HON. FABIAN OKPA v. CHIEF ALEX IREK & ANOR
(2011)LCN/4810(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of September, 2011
CA/C/NAEA/201/2011
RATIO
RESPONDENT IN AN ELECTION PETITION: POSITION OF THE LAW ON THE DUTY OF A RESPONDENT IN AN ELECTION PETITION
The Tribunal’s order dismissing the petition on the grounds that the petitioner did not comply with the provisions of paragraph 18 and 47 of the 1st Schedule to the Electoral Act, 2010 (as amended) was in favour of the 1st Respondent whose only duty on appeal is not to disparage same without a Respondent’s Notice or cross-appeal. Where that is desired the 1st Respondent must give notice to that effect or cross-appeal specifying the grounds of contention. Except with leave of this Court the 1st Respondent’s Counsel shall not be entitled to contend that the decision of the tribunal should be varied upon grounds not specified in a notice given under Order 9 rules 2-6 of the Court of Appeal Rules, 2011. The 1st Respondent is not entitled to any relief not specified upon any grounds not relied upon by the Tribunal or specified in such notice. The duty of the Respondent is to defend the judgment of the Tribunal or cross-appeal against the ruling. See Adefulu v. Oyesile (1989) 12 SCNJ 44 at 79. Learned Counsel to the 1st Respondent embarked precisely on what the Supreme Court stated he ought not to have done. The effect of flouting or violating this hallowed principle of law was brought out in the judgment in Obi v. INEC (2007) 11 NWLR (Pt.1046) 565 by Mohammed, JSC, at pages 673 -674 to wit: “…this Court has stated in so many of its decisions that the traditional role of a respondent to an appeal is to defend the judgment appealed against. If any respondent wants to depart from this traditional role by attacking the judgment appealed against in any manner, that respondent is obliged by the rules of Court to file a cross-appeal. See Lagos-City Council v. Ajayi (1970) 1 All NLR 291; Eliochin (Nig.) Ltd & Ors V. Victor Ngozi Mbadiwe (1986) 1 NWLR (Pt.14) 47; and Adefulu V. Oyesile (1959) 5 NWLR (Pt.122) 377 at 417. It is also the law that a respondent to an appeal who files neither a cross appeal nor a respondent’s notice, will not be allowed to even file a brief of argument attacking the judgment appealed against or be allowed to present oral argument in the course of the appeal. See Ogume V. Associated Companies Limited V. I.B.W.A. Ltd (1988) 1 NWLR (Pt.73) 658; and Kotoye V. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419. Therefore, without a cross-appeal, the 6th and 7th respondents are not competent to play the role of an appellant they have attempted to play in this appeal. The effect of the action of these respondents in the present appeal is that all the arguments in their respondent’s brief in support of the case of the appellant in this appeal shall be ignored in its determination.” See also Njaba v. LGG (2010) 16 NWLR (pt.1218) 166 at 192-193; Olaniyan v. Adeniyi (2007)3 NWLR (pt.1020) 1 at 15… PER JOSEPH TINE TUR, J.C.A.
SPECIFIC PROVISIONS: WHETHER WHERE THERE ARE TWO PROVISIONS GOVERNING A PARTICULAR SUBJECT AND ONE MAKING A SPECIFIC PROVISION, THE SPECIFIC PROVISION IS EXCLUDED FROM THE OPERATION OF THE GENERAL PROVISION
In Government of Kaduna State v. Kagoma (1982) 6 SC 87 Fatayi-Williams CJN held at page 107 – 108 that: “It is now trite that where there are two enactments one making specific provisions, the specific provisions are by implication excluded from the general provisions.” This principle of construction was reiterated in Attorney-General of the Federation & Ors v. Alhaji Atiku Abubakar (2007) NWLR (Pt.1041) 1 at page 148 paragraph “H”where Tabai, JSC, also held as follows: “…The principle simply is that where a special provision is made to govern a particular subject matter it is excluded from the operation of any general provision. PER JOSEPH TINE TUR, J.C.A.
APPLICANT, APPLICATION AND MOTION: MEANING OF THE WORDS APPLICANT, APPLICATION AND MOTION
Generally, the word “applicant” is one who requests something. The person may also be called a petitioner. An “application” may be a request or petition which may, depending on the intention of the legislature, be exparte or on motion with or without an accompanying affidavit or a brief of argument. A “Motion” on the other hand is a written or oral application requesting a court (or tribunal) to make a specified ruling or order. See Black’s Law Dictionary, 8th edition pages 108 and 1036. PER JOSEPH TINE TUR, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
HON. FABIAN OKPA Appellant(s)
AND
1. CHIEF ALEX IREK
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the leading Judgment): The Independent National Electoral Commission (2nd Respondent) conducted elections into the Cross River State House of Assembly for Obubra One State Constituency on the 26th day of April, 2011. Hon. Fabian Okpa (Petitioner) contested under the platform of the Peoples Democratic Party while Chief Alex Irek (1st Respondent) was fielded by the Action Congress of Nigeria. On 26th day of April, 2011 the 2nd Respondent returned the 1st Respondent as the duly elected member of the Cross River State House of Assembly to represent the constituency. The 2nd Respondent credited 7198 votes to the 1st Respondent and 6882 votes to the petitioner. George Afara Ofutet of the All Nigeria Peoples Party polled 72 votes while Castro Ezama of the Labour Party had 17 votes. Being aggrieved the petitioner presented his petition before the National and State House of Assembly Election Petition Tribunal holden at Calabar, Cross River State on 19th day of May, 2011, praying for the following reliefs:
“1. A DECLARATION that the petitioner is the person who scored the majority of lawful votes cast in the election conducted for the Obubra 1 State Constituency on the 26th and 28th of April, 2011 and ought to have been returned elected.
2. A DECLARATION that the return of the 1st Respondent by the 2nd Respondent is illegal, unlawful, null and void being contrary to the provisions of the Electoral Act, 2011.
3. A DECLARATION that the election in the polling units as enumerated in paragraph 28 was void because of irregularities and malpractices.
4. A DECLARATION that the election in the Polling units where electoral irregularities took place was void, having been conducted in substantial non-compliance with the Electoral Act, which affected the result of the election.
5. AN ORDER directing the 2nd Respondent to issue Certificate of return to the petitioner in respect of the election into Obubra 1 State constituency held on the 26th and 28th of April, 2011, as he was the winner of the election.”
IN THE ALTERNATIVE:
AN ORDER directing the 2nd Respondent to conduct a rerun election in the polling units where elections were voided by illegalities and irregularities. ”
The 1st Respondent’s Reply was filed on 05-06-2011. The petitioner replied on 10-10-2011. The 2nd Respondent’s Reply was filed on 14-06-2011. Upon exchange of pleadings the petitioner applied to the Tribunal for the issuance of Form TF007 for the commencement of pre-hearing conference by letter. The Tribunal acceded to the application and issued Form TF007 and TF008 which were served on the 1st Respondent. The hearing notice was dated 22nd June, 2011. Before this Court learned Counsel admitted being served the said forms. Nevertheless on 02-07-2011 learned Counsel to the 1st Respondent brought an application praying for an order that the Tribunal should set aside the hearing notice and dismiss the petition for failure of the petitioner to comply with the provisions of paragraph 18(1) and 47(2) of the 1st Schedule to the Electoral Act, 2010 (as amended) the grounds being that the application should have been made by motion on notice. That the petitioner did not even file any application by way of motion for the issuance of Forms TF007 and TF008 as contemplated by the combined provisions of the said paragraphs. The motion prayed that the issuance of the said Forms by the Secretary of the Tribunal without the express order of the Tribunal be declared null and void and of no effect. The Respondents prayed that the Tribunal should determine that by virtue of the provisions of paragraph 18(4) of the 1st Schedule to the Electoral Act, 2010 as amended the petition had been abandoned.
The petitioner on the other hand filed an application on 7th day of July, 2011 praying for leave of the Tribunal to regularize the application made to the registry by the petitioner for issuance of pre-hearing information sheets to parties and for a deeming order on the grounds that the petitioner had sufficiently complied with the provisions of paragraph 18(1) and (2) of the 1st Schedule to the Electoral Act, 2010 (as amended). Paragraphs 1-9 of the affidavit of Michael Afara, Esq one of the Counsels for the petitioner deposed on 07-07-2011 read as follows:
“1. That I am one of the lawyers in the firm of solicitors for the petitioner in this matter by virtue of which I am conversant with the facts herein deposed to.
2. That the petitioner had applied for and got prehearing notices issued on all the respondents by the registry of this honourable tribunal.
3. That all the parties have filed and served their answers to the questions contained in the pre-hearing information sheet.
4. That it was later discovered that applications for issuance of pre-hearing notices ought to be by motion on notice to other Parties.
5. This application is to regularize the application that was made to the registry of the Tribunal instead of being made in open Court, giving the other side, an opportunity to react.
6. The application, when made in open court is usually granted as a matter of course as no party ever opposes the grant of the order for the issuance of pre-hearing information sheets.
7. That no legal challenges were raised in the answers by the parties on the method of application, but the petitioner desires to regularize the process.
8. The defect in not coming by motion in our application to issue hearing notice is a mere irregularity, which can be regularized by this honourable court in its inherent and equitable jurisdiction.
9. That it is in the interest of justice to grant this application and the respondent will not be prejudiced by the grant of same.”
Paragraphs 1 to 6 of the counter-affidavit of the 1st Respondent deposed to on 15-07-2011 read as follows:
“1. I am the 1st Respondent herein and very conversant with the facts of this case.
2. I have read the affidavit of the applicant in support of his motion to regularize his administrative letter to the registry for the issuance of pre-hearing notice.
3. Paragraph 7 of the affidavits incorrect as it was stated in my pre-hearing answer sheet that I was going to file an application to dismiss the petition on grounds that the pre-hearing application has not been made in accordance with the rules. I have filed the said application.
4. Mathew Ojua, Esq, of Counsel informed me and I verily believe him that contrary to the averments in paragraphs 6 and 8 of the affidavit, the defect in failing to file a motion on notice is fatal to the petition.
5. I am further informed and I believe that the failure to comply with the rules has drained the Tribunal of its jurisdiction to entertain the petition.
6. I swear to this affidavit in good faith believing the contents to be true and correct and in accordance with the Oaths Act, 2004.”
The Tribunal heard argument from Counsel on the 9th day of August, 2011 and held at page 260 lines 17 to page 261 lines 1-8 as follows:
“A combination of paragraphs 18 and 47(2) of the 1st Schedule to the Electoral Act and Okereke v. Yar’adua (2009) NWLR (pt.1100) 95 at 118 is to the effect that within seven days after close of pleadings the Petitioner shall apply by motion to the Tribunal for issuance of prehearing information sheet and where he fails to comply with these requirements the petition shall be dismissed without the opportunity of extending time to file the said process or relistment of the petition.
There is, so far, no binding authority, to our knowledge, which has changed the requirements of the said paragraph or the consequences of non-compliance with their requirement.
The failure to comply with these requirements was, it is not in dispute, a mistake but that is not recognized by the Act as an excuse for violating the provisions of paragraphs 18 and 47 of the 1st Schedule to the Electoral Act.
We, accordingly declare the petition abandoned and dismiss same.”
Being aggrieved the petitioner appealed to this Court on 15-08-2011 on two grounds followed by a brief filed on 29-08-2011. Upon receipt of the 1st Respondent’s brief filed on 07-09-2011 the appellant filed a Reply brief on 15-09-2011. On the 22nd day of September, 2011 when the appeal came up for hearing each Counsel adopted his brief of argument.
Joe Agi the learned Senior Advocate of Nigeria who appeared for the appellant formulated only one issue for determination, namely, whether in the circumstances of this case it was right for the lower Tribunal to hold that the petitioner had abandoned the petition. Learned Senior Counsel referred to the provisions of paragraph 18(1) and (2), 47(1) and (2) and 53(1) and (2) of the 1st Schedule to the Electoral Act, 2010 as amended to submit that any non-compliance should be treated as an irregularity that had been waived by the 1st Respondent who had filed a reply in response to the petition, citing Abubakar v. INEC (2004) 1 NWLR (Pt. 854) 207 at 217 and Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1. Learned counsel urged that the appeal should be allowed and the petition remitted to the Tribunal for hearing on the merit.
Learned counsel to the Respondent identified two issues for determination in this appeal, namely:
“1. Whether the appellant made any application at all whether regular or irregular for the issuance of pre-hearing notice to warrant its being treated as substantive law? (Ground One).
2. Whether in the circumstances of this case it was right for the lower Tribunal to have declared the petition abandoned and consequently dismissed same? (Ground Two).”
On issue one learned counsel submitted that there was no evidence the appellant made any application by letter or otherwise for the issuance of pre-hearing notice under paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 as amended. That the said letter was neither before the Tribunal or this Court. This Court should hold that no such application was filed before the Tribunal.
On issue two learned counsel argued that the failure to file the application by motion was fatal and the Tribunal was right to have dismissed the petition. Counsel urged that this appeal should be dismissed.
Learned Senior Advocate of Nigeria appearing for the appellant submitted in appellant’s Reply Brief that in the absence of a cross appeal, the learned counsel to the 1st Respondent could not challenge the findings of the Tribunal, citing Oghoyone v. Oghoyone (2010) 3 NWLR (pt.1182) 546 and Eliochin (Nig.) Ltd v. Mbadiwe (1986) 1 NWLR (Pt.140) 47.
On issue two raised by learned Counsel to the 1st Respondent the learned Senior Advocate argued that it is the failure to make a request for pre-hearing notice under paragraph 18(1) of the 1st schedule to the Electoral Act, 2010 (as amended) that is fatal and not the method of making it. That the Tribunal had a wide discretion to allow any mode for the making of the application either by letter, motion ex-parte or on notice, citing the unreported judgment of the Court Appeal, Jos Division in Appeal No.CA/J/EP/127/2011 viz Aliyu Ibrahim Gebi v. Garba Dahiru & 3 Ors, delivered on 22-08-2011. Counsel contended that the facts in Riruwai v. Shekarau (2008) 12 NWLR (Pt.1100) 142 heavily relied upon by the 1st Respondent in the instant appeal were distinguishable. Learned Counsel urged once more that this appeal should be allowed.
I shall start by taking issue one set down by learned Counsel to the 1st Respondent for determination. The Tribunal’s order dismissing the petition on the grounds that the petitioner did not comply with the provisions of paragraph 18 and 47 of the 1st Schedule to the Electoral Act, 2010 (as amended) was in favour of the 1st Respondent whose only duty on appeal is not to disparage same without a Respondent’s Notice or cross-appeal. Where that is desired the 1st Respondent must give notice to that effect or cross-appeal specifying the grounds of contention. Except with leave of this Court the 1st Respondent’s Counsel shall not be entitled to contend that the decision of the tribunal should be varied upon grounds not specified in a notice given under Order 9 rules 2-6 of the Court of Appeal Rules, 2011.
The 1st Respondent is not entitled to any relief not specified upon any grounds not relied upon by the Tribunal or specified in such notice. The duty of the Respondent is to defend the judgment of the Tribunal or cross-appeal against the ruling. See Adefulu v. Oyesile (1989) 12 SCNJ 44 at 79.
Learned Counsel to the 1st Respondent embarked precisely on what the Supreme Court stated he ought not to have done. The effect of flouting or violating this hallowed principle of law was brought out in the judgment in Obi v. INEC (2007) 11 NWLR (Pt.1046) 565 by Mohammed, JSC, at pages 673 -674 to wit:
“…this Court has stated in so many of its decisions that the traditional role of a respondent to an appeal is to defend the judgment appealed against. If any respondent wants to depart from this traditional role by attacking the judgment appealed against in any manner, that respondent is obliged by the rules of Court to file a cross-appeal.
See Lagos-City Council v. Ajayi (1970) 1 All NLR 291; Eliochin (Nig.) Ltd & Ors V. Victor Ngozi Mbadiwe (1986) 1 NWLR (Pt.14) 47; and Adefulu V. Oyesile (1959) 5 NWLR (Pt.122) 377 at 417. It is also the law that a respondent to an appeal who files neither a cross appeal nor a respondent’s notice, will not be allowed to even file a brief of argument attacking the judgment appealed against or be allowed to present oral argument in the course of the appeal. See Ogume V. Associated Companies Limited V. I.B.W.A. Ltd (1988) 1 NWLR (Pt.73) 658; and Kotoye V. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419. Therefore, without a cross-appeal, the 6th and 7th respondents are not competent to play the role of an appellant they have attempted to play in this appeal. The effect of the action of these respondents in the present appeal is that all the arguments in their respondent’s brief in support of the case of the appellant in this appeal shall be ignored in its determination.”
See also Njaba v. LGG (2010) 16 NWLR (pt.1218) 166 at 192-193; Olaniyan v. Adeniyi (2007)3 NWLR (pt.1020) 1 at 15 and the additional authorities cited in the Reply Brief of the learned Senior Advocate of Nigeria appearing for the appellant. The result is that all the argument on issue one in the 1st Respondent Brief of argument are hereby discountenanced. Both the issue and the argument are struck out.
I shall take the appellant’s lone issue together with issue two identified by the 1st Respondents learned Counsel.
The Election Tribunal was saddled with the interpretation of the provisions of paragraphs 18(1)-(5) and 47(1)-(5) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended. Paragraph 18(1)-(5) of the 1st Schedule reads as follows:
“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 respondents reply, whichever is the case, the petitioner shall apply “for the issuance of pre-hearing notice as in Form TF 007.
(2) upon application by a petitioner under sub-paragraph (1) of this paragraph, the Tribunal or court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form 007 accompanied by a pre-hearing information sheet as in Form TF 008 for:-
(a) the disposal of all matters which can be dealt with on interlocutory application;
(b) giving such directions as to the future course of the petition as appear best adapted 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 sub-paragraph (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) of this paragraph is final, and the tribunal or Court shall be functus officio.
Paragraph 47(1)-(5) of the 1st Schedule also reads as follows:
“47(1) 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.
(2) Whereby these Rules any application is authorized to be made to the Tribunal or Court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the respondent.
(3) Every such application shall be accompanied by a written address in support of the reliefs sought.
(4) Where the respondent to the motion intends to oppose the application, he shall within 7 days of the service on him of such application file his written address and may accompany it with counter-affidavit.
(5) The applicant may, on being served with the written address of the respondent file and serve an address in reply on points of law within 3 days of being served and where a counter-affidavit is served on the applicant he may file further affidavit with his reply.”
In Government of Kaduna State v. Kagoma (1982) 6 SC 87 Fatayi-Williams CJN held at page 107 – 108 that:
“It is now trite that where there are two enactments one making specific provisions, the specific provisions are by implication excluded from the general provisions.”
This principle of construction was reiterated in Attorney-General of the Federation & Ors v. Alhaji Atiku Abubakar (2007) NWLR (Pt.1041) 1 at page 148 paragraph “H”where Tabai, JSC, also held as follows:
“…The principle simply is that where a special provision is made to govern a particular subject matter it is excluded from the operation of any general provision.”
Paragraph 18(1)-(5) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended is a special provision dealing with an application by the petitioner or respondent regarding pre-trial conference. The Tribunal shall dismiss an election petition on the grounds of abandonment if the petitioner neglected to apply for the issuance of pre-hearing notice within seven days as stipulated under paragraph 18(1) of the 1st Schedule to the Act supra. There is no provision for applying for pre-hearing notice by motion exparte or on notice under the paragraph. This will be contrary to the wise advice of Onnoghen, JSC, in Attorney-General of the Federation & 2 Ors v. Alhaji Atiku Abubakar supra at page 123 paragraph “F-G” where his Lordship said that:
“It should always be borne in mind that in constructing the provisions of the constitution the court is not allowed to read into any provision or section thereof anything not expressly contained there in or to fashion out another Constitution or provision for the people other than to Bring out the true intention of the makers of the Constitution.”
I also refer to p. 124 paragraph “F-G” where his Lordship held that:
“It is the Constitutional responsibility of the Legislature to make or amend the laws including the Constitution, where the need arises, while that of the judiciary remains to interprete and apply the laws so made or amended. The courts can therefore not add to nor subtract from the law as enacted by the Legislature under the guise of judicial interpretation of the constitution or statute which the appellant desires this Court to do in the instant case on appeal.”
The only time the word motion” but not “motion ex parte” is mentioned in paragraph 18 of the 1st schedule is when the Respondent applies that the petition should be dismissed by the Tribunal as abandoned. The Respondent will have to apply by motion for its dismissal under paragraph 18(3) of the 1st schedule to the Act as amended.
Generally, the word applicant is one who requests something. The person may also be called a petitioner. An application” may be a request or petition which may, depending on the intention of the legislature, be exparte or on motion with or without an accompanying affidavit or a brief of argument. A Motion” on the other hand is a written or oral application requesting a court (or tribunal) to make a specified ruling or order. See Black’s Law Dictionary, 8th edition pages 108 and 1036.
But the express mention of one thing in a statutory provision or schedule, example “application” excludes the other, namely,”motion” or “motion ex parte.” see Udoh V. Orthopaedic Management Hospitals Board (1993) 7 SCNJ (Pt.2) 436 at 444; Attorney-General of Bendel State V. Aideyan (1989) 4 NWLR (pt.118) 646 and Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.8) 280. Paragraph 18(3) of the 1st Schedule to the Electoral Act, 2010 as amended specifically mentions the word “motion”. The lawmaker envisaged that the Respondent’s motion for the dismissal of the petition as abandoned should be served on the petitioner. It follows that the application for dismissal of the petition cannot be made exparte or orally but on motion on notice supported by affidavit and a brief of argument showing why such an order should be made by the Tribunal. In my humble view, that is the time an application is to be made by motion supported by affidavit and a brief under the special provisions of paragraph 18(3) of the 1st Schedule to the Act supra.
Under the Electoral Act, 2006 and paragraph 6(2) of the practice Directions, 2007 an applicant was required when making any application before the court or Tribunal to state under what rule or law the application was brought to the court or Tribunal.
They must be served on the respondents. This is not a requirement under paragraph 18(1) and (2) of the 1st Schedule to the Electoral Act, 2010 as amended. Such requirements under paragraph 6(2) of the practice Direction, 2007 are usually inserted where an applicant is seeking discretionary remedies. See Solanke v. Somefun (1974) 1 SC 141 at 148. But even in such situation the failure to state the rule or law under which the application was brought is never a good reason to deny an applicant a remedy if provided for in a statute, common law or equity. See Falobi V. Falobi (1976) 1 NMLR 169.
The tribunal has no discretion than to issue Forms TF007 and TF008 once the petitioner fulfils the conditions set out under paragraph 18(1) and (2) of the 1st Schedule to the Electoral Act, 2010 as amended. The appellants did not file any counter affidavit to show how the bringing of an application for prehearing conference by letter led to a miscarriage of justice or was detrimental to their cause.
Paragraphs 47 (1)-(5) of the 1st schedule to the Act supra on the other hand is of general application. The intention of the legislature is that all other motions filed outside paragraph 18(1) of the 1st schedule shall be supported by an affidavit and briefs of argument. They shall be served on the respondents or petitioner as the case may be. There is room for filing counter-affidavits by the Respondent. But in such an event happening the motion shall come up for hearing at the pre-hearing session except in extreme circumstances when, with leave of the Tribunal, the motion may be heard before or after the pre-hearing session or conference. That is not the intendment of the legislature regarding the provisions of paragraph 18(1)-(5) of the 1st schedule to the Electoral Act, 2010 as amended.
Furthermore, there is no provision for serving the Respondents the Petitioner application for pre-hearing notice under paragraph 18(1) of the 1st Schedule to the Act. But upon application Form TF007 and TF008 are to be issued by the court or Tribunal and served on the parties or their Legal Practitioners under paragraph 18(2) of the 1st Schedule.
Form TF008 is intended to include a reference to all applications which the parties would wish to make at the pre-hearing Session. All such applications shall be filed and served on parties not later than 7 days before the first pre-hearing session, etc. The application by the petitioners for the issuance of pre-hearing session was never intended to be taken at the pre-hearing session.
Form TF007 is only an example of how the application for prehearing conference is to be worded by the use of the phrase “… as in Form TF007” in paragraph 18(1) of the 1st schedule. In Bucknor-Macleans v. Inlaks Ltd. (2002) FWLR (pt.85) 398 at 415 Idigbe, JSC, held that:
“as a general rule forms in schedules to enactments are inserted merely as examples and guides and are meant to be followed implicitly only so far as circumstances permit.
His Lordship referred to Crowley v. Templetone (Registrar of Titles, Victoria) (1914) 17 CLR 457 at 464-465 where Isaacs and Gavan Duffy JJ., held that:
“Slavish adherence to form is not demanded. Technical and immaterial departures from them do not deprive the dealing of efficacy. Substantial compliance is sufficient…”
In Maxwell on the Interpretation of Statutes 12th edition by p. St. J. Langan p.105 the learned author has put the matter in this manner:
“Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended.”
The provisions of paragraph 18(1) to (5) are excluded from the general provisions of paragraph 47(1)-(5) of the 1st Schedule to the Electoral Act supra. If it were not so, it would mean that a petitioner has to apply for the issuance of a pre-hearing notice as in Form TF007 by motion on notice or exparte and the Court or Tribunal shall in the words of paragraph 47(1) of the 1st Schedule fix the application “…come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court.” That will also be absurd, a result never intended by the legislature. But that is the effect of the submission of learned Counsel appearing for the 1st Respondent at the Tribunal and before this Court.
The Court of Appeal judgment in Riruwai v. Shekarau (2003) 12 NWLR (Pt.1100) 142 often relied upon by Counsel represents the position of the law under the Electoral Act, 2006 and paragraph 6(2) of the Practice Direction, 2007. Both have been repealed. See Section 157 as amended by Section 37 of the Electoral Act No.10 of 2010 and paragraph – of the Practice Direction, 2011.
In Riruwai v. Shekarau supra the Petitioner and Respondents did not apply for the issuance of pre-hearing notice by motion but by a letter contrary to paragraph 6(2) of the Practice Direction, 2007 which provided as follows:
“6(2) whereby these directions any application is authorized to be made to tribunal such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the respondent.”
The letter was not found in the Registry of the Tribunal when the respondents applied for the dismissal of the petition nor was it exhibited by the petitioner when the application for dismissal was moved. Furthermore, the petitioner filed an application for extension of time to apply for pre-hearing notice after the seven days for making such an application had expired. By this time the Tribunal had already slated the petition for dismissal. In that case the Tribunal lacked the jurisdiction to extend time to file prehearing notice. With all these plethora of irregularities my Lord, Ndukwe-Anyanwu, JCA, held at page 164 paragraph of the judgment that:
“With the above, one can state categorically that the Practice Directions, 2007 envisaged that any application shall be by way of motion exparte or by motion on notice.
An application in legal parlance or court procedure does not mean a letter written to the court but an application by motion either exparte or on notice. See again paragraph 6(2) of the Practice Directions, 2007 and the case of sincerity and Trust Multi-purpose co-operative Society Ltd. V. Emenue (supra).
On the issue of the letter, his Lordship held at pages 158-159 of the judgment the thus:
“There are some basic facts in this petition that were not denied by any of the parties. All parties agreed that the pre-hearing conference had by computation of time closed on the 13th July, 2007. The appellant in his affidavit in support to his motion alleged that he applied to the tribunal for pre-hearing notice by a letter dated 12th July, 2007. This letter was neither exhibited nor is it in the record of proceedings. Be that as it may, the alleged letter is of no moment as it does not conform with what is envisaged in paragraph 3(1) of the practice Directions, 2007.”
I am of the humble opinion that Riruwai v. Shekarau supra; Hope Democratic Party v. INEC & Ors Appeal No.CA/A/EP/5/2007 determined on 17-11-2009 by the Court of Appeal, Abuja Division; Garba Ado v. Makera (2009) 9 NWLR (Pt.1147) 491; Ayuba v. INEC – Appeal No.CA/K/BP/NA/15/2009 and a host of other decisions, were decided on the provisions of the Practice Directions, 2007 and the Electoral Act, 2006 based on the state of the law at that time.
In construing the provisions of paragraph 18(1)-(5) and 47(1)-(5) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended I have allowed myself to be guided by what Bello, JSC, said in Nwobodo v. Onoh (1934) All NLR 1 at 13 that:
“In the application of the provisions of a statute to a particular case, a Court should not blindly adhere to the ratio decidendi of a previous case founded on the interpretation of a former statute without having first carefully examined that statute and meticulously compared it with the statute governing the case for determination by the Court in order to ascertain whether the two statutes are in pari materia. It is only when the two statutes are similar and identical that the interpretation placed on one can be a precedent to the interpretation of the other.”
Furthermore, the petitioners brought their respective applications simply for the issuance of pre-hearing notice “as in Form TF007” to be accompanied by Form TF008. There was no emergency for them to have come by way of motion exparte or on notice supported by an affidavit and a brief of argument under paragraph 47(1)-(5) of the 1st Schedule to the Act supra. If this Court should accede to such submissions by the learned Counsel to the 1st Respondent that will be introducing a whirligig of technicalities in the presentation and prosecution of election petitions before Election Tribunals. Such has been frowned at by Aniagolu, JSC, in Afolabi v. Adekunle (1983) 2 SCNLR 141 at 150 paragraph “F”. That will further defeat the intention of the legislature that election petitions should be determined with a sense of urgency and expeditiously.
Where facts are in dispute, it is usual to support an application or motion with an affidavit. But where they are not, but straight forward there is no such requirement. I adopt the words of Ungoed-Thomas J., (as he then was) in Jarvis Motors (Harrow) Ltd & Anor v. Carabott & Anor (1964) 3 All E.R. 89 at 91 lines “B-C” where his Lordship held that:
“…What is not expressly forbidden is permitted.”
Paragraph 18(1)-(5) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended not having expressly forbidden the making of an application for the issuance of pre-hearing notice as in Form TF007 by way of a letter, is permissible. The facts and circumstances of any particular case determines the authorities to be cited by learned counsel. See Adegoke Motors Nig. Ltd V. Adesanya (1989) 3 NWLR (pt.109) 250 at 265.
In my humble view since no law debarred the petitioners from applying for the issuance of pre-hearing notices by letter, they had substantially complied with the provisions of paragraphs 18(1) of the 1st schedule and were entitled to be issued Form TF007 and TF008 under the provisions of paragraph 18(2) of the 1st schedule to the Electoral Act, 2010 as amended for the purpose of pre-hearing conference. There was no irregularity for which the petitioner learned counsel could have sought to regularize. This is more so that Forms TF007 and TF008 had already been issued to the parties for the pre-hearing conference to commence.
The 1st Respondent took steps by filing a reply to the petition hence was precluded by raising any objection to the validity of the pre-hearing conference under paragraph 53(1) and (2) of the 1st schedule supra which reads as follows:
“53(1) Non-compliance with any of the provisions of this schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deem fit and just.
(2) An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.
(3) An application to set aside an election petition or a proceeding pertaining thereto shall show clearly the legal grounds on which the application is based.
(4) An election petition short not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Tribunal or Court.
(5) An objection challenging the regularity or competence of an election petition shall be heard and determined after the close of pleadings.
Firstly, the facts before the Tribunal and this Court do not show any non-compliance or defect in the presentation of the petition under Section 137(1)-(3) and 138(1) and (2) of the Electoral Act, 2010 as amended nor paragraph 18(1) and (2) of the 1st schedule to the Act nor any rule of practice for the time being operative to render the petition and the application for pre-hearing notice liable to be set aside and the petition dismissed by the Tribunal.
The 1st Respondent has not shown the irregularity that necessitated the setting aside of Form TF007 and TF008 already issued to the parties to warrant the petition being dismissed. There is a wall of difference recognized by the Supreme Court between an action that is incompetent and touching on jurisdiction and an irregularity. See Adeigbe v. Kusimo (1965) NMLR 284 at 287-288; Madukolu v. Nkemdilim (1962) 1 All NLR 587 and Laniyan v. Dadeowo & Ors (1971) All NLR 169 at 172-173. None of these existed before the Tribunal decided to set aside its orders made within jurisdiction by issuing Forms TF007 and TF008 to the parties.
The Tribunal had no business in setting aside the orders regularly made by subsequently dismissing the petition. The Tribunal acted without jurisdiction in granting the prayers of the 1st Respondent.
A court or Tribunal can only set aside an order made without jurisdiction. See Siliyan & Ors v. Mashi & Ors (1980); Obimonike V. Erinosho (1965) 1 All NLR 250; Otun v. Adesanro (1962) WRNLR 339 and Ede & Ors v. Commissioner for works and Housing (1980) 1 PLR 319 at 326.
On the whole I am of the humble opinion that the order made by the Tribunal dismissing the petition on the 9th day of August, 2011 was not only made without jurisdiction but was unjust under paragraph 53(1) of the 1st Schedule to the Electoral Act, 2010 as amended and cannot be allowed to stand. I allow this appeal and remit the petition to the Tribunal to be heard on the merit. I make no order as to costs.
UZO I. NDUKWE-ANYANWU, J.C.A.: I have had the privilege of reading in draft form the judgment just read by my learned brother J. T. Tur, JCA.
I agree with his reasoning and conclusions and find merit in this Appeal.
I abide by all the consequential orders in the lead judgment.
I adopt them as mine including the order as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I have read the lead judgment of my learned brother, Joseph Tine Tur, JCA.
The 1st respondent has in the Brief of Argument prepared by Matthew Ojua Esq. of counsel formulated two issues for determination, the first of which is:
WHETHER THE APPELLANT MADE ANY APPLICATION AT ALL WHETHER REGULAR OR IRREGULAR FOR THE ISSUANCE OF PRE-HEARING NOTICE TO WARRANT ITS BEING TREATED AS SUBSTANTIVE LAW?
The learned counsel had argued at page 3, paragraph 4.3 of the brief that:
“It is submitted that the petitioner never made any application at all.”
Also at page 4 paragraph 4.6 that:
“A perusal of the records from page 1-266 reveals that no application whether by motion or letter was filed on 10th June, 2011 as alleged and is not part of the records, justifying our contention that no application whether regular or irregular was filed at all.”
The appellant has contended in the Appellant Reply Brief filed on 15th September, 2011 that the issue of the existence of the appellant’s letter was never canvassed at the Tribunal.
Indeed it is clear from the record of appeal that the case before the Tribunal was not the non-existence of an application but the regularity or legality of the letter written by the appellant.
An appeal is not a fresh action but a rehearing of the same case and issues tried at the lower court and for this reason a party is not permitted to freely change the case upon which the judgment of the lower court was based.
The 1st respondent has failed to file a cross appeal against the finding of the Tribunal on the existence of the letter. The law is that a respondent seeking to set aside a finding of the lower court which is crucial must file a cross appeal. See Eliochin (Nig) Ltd v. Mbadiwe (1986) 1 NWLR (pt. 14) 47.
I agree with the learned counsel for the Appellant on this issue.
However I was a member of the panel in Appeal No. CA/C/NAEA/GOV./171/2011 – Ibanga Sunday Stephen Ibanga & Anor v. Independent National Electoral Commission (INEC) & Ors. delivered on 9/9/2011 and I remain bound by the decision therein.
Appearances
JOE AGI (SAN) (WITH N. NTA A. NTA; M. SHAIBU & U. OMAJIFor Appellant
AND
M.M. UJUA AND C. EJIKEWEFor Respondent
