FESTUS OLADAPO AREGBESOLA & ANOR v. ADESANYA KEMISOLA ADENIKE & ORS(2005)

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FESTUS OLADAPO AREGBESOLA & ANOR v. ADESANYA KEMISOLA ADENIKE & ORS

(2005)LCN/1828(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of August, 2015

CA/AK/EPT/HA/50/2015

 

JUSTICES

MOJEED ADEKUNLE OWOADE   Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA   Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI   Justice of The Court of Appeal of Nigeria

Between

 

  1. FESTUS OLADAPO AREGBESOLA
    2. ALL PROGRESSIVES CONGRESS (APC) Appellant(s)

AND

  1. ADESANYA KEMISOLA ADENIKE
    2. PEOPLE DEMOCRATIC PARTY (PDP)
    3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the National and State House of Assembly Tribunal sitting in Akure delivered on the 8th of July, 2015. The Appellants as Petitioners filed Petition No. EPT/AK/HA/5/2015 on 30th April, 2015. The first and second Respondents filed their reply on the 18th of May, 2015 together with their Notice of Preliminary Objections.

The 3rd Respondent relying on the saving provision (in Paragraph 10(2)) dealing with non-filing of memorandum of appearance which allow it to defend the petition if she filed her defence within 21 days, filed her reply to the petition on 26th of May, 2015 after the issuance of pre-hearing notice (Form TF 007) and information sheet for pre-hearing session (Form TF 008) was issued by the Tribunal.

The 3rd Respondent complied with the hearing notice of pre-hearing session (Form TF 007) by appearing in the pre-hearing session on 9th of June, 2015. The 3rd Respondent also filed a pre-hearing information sheet (Form TF 008) and on 7th of June 2015, 3rd Respondent filed an application to regularize her Form TF 008 filed out of the prescribed time in order

 

to participate in the pre-hearing session.

On the 9th of June 2015, the Tribunal found merit in the application of the 3rd Respondent (INEC) to file their pre-hearing information sheet out of time and consequently granted the 3rd Respondent extension of time to file and serve her Pre-Hearing Information Sheet. Some other applications moved by parties during the pre-hearing session include:
(a) Petitioner’s Application for Inspection of Electoral Documents in Custody of 3rd Respondent.
(b) Application for Amendment of replies of the 1st and 2nd Respondents. The reply of the 3rd Respondent dated 22nd of May, 2015 was filed on 26th May, 2015.

On the 29th of June 2015, the Tribunal suo motu raised the issue that no application for pre-hearing session was filed after the 3rd Respondent filed its reply. The Tribunal ordered parties to file written addresses on the effect of non-filing of application after the 3rd Respondent’s reply on the pre-hearing session and the petition as a whole.

All parties filed their written addresses and on the 8th July 2015, the Tribunal dismissed the petition on the grounds of non-compliance with Paragraph 18(1) of the 1st Schedule to the

 

Electoral Act 2010 (as amended) and ruled the Appellants’ petition as deemed abandoned under Paragraph 18(4) of the First Schedule to the Electoral Act.

Dissatisfied with this ruling, the Appellants at first, filed a Notice of Appeal containing four (4) grounds of appeal in this Court on 13th July, 2015 and later filed an additional ground of appeal on 24-7-2015.

The relevant briefs of argument for this appeal are as follows:
1. Appellants brief of argument dated 24-7-2015 and filed on the same day.
2. 1st Respondent’s brief of argument dated and filed on 28th July, 2015.
3. 2nd Respondent’s brief of argument dated and filed on 28th July, 2015.
4. 3rd Respondent’s brief of argument dated and filed on 28th July, 2015.

Learned Counsel for the Appellants nominated four (4) issues for determination. They are:
1. Whether the Tribunal was right to have ruled that the Petitioners ought to file a pre-hearing application for each and every Respondent in the petition.
2. Whether close of pleadings or joinder of issue in a petition is a condition precedent for applying for pre-hearing session under the Electoral Act.
3. Whether this petition can be deemed to have been abandoned under

 

Paragraph 18(4) of the First Schedule to the Electoral Act.
4. Whether in the circumstances of this petition, the rules of waiver contained in Paragraph 53(2) of the First Schedule is not applicable and whether the Tribunal was right to have relied on Paragraph 53(1) of the First Schedule to the Electoral Act 2010 not canvassed by parties before it to dismiss the petition.

Learned Counsel for the 1st Respondent argued his preliminary objection and alternatively formulated the following two (2) issues for determination:
1. Whether the National and State Houses of Assembly Election Petition Tribunal was not right in dismissing the Appellants petition for failure to comply with the mandatory provision of Paragraph 18(1) of the First Schedule to the Electoral?Act 2010 (as amended).
2. Whether the trial National and State Houses of Assembly Election Petition Tribunal was not right in resorting to Paragraph 53(1) instead of Paragraph 53(2) of the First Schedule to the Electoral Act, 2010 (as amended) in holding that doctrine of waiver is not applicable in the circumstance of this case thereby dismissing the Appellant’s petition.

The 2nd Respondent also argued his

 

preliminary objection and raised the same 2 (two) issues for determination as the 1st Respondent.

The 3rd Respondent on the other hand formulated three (3) issues as follows:
1. Whether the failure of the Appellants (Petitioners) in not complying with the mandatory provisions of Paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 (as amended) was not irredeemably fatal to the petition.
2. Whether the National and State Houses of Assembly Election Petition Tribunal was not right in dismissing the Petitioners/Appellants’ petition for non-compliance with Paragraph 18(1) of the 1st Schedule to the Electorate Act 2010 (as amended) under the powers vested on it by Paragraph 18(4) .
3. Whether the National and State Houses of Assembly Election Petition Tribunal was not right in not availing the Petitioners/Appellants of the provisions of Paragraph (1) , (2) of the 1st Schedule to the Electoral Act 2010 (as amended) by holding that the doctrine of waiver was not applicable to the circumstances of the case and thereby dismissing the petition of the Appellants.

As was noted earlier, each of the 1st and 2nd Respondents raised preliminary objections to the appeal on the

 

following grounds:
(i) Ground 1 of the Appellants’ Notice of Appeal is based on an observation or an opinion of the panel of Judges of the trial tribunal which is an obiter
(ii) Issue 1 of the Appellants’ Brief of Argument is distilled from the incompetent Ground 1 of the Ground of Appeal.
(iii) Appellants’ brief of argument dated 24th July, 2015 does not address the issues formulated in it.

Learned Counsel for the 1st and 2nd Respondents submitted that it is not everything said by a Court that can be made the subject of appeal. He referred to the case of Ejeka v State (2003) 7 NWLR (Pt 189) 408 at 424-425 and furthered that grounds of appeal must not only arise from the decision being complained against, but must be from ratio decidendi of the said decision. That where an opinion or remark is expressed by a Judge, such an opinion amounts to nothing. It is baseless and not appealable; as it is not a ratio decidendi of the decision.

On this, Counsel referred to the cases of NDP v INEC (2013) 6 NWLR (Pt 1350) 392 at 423 and Chami v UBA PLC (2010) 6 NWLR (Pt. 1191) 474. It was further submitted on behalf of the Respondents that it is settled law that a ground of appeal

 

which neither relates to nor challenges the validity of any ratio decidendi in the judgment on appeal is incompetent and is liable to be struck out.

On the above, counsel referred to the case of CPC v INEC (2011) 18 NWLR (Pt 1279) 493 at 532.

In relation to the second leg of the preliminary objection, Respondents’ Counsel submitted that any brief of argument that does not address the issues formulated in it but reverts on the grounds of appeal is not arguing the issues and will be treated as having abandoned the issues. After referring on the above to the case of Obi-Odi v Duke (2006) 1 NWLR (Pt 961) 374, Respondents’ Counsel submitted that a calm look at the Appellants’ brief in this appeal will show that the said brief of argument did not deal with issues formulated for determination but a mere exercise in rigmarole round about the grounds of appeal. That it is therefore not possible to separate arguments on incompetent ground 1 of the grounds of appeal and the issues formulated thereupon from other arguments canvassed in the brief. He referred to the case of APGA v Ohakim (2009) 4 NWLR (Pt 1130) 116 at 117 and urged us to disregard the Appellants’ brief of

 

argument on the grounds that it is bad and does not address the issues therein raised.

Learned counsel for the Appellants replied to the Respondents’ preliminary objection and submitted on the first leg that ground 1 of the Notice of Appeal dated 13th of July, 2015 is competent and it was framed from the ratio decidendi of the ruling of the Trial Tribunal.

He argued that the said decision of the Tribunal which forms the kernel of ground 1 of the Notice of Appeal was in response to his issue for determination in the Written Address before the Tribunal at page 271 of the record. That at pages 326-327, the Tribunal ruled inter alia as follows:
“——- it is our considered view that it may not be out of place to apply for pre-hearing notice for each and every Respondent in a Petition. This will depend on when each of them was served the petition and when each of them files a reply within the time line specified for filing a reply. The bottom line is that the prescribed time lines must be complied with.”

Based on the above, Learned Counsel for the Appellants submitted that ground 1 of the Notice of Appeal is a ratio of the Trial Tribunal because it was based on issue

 

for determination before the Tribunal and the Tribunal reviewed the submissions of the Appellants’ Counsel before coming to above conclusion.

On the second leg of the preliminary objection, Appellants’ Counsel submitted that the Appellants’ brief of argument addressed all the issues it raised in a sequential order and with clarity. That the argument of the 1st and 2nd Respondents in this regard is vague, nebulous and inapplicable as it failed to mention the particular issues which were not effectively addressed. And, that the Respondents based their own briefs of argument on the precise arguments furnished by the Appellants.

He urged us to dismiss the 1st and 2nd Respondents’ preliminary objection in its entirety.

On the first leg of the Respondents’ Notice of Preliminary Objection, it is important to reproduce ground 1 of the Appellants’ Notice and Grounds of Appeal on which Issue 1 was based. It reads:
? GROUND 1
The Tribunal erred in law when it ruled that “it is not out of place to apply for pre-hearing for each and every Respondent in a petition”.
? PARTICULARS
1. Application for pre-hearing for each and every Respondent is not contained as part of the requirement of

 

Paragraph 18(1) of the First Schedule to the Electoral Act.
2. The literal meaning of wordings of Paragraph 18(1) refers to Respondent which is singular and not Respondents as interpreted by the Trial Tribunal.
3. Paragraph 18(2) of the First Schedule to the Electoral Act 2010 as amended only provides for issuance of a pre-hearing Notice and not many pre-hearing Notices for each of the Respondents.”

From the look of things and as could be gleaned from the Appellants’ Reply Brief, what could have passed as the ratio decidendi of the above subject matter or issue is contained at page 326-327 of the record of appeal to wit:
“———– it is our considered view that it may not be out of place to apply for pre-hearing notice for each and every Respondent in a petition. This will depend on when each of them was served the petition and when each of them files a reply within the time line specified for filing a reply. The bottom line is that the prescribed time lines must be complied with.”

It seems to me that the limited quotation on which the Appellants’ ground 1 of the Notice of Appeal was founded does not convey the ratio decidendi of the Tribunal on the subject

 

matter but rather expresses an opinion which neither relates to nor challenges the validity of any ratio decidendi in the judgment. For this reason, I agree with the Learned Counsel for the 1st and 2nd Respondents that Ground 1 of the Appellants’ grounds of appeal as it stands does not capture the ratio of judgment by the Tribunal and cannot therefore be regarded as a competent ground of appeal.
See: CPC v INEC (2011) 18 NWLR (Pt 1279) 493 at 532.
NDP v INEC (2013) 6 NWLR (Pt 1350) 392 at 423.
Chami v UBA Plc (2010) 6 NWLR (Pt 1191) 474.
Accordingly, the first leg of the preliminary objections of the 1st and 2nd Respondents are upheld.

Conversely, I do agree with the Learned Counsel for the Appellants on the 2nd leg of the Respondents’ preliminary objections that the submission of the Respondents on that score is vague, nebulous and inapplicable as it failed to mention the particular issues raised in the Appellants’ brief that was not effectively addressed.

In sum, the first leg of the Respondents’ preliminary objections are upheld but the 2nd leg is overruled and dismissed.

Having upheld the 1st leg of the Respondents’ preliminary objection, Ground 1 of the Appellants’

 

Notice and grounds of Appeal as well as issue 1 based on the said ground one are struck out.

THE MAIN APPEAL
This appeal will be decided on the issues formulated by the Appellants. However, consequent on my decision striking out Ground 1 of the Appellants’ Notice and Grounds of Appeal and issue 1 in the Appellants’ brief of argument, the Appellants’ issues for determination shall be re-numbered as follows:
Issue 2, as 1; Issue 3 as 2; and Issue 4 as 3.

Furthermore, the Appellants’ submission shall be considered on one side of the scale of justice while the arguments of the 1st, the 2nd and the 3rd Respondents respectively shall be considered together as the submissions of the “Respondents”. This is for the reason of the shared common interest between the three (3) sets of Respondents and also for convenience.

On issue 1, Learned counsel for the Appellants submitted that the Tribunal held that close of pleadings is a condition precedent for applying for pre-hearing session or when issues are completely and finally joined or deemed to be so joined. The ruling of the Tribunal therefore, said Counsel, is to effect that party should wait till the close of pleadings to file

 

their application for pre-hearing session which is in fact in conflict with the earlier ruling that the Petitioners should apply for pre-hearing for each and every Respondent in the petition.

This seeming confusion, according to Appellants’ Counsel is as a result of the Tribunal’s reliance on the case of Gebi v Dahiru & Ors (2012) 1 NWLR (Pt 1282) 560 at 616 which was decided extensively on close of pleadings as a condition precedent for applying for pre-hearing session.

Appellants’ counsel submitted that Gebi v Dahiru (supra) is distinguishable from this case. That the thrust of the judgment in Gebi v Dahiru (supra) is on the issue of when pleadings are deemed to have closed. He submitted that Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended) did not provide for application for pre-hearing when pleadings have closed or issue joined as decided by the Tribunal. That the express provision of Paragraph 18(1) is that application for pre-hearing shall be made after the Respondent’s Reply or Petitioner’s Reply to Respondent’s Reply.

Counsel submitted that closure of pleadings or joinder of issues is therefore not an express requirement of

 

Paragraph 18(1) of the Electoral Act. Appellants’ Counsel submitted that the Tribunal therefore erred in law to have implied closure of pleadings or joinder of issues as a condition precedent for applying for pre-hearing session when as a fact it is not expressly contained in the said Paragraph 18(1) of the First Schedule to the Electoral Act.

He submitted that the Petitioner/Appellant risks non-compliance with the said Paragraph 18(1) of First Schedule to the Electoral Act if he chooses to wait for closure of pleadings or joinder of issue before he applied for pre-hearing against Respondents who have filed their replies. That the paragraph did not include a situation where an application is made when a Respondent has not filed a reply. In other words, issues may not necessarily be joined with all parties before a Petitioner can apply for pre-hearing session.

That, even by Paragraph 18(6)(a) of the First Schedule to Electoral Act (2010) (as amended), a Petitioner can apply to join more parties to his Petition during pre-hearing session. The question therefore, according to Appellants Counsel is: Will a fresh pre-hearing application for pre-hearing session be made by

 

the Petitioner for such party joined to the petition during pre-hearing session?

The provision (that is Paragraph 18(6)(a)) therefore shows he said, that application for pre-hearing session and consequential implication for default as contained in Paragraph 18(4) of the said Electoral Act is only meant to ensure that a Petitioner prosecute his Petition diligently and has nothing to do with the Jurisdiction of the Tribunal to hear the petition.

Learned Counsel referred to the provision of Order 13 Rule 32(1) of the Federal High Court Civil Procedure Rules, 2009 which provides what amounts to close of pleadings to include:
“(a) At the expiration of fourteen days after service of the reply or if there is no reply but defence to counter-claim after service of the defence to counter-claim.
(b) If neither a reply nor a defence to counter claim is served, at the expiration of fourteen days after service of the defence.”

Appellants’ Counsel submitted that from the above, it is clear that the rules of close of pleadings as specified by Federal High Court Rules are not applicable to the First Schedule to Electoral Act 2010 (as

 

amended). That while Federal High Court Rules provide for 14 days after filing of defence and a situation where if a Respondent did not file a reply, the pleadings can be deemed as closed; that the First Schedule to the Electoral Act provides for 7 days within which to apply for pre-hearing session without mentioning a situation as to failure of any of the Respondent to file a Reply. The rules of close of pleadings before the Federal High Court cannot therefore be imported into the provision of the First Schedule to Electoral Act 2010 (as amended).

Counsel submitted that all Respondents in this petition were served with the petition on 6th of May, 2015. That by 20th of May 2015, all reply ought to be filed in accordance with Paragraph 12(1) of First Schedule to the Electoral Act which provides thus:
“The Respondent shall within 14 days of service of the petition on him file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies in opposition to the election”.

Appellants’ Counsel argued that the 3rd Respondent who filed her reply on the 20th day after

 

service of the petition on her relied on the saving clause in Paragraph 10(2) as to non-filing of memorandum of appearance cannot be said to have religiously kept to the Rules of the Tribunal and accorded the status of a party against whom a fresh application for pre-hearing should be made moreso as she did not complain after filing her reply but immediately filed her pre-hearing information sheet that is (Form TF008), regularized her processes which was out of time and actively participated in the pre-hearing session.

Learned Counsel referred to the provision of Paragraph 10(2) of the First Schedule to the Electoral Act and then submitted that a Petitioner who does not want to be caught up with Paragraph 18(1) of the Rules of Procedure of Election Petition will file his application for re-hearing session after any of the Respondents file its reply and not wait till the end of 21 days as provided by Paragraph 10(2) to the First Schedule.

The trial Tribunal, said Counsel conceded in its ruling of 8th of July, 2015 that “Close of Pleadings” as contained in the decided cases like in Gebi v. Dahiru (supra) was not specifically mentioned in Paragraph 18(1) of the

 

First Schedule to the Electoral Act as a condition precedent for applying for pre-hearing session. (page 328 record of appeal).

The above notwithstanding, said Counsel, the Tribunal further held at page 329 of the record that:
“We are in agreement with Learned Counsel for each of the Respondents in their submission that the application of the Petitioners for pre-hearing notice filed before issues were completely joined and exchanged in this petition was premature and not in compliance with Paragraph 18(1) of the First Schedule to the Electoral Act”.

Appellants argued that the Tribunal having ruled that the Petitioners/Appellants’ application for pre-hearing session was premature; that the Tribunal ought to have applied the judgment of the Court of Appeal in Ezeudu v John (2012) 7 NWLR (Pt 1298) 1 where the Court specifically addressed the issue of a petition where the application for pre-hearing was made before the Respondents filed their reply.

He submitted that by the judgment of the Court of Appeal (per Adumein JCA) in the case of Ezeudu v John (supra) the Petitioners/Appellants’ application for pre-hearing session was in order in respect of the 1st and 2nd

 

replies because as at the time it was made, the 3rd Respondent has not filed reply or any processes showing her intention to defend the petition.

He urged us to apply the decision of this Court in Ezeudu v John (supra) and hold that the petition ought not to be dismissed based on prematurity of the application in regard to the reply of the 3rd Respondent alone, in view of the fact that the 1st and 2nd Respondents’ replies were duly filed and served before the Petitioners/Appellants applied for pre-hearing session.

The response to Appellants’ Issue 1 could be found in the treatment of Issue 1 of the 1st and 2nd Respondents and in the treatment of Issues 1 and 2 of the 3rd Respondent.

The Respondents submitted that any application for the issuance of pre-hearing conference notice that is made prematurely or belatedly in election petition is not only fatal, but same renders the petition incompetent. That is, premature application for the issuance of Form TF007 constitutes a veritable ground upon which the petition is liable to be dismissed.

They argued that it is clear from page 175(A) of the record of appeal that the Appellants filed their application for

 

pre-hearing notice on the 25th May, 2015 while the 3rd Respondent filed its reply to the Petitioner’s petition on the 26th May, 2015 and served same on 3rd June, 2015.

On this, the Respondents relied on the authority of the decision of this Honourable Court in the case of Gebi v Dahiru (2012) 1 NWLR (Pt.1282) 560, 616 and argued that the import of the authority of Gebi v Dahiru (supra) is that, the application for pre-hearing notice must be made within seven (7) days after the close of pleadings. Any application for pre-hearing notice made before the close of pleadings or made after seven (7) days after the close of pleadings is defective and incompetent. Counsel to the Respondents also relied on the case of Ohaka v Eze (2010) All FWLR (Pt.525) 380 where the Court of Appeal Port Harcourt Division held:
“———- the effect of applying for pre-hearing session notice before the close of pleadings is to shut out the Respondent, whose time was yet to efflux——. The process or application filed on 27th July, 2007 by the Petitioner/Appellant for pre-hearing session notice was premature. It vested no legal right or obligation on the parties. It is incompetent”.

More

 

particularly from the 3rd Respondent, the Respondents also submitted that the Appellants were supposed to apply for the issuance of Form TF007 after the 26th of May, 2015 i.e. after the Respondent filed its reply. Also, that the Petitioners/Appellants had an option to withdraw the previous Forms TF007 and TF008 issued on its behalf by the Tribunal and apply for the issuance of a new Form TF007 after the 26th of May which was the day pleadings close by law by virtue of the filing of a reply by the 3rd Respondent.

In deciding Appellants’ Issue 1, it is important to re-capture the reasoning of the Tribunal on the question of what stage of the proceedings must a Petitioner file his pre-hearing application. At pages 328-329 of the record of appeal, the learned trial Tribunal held extensively as follows:
First, “This brings us to a consideration of the status of the application for pre-hearing notice filed in this petition. The question to be asked and answered is at what stage in the proceedings in an election petition should an application for pre-hearing notice be filed? The question has been settled beyond doubt, as judicial pronouncement of our appellate

 

Courts are unanimous on the point that it is after close of pleadings or after pleadings are deemed closed, that the petitioner can apply for pre-hearing notice within the time frame prescribed in the schedule to the Electoral Act. Close of pleadings is therefore a condition precedent to a valid application for pre-hearing notice. We shall refer to a few of the authorities, namely: Azudiba v INEC (supra); Ikoro v. Izunaso & Ors. (2009) 4 NWLR (Pt.1130) 45; Ohaka v Eze (2010) All FWLR (Pt 525) 380 at 391; Gebi v Dahiru (Supra) and Omisore & Anor v Aregbesola & Ors (unreported) Supreme Court Judgment in SC 204 & 204A delivered on the 27th of May, 2015”.

The Tribunal continued:
“We note that the phrase used in those cases is ‘close pleadings’ which is not found in Paragraph 18(1) of the First Schedule (supra). The phrases used in Paragraph 18(1) of the First Schedule are “filing and service of Petitioner’s reply” and “filing and service of Respondent’s reply”. We are of the view and it cannot be doubted that whether it is close of pleadings or filing of the relevant reply, they all mean one and the same thing, i.e., when issues are completely and

 

finally joined or deemed to be so joined in the matter”.

Secondly, at page 329: “The question then is, if the complete joinder or deemed joinder of issues is a condition precedent to the application for pre-hearing notice in an election petition, is the application filed in this case before issues were completely joined, in compliance with Paragraph 18(1) of the First Schedule to the Electoral Act competent?
In other words, can an application for pre-hearing notice made pre-maturely be said to be in compliance with Paragraph 18(1) of the First Schedule to the Electorate Act?
It is to be noted that as at the 25th of May, 2015, when the application for pre-hearing notice was made in this case, the time for the 3rd Respondent to file their reply had not elapsed. The 3rd Respondent filed its reply on the 26th of May, 2015 and within the time allowed them to do so.”

Thirdly and still at page 329, the trial Tribunal continued thus:
“Learned Senior Counsel for the Petitioners contended that their application is not pre-mature and cannot be pre-mature, since they filed their application after the first set of Respondents filed their reply. With due respect to the Learned

 

Counsel, we think that he missed the point, Paragraph 18(1) of the First Schedule to the Electoral Act is not complied with when there is still a Respondent whose time to show willingness or readiness to defend the petition has not elapsed.
According to the respective Counsel for each of the Respondents, the application is premature and in violation of the provisions of the said Paragraph 18(1) and is therefore fatal to the petition

Finally, on this score and still at page 329, the Learned Trial Tribunal concluded:
“We are in agreement with Learned Counsel for each of Respondents in their submission that the application of Petitioners for pre-hearing notice filed before issues were completely joined and exchanged in this petition was premature and not in compliance with Paragraph 18(1) of the First Schedule to the Electoral Act.”
For ease of reference, the said paragraph reads thus:
“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 008.”
The simple

interpretation that one can give to the above provision is that the Petitioner is obliged at the latest period of “7 days after the filing and service of the Petitioner’s reply on the Respondent” OR at the earliest period file the application for pre-hearing session “7 days after the filing and service of the Respondent’s reply”.
This to my mind is the appropriate implication of the disjunctive word ‘OR’ in between the first and second phrases of Paragraph 18(1) of the First Schedule to the Electoral Act and the follow up of the use of “as the case may be” thereafter.
By the above, it is not wrong for the Courts to refer to the situation depicted in either of the phrases of Paragraph 18(1) of the Schedule to the Electoral Act 2010 (as amended) as “close of pleadings” or “when issues have been joined” and to borrow the expression used by the Learned Trial Tribunal at pages 326 to 327 “—–the bottom line is that the prescribed time must be complied with”.
The term “close of pleadings” has become a recognized expression to capture the two different time limits intended by the draftsman of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as

amended) and as was rightly pointed out by the Learned Trial Tribunal has been used in numerous cases including the decision of the Court of Appeal in Aliyu Ibrahim Gebi v Alhaji Garba Dahiru (2012) 1 NWLR (Pt 1282) 560 and the more recent unreported decision of the Supreme Court in Senator Iyiola Omisore & Anor v Ogbeni Rauf Aregbesola & Ors SC.204/2015 (unreported).

The Appellants, cannot therefore be heard to complain on this score.

Issue 1 is resolved against the Appellants.

On issue 2, Learned Senior Counsel for the Appellants submitted that the Tribunal ruled that the petition is deemed abandoned because a fresh application for pre-hearing session was not made after the 3rd Respondent filed her reply. That the Tribunal relied on Paragraph 18(4) of the First Schedule to the Electoral Act which provides thus:
“Where the Petitioner and the Respondent fail to bring an application under this paragraph, the Tribunal or Court shall dismiss the petition as abandoned and no application for extension of time to take that step shall be filed or entertained”.

Learned Senior Counsel for the Appellants submitted that before this rule in Paragraph 18(4) can be

 

invoked by the Tribunal suo motu, the following conditions must be fulfilled:
(a) The Petitioner has failed to apply for pre-hearing under Paragraph 18(1).
(b) The Respondent has failed to apply for the petition to be dismissed under Paragraph 18(3).

He submitted that Paragraph 18(4) of the First Schedule to Electoral Act is not applicable to this petition because the Petitioners/Appellants applied within time when the 1st and 2nd Respondents filed their reply to the petition. That there was an application for pre-hearing session, there was a pre-hearing session duly convened by the Tribunal.

Also, that All Parties submitted to the proceedings of the pre-hearing session for 3 days without objection.

Appellants’ Counsel submitted further that the 3rd Respondent who filed her Reply to the petition after the Petitioners applied for pre-hearing session, applied to regularize her participation in the pre-hearing session by filing Form TF008 and applying before the Tribunal for an order to deem the Form TF008 (that is pre-hearing information sheet) as properly and duly filed.

Counsel submitted that in the circumstances, the Appellants’ petition cannot be deemed to have

 

been abandoned.

He submitted that Paragraph 18(4) is not applicable, that it is only where an application is made after the seven days within which to apply for pre-hearing session that a petition can be deemed as abandoned. He argued that Paragraph 18(4) does not include a situation where a petitioner applied prematurely as is being contended in this petition.

Counsel submitted further that it is only where there is no issuance of relevant Form TF007, TF008 by the Tribunal and there is no ongoing pre-hearing session that a petition can be deemed abandoned. He argued that the Tribunal ought to have ruled that the Petitioners’ application for pre-hearing session was premature only in respect of the 3rd Respondent but properly filed in respect of the 1st and 2nd Respondents. Learned senior counsel for the Appellants submitted that the above submission represents the attitude of the Court of Appeal in the case of Ezeudu v John (2012) 7 NWLR (Pt.1298) I at 20-21.

He added that the case of Ezeudu V John (supra) was cited before the Tribunal by the Appellants but that the Tribunal did not apply or give any reasons for not abiding by the decision.

Appellants’ Counsel

 

urged us to apply the decision in Ezeudu v John (supra) and set aside the decision of the trial Tribunal in dismissing the petition based on the complaint that application for pre-hearing was premature in respect of the 3rd Respondent alone. He submitted that with the Petitioner applying for pre-hearing within 7 days of their Reply to the 1st and 2nd Respondent Reply, the petition cannot be deemed to have been abandoned against the 1st and 2nd Respondent.

Also, that since the petition is not deemed abandoned against the 1st and 2nd Respondent, then the prematurity of the said application in respect of the reply of the 3rd Respondent will not nullify the proceeding or the entire petition in respect of the 3rd Respondent who has willingly participated in the pre-hearing session.

The response of each of the Respondents to Appellants’ Issue 2 could be found in the treatment of the respective Issue 1 of the Respondents. Meanwhile, I have had occasion to touch on the Respondents’ response to Appellants’ Issue 2 in my treatment of Issue 1.

The summary of the Respondents’ reaction to Appellants’ Issue 2 for avoidance of repetition is that the filing of application for the

 

issuance of pre-hearing conference notice, that is Form TF007 within time is a mandatory and immutable requirement under the Electoral Act. That any application for the issuance of pre-hearing conference notice that is made prematurely or belatedly in election petition is not only fatal, but same renders the petition incompetent. That premature application for the issuance of Form TF007 constitutes a veritable ground upon which the petition is liable to be dismissed.

The Respondents relied on this score on the cases of Gebi v Dahiru (supra); Ohaka v Eze (supra) and Maitsidau v Chidari (2008) 16 NWLR (Pt. 1114) 553, 575.

Suffice to say that in deciding Appellants’ Issue 2, the facts and circumstances of the present appeal are quite distinguishable from the facts and circumstances of the previously decided cases, relied on by the Respondents.

In the instant case, the Petitioners/Appellants applied for the pre-hearing session within time when the 1st and 2nd Respondents filed their reply to the petition. There was not only an application for pre-hearing session, there was in fact a pre-hearing session for 3 days without objection. Also, the 3rd

 

Respondent who filed her reply to the petition after the petitioners applied for pre-hearing session, applied to regularize her participation in the pre-hearing session by filing Form TF008 and also applied for an order to deem the Form TF008 as duly and properly filed.

In these circumstance, whatever irregularity that could have been committed by the Appellants could not justifiably be elevated to the status of abandonment of petition in line with the provision of Paragraph 18(4) of the First Schedule to the Electoral Act 2010 (as amended).

Indeed, Paragraph 18(1) does not operate to foreclose premature application for issuance of pre-hearing notice but forbids belated application. This was the position of this Court in Ezeudu v John (2012) 7 NWLR (Pt. 1298) 1 at 20-21 where his Lordship, Adumein JCA held inter alia:
“———Assuming, however, that the Appellant prematurely filed his application for the issuance of pre-hearing notice, this ought not to be fatal to the hearing and determination of the petition on the merits. The prematurity of applying for the issuance of pre-hearing notice in the petition ought not to have been promoted to the devastating

and/or destructive consequence of having the petition summarily dismissed. The action of the Appellant, who claimed to be under the impression that at the time he applied for the issuance of the pre-hearing notice pleadings in the petition had closed, was a clear signal by a Petitioner not willing to abandone his petition but to diligently prosecute same ———“.

Also, even when it could be conceded, that the case of SA’EED v Yakowa (2013) 7 NWLR (Pt 1352) 124 at 144-145, 156 is not directly on this point, we are able to learn from Fabiyi JSC at page 156 that:
“The essence of filing the pre-hearing notice as in Form TF007 and the answers thereto in Form TF008 by the Petitioners is to give the Respondents an insight on the issues to be dealt with and narrowed down during the pre-hearing session. Its non-filing at all can vitiate or void the petition. That the Petitioner did not come by way of motion equates with mere irregularity which can be cured by the Paragraph 53 of the First Schedule to the Act. This is more so since the pre-hearing session was in fact conducted with parties’ Counsel in attendant”.
At page 164 in the same Sa’EED v Yakowa case (supra)

Ngwuta JSC explained the purport of pre-hearing session as follows:
“The purpose of pre-hearing notice is to inform the parties of the impending hearing and to ensure attendance at the hearing. If for any reason or by any means this purpose is achieved without formal application for issuance of pre-hearing notice, a party who has taken part in the proceedings cannot be heard to argue that the rule was not complied with, more so when there is no allegation of miscarriage of justice from the non-compliance.
See: Ipinlaye II v Olukotun (1996) 6 SCNJ 74 at 88, (1996) 6 NWLR (Pt 453) 148; Akhiwu v Principal Lotteries Officer Mid West (1972) 1 All NLR (Pt 1) 229 at 238; Okwechime v Phillip Igbinadolor (1964) NMLR 132”.

From the aforementioned authorities, it would seem that once a Petitioner makes an application, in the prescribed form before the expiration of the time allowed, there is compliance with the provision of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended). The mode of the application and the earliest time to make it are matters concerning or affecting the regularity of complying with the provision. In other words, an irregularity

 

which occurred in the process of complying with the mandatory provision can and should be ignored unless it is shown to have occasioned a miscarriage of justice.

This is because the Courts are enjoined to adopt liberal, non-technical and non-restrictive approach in the application of the provision of First Schedule to the Electoral Act including the provision of Paragraph 18(1) hereof.
See e.g. Abubakar v Nasamu (No. 2) (2012) 17 NWLR (Pt 1330) 407 at 577; Dimegwu v Ogunewe (2008) 4 LRECN 458 at 476.

Now, it seems the trial Tribunal in the Instant case placed heavy reliance on the five man panel decision of the Court of Appeal in the case of Gebi v Dahiru (supra) to come to the conclusion not only that the premature application of the Appellant for pre-hearing session was not only incompetent but also vitiates the petition as it is tantamount to abandonment of the petition under Paragraph 18(4) of the First Schedule. The Learned Trial Tribunal did not hide its preference for the case of Gebi v Dahiru (supra) over and above the earlier decision of the Court of Appeal in Ezeudu v John (supra). One of such reasons was that the decision in Gebi v Dahiru was later in

 

time, it was by a five-man panel of Justices and that none of the Justices made any comment on the views expressed by Dongban-Mensem JCA on the issue of incompetence of a premature filing of an application for pre-hearing notice. And, the Learned Trial Tribunal therefore distinguished the case of Ezeudu and Gebi (supra).

However, come to think of it, the five-man panel of Justices in the case of Gebi v Dahiru (supra) was indeed not called upon to decide the question of the effect of a premature pre-hearing application on a petition. Rather, the panel was called upon to decide only two issues namely:
“1. Whether the letter dated 1st June, 2001 written to the Tribunal by Counsel to the 1st and 2nd Respondents applying for issuance of pre-hearing notice complied and carried out the intention and requirement of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended).
2. Whether the allegation by the Appellant that the 1st and 2nd Respondents’ letter of 1st June, 2001 was backdated was in the circumstances not misleading and whether the trial tribunal was right in ignoring the allegation”.

From this perspective, the case of Gebi v Dahiru (supra) could

 

not by any imagination be authority for the proposition that the premature filing of an application for pre-hearing session by a Petitioner leads to abandonment of the petition under Paragraph 18(4) of the First Schedule. By the same token, the passage credited to his Lordship Dongban-Mensem, JCA in his contributory judgment in Gebi v Dahiru at page 616 of the report is in the circumstance Obiter.

In view of the above, I agree with the Learned Senior Counsel for the Appellants that even if the pre-hearing application by the Petitioners/Appellants in this case was made prematurely, the petition cannot for that reason have been abandoned or deemed abandoned under Paragraph 18(4) of the First Schedule to the Electoral Act.

Issue 2 is accordingly resolved in favour of the Appellants.

The main grouse of the Appellants in Issue 3 is that in the circumstances of this case, the 3rd Respondent would have been held by the learned trial Tribunal to have waived non-compliance with Paragraph 18(1) of the First Schedule having filed Form TF008, brought an application to regularize it and the Tribunal ruled on the application granting same. Also, that the 3rd Respondent has

 

taken step to regularize her participation in pre-hearing session and has participated in it for 3 days without objection. Furthermore, Application for inspection of Electoral document was moved by the Petitioners without 3rd Respondent objecting to it. Motion for amendment of replies of the 1st and 2nd Respondents was moved without objection from the 3rd Respondent. All parties also participated in the pre-hearing session.

Appellants’ Counsel also submitted that on 16th of June 2015, during pre-hearing session parties agreed on number of witnesses to be called during the trial of the case. These, he said, are steps already taken pursuant to the petition. The non-compliance raised by the Tribunal is deemed waived by the 3rd Respondent and all the Respondents in the petition in the prehearing session.

Appellants’ Counsel heavily relied on this score on the case of SA’EED v Yakowa (2013) FWLR (pt 692) 1650 at 1667 to 1670 and submitted further that the circumstances of the present petition is quite different from the unreported decision of the Supreme Court in Aregbesola v Omisore (supra).

That in the instant case, the application for pre-hearing was within time in

 

respect of the 1st and 2nd Respondents’ replies while it was premature in respect of the 3rd Respondent. That the 3rd Respondent did not oppose to the proceedings of the Tribunal but waived that paragraph and participated in the proceedings of the pre-hearing session.

Appellants’ Counsel further submitted on Issue 3 that the Tribunal ought not to have veered from Paragraph 53(2) of the First Schedule to the Electoral Act as canvassed by all the parties in their written address before it and rules on Paragraph 53(1) of the same First Schedule on which parties did not address the Tribunal and which is not on the doctrine of waiver.

On this, Learned Senior Counsel for the Appellants referred to the cases of Ezeudu v John (supra) and Abimbola v Abatan (2001) FWLR (Pt 45) 989 and posited that:
“On no account should a Court raise a point of law suo motu, no matter how clear it may be and proceed to resolve it in one way or the other without hearing parties”.

That none of the parties in the instant case relied on Paragraph 53(1) of the First Schedule to Electoral Act or cited the unreported case of Aregbesola v Omisore (supra) before the Tribunal. And, that the rights to

 

fair hearing entails that the Tribunal ought to have directed parties in the petition to address it on the said unreported case and the issue of law raised therein before relying on it to dismiss the petition. Each of the Respondents reacted to Appellants’ Issue 3 in their treatment of their respective Issue 2.

The Respondents submitted that the argument about waiver and/or taking fresh steps are irrelevant particularly when the consequence of not applying for Form TF007 in the manner prescribed in Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) is that the petition be dismissed.

They (Respondents) referred to the case of Ugba v Suswam (2013) 4 NWLR (Pt.1345) 427, 457, 458 and submitted that it is clear that the provisions of Paragraph 18(1) and (4) of the First Schedule to the Electoral Act deal with a special procedure which is peculiar to election petition. That the special consequence contained in Paragraph 18(4) of the First Schedule to the Electoral Act are not available or applicable in ordinary civil matter and placing reliance on civil cases on issue verging on its application is unhelpful.

The Respondents submitted that the case of

 

SA’EED v Yakowa (supra); (2013) 7 NWLR (Pt 1352) 124 cited by Appellants’ Counsel cannot avail the Appellants but will only apply to the detriment of the Petitioners.

They argued that the Issue dealt with in SA’EED v Yakowa (supra) by the Supreme Court, does not bother on non-filing or premature filing of application for issuance of Form TF007 but the consideration of Paragraph 53(1), (2) and (4) of the First Schedule to the Electoral Act 2010 (as amended) in relation to mode or method with which the Petitioner therein approached the Court for the issuance of Form TF007; that is apply by way of letter instead of by way of motion.

Learned Counsel to the Respondents further submitted that Paragraph 53(2) of the Electoral Act 2010, does not apply in the instant appeal in that the issue under discussion i.e. premature filing of pre-hearing notice as in Form TF007 was raised suo motu by the Court and not by parties.

Respondents urged us to discountenance the argument and submissions of the Appellants on the issue of taking steps after the discovery of the said non-compliance in this case. According to them, moreso as the Court is not prohibited from raising issue suo

 

motu. And that what the rule requires is that whenever a Court raises an issue suo motu, it must afford the parties the opportunity to address it on the issue, which they said was done in the instant case. They referred to the cases of Uwazuruonye v Gov. Imo State (2013) 8 NWLR (Pt 1355) 28, 50.
Uzoho v NCP (2007) 10 NWLR (Pt.1042) 320.
Dairo v UBN Plc (2007) 16 NWLR (Pt.1059) SC 99 at 137-138.

They concluded that the trial Tribunal was right in holding that the principle of waiver cannot apply to save the petition of the Appellants having failed to comply with mandatory statutory provision with accompanying punishment for non-compliance.

One cannot seriously countenance the second leg of Appellants’ Issue 3 on the question of whether the Tribunal specifically requested the parties to address on the applicability or otherwise of the provision of Paragraph 53(1) of the First Schedule to the Electoral Act which was eventually relied upon by the Tribunal having given the parties the opportunity perhaps more generally on the issue raised suo motu by the Tribunal.

However, I think justice and fairness requires that when the Tribunal raised the issue of non-compliance

 

with the provision of Paragraph 18(1) of the First Schedule suo motu, it ought also to consider whether the totality of the steps taking in the proceedings by the 3rd Respondent who did not complain amounted to waiver of the said non-compliance under Paragraph 53(2) of the First Schedule to the Electoral Act.

Indeed, I have no doubt that in the circumstances of this case, the 3rd Respondent took steps and that all the Respondents acquiesced to the irregular procedure adopted by the Petitioners/Appellants as to the premature filing of the application for pre-hearing session.
I do not think the fact that the non-compliance was not raised by any of the Respondents prevented the Tribunal from considering and indeed applying the provision of Paragraph 53(2) of the First Schedule to show that the parties have taken steps after the said irregularity, moreso as pre-hearing session had gone into the 3rd day before the Tribunal raised the issue suo motu.
In this respect, the decision of the Supreme Court in the SA’EED v Yakowa (supra) truly provides effective authority.
Tabai JSC who delivered the lead judgment in that case had this to say

at pages 1668-1670:
First, that:
“——– On the preliminary objection therefore, I hold that in view of the steps taken by the Petitioners/Appellants by their filing of the pre-hearing information sheet and submission of their issues for determination in the petition and the corresponding steps taken by the Respondents in reaction thereto in their defence of the Petition, the Petitioner/Appellant cannot rightly be held to have abandoned the petition under Paragraph 18(4) of the First Schedule to Electoral Act 2010 (as amended) ———“.
Secondly that:
“It follows therefore that the Petitioners’ breach of any provisions of the First Schedule does not affect the jurisdiction of the Tribunal or Court to entertain or adjudicate on the petition. Rather, such a breach if substantial, can only amount to Petitioners’ failure to prosecute the petition with the consequence of its dismissal. It is also clear from the reproduced portion of the judgment of the Court below that it involved the provisions of Paragraph 18(1) of the First Schedule to the Electoral Act without taking cognizance the saving provisions of Paragraph 53(1), (2) and (4) of the same schedule ————-

Rules of Procedure are made to enhance and facilitate the due administration of justice and are therefore meant to be obeyed.
See GMO Nworah & Son Ltd v Afam Akputa (2010) All FWLR (Pt 524) 86; Anya v Ann Ltd (1992) 6 NWLR (Pt 247) 319; Ajayi v Omoroge (1993) 6 NWLR (Pt 301) 512”.
The simple implication of the above dictum by Tabai JSC is that all the provision of the rules of the Tribunal must be read together in order to enhance justice. The saving provision for non-compliance in Paragraph 53 of the First Schedule are in no way inferior to other part of the rules.
I therefore agree with the Learned Senior Counsel for the Appellants that non-compliance with Paragraph 18(1) of the Electoral Act has been waived by the 3rd Respondent in the instant case and that the participation of All the parties in the pre-hearing session necessitated the consideration and application of the doctrine of waiver embodied in Paragraph 53(1) of the First Schedule to the Electoral Act to save the Appellants’ petition.

Accordingly issue 3 is resolved in favour of the Appellants.

In this appeal, Issue 1 was resolved against the Appellant but Issue 2 and 3 were resolved in favour of

 

the Appellants.

Consequently, the Appellants’ appeal is allowed in part. The further consequence of the determination of issues 2 and 3 in favour of the Appellants is that the Ruling of the National and State House of Assembly Tribunal sitting in Akure delivered on the 8th of July, 2015 in Petition No. EPT/AK/HA/5/2015 is hereby set aside.

It is hereby ordered that the Appellants’ petition be tried de novo by another panel of the National and States House of Assembly Tribunal otherwise than the Panel consisting of Hon. Justice O.A. Ogar, Chairman; Hon Justice J.U. Obiora (member) and Hon. Justice A.B. Akogu (member).

The Appellants are awarded costs of N50,000 jointly and severally against the Respondents.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.

JAMES SHEHU ABIRIYI, J.C.A.: I agree.

 

APPEARANCES
O. O. Akeredolu (SAN)
with C. Titiloye Esq.,
V. Olatoyegun Esq.,                       For the Appellants
S. Ajisafe Esq.,
K. Adediran Esq.
and O. Agala Esq.

A. Adejuyigbe (Mrs.)
with G. Okoye (Mrs.)                     For 1st Respondent
and John Daramola Esq.

A. Olatubora Esq. with
A. O. Ogidan Esq.                        For 2nd Respondent
O. Olubola Esq.
?

Nnema Onyeama Esq.                  For 3rd Respondent

 

Appearances

O.O. Akeredolu SAN with
C. Titiloye Esq.
V. Olatoyegun Esq.
S. Ajisafe Esq.
K. Adediran Esq.
O. Agala Esq.For Appellant

 

AND

1st Respondent
A. Adejuyigbe (Mrs.)
G. Okoye (Mrs.)
John Daramola Esq.

2nd Respondent
A. Olatubora Esq. with
A.O. Ogidan Esq.
O. Olubola Esq.

3rd Respondent
Nnema Onyeama Esq.For Respondent

 

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