HON CHIBUZOR SOLOMON OKOGBUO & ANOR v. EMMANUEL C. NDUBUISI & ORS
(2019)LCN/13667(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of July, 2019
CA/OW/EPT/SHA/7/2019
RATIO
APPEAL: WHEN A P.O IS ATTACHED TO THE HEARING OF AN APPEAL
The settled position of the law is to the effect that where there is a P.O. to the hearing of an appeal, such P.O. must be first considered and resolved. This is because the resolution of a P.O. to the hearing of an appeal in the affirmative or upholding the same, renders the hearing of the substantive appeal impossible or unnecessary. See the cases of UDENWA V. UZODINMA (2012) LPELR ? 22283 (SC) and ODELUGA V. ANIAKOR (2012) LPELR ? 19977 (CA), amongst many others. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: EFFECT OF ATTACHING A P.O TO AN APPEAL
I have had cause to dwell on the consequence or consequences attaching to a P.O. to the hearing of an appeal, raised and argued by a respondent in his brief of argument without paying for the said P.O. in the judgment delivered on 19/7/2019 in APPEAL NO. CA/OW/EPT/FHA/6/2019? NNAMDI IRO OJI & ANOR. V. HON. NKOLE UKO NDUKWE & 2 ORS. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: WHETHER OR NOT THE TRIBUNAL WAS RIGHT IN RESOLVING THE ISSUE OF FILING PRE HEARING APPLICATIONS IN THE SAID APPLICANTS PETITITON
Similarly, issue 2 formulated by the Appellants in the instant appeal as to whether or not the Tribunal was right in resolving the issue of the filing of pre-hearing applications in the said Appellants? petition upon the election of the said Tribunal to rely on previous decisions of this Court as against decisions that are/were later in time, was extensively addressed in APPEAL NO. CA/OW/EPT/FHA/6/2019 ? NNAMDI IRO OJI & ANOR. V. HON. NKOLE UKO NDUKWE & 2 ORS (supra), and the conclusion I reached was that it was wrong of the Tribunal to have elected to abide by the previous decisions of this Court as against later or fresher decisions as they are. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
1. HON CHIBUZOR SOLOMON OKOGBUO
2. ALL PROGRESSIVES CONGRESS (APC) Appellant(s)
AND
1. EMMANUEL C. NDUBUISI
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL PARTY (INEC) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This interlocutory appeal is against the decision made on 27/5/2019 by the National and Houses of Assembly Election Tribunal holden at Umuahia, Abia State (hereafter to be simply referred to as ?the Tribunal?) consisting or made up of Hon. Justice A.A. Aderibigbe (Chairman) and Hon. Kadi M.Y. Usman and Hon. Justice Animahun as members 1 and 2 respectively. The decision of the Tribunal on appeal was delivered in Election Petition No. EPT/AB/REP/004/2019 (hereafter to be simply referred to as ?the petition?). The petition was initiated on 29/3/2019 by the Appellants as Petitioners (and hereafter to be simply referred to as ?the Petitioners?). The grounds of the petition are: –
?1. That the 1st Respondent (who is likewise the 1st Respondent herein) was not duly elected by the majority of lawful votes cast at the election.
2. That the said election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2010 as amended.?
?In paragraph 41 of the petition, the
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Petitioners pray the Tribunal to determine as follows: –
?a. That the 1st and 2nd Respondents (who equally are 1st and 2nd Respondents herein) did not score the majority of lawful votes cast at the election held on the 9th of March, 2019.
b. That the 1st Petitioner be declared as duly elected and accordingly be returned as the winner election to the Bende South State Constituency of Abia State held on the 9th day of March 2019.
c. An order directing the 3rd Respondent (who is equally the 3rd Respondent herein), to issue a certificate of return for the Bende South State Constituency of Abia State to the 1st Petitioner.
ALTERNATIVELY
a. That by the Electoral Act 2010 as amended and the 3rd Respondent?s approved guidelines and regulations for the conduct of the 2019 general elections where the number of the disenfranchised registered voters exceed the margin of numbers of votes by which the 1st Respondent was leading the 1st Petitioner, the 3rd Respondent ought to conduct a supplementary election first in the polling units where election did not hold or did not hold conclusively in the Bende South State Constituency of Abia
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State before determining the winner.
That the Honourable Tribunal do order a supplementary election in the units where elections did not hold or were marred by irregularities which units are xxx
That the result of the said supplementary election be used to compute the winner of the election in the Bende South State Constituency of Abia State House of Assembly.?
The election was conducted by the 3rd Respondent herein, and which is equally the 3rd Respondent in the petition.
It is clear from the record that after the service of the petition on the Respondents therein, the said Respondents on diverse dates filed their respective replies to the petition and that the said replies were served on the Petitioners on diverse dates. The last of the Respondents? replies, i.e. the replies to the petition filed by the 1st and 2nd Respondents respectively, were responded to by the Petitioners on 17/5/2019. Having filed these replies, the Petitioners applied for pre-hearing on the same date and necessary forms were issued to the parties. The parties to the petition having all filed their answers, the petition was fixed for pre-hearing session
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on 24/5/2019. At the pre-hearing session of 24/5/2019, learned counsel for the 1st Respondent viva voce raised the issue that the application for pre-hearing in the petition, served on the said 2nd Respondent on 16/5/2019 was made out of time and urged the Tribunal to dismiss the same. It is not in dispute that the application for pre-hearing forms made on 17/5/2019 was applied for within time; if pleadings are taken to have closed on the said 17/5/2019. However, the same cannot be said to be the case if pleadings are considered to have closed upon service of each of the Respondents? replies on the Petitioners particularly that of the 3rd Respondent which party the Tribunal struck out as a party.
The notes of proceedings at the Tribunal on 24/5/2019, shorn of appearances of parties and counsel, read thus: –
?Nkume: I respectfully adopt and rely on the submissions made in petition No. EPT/AB/REP/003/2019 ? NNAMDI IRO OJI vs. HON. NKOLA UKO NDUKWE for this petition as the objection raised or application made are similar, sirs. There was a single application made for all the Respondents on 17/09/2019. The reply to the 3rd respondent on
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23/04/2019 while the application for pre-hearing was filed on 17/5/2019.
Agbai: I align myself with the submission of the 1st Respondent. I am in receipt of all pre-hearing processes except that of the 3rd Respondent.
Onuobia: I align myself with the submissions of the 1st Respondent?s in urging the Tribunal to dismiss the petition in limine. We were served with pre-hearing papers today, that is why we have not responded. I urge the Court to invoke paragraph 18(4) to suo motu dismiss this petition.
Ogunji: We adopt our submissions petition No. EPT/AB/REP/003/2019 ? NNAMDI IRO OJI vs. HON. NKOLA UKO NDUKWE and urge the Tribunal to dismiss the application for dismissal or strike out the petition.?
On 24/5/2019 the Tribunal reserved its ruling till 27/5/2019. In its ruling delivered on the said 27/5/2019, the Tribunal stated thus:-
?At pre-hearing of many election Petitions that came up on 24/05/2019, issues arose on the competence of the application for issuance of pre-hearing forms, issued by Counsel for the Petitioners. In arguing the issue, Counsel for the 1st Respondent relied on the
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arguments canvassed in petition no. EPT/AB/REP/003/2019, between: NNAMDI IRO OJI & ANOR V. HON. NKOLE UKO NDUKWE & 2 ORS. That is, one application for issuance of pre-hearing forms is incompetent.
Counsel for the 2nd Respondent adopts the submissions made above. He did this despite not being a Counsel in the other Petition but was before us when arguments were canvassed therein.
Counsel for the 3rd Respondent also aligns himself with the arguments in the said Petition.
Petitioner’s (sic) Counsel also adopts his arguments in the above quoted Petition.
The argument in said Petition is that the application must be issued on each Respondent. They cited OKEREKE V. YAR’ADUA (2008) ALL FWLR (PT. 430) 626. Counsel for the Petitioner (sic) in the said Petition argued that there is no law that requires separate application on each Respondent. He further argued that Paragraph 49 of the Schedule applies only where there are two candidates as Petitioners.
We have listened to the arguments on whether the application for issuance of pre-hearing notices was filed within 7 days after the service of the Petitioners’ response to the Respondents’
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replies.
Paragraph 18(1) of the Schedule to the Electoral Act 2010 (as amended) that deals with the issue involved in this ruling, reads: –
18(1)xxx ?There is no dispute on the position of the law that an application for issuance of pre-hearing notice filed out of time is a nullity. See xxxx
The issue involved in this ruling goes beyond issuance of the application out of time. In this Petition, one application was made for all the three Respondents, based on an impression that pleadings closed in an Election Petition when the last Respondent files his Reply or when the Petitioners file their last Response to a Respondent’s Reply. This implies that Counsel understand this part of the procedure to be the same as in Civil Procedure. A good understanding of the issue involved in this ruling will therefore be appreciated by comparing the provision of Paragraph 8 of the Schedule to the Electoral Act with the position in Civil Procedure. This exercise is in order, because the provision of the schedule is a modified Civil Procedure Rules. Although Election Petition is not a civil suit, but it can be rightly described as quasi-civil suit, for
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sharing similar provisions with Civil procedure than any other Rules of Court. This view is supported by Paragraph 54 of the Schedule that reads:
?xxx? Unfortunately, there is no provision in the Federal High Court Rules on pre trial or case management conference.
However, there is a provision therein on when pleadings are deemed closed.
Order 13 Rule 32 thereof reads:
?xxx?
The choice of words, deemed closed or close of pleadings are common to almost all the States’ High Court Rules. The implication of the above is that in making the schedule, the Legislature knew of the choice of words used in Civil Procedure Rules, particularly Federal High Court Rules and intentionally decided not to adopt the provision therein relating to close of pleadings and time within which to take a step. This follows the earlier view expressed that the schedule is a quasi Civil suit or an abridged Civil Procedure Rules. As shown in the above quoted Paragraph 54 of the Schedule, application of Federal High Court is subject to express provision of the schedule. In other words, where there is a provision in the schedule, resort cannot
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be had to the Federal High Court Rules. It is therefore clear to us that there was a clear intention by the legislature not to allow pleadings to be closed before further steps are taken in an election petition. This, in our view, accord with the time factor involved in an election petition.
Our view on the intention of the legislature is supported by the mischief rule of interpretation of statutes. The rule is to the effect that where there is a prior situation/event that led to promulgation of a statute, the Court or Tribunal must bear it in mind when interpreting the statute, in order to avoid going back to the same incident that the legislature wanted to avoid. In xxx
The consequence of the above is that it is wrong to apply the rule on close of pleadings in Federal or States’ High Court Civil Procedure Rules to election petition cases. To do so will amount to importing the provision of the Federal High Court Civil Procedure Rules to supplant express provision of Paragraph 18 of the Schedule to the Electoral Act 2010 (as amended). This can only be done in the absence of a clear provision of Paragraph 18 of the Schedule. We adopted the above
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approach to explain the correct position of the law in order to avoid the arguments that some Court of Appeal Judgments had generated on the joint reading of Paragraphs 18 and 49 of the Schedule.
We now proceed to refer to some of the decided cases on the issue.
In making pronouncements on the issue, the Court in PREYE OSEKE & ANOR V. INEC (2011) LPELR CA/PH/EPT/25/2011, delivered on 25/10/2011, held thus:-
“The implication of the reading of paragraph 18 with paragraph 49 is that when there are more than one respondents the election Petition against each of the Respondents shall be deemed to be a separate Petition, in other words, where the Petitioner is to apply for issuance of pre-hearing notice as in Form TF007 under the said paragraph 18, he is to do so within 7 days after each Respondent files and
