HON. DIMEJI MUSE AWOJOBI & ANOR. V. INDEPENDENT NATIONAL ELECTORAL & ORS. (2011)

HON. DIMEJI MUSE AWOJOBI & ANOR. V. INDEPENDENT NATIONAL ELECTORAL & ORS.

(2011)LCN/4985(CA)

In The Court of Appeal of Nigeria

On Monday, the 12th day of December, 2011

CA/L/EPT/006/2011

RATIO

NEW ISSUES ON A RESPONDENT’S REPLY TO AN ELECTION PETITIONS: TIME LIMIT WITHIN WHICH THE PETITIONER SHALL BE ENTITLED TO FILE HIS REPLY WHERE NEW ISSUES OF FACTS ARE RAISED IN A RESPONDENT’S REPLY TO AN ELECTION PETITIONS

Afortiori, it’s also the law, that wherein a respondent’s reply new issues of facts have been raised the petitioner shall be entitled to file the reply thereof within 5 days from the receipt of the respondents reply. However, the 5 days time limit accorded the petitioner shall not be extended. See paragraph 16(1) & (2) of the First Schedule to the Electoral Act, 2010, as amended. PER I.M.M. SAULAWA, J.C.A.

PRE-HEARING CONFERENCE NOTICE: STATUTORY PROVISION OF PARAGRAPH 18(1) – (5) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010, AS AMENDED AS REGARDS APPLICATION ISSUANCE OF A PRE-HEARING CONFERENCE NOTICE

Undoubtedly, an application for issuance of a pre-hearing conference notice is governed by the provisions of paragraph 18 of the First schedule (supra). Most especially, paragraph 18(1) – (5) of the First Schedule to the Electoral Act, 2010 (supra), have provided that – 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, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 008. (2) Upon application by d petitioner under subparagraph (1), the tribunal or court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF 008 accompanied by a re-hearing information sheet as in Form TF 009 for – (a) the disposal of all matters which can be dealt with an interlocutory a application; (b) giving such directions as to the future course of the petition as appear best adopted to secure its just, expeditious and economical disposal in view of the urgency of election petitions; (c) giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need for the expeditious disposal of the petition; and (d) fixing clear dates for hearing of the petition. (3) The respondent may bring the application in accordance with subparagraph (1) where the petitioner fails to .do so, or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition. (4) Where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained. (5) Dismissal of a petition pursuant to subparagraphs (3) and (4) is final, and the tribunal or court shall be functus officio. By virtue of the above provisions of the First schedule (supra), it has become rather obvious, that the Appellants ought to have applied for the issuance of a pre-hearing conference notice within 7 days after filing and service of the petitioners’ reply on the respondents, or 7 days after the filing and service of the respondents’ reply. See paragraph 18(1) of the First schedule to the Electoral Act 2010 (supra). It should be emphasized, at this point in time, that it’s only where a petitioner timeously complies with the above mandatory provisions of paragraph 18(1) that the tribunal shall issue pre-hearing conference notice (as in Form TF007) and (a pre-hearing information sheet as in Form TF008), respectively. However, where the petitioner in an election petition fails to comply with the provisions of paragraph 18(1) (supra), any of the respondents may file an application in accordance with subparagraph (1) of paragraph 18, or alternatively by a motion on notice (which shall be served on the petitioner returnable within 3 clear days) apply for an order to dismiss the petition, in limine. See paragraph 18(3) of the First Schedule (supra). PER I.M.M. SAULAWA, J.C.A.

PREHEARING CONFERENCE NOTICE: WHETHER WHERE BOTH THE PETITIONER AND RESPONDENT FAIL TO APPLY FOR THE ISSUANCE OF A PREHEARING CONFERENCE NOTICE OR THE DISMISSAL OF THE PETITION UNDER PARAGRAPH 18(1) &(3) THE TRIBUNAL OR COURT SHALL DEEM THE PETITION AS HAVING BEEN ABANDONED, AND ACCORDINGLY DISMISS SAME

INTERPRETATION OF PARAGRAPH 18(1) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT: STATUTORY PROVISION OF PARAGRAPH 18(1) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010, AS AMENDED AS REGARDS THE NUMBER OF DAYS WITHIN WHICH TO FILE AND SERVE THEIR RESPECTIVE REPLIES TO THE PETITION

Thus, by virtue of the provision of paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (supra), the Respondents had fourteen days from the 06/5/11 within which to file and serve their respective replies to the petition. See paragraph 12(1) of the First Schedule to the Electoral Act 2010 (supra), to the effect thus: 12. – (1) 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 admits, and setting out the facts on which he relies in opposition to the election petition. In the instant case, it’s evident that memoranda of appearance had been filed for the Respondents. Thus, I do not believe, in the least, that the Respondents were entitled to a maximum of 21 days in accordance with paragraph 10(2) of the First Schedule to the Electoral Act 2010 (supra) as erroneously found by the lower tribunal in the ruling in question. PER I.M.M. SAULAWA, J.C.A.

ELECTION PETITION: WHETHER TIME IS OF ESSENCE IN AN ELECTION PETITION; WHETHER A DISMISSAL OF AN ELECTION PETITION IS FINAL

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

1. HON. DIMEJI MUSE AWOJOBI
2. AFRICAN LIBERATION PARTY Appellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. HAKEEM ABIODUN MUNIRU
3. ACTION CONGRESS OF NIGERIA Respondent(s)

I.M.M. SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is against the ruling of the National Assembly/Legislative House Election Petition Tribunal, holden at Lagos on September 30, 2011 in petition No. NA/LEGH/EPT/L/3/2011. By the said ruling, the lower tribunal dismissed the Appellants’ petition for being incompetent, on the grounds that the scores of the candidates at the election were not stated in the petition, and that the Appellants had failed to apply for issuance of a pre-hearing notice within the statutory stipulated time limit.
FACTS AND CIRCUMSTANCES LEADING TO THE APPEAL
The facts and circumstances giving rise to the appeal are discernible from the record of appeal, transmitted to this court on October 28, 2011. By virtue of the Appellants’ pleadings, averred in the petition thereof, contained at pages 1 – 37 of the Records, an election was held by the 1st Respondent on April 9, 2011 for Oshodi/Isolo 02 Federal constituency, Lagos State. A total of thirteen candidates had allegedly participated in the said election. At the conclusion of which the 2nd Respondent, who contested under the platform of the 3rd Respondent, was declared the winner. However, the 1st Appellant was allegedly unlawfully excluded, though validly nominated, from the election in question. The Appellants reacted to the purported exclusion of the 1st Appellant from the election by filing the petition (No.NA/LEGH/EPT/L/3/2011) on April 29, 2011, thereby praying the lower Tribunal for the following reliefs:
a. That it may be determined that the said … (2nd Respondent) was not duly elected or returned as the member representing Oshodi/Isolo – 02 Federal Constituency in the National Assembly Election held on 9th April 2011 and or,
b. That the National Assembly for Oshodi/Isolo – 02 Federal Constituency Lagos held on 9th April 2011 be cancelled and or nullified, and fresh election ordered.
On May 11, 2011 and June 7, 2011, memoranda of appearance were filed in the lower Tribunal on behalf of the 1st and 2nd & 3rd Respondents by the respective counsel thereof.
On 08/6/11, a notice of preliminary objection, dated 06/6/11, was filed by Dr. Muiz Banire, of 2nd and 3rd Respondents’ counsel, praying the lower Tribunal to dismiss the petition on the ground that it’s incompetent, thereby robbing the Tribunal of jurisdiction to entertain the action. The preliminary objection was predicated upon the grounds that –
(1) The petitioners failed to state the ground on which the petition is based as required by paragraph 4(1) of the First Schedule to the electoral Act, 2010.
(2) The petitioners failed to state the scores of the candidates as required by paragraph 4(1) of the First Schedule to the Electoral Act, 2010.
On 30/09/11, upon the conclusion of the hearing of the learned counsel’s argument on the preliminary objection, the lower Tribunal delivered a ruling to the conclusive effect thus:
The petitioners’ motion filed on 4/8/2011 praying this Tribunal to strike out the 2nd – 3rd Respondents reply and preliminary objection to this petition fails, and is hereby dismissed.
The second prayer in the 2nd – 3rd Respondents’ motion of 26/7/2011, that the petition be dismissed, for failure by the petitioners to issue pre-hearing notice as required by paragraph 18(1) of the first Schedule to the electoral Act 2010 (as amended) succeeds and is hereby granted.
Similarly, the second prayer in the 2nd – 3rd Respondents’ motion filed on 8/6/2011, that the petition be dismissed, for failure by the petitioners to state the scores of the candidates as required by paragraph 4(1) of the first schedule of the Electoral Act 2010 (as amended) succeeds and is hereby granted.
The lower Tribunal thereby proceeded to make the following consequential orders:
1. The petition as presented in this action is incompetent and is hereby dismissed.
2. The petitioners are to pay the 2nd and 3rd Respondents the sum of N50,000.00 (Fifty Thousand Naira) each as costs for thus failed petition.
The notice of appeal against the ruling in question, filed in the lower Tribunal’s registry on 20/10/11, was predicated upon four grounds. The reliefs sought by the Appellants are as follows:
(a) AN ORDER setting asides the decision of the National Assembly and Legislative House Election petition Tribunal sitting (sic) in Lagos contained in the Ruling of 30th Day of September, 2011 striking out this petition on the grounds that:
i. Time could not be entered within which the petitioners may file the application for issuance of Pre- Hearing Notice in the petition.
ii. Failure to state the scores of the candidates that participated in the election is fatal to the Election petition.
(b) AN ORER remitting the petition back (sic) to the Honorable Tribunal for determination on the merits. OR IN THE ALTERNATIVE
To hear the petition hold that the National Assembly election for Oshodi/Isolo – 02 Federal constituency Logos held on 9th day of April 2011 be cancelled and or nullified and make an order for a fresh election to be held for the constituency in that the 1st petitioner/Appellant was validly nominated, but was unlawfully excluded along with the 2nd Appellant from the election.
An order setting aside or varying the cost awarded in the decision.
It’s instructive, that the Appellants were able to file their brief of arguments on 09/11/11. On the other hand, the 2nd and 3rd Respondents’ brief was filed on 16/11/11. It is equally instructive, that when the appeal last came up on 21/11/11, the learned counsel adopted the argument contained in their respective briefs of argument. The Court then adjourned the appeal to 24/11/11 for pronouncement of the decision thereof, in accordance with the provision of section 34 of the Electoral Act, 2010, as amended.
On the said 24/11/11, the decision of the court was indeed unanimously pronounced, to the effect that the appeal is grossly unmeritorious. The appeal was accordingly summarily dismissed in accordance with section 34 of the Electoral Act 2010, as amended. However, the reasons for the said decision were reserved.
In the said Appellants’ brief, a total of three issues have so far been formulated, viz:
(i) Whether the learned judge was right in holding that the failure by petitioner to state the scores of the candidates’ in the petition render it incompetent despite the fact that the scores obtained at the election is not in issue and are not being challenged by the petition.
(ii) Whether the learned Judge was right in holding that the petitioners did not make an application for issuance of prehearing notice filed by the petitioners was out of time and that time cannot be extended for the application for issuance in the circumstances of the petition.
(iii) whether the award of cost and costs awarded against the petition in the circumstances of the petition is justified.
On issue No.1, the Appellants’ learned counsel alluded to paragraphs 3 – 5 of the petition, at pages 3 – 4 of the Record, to the effect that the petition seeks to nullify the election on the ground that the 1st Appellant was validly nominated, but unlawfully excluded from the election. It was further submitted, that paragraph 4(1) (a) of the First Schedule to the Electoral Act 2010 has been complied with, except the specific scores of the candidate which could not be obtained by the Appellants as at the time of filing the petition. That, by section 77 of the Electoral Act, 2010 the 1st Respondent has a mandatory duty to furnish the Appellant requested information or documents within seven days of the request.
It was contended, that there was no basis for the lower Tribunals’ holding that the Appellants ought to have obtained the election result from the website of the 1st Respondent. That view was allegedly taken suo motu by the lower Tribunal as such counsel ought to have been given the opportunity to address the Tribunal thereon.
It was argued, that the lower Tribunal misapplied the ratio of the decision in OJONG VS. DUKE (2003) 14 NWLR (Pt. 841) 581. It was further argued, that paragraph 4(1) to the First schedule to the Electoral Act, 2010 cannot be interpreted without relating it to section 133 or the entire spirit of the said Act, to determine whether the word “shall” used in that provision is obligatory or directory. See BENMONON STATUTORY INTERPRETATION, 5th Edition 2008 at page 546.
It was the contention of the learned counsel that the word “may” used in paragraph 4(1) imports directory or discretion on the Tribunal. That, it’s common sense, that scores of candidates is irrelevant to the petition. See BARNES Vs. JARVIS (1953) WLR 649 at 652 per Lord Goddard, CJ; ISOLA VS. AJIBOYE (1994) 6 NWLR (Pt. 352) 506: LIVERPOOL BOROUGH BANK Vs. TURNER (1860) 30 L.J 379: BALLAMY VS. SAULL (1863) 32 L.J. QB 366; ABUBAKAR VS. YAR’ADUA (2008) 12 SC (Pt.11) 1 at EFFIONG VS. IKPEME (1999) 6 NWLR (Pt.606) 206; IDRIS VS. ANPP (2008) 8 NWLR (Pt. 1088) 1; YUSUF Vs. OBASANJO (2003) 9 – 10 SC 53 at 124.
It was finally contended, on the 1st issue, that not stating the scores of the candidates in the petition is not fatal to the petition, and that the Tribunal should have properly exercised the discretion thereof to save the petition. The Court has been urged upon to accordingly set aside the ruling of the lower Tribunal, dismissing the petition for failure to state the candidates’ scores.
On the 2nd issue, the Appellants’ counsel alluded to the fact that the petition was served on the Respondent’s on 06/5/11. That, the 1st Respondent and 2nd & 3rd Respondents’ replies filed on 07/6/11 respectively, were served on the Appellants on 20/6/11. That, both replies were filed outside the time limited by the Act. It was submitted, that by the ruling thereof, delivered on 30/9/11, the lower Tribunal extended time for the Appellant and 2nd and 3rd Respondents within which to file their respective replies.
Referring to the provisions of paragraphs 16(1) and 18(1) of the First schedule to the Election Act 2010, it was contended, that the Appellants had 7 days from 20/6/11 to file the application thereof for issuance of pre-hearing notice.
It was argued, that having extended time to the Appellants on 04/8/11 to file reply, the application for issuance of pre-hearing notice filed on same date was automatically within time. According to the learned counsel, the lower Tribunal was wrong in holding that there was no application for issuance of pre-hearing notice, on the ground that the application must be made within 21 days of the petition.
The court has been urged not to be persuaded by the decision in IKORO Vs. IZUNASO & ORS (2009) 4 NWLR (Pt. 1180) 45, in which the court allegedly dismissed the suit on very stultifying technical ground.
It was further contended, that on the face of paragraph 18(1) (supra), the time for application for issuance of pre-hearing notice is determined by either the filing and service of Respondent’s reply or the petitioners reply, to close pleadings. See NWANKWO Vs. YAR’ADUA (2010) 3 – 5 SC (Pt. 111) 1 at 73: AWOLOWO Vs. SHAGARI (1979) 6 – 9 SC 51: ALAMIEYESEGHA Vs. FRAL (2006) 16 NWLR (Pt.100) 1; BUHARI VS. INEC (2008) 12 SC (Pt.1) 1 at 198; UNIVERSITY COLLEGE OXFORD VS. AUNDY (1982) CH. 413 at 419.
The court has been urged to hold that the application for the issuance of pre-hearing notice was filed within time, or in the alternative, that time ought to have been extended within which the Appellants’ application was to be filed.
On the 3rd issue, it was submitted, inter alia, that it was the callous act of the 1st Respondent that resulted in the Appellants being excluded from contesting the election. That, the conduct of the Respondents’ in the petition did not merit the award of cost, having regard to the provision of paragraph 38 of the First Schedule to the Electoral Act, 2010.
Thus, the court has been urged to set aside the cost awarded in favour of the Respondents. On the whole, the court has been urged to set aside the decision of the lower Tribunal, and refer the petition back to the Tribunal for determination on the merits.
On the part thereof, the 2nd and 3rd Respondents filed their brief on 16/11/11. Three issues have been raised therein, to wit: (i) Whether the Tribunal was right in holding that the Appellants’ application for pre-hearing notice was filed, out of time. Ground 11 of the petition.
(ii) Whether the Tribunal was right in refusing the Appellants Application for extension of time within which to apply for the pre-hearing notices (Ground 2 of Appeal).
(iii) Whether the Tribunal was right in holding that the failure of the Appellants to state the scores of the candidates in the petition rendered the petition incompetent,(Ground 3 of the Notice of Appeal).
The three issues raised in the 2nd & 3rd Respondents’ brief have been argued seriatim. On issues No. 1, the Respondents’ learned counsel submitted, inter alia, that although there is no direct decisions with regard to paragraph 18(1) of the First Schedule to the Electoral Act 2010, there are decision under the Electoral Act 2006, particularly paragraph 3(1) of the practice Directions, 2007 made pursuant thereto.
According to the learned counsel, Election Tribunal & Court Practice Directions, 2007 are ancillary to the Electoral Act, 2006 which have been lifted into the Electoral Act, 2010 (as amended), thereby fortifying its application. It is contended, that, by implication, the provisions of paragraph 18(1) of the First Schedule to the Electoral Act, 2010 cannot be said to be bereft of judicial interpretation. See OKEREKE Vs. YAR’ADUA (2008) 12 NWIR (Pt. 1100) 95: IKORO Vs. IZUNASO (2009) 4 NWLR (Pt.1130) 45: ADO Vs. MAKERA (2009) 9 NWLR (Pt. 1147) 491: ENWEROZOR Vs. INEC (2009) 8 NWLR (Pt. 1143) 223.
According to the learned counsel, a petitioner who fails to apply for a prehearing notice, as in the instant case, will share the same fate the Supreme Court accorded the appellant in OKEREKE vs. YARADUA (supra). See also OWNERS OF THE MV “Arebella” Vs. NAIC (2008) 11 NWLR (Pt. 1097) 182 at 205 G – H per Ogbuagu JSC; AROMOLARAN Vs. OLADELE (1990) 3 NWLR (Pt. 162) 359 at 371 para. B. MMS LTD Vs. OTEJU (2005) 14 NWLR (Pt. 945) 517. HASSAN Vs. ALIYU (2010) 17 NWLR (Pt. 1223) 547 at 599 paras B – D; B. MANFAG (NIG.) LTD. (2007) 14 NWLR (Pt.1053) 109 at 153 paras G – H, respectively.
On the whole, it was contended that the Appellants knew that they did not file any pre-hearing notice on time, be it on 23/6/11 or 04/8/11. The Court has been urged to hold that no pre-hearing notice existed in this case, and thus resolve 1st issue in favour of the 2nd and 3rd Respondents.
On issue No. 2, an allusion was made to paragraph 18(4) of the First Schedule to the Electoral Act, 2010, to the effect that the Tribunal lacks the power to extend time within which an application for issuance of pre-hearing notice can be made. And that where words of a statute are plain and unambiguous, they must be given their natural and ordinary meaning. See ACTION CONGRESS VS. INEC (2007) 6 SC (Pt.11) 212 at 265; OKEREKE VS. YAR’ADUA (2008) 4 – 5 SC (Pt.11) 206; NWANKWO VS. YARADUA (2010) 3 – 5 SC (Pt.111) 1, ENWERZOR (Pt.1143) 223 at 237 B.
That, at no point in time was a pre-hearing notice ever issued, or any hearing session held, as all motions were heard outside the pre-hearing session. The court has been urged to equally resolve the 2nd issue in favour of the 2nd and 3rd Respondents.
On the 3rd issue, paragraph 14 of the petition was copiously referred to, to the effect that the Appellants were not only contesting their exclusion, but (also) challenging the election, and by extension, the result. It was contended, that technically, the petition itself should have failed on the basis of incompatibility of ground. See ABUBAKAR VS. YAR’ADUA (2008) 19 NWLR (Pt.1120) 1 at 84 A – G.
Copiously referring to paragraph 4(1) of the First Schedule to the Election Act, 2010 (supra), it was argued that the requirement therein and sine qua non to a valid presentation of a petition. See ABIMBOLA Vs. ADEROJO (1999) 5 NWLR (Pt.601) 94 at 111 B – C; EFFIONG VS. IKPEME (1999) 6 NWLR (Pt.606) 260 at 271 G – H; APGA VS. OHAKIM (2009) 4 NWLR (Pt.1130) 116 at 158 A – C; OKEREKE VS. YAR’ADUA (supra) at 127 E – F per Onnoghen, JCA; OJONG VS. DUKE (2003) 14 NWLR (Pt.841) at 617 E – G.
It was further argued that the ground of the petition spills beyond exclusion to the realm of zendue election and non compliance with the Electoral Act, thus the stating of scores becomes inevitable and failure to do so is fatal to the resurrection of the morbid petition. The court has been urged to so hold; and resolve No. 3 against the Appellants.
On the issue of cost it was contended that in view of the Appellant’s morbid petition, for failure to pay the security for cost as when due, the lower Tribunal was even too miserly in the costs awarded.
On the whole the court has been urged upon to accordingly dismiss the appeal for being unmeritorious.
There is no gainsaying the fact that I have accorded an amply critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the appeal, the eloquent submissions of the learned counsel, contained in their respective briefs of argument vis-a-vis the records of appeal, as a whole. Having considerably contrasted the two briefs of argument of the learned counsel to the respective parties, I am appreciative of the very fact that the three issues raised therein are not at all mutually exclusive. However, it must be pointed out, at this point in time, that the Appellants’ brief has fallen short in meeting the requirement of being an ideal brief of argument. The reason being that none of the three issues formulated in the Appellants’ brief has been married to, or distilled from, any of the grounds of appeal.

Yet, both the apex court and the Court of Appeal have in a plethora of authorities pontificated upon the trite and well settled principle, that issues for determination raised in a brief of argument must be precise and devoid of irrelevant complexity or verbosity. And most importantly:
“issues for determination must be distilled of formulated from valid grounds of appeal, which in turn hove to be predicated upon the ratio decidendi of the decision of trial court or tribunal appeal against.”
See AGBALLAH VS. CHIME (2009) 1 NWLR (Pt.1122) 373 at 419 paras A – B, Per Saulawa, JCA. See also DELEK (NIG.) LTD. VS. OMPADEC (2007) 7 NWLR (Pt.1033) 402.
The basis of the above trite principle is hinged upon the fact that only issues formulated in a brief are usually argued on appeal. Thus, grounds of appeal are not argued in a brief. However where issues are found to be unrelated to the grounds of appeal, they are deemed to be incompetent and liable to be discountenanced. See OCEANIC BANK INT. (NIG). LTD VS. G. CHITEX IND. LTD (2002) 6 NWLR (Pt. 661) 464: DADA VS. DOSUMU (2006) 18 NWLR (Pt. 1010) 134: TAIKA Vs. ERISI (1988) 2 NWLR (Pt. 78) 563: ANIMASHAUN VS. UCH. (1996) 10 NWLR (Pt. 476) 65: AGBALLAH VS. SCHINIE (supra) at 416 D – F: 421 G – H & 464 H, respectively.
On the other hand, although the 1st, 2nd and 3rd issues, raised in the 2nd and 3rd Respondents’ brief, were indicated to have been distilled from grounds 1, 2 & 3 of the notice of appeal, no issue has been formulated relating to ground 4. In the circumstance, I have deemed it expedient to formulate the following three issues for determination of the appeal:
1. Whether or not the lower tribunal was right in holding that the petitioner’s application for the issuance of prehearing conference notice was filed out of the statutory time limit provided under paragraph 18 of the First Schedule to the Electoral Act, 2010 as amended.
This issue relates to grounds 1 & 2 of the notice of appeal.
2. Whether or not the lower tribunal was right in holding that the failure to state the scores of the candidates at the election was fatal to the petition.
The issue is distilled from ground 3 of the notice of appeal.
3. Whether or not the lower tribunal erred in law when it made the order for cost against the Appellants.
This issue relates to ground 4 of the notice of appeal.
ISSUE NO. 1:
As alluded to above, the issue No. 1 raises the vexed question of whether or not the lower Tribunal was right in holding, as it did, that the Appellants’ application for the issuance of a pre-hearing notice in the petition was filed out of the statutory time limit. As alluded to above, the issue relates to grounds 1 & 2 of the notice of appeal. The Appellants’ issue No. 2 and the 2nd & 3rd Respondents, issues 1 & 2 relate to the instant issue under discussion. It is not at all in doubt, that the petition in question was filed by the Appellants in the lower Tribunal on 29/4/11. There is also no doubt, that the petition was served on each of the three Respondents on a date not later than 06/5/11. The Appellants’ affidavit in support of the motion on Notice, filed on 05/8/11, seeking to strike out the 2nd and 3rd Respondents’ Reply to the petition, testifies to that fact. Paragraphs 3 & 4 of the said affidavit are to the following effect:
3. That this petition was filed on the 29th of April 2011 and was served on all the Respondents on the 6th day of May 2011;
4. That the Law firm of Gani Bello & Co. entered on unconditional appearance to the petition on behalf of 2nd and 3rd Respondents but the 23rd day of May 2011.
What’s more, the Appellants’ learned counsel has emphatically confirmed the above fact at page 10, paragraph 2.1 of the brief thereof, thus:
2.1. The petition was served on the Respondents on or about the 6th of May 2011 but while the 1st Respondent filed their reply to the petition on 7th June 2011, 2nd and 3rd Respondents filed their joint reply to the petition on the 17th of june 2011 and same was served on the petitioners on 20th June 2011. Both reply (sic) were filed outside the time limited by the Act for the filing of Respondents’ reply. See pages 38 and 105 of the records.
It was vehemently argued by the Appellants’ learned counsel, that the technical construction of the provision of paragraph 18(1) of the First schedule to the Electoral Act 2010 (supra) in the lower Tribunals ruling has no precedent. According to the learned counsel –
2.13 lt is clear on the fact of the said paragraph 18(1) of Act (sic) that the time for the issuance of application for issuance of the pre-hearing notice is to be determined by either the filling (sic) and service of the Respondents reply or the petitioners reply, to close pleadings…
2.14 We submit that the technical deduction of 21 days for the filing of the application for the pre-hearing notice failed to take cognizance of service of the petition which is not done by the petitioner, and must be personal or the respondent’s reply which is not done by respondent. See paragraphs 6, 7(1)(a) and 13 of the first schedule to the Electoral Act 2010.
2.15 It is on submission that that construction is too strange, too narrow and absurd in that it will require the application to be made even before there is a reply or any application to the petition.
The above submission is a reaction to the lower Tribunal’s findings, most especially at page 252 of the Record to the effect, inter alia, thus:
The petitioners in this action, filed their election petition on 29/4/2011. They were unable to pay security for cost at that time. The Secretary of this Tribunal in compliance with paragraph 2(4) of the First Schedule to the Electoral Act, 2010 (as amended), stated further action in their action. The petitioners finally paid the security for costs only on 4th August, 2011. Under paragraph 18(1) of the 1st schedule to the obtaining Electoral Act, the petitioners are entitled to a maximum of 21 days, within which they can apply for prehearing notice to be issued. They have pleaded frustrating events such as being cash trapped and refused by the Tribunal’s Secretary to further process their petition, on account of their inability to pay security for costs. Both reasons in my humble opinion are not tenable in law. Poverty is not a ground for excusing non compliance with a mandatory and specific requirement of the rules of this Tribunal. The time by which the petitioners are allowed to apply for pre-hearing notice is specific and not negotiable under paragraph 18(1) of the Electoral Act 2010 as amended.
From 29/4/2011 to 4/8/2011, when the petitioners filed their petition and paid security for cost respectively is 67 days. The law allows the petitioners a maximum of 21 days to apply for pre-hearing notice to be issued. So, 21 days less the 67 days will be 46 days. The petitioners were therefore in arrears of 46 days when they applied by their motion of 4/8/2011, for pre-hearing notice to issue in respect of their petition. There is therefore no magic that this Tribunal can now perform to assist them. See pages 252 lines 4 – 24, and 253, lines 1 – 2, of the record.
It is instructive, that by virtue of the provisions of paragraph 12(1) of the First Schedule to the Electoral Act, 2010, as amended, the respondent to an election petition, shall, within 14 days of service of the petition thereon, file in the Tribunal’s registry his reply to the petition.
Afortiori, it’s also the law, that wherein a respondent’s reply new issues of facts have been raised the petitioner shall be entitled to file the reply thereof within 5 days from the receipt of the respondents reply. However, the 5 days time limit accorded the petitioner shall not be extended. See paragraph 16(1) & (2) of the First Schedule to the Electoral Act, 2010, as amended. Undoubtedly, an application for issuance of a pre-hearing conference notice is governed by the provisions of paragraph 18 of the First schedule (supra). Most especially, paragraph 18(1) – (5) of the First Schedule to the Electoral Act, 2010 (supra), have provided that –
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, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 008.
(2) Upon application by d petitioner under subparagraph (1), the tribunal or court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF 008 accompanied by a re-hearing information sheet as in Form TF 009 for –
(a) the disposal of all matters which can be dealt with an interlocutory a application;
(b) giving such directions as to the future course of the petition as appear best adopted to secure its just, expeditious and economical disposal in view of the urgency of election petitions;
(c) giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need for the expeditious disposal of the petition; and
(d) fixing clear dates for hearing of the petition.
(3) The respondent may bring the application in accordance with subparagraph (1) where the petitioner fails to .do so, or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.
(4) Where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.
(5) Dismissal of a petition pursuant to subparagraphs (3) and (4) is final, and the tribunal or court shall be functus officio.
By virtue of the above provisions of the First schedule (supra), it has become rather obvious, that the Appellants ought to have applied for the issuance of a pre-hearing conference notice within 7 days after filing and service of the petitioners’ reply on the respondents, or 7 days after the filing and service of the respondents’ reply. See paragraph 18(1) of the First schedule to the Electoral Act 2010 (supra).
It should be emphasized, at this point in time, that it’s only where a petitioner timeously complies with the above mandatory provisions of paragraph 18(1) that the tribunal shall issue pre-hearing conference notice (as in Form TF007) and (a pre-hearing information sheet as in Form TF008), respectively.
However, where the petitioner in an election petition fails to comply with the provisions of paragraph 18(1) (supra), any of the respondents may file an application in accordance with subparagraph (1) of paragraph 18, or alternatively by a motion on notice (which shall be served on the petitioner returnable within 3 clear days) apply for an order to dismiss the petition, in limine. See paragraph 18(3) of the First Schedule (supra).

It is equally a well settled principle of law, that where both the petitioner and respondent fail to apply for the issuance of a prehearing conference notice or the dismissal of the petition, as the case may be, under paragraph 18(1) & (3) (supra), the tribunal or court shall deem the petition as having been abandoned, and accordingly dismiss same. See paragraph 18(4) of the First Schedule to the Electoral Act (supra).
I think, there’s a need to reiterate that the tribunal or court lacks the fundamental jurisdiction competence or power to entertain any application for an extension of time, either by the petitioner or respondent, to take any further step regarding the petition. Undoubtedly, a dismissal of a petition pursuant to paragraph 18(3) & (4) of the First schedule to the Electoral Act, 2010 (supra), is final. By the implication of which, the tribunal becomes functus officio. See paragraph 18(5) of the First Schedule (supra).
In the instant case, as copiously established thereabove, it’s so obvious that: (i) the petition was filed by the Appellants on 29/4/2011; (ii) the petition was served on each of three Respondents not later than on 06/5/2011. Thus, by virtue of the provision of paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (supra), the Respondents had fourteen days from the 06/5/11 within which to file and serve their respective replies to the petition. See paragraph 12(1) of the First Schedule to the Electoral Act 2010 (supra), to the effect thus:
12. – (1) 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 admits, and setting out the facts on which he relies in opposition to the election petition.
In the instant case, it’s evident that memoranda of appearance had been filed for the Respondents. Thus, I do not believe, in the least, that the Respondents were entitled to a maximum of 21 days in accordance with paragraph 10(2) of the First Schedule to the Electoral Act 2010 (supra) as erroneously found by the lower tribunal in the ruling in question.

Paragraph 10(2) of the First Schedule is to the effect thus:
10.(2) The non filing of a memorandum of appearance shall, not bar the respondent from defending the election petition if the respondent files his reply to the election petition in the Registry petition a reasonable time, but, in any case’ not later than twenty-one (21) days from the receipt of the election petition.
Arguably, having been served with the petition on 06/5/11, the 14 days time limit accorded the Respondents under paragraph 12 of the First Schedule (supra) to file their respective replies to the petition must be deemed to have expired on 21/5/11. Even if the Respondents had not filed their respective memoranda of appearance, they would have been entitled to a maximum time limit of only 21 days within which to file their replies to the petition. Most certainly, the 21 days time limit would have expired on 28/5/11. See paragraph 10(2) of the First Schedule (supra).
In the circumstance, from the 21/5/11, the Respondents were definitely out of time to file their respective replies to the petition. Thus, the Appellants ought to have applied to the lower tribunal for the issuance of a pre-hearing conference notice, inspite of the Respondents’ failure to file their respective replies to the petition within the stipulated time limit. See paragraph 18(1) & (2) of the First Schedule (supra).
In the instant case, it is evident from the records of appeal, that the Appellants had applied to the lower tribunal for the issuance of a pre-hearing notice vide a letter dated 23/6/11. The letter contained at page 159 of the Record is to the following effect
B. Chinedu Moore & Associates
23rd June, 2011 Ezedinachi Chambers

LEGAL PRACTITIONERS & CONSULTANTS, NOTARIES PUBLIC

The Registrar
National Election Tribunal
Holden at Lagos

Sir,

RE: PETITION NO. NA/LEGH/EPT/L/3/2011
1. HON. DIMEJI MUSE AWOJOBI 1ST PETITONER
2. AFRICAN LIBERATION PARTY PETITONER 2ND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION –     1ST RESPONDENT
2. HAKEEM ABIODUN MUNIRU           –        2ND RESPONDENT
3. ACTION CONGRESS OF NIGERIA           –     3RD RESPONDENT

APPLICATION FOR ISSUANCE OF PRE-HEARING NOTICE

We are Solicitors for the Petitioners and do hereby on their behalf apply for issuance of pre-Hearing Notice for this petition.

Thank you.
Yours faithfully,

SGD
B. Chinedu Moore & Associates”

Correlatively, I would want to appreciate that, ordinarily, on the face of the letter in question, the lower tribunal would have had no problem at all in granting the Appellants’ application for the issuance of the pre-hearing conference notice. This is absolutely so, because the position of the court vis-a-vis the law regarding an application for the issuance of pre-hearing conference notice is no longer in doubt. In the recent decisions thereof, this court has had the privilege of making it explicitly clear, that the provision of paragraph 18(1) of the First Schedule to the Electoral Act, 2010 as amended (supra) envisages, that a simple application by way of a letter, seeking the tribunal or court to issue a pre-hearing conference notice would suffice. That’s to say, an application needs not necessarily be by way of a motion ex parte or on notice. The provisions of paragraph 47(1) of the First Schedule to the Electoral Act 2010 (supra) notwithstanding. See ALIYU GEBI VS. ALHAJI GARBA DAHIRU & 3 ORS. Appeal No. CA/J/EP/HR/127/2011; judgment delivered on 28/8/11; ARC. ALIYU P.S. DANICAR & 1 OR VS. PDP & 2 ORS. Appeal No. CA/J/EPT/TR/SE/5/2011, judgment delivered on 06/9/11. In the above cases, the court has had the privilege of critically reviewing the decisions thereof, most especially in BADAMASI AYUBA VS. INEC (unreported) Appeal No. CA/K/EP/HR/15/2009, dated 14/05/2009; RIRUWAI VS. SHEKARAU (2008) 12 NWLR (Pt. 1100) 142 at 149 D – E, and that of the Supreme court in OKEREKE VS. YAR’ADUA (2008) 12 NWLR (Pt.1100) 94 at 118 B – E, respectively.
Most particularly, in the case of ARC DANKARO & 1 OR. VS. PDP & 2 ORS. (supra), this court was recorded to have, inter alia, held rather aptly that-
It is most instructive that the provisions of the Electoral Act, 2010 as amended (supra), most especially paragraphs 18(1) – (3), 47(1) – (3) et al, were recently adjudicated upon by this court in the case of ALIYU IBRHAIM GEBI VS. ALH. GARBA DAHIRU & 3 ORS Appeal No. CA/J/EP/HR/127/2011, dated 22/08/2011 (unreported). The judgment was a decision of the full court, consisting of five justices thereof. It is needless to state, that I have had the honour and privilege of delivering the leading judgment of the unanimous decision of the court, I have deemed it not only aptly expedient, but also imperative, to refer in extenso to the decision in GEBI’s case (supra), thus
‘As extensively postulated under issues No. 1 above all the three cases of RIRUWAI VS. SHEKARAU (supra) BADAMASI VS. INEC (supra) AND OKEREKE VS. YAR’ADUA (supra) are quite distinguishable from the instant case, Thus, it would be most unreasonable to say the least for this court to temper with the commendably unassailable reasoning and conclusion there reached by, the lower tribunal in the instant case. I do not entertain the slightest belief or misgiving that it would be fair and just to upturn or interfere with the decision that has appeared to have been commendably reached by the Lower tribunal.’
And I so hold! Interestingly, in GEBI’s case (supra), the lower tribunal declined or refused to be stampeded by the forceful, albeit preposterous, respondents’ agitation to terminate the Appellants’ Petition, in limine, on the highly misplaced ground that the appellants’ application was a letter and not a motion. Just like in the instant case, the Appellants in GEBI’s case (supra) applied in good time (within the 7 days statutory time limit, in accordance with paragraph 18(1) of the First Schedule to the Electoral Act, 2010 as amended (supra).
However, it’s rather very clear in the instant case that the purported application dated 23/6/11, at page 159 of the Record was not filed by the Appellants within the statutory time limit accorded the Appellants. And by virtue of the provisions of paragraph 18(4) & (5) of the First Schedule to the Electoral Act 2010 (supra), the lower tribunal lacks the power to extend time to the Appellants or Respondents to apply for the issuance of pre-hearing conference notice (or file a reply) out of time. For the provisions of both paragraph 18(4) & (5) (supra) are very explicit regarding the catastrophic implication of a petitioners failure to apply for the issuance of a prehearing conference notice within the statutory time limit. See paragraph 18(4) & (5) of the First schedule thus:
(4) Where the petitioner and respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take step shall be filed or entertained,
(5) Dismissal of a petition pursuant to sub paragraphs 3 & 4 of this paragraph is final and the tribunal or court shall be functus officio.
In the circumstance, there is every cogent reason for me to hold that the answer to issue No.1 is most certainly in the positive, and same is hereby resolved against the Appellants.
Having resolved issue No. 1 above against the appellant, I think it would be most appropriate for me to, in the circumstance proceed to deal with the 3rd issue. That is because the desirability for the definition of issue No. 2 on the merits is out of the question.
Issue No. 3:
Issue no. 3 raises the question of whether the lower tribunal was right when it awarded cost against the Appellants in favour of the Respondents. As alluded to above, it’s the submission of the Appellants on this issue that –
3.05 . . . the conduct of the respondents in the petition did not merit the award of cost, or in any case the amount of cost awarded in their favour in the circumstances having regard also the provision of paragraph 38 of the First Schedule to the electoral (sic) Act 2010.
Thus, the Appellants’ learned counsel urged on the court to set aside the cost awarded in favour of the Respondents, or to substantially reduce same.
On the part thereof, the 2nd & 3rd Respondents’ learned counsel argued, inter alia, that-
69 … paragraph 38 cannot be called in did by the appellant as the fault was entirely that of the appellant and not the tribunal, because if the security for cost had been paid at the time of the presentation of the petition as required under paragraph 2(1) then the issue of suspension of proceeding would not have arisen,
I think, I cannot agree more with the above compelling submission of the 2nd & 3rd Respondents’ learned counsel. It is rather evident, from the Record, that the Appellants were the architects of their own misfortune. It is on record, that on 04/8/2011 the Appellants filed in the lower tribunal a motion on notice praying for an extension of time to:
(i) deposit security for costs; (ii) file petitioners’ Reply in the petition; and (iii) file a counter affidavit and written argument in opposition to the respondents’ preliminary objection, dated 08/6/11, respectively. Undoubtedly, the Appellants’ motion in question was prompted by the 2nd & 3rd Respondents’ motion on notice filed much earlier, on 26/7/11., praying the lower tribunal to dismiss the Appellants’ petition on the grounds that the Appellants failed (i) to pay security for fees and (ii) to apply for the issuance of a pre-hearing conference notice, in accordance with paragraph 18(1) & (2) of the First Schedule to the Electoral Act 2010 (supra).
By the provision of paragraph 2 of the First Schedule to the Electoral Act 2010 (supra), at the time of filing the petition thereof, the petitioner was mandatorily required to give security for all the costs that may become payable by him to a witness summoned on his behalf or a respondent. There is no gainsaying the fact, that the payment of security by a petitioner is a mandatory requirement of the law. Thus, failure to pay security for costs by the petition my result in putting the petition on hold. See paragraph 2(4) of the First Schedule to the Electoral 2010 (supra) thus:
“2. – (4) If no security is given as required by this paragraph, there shall be no further proceedings on the election.”
It ought to be reiterated, for the avoidance of any doubt, that the petition was filed on 29/4/11 and accordingly served on the respective Respondent on 06/5/11. Regrettably, the Appellants foot-dragged in paying the security for costs at the time of filing the petition. In strict compliance with the provision of paragraph 2(4) of the First Schedule (supra), the Secretary of the lower tribunal stayed further action on the petition. They finally paid the security on 04/8/11, albeit at a very great peril thereto. According to the lower tribunal, the Appellants-
have pleaded frustrating events such as being cash trapped and refusal by the Tribunal secretary to further their petition, on account of their inability to pay security costs. Both reasons in my humble opinion are not tenable (sic) in law.
There is every cogent reason for me to uphold the lower tribunal’s unassailable view that poverty is not by any means a ground for excusing non compliance with a mandatory and specific requirement of the rules of court or tribunal. And I so hold!
In a nutshell, the answer to issue No.3 is inevitably in the affirmative, and it’s resolved against the Appellants.
ISSUE NO. 2:
I now revert to the issue No. 2 which raises the vexed question of whether or not the lower tribunal was right when it held that the failure to state the scores of the candidates at the election was fatal to the election petition. I would want to believe that having held, from the outset under issue No. 1, that the petition was incompetent, thus ought to be dismissed for the Appellants’ failure to apply for the issuance of pre-hearing conference notice within the statutory time limit, it would be an academic and rather wasteful exercise to proceed to deal with the issue No. 2 on the merits.
Instructively, by the provision of paragraph 18(5) of the First Schedule to the Electoral Act 2010 (supra) the dismissal of the petition pursuant to paragraph 18(3) & (4) (supra) is final, and the tribunal or court shall become functus officio.
In essence, the court lacks the necessary jurisdictional competence or power to proceed to deal with the said issue No. 2 on the merits. The only reasonable thing the court ought to do in the circumstance is to dismiss the appeal and accordingly uphold the decision of the lower tribunal. And I so hold.
Hence, in the light of the above far-reaching postulations, I have come to the inevitable conclusion that the present appeal is grossly lacking in merits. The appeal is accordingly hereby dismissed by me. The decision of the lower tribunal giving rise to the appeal, delivered on September 30, 2011, is hereby affirmed.
The parties shall bear their respective costs.

SIDI DAUDA BAGE. J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother Saulawa JCA, which I am in complete agreement with. Election petition being Sui Generic is in a class of its own. lt is either compliance with the law, as provided for, or fatal consequences follows. The letter by the Appellant dated 23rd June 2011 was made clearly out of the time allowed by law, and the trial tribunal lacked the competence to extend the time sought in the application. The dismissal of the petition in the said circumstance was quite appropriate. I find no reason to disturb the dismissal order made by the trial tribunal. This appeal is devoid of any merit and same is hereby dismissed by me.
I abide by the consequential order as contained in the lead judgment.

RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my brother I.M.M Saulawa J.C.A.
My brother has extensively touched on the issues preferred for determination and I am in total agreement with his reasoning and conclusions.
It is no gainsaying that an application for issuance of a pre-hearing conference notice is governed by the provisions of Paragraph 18 of the First Schedule to the Electoral Act 2010, as amended. The relevant provision in paragraph 18(1-5) mandates the Appellants to apply for the issuance of a prehearing conference notice within 7 days after filing and service of the petitions reply on the Respondents, or 7 days after the filing and service of the Respondents’ reply.
A petitioner who fails to apply timeously, shall not enjoy the issuance of pre-hearing conference notice (as in Form TF007) and a pre-hearing information sheet [as in Form TF008), respectively from the Tribunal.
But where the Petitioner in an election petition fails to comply with the provisions of paragraph 18(1), any of the Respondents may file an application in accordance with paragraph 18(1) or by motion on notice (returnable within 3 clear days after being served on the Petitioner) apply for an order to dismiss the petition.
Where neither of the Petitioner or the Respondent fails to apply within the prescribed period for the issuance of a pre-hearing conference notice or the dismissal of the petition as the case may be, the tribunal shall deem it that the petition is abandoned and shall dismiss same.

Election petitions are Sui Generis, and the procedure inherent therein is peculiar to it. For instance, as time is of the essence in election petitions, it is not within the competence of the Tribunal to entertain any application for extension of time, either by the Petitioner or the Respondent regarding the petition, by way of taking further steps.
A dismissal of an election petition is final.
It is obvious in the present appeal that the petition was filed on the 29/4/2011 by the Appellants and same was served on the each of the three Respondents on the 6/5/2011. The Respondents had 14 (fourteen) days from the 6th of May 2011 within which to file and serve their respective replies to the petition. This expired on the 21st of May 2011.
Having expired, the Appellants applied by letter dated 23rd of June 2011. They clearly were out of time and the Tribunal could not have extended time.
The petition was consequently dismissed for lack of competence.
I find no reason to fault this. The Appeal is one that ought to be dismissed being devoid of merit and same is hereby dismissed.
I abide by the consequential order made that the parties bear their respective costs.

Appearances

I. Onwubiko Esq.For Appellant

AND

Lanre AbegunrinFor Respondent