HON. MOSHOOD ADEGOKE SALVADOR v. INEC & ORS.
(2011)LCN/5015(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of December, 2011
CA/L/EPT/005/2011
RATIO
INTERPRETATION OF STATUTE: STATUTORY PROVISION ON THE OPTIONS OPEN TO A RESPONDENT WHERE A PETITIONER FAILS TO APPLY FOR PREHEARING NOTICE
The above provision of subparagraph (3) of paragraph 18 (supra) clearly and in unambiguous terms stipulates that a respondent has two options where a petitioner fails to apply for prehearing notice: either (1) to apply for the issuance of a prehearing notice; or (ii) to file a motion on notice seeking that the petition be dismissed for having been abandoned. It’s my considered view that any attempt to ascribe a different meaning to the provision of paragraph 18(1) of the First Schedule to the Electoral Act 2010 (supra) other than the literal meaning intended therein, would most undoubtedly amount to a sheer absurdity. My above profound view is predicated upon a well established principle, as alluded to above, that where an issue of law is governed by a general statutory provision and a specific statutory provision, the latter ought to be invoked in the interpretation of the issue before the court. See KRAUS THOMPSON ORGANIZATION VS. NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (NIPSS) (2004) 17 NWLR (pt. 901) 44 at 59 & 65. PER I.M.M. SAULAWA, J.C.A.
FILING REPLY TO AN ELECTION PETITION: STIPULATED TIME LIMIT WITHIN WHICH A RESPONDENT IS TO FILE IN THE REGISTRY HIS REPLY TO AN ELECTION PETITION
‘Indeed it’s a well established fundamental general principle of law, that the respondent shall within 14 days of the ‘service of the petition’ on him file in the Registry the reply thereof, specifying therein which of the facts alleged in the petition he admits and which he denies, and thereby setting out the facts upon which he relies in opposition to the petition. See paragraph 12(1) of the First Schedule to the Electoral Act 2010 (supra). PER I.M.M. SAULAWA, J.C.A.
FILING MEMORANDUM OF APPEARANCE: CIRCUMSTANCE UNDER WHICH A RESPONDENT WILL NOT BE BAR FROM DEFENDING THE ELECTION PETITION WHERE HE FAILS TO FILE A MEMORANDUM OF APPEARANCE WITHIN THE STIPULATED TIME LIMIT
It is also a well established principle, that [even] where a respondent fails to file a memorandum of appearance within the stipulated time limit, he can still defend the petition if he is able to file his reply to the petition not later than 21 days after the receipt of the petition. See paragraph 10(2) of the First Schedule to the Electoral Act, 2010 (supra) 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 within a reasonable time, but, in any case, not later than twenty one days from the receipt of the election petition. PER I.M.M. SAULAWA, J.C.A.
DUTY OF THE COURT: DUTY OF THE COURT WHERE NEITHER THE PETITIONER NOR THE RESPONDENT HAS TAKEN THE LIBERTY UNDER PARAGRAPH 18(1) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2011
It is a well established principle, that where neither the petitioner nor the Respondent has taken the liberty to apply under paragraph 18(1) of the First Schedule to the Electoral Act (supra), the court shall proceed to dismiss the petition as having been abandoned. See paragraph 18(4) of the First Schedule (supra). PER I.M.M. SAULAWA, J.C.A.
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
HON. MOSHOOD ADEGOKE SALVADOR Appellant(s)
AND
1. INEC
2. THE RETURNING OFFICER, LAGOS WEST SENATORIAL DISTRICT CONSTITUENCY
3. HON. GANIYU SOLOMON Respondent(s)
I.M.M. SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is a fall-out of the ruling of the National Assembly/Legislative House Election Petition Tribunal, holden at Lagos, which was delivered on September 30, 2011 in petition No. NA/LEGH/EPT/L/5/2011. By the said ruling, the lower Tribunal dismissed the Appellant’s petition on the ground that it was incompetent.
FACTS AND CIRCUMSTANCES LEADING TO THE APPEAL:
On April 29, 2011 the Appellant filed in the Lower Tribunal’s Registry a 16 paragraphed petition claiming, inter alia, to have participated in the April 9, 2011 senatorial election for Lagos West Senatorial Constituency under the platform of the People’s Democratic Party (PDP). That, the 3rd Respondent, who equally participated in the election under the platform of the Action Congress of Nigeria (ACN), was declared and returned by the 1st Respondent as having won the election, with a total of 503,786 votes. The Appellant allegedly scored a total of 234,679 votes. The petition was predicated upon two grounds, viz:
(i) That the 3rd Respondent was not duly elected by majority of lawful votes cast at the election.
(ii) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act.
Whereupon, the reliefs sought by the Appellant in the petition were to the effect –
(i) That the 3rd respondent was not duly elected and that his election was void and the petitioner was elected and ought to have been returned.
(ii) That the petitioner be returned as elected having scored the highest number of valid votes at the election.
On September 8, 2011 when the petition came up for mention, the Appellant’s counsel, Onigbanjo Esq. informed the lower Tribunal that he had three applications pending. The Respondent’s senior counsel, professor Osibajo, SAN equally alluded to the three applications thereof pending.
On September 14, 2011 the 3rd Respondent’s three motions were argued by the respective learned counsel on the ground that they raised the issue of whether, or not, the lower Tribunal had the jurisdiction to entertain the petition. At the conclusion of the hearing of the 3rd Respondent’s applications in question, the lower Tribunal delivered a ruling on September 30, 2011 dismissing the Appellant’s petition, on the grounds, inter alia, that it was incompetent. The lower Tribunal thereby made certain consequential orders to the effect that –
(1) The motion on Notice filed by the 3rd Respondent on 22/8/2011 seeking to strike out the petition on the grounds that it is fundamentally incompetent and for vesting no jurisdiction on this Tribunal succeeds and is hereby granted.
(2) The preliminary objection filed by the 3rd Respondent on 22/8/2011 seeking to dismiss petitioner’s motion on Notice of 17th August, 2011 for constituting an abuse of this Tribunal’s process succeeds and is hereby granted.
(3) The motion on Notice filed by the 3rd Respondent on 22/8/2011 for setting aside the prehearing Notice issued in this petition on 7th July, 2011 for being incompetent succeeds and is hereby granted.
(4) That the instant petition which is bedeviled with the numerous fundamental defects already highlighted in the course of delivering this ruling is hereby held to be totally incompetent, and accordingly dismissed.
(5) The petitioner is to pay the 3rd Respondent N50,000.00 (Fifty Thousand Naira) cost for this failed petition.
(6) This Election Petition is accordingly determined and finally disposed.
Thus, not unnaturally, having been dissatisfied with the decision of the lower Tribunal in question, the Appellant filed the instant appeal. The notice of appeal, dated October 14 but filed on October 24, 2011, is predicated upon a total of eight grounds. By the said notice of appeal, the Appellant has urged upon this court to allow the appeal, and set aside the ruling of the lower Tribunal dismissing the petition, delivered on September 30, 2011.
In the course of the pendency of the appeal, the Appellant’s brief of argument was filed and served on November 21, 2011. On the other hand, the 3rd Respondent’s brief of argument was filed on November 23, 2011. The Appellant’s reply brief to the 3rd Respondent’s brief was filed on November 24, 2011, respectively. On the part thereof, the 1st Respondent has not deemed it fit to put in an appearance, talkless of filing a brief of argument for that matter.
Most instructively, on November 1, 2011 a notice of intention to contend that the judgment (decision) of the lower tribunal should be affirmed on grounds other than those relied upon by the Respondent, was filed by Prof. Yemi Osinbajo, SAN, what’s more, on November 2, 2011 the learned SAN equally filed a Notice of Cross-Appeal thereby seeking the following reliefs:
i. An order allowing this Cross-appeal and setting aside only that part of the Ruling of the Tribunal held that the Petitioner can validly ask the Tribunal to declare him as the one elected and to be returned as the winner of the said election, without first praying for the nullification of the election.
ii. An order dismissing the petition of the petitioner/Cross-Respondent as incompetent as it does not contain a competent relief the court can adjudicate on.
While the Cross-Appellants’ brief was filed on November 23, 2011, the Cross-Respondents’ brief was filed on November 24, 2011, respectively.
I have adverted my mind to the Respondent’s Notice and Cross-Appeal filed on 07/11/11 and 02/11/11, respectively by the 3rd Respondent vis-a-vis the respective briefs of learned counsel thereon. I have deemed it most expedient to, first and foremost, deal with the substantive appeal, and thereafter deliberate on the briefs of the respective learned counsel relating to the Cross-appeal.
Instructively, the appeal was heard on 24/11/2011 and adj. to 28/11/2011 for the pronouncement of our decision in accordance with section 134 (4) of the Electoral Act, 2011 (supra) which provides thus:
134. -(4) The court in all appeals from election tribunals may adopt the practice of first giving its decision and reserving the reasons thereto (sic) for the decision to a later date.
On the 24/11/11 we unanimously pronounced our decision, to the effect that the appeal is grossly unmeritorious. The appeal was accordingly dismissed. The reasons for that decision was however reserved. I now proceed to give my reasons for that decision.
The Appellant’s brief spans a total of 21 pages. At exactly page 6 thereof, three issues have been formulated for determination thus:
i) Whether the instances of non-compliance with paragraph 4 (1) – (5) of the Electoral Act 2010 (as amended) on the part of the Appellant are such that are capable of leading to a dismissal of the petition or incapable of being cured?
ii) Whether the Appellant’s application dated 17/8/11 was an abuse of process of the Tribunal’s proceedings?
iii) Whether the Tribunal was right to have granted the prayers sought in the 3rd Respondent’s objections challenging the issuance of the prehearing notice of 7/7/11?
The issue No. 1 of the Appellant’s brief was indicated to have been distilled from grounds 1, 2 & 3 of the notice of appeal. Submitting on this issue, the learned counsel copiously alluded to paragraphs 2, 4, 4(a) and 5(a) of the petition, wherein the Respondents were described. It is contended that in each of the said paragraphs, the interests of the parties have been carefully set out in the conduct of the election. It was further contended, that the paragraphs of the petition in question have met the test laid down by paragraph 4(1)(a) of the First Schedule of the Electoral Act (supra), as the interested parties were “specifically mentioned and named expressly in an explicit manner”. See INEC VS. OSHIOMOLE (2009) 4 NWLR (pt. 1132) 607 at 639 para C; UCEGEDE VS. THE MILITARY ADMINISTRATOR OF BENUE STATE (2001) 2 NWLR (pt. 696) 73 at 84 – 85 paras. H -A; TUKUR VS. GOVT OF GONGOLA STATE (1989) 4 NWLR (pt. 117) 517 at 579; FCSC & ORS VS. LAOYE (1989) 2 NWLR (PT. 106) 652 at 686; HILL VS. WILLIAM HILL (parte lane) LTD (1949) AC 530 at 545 – 546.
It was argued by the Appellant’s learned counsel, that the cases of OKEREKE VS. YAR’ADUA (2008) 12 NWLR (pt. 1100) 140; ENG. BON. OFFOMAH VS. CHIEF M. AJEGBO & ORS (2000) 1 NLWR (pt. 641) 498; ABIMBOLA VS. ADEROJU (1999) 5 NWLR (pt. 601) 100 and ATOLAGBE ANIMASHAUN VS. OLUPEME TINUBU (2008) 12 NWLR (pt. 110) 142 respectively, were in applicable to the instant case.
It was finally contended on this issue, that the lower tribunal’s preference to technical justice, rather than substantial justice, led to the dismissal of the petition. The court has thus been urged upon to resolve the first issue in the Appellant’s favour.
The issue No. 2 was stated to have related to grounds 4, 6 and 7 of the notice of appeal. Submitting on this second issue, the Appellant’s learned counsel contended, inter alia, that the lower Tribunal has contradicted itself where it held at pages 387 and 396 of the Record that –
This second application is clearly a duplication of the first application for issuance of prehearing 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.
It was further contended that the position adopted by the lower tribunal is “a classic example of speaking from both sides of the month, which is impermissible in law. See DINGYADI VS. WAMARO (2008) 17 NWLR (pt. 116) 395 at 444 paras. D – F; AFRICAN RE CORP VS. JDP CONST. NIG LTD. (2003) 13 NWLR (pt. 838) 609 at 635 – 636 paras G – A; HDP VS. INEC (2009) 8 NWLR (pt. 1143) 297 at 326 paras E – H; PDP VS. ADEYEMI (2002) 10 NWLR (pt. 776) 524 at 546 paras E – F; AMUSA VS. STATE (2002) 2 NWLR (pt. 750) 73 at 93 paras D – E.
On issue of jurisdiction, it was argued, rather vehemently, that to abandon a petition or court process is not an issue of jurisdiction, as was erroneously held by the lower tribunal. See MANSON VS. HALLIBURTON ENERGY SERVICES LTD (2007) 2 NWLR (pt. 1018) 211 at 234 paras. B – C; TSOKWA OIL MARKETING CO. LTD VS. BON LTD (2002) 11 NWLR (pt. 777) 163 at 185 – 186 paras G – B; MADUKOLU VS. NKEMDILIM (1962) ALL NLR 581.
Referring to paragraph 53(4) of the First Schedule to the Electoral Act 2010 (supra), the learned counsel argued, that provision signifies that election petitions should not be allowed to be defeated by rules of technicality, where it’s possible to remedy the defect. See ADAMS VS. UMAR (2009) 5 NWLR (pt. 1133) 41 at 109 paras. G – H.
Thus, the court has been urged to resolve issue No. 2 in favour of the Appellant.
The issue No. 3 was distilled from grounds 5 and 8 of the Notice of appeal. The argument there on serves as an alternative to issue No. 2, so to say. It was, inter alia, submitted by the Appellant’s learned counsel, that the finding of the lower tribunal at page 397 of the Record is at variance with the position adopted by a full panel of this court in the recent decision of ALIYU IBRAHIM GEBI VS. ALHAJI GARBA DAHIRU & ORS; APPEAL No. CA/J/EP/HR/127/2011, dated 22/8/11, to the effect that –
“a letter seeking for (sic) issuance of prehearing notice in an election petition was competent.”
Reference was equally made to the decisions of this court in BADAMASI AYUBA VS. INEC Appeal No. CA/EP/J/15/2007, judgment delivered on 14/5/09; RIRUWAI VS. SHEKARAU (2008) 12 NWLR (pt. 1100) 142; and that of the Supreme court in OKEREKE VS. YAR’ADUA (2008) 12 (pt. 1100) 95, respectively.
According to the learned counsel, the recent decision of the court of Appeal in GEBI’S case (supra) is inconsonance with its earlier decision in OGBAEGBE VS. FBN PLC (2005) 18 NWLR (pt. 957) 357 at 375 para 5. See also PDP VS. ADEYEMI (supra); ABUBAKAR VS. YAR’ADUA (2008) 4 NWLR (pt. 1078) 465 at 512 paras. A B; OMOJAHE VS. UMORU (1999) 5 SCNJ 286 at 287.
The court has been urged to resolve issue No. 3 in the Appellant’s favour. And that the appeal itself be allowed.
On the part thereof, the 3rd Respondent’s senior counsel has raised two issues for determination at page 5 of the brief thereof to wit:
a. By virtue of the Supreme Court decision in Ojukwu v. Yar’adua (2009) 12 NWLR pt. 1154, p. 50 at 114 paragraph C, can a Petition proceed to trial where the Petitioner did not disclose a cause of action; or plead any fact at all to show that the alleged non-compliance substantially affected the result of the election as required by Section 139 (1) of the Electoral Act 2010 (as amended)?
(distilled from Ground 1 of the Respondent’s Notice dated 1st November, 2011)
b. Is Petitioner’s Petition dated 29th April, 2011 not fundamentally defective and incompetent for non-compliance with the mandatory provisions of Paragraph 4 (1) (a-c), (3) and (5) of the First Schedule to the Electoral Act 2010 (as amended)?
(Distilled from Grounds 1, 2 and 3 of the Appellant’s Notice of Appeal)
Regarding issue No. 1, the learned silk submitted, inter alia, that considering the totality of the averments in the petition, the Appellant has failed to disclose a cause of action. That, no facts were specifically pleaded in the petition to establish that corrupt practices or non-compliance alleged therein have affected the result of the election. See section 139(1) of the Electoral Act, 2010 (supra), OJUKWU VS. YAR’ADUA (2009) 12 NWLR (pt. 1154) 50 at 114 para. D; 115 para C.
It was contended, that failure to plead alleged non-compliance affected the election result, has been held by court to amount to non-disclosure of cause of action. See FAYEMI VS. ONI (2010) LPELR – CA/L/EPT/GOV/1/10. The court has been urged upon to affirm the decision of the lower Tribunal on the fundamental ground represented in the Respondent’s notice, dated 01/11/11.
On the issue No. 2, it was submitted, inter alia, that the Appellant’s failure to comply with the mandatory provision of paragraph 4(1) (3) & (5) of the First Schedule to the Electoral Act 2010 (supra), has rendered the petition incurably incompetent. See OKEREKE VS. YAR’ADUA (2008) 12 NWLR (pt. 1100) 140 paras. E – F & 141 paras. D – G.
According to the learned SAN, the lower tribunal was right when it struck out the Appellant’s petition as incompetent, for non-compliance with paragraph 4 (1) and (5) of the First Schedule (supra). That, the Appellant himself admitted to the fact that the petition thereof was not accompanied by the list of witnesses and copies or list of documents, as mandatorily required under paragraph 4 (5) of the First Schedule. See OKEREKE VS. YAR’ADUA (supra) at 140 E – F & 141 D – G; ORJI VS. PDP (2009) 14 NWLR (APT. 1161) 207 AT 403 – 405 para. H; BARCLAYS BANK VS. ABUBAKAR (1977) 11 NSCC 415 at 419; NWOGU VS. INEC (2008) 4 LRECN 25 at 50 para. E. As such, the lower tribunal was right in striking out the petition, on realizing that ought not to have been accepted for filing at all.
On non compliance with paragraph 4(1) of the First Schedule (supra), it was argued that a careful examination of the petition shows that it did not satisfy the mandatory requirements therein. It did not specify or state precisely the parties interested in the petition. And in law, the unambiguous word of a statute must be given its plain and evident meaning. See DPIANLONG VS. DARIYE (2007) 8 NWLR (pt. 1036) 412 para. E, 425 para. H; ENG. BONIFACE ON OFFOMAH VS. CHIEF MIKE AJEGBO & ORS.
The court has been urged upon to accordingly strike out the petition for non compliance with the Electoral Act 2010 (as amended).
(X) (P. 26B)
I have accorded an ample regard upon the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-‘E0-vis the record of appeal, in the entirety thereof. There’s no doubt, that the three issues raised in the two respective briefs of the learned counsel are not at all mutually exclusive. I will determine this appeal on the basis of the three issues raised in the Appellants’ brief. The reason being that the three issues formulated therein were specifically indicated to have been distilled from the grounds of the notice of appeal. The same could not however be said of the 3rd Respondent’s brief.
However, I have deemed it most expedient to deal with the three issues in question in the reverse order.
ISSUE NO. 3
The 3rd issue formulated in the Appellants’ brief raises the vexed question of whether the lower tribunal was right to have granted the prayers in the 3rd Respondent’s [preliminary] objections challenging the issuance of the prehearing notice of 07/7/11. The said Appellant’s letter dated 06/7/11, seeking the secretary of the lower tribunal to issue pre-hearing conference Notice for the petition is contained at page 55 of the Record. For record purposes, it is reproduced hereunder:
“M J ONIGBANJO & CO.
LEGAL PRACTITIONERS
ITIKU HOUSE (2ND FLOOR) 28/30 MARCARTHY STREET ONIKAN LAGOS
P.O. BOX 7395, MARINA
mj @ mjonigbanjo.com
Tel 234-1-7348201
6th July, 2011.
Tribunal Secretary,
National Election Tribunal,
Lagos,
Lagos State.
Dear Sir,
PETITION NO: NA/LEGH/EPT/5/2011 – HON. MOSHOOD ADEGOKE
SALVADOR V INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
We are Counsel to the Petitioner in the above Petition and we have the authority of the Petitioner to write to you.
We hereby apply for the issuance of Pre-Hearing Notice in respect of the above mentioned Petition.
Thank you.
Yours faithfully,
SGD
C.O. ACHONYE
FOR: M.J. ONOGBANJO & CO”
The letter in question, dated 06/7/11 was evidently received by the lower tribunal’s Secretary on 07/7/11. The Secretary promptly responded thereto by issuing out the hearing notice for the prehearing conference session in form of Form TF007 of the First Schedule (supra) to the following effect –
“TAKE NOTICE that you are required to attend the Tribunal/court on Monday the 8th day of July 2011 at 9 O’clock in the forenoon, for a prehearing session for the purposes set out there under . . . See page 56 of the Record.
Without any much ado, the question that is most pertinent, at this crucial point in time, is whether the Appellant’s letter, dated 06/7/11 addressed to the secretary of the lower tribunal in question was filed within the stipulated statutory time limit. I have no misgiving in believing that the answer to that pertinent question is not at all far-fetched, for some obvious reasons.
First and foremost, the Appellant’s petition, as alluded to heretofore, was filed on 29/4/2011. Ordinarily, on the face of the letter copiously reproduced above, it meets the basic requirement of an application, within the intendment and purview of the provision of paragraph 18(1) of the First Schedule to the Electoral Act 2010 (supra), which is to the following effect:
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 007.
Most instructively, the position of the law vis-a-vis the pronouncements of both this court and the Supreme court regarding an application for the issuance of pre-hearing conference notice are no longer in doubt. In the most recent decisions of the two superior courts of records in question, it has been categorically and unequivocally made clear that the provision of paragraph 18(1) of the First Schedule to the Electoral Act 2010 (supra) envisages that a simple application by way of letter, seeking the tribunal or court to issue a pre-hearing conference notice, would be appropriately sufficient. That’s to say, an application within the preview and contemplation of paragraph 18(1) to the First Schedule (supra) needs not necessarily be in form of a motion exparte or on notice. See ALIYU GEBI VS. ALHAJI GARBA DAHIRU & ORS, Appeal No. CA/J/EP/HR/127/2011:judgment delivered on 28/8/11; ARC. ALIYU P.S. DANKARO VS. PDP & ORS; Appeal No. CA/YL/EPT/TR/Se/5/2011: judgment delivered on 06/9/11; HON. DIMEJI MUSE AWOJOBI & 1 OR VS. INEC & 2 ORS, Appeal No. CA/L/EPT/006/2011, delivered in 12/12/11, respectively.
Paragraph 47(2) of the First Schedule to the Electoral Act 2010 (supra) provides thus:
47.- (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 which rule or law the application is brought and shall be served on the respondent.
It must be stated that the said paragraph 47(2) supra, is to all intent and purposes a general rule. Contrariwise, however, paragraph 18(1) (supra) is a special provision. And it’s a trite fundamental principle, that a general statutory provision cannot by any means override a special statutory provision. The provision of paragraph 18(3) of the First Schedule to the Electoral Act 2010 (supra) serves as a veritable example denoting that the term “application” used therein envisages a simple application by way of a letter unless otherwise specifically required that it should be by way of a motion. See most especially paragraph 18(3) of the First Schedule (supra), to the effect that –
18. – (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.
The above provision of subparagraph (3) of paragraph 18 (supra) clearly and in unambiguous terms stipulates that a respondent has two options where a petitioner fails to apply for prehearing notice: either (1) to apply for the issuance of a prehearing notice; or (ii) to file a motion on notice seeking that the petition be dismissed for having been abandoned. It’s my considered view that any attempt to ascribe a different meaning to the provision of paragraph 18(1) of the First Schedule to the Electoral Act 2010 (supra) other than the literal meaning intended therein, would most undoubtedly amount to a sheer absurdity.
My above profound view is predicated upon a well established principle, as alluded to above, that where an issue of law is governed by a general statutory provision and a specific statutory provision, the latter ought to be invoked in the interpretation of the issue before the court. See KRAUS THOMPSON ORGANIZATION VS. NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (NIPSS) (2004) 17 NWLR (pt. 901) 44 at 59 & 65.
In the above and other cases, this court has recently had the timely opportunity to critically review the earlier decisions thereof, most especially in BADAMASI AYUBA VS. INEC, Appeal No. CA/K/EP/HR/15/2009 (unreported), delivered on 14/5/09; RIRUWAI VS. SHEKARAU (2008 12 NWLR (pt. 1100) 142; and that of the Supreme court in OKEREKE VS. YAR’ADUA (2008) 12 NWLR (pt.1100) 95, respectively.
In the instant case, as alluded to above, the petition was filed in the lower tribunal on 29/4/11. A memorandum of conditional appearance, dated 11/5/11, was filed by A.F. Lawal Esq. on behalf of the 1st & 2nd Respondents on 13/5/11. See page 15 of the Record. There’s no gainsaying the fact, that the petition filed on 29/4/11 must have been served on the respondents not later than 11/5/11.
Indeed it’s a well established fundamental general principle of law, that the respondent shall within 14 days of the ‘service of the petition’ on him file in the Registry the reply thereof, specifying therein which of the facts alleged in the petition he admits and which he denies, and thereby setting out the facts upon which he relies in opposition to the petition. See paragraph 12. -(1) of the First Schedule to the Electoral Act 2010 (supra).
It is also a well established principle, that [even] where a respondent fails to file a memorandum of appearance within the stipulated time limit, he can still defend the petition if he is able to file his reply to the petition not later than 21 days after the receipt of the petition. See paragraph 10(2) of the First Schedule to the Electoral Act, 2010 (supra) 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 within a reasonable time, but, in any case, not later than twenty one days from the receipt of the election petition.
Thus, it goes without saying, that by virtue of the clear and unequivocal provisions of paragraphs 10(2), 12(1) and 18(1) of the First Schedule to the Electoral Act 2010 (supra), the petitioner is required under the law to apply to the Election Tribunal or Court for the issuance of a pre-hearing conference notice at least not later than 14 days after the service of the petition on the respondent (where a memorandum of appearance has been filed by the respondent), or utmost not later than 21 days after the service of the petition on the respondent (where the respondent fails to file a memorandum at appearance), as the case may be.
In the instant case, it’s so obvious that the Respondents must have been served with the petition on a date not later than 11/5/11. Thus, the Appellant had 14 days from that date within which to apply for the issuance of pre-hearing conference notice, which time expired on 25/5/11 for him to do so. Even if memorandum of appearance had been filed by the Respondents (which is not the case here), the Appellant’s time to apply for the issuance of the prehearing conference notice ought to have expired on 01/6/11.
As evidently established above, the Appellant’s letter was dated 06/7/11. Undoubtedly, it was filed out of the statutory time limit, within which the Appellant ought to have applied for the issuance of the prehearing conference notice. And the implication of filing the said letter out of the statutory time limit is that it’s an absolutely useless piece of paper upon which the lower tribunal’s secretary ought not to have acted. Undoubtedly, the pre-hearing conference notice issued by the secretary on 07/7/11 (pages 56 – 57 of the Record) is null and void, and goes to no issue.
I would want to believe, rather very strongly, that the Appellant’s learned counsel’s decision to file the motion on notice in the lower tribunal on 17/8/11 was a sheer afterthought, to say the least! The said motion specifically sought the following sole relief.
“AN ORDER for the issuance of pre-hearing Notice in this Election petition as in Form TF 007 under Rules of procedure for Election petitions, First Schedule to the Electoral Act 2010 as amended.” See pages 189 – 190 of the Record.
The motion was predicated on the following grounds:
a. The 1st and 2nd Respondents filed and served their Reply to Petition on 14th June, 2011 which was regularized by an application for enlargement of time dated 14th June, 2011 and granted by this Honourable Tribunal on 10th August, 2011.
b. The 3rd Respondent filed and served its Reply to Petition incorporating preliminary objection on 15th July, 2011 which was regularized by an application for enlargement of time dated 15th July 2011 and granted by the Honourable Tribunal on 10th August 2011.
c. Petitioner filed its Reply to Respondents’ Reply on 15th August 2011 and served same on the 1st – 2nd Respondents on 17th August 2011 and the 3rd Respondent on the 16th August 2011 respectively.
d. Petitioner is entitled to bring this application within seven (7) days of service of the Petitioner’s Reply to the Respondents’ Replies on the Respondents.
Most undoubtedly, the Appellant’s motion in question was highly misconceived. As highlighted above, the provisions of the First Schedule to the Electoral Act, especially paragraphs 10(2), 12(1) and 18(1) thereof, are very much clear and unequivocal regarding the Appellant’s duty to apply for the issuance of the prehearing conference notice within the stipulated statutory time limit in question. Having realized that the Respondents had failed to file their replies to the petition served upon them as required by law, he ought to have timeously applied for the issuance of the prehearing conference notice, in accordance with the combined provisions of paragraphs 10(2), 12(1) and 18(1) of the First Schedule to the Electoral Act 2010 (supra).
However, the above postulations notwithstanding. There is no doubt that the finding of the lower tribunal to the extent that the Appellant’s letter at page 56 of the Record in question was incompetent simply because it was not in form of a motion exparte or on notice, is to say the least, erroneous for the above stated reasons.
It is a well established principle, that where neither the petitioner nor the Respondent has taken the liberty to apply under paragraph 18(1) of the First Schedule to the Electoral Act (supra), the court shall proceed to dismiss the petition as having been abandoned. See paragraph 18(4) of the First Schedule (supra). Afortiori, the dismissal of the 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 or court shall become functus officio. See paragraph 18(5) (supra).
In the light of the above postulations, there is every cogent reason for me to resolve issue No. 3 against the Appellant. And I so hold.
ISSUE NO. 2:
The second issue raises the question of whether the Appellant’s 2nd application, dated and filed on 17/8/11, was an abuse of the lower tribunal’s process. The application in question is contained at pages 189 – 190 of the Record. The said application is in form of a motion on notice. By the said application, the Appellant had prayed the lower tribunal for –
“AN ORDER for the issuance of pre-hearing Notice in this question Petition as in Form TF 007 under the Rules of procedure for Election Petitions, First Schedule to the Electoral Act 2010 as amended.”
The application was predicated upon four grounds, viz:
a. The 1st and 2nd Respondents filed and served their Reply to Petition on 14th June, 2011 which was regularized by an application for enlargement of time dated 14th June 2011 and granted by this Honourable Tribunal on 10th August, 2011.
b. The 3rd Respondent filed and served its Reply to Petition incorporating preliminary objection on 15th July, 2011 which was regularized by an application for enlargement of time dated 15th July 2011 and granted by this Honourable Tribunal on 10th August 2011.
c Petitioner filed its Reply to Respondents’ Reply on 15th August 2011 and served same on the 1st – 2nd Respondents on 17th August 2011 and the 3rd Respondent on the 16th August 2011 respectively.
d. Petitioner is entitled to bring this application within seven (7) days of service of the Petitioner’s Reply to the Respondents’ Replies on the Respondents.
The application was highly misconceived, to say the least, for some obvious reasons. As pointed out under issue No. 3 above, the first application dated 06/7/11 but filed on 07/7/11 was rendered incompetent on the simple ground that it was filed out of the statutory time limit. The subsequent issuing of the pre-hearing conference notice on 08/7/11 by the secretary of the lower tribunal cannot by any stretch of imagination cure the defect inherent in the Appellant’s application of 07/7/11. This reasoning is predicated on a trite fundamental principle, that one cannot put something on nothing and expect it to stand. Undoubtedly, it would collapse. See UAC VS. MCFOY (1961) 3 WLR 1405; (1961) 3 ALL ER 1169; (1962) AC 152.
Arguably, the filing of the second application dated 17/8/11 by the Appellant was a sheer afterthought. The Appellant knew, or ought to have known, that he was out of time at the time he filed the first application on 07/7/11. Afortiori, the second application in question was not only incompetent, for having been filed out of the statutory time limit, but also an abuse of the process of the lower tribunal.
It must be reiterated, that pre-hearing conference session is a fundamental condition [precedent], which ought to be met by the parties to a petition before a tribunal or court can assume jurisdiction to determine an election petition or any matter relating thereto on the merits.Thus, in the instant case it’s rather obvious, that the lower tribunal lacks the fundamental jurisdictional competence or power to grant any application by either the Appellant or the Respondents for an extension of time to issue pre-hearing conference notice or reply to the petition outside the statutory time limit. See OKEREKE VS. YAR’ADUA (2008) 2 (pt. 1100) 85 at 120 – 121 paras A – C; ACHIAKPA VS. NDUKA (2001) 14 NWLR (PT. 734) 623; IBWA LTD VS. PAVEX INT.CO. (NIG) LTD (2000) 7 NWLR (pt. 603) 105; ADESOLA VS. ABIDOYE (1999) 14 NWLR (pt. 637) 28.
By virtue of the provision of paragraph 18 (1) & (2) of the First Schedule to the Electoral Act 2010 (supra), only the petitioner is imbued with the obligation to apply for the issuance of a pre-hearing conference notice within the stipulated time limit alluded to above.
Where a petitioner fails to apply for the issuance of a pre-hearing conference notice within the statutory time limit, the respondent may apply (i) for a prehearing conference notice in accordance with paragraph 18(1) (supra); or (ii) by motion on notice seeking the tribunal or court to dismiss the petition in limine. See paragraph 18(3), supra.
However, where both the petitioner and respondent fail to apply under paragraph 18(1) and (3) of the First Schedule, (supra):
“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.”
See paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (supra).
What’s more, the provision of paragraph 18(5) to the First Schedule (supra) is to the effect that –
“(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.”
Instructively, the issue of the importance of prehearing conference sessions in election petition has been authoritatively adjudicated upon by the Supreme Court in a plethora of decisions. Most especially, in the notorious case of OKEREKE VS. YAR’ADUA (supra), the apex court was recorded to have aptly held, inter alia, thus:
Pre-trial sessions are a condition precedent before a tribunal or court can proceed to entertain any election or matters relating thereto. Where a court lacks the competence and jurisdiction to entertain a matter, the proceedings conducted thereon are a nullity . . . . . .
Where the petitioner and respondent fail to bring an application for pre-hearing session, the tribunal has the power to dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained and such dismissal is final. This law applies to election petition time of the essence.
Per Muhammad, JSC, at 120 – 121 paras. H – C; Onnoghen, JSC at 129 paras B – C, respectively.
As alluded to above, there is no doubt that the Appellant’s second application of 17/8/11 is not only incompetent perse, for having been filed out of the statutory time limit, but also an abuse of the lower tribunal’s processes. The term ‘abuse of court process’ is said to generally apply to such judicial – proceedings which are wanting in bonafide frivolous, vexatious, improper use of rules of practice and procedure of the courts, with intent to harass or embarrass, intimate, initiated and/or annoy a party/parties; that involves some deliberateness to misuse or pervert the smooth orderly and expeditious bearing and determination of matters as provided in the rules of courts. It can manifest itself in many forms and ways that no hard and fast rule can be laid for application in all cases. So its application depends entirely, or to a large extent, on the peculiarities of the case in which it arises.
See AMACHREE VS. PRINCEWILL (2008) 12 NWLR (pt. 1098) 345 at 362 paras D – G. See also OLUTINRON VS. AGAKA (1998) 6 NWLR (pt. 554) 366; FRN VS. ABIOLA (1997) 2 NWLR (pt. 448) 444; OKAFOR VS. AG ANAMBRA STATE (1991) 6 NWLR (pt. 200) 659; JONPAL VS. AFRIBANK (NIG) LTD (2003) 8 NWLR (pt. 822) 290; INMB VS. UNB (2004) 12 NWLR (pt. 264) 156, respectively.
Objectively, it’s the inequities, inconvenience the process-sets out to achieve which constitute the abuse. Otherwise, where the party has the right to file the action or process, his state of mind exercising that right cannot, by itself, affect the propriety of the exercise thereof. As once aptly expressed by Lord Halsbury over a century ago –
If it was a lawful act, however, ill the motive might be, he had a right to do it. If it was an unlawful act however good his motive might be, he would have no right to do it. Motives and intentions in such a question as is now before Your Lordships seem to me absolutely irrelevant. See BRANFORD VS. RICKLES (1895) AC at 594, which incidently, was referred to by the Supreme Court in SARAKI VS. KOTOYE (1992) 9 NWLR (pt. 264) 156 at 189 paras B – C, per Karibi-Whyte, JSC.
A typical example of an abuse of court process is where, as in the instant case, two or more processes of similar nature are filed and issued against the same parties in respect of the same subject matter, and praying the same reliefs. See IWUAGOLU VS. AZYKA (2007) 5 NWLR (pt. 1028) 631; ADELEKE VS. OSHA (2006) 16 NWLR (pt. 1006) 608; SENATE PRESIDENT VS. NZERIBE (2004) 9 NWLR (pt. 878) 251; DAPIANLONG VS. DARIYE (NO. 2) (2007) 8 NWLR (pt. 1036) 332, respectively.
In the instant case, as pointed out above, the first application of 06/7/11 and the second application of 17/8/11 were both in respect of the same subject matter and parties. They each prayed for the same relief i.e. the issuance of a prehearing conference notice. What is even more worrisome and embarrassing, is the fact that the Appellant filed the 2nd application (of 17/8/11) knowing fully well that his earlier (first) application (of 07/7/11) was not only filed in the lower tribunal, but that it had been determined and acted upon following the issuance of the prehearing conference notice by the secretary on 07/7/11.
Thus, in view of the above compelling reasons, issue No. 2 ought to be, and same is hereby, resolved against the Appellant.
ISSUE No. 1
The issue No. 1 raises the vexed question of whether the instances of non-compliance with paragraph 4(1) – (5) of the Electoral Act 2010 (as amended) on the part of the Appellant, are such that are capable of leading to the dismissal of the petition or incapable of being cured.
I think, there’s a need to reiterate that having resolved the first and second issues against the Appellant, it goes without saying, that it may amount to a sheer wasteful academic exercise to proceed to determine the first issue. My reason for that view is predicated upon the well settled general principle, that where, as in the instant case, a tribunal or court arrives at a conclusion that the petitioner has failed to apply for the issuance of a prehearing conference notice within the statutory time limit, it shall dismiss the petition in-limini. The effect of dismissal is that of finality. Thus, the tribunal or court, as the case may be, becomes functus officio. See paragraph 18(4) & (5) of the First Schedule to the Electoral Act 2010 as amended (supra). See also OKEREKE VS. YAR’ADUA (supra) at 120 – 121 paras. H – C; and 129 paras. B – C, respectively.
As alluded to above, the entire petition is incompetent, thus ought to be dismissed on the ground that the Appellant had woefully failed to apply for the issuance of a pre-hearing conference notice within the statutory time limit. Hence, in the light of the above postulations resulting in resolving the 2nd and 3rd issues against the Appellant, it’s most inevitable that the instant appeal is devoid of any merits. Thus, the appeal is hereby dismissed by me. Afortiori, the Respondent’s Notice in question, which is predicated upon a sole ground to the effect that – “The petition does not disclose a cause of action” is equally unmeritorious, and same is hereby dismissed by me.
The ruling of the lower Tribunal delivered on September 30, 2011 dismissing the Appellant’s petition No. NA/LEGH/EPT//5/2011) to the extent that it’s incompetent, is hereby affirmed.
There shall be no order as to costs.
THE CROSS-APPEAL
It is instructive, that the 3rd Respondent had filed a cross-appeal against the Appellant in the substantive appeal (CA/L/EPT/005/2011). The notice of the cross-appeal was filed on 02/11/11. As alluded to above, the cross-Appellant had earlier on 01/11/11 filed a Notice of intention seeking to contend that the judgment (Ruling), delivered on 30/9/11, should be affirmed on grounds other than those relied upon by the said lower tribunal.
The notice of cross-appeal was predicated upon two grounds. And the reliefs thereby sought are to the following effect –
i. An order allowing this Cross-appeal and setting aside only that part of the Ruling of the Tribunal whereby the Tribunal held that “the Petitioner can validly ask the Tribunal to declare him as the one elected and to be returned as the winner of the said election” without first praying for the nullification of the election.
ii. An order dismissing the petition of the petitioner/cross-Respondent as incompetent as it is not a competent relief the court can adjudicate on.
The cross-Appellants’ brief of argument was filed on 23/11/11. That of the cross-Respondent was filed on 24/11/11.
At page 4 of the brief thereof in question, the cross-Appellants’ learned senior counsel, Professor Osinbajo, SAN has raised a sole issue for determination, viz –
By virtue of the Supreme court (sic) decision in Ige V. Olunloyo (1984) NSCC pages 102 at 109, and the Court of Appeal decision in Njiokuwemeni V. Ochei (2004) 2 LRECN at pages 112 – 113 para F – A, can the Tribunal nullify an election or return the Cross-Respondent as winner in the absence of a specific declaratory relief for nullification of the election challenged?
The sole issue was stated to have been distilled from both grounds of the notice of the cross-appeal in question.
On the other hand, the cross-Respondent’s learned counsel Onigbanjo, ESQ; has raised one issue at page 6 of the brief thereof thus:
“(i) Whether the cross-appeal is maintainable in law.”
The sole issue was equally indicated to have been distilled from both grounds of the notice of cross-appeal.
Undoubtedly, the purported sole issue raised in the cross-Respondent’s brief appears to me, for all intent and purposes, a preliminary objection. However, I am not unmindful of the fact that the Election Tribunal and Court Practice Directions, 2011 have not made any explicit provision for the filing of a notice of preliminary objection. Most particularly, paragraph 12 of the practice Directions, 2011 merely provides thus:
“12. The Respondent shall file in the court his own Brief of Argument within 5 days of service of the Appellant’s Brief. Paragraphs (sic) 19 (a) to (d) above shall apply mutatis mutandis to the Respondent’s Brief of Argument.”
Nonetheless, paragraph 55 of the First Schedule to the Electoral Act 2010 (supra), has aptly provided that –
55. Subject to the provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with the practice and procedure relating to civil appeals in the Court of Appeal or of the Supreme Court, as the case may be, regard being had to the need for urgency on electoral matters.
Correlatively, by virtue of order 10 Rules 1 & 3 of the Court of Appeal Rules, 2011 –
1. A Respondent intending to rely upon a preliminary objection to the hearing of the appeal (a cross-appeal inclusive), shall give the Appellant (or Cross-Appellant) three clear days notice thereof before the hearing setting out the grounds of objection, . . .. . .
3. If the Respondent fails to comply with this Rule, the court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the Respondent or may make such order as it thinks fit.
It is not at all in doubt, that the above provisions of order 10 Rules 1 & 3 of the Court of Appeal Rules, 2011 (supra) have not been strictly complied with by the cross-Respondent in challenging the competence of the cross-appeal, by way of raising an issue instead of a preliminary objection in the brief thereof.
Nonetheless, I would want to appreciate that election petitions and appeals related thereto are Sui generic. They belong to a distinctive or special class of their own. In the instant case, time is most crucially of the essence. Thus, little wonder the cross- Respondent deemed it expedient to file the brief thereof on 24/11/11, barely a day after the cross-Appellant’s brief was filed and served thereupon. What’s more, the decision appealed against having been delivered on 30/9/11, the appeal ought to be determined, not later than 60 days from that date. No doubt, this case is a typical example of the proverbial ‘Race Against Time’.
I have critically, albeit dispassionately, considered the circumstances surrounding the cross-appeal, the submissions of the learned counsel, contained in their respective briefs of argument vis-a-vis the record, as a whole. Invariably, a respondent’s notice denotes a judicial process filed by a respondent in an action who, though conceding to the conclusion reached in a judgment appealed by the Appellant, seeks that the judgment be varied or affirmed on other grounds. See E.I.I.A. VS. C.I.E. LTD (2006) 4 NWLR (pt. 969) 114 at 127 paras D – E; OGUNBADEJO VS. OWOYEMI (1993) 1 NWLR (pt. 271) 517; IBE VS. ONUORAH (1999) 14 NWLR (pt. 638) 340.
The main objective of a respondent’s notice is that both parties joined issues on the capacity of the Appellant at the trial court, but that, somehow, the lower court over looked the points or issues in the decision thereof.
Instructively, the procedure for respondent’s notice is provided under order 9 of the Court of Appeal Rules, 2011. By the provision of Rule 1 of order 9 (supra), a respondent who (not having appealed against the decision of the court below) desires to contend on the appeal that the decision should be varied, must give notice specifying the grounds of that contention, and the precise form of the order he desires the court to make.
Afortiori, a respondent who wishes to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court, shall give notice to that effect, specifying the grounds thereof. See order 9 Rule 2 (supra).
Contrariwise, a cross-appeal denotes an appeal by the respondent in a substantive appeal. A cross-appeal is usually heard and determined at the same time as the appellant’s (substantive) appeal.
Distinctively, a cross-appeal and respondent’s notice are mutually exclusive; mutually opposed to one another. It’s a well settled principle, that where a respondent’s notice has been filed, pursuant to order 9 of the Court of Appeal, Rules 2011 (supra), it would amount to an abuse of court process for the respondent to also file a notice of cross-appeal in respect of the same decision appealed against in the main appeal. See OKOLI VS. UDEH (2008) 10 NWLR (pt. 1095) 213 paras. C – G; IBE VS. ONUORAH (1999) 14 NWLR (pt. 638) 430; NTUKS VS. NEPA (2000) 4 NWLR (pt. 654) 639; OGBEIDE VS. OSULA (2003) 15 NWLR (pt. 843) 266; PACERS MULTIDYNAMIC LTD VS. MV DANCING SISTER” (2000) 3 NWLR (pt. 648) 241; ANYADUBA VS. NRJ CO. LTD (1990) 1 NWLR (pt. 127) 397, respectively.
In the instant case, having filed Respondent’s Notice in the main appeal, the filing of the instant cross-appeal has amounted to an abuse of process of court. The cross-appeal in question ought to be struck out for being incompetent. And I so hold. See SARAKI VS. KOTOYE (1999) 9 NWLR (pt. 264) 156 at 188 – 189; OKORODUDU VS. OKOROMADU (1977) 3 SC 21; OYEGBOLA VS. ESSO WAING (1966) 1 ALL NLR 170; HARRIMAN VS. HARRIMAN (1989) 5 NWLR (pt. 119) 6; ANYADUBA VS. NRJ CO. LTD (1990) 1 NWLR (pt. 127) 397; JADESIMI VS. IKOTIE-EBOH (1986) 1 NWLR (pt. 16) 278, respectively.
In the light of the above postulations, I have no further hesitation in upholding the cross-Respondent learned counsel’s objection, to the effect that the instant cross-appeal is an abuse of processes of the court, and it’s therefore grossly incompetent. Accordingly, the cross-appeal is hereby struck out by me.
There shall be no order as to costs.
EPILOGUE:
As an epilogue, I have deemed it rather expedient to observe that the Appellant (cross-Respondent) learned counsel’s disposition in the presentation of the case there of is very much unbecoming. Most regrettably, the Appellant’s counsel has exhibited an unfortunate discourteous flare of using derogatory remarks in his submission and expressions. For instance, at page 13 of the Appellant’s brief of argument, the learned counsel, rather uncharitably, alleged that –
The position adopted by the Tribunal with all due respect is a classic example of speaking from both sides of the mouth. This is impermissible in law. See Dingyadi Vs. Wamako where the court said parties must not be allowed to approbate and reprobate at the same time, sure if parties cannot do this courts cannot either.
I believe, it’s discourteous and most uncharitable for a counsel to accuse a court or tribunal of “speaking from both sides of the mouth”. Such a despicable derogatory remark should not be uttered by a counsel, a member of the learned and most honourable profession on this planet Earth – the legal profession.
As I have often times reiterated, it’s trite that a legal practitioner, as an officer of the hallowed temple of justice, is under an onerous duty to uphold and observe the well cherished principles of the rule of law, promote and foster the cause of justice, and maintain a high standard of professional conduct. Thus, he shall not engage himself in any conduct which is un-becoming of the learned, honourable and highly prestigious legal profession. See ANOZIA VS. A.G. LAGOS (2010) 15 NWLR (pt. 1216) 207 at 244 paras C – H; 245 paras. A – B; ANPP VS. REC AKWA IBOM STATE (2008) 8 NWLR (pt. 1090) 45 at 526 paras. E – G & 528 paras. E – H, to the effect thus:
Not too long ago, this court was recorded to have aptly and rather prophetically re-echoed the antithetical effect of disrespect to courts of law vis-a-vis the independence of the judiciary. I think that was in the case of DENTON-WEST VS. MUOMA (2008) 6 NLWR (pt. 1083) 418, at 451 – 452 paragraphs H – C, to the effect thus:
It’s axiomatic that disrespect to a court of law, in whatever ramification, is antithetical to the rule of law, democracy and the well cherished independence of the judiciary. And the importance of a competent, independent and impartial judiciary in preserving and upholding the rule of law cannot be over emphasized.” There is no doubt that public confidence in the independence of the courts, in the integrity of judges that man such courts, and in the impartiality and efficiency of the administration of justice as a whole, play a great role in sustaining the judicial system of nation. I think it was Mr. Justice Frankfurter, the eminent and fearless US jurist who once remarked that:
‘The court’s authority … possessed of neither the purse nor the sword… Ultimately rests on sustained public confidence in its moral sanction.’ See Baker v. Carr. Supreme Court of USA (1962) 369 US 186.
Indeed, it’s trite that discourteous, insolent, or disrespectful disposition towards the court is like an ill-wind. It blows nobody any good, at all. I am done. I wouldn’t want to pontificate further on the point. A word is indeed enough for the wise!
SIDI DAUDA BAGE, J.C.A.: I had privilege of reading in draft the lead judgment of my learned brother Saulawa JCA, and I am in complete agreement with. On the main appeal I also affirm the ruling of the Lower Tribunal delivered on September 30, 2011 dismissing the Appellants petition No.NA/LEGH/EPT/1/5/2011 for being incompetent.
On the cross-appeal, I agree with the lead judgment to the effect that it constituted an abuse of the process of this court. accordingly I too have struck out the cross-appeal, and abide by the consequential order contained in the lead judgment.
RITA NOSAKHARE PEMU, J.C.A.: I have had a preview of the judgment just delivered by my learned brother I. M. M. Saulawa J.C.A. and I agree with the reasoning and conclusion.
He has dealt extensively and exhaustively with the issues proffered for determination.
I have nothing more to add but to subscribe to the consequential order made in the judgment inclusive of the one as to costs, that there shall be no order as to costs.
Appearances
M. J. Onigbanjo Esq. with O.A. Oshodi and B.B. AwoyemiFor Appellant
AND
Prof. Yemi Osinbajo SAN, with V.O.M. Alonge (Mrs.) Esq., and Abimbola OjenikeFor Respondent
