GABRIEL TORWUA SUSWAM v. PROF. STEVEN TORKUMA UGBA & ORS.
(2011)LCN/4750(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of September, 2011
CA/MK/EPT/07/2011
RATIO
MOTION EXPARTE: WHETHER THE HEARING AND DETERMINATION OF A MOTION EX-PARTE WILL VIOLATE THE CONSTITUTIONALLY GUARANTEED RIGHT TO FAIR HEARING OF THE RESPONDENT(S) TO THAT MOTION
It is trite that where a Court is seised of the necessary jurisdiction and competence to hear and determine a motion Ex-parte, it does not in doing so violate the constitutionally guaranteed right to fair hearing of the Respondent(s) to that motion. Also by its very nature, wherever by Law it was allowed to be made or brought, an Ex-parte motion is never envisaged to be served on any Respondent to it, unless of course, where the Court dealing with same for good reasons deemed it fit to order for it to be served on the other party or parties to show cause why it ought not be granted and thereby using its discretionary power of converting same into a motion on notice. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
INTERPRETATION OF STATUTE: RELEVANCE, MEANING AND EFFECT OF THE EXPRESSION “SHALL APPLY” IN PARAGRAPH 18(1) AND THE EXPRESSION “SHALL BE SERVED ON THE RESPONDENTS” IN PARAGRAPH 47(2) OF THE 1ST SCHEDULE OF THE ELECTORAL ACT 2011
Paragraph 18(1) provides: – “Within 7 days after the filing and service of the petitioner’s reply on the Respondents or 7 days after the filling and service of the Respondents reply, whichever is the case, the petitioner shall apply for the issuance of prehearing notice as in form TF-007.” (Emphasis supplied by me) Paragraph 47(2) provides:- “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 Respondents.” (Emphasis supplied by me) The crux of the matter in this appeal in my humble view is the relevance, meaning and effect of the expression “shall apply” in paragraph 18(1) and the expression “shall be served on the Respondents” in Paragraph 47(2). It is clear from paragraph 18(1) that it is the Petitioner in an Election Petition that is given the right of first option to kickstart the essential and mandatory pre-trial procedures. Where the petitioners fails to comply with the provisions of paragraph 18(1), any of the respondents may make a similar application pursuant to paragraph 18(3). This is the 2nd option. Where however both petitioner and respondent(s) fail to bring this crucial application, the Tribunal or Court may proceed to dismiss the petition as having been abandoned. The failure to ignite and kick-start the pre-hearing process within the stipulated 7 days engenders a very devastating and fatal consequence on the petitioner and indeed the petition itself. Now, because of this devastating consequence, it is necessary for a petitioner to be fully vigilant and mark the very date pleadings closed and for the 7 days provided in paragraph 18(1) to start running. It is equally important for any of the Respondents to remain vigilant because, upon any failure by the petitioners to fully comply with paragraph 18(1) they could avail themselves of the advantage of having the Petition dismissed in limine and without the rigours of a full and proper trial. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
GABRIEL TORWUA SUSWAM Appellant(s)
AND
1. PROF. STEVEN TORKUMA UGBA
2. ACTION CONGRESS OF NIGERIA (ACN)
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): REASONS FOR THE JUDGMENT DELIVERED BY ALI ABUBAKAR BABANDI GUMEL, J.C.A. ON FRIDAY 16TH DAY OF SEPTEMBER, 2011
On the 15th-09-2011, this court heard this appeal. In my judgment of 16th-09-2011, I dismissed the appeal for being unmeritorious and indicated then that I would give my full reasons later. I now do so today 22nd -09-2011.
In arguing his single issue for the determination of this appeal, Learned Counsel to the Appellant referred to and reproduced paragraphs 18(1) and 47(2) of the 1st schedule to the Electoral Act 2011, as amended (hereinafter referred to simply as paragraphs 18(1) and 47(2).) Further to this, learned counsel emphasized and underscored the expressions “Shall Apply” in paragraph 18(1) and “Shall be served on the Respondents” in paragraph 47(2). Upon this exercise Learned Counsel then explained that a proper interpretation of these provisions, if read together, will show that all applications contemplated therein to be made to the Lower Court must be by way of a motion on notice and which must be served on the opposing parties. According to Learned Counsel, the Procedure of bringing on application by motion Ex-parte, as in the instant matter, is unknown to the Electoral Act 2010, as amended (hereinafter referred to simply as Electoral Act, 2010).
Upon this foundation Learned Counsel went on further to submit that the service of the application for issuance of pre-hearing notice on the respondents is mandatory and where a Court made an order Ex-parte, for the same purpose, as in the instant case, it was bound to set it aside upon a proper application made to it in that behalf . He relied on the Supreme Court decisions in OKOYE V. CENTRE POINT MERCHANT BANK LTD (2008) 7- 12SC I and MARK V. EKE (2004) 1 SC (Pt.2) 1. Learned counsel went on further to quote copiously from the judgment of MUSDAPHER JCA in MARK V. EKE (Supra) and OGUNTADE, JSC in OKOYE V. CENTRE POINT MERCHANT BANK LTD (Supra).
Learned Counsel to the Appellant continued his arguments by emphasizing that the issuance of a Pre-hearing notice upon an Ex-parte application did not Proceed from a valid application within the meaning of paragraph 18(1) and urged this Court to so hold.
According to Learned Counsel to the appellant , the word “application” in paragraph 18(1) must meet the requirements of paragraph 47(2) which provides for all applications to the Lower Court to be made by way of a motion and which must be served on the Respondents to it. In support of this, Learned counsel referred to and quoted very generously from the decisions of the Supreme Court in OKEREKE V. ‘YAR ADUA (2008) 12 NWLR (pt.1100) 95 and NWANKWO & ORS. v. ‘YAR ADUA (2010) 12 NWLR (Pt.1209) 518. In highlighting the crux of the matter in this appeal, Learned Counsel began by underscoring the fact that the Supreme Court was concerned with the construction, interpretation and application of pari-materia provisions in OKEREKE (Supra) with paragraph 18(1), 18(2), 18(3) and 18(4). In addition to this, Learned Counsel pointed out that these are mandatory provisions and must be complied with. In addition to the supreme Court decision in NWANKWO V. ‘YAR ADUA (Supra) that all the provisions of the Practice Direction are mandatory and require full compliance Learned Counsel referred to the un-reported decision of this Court in ALHAJI BADAMASI AYUBA V. INEC & OTHERS. IN APPEAL NO.CA/K/EP/NA/15/2007 delivered on 14/5/2009 on the mandatory nature and the need to strictly comply with the provisions of the Practice Direction, where it was further held that the application envisaged to be made under a similar provision to paragraph 18(1) must necessarily be made by way of a motion. Learned Counsel went a step further to maintain that the only application envisaged under paragraph 18(1) is on application in a motion on notice duly served on the Respondents.
Though the facts and circumstances of the cases of AYUBA V. INEC (Supra) and GARBA ADO V. MAKERA (2009) 9 NWLR (pt.1147) 391 and HOPE DEMOCRATIC PARTY V. INEC & OTHERS. Appeal No. CA/A/EP/5/2007 are not the same as in the instant appeal, Learned Counsel referred to them to underscore the auxiliary argument that the provisions of the Practice Direction must be read holistically in order to achieve a proper meaning and effect to their declared objective of expeditious and speedy adjudication in Electoral matters.
According to Learned Counsel the application for issuance of a pre-hearing notice by the 1st and 2nd Respondents in an Ex-parte motion was an attempt to circumvent the provisions of the Electoral Act and the Practice Direction. Learned Counsel referred to OHAKA V. EZE and urged this Court to so hold and set aside the orders made pursuant thereto. Learned Counsel then referred to and highlighted the case of RIRUWAI V. SHEKARAU (2009) ALL FWLR (pt.461) 975. Because the Lower Court placed substantial reliance on it in arriving its decision, now sought to be set aside, Learned Counsel distinguished its facts and circumstances and submitted that it is totally inapplicable in the instant appeal. He urged this court to allow this appeal and hold that the Exparte application made to the Lower Court by the 1st and 2nd Respondents was incompetent and to also set aside the order pursuant thereto. He also urged the court to hold that the said application was incompetent and as such no application for a pre-hearing notice was made within the 7 days required by Law.
In his response learned counsel to the 1st and 2nd Respondents explained that the actual mode by which application for the issuance of a pre-hearing notice was to be made has not been defined under the Electoral Act and the Practice Direction made pursuant thereto. Learned counsel consoled himself with the fact that any attempt at a definition of the mode for the application can only be made upon a consideration of FORMS TF 007 and TF 008. With this explanation as a background, Learned Counsel referred to the recent decision of this court in the Un-reported case of ALIYU IBRAHIM GEBI V. ALHAJI GARBA DAHIRU & ORS. Appeal No. CA/EP/HR/127/2011 delivered on 22/08/2011 where it was specifically held that for the purpose of compliance with paragraph 18(1) any method of application either by letter, or motion Ex-parte or on notice is acceptable. He also relied on the decision of this court in RIRUWAI V. SHEKARAU (2008) 12 NWLR (Pt.1100) 142 at 149 where an Ex-parte motion was suggested as sufficient to satisfy the requirements of a provision pari material to paragraph 18(1).
Because of the substantial reliance by the Appellant on the case of OKEREKE V. ‘YAR ADUA (Supra) Learned Counsel to the 1st and 2nd Respondents did on Yeomon’s job of distinguishing the facts and circumstances of that matter. His conclusion is that OKEREKE (Supra) is not applicable to the facts and circumstances herein. And while relying on the case of ADEGOKE MOTORS LTD V. ADESANYA (1989) 3 NWLR (pt.109) 250, Learned Counsel explained that to determine the binding nature of the decision of a Superior Court on a Lower Court it must be shown that the facts; the provisions of the applicable Law and the issues distilled for hearing were either similar or the same with those in consideration in an instant matter.
According to Learned counsel the issue as to the mode of application for the issuance of pre-hearing notice did not arise in the case of OKEREKE V. YAR ADUA (Supra). Also, Learned Counsel argued that no similar provisions to paragraphs 18 and 47 were called for interpretation and application OKEREKE (supra). He urged this Court to hold that the applicable Law in OKEREKE’S case was neither similar nor the same with the case under consideration in the instant appeal. He added further that the case of OKEREKE v. ‘YAR ADUA (supra) has no binding force on the facts and circumstances of this appeal. He urged this to hold that the Ex-parte motion filed by the within named 1st and 2nd Respondents for the issuance of a pre-hearing notice at the Lower Court in the nature of FORM TF 007 was in order, recognized and known to Law.
The arguments and submissions of Learned counsel on fair hearing and service of court processes of Pages 8 to 13 of his brief of argument, as far as this appeal is concerned are of no moment. This is because we are concerned here solely with on application made in a motion Ex-parte.
It is trite that where a Court is seised of the necessary jurisdiction and competence to hear and determine a motion Ex-parte, it does not in doing so violate the constitutionally guaranteed right to fair hearing of the Respondent(s) to that motion. Also by its very nature, wherever by Law it was allowed to be made or brought, an Ex-parte motion is never envisaged to be served on any Respondent to it, unless of course, where the Court dealing with same for good reasons deemed it fit to order for it to be served on the other party or parties to show cause why it ought not be granted and thereby using its discretionary power of converting same into a motion on notice.
For these reasons I do not find the decisions in MARK V. EKE (Supra) and OKOYE V. CENTRE POINT MERCHANT BANK LTD (Supra) referred to by Learned Counsel to the Appellant and the response to them by Learned Counsel to the 1st and 2nd Respondents to be relevant as to be helpful and of any meaningful assistance to the determination of this appeal.
In concluding his arguments Learned Counsel emphasized the need to consider the entirety of a statute in the interpretation of any of its provisions but in doing that a Court must try to ovoid any interpretation that would lead to inconsistency or manifest absurdity. Upon this foundation, Learned Counsel typified certain provisions of a statute as leading provisions with others being subordinate provisions. He urged this Court to answer the issue formulated in his brief of argument in favour of the 1st and 2nd Respondents and to dismiss this appeal and proceed to affirm the order of the Lower Court directing its secretary to issue a pre-hearing notice for a pre-trial conference for the hearing of this petition.
The reply brief of the Appellant did not add anything more. So much of it is a substantial re-argument of the issue of denial of fair hearing on the Appellant for not being served with the application for issuance of pre-hearing notice. All the submissions and arguments together with all the authorities referred to are a total misconception of the main issue in this appeal. I therefore disregard it in its entirety for being totally unhelpful.
Also from the grounds of appeal and the identical issues formulated by Counsel to the Appellant on the one hand and Counsel to the 1st and 2nd Respondents on the other, I believe that the issue for determination in this appeal is a very narrow one. In my view it is whether on application by a petitioner for a pre-hearing session under paragraph 18 (1) of the Electoral Act, 2010 can be mode by on Ex-parte motion. I will now proceed to determine this appeal upon this reformulated issue.
The best starting point in the determination of this appeal is to underscore and put in perspective and a focal point the provisions of paragraphs 18(1) and 47(2)
Paragraph 18(1) provides: –
“Within 7 days after the filing and service of the petitioner’s reply on the Respondents or 7 days after the filling and service of the Respondents reply, whichever is the case, the petitioner shall apply for the issuance of prehearing notice as in form TF-007.” (Emphasis supplied by me)
Paragraph 47(2) provides:-
“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 Respondents.”
(Emphasis supplied by me)
The crux of the matter in this appeal in my humble view is the relevance, meaning and effect of the expression “shall apply” in paragraph 18(1) and the expression “shall be served on the Respondents” in Paragraph 47(2). It is clear from paragraph 18(1) that it is the Petitioner in an Election Petition that is given the right of first option to kickstart the essential and mandatory pre-trial procedures. Where the petitioners fails to comply with the provisions of paragraph 18(1), any of the respondents may make a similar application pursuant to paragraph 18(3). This is the 2nd option. Where however both petitioner and Respondent(s) fail to bring this crucial application, the Tribunal or Court may proceed to dismiss the petition as having been abandoned. The failure to ignite and kick-start the pre-hearing process within the stipulated 7 days engenders a very devastating and fatal consequence on the petitioner and indeed the petition itself. Now, because of this devastating consequence, it is necessary for a petitioner to be fully vigilant and mark the very date pleadings closed and for the 7 days provided in paragraph 18(1) to start running. It is equally important for any of the Respondents to remain vigilant because, upon any failure by the petitioners to fully comply with paragraph 18(1) they could avail themselves of the advantage of having the Petition dismissed in limine and without the rigours of a full and proper trial.
By the nature of what we see in the form of allegations in pleadings in Election Petitions in this Country, this, no doubt, is a great opportunity in the defence of an Election petition. It is an opportunity no Respondent will want to easily miss.
To me, the burden is on the petitioner. It is not a small burden. It is so heavily weighed against him. He is at the back foot. He needs to be intensely vigilant. At the slightest want of diligence in the utilization of the 7 day window period, the petitioner loses out completely. Their Lordships of the Supreme Court bemoaned this rigidity and harshness on the petitioner in the case of OKEREKE v. ‘YAR ADUA (supra) but still went ahead to discountenance this sentiment. The court decided as it did, all the rigidity of the concerned provisions notwithstanding.
The 1st period within which the application ought to be made exclusively, in my view, belongs to the Petitioner. The 2nd window period exclusively belongs to the Respondent(s). And the final window period exclusively belongs to the Court or Tribunal. At this stage, the Petitioner would have completely lost out. The Respondents would have won a sweet victory effortlessly and by default of both the Petitioner and the Respondents, the court would have been saved of the need to go into the trial of the Petition. If there is any room for me to accommodate sentiments, my sympathy would be for the petitioner. But can I indulge in that? I think not. Since, I believe that the first window period exclusively belongs to the petitioner, it does not matter how he applies to the court or Tribunal. What matters is whether he has effectively communicated to the Secretary/ registrar of the Court or Tribunal for the issuance of the requisite notice in FORM TF 007. The Respondents have got nothing to loose by any default in the utilization of this window period. Time is of essence at every stage. So, in my view, whatever is expedient and pragmatic must suffice in that regard. I take it as correct that paragraph 18(1) provides for an administrative cum judicial function on the tribunal for the issuance of a pre-hearing notice in the form of FORM 007. Where a petitioner chooses to apply to the Secretary/Registrar of the Tribunal, it is on option open to him. By obliging the request, the Secretary/Registrar would have performed port of his administrative duties to the Court or Tribunal. Indeed, a letter in the format of that in ALIYU IBRAHIM GEBI (supra) would have sufficed.
Because of the exclusivity of the first window Period to the petitioner, on Ex- parte motion as a form of application would be sufficient; as the supposed Respondents to the motion need no notice for in reality they would not suffer any prejudice or miscarriage of justice if they were not put on notice of that application of all. Paragraph 47(2) should not be read and interpreted as to engender unnecessary hardship or manifest absurdity in the circumstance of this matter. It is not about being bemused or unmindful of one of the cardinal principles of adjudication that where legislation lays down a procedure for doing a thing there should be no other method of doing it.
If a petitioner applies by way of a motion pursuant to paragraph 18(1), it is an option that requires a judicial exercise by the Court or Tribunal. And in the exercise of its judicial functions, the court or tribunal must comply with all statutory provisions and relevant decided cases to enable it have the necessary competence to proceed accordingly as outlined in the vintage case of MADUKOLU V. NKEMDILLIM.
I am not totally unmindful that the case of RIRUWAI v. SHEKARAU was relied on by the Lower Court in this appeal. I participated in that decision. It is quite distinguishable. RIRUWAI V. SHEKARAU is closer to the decision of the Supreme Court in OKEREKE V. ‘YAR ADUA than the facts and circumstances of this appeal. It does not matter if the present paragraph 47 (2) is pari materia with the then paragraph 6(2) of the Practice Direction in RIRUWAI V. SHEKARAU, The issue of extension of Time to bring the application for issuance of pre-hearing notice is not a feature in this appeal of all. It is for these reasons that I dismiss this appeal.
MOHAMMED LADAN TSAMIYA, J.C.A.: I have read the reason for the lead judgment delivered on the 16th day of September, 2011 by my learned brother Justice A. A. B. Gumel JCA.
I am in complete agreement with his reasoning and conclusions that this appeal is completely unmeritorious. I dismiss the appeal and abide by the order as to costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I have had the opportunity of reading in draft the reasons for the earlier Judgment of my learned brother, Ali Abubakar Babandi Gumel, J.C.A. I entirely agree with the reasoning and conclusions reached therein which I fully adopt as mine. In the circumstances, I also agree that there is no merit in the appeal. I therefore dismiss the Appeal.
Appearances
Chief E. K Ashiekaa with Mr. S. A. Udaga and T. D. PepeFor Appellant
AND
Mr. S. A. Orukumah with Mr. M. I. Atagher, Mr. J. T. Agor and Mr. M. T. Assoh
Mr. Nasir Dangiri with Mr. C. T. Mue
Mr. J. S. Okutepa SAN with Mrs. A. C. Uchin, Miss N. I. Ogoh and Miss E. E. ObuaFor Respondent
