lamidi (supra);
-Boni Haruna v. Modibo (supra).
In view of the foregoing it is my view that the application for the issuance of pre-hearing notice filed on 13th January 2011 by learned Counsel for the Petitioners/Applicants/Respondents did not comply with paragraph 6(2) of the Practice Directions.
In this application under consideration there is nothing to show that the Petitioners and the Respondents complied with the provisions of the practice Directions in that none of the parties to this Petition filed a motion as required for the issuance of pre-hearing notice as in Form TF007.
It is to be noted as stated earlier in this Ruling that in response to the replies filed by the 3rd – 41st Respondents to this Petition, the Petitioners had since the 28th day of August 2007 filed and served replies on all the Respondents.
Although the Petitioners appealed to the Supreme Court against a ruling of this Court which struck out the Petition. But at the conclusion of hearing in that Court, the appeal of the Petitioners were allowed and the Petition was remitted to this Court for trial. This was on 5/3/2010. Therefore time would start to run from the 6th day of March 2010, and on that score the Petitioners are out of time to apply to this Court for pre-hearing session. The time within which such an application shall be made is 7 days from the 6th day of March 2010.
In the circumstance, it is my view that a condition precedent to the commencement and holding a pre-hearing session has not been fulfilled within the time allowed by the Practice Direction. The Petition is therefore deemed abandoned and liable to be dismissed.
In accordance with the provision of paragraph 3(3) of the Practice Directions the 3rd to 41st Respondents/Applicants are empowered to bring an application for the dismissal of the Petition. And under paragraph 3(4) of the Practice Directions set out earlier in this Ruling, the Court has a duty to dismiss the Petition as abandoned. By the provision of paragraph 3(4) of the Practice Directions it is mandatory on the Court to dismiss the Petition as abandoned.
Since the required application was not brought within the time prescribed by the Practice Directions, this Court, therefore lacks the jurisdiction to entertain the Petition.
Consequent upon the foregoing, it is my view that the hearing notice for the pre-hearing session and the pre-hearing information sheet issued by the Secretary/Court Registrar of this Court served on the 3rd to 41st. Respondents were not issued in compliance with paragraphs 3(1), (2) and (3) and 6(2) of the Practice Directions. They are therefore incompetent. In the result, this Court lacks the jurisdiction to entertain the Petition.
My views above are fortified by the decision of the Supreme Court in the case of:-
-Okereke v. Yar’adua & 34 Others (2008) 4 – 5 S. C. Part 1 Page 206 at 225 Paragraph 5 where Muhammed JSC held as follows:-
“It has not been clear for me to decipher from the record of appeal, nor from the Counsel’s submission, whether all the steps stipulated above were followed by parties, especially the Petitioner/Applicant. Secondly, sub-paragraph 4 of paragraph 3 as quoted above, makes it mandatory that where neither the Petitioner nor the Respondent files an application for pre-hearing session, the Tribunal or Court is under a duty to dismiss the Petition as abandoned and no application for extension of time to take that step shall be filed or entertained. Now, although the stipulation under subparagraph 4 of paragraph 3 of the Practice Directions appears to me to be harsh on the Petitioner by making an order for dismissal of the Petition which forecloses 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 decision of the Supreme Court above was followed by this Court in the case of:-
-Hope Democratic Party v. INEC & 3 others Judgment delivered on 17th November 2009 in CA/A/A/EP/5/2007 (Unreported).
See also the case of:-
-Buhari vs. INEC (2009) All FWLR Part 459 at Page 419.
My conclusion is that the Petition cannot proceed to hearing because it is deemed to have been abandoned.
This lone issue is resolved in favour of the 3rd-41st Respondents /Applicants.
In the circumstance, it would be an academic exercise by going into the merits of the Petitioners application.
The application by the 3rd to 41st Respondents/Applicants is meritorious and it is hereby ordered as follows:-
(1) The hearing notice for prehearing session and the prehearing information sheet issued by the Secretary/Registrar of this Court on the 18th day of January 2011 is hereby set aside for want of fulfillment of a condition precedent.
(2) Petition No: CA/A/EP/6/07 is hereby dismissed, the same having been abandoned by the Petitioners by virtue of their failure to comply with mandatory rules of this Court relating to pre-hearing.
There shall be (=N=50, 000.00) Fifty Thousand Naira Costs in favour of the 3rd to 41st Respondents/Applicants against the Petitioners/Applicants/ Respondents.
NOTICE OF PRELIMINARY OBJECTION FILED ON BEHALF OF 1ST AND 2ND RESPONDENT
This notice of preliminary objection filed on behalf of the 1st and 2nd Respondents/Applicants challenged the competence of this Court to entertain this Petition and other interlocutory application filed by the Petitioners/Applicants/Respondents. It also sought for an order dismissing the Petition.
The grounds upon which this Preliminary Objection is based are as follows:-
(1) The Honourable Court lacks jurisdiction and or vires to entertain the Petition and other applications filed by the Petitioners in that the mandatory provisions of the Electoral Act 2006, Practice Directions and the extant orders of the Supreme Court of 5th March 2010 were not complied with.
(2) The Petition was filed in gross abuse of process of Court.
(3) The Petition itself and the Petitioners Application dated 18th January 2011 are academic, moot and hypothetical.
The application is supported by a counter affidavit of 16 paragraphs pertinent paragraphs of which are 3 to 15 reproduced as follows:-
“(3) That I have the instruction of the 1st and 2nd Respondents and my Principal to depose to this affidavit.
(4) That except otherwise stated, all the facts deposed to herein are within my personal knowledge, information and belief.
(5) That I have read the affidavit in support of Petitioners’ Motion on Notice dated 18th January, 2011 deposed to by on Fidelis Igwe and I know as fact that paragraph 5, 6, 7, 8, 9, 10, 11, and 12 are patently false.
(6) That in reply to paragraph 5 and 6 of the supporting affidavit, I know as a fact and by virtue of my position as one of the Counsel that represented the 1st and 2nd Respondents that while remitting the Petition back to this Court, the Supreme Court held in their Ruling of 5th March, 2010 that the Petition should be heard and determined expeditiously before another Panel.
(7) That I know as a fact that between 5th March, 2010 and 18/1/11 when Petitioners brought the present Motion to revive the Petition, the period is more than 10 months.
(8) That I also know as a fact that for the said period of 10 months in paragraph 7 supra, the Petitioners virtually and blatantly abandoned the Petition and went on a long slumber contrary to the Ruling of their Lordships of the Supreme Court of 5th March, 2010 which Court ordered that the Petition be determined expeditiously.
(9) That for more than 10 months, the Petitioners frustrated the decisions of the Supreme Court by failing, refusing and neglecting to expeditiously prosecute the Petition before this Court.
(10) That contrary to the deposition contained in paragraph 8 of the supporting affidavit, I know as fact that there was/is no pending Petition before the Honourable Court for determination before the fixing of 9th April, 2011 for another Presidential Election; the Petitioners having abandoned the Petition willingly.
(11) That I know as a fact and contrary to the depositions contained in paragraphs 9 and 10 of the supporting affidavit, that the office of the President upon which the Petition was, brought would terminate or come to an end sometime in May, 2011.
(12) That pursuant to depositions in paragraph 11 supra, I know as a fact that virtually all the Political Parties in Nigeria have done their primary elections and Parties’ flag-bearers have emerged in preparation for the Presidential Election of 9th April, 2011.
(13) Further to paragraph 12 supra, I also know as a fact that INEC has commenced nationwide registration of voters for which the country has expended a whopping sum of about =N=78 Billion.
(14) That the grant of this application would cause chaos, turmoil and confusion in the whole nation and renders useless the said =N =78 Billion which the Federal Government of Nigeria has so far e4pended on the forth coming general election.
(15) That it is not in the interest of Justice and the nation at large to grant this application.”
The learned Counsel for the Petitioners/Applicants/ Respondents filed affidavit of 7 paragraphs to counter the counter affidavit filed on behalf of 1st & 2nd Respondents/Applicants, pertinent paragraphs of which are 2 to 6 reproduced as follows:-
“(2) That I have the consent and mandate of the Petitioners and my employers to depose to this affidavit.
(3) That the Petitioners filed this Petition on 18th May 2007 to challenge the validity of the Presidential Election held on 21st April 2007 in which the 3rd Respondent announced the 1st and 2nd Respondents as President and Vice-President elect respectively of the Federal Republic of Nigeria.
(4) That I have read the affidavit of Gbenga Adeyemi, sworn to on 25th January 2011.
(5) That paragraphs 8, 9 10, 12, 13, 14 and 15 of counter affidavit are not correct.
(6) That I adopt all the averments in the counter affidavit dated 1st February 2011 in opposition to the motion dated 25th January 2011 filed by Counsel to 3rd – 41st Respondent.”
Both the learned Senior Counsel for the 1st and 2nd Respondents/Applicants and learned Counsel for the Petitioners/Applicants/Respondents filed their written addresses in this application in compliance with the Practice Directions.
It would be recalled that at the hearing, the learned Counsel for the 1st and 2nd Respondents/Applicants did not oppose the first leg of the motion on notice filed on behalf of Petitioners/Applicants/Respondents.
In the circumstance the name of 1st Respondent Alhaji Musa Yar’adua who is now deceased is hereby struck out of this Petition.
It is also on record that the application filed on behalf of the Petitioners/Applicants/Respondents on 18/1/2011 was withdrawn and struck out by this Court on 3/3/2011.
This notice of Preliminary Objection is brought pursuant to paragraph 49(5) of the First Schedule to the Electoral Act 2006, paragraph 6(2) and (3) of the Court Practice Direction 2007, Section 148 of the Electoral Act 2006, Section 6(6) of the Constitution of the Federal Republic of Nigeria 1999.
At the hearing, learned Senior Counsel for the 2nd Respondent/Applicant adopted the written address attached to the notice of Preliminary Objection. He apologized for the few mistakes contained in the said written address.
He stated that the Petitioners did not comply with paragraph 6(2) and (3) of the Court Practice Directions. He also referred to paragraphs 7.1, 7.2, and 7.3 of his written address and stated that the Petitioners have no answers to the Preliminary Objection. He urged this Court to dismiss the Petition. He referred to the case of:-
Yusuf v. I. I. T. A. (2009) 5 NWLR Part 1133 Page 18 at 35.
The learned Counsel for the Petitioners/Applicants/Respondents referred to the affidavit to counter the counter affidavit of 1st and 2nd Respondents/Applicants filed on 1/2/2011.
He relied on the affidavit to counter the counter affidavit of 1st and 2nd Respondents/Applicants and adopted the written address attached to the said affidavit.
He finally urged that the Notice of Preliminary Objection should be dismissed.
The learned Senior Counsel for the 2nd Respondent/Applicant formulated three issues for determination in his written address. The issues are set out as follows:-
“(1) Having regards to the fact and circumstance of this case coupled with the sui generis nature of the Election Petition whether it is not too late in the day for the Petitioners to revive the Petition and thus rob the Court of requisite jurisdiction to entertain same.
(2) Whether the Petition and other recently filed processes do not constitute abuse of judicial process.
(3) Whether the pursuit of this Petition and other interlocutory applications do not amount to academic exercise.”
The learned Counsel for the Petitioners/Applicants/Respondents did not formulate any issue for determination.
I have carefully examined the issues formulated by the learned Senior Counsel for the 2nd Respondent/Applicant and it is my view that Issue No. 1 encapsulates Issues Nos. 2 and 3. I will therefore rely on Issue No.1 as a lone issue for determination of this application because I believe that it would settle the issues in controversy between the parties.
ISSUE NO 1 (AS LONE ISSUE)
Having regards to the fact and circumstances of this case coupled with the sui generis nature of the Election Petition whether it is not too late in the day for the Petitioners to revive the Petition and thus rob the Court of requisite jurisdiction to entertain same.
The learned Senior Counsel for the 2nd Respondent/Applicant submitted that it is too late in the day for this Court to invoke its jurisdiction to determine the Petition and other applications filed by the Petitioners/Applicants/Respondents.
He referred to Section 148 of the Electoral Act 2006. He contended that the Petitioners abandoned the Petition immediately the Supreme Court delivered its Ruling in their favour on 5th March 2010. He went further that the Petitioners/Applicants/Respondents went into slumber for more than 10 months after the Ruling.
He submitted that equity can only aid the vigilant and not the indolent like the Petitioners. He relied on the following cases:-
-Ojo v. Registered Trustee of Church of the Lord (2003) FWLR Part 153 Page 303 at 32;
-Okeniyi v. Akanbi (2002) FWLR Part 84 Page 113 at 133 Paragraphs A to D;
-Ige v. Fagbohun (2002) FWLR Part 127 page 1140 at 1163 paragraphs E – H;
-Nwakobi v. Nzekwu (1961) 1 All NLR Page 445 at 450.
Learned Senior Counsel submitted that the Petitioners were aware that they had Constitutional right to have the Petition determined by this Court but that they chose to abandon same and thus created a situation of complete waiver of their rights to the detriment of the Respondents and the Nation at large. He went further that virtually all the political parties in the country have held their primaries to the forth coming General Election. And the country had expended more than N78 Billion on the ongoing registration of voters in preparation for the new election.
On the other hand, the learned Counsel for the Petitioners/Applicants/Respondents submitted that the 2nd Respondent’s motion is based on false premise and cannot stand. He therefore urged that it should be dismissed.
He went further that the Petitioners could not be accused of any delay in view of the steps they had taken to prosecute the Petition diligently.
He finally submitted that the Petition cannot be classified as an academic exercise since there are real questions to be determined.
The pertinent question under this issue is that is it really too late in the day for the Petitioners to revive the Petition and thus rob the Court of requisite jurisdiction to entertain same?
It is on record that as at 28/8/2007 the Petitioners had filed and served replies to all the Respondents in the Petition.
It is also on record that this Petition was earlier struck out as a result of the Preliminary Objection raised by 3rd to 41st Respondents. But the Petitioners appealed to the Supreme Court. And on 5/3/2010 that Court delivered its decision in which the appeal was allowed and the Petition remitted to this Court for trial.
By virtue of paragraph 3(1) (2) and (3) of the Election Tribunal and Court Practice Directions 2007, 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 the pre-hearing notice as in Form TF007. Upon the application made by a Petitioner for a pre-hearing session, the Tribunal or Court shall issue to the parties or their legal practitioners (if any) a prehearing conference notice as in Form TF007 accompanied by a pre-hearing information sheet as in Form TF008 for the purpose set out as business to be done in the pre-trial session. The Respondent may file the application in accordance with the procedure stated above, where the Petitioner fails to do so, or by a motion which shall be served on the Petitioner and returnable in three days, apply for an order to dismiss the Petition.
It is therefore clear that from the provisions of paragraph 3(1) to (4) of the Practice Direction, the pre-hearing conference notice as in Form TF007 and pre-hearing information sheet as in Form TF008 can only be issued after a Petitioner or a Respondent has applied within 7 days after the filing and service of the Respondent’s reply, whichever is the case, to the Tribunal or Court for the issuance of the pre-hearing notice as in Form TF007.
In this application under consideration it is my view that before the parties went on appeal, pleadings have been completed. And on coming back after the Supreme Court delivered its decision on 5/3/2010, time would start to run from 6/3/2010 for the Petitioners to apply to this Court for pre-hearing session. The time within which to make such an application is 7 days.
A careful examination of the affidavits and counter affidavits filed in this application would show that no application was made by either party for the issuance of the pre-hearing notice. The application which the Petitioners/Applicants/Respondents claimed to have filed on 13/12/2010 is not in compliance with the provisions of paragraph 6(2) of the Practice Direction because it was not made by way of motion. Apart from that the purported application was filed outside the 7 days provided in paragraph 3(1) of the Practice Direction.
In the circumstance, the Petition is deemed abandoned and it is liable to be dismissed.
This Court is no longer in a position to exercise jurisdiction to hold a pre-hearing session. Paragraph 3(1 to 5) of the Practice Directions is in my humble view mandatory.
In Okereke v. Yar’adua (2008) 4-5 S.C. Part 1 Page 206, it was held among others that:-
“(i) the Practice Directions applies to Presidential, Governorship, National Assembly and States Assembly election Petitions.
(ii) that it is mandatory that where neither the Petitioner nor the Respondent files an application for a pre-hearing session, the Tribunal or Court is under a duty to dismiss the Petition as abandoned and that no extension of time to take that step shall be filed or entertained.
(iii) that steps in relation to pre-hearing notice are condition precedent to the hearing of a matter in relation to a Petition and noncompliance with the steps will strip the Court of the Jurisdiction to entertain the Petition; and
(iv) that when a Preliminary Objection is upheld, the life of the Petition in which it is taken is terminated and it should be dismissed.
In the circumstance, it is my view that it is too late in the day for the Petitioners to revive this Petition and this has robbed this Court its Jurisdiction to entertain same.
This issue is therefore resolved in favour of the 2nd Respondent/Applicant against the Petitioners/Applicants/ Respondents.
In the final analysis, since the notice of Preliminary Objection succeeded, it would not be necessary to go into the merits of the Petitioners/Applicants/Respondents application filed on 1/2/2011.
Accordingly, the Petition No: CA/A/EP/6/07 filed by the Petitioners/Applicants /Respondents is hereby dismissed.
There shall be (N50, 000.00) Fifty Thousand Naira Costs in favour of the 2nd Respondent against the Petitioners/Applicants/Respondents.
MOHAMMED LAWAL GARBA, J.C.A: The 1st and 2nd Petitioners had contested the Presidential election conducted in Nigeria by the 3rd Respondent on the 21st day of April, 2007, on the platform of the 3rd petitioner. At the end of the election, the 3rd Respondent through the 4th and 5th Respondents, declared and returned the 1st and 2nd Respondent as winners and having been elected to the offices of the President and Vice President of the Federal Republic of Nigeria respectively.
Being aggrieved by the declaration and return of the 1st and 2nd Respondents as the winners of the election, the Petitioners presented this petition to this court questioning the election on the following grounds:-
“i. That the presidential election held on 21st April 2007 was invalid by reason of corruption practices and noncompliance compliance with the provisions of the Electoral Act 2006.
ii. That the 1st and 2nd Respondents were not duly elected by majority of lawful votes cast at the election.
iii. That the 1st and 2nd Respondents as serving Governors of Katsina and Bayelsa States respectively, were not qualified to contest the election.”
The petition was presented in the court on the 18/5/2007 as indicated on the record of the Court.
After due service of the petition on them, the 1st and 2nd Respondents filed their Reply to the petition on the 21/8/07 while the 3rd-41st Respondents filed their Reply to the petition on the 2/8/07.
The Petitioners Reply to the 1st and 2nd Respondents Reply was filed on the 27/8/07 while the Reply to the 3rd-41st Respondents’ Reply, was filed by the Petitioners on the 22/8/07.
By the provisions of Paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007, (to be called Practice Directions hereafter) applicable to the petition, the Petitioners were required to within seven (7) days after filing and service of their Reply/Replies, apply for the issuance of pre-hearing notice as in Form TF 007 annexed to the Practice Directions.
For clarity, the paragraph provides thus:-
“(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?”
With the deliberate choice and use of the word “shall” in the paragraph, the requirement, by established canon and practice of interpretation of Statutes and Rules made pursuant thereto, or the Petitioners to make the application for issuance of pre-hearing notice, is legally mandatory, it was a command or exhortation that did not envisage or admit of a discretion on their part. The Supreme Court in the case of ONOCHIE v. ODOGWU (2006) 2 SCNJ 96 at 114 (2006) 6 NWLR (975) had this to say:-
“The use of the word “shall” in a statute or Rules of Court makes it mandatory that the rule or provision must be observed, “shall” is used to express a command or exhortation, or what is legally mandatory.”
By the provisions and requirement of the paragraph the Petitioners had the mandatory and therefore binding duty to apply for the issuance of the pre-hearing notice within seven days after they had filed their Replies to the Respective Replies by the Respondents to the petition. As shown earlier or, the Petitioners” last Reply was the one filed on the 27/8/07 in respect of the 1st and 2nd Respondents’ Reply. So by virtue of the provisions of Paragraph 3(1) above, the Petitioners had the duty to apply for the issuance of the pre-hearing notice within seven (7) days from the 27/8/07.
It was mandatory for them to make the application within the period of time prescribed by the provisions otherwise they would be in clear breach or non-compliance with them.
The period of seven (7) days from the 27/8/07 ended or expired on the 2/9/07.
I can find no record in Court’s file on the petition that the Petitioners had applied to the Court as required by the provisions of Paragraph 3(1) for the issuance of the pre-hearing notice within the period of seven (7) days after filing their last Reply to the Respondents’ Replies. Put another way, there is no record that the Petitioners had applied for the issuance of the pre-hearing notice in compliance with the provisions of the requirement of the paragraph before the expiration of the seven (7) days limited for so doing.
I however observed from the record of the Court that notices of preliminary objections were filed on 2/8/07 by 3rd Respondent and on 20/8/07 by the 1st and 2nd Respondents challenging the competence of the petition on the various grounds set out there in respectively. It is also clear that this Court heard the objections on 22/8/07 when the written addresses of the learned counsel for the parties were adopted and ruling thereon reserved for the 3/9/07 when it was delivered upholding the objections and dismissing the petition. As it turned out from the decision of the Supreme Court in an appeal against the decision by this court on the objections to the petition, the Court lacked the jurisdiction to hear and determine the objections outside the pre-hearing session of the petition. In other words, as at the 22/8/07 when the court heard the objections by the Respondents against the petition it had no jurisdiction to do so because the stage or period was outside the pre-hearing session notice of which was not yet due in view of the provisions of paragraph 3(1) above. Since the Court lacked the requisite vires or jurisdiction to hear and determine the objections against the petition, all the proceedings conducted and decision reached by it were set aside by the Supreme Court in the decision referred to earlier. The dismissed petition of the Petitioners was restored on the Cause list of the Court for hearing.
The salient point to be made is that as the 3/9/07 when this court delivered the ruling on the objections by the Respondents, the period within which the Petitioners were required to have applied for the issuance of a pre-hearing notice under Paragraph 3(1) had expired or ended. So the fact that the Supreme Court had ordered that the petition be heard did not affect the fact that the Petitioners had neglected, omitted, overlooked or failed to comply with the mandatory provisions of paragraph 3(1) on the requirement to apply for the issuance of a pre-hearing notice within seven (7) days after filing their last Reply to the Respondents’ Reply. With due respect, the time within which to make the application under paragraph 3(1) started to run from the date when the Petitioners filed their last Reply, i.e. on the 27/8/07 and not when the Supreme Court delivered its decision or even when the Hon. President of the Court of Appeal notified the petitioners of the constitution of the panel to hear the petition. The time did not also start to run when the Petitioners were served with hearing notice of the petition. The provisions of paragraph 3(1) did not make the constitution of a panel to hear the petition or issuance and receipt of a hearing notice from the court a condition precedent to the petitioner’s application for the issuance of a pre-hearing notice.
As stated above, the time limited by the provisions of the practice Directions had expired or ended even before the petitioner embarked on the appeal the result of which restored the petition on the cause list of the court. Whatever had happened in the course of the appeal at the Supreme Court before and after the determination thereof did not affect the fact that the Petitioners had not complied with the provisions of paragraph 3(1) of the Practice Directions.
Paragraph 3(4) provides that where neither the Petitioners nor any of the Respondents applied for the issuance of the pre-hearing notice within the time stipulated by the provisions of paragraph 3(1), the Court, or as the case may be, the tribunal, shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.
In the Petitioners’ case since they had filed replies to the Respondent’s Replies, the duty was theirs alone to have applied within the period prescribed in paragraph 3(1). The Respondents had no such duty in the circumstances to have made the application for the issuance of the pre-hearing notice.
However, paragraph 3(3) confers or vests discretion on the Respondent or Respondents to make such application for the issuance of the pre-hearing notice where the Petitioner fails to do so. The use of the word “may” in the sub-paragraph leaves no doubt that an option, or choice rather than a duty or mandatory command was clearly intended by the provision.
In order to ensure strict compliance with the provisions of paragraph 3(1)-(3) without failure, sub-paragraph (a) provides for severe consequences of contravention, breach or failure to comply with the preceding sub-paragraphs (1)-(3). It provides that in the event of failure to make the application stipulated in sub-paragraphs (1) and (3), the court or tribunal had the mandatory duty to dismiss the petition as an abandoned petition. The court or tribunal has no discretion in the circumstances as demonstrated by the Supreme Court in the OKEREKE v. YARADUA case cited in the lead ruling.
So by the 3/9/07 when the court delivered the ruling on the objections by the Respondents, the Petitioners’ petition for contravening the mandatory requirements of paragraph 3(1) of the Practice Directions, was an abandoned petition which this Court had no option to dismiss pursuant to paragraph 3(3).
But assuming that the time envisaged by the provisions of paragraph 3(1) started to run from the day the Supreme Court delivered its decision in the appeal by the Petitioners, that was on the 6/3/2010 as stated in the lead ruling, the petition would still be caught up by the provisions of paragraph 3(4) because there is no record that either the Petitioners or any of the Respondents had made the application for the issuance of the pre-hearing notice within 7 days from that day. I have stated before now that the Petitioners did not have to wait for any step whatsoever by the court before they made the application the moment their dismissed petition was restored on the cause list by the Supreme Court and ordered to be heard by the Court. The Petitioners had no business to wait or even ask for the constitution of the panel of the court to hear the petition because the Registry of the Court had always been opened for normal court business before and after the decision by the Supreme Court.
In fact because by the provision of Section of the 1999 Constitution applicable to the petition, the Court of Appeal is the trial court for the petition and there is no provision in the said Constitution the Electoral Act 2006 or the Practice Directions which says that the Petitioners should wait for the constitution of a panel of the court by the Honourable President of the Court of Appeal before they presented their petition to the court or take any other mandatory step required for the purposes of hearing their petition. Once they duly and properly filed their petition in the Registry of the court and thereby caused it to be on the court’s list or as in the present situation, when the petition was restored on the court’s list by the Supreme Court, all relevant provisions of the Electoral Act Rules of Court and Practice Directions meant to be applied thereto, automatically became applicable to the petition. So the Petitioners cannot be heard to say that they had to wait for the constitution of a panel by the Hon. President of Court of Appeal to hear their petition before they complied with the requirements of the Practice Directions after it was restored on the Court’s list by the Supreme Court on the 6/3/10. After all under the provisions of Section 239(2) the court is duly constituted for the purpose of hearing and determination of the petition by three (3) Justices thereof. The Section provides thus:-
“In the hearing and determination of an election petition under paragraph (a) of sub-section (1) of this section, the Court of Appeal shall be duly constituted if it consists of at least three Justices of the Court of Appeal.”
The above provisions are the same in respect of the court’s jurisdiction conferred by the Constitution in Section 247(1) in all other matters or appeals that come before the court. Section 247(1) is as follows:-
“For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any other law, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of the Court of Appeal and in the case of appeals from-
(a) a Sharia Court of Appeal if it consists of not less than three Justices of the Court of Appeal learned in Islamic personal law; and
(b) a Customary Court of Appeal, if it consists of not less than three Justices of the Court of Appeal learned in Customary law.”
It cannot seriously be disputed that under both Sections 239(2) and 247(1) constitution of panel of the court to hear petition or appeal is not a condition precedent for the parties to take very necessary and vital step for their petition or appeal to be valid for hearing by the court.
The practice of empanelling more than three (3) Justices of the court by the Honourable President of Court of Appeal to hear and determine any election petition expedient and laudable as it may be, is not a requirement of any Statute or Rule of court which can be used or relied on by any party in default of express and mandatory requirement of the Practice Directions, as a viable excuse.
I am in complete agreement with the lead ruling that the Petitioners did not also have to wait for hearing notice from the court before they complied with the Practice Directions because the application for the issuance of the hearing notice was to have been made by them initially and they failed to do so as required by the Practice Directions. They have nobody else but themselves to blame and should have the courage and humility to accept the fatal consequences imposed for their failure by the Practice Directions.
For the above and more pungent reasons set out in the lead ruling which I read before today, I join in granting the orders made therein in respect of the motion filed by the 3rd-41st Respondents and upholding the objection by the 2nd Respondent. I too dismiss the Petition No.CA/A/EP/06/2007 for being abandoned, pursuant to paragraph 3(4) of the Practice Directions, 2007. I abide by the order on costs.
PAUL ADAMU GALINJE, J.C.A: I have read before now the ruling just delivered by my learned brother, Bada JCA and I entirely agree with the reasoning contained there and the conclusion arrived thereat. The facts of the case are clearly set out in the lead ruling and so also are the reliefs sought by the Applicants herein.
On behalf of the 1st and 2nd Respondents, Chief Olanipekun SAN issued a notice of preliminary objection to the competence of the petition dated and filed on the 25th January 2011.
Learned senior counsel also filed a written address on the same date in support of the preliminary objection.
Chief Kanu Agabi, learned senior counsel for the 3rd Respondent also issued a preliminary objection to the competence of the petition dated and filed on the 25th January 2011. I find this preliminary objection so strong and same has put into question whether this Court has the jurisdiction to hear the petition aforesaid.
Learned senior counsel has drawn the attention of this Court to the following facts:
1. Neither the petitioners nor the Respondents applied for the issuance of pre-hearing notice within the time allowed by the Practice Direction that is seven days after the filing and service of the Respondents replies.
2. That the type of application envisaged or prescribed by the Practice Directions for the issuance of pre-hearing notice i.e. motion on notice, was never made by any of the parties in this petition.
These facts are not objected to by the petitioners. Indeed in the counter affidavit and written address filed by the Petitioners in opposition to the 3rd – 41st Respondents’ motion, the Petitioners have conceded to the facts enumerated above. This being so the parties in this petition have failed to comply with the requirements of the Practice Direction for issuance of pre-hearing notice. Paragraph 3 (4) of the Practice Direction provides as follows:-
“Where the petitioner and the Respondent fails 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 filled or entertained.”
The duty of the Court to dismiss the petition is mandatory and this is made manifest by the use of the word “shall” in the paragraph.
In OKEREKE V. YARADUA (2008) 12 NWLR (PT. 1100) 95 at 118 paragraphs B-E, the Supreme Court had this to say:-
“Sub-paragraph 4 of paragraph 3 as quoted above, makes it mandatory that where neither the petitioner nor the Respondent files an application for pre-hearing session, the tribunal or court is under a duty to dismiss the petition as abandoned and no application for extension of time to take that step shall be filled or entertained, Now, although the stipulation under subparagraph 3 of the Practice Direction appears to me to be harsh on the petitioner by making an order of dismissal of the petition which forecloses any chance for him to represent the petition, it still had to be complied with by the tribunal or court as such steps are condition precedent to the hearing of any matter in relation to the petition pending before the tribunal or court, Non-compliance thereof will strip off the tribunal or court of jurisdiction.”
See MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 589; A.G. FEDERATION V. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (Pt. 618) 187; AJAO V. ALAO (1986) 5 NWLR (pt.45) 802.
On the basis of the binding authorities which I have cited herein above, the petitioners cannot revive the petition which they willingly abandoned. Having therefore abandoned the petition, this Court has no jurisdiction to entertain same.
For the reasons I have set out here and the more detailed reasons in the lead ruling the petition filed on the 18th May 2007 having been abandoned is hereby dismissed. Having thus dismissed the petition, the petitioners’ application filed on the 1st of February 2011 has no foundation upon which it can stand, accordingly same is struck out.
I abide by the order of cost made in the lead ruling.
HUSSEIN MUKHTAR, J.C.A: I have had the privilege of reading in draft the ruling just rendered by my learned brother Bada, JCA. For the same reasons so meticulously stated in the ruling, which I wholly adopt as mine, I agree that the preliminary objection filed by the 3rd to 41st respondents and the motion for dismissal filed by the 2nd respondent are meritorious.
The success of the preliminary objection has effectively reduced the petitioners/applicants’ motion for injunctive relief to a complete insignificance and their petition No CA/A/EP/6/07 liable to be dismissed as abandoned pursuant to paragraph 3(1) to (4) of the Election Petition and Court Practice Direction 2007.
Failure to apply for issuance of pre-hearing notice as In Form TF007 within seven days after settlement of pleadings was fatal to the petition. The 2nd respondents’ motion for dismissal is clearly sustainable by paragraph 3(3) of the Practice Direction 2007, which provides thus:
“The respondent may b ring 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 petitioner and returnable in three days, apply for an order to dismiss the petition.”
The petitioners herein have failed to apply for the issuance of pre-hearing notice as provided by paragraph 3(1) of the Practice Direction 2007 within seven days after close of pleadings regarding the petition.
The intervening period of appeal at the Supreme Court terminated on the 5th March 2010, when its judgment was pronounced. The period of seven days envisaged under paragraph 3(1) of the Practice Direction 2007 started running latest on the 23rd June 2010, immediately after procurement and filing of the enrolled order of the Supreme Court on the 22nd June 2010 when the matter was fully revived for hearing before this Court.
It was indeed a sheer blunder on the petitioners’ part to have waited until 13th December 2010 before filing the mandatory application for pre-hearing notice simply because they were served hearing notice on 10th December 2010. Service of hearing notice for the petition is completely unconnected with pre-hearing notice which ought to be made within seven days after settlement of pleadings as required by paragraph 3(1) of the Practice Direction 2007. Failure of the petitioners to comply with that compulsory provision renders the petition abandoned and liable to be dismissed as provided by sub-paragraph (4) of paragraph 3 of the Practice Direction 2007, which provides as follows:
“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.”
The belated application for issuance of pre-hearing notice filed by the petitioners on 13th January 2011 has further failed to satisfy another mandatory provision of paragraph 6(2) of the Practice Direction 2007, which provides thus:
“Where by these Directions 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 state under what rule or law the application is brought and shall be served on the respondents.”
From whatever angle one looks at the petition, it is a complete non-starter, and adequately pays the price for the petitioners’ indolence.
For these and the more detailed reasons in the leading ruling, one cannot but come to the same conclusion with my noble and learned brother Bada, JCA that the petition ought to be dismissed and same is accordingly dismissed by me.
I subscribe to the made in the ruling as to costs.
REGINA OBIAGELI NWODO, J.C.A: I have read in advance the ruling just delivered by my learned brother Bada, JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
It is settled law that where a statute provides a particular procedure for doing a thing, there should be no other method of doing it. Thus once there is a condition precedent to the exercise of the jurisdiction of the court and there is non-compliance to that condition precedent as set out in the statute. The court is divest of jurisdiction.
See C.C.B Plc v. AG Anambra State (1992) 8 NWLR (pt. 261) 528. Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446 at 492.
Under paragraph 3 of the Election Tribunal and Court Practice Directions 2007, the petitioner is enjoined to apply for the issuance of pre-hearing notice within 7 days after the filing and service of his reply on the Respondent or 7 days after filing and service of the Respondents reply as applicable.
This is a mandatory precondition. Thus its failure will attract dismissal of the petition. This provision under paragraph 3(4) imports a disciplinary act of dismissal of the petition as the court is divest of the power to extend time to comply to the condition precedent and is under a duty to dismiss the petition as abandoned.
In the instant case, the petitioner Applicant Respondent did not apply for issuance of the pre-hearing notice within the period prescribed nor within the prescribed days after the judgment of the Supreme Court. The omission regrettably cannot be remedied. The provision is stringent and hash on the petitioner who is shut out from prosecuting his petition to conclusion on the merit. The nature of election petition is special, it imposes a duty on the party aggrieved and his counsel to meticulously scrutinize the provisions under the Electoral Act and the practice direction before taking any step to address his grievance from the provisions under the electoral law and the practice directions inadvertence or mistakes of counsel, will not be indulged by the court except in exceptional circumstances.
For the forgoing and the fuller reasoning in the lead ruling which I adopt as mine, I uphold the notice of objection by the learned senior counsel to the 3rd to 41st Respondent. The petition is deemed abandoned and dismissed. I abide by all consequential order in the lead ruling.
Appearances
MR. N. J. EDEMCHIMEFor Appellant
AND
CHIEF WOLE OLANIPEKUN SAN and D. O. DODO SAN with them are GBENGA ADEYEMI, DORATHY ACHUMBA, H. ABDULRAHMAN, K. N. AJE and S. A. EGEGE
MR. KANU AGABI SAN for the 3rd – 41st Respondents with him are AYO AKAM, ODION RITA, O. O. OTUAGOMA and P. O. ERIVWODE.For Respondent
