GEORGE BANIGO & ANOR V. AYE ATAMAH PEPPLE & ORS (2011)

GEORGE BANIGO & ANOR V. AYE ATAMAH PEPPLE & ORS

(2011)LCN/4833(CA)

In The Court of Appeal of Nigeria

On Thursday, the 13th day of October, 2011

CA/PH/EPT/19/2011

RATIO

WHETHER A PARTY WHO FAILED TO FILE A MEMORANDUM OF APPEARANCE WILL BE EXCLUDED FROM THE PROCEEDINGS OF THE TRIBUNAL

PRE-HEARING NOTICE: ESSENCE OF THE APPLICATION FOR PRE-HEARING NOTICE; WHETHER THE PETITIONER MUST STILL APPLY FOR PRE-HEARING NOTICE EVEN WHERE THE RESPONDENT FAILS TO REPLY TO THE PETITION; POSITION OF THE LAW WHERE NEITHER THE APPELLANT NOR THE RESPONDENT HAS APPLIED FOR PRE-HEARING NOTICE AFTER THE EXPIRATION OF THE PRESCRIBED PERIOD FOR DOING SO

I do agree with the learned counsel for the 1st and 3rd-5th Respondents that the petitioners still had a responsibility to apply for pre-hearing notice in order to get the petition heard even if it was unopposed. The application for pre-hearing notice is the only key to the hearing and determination of the petition. The law is very clear and very well settled that an election petition application for pre-hearing notice is a condition precedent to the hearing of any matter before the tribunal or court, and where neither party files such application, the petition is deemed abandoned and should be dismissed. See Okereke v. Yar’adua [supra] My learned brother Garba JCA in Ikoro v. Izunaso [supra] at page 68 paragraph D-E held:- “Consequently as pointed out before now, the 3rd -1693rd Respondents had 21 days from 18th of June 2007 within which to have filed their reply since they not enter an appearance. That period ended or expired by the 9th of July 2002. So, contrary to the finding of the lower Tribunal, the appellant was expected to have applied for issuance of a pre-hearing notice within 7 days of 9th July, 2007 whether or not the 3rd – 1693rd Respondents filed their reply to the petition. The 7 days expired on the 16th of July, 2007.” I agree with my learned brother and I hold that failure to file a reply to petition is no a bar to the requirement of applying for pre-hearing notice in election petition. Where neither the appellant nor the respondent has applied for pre-hearing notice after the expiration of the prescribed period for doing so, the petition is liable to be dismissed, as no application for extension of time to do so shall be entertained. See Okereke v. Yar’adua [supra]. PER PAUL ADAMU GALINJE, J.C.A

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

GEORGE BANIGO & ANOR Appellant(s)

AND

AYE ATAMAH PEPPLE & ORS Respondent(s)

PAUL ADAMU GALINJE, J.C.A (Delivering the Leading Judgment): The 1st Appellant herein was a candidate sponsored by the 2nd Appellant, a political party in an election which was conducted, by Independent National Electoral commission to elect a member for Bonny state constituency into Rivers State House of assembly.
Several other political parties sponsored candidates in the same election. One of those candidates is the 1st Respondent who was sponsored by the 2nd Respondent.
At the end of the election, the 1st Respondent was declared the winner and therefore returned as member representing Bonny state constituency in the Rivers state House of Assembly. The Appellants are dissatisfied with the declaration and return. By a petition dated 17/05/2011 and filed on the 18/05/2011, they challenged the result of the election at the National and State Houses of assembly election Petition Tribunal Holden at Port Harcourt. Notice of presentation of the petition was served on the 3rd – 5th respondents on the 26th May 2011 and the 1st and 2nd respondents were served on the 31st of May 2011. The 1st Respondent entered appearance on the 14/06/2011. Thereafter the respondents did nothing until on the 23rd June 2011 when the 3rd-5th Respondents by an application dated 22/06/2011 and filed on the 23/06/2011 sought for an extension of time within to enter appearances and file their joint reply to the petition and to deem the documents mentioned as properly filed and served.
The first Respondent also brought an application dated 5/07/2011 and filed on the 6/7/2011 in which he sought for extension of time to file and serve his reply to the petition, list of witnesses and the witnesses depositions on oath out of time. He also sought for a deeming order in respect of the documents he sought to file out of time.
The Tribunal on its own issued a notice for pre-hearing session. By a notice of motion dated and filed on the 22nd July 2011, the 1st respondent sought for the following:-

1. AND ORDER granting leave to the 1st Respondent/applicant to move this motion on notice before the pre-hearing session.
2. AN ORDER setting aside the Pre-hearing session fixed for the 27th day of July, 2011 or such further or other date[s] whereof the pre-hearing session may be fixed.
3. AN ORDER dismissing this petition as being abandoned by the petitioner.
4. AND for such further order[s]as this Honourable Tribunal may deem fit to make in the circumstance.
The grounds upon which this motion was brought as set out in the motion paper are as follows:-
[a] The petitioners inability and/or failure to comply with the express/mandatory provisions of paragraph 18(1) of the 1st schedule of the Electoral Act 2010 [as amended], and which ought to have preceded the Tribunal’s directive pursuant to paragraph 18(2) of same 1st schedule of the Electoral Act.
(b) The Honourable Tribunal is bereft of jurisdiction to suo motu fix this matter for pre-hearing.
(c) Pursuant to paragraph 18(4) of the 1st schedule to the Electoral Act 2010, the Honourable Tribunal is in total want of jurisdiction to grant leave nor extend time within which an order for pre-hearing of the petition may be applied for.
[d] Premised on grounds (a) (b) and (c) above and paragraph 19(4) of the 1st schedule to the Electoral Act [as amended] this petition is move existent in the eyes of the raw and accordingly abandoned.
[e] That resulting from the non-compliance with the said provisions of paragraph 18(1) and (3) of the 1st schedule to the Electoral Act 2010, the Tribunal is robbed of the requisite jurisdiction to further hear and determine the petition including any pre-hearing session….”
[f] Jurisdiction cannot be conferred on this Honourable Tribunal by the parties either by their own accord/consent, action or inaction on the face of fundamental breach/non-compliance with condition precedent to the assumption of jurisdiction thereof.

The Appellants as petitioners at the Tribunal filed affidavit in opposition to the application for the dismissal of the petition. On the 6th July 2011, the Tribunal heard the first Respondent’s application for extension of time and dismissed it and went on to adjourn the petition to 20/7/2011 for pre-hearing conference.
However the application for the dismissal of the petition was heard on the 28/07/2011 and in a considered ruling which was delivered on the 4th of august the tribunal dismissed the petition in the following words:-
“In the final analysis, and for the foregoing reasons this application succeeds and this petition No. EPT/SHA/PH/36/2011 between GEORGE BANIGO & ANOR VS. AYE ATAMAH PEPPLE & OTHERS for which no pre-hearing application has been made even up to this minute, is hereby dismissed as an abandoned petition pursuant to paragraph 18(3) and [4] of the 1st Schedule of Electoral Act 2010.
It is against this ruling that the appellant have brought this appeal. Their notice of appeal dated 23rd August 2011 and filed on the 25th august 2011 contains three grounds of appeal.
Parties filed and exchanged briefs of argument. The appellants formulated three issues for determination of the appeal They read as follows:-
“1. whether the Honourable Tribunal in view of the failure of all the Respondents to comply with all compulsory provisions of paragraph 10 [2] of the 1st schedule of the Electoral Act 2010 was right to have relied on the application of 1st and 2nd Respondents in striking out the appellants petition on 04/08/2011 which both in law and procedure nobody is opposed to.
2. whether by the combined provisions of paragraphs 9[i] [a] and 10[2] and considering the express meaning of provisions of paragraph 18[1] all of 1st schedule of Electoral Act 2010 which the Respondents shut themselves out and mere so the combined interpretation of sections 20, 27 and 169 of Evidence Act, 2011 the Honourable Tribunal was right to have dismissed the unchallenged Appellants’ petition as at the stage it did so.
3. whether in view of the pendency of the order made on 06/07/2011 the Honourable Tribunal was right to have dismissed the petition on 04/08/2011 when the said order of 06/07/2011 has not being [sic-been] vacated by any other order of a superior court.”

The 1st Respondent adopted the three issues formulated by the appellants, while the 3rd – 5th respondents in their joint brief of argument formulated two issues for determination of this appeal. These issues are reproduced hereunder as follows:-

“1. whether the lower Tribunal was right in dismissing the petition on the 4/8/2011 on the ground that the petitioner did not apply for prehearing Form within the time allowed by the Electoral Act.
2. whether by the combined effect of paragraphs 9(1), 10(2); paragraph18(1) and (3) all of the First schedule to the Electoral Act 2010 [as amended] and section 20, 27, and 167 of the Evidence Act 2011, the Honourable Lower Tribunal was right to have dismissed the Petition”.

Mr. Femi Adegbite, Learned counsel for the appellants argued the three issues together. In his argument, learned counsel submitted that for the court to invoke the provisions of paragraph 18(1) of the 1st Schedule of the Electoral Act 2010 [as amended] at the instance of the Respondent, the Respondent must have complied with the provisions of paragraphs 9[i][a] and 10(2) of the said 1st schedule of the Act. According to the learned counsel, failure to comply with the paragraphs aforesaid, an affected party has shut himself out from participating in the proceedings. In aid Learned counsel cited Gwandu v. Gwandu [2004] All FWLR [pt 229] 842] at 869-870; Buhari v. Obasanjo [2003] 15 NWLR [pt. 843] 236 at 253-254. It is the learned counsel contention that the Tribunal would have adjourned the petition for hearing, since there was no reply from the Respondent, instead of adjourning the petition for pre-hearing conference on the 6/7/2011.
In a further argument, learned counsel submitted that the technical interpretation given to paragraph 18(1) by the Tribunal has resulted in miscarriage of justice to the Appellants. According to the learned counsel, such interpretation without much ado to the overriding interpretation of paragraphs 10(2) is narrow and prejudicial to the Appellant. In aid the authority in Obi-Odu v. Duke [2006] 12 WRN 113 is cited. Learned counsel insists that the authorities of Ikoro v. Izunmaso [2009] 4 NWLR [pt. 1130] 45, Aliv v. Osakwe & Ors [2009] 14 NWLR [pt.1160] 75, Okereke v. Yar’adua [2008] 12 NWLR [pt.1000] 95 at 120-121 and Ohaka v. Eze [2010] All FWLR [Pt. 525] 380 at 393 which the Tribunal relied on in dismissing the petition are in applicable in this case.

Finally learned counsel made reference to sections 20,27 and 169 of the evidence Act and contended that the failure of the respondents to file a reply amounted to an admission of the allegations contained in the petition and the Tribunal was therefore wrong in refusing to set the petition down for hearing as same was unopposed. In conclusion learned counsel urged this court to allow the appeal. Both the appellants and the Respondents have agreed that the Respondents did not file any reply to the petition within 21 days after the petition was served on them. It is also common ground that at the expiration of the 21 days none of the parties applied for pre-hearing notice as in form TF 007 within 7 days as provided for under paragraph 18(1) of the 1st schedule to the Electoral Act 2010 [as amended]. The 1st Respondent’s memorandum of appearance is dated 14th June 2011 and it is at pages 19 and 20 of the printed record of this appeal. The 3rd-5th Respondents, who did not enter appearance within time, brought an application for extension of time dated 22nd June 2011 to do so.
They are therefore deemed not to have entered appearance. By the provision of paragraph 9(1)(a)& (b) of the 1st Schedule to the Electoral Act 2010 [as amended] the 1st respondent intended to defend the petition by filing a memorandum of appearance.

This paragraph states as follows:
“9(1) where the respondent intends to oppose the election petition, he shall:-
[a]within such time after being served or deemed to have been served with the election petition: or
[b] where the secretary has stated a time under paragraph 7[2] of this schedule, within such time as is stated by the secretary, enter an appearance by filing in the registry a memorandum of appearance stating that he intends to oppose the election petition and giving the name and address of the solicitor, if any, in either case, giving an address for service at which documents intended for him may be left or served.”

Paragraph 10 of the schedule to the Electoral Act does not exclude a party who failed to file a memorandum of appearance from the proceedings of the Tribunal. Instead it provides that all documents intended for service on him may be posted on the Tribunal notice board. It follows therefore, that a party who fails to file a memorandum of appearance, remains a party to the petition and subject to be served with vital processes of the Tribunal until his name is either withdrawn or the petition is determined.On this issue Mr. Nnamdi Gabriel, Learned counsel for the 1st Respondent argued forcefully that the 1st Respondent had not shut himself out by his unsuccessful attempt to file a reply, since he is entitled to cross-examine the petitioner’s witnesses and address the tribunal on points of law applicable to the case.

For the 3rd-5th Respondents, it was argued that application for pre-hearing notice is a precondition for the doing of any act concerning the petition and that even if the petition was not opposed, the petitioners under section 131 and 132 of the Evidence Act were still required to discharge the burden of proof on them since they made the allegation of improper conduct of the election.
I do agree with the learned counsel for the 1st and 3rd-5th Respondents that the petitioners still had a responsibility to apply for pre-hearing notice in order to get the petition heard even if it was unopposed. The application for pre-hearing notice is the only key to the hearing and determination of the petition. The law is very clear and very well settled that an election petition application for pre-hearing notice is a condition precedent to the hearing of any matter before the tribunal or court, and where neither party files such application, the petition is deemed abandoned and should be dismissed. See Okereke v. Yar’adua [supra]
My learned brother Garba JCA in Ikoro v. Izunaso [supra] at page 68 paragraph D-E held:-

“Consequently as pointed out before now, the 3rd -1693rd Respondents had 21 days from 18th of June 2007 within which to have filed their reply since they not enter an appearance. That period ended or expired by the 9th of July 2002. So, contrary to the finding of the lower Tribunal, the appellant was expected to have applied for issuance of a pre-hearing notice within 7 days of 9th July, 2007 whether or not the 3rd – 1693rd Respondents filed their reply to the petition. The 7 days expired on the 16th of July, 2007.”

I agree with my learned brother and I hold that failure to file a reply to petition is no a bar to the requirement of applying for pre-hearing notice in election petition. Where neither the appellant nor the respondent has applied for pre-hearing notice after the expiration of the prescribed period for doing so, the petition is liable to be dismissed, as no application for extension of time to do so shall be entertained. See Okereke v. Yar’adua [supra].
On the reasons set out herein alone, I find this appeal lacking in merit.
The Appellants defaulted in complying with the mandatory provision of paragraph 18[1] of the 1st Schedule to the Electoral Act 2010 [as amended] when the Tribunal on the 4th August 2011 dismissed the petition as abandoned. I have no reason to fault the Tribunal’s decision. Accordingly this appeal shall be and it is hereby dismissed.
Each set of the 1st and 3rd-5th Respondent’s is entitled to the costs of this appeal which I assess at N30, 000.00

M.D. MUHAMMAD, J.C.A.: I agree.

T.O. AWOTOYE, J.C.A.: I agree.

Appearances

MR. C.C. EZEFor Appellant

AND

MR. O.W. PEPPLE with N.C.O. GABRIEL for the 1st Respondent.
MR. I. WODI for the 3rd-5th Respondents.For Respondent