DR. KEMDI OPARA & ANOR v. HON. BETHEL AMADI & ANOR
(2011)LCN/4982(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of December, 2011
CA/OW/EPT/4/2011
RATIO
PRELIMINARY OBJECTION: POSITION OF THE LAW WHERE THERE IS A PRELIMINARY OBJECTION TO THE HEARING OF AN APPEAL
It is a well settled principle of law, that needs no belabouring, that where there is a Preliminary Objection to the hearing of an appeal (or any matter) such Preliminary Objection shall be taken first. PER UWANI M. ABBA AJI, J.C.A.
PRE-HEARING NOTICE: POSITION OF THE LAW WHERE A RESPONDENT ACCEPTS SERVICE OF THE PRE-HEARING NOTICE AND REACTS TO IT
The point to be made is that the 1st Respondent, having accepted service of the pre-hearing Notice and having reacted to it, he has waived his right to complain (if they had any) and a right waived is a right lost. See ORAKUL RESOURCES LTD vs NCC (2007) ALL FWLR (PT.390) 1482: JEJE vs UBA (2007) ALL FWLR (PT.381) 1783. PER UWANI M. ABBA AJI, J.C.A.
RULES OF COURT: PURPOSE OF THE RULES OF COURT
It must be stated that the Rules and procedures of Court are meant to serve the interest of justice. The Rules cannot therefore be used to deny a litigant the opportunity to be heard on the merit, over the petition he has duly brought before the Court. PER UWANI M. ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. DR. KEMDI OPARA
2. ALL PROGRESSIVE GRAND ALLIANCE (APGA) Appellant(s)
AND
1. HON. BETHEL AMADI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
UWANI M. ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory Ruling of the National Assembly and State Houses Election Tribunal, holden at Owerri in Petition No.EPT/IM/NASS/HR/11/2011, per Hon. Justice Ishaq Bello, Hon. Justice S. A. Bola and Hon Kadi Kabir Abubakar which dismissed the Appellants’ Petition for failure of the Petitioners to apply for the issuance of pre-hearing Notice in the manner prescribed by the provisions of the Electoral Act 2010 (as amended).
The 1st Respondent herein had at the Lower Tribunal filed a motion dated 25th day of June, 2011 and filed on the 27th day of June, 2011, praying for an order:
1. Dismissing Petition No.EPT/IM/NASS/HR/II/2011 between Dr. Kemdi Opara and Anor Vs Hon. Bethel Amadi and Anor dated and filed on 1st May, 2011.
2. And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.
GROUNDS UPON WHICH THE APPLICATION IS BROUGHT
1. The Electoral Act enjoins a Petitioner to apply formally by a motion for the issuance of Pre-hearing Notice session not later than 7 (Seven) days after the close of pleadings.
2. It is more than seven days after parties herein concluded the exchange of their pleadings, with the Petitioners Reply duly served on the 1st Respondent/Applicant.
3. As at the time of this Application, no formal application in the form envisaged by the Electoral Act 2010 has been filed by the Petitioners/Respondents.
4. Time is of the essence in election Petition.
5. By reason of the above, the Petition has become abated or abandoned.
6. This jurisdiction of this Honourable Tribunal to entertain and adjudicate over the Petition has been washed away.
After hearing the Counsel on both sides, in a considered Ruling, the Honourable Tribunal dismissed the Petition and held inter alia that:
“All said and done in this action, the Petitioners have failed to comply with paragraph 18 (1) and (2) of the Schedule to the Electoral Act, 2010. The corollary of this is that the Petition is deemed abandoned. The consequential effect is dismissal of same by this Tribunal. Accordingly, this petition is dismissed pursuant to paragraph 18 (3) of the 1st Schedule to the Electoral Act, 2010 (as amended).”
Predictably, the Appellants are aggrieved by the whole decision of the Lower Tribunal and have appeal to this Honourable Court vide the Notice of Appeal filed on the 1st day of August, 2011, containing six (6) grounds of appeal, which said grounds are hereby reproduced, without their particulars.
GROUNDS OF APPEAL
GROUND ONE:
The Election Petition Tribunal erred in law when it dismissed the Petition because the Petition had been abandoned.
GROUND TWO:
The Tribunal misdirected itself on the ratio decidendi of the supreme court decision in OKEREKE vs YAR’ADUA (2008) 12 NWLR (PT.1100) P.95 AND COURT OF APPEAL DECISION IN RIRUWAI vs SHEKARAU (2008) 12 NWLR (PT.1100) P.142, which misdirection occasioned a miscarriage of justice when it held that the two decisions were binding precedents different from those of the instant appeal.
GROUND THREE:
The Tribunal erred in law when it held that application for pre-hearing proceedings must be by motion and not by letter.
–
GROUND FOUR:
The Tribunal misdirected itself in law which misdirection occasioned a miscarriage of justice when in the course of the judgment it held as follows:
“It is pertinent to consider the word “shall” as used in paragraph 47 (2) of the First schedule. Paraphrased Paragraph 47 (2) states”…such application shall be made by motion…”
The foregoing is surely a mandatory provision, because the operative word made is “shall”. The word “shall” when used in statutory provisions imports that a thing must be done. It is a form of command or mandate. It is not permissive” It is mandatory. In its ordinary meaning, is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.”
GROUND FIVE:
The Tribunal erred in law when it held that “an application to issue a pre-hearing notice is an invocation of judicial power of the court or Tribunal going by the con of subparagraph (2) of paragraph 18…”
GROUND SIX:
The Tribunal erred in law when it held that paragraph 47(1) upon which the counsel to the petitioners substantially predicated his submission is of no moment in this application.
In the Appellants brief of Argument, five (5) issues were distilled for determination. The 1st Respondent’s brief distilled a sole issue for determination while the 2nd Respondent’s brief distilled two issues for determination. The 1st Respondent incorporated arguments to the Preliminary Objection to the hearing of this appeal in the said 1st Respondent’s brief of argument.
At the hearing of the appeal on the 20th day of September, 2011, Learned Counsel, adopted and relied on their various briefs of argument. The Appellants brief of argument settled by Chief Mike I. Ahamba, KSC (SAN) and filed on the 22nd day of August, 2011 was adopted and relied upon in urging this Honourable Court to allow the appeal. The Appellant’s Counsel also adopted and relied on the Appellant’s Answer to the Preliminary Objection and Reply to the 1st Respondent’s brief of argument, filed on the 16th day of September, 2011 and further urged this Court to allow the appeal.
Learned Counsel for the 1st Respondent, also adopted and relied on the 1st Respondent’s brief of argument, dated and filed on the 12th day of September, 2011 which also incorporates his arguments on the Preliminary Objection and urge this Court to uphold the Objection or in the alternative, dismiss the appeal.
This latter view was equally adopted by Learned Counsel for the 2nd Respondent, who in adopting and relying on his brief filed on the 15th day of September, 2011 but deemed properly filed on the 20th day of September, 2011 urge this Honourable Court to dismiss this appeal.
It is a well settled principle of law, that needs no belabouring, that where there is a Preliminary Objection to the hearing of an appeal (or any matter) such Preliminary Objection shall be taken first. Accordingly, this Court shall consider the Notice of Preliminary Objection filed by the 1st Respondent on the 16th day of September, 2011 to wit:
“TAKE NOTICE that before or at the hearing of the appeal, the 1st Respondent shall by way of Preliminary Objection pray the Court for the following reliefs.”
1. AN ORDER STRIKING OUT GROUND TWO OF THE NOTICE OF APPEAL DATED 29TH JULY, 2011
2. AN ORDER STRIKING OUT ISSUES, A, B AND D formulated and argued in the Appellant’s Brief of Argument dated 20th August, 2011.
3. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances of this case.
TAKE FURTHER NOTICE that the grounds of the objection are as specified in the Schedule provided hereunder:
SCHEDULE ABOVE REFERRED
1. Ground Two of the Notice of Appeal is incompetent in that it alleges misdirection without supplying the particulars of the misdirection.
2. Issue (a) formulated and argued in the Appellant’s Brief of Argument is incompetent having derived from or being related to the incompetent Ground Two.
3. Similarly, issues (a) and (d) formulated and argued in the Appellant’s Brief are incompetent having derived from one or the same ground of Appeal.
4. Issue (b) albeit not from the same ground(s) of appeal as the incompetent issues (a) and (d) was argued together with the said issues and therefore is itself incompetent.
In arguing his Preliminary Objection, Learned Counsel to the 1st Respondent submitted that where a ground of appeal alleges a misdirection on the part of a Court or Tribunal, the passage in the judgment or decision under attack in which the misdirection occurred must be recited and embedded with the ground, otherwise the ground will be incompetent. He cited and relied on the following: ADENE vs DENTUBU (1987) 4 NWLR (PT.65) 314 AT 316; WESTAC vs S.S.G (2001) 1 WRN 113 AT 121; A. G. AKWA IBOM vs ESSIEN (2004) 7 NWLR (PT.872) 288 AT 315; BCC I vs D. STEPHENS IND LTD (1992) 3 NWLR (PT 232) 772: OMAHKO vs AWACHIE (2002) 12 NWLR (PT.780) 1.
His submission is that having failed to set out the passage in the Ruling where the misdirection occurred, the said ground is incompetent as well as the issues arising from the said incompetent ground of appeal. He relied on the following cases OGUNDIPE vs ADENUGA (2006) ALL FWLR (PT 336) 266; OBI-ODU vs DUKE (2006) 11 NWLR (Pt 961) 375; FAGUNWA AND ANOR vs ADIBI AND ORS (2004) 7 SCNJ 322 and submitted that all the issues arising from this ground i.e. issues (a) and (d) as well as issue (b), though not incompetent on its own, but because it is argued together with a ground of appeal which is incompetent, it is also deemed incompetent. He referred this Court to the dictum of Salami JCA(as he then was) in AYALOGU vs AGU (1998) 1 NWLR (PT.532) 130 AT 157 and urged this Court to uphold the Preliminary Objection and strike out the said ground two as well as all the issues arising therefrom.
In his answer to the Preliminary Objection Learned Counsel to the Appellants submitted, on the basis of ORDER 6 RULE 2(2) of the Court of Appeal Rules, 2011 that there is no provision that there must be a recitation before a ground on misdirection may be considered competent. He relied on the case of WILSON vs ATTORNEY GENERAL BENDEL STATE (1985) 1 NWLR (PT F4) 502 AT 509 to submit that to read recitation into the Rule with the possible effect of striking out the ground, could occasion dire consequences. He referred also to the case of ANYAOKE vs ADI (1986) 3 NWLR (PT.31) 731 AT 741; ADEROUNMU vs OLOWU (2000) 4 NWLR (PT 652) 253 AT 265 to submit that a quotation of part of the judgment complained against in a ground of appeal is not a substitute for the necessary particulars of misdirection or effort and urged this Court to discountenance the 1st Respondent’s submission on this point.
Learned Counsel to the Appellants further submitted that a look at grounds one and two and issues (a) and (d) will reveal that the arguments therein are unrelated. He argued that it was the regrettable failure to cancel “I” from issue (a) after issue (d) was distilled as separate issue, Counsel having realized that, that point could not be argued under issue (a). Relying on the dictum of NIKI TOBI JSC, IN ABUBAKAR vs YAR’ADUA (2008) 4 NWLR (PT 1078) 465 AT 511, he urged this Honourable Court not to allow the blunders of Counsel to defeat the hearing of the appeal on the merit of the case.
I have carefully read through the arguments for and against the Preliminary Objection. A look at Ground Two, which is herein under reproduced for emphasis, would reveal thus:
“The Tribunal misdirected itself on the ratio decidendi of the Supreme Court decision in OKEREKE vs YAR’ADUA (2008) 12 NWLR (PT 1100) 95 and the COURT OF APPEAL DECISION IN RIRUWAI vs SHEKARAU (2008) 12 NWLR (PT 1100) 142, which misdirection occasioned a miscarriage of justice when it held that the two decisions were binding precedents for the dismissal of the instant petition.” (underlining mine for emphasis).
A careful reading of this ground leaves no one in doubt as to what the Appellants were complaining of and the nature of the complaint.
ORDER 6 RULE 2 (2) OF THE COURT OF APPEAL RULES 2011 PROVIDE THAT
”Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
There is no doubt in my mind that by the underlined portion of Ground two above, the part of the decision being complained about was indicated. The fact that it was not recited or italicized is of no moment. Also, a thorough perusal of the issues (a) and (d) would reveal that though Ground (1) featured in both issues, the arguments are totally different. The oral argument of Learned Counsel to the Appellants in answer to this ground of objection is that this was done in inadvertence.
On this ground, I will adopt the dictum of NIKI TOBI JSC, IN ABUBAKAR vs YAR’ADUA (2008) 4 NWLR (PT.1078) 465 AT 511 that
“It is a known fact that blunders must take place in litigation process and because blunders are inevitable, it is not fair, in appropriate cases, to make a party in the blunder to incur the wrath of the law at the expense of hearing the merit of the case”
Accordingly, the grounds of this objection having failed, are hereby overruled. I shall proceed to hear and determine this appeal on the merit.
In their brief of argument, Learned Counsel to the Appellants formulated five (5) issues for the determination of this appeal namely:
1. Whether the Petition Tribunal did not misconstrue and misapply the ratio decidendi of the Supreme Court decisions in OKEREKE vs YAR’ADUA (2008) 12 NWLR (PT.1100) 95. AND NWANKWO vs YAR’ADUA (2010) 12 NWLR (PT.1209) 518 in the determination of this application.
2. Whether the Petition Tribunal’s conclusion that the Petitioner’s Counsel reference and reliance on paragraph 47 (1) of the first Schedule to the Electoral Act, 2010 (as amended) was of no moment in this application and did not occasion a miscarriage of justice.
3. Whether the issuance of a pre-hearing notice under paragraph 18 (2) of the first Schedule was a judicial act requiring an order of the Tribunal.
4. Whether the dismissal of the Petition on the ground of abandonment was proper in law.
5. Whether the conclusion of the Tribunal that application for pre-hearing session under paragraph 18 (1) of the first Schedule must be by motion is proper in law.
In his briefs Learned counsel for the 1st Respondent formulated a sole issue for determination to wit:
“Considering the provisions of paragraphs 18(1) (2) and (3) as well as 47 of the 1st Schedule to the Electoral Act, 2010 (as amended), the fact that the petitioners applied to the Tribunal by a letter for the issuance of pre-hearing notice whether or not the Tribunal was right in treating the Petition as an abandoned Petition and therefore dismissing it.”
On his part, Learned Counsel for the 2nd Respondent distilled two issues for determination to wit:
1. Whether a letter to the Tribunal Secretary qualified as an application for Notice of pre-hearing session as provided under paragraph 47(2) all of the 1st Schedule to the Electoral Act 2010 as amended.
2. Whether the Tribunal was not right in its decision dismissing the Appellants petition on the ground that a letter does not qualify or meet the requirement of paragraph 18(1), (2), (3) and paragraph 47 (2) of the 1st Schedule to the Electoral Act 2010 (as amended) following the judicial precedent in OKEREKE vs YAR’ADUA (2008) 12 NWLR (PT.1100) 95 AND RIRUWAI vs SHEKARAU (2008) 12 NWLR (PT.1100) 142.
This appeal shall be determined based on the issues formulated by the Appellants. It is after all their appeal.
In arguing issues one, two and four together, Learned Senior Counsel for the Appellants submitted that it is clear that the Tribunal relied heavily on the decision of the Supreme Court in the case of OKEREKE vs YAR’ADUA (Supra) in arriving at its decision.
His contention is that this authority is not on all fours with the instant appeal. He submitted that OKEREKE vs YAR’ADUA (Supra) and the newer case of NWANKWO vs YAR’ADUA (2010) 12 NWLR (PT 1209) 518 AT 559 did not interpret the provision of paragraph 3 (1) of the Practice Direction 2007 (which is impari materials with paragraph 18 (1) of the 1st Schedule of the Electoral Act (2010) and cannot be the basis for the Lower Tribunal’s Ruling.
His further contention is that in the two cases supra, there was no application before the lower Tribunal, whereas in the instant appeal, there is evidence that the parties had:
i. received notice of pre-hearing session
ii. filed written answers to questions as contained in the prehearing information sheet. He referred this Court to pages 113 – 118 of the Record, as well as the case of HASSAN vs INEC (2008) WRN (VOL. 39) 31. He referred also to the 1st Respondent’s written answers to the pre-hearing information sheet at pages 116 – 118 of the Records.
His view is that all these do not constitute abandonment as well held by the Lower Tribunal. He alluded to the definition of ‘abandonment’ as defined in the Black Law Dictionary (8th Edition) page 2. He referred also to the case of MANSON vs HALLIBURTON ENERGY SERVICES LTD (2007) 2 NWLR (PT 1018) 211 AT 234.
It is also contended that the Tribunal misconstrued the facts, the law and circumstances of the Supreme Court decisions in OKEREKE vs YAR’ADUA AND NWANKWO vs. YAR’ADUA. (Supra). Consequent upon which it misdirected itself and applied the decisions where they were not applicable and consequently came to a wrong decision. He urged this Court to resolve these issues in favour of the Appellants.
In arguing issue 3, Learned Senior Counsel for the Appellants submitted that a community reading of paragraph 18 (1) and (2) would suggest a Court order is not required for the issuance of FORM TF- 007 OR TF-008. He referred to AQUA LTD vs ONDO SPORTS COUNCIL (1988) 4 NWLR (PT 91) 622 AT 654 and submitted further that the end product of the application in paragraph 18(1) is the Form TF 007 issued under paragraph 18 (2). A look at the praecipe of the said TF 007 shows that it is to be signed by the Secretary. His contention is that a Secretary does not sign a Court or Tribunal’s order as a Secretary’s signature cannot amount to a judicial act.
He therefore humbly urged this Court to resolve this issue in favour of the Appellants and hold that the Lower Tribunal was wrong to have held otherwise. In his issue 5, Learned Senior Counsel submitted that the holding of the Lower Court that the pre-hearing session under paragraph 18 (4) supra must be by motion is erroneous. His view is that by the Supreme Court decision of ADEGOKE MOTORS LTD vs ADESANYA (1989) 3 NWLR (PT.109) 250 AT 265, a judicial pronouncement cannot be a judicial precedent for the interpretation or construction of a subject matter not on all fours with another subject matter. The Lower Tribunal’s undue reliance to the case of OKEREKE vs YAR’ADUA Supra has occasioned a gross miscarriage of justice. He urged this Court to resolve all the issues in favour of the Appellants.
On his part, Learned Counsel for the 1st Respondent in proffering arguments on his sole issue for determination submitted that election petition proceedings are special of which special provisions are made. He referred to the case of ABUBAKAR vs INEC (2004) 1 NWLR (PT 854) 207 AT 231 and submitted that the proper procedure or mode of applying for the issuance of pre-hearing Notice is by a formal application or motion filed at the Registry of the Election Tribunal. His view is that the decisions in RIRUWAL vs SHEKARAU (2008) 12 NWLR (PT 1100) 142, ADO vs MEKARA (2009) 9 NWLR (PT 491, OKEREKE vs YAR’ADUA supra, represent prevailing position of the law on the issue. Learned Counsel proceeded to give a lengthy and all encompassing definition of the word “application” and with several cited authorities, submitted that the letter dated 13th June, 2011, written by the Petitioners/Appellants Counsel to the Tribunal fell short of the requirements of the law. He urged this Court to uphold the decision of the Lower Tribunal and toe the line of other decided cases like OKEREKE vs YAR’ADUA (Supra), ATOLAGBE vs AWUNI (1997) 9 NWLR (PT.522) 536 RIRUWAL vs SHEKARAU (Supra), and dismiss the appeal.
On his part, Learned Counsel for the 2nd Respondent in arguing his two issues together submitted that a combined reading of paragraph 18(1), (2) and (3) and paragraph 47(2) of the 1st Schedule to the Electoral Act Supra, would reveal that the Tribunal was right in its decision, dismissing the Appellants Petition as having been abandoned for failing to comply with provisions of paragraph 18 (1) and (2) of the Electoral Act 2010 as amended.
In his Reply to the 1st Respondent’s Brief, Learned Senior Counsel submitted that though election petition cases are sui genesis, it has been held that where non-compliance with the rules does not materially affect merits of the case or engender miscarriage of justice, rules of Court are not strictly applied, but are relaxed. He referred to the case of KATTO vs CBN (1991) 9 NWLR (PT 214) 126 AT 147; ATIKU ABUBAKAR vs. YAR’ADUA (2008) 4 NWLR (PT 1078) 465 AT 510.
He submitted further that judicial decision is a precedent under the doctrine of stare decisis only on facts and issues actually decided in the earlier case. He referred to the case of ADEGOKE MOTORS vs ADESANYA (1989) 3 NWLR (PT.109) 250 AT 266, BUHARI vs YUSUF (2003) 14 NWLR (PT.841) 446 and submitted that the decision of the Lower Tribunal that paragraph 18(1) (supra) required a motion is a decision per incuriam. He relied also on the decision in ISA vs TAHIR (unreported) CA/YL/EPT/ADS/HA/2/2011, delivered by this Court, sitting in Yola on 6th September, 2011; GEBI vs DAHIRU (unreported) CA/J/EPT/HR/127/2011 delivered by this Court sitting in Jos on 23rd August, 2011. On the strength of all these authorities he urged this Court to allow the appeal and set aside the decision of the Lower Tribunal.
From the foregoing submissions of Counsel on both sides of the appeal, it is very clear that the main thrust of this appeal is whether or not the letter written by the Petitioners to the Secretary of the Lower Tribunal, dated 13th June, 2011 and filed 15th June, 2011, for the issuance of pre-hearing notice was proper before the Tribunal, and in accordance to the provisions of paragraph 18 (1), (2) and (3), as well as paragraph 47 (1) and (2) of the Electoral Act 2010, as amended.
In answer to this question, the provisions of the above mentioned paragraphs of the Electoral Act are adumbrated hereunder:
Paragraph 18 (1):
”Within 7 days after the filing and service of the Petitioner’s reply on the Respondent or 7 days after the filing and service of the Respondent’s reply, as the case may be, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.”
18 (2):
“Upon application by a petitioner under sub paragraph (1) of this paragraph, the Tribunal or Court shall issue to the parties or their legal practitioners (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in Form TF 008.”
18 (3):
“The Respondent may bring the application in accordance with sub-paragraph (1) where the Petitioner fails to do so, or by motion which shall be served on the Petitioner and returnable in 3 days apply for an order to dismiss the petition.”
47(1):
No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with the leave of Tribunal or Court.”
47(2)
“Where by these Rules any application is authorized to be made to the Tribunal or court, such application shall be made by Motion, which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the Respondent.”
In the instant appeal, there is evidence that the Appellants had in fact applied to the Tribunal for issuance of pre-hearing notice and the same was duly filed in the Tribunal on 15th June, 2011. See page 106 of the Records, which shows thus:
13th June, 2011
The Secretary
National Election Tribunal
Owerri
Imo State
Sir,
APPLICATION FOR ISSUANCE OF PRE-HEARING NOTICE PETITION NO: EPT/IM/NASS/HR/11/2011
DR. KEMDI OPARA
Vs
HON. BETHEL AMADI AND INEC
We are Counsel to the Petitioners in the above petition filed on the 1st day of May, 2011. We have also filed and served on the 1st and 2nd Respondents the Petitioners reply on the 10th day of June, 2011.
May we humbly apply for the issuance of pre-hearing notice on all the parties in this petition
Yours faithfully,
T. E. Nwokedi Esq
Pp: Chief M. I. Ahamba, SAN
Based on the said application, the Secretary of the Tribunal issued the prehearing Notice in the requisite form (FORM TF 007) on the same date i.e 15th June, 2011, and summon the parties for the pre-hearing session on the 4th day of July, 2011. Upon being served with the pre-hearing Notice (Form TF 007), the parties filled the pre-hearing information sheets (Form TF 008) attached to the Pre-Hearing Notices sent to them, and filed their said Pre-hearing information sheets on the 27th day of June, 2011, preparatory for the pre-hearing session on 4th July, 2011 (See pages 111-118) of the Record).
The 1st Respondent’s motion for dismissal was filled on the 27th of June, 2011 reason being that the application for the pre-hearing Notice was defective and did not comply with the Rules of procedure.
The point to be made is that the 1st Respondent, having accepted service of the pre-hearing Notice and having reacted to it, he has waived his right to complain (if they had any) and a right waived is a right lost. See ORAKUL RESOURCES LTD vs NCC (2007) ALL FWLR (PT.390) 1482: JEJE vs UBA (2007) ALL FWLR (PT.381) 1783.
It is conceded that the pre-hearing notice and fixing of the date for pre-hearing session was signed by the Secretary of the Tribunal, as required by law. However, this is an administrative act of the Tribunal and the Judges cannot pretend it was not an act of the Tribunal, pursuant to the Rules governing election petition trial, which law vests on the Secretary of the Tribunal, the power to issue and sign the requisite Form TF 007 and TF 008 and serve same on the parties.
Recourse, shall be taken to the provisions of paragraph 47 (1) of the 1st Schedule to Electoral Act Supra. The said paragraph reads:
47 (1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court.
The import of this provision is the outright prohibition of moving any motion before the pre-hearing session. All motions must be taken and moved at the pre-hearing session.
The contention of the Learned Counsel to the Respondents that the proper mode of application for the issuance of the pre-hearing notice is by way of motion, that would portend the hearing of a motion before the pre-hearing session, contrary to paragraph 47(1) of the 1st Schedule (Supra). In NWANKWO v. YAR’ADUA (2010) 12 NWLR (Pt.209) 518 AT 559, THE SUPREME COURT, PER ONNOGHEN JSC, HELD:
“In the case OKEREKE vs YAR’ADUA (2008)… this Court considered the provisions of paragraph 6(1) of the Practice Direction Supra and came to the conclusion that any motion or preliminary Objection raised in an election petition not taken and determined at the pre-hearing session, is done or taken without fulfilling the condition precedent to the exercise of jurisdiction…”
The import of this dictum, vis-a-vis the provisions of paragraph 47 (1) of the 1st schedule to the Electoral Act is that the application envisaged under paragraph 18 (1) and (3) of the 1st schedule, could not be by motion, as such could not be imagined to fall within the exception i.e. necessitated by extreme circumstances with the leave of the Tribunal or Court.
The provision of paragraph 18 (1) is a mandatory requirement to wit:
“The petitioner shall apply for issuance of pre-hearing notice as in Form TF 007 within 7 days after the filing and service of the petitioner’s reply or 7 days after filing and service of the Respondent’s reply, (whichever is the case)”
(paraphrased).
The effect of the mandatory provision is that there is no need for any formal motion to the Tribunal or court to issue the pre-hearing Notices to the parties. The fact that the Petitioners’ have formally applied to the Tribunal, in writing in compliance with the said paragraph 18 (1) is sufficient.
It must be stated that the Rules and procedures of Court are meant to serve the interest of justice. The Rules cannot therefore be used to deny a litigant the opportunity to be heard on the merit, over the petition he has duly brought before the Court.
Thus to hold that to apply for issuance of pre-haring notice under paragraph 18 (1) of the 1st Schedule is restricted to filing “a motion on notice or motion ex-parte to activate the issuance of Form TF 007 and therefore, reject the process filed by Petitioner is to be hypocritical and turn the Court to an agent or instrument of oppression and injustice, to celebrate procedural technicalities at the expense of justice on the merit – per I. G. Mbaba JCA in ISA vs TAHIR (unreported) in Appeal no CA/EPT/YL/ADS/HA/2/2011 delivered on 6th September, 2011. Also, in the case of GEBI vs ALHAJI GARBA DAHIRU AND ORS (unreported) in Appeal No.CA/J/EPT/HR/127/2011 delivered on 23rd August, 2011, this Court sitting in Jos held, on the interpretation of paragraphs 18(1) and 47(2) of the 1st Schedule to the Electoral Act, 2010 (as amended) thus:
“For avoidance of doubt, our position is that the alleged breach (if any) of writing a letter for the issuance of prehearing notice in this case is not fatal to warrant the striking out of the petition. More so that at this stage of the proceedings, the Applicant has not shown any miscarriage of justice or injustice he stands to suffer by the method employed in moving this petition to the state of pre-trial conference. In the result, we are of the view that the letter to the Tribunal as in this case complies with and carries out the intention and requirement of paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 as amended”
An application for the issuance of a pre-hearing notice is very unique, in the sense that it is made before the commencement of pre-hearing session. In view of the fact that the law has placed a mandatory duty on the petitioner to apply for pre-hearing notice, leave is not necessary for making the application as envisaged by paragraph 47 (1) of the 1st Schedule to the Act, notwithstanding the fact that it is made before the prehearing conference” The application for pre-hearing notice kick starts the procedure of pre-hearing conference, hence the application can be made by letter or motion, either ex-parte or on notice.
In the light of the above postulations, and by virtue of paragraph 53 (4) of the 1st Schedule to the Electoral Act 2010 (as amended), which provides that:
“An election petition shall not be defeated by an objection as to form, if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Tribunal or Court”.
I must come to the inevitable conclusion that the letter written to the Secretary of the Tribunal and filed on the 15th day of June, 2011 complies and carries out the intention and requirement of paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 (as amended) and I so hold.
I also hold that the motion for dismissal of the petition filed by the 1st Respondent, on the 27th day of June, 2011, on the ground inter alia that the petition has been abandoned was hasty and unwarranted and the Learned Tribunal judges ought to have discountenanced same, and proceeded to the hearing and determination of the Petition on the merits.
Consequently, this appeal succeeds and it is hereby allowed. The Ruling of the Lower Tribunal delivered on the 25th day of July, 2011 dismissing the Petition filed on the 1st day of May, 2011 in Petition No.EPT/IM/NASS/11/11/2011, between DR. KEMDI OKPARA AND ANOR vs HON. BETHEL AMADI AND ANOR is hereby set aside.
The Petition is therefore remitted to the Lower Tribunal for trial on the merit by another panel to be constituted by the President of the Court of Appeal.
The foregoing represents our reasons for allowing the appeal on the 22nd September, 2011.
CHIDI NWAOMA UWA, J.C.A.: I agree.
HARUNA M. TSAMMANI, J.C.A.: It is now the law that an application for the issuance of a pre-hearing notice as required by Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) need not be by motion, either exparte or on notice, It is therefore sufficient if the application is made by “letter” as in the instant case, since the purpose is to rouse the Tribunal to activate the prehearing session. Once that is done within the period stipulated by the law, it will be sufficient compliance with Paragraph 18(1) of the 1st Schedule to the Electoral Act (Supra). That being so, the Appellant’s letter or application written to the Tribunal Secretary seeking for the issuance of the pre-hearing notice, and dated the 15/6/2011 is sufficient compliance with the requirements of Paragraph 18(1) of the Schedule to the Act.
It is for this reason and the more detailed reasons that I totally agree with the reasoning and conclusion of My Lord, Uwani M. Abba Aji, JCA (Presiding), that this appeal be allowed. I hereby allow the appeal and set aside the Ruling of the Tribunal in PETITION No: EPT/IM/NASS/HR/11/2011 delivered on the 25/7/2011.
I abide by the consequential orders made therein.
Appearances
Chief M. I. Ahamba, SAN, with E. N. Ichie Erq, C. C. Okoroafor, Esq. T. E. Nwokedi, Esq and A. E. Anuforum (Miss)For Appellant
AND
A. A. Malik, Esq for the 1st Respondent Afarm Obi, Esq.For Respondent
