HON. AYO ADESEUN & ANOR v. CHIEF LUQMAN OYEBISI ILAKA & ORS. (2011)

HON. AYO ADESEUN & ANOR v. CHIEF LUQMAN OYEBISI ILAKA & ORS.

(2011)LCN/4794(CA)

In The Court of Appeal of Nigeria

On Monday, the 12th day of September, 2011

CA/I/EPT/NA/3/11

RATIO

ELECTION PETITION: TIME ALLOWED FOR THE HEARING AND DISPOSING OF ELECTION PETITION

By an amendment to the 1999 Constitution, an appeal from a decision of an election tribunal in an election matter shall be heard and disposed of within 60 days from the date of delivery. PER STANLEY SHENKO ALAGOA, J.C.A.

INTERPRETATION OF STATUTE: IMPLICATION OF THE WORD “USE” AS USED IN THE PROVISIONS OF PARAGRAPH 27(1) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT 2010 AS AMENDED AS TO WHETHER THE CHAIRMAN OF THE TRIBUNAL OR THE PRESIDING JUSTICE OF THE COURT MUST SIT ALONE TO HEAR AND DETERMINE ALL INTERLOCUTORY QUESTIONS AND MATTERS

It is pertinent at this sage to examine the provisions of paragraph 27(1) of the 1st schedule to the Electoral Act 2010 as amended. It states that, “All interlocutory questions and matters may be heard and disposed of by the Chairman of the Tribunal or the presiding Justice of the Court who shall have control over the proceedings as a Judge in the Federal High Court.” This provision is in no way ambiguous except for interpretation that may be given to the word “may” in the said paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 as amended. In OGUALAJI V. ATT. GEN. RIVERS STATE (1997) 5 NWLR (PART 508) 209 at 233, the Supreme Court in interpreting the word “may” under section 28(1) of State Lands Law of Eastern Nigeria as applicable to Rivers State stated as follows per Iguh JSC, “It therefore seems to me settled that although section 28(1) of the State Lands Law applicable to Rivers State provides that the lessor “may” enter a suit for recovery of possession on expiration of the lessee’s lease, the word “may” in that section must be construed as mandatory and/or as meaning “shall” or “must” since it imposes a duty upon a public functionary for the benefit of a private citizen.” In R. V. BISHOP OF OXFORD (1879) QBD 245 Lord Blackburn stated that the enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. In the interpretation of statutory provisions, the intendment of the drafters of the piece of legislation must at all times be borne in mind. What does paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 as amended seek to achieve? Judicial Notice is taken of the fact that proceedings before the Federal High Court are before a single Judge sitting alone and reference to a single Judge of the Federal High Court in paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 as amended with respect to interlocutory application cannot mean otherwise than that wit respect to the hearing and determination of interlocutory applications before the election tribunals, the Chairman alone should so sit and determine such interlocutory applications to the exclusion of the other members. Two pertinent questions must therefore be asked at this stage viz – (1) Was the application dated 7th July 2011 before the lower tribunal an interlocutory application; and (2) In the determination of the application if indeed it was an interlocutory application who and who sat to hear and determine same? The answer to the first question is undoubtedly yes. With respect to the second question it is an undisputed fact that the interlocutory application was heard and determined by all the members of the tribunal who each signed same and not by the Chairman alone. We are not here concerned with the rationale behind paragraph 27 of the First Schedule to the 2010 Electoral Act as amended that the Chairman of the tribunal solely should sit and determine interlocutory applications to the exclusion of the other members of the Election Tribunal. What we are concerned about in this appeal is that it is the law. Issue 1 is therefore resolved in favour of the Appellants against the Respondents. PER STANLEY SHENKO ALAGOA, J.C.A.

AMENDMENT TO ELECTION PETITION: WHETHER THE TRIBUNAL CAN GRANT THE AMENDMENT SOUGHT TO EFFECT ALTERATION TO A PETITION OUTSIDE THE TIME ALLOWED FOR PRESENTING ELECTION PETITION

It is instructive at this stage to examine the provisions of paragraph 14(2)(a)(ii) of the first schedule to the Electoral Act 2010. It states as follows – “After the expiration of the time limited by section 134(1) of this Act for presenting the election petition no amendment shall be made effecting a substantial alteration of the ground for or the prayer in the election petition,” Section 134(1) of the Electoral Act 2010 as amended provides as follows, “An election, petition shall be filed within 21 days after the declaration of the results of the elections.” Going by the record by the time the application or amendment was brought on the 1st July 2011 the time within which to file an election petition had expired. The issue here as I see it is not whether the error sought to be amended was as a result of a slip on the part of counsel as found by the court which was never claimed in the petitioner’s affidavit but whether by paragraph 14(2)(a)(ii) of the first schedule to the Electoral Act 2010, the amendment sought was substantial. An amendment which is to substitute the word “Petitioner” for the word “Respondent” in paragraph 32(iii) of the petition cannot be said not to be substantial. With respect to the second amendment which is the statement on oath of the 10th witness, that undoubtedly is evidence and the question is whether the tribunal had the power to amend evidence. The answer must be in the negative. As argued rightly in my view by the Appellants, even if the 10th witness’ statement on oath is treated as affidavit the lower tribunal has no power to amend the contents of an affidavit. PER STANLEY SHENKO ALAGOA, J.C.A.

JUSTICES:

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

1. HON. AYO ADESEUN
2. ACTION CONGRESS OF NIGERIA – Appellant(s)

AND

1. CHIEF LUQMAN OYEBISI ILAKA
2. ACCORD PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the National and State Houses of Assembly Election Petition Tribunal Holden at Ibadan, Oyo State of Nigeria in Petition No.: EPT/OY/NA/2/2011 CORAM: Hon. Justice F. C. Nwizu (Chairman), Hon. Justice A. O. Ajileye (member) and Hon. Justice Kadi M. M. Alkali (member) delivered on the 12th July 2011. The Notice of Appeal which is contained at pages 220-222 of the Record of Appeal was filed by the dissatisfied Appellants who were Respondents in the tribunal below on the 13th July 2011 and the said Notice of Appeal consists of three grounds of Appeal with attendant particulars which are reproduced below –
GROUND (i) – The Lower Tribunal erred in law when all the three members of the Tribunal jointly heard and delivered Ruling on the application of the Petitioners/Respondents to amend the petition and statement on oath dated 1st July, 2011.
PARTICULARS
(a) Under the Electoral Act 2010 as amended only the Chairman has the power and jurisdiction to hear and determine interlocutory applications.
(b) That three members heard and determined the Petitioners’ application to amend the Petition.
GROUND (ii) – The Lower Tribunal erred in law and acted without Jurisdiction when it heard and determined the petitioner’s application dated 1st July, 2011.
PARTICUTARS
(a) Under the Electoral Act 2010 all motions must be heard and determined at the pre-trial conference except in special circumstances with leave of Court or Tribunal.
(b) The said application was heard outside the pre-trial conference and without leave of Tribunal first sought and obtained.
GROUND (iii) – The Lower Tribunal erred in law when it amended paragraph 32(iii) and 37(iii) of the petition and 10th witness statement on oath respectively.
PARTICULARS
(a) The Tribunal has no power to amend , any of the Reliefs or prayers in the petition after the expiration of time within which to file the petition.
(b) The Tribunal has no power to amend a statement on oath which is evidence.
RELIEFS SOUGHT FROM THE COURT OF APPEAL:
That the Ruling of the Lower Tribunal be set aside and the motion dated 1st July 2011 be struck out.
The Appellants filed a Brief of Argument dated 25th August 2011 same day in which in paragraph 2.00 they distilled the following three issues for the determination of the Court of Appeal. These Issues; are as follows –
(i) Whether the lower Tribunal acted with jurisdiction when all the three members sat, heard and delivered a Ruling on the Petitioners’ applications.
(GROUND 1)
(ii) Whether the lower Tribunal acted with jurisdiction when it heard the Petitioners’ applications outside the Pre-Hearing session. (GROUND II)
(iii) whether the lower Tribunal had jurisdiction to amend a statement on oath and a prayer in the Petition outside the 21 days for the filing of the petition. (GROUND III)
It is at this stage that I consider it necessary to make mention of the Respondents’ attempt to bring in a Brief of Argument. As earlier stated the ruling of the Tribunal below giving rise to this appeal was delivered on the 12th July 2011. By an amendment to the 1999 Constitution, an appeal from a decision of an election tribunal in an election matter shall be heard and disposed of within 60 days from the date of delivery. The implication is that judgment shall be delivered on or before the 12th September 2011. The Appellants having complied with the period of ten days after the service of the record of proceedings on them to file their Brief of Argument as provided for under paragraph 10 of the Election Tribunal and Court practice Directions 2011 had same served on the Respondents on the 25th August 2011. By paragraph 12 of the Court Practice Direction 2011, the Respondents were to file their Brief of Argument within five days of service of the Appellants’ Brief of Argument on them after which by paragraph 13 of the Practice Direction the Appellants would have three days within which to file and serve their Reply Brief of Argument on the Respondents. The 1st and 2nd Respondents brought a motion on Notice dated 8th September 2011 and filed same day pursuant to order 7 Rules 1, 2 and 10(1) of the court of Appeal Rules 2011 and under the inherent jurisdiction of this court for –
1. An order extending the time within which the 1st and 2nd Respondents/Applicants’ may file and serve the 1st and 2nd Respondents’ Brief of Argument in this appeal.
2. An order deeming the 1st and 2nd Respondents’ Brief of Argument already filed and served herewith as a separate document as having been duly and properly filed and served.
The 3rd Respondent has filed no Brief of Argument and filed no application for extension of time to do so.
On Friday 9th September 2011 the motion filed by the 1st & 2nd Respondents dated 8th September 2011 and filed same day came up for hearing before this court. There was proof that service of the Hearing Notice for the 9th September 2011 had been effected on the 3rd Respondent who nevertheless was not present in court and neither the 3rd Respondent’s Brief of Argument nor a motion for extension of time to do so had as at that time being filed. The motion of the 1st and 2nd Respondents was strenuously argued by the 1st and 2nd Respondents’ Counsel Ubong Akpan Esq. and stoutly opposed by Appellants/Respondents’ Counsel M. F. Lana Esq. After careful consideration, this court ruled disallowing the motion and dismissing same. The effect of this is that neither the 1st and 2nd Respondents nor the 3rd Respondent has any Brief of Argument before this court and this court immediately proceeded after the ruling just referred to, to hear the Appeal on the Appellants’ Brief of Argument alone. M. F. Lana adopted and relied on the said Brief of Argument of the Appellants earlier referred to dated 25th August 2011 and filed same day and urged this Court to allow the Appeal. I shall now proceed to hear and determine this appeal on each of the three issues distilled by the Appellants in paragraph 2.00 of the Appellants’ Brief of Argument.
Issue 1 is whether the lower tribunal acted with jurisdiction when all the three members sat, heard and delivered a ruling on the petitioners’ applications. Learned counsel for the Appellants has submitted in the Appellants’ Brief of Argument with respect to this issues that it is clear from the ruling that the 1st Respondent’s motion dated 7th July 2011 was heard and delivered by all the three members of the tribunal and not solely by the chairman. Reference was made to paragraph 27 of the 1st schedule to the Electoral Act 2010 as amended and to the case of GALAUDU V. KAMBA (2004) 15 NWLR (PART 895) 31 AT 52 where “may” in that provision is to be construed as “shall”. It was also submitted by counsel that it is trite law that where there is a specific provision and a general provision the specific provision overrides the general provision, and specific mention of the chairman excludes the other members when hearing an interlocutory application to have control over the proceedings as a judge in the Federal High Court. Counsel went further to submit that where a statute mentions specific things those things not mentioned are not intended. He relied on AWUSE V. ODILI (2004) 8 NWLR (PART 876) 481 AT 512. It is also the submission of counsel that it is trite law that a court has jurisdiction when it is inter alia properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another. Reliance was placed on MADUKOLU V. NKEMDILIM (1962) All NLR (PART 2) 581 at 589. In this case, counsel submitted, the law confers jurisdiction to entertain interlocutory applications solely on the Chairman action as a single judge and not on a multiple number of judges. The lower tribunal was not properly constituted as regards numbers and therefore had no jurisdiction to entertain the application.
It is pertinent at this sage to examine the provisions of paragraph 27(1) of the 1st schedule to the Electoral Act 2010 as amended. It states that,
“All interlocutory questions and matters may be heard and disposed of by the Chairman of the Tribunal or the presiding Justice of the Court who shall have control over the proceedings as a Judge in the Federal High Court.”
This provision is in no way ambiguous except for interpretation that may be given to the word “may” in the said paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 as amended. In OGUALAJI V. ATT. GEN. RIVERS STATE (1997) 5 NWLR (PART 508) 209 at 233, the Supreme Court in interpreting the word “may” under section 28(1) of State Lands Law of Eastern Nigeria as applicable to Rivers State stated as follows per Iguh JSC,
“It therefore seems to me settled that although section 28(1) of the State Lands Law applicable to Rivers State provides that the lessor “may” enter a suit for recovery of possession on expiration of the lessee’s lease, the word “may” in that section must be construed as mandatory and/or as meaning “shall” or “must” since it imposes a duty upon a public functionary for the benefit of a private citizen.”
In R. V. BISHOP OF OXFORD (1879) QBD 245 Lord Blackburn stated that the enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. In the interpretation of statutory provisions, the intendment of the drafters of the piece of legislation must at all times be borne in mind. What does paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 as amended seek to achieve? Judicial Notice is taken of the fact that proceedings before the Federal High Court are before a single Judge sitting alone and reference to a single Judge of the Federal High Court in paragraph 27(1) of the 1st Schedule to the Electoral Act 2010 as amended with respect to interlocutory application cannot mean otherwise than that wit respect to the hearing and determination of interlocutory applications before the election tribunals, the Chairman alone should so sit and determine such interlocutory applications to the exclusion of the other members. Two pertinent questions must therefore be asked at this stage viz –
(1) Was the application dated 7th July 2011 before the lower tribunal an interlocutory application; and
(2) In the determination of the application if indeed it was an interlocutory application who and who sat to hear and determine same?
The answer to the first question is undoubtedly yes. With respect to the second question it is an undisputed fact that the interlocutory application was heard and determined by all the members of the tribunal who each signed same and not by the Chairman alone. We are not here concerned with the rationale behind paragraph 27 of the First Schedule to the 2010 Electoral Act as amended that the Chairman of the tribunal solely should sit and determine interlocutory applications to the exclusion of the other members of the Election Tribunal. What we are concerned about in this appeal is that it is the law. Issue 1 is therefore resolved in favour of the Appellants against the Respondents.
Issue 2 is whether the lower tribunal acted with jurisdiction when it heard the petitioners’ applications outside the pre-hearing session.
Appellants in their Brief of Argument have referred this court to Paragraph 47(1) of the 1st schedule of the Electoral Act 2010 as amended which states that,
“No motion shall be moved and all motions shall come up at the Pre-hearing session except in extreme circumstances with leave of Tribunal or Court.”
This provision according to Appellants’ counsel is, by the use of the word “shall” mandatory that all motions must be heard during the pre-hearing session, the only exception being when there exists extreme circumstances and even at that leave of the tribunal must be sought for and obtained. ONOCHIE V. ODOGWU (2006) 6 NWLR (PART 975) 65 at 89, a decision for the Supreme Court was relied upon to show that the use of the word “shall” in paragraph 47(1) is mandatory. EHINLAWO V. OKE (2008) 16 NWLR (PART 1113) 357 at 388 another decision of the Supreme Court was relied upon to show that where leave to appeal is a requirement and none is obtained such appeal is incompetent and is liable to be struck out. These are all elementary principles of law. I am in total agreement with the Appellants’ counsel that the 1st and 2nd Respondents brought, an application when the pre-hearing session had not commenced and did not apply for leave to do so and that their application is incompetent and should be struck out. Issue 2 is therefore resolved in favour of the Appellants against the Respondents.
Issue 3 is whether the lower tribunal had jurisdiction to amend a statement on oath and a prayer in the petition outside the 21 days for the filing of the petition. Appellants submitted that the members of the lower tribunal amended paragraph 32(iii) of the petition and paragraph 37(iii) of the statement on oath of the 10th Petitioner’s witnesses. References was made to the last paragraph of page 218 of the Records. Appellants went on to say that by the time the application was brought on the 1st July 2011 the time within which to file an election petition had expired noting that the result of the election was declared on the 10th April, 2011 while the last day for the filing of the petition was 1st May 2011. The first amendment according to Appellants was to substitute the word “petitioner” for the word “Respondent” in a paragraph 32(iii) of the petition. In acceding to the amendment, the lower tribunal at page 218 of the Records had attributed the error sought to be amended as a slip occasioned by the inadvertence of counsel when there was no such reason given in the petitioner’s affidavit. Counsel for the Appellant further submitted that paragraph 14(2)(a)(ii) of the 1st schedule to the Electoral Act 2010 as amended forbids any amendment after the time allowed for the filing of the petition. Reliance was placed on DALHATU V. DIKKO (2005) ALL FWLR (PART 242) 483 at 501.
The second amendment acceded to by the tribunal is the statement on oath of the 10th witness. Appellants submitted that the lower tribunal has no such power to amend evidence of a witness, and even if the witness statement is treated as affidavit, the lower tribunal has no power to amend the contents of an affidavit. Reliance was placed on ABIODUN V. CHIEF JUDGE KWARA STATE (2008) ALL FWLR (PART 448) 340 AT 387.
It is instructive at this stage to examine the provisions of paragraph 14(2)(a)(ii) of the first schedule to the Electoral Act 2010. It states as follows –
“After the expiration of the time limited by section 134(1) of this Act for presenting the election petition no amendment shall be made effecting a substantial alteration of the ground for or the prayer in the election petition,”
Section 134(1) of the Electoral Act 2010 as amended provides as follows,
“An election, petition shall be filed within 21 days after the declaration of the results of the elections.”
Going by the record by the time the application or amendment was brought on the 1st July 2011 the time within which to file an election petition had expired. The issue here as I see it is not whether the error sought to be amended was as a result of a slip on the part of counsel as found by the court which was never claimed in the petitioner’s affidavit but whether by paragraph 14(2)(a)(ii) of the first schedule to the Electoral Act 2010, the amendment sought was substantial. An amendment which is to substitute the word “Petitioner” for the word “Respondent” in paragraph 32(iii) of the petition cannot be said not to be substantial. With respect to the second amendment which is the statement on oath of the 10th witness, that undoubtedly is evidence and the question is whether the tribunal had the power to amend evidence. The answer must be in the negative. As argued rightly in my view by the Appellants, even if the 10th witness’ statement on oath is treated as affidavit the lower tribunal has no power to amend the contents of an affidavit. Issue No. 3 must therefore be and is hereby resolved in favour of the Appellants against the Respondents.
All Issues having been resolved in favour of the Appellants, the Appeal is hereby allowed and the Ruling of the lower tribunal delivered on the 12th July 2011 as well as the 1st and 2nd Respondents’ Motion on Notice dated 1st July 2011 are hereby set aside. I however make no order as to costs.

MODUPE FASANMI, J.C.A.: I have read the judgment just delivered by my learned brother S. S. Alagoa J.C.A. I am in complete agreement with his reasoning and conclusion that this appeal is completely meritorious.
It is also allowed by me. I also abide by the consequential orders contained in the said judgment.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I was opportuned to have a preview of the exhaustive judgment pronounced by my learned brother, ALAGOA, J.C.A. I agree with the said judgment. And I adopt same as mine, with these few words.
By the statutory arrangement of the business of the lower Tribunal, all motions are, ordinarily, to be entertained at the pre-hearing session of the Tribunal. Paragraph 47(1) of the First Schedule to the Electoral Act, 2010, as amended, provides in that wise thus:
“No motion shall be moved and all motions shall come up at the prehearing session except in extreme circumstances with leave of the tribunal or court.”
The motion moved and granted which brought about the appeal was not taken at the pre-hearing session of the lower Tribunal. No leave was first sought and obtained by the 1st and 2nd respondents before the motion was heard. Nor did the 1st – 2nd respondents proffer very special or special or extreme circumstances to anchor the motion before the commencement of the pre-hearing session of the lower tribunal.
Paragraph 6(1) of the Election Tribunal and Court Practice Directions (Practice Directions) which is on all fours with paragraph 47(1) of the First Schedule to the Electoral Act (supra) was given full treatment by the Supreme Court in the case of Nwonkwo & others v. Alhaji Umaru Yar’Adua and Others (2010) 12 NWLR (Pt.1209) 518 at 558 – 559 per the lead judgment of Onnoghen, J.S.C. inter-alia as follows:
“From the totality of the above provisions of the Practice Directions, it is very clear that an election tribunal or court can only hear motions and/or objections on point of law at the pre-hearing session not when it sits as a tribunal or court to hear or try election petitions. In the instant case, it is not disputed that what was heard and determined by the lower court was a preliminary objection on points of law raised against the election petition of the appellants and that the lower court did not hear and determine same at a pre-hearing session as provided in the Practice Directions but at hearing/trial of the petition. It is settled law that where a statute lays down a procedure for doing anything no other method is to be employed in doing the thing. In other words, “where a statute or legislation provides for a particular method of performing a duty regulated by the statute that method and no other must have been to be adopted.” See C.C.B. Plc v. A.G. Anambra (supra).”
In the instant case, the Practice Directions provides clearly that motions and/or objections on points of law can only be taken and determined by the tribunal or court at its pre-hearing session, which was not done in this case.
In the case Okereke v. Yar’Adua (2008) 4 – 5 S.C. (Pt.1) 206; (2- 8) 12 NWLR (Pt.1100) 95 this court considered the provisions of paragraph 6(1) of the Practice Directions supra and came to the conclusion that any motion or preliminary objection raised in an election petition not taken and determined at the pre-hearing session is done or taken without jurisdiction and consequently null and void, as the same would have been done without fulfilling the condition precedent to the exercise of its jurisdiction. It is settled law that no matter how well conducted, where a court is without jurisdiction to hear and determine a matter the proceedings so conducted are a nullity.
It is therefore clear that the proceedings of the lower court leading to the ruling of that court delivered on the 3rd day of September, 2007, subject of the instant appeal, is a nullity and the same was conducted without jurisdiction and is consequently set aside.
Since the appellants were still within time to take steps to initiate the pre-hearing session, the proper thing to do in the circumstances to remit the matter to the lower court to be dealt with in accordance with the provisions of the Practice Directions, Rules of court and substantive law applicable thereto by another panel to be constituted by the appropriate authority, for whatever it is worth.
This is clearly not the case in which the powers of this court under section 22 of the Supreme Court Act can be invoked to deal with the matter despite the fact that the appellants are running against time.
Having found that the lower court was without jurisdiction when it heard and determined the preliminary objection filed by the 3rd-41st respondents, ii becomes unnecessary to consider the rest of the issues that have to do with the merit of the ruling already set aside. The said issues are therefore discountenanced by me.”
It is in the light of the above reason and the ample reasons given by my learned brother, Alagoa, J.C.A., in the lead judgment that I find merit in the appeal and hereby allow it and abide by the consequential orders contained in the said judgment.