HONOURABLE DORIS UBOH v. SENATOR PETER O. NWAOBOSHI & ORS
(2019)LCN/13697(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of July, 2019
CA/B/EPT/DT/SEN/03/2019
RATIO
ELECTION PETITION: MOTION FILED OUT OF THE PRE-HEARING SESSION MUST BE WITH LEAVE OF THE TRIBUNAL OR COURT
The law is that any motion filed outside the pre-hearing session must be with the leave of the tribunal or Court. See Prof. Steve Torkuma Ugba & Ors. v. Peoples Democratic Party & Ors. (2013) 4 NWLR (Pt. 1345) 486. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
ELECTION PETITION: WHEN ACTIONS ARE DONE OUT OF TIME
The law is quite clear that time limits in the Constitution and the Electoral Act, for doing any act or thing, in respect of an election petition, are immutable and sacrosanct and, therefore, any such act or thing done outside the time limits would amount to a mere nullity. See Udenwa v. Uzodinma (2013) 5 NWLR (Pt. 1346) 94; Shettima v. Goni (2012) 5 NWLR (Pt. 1298) 147; Ugba v. Suswam (2013) 4 NWLR (Pt. 1345) 427; Amadi v. INEC (2013) 4 NWLR (Pt. 1345) 595; Akpamudoeiye v. Akpabio (2013) 7 NWLR (Pt. 1354) 485 and PDP v. INEC (2014) 12 NWLR (Pt. 1437) 525. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
ELECTION PETITION: NATURE OF PROCEEDINGS
The point should be re-echoed here that proceedings in an election petition are sui generis. Therefore, unlike in ordinary civil causes or matters, statutory provisions regulating election petitions are strictly interpreted and also strictly applied, to the extent that any default in complying with a procedural requirement or step is treated as fatal, as the non-compliance cannot be cured or waived. See Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
HONOURABLE DORIS UBOH – Appellant(s)
AND
1. SENATOR PETER O. NWAOBOSHI
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant is the petitioner in Petition No. EPT/DT/SEN/13/2019, now pending in the National Assembly Election Tribunal, holden at Asaba. The said petition is anchored on the ground that ?the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, 2010 (as amended) (Section 138 (1) (b)) and the Electoral Guidelines made pursuant to the Constitution and the Electoral Act?. See page 4 of the record of appeal. The said petition is in respect of the general election into the Delta North Senatorial District of the National Assembly held on the 23rd day of February, 2019.
On the 19th day of June, 2019 the appellant filed a motion ex parte, which was later converted to a motion on notice by the Tribunal. The appellant, by the said application, sought the following relief:-
?1. Leave of the honourable Tribunal granting the Petitioner access to inspect the polling documents and other packets used in the conduct of the election in Delta North Senatorial District in the custody of INEC (3rd
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respondent).
2. Order allowing the Petitioner to use the result of the inspection in maintaining her petition.
3. For such Order or Orders as the Tribunal can make in the circumstance of the application.?
The appellant?s said motion was opposed by the respondents. The Tribunal, after entertaining arguments from the parties, delivered its reserved ruling on the 5th day of July, 2019 whereby the application was dismissed. The appellant, being dissatisfied with the decision of the Tribunal, appealed to this Court on the following grounds:-
?GROUND ONE
The Tribunal below erred in law in holding that leave of the Tribunal was not sought by the petitioner/appellant in moving the motion dated 18th and filed on 19th June, 2019 when on the face of the application leave was sought and thereby occasioned miscarriage of justice.
PARTICULARS OF ERROR
a. The application by the petitioner/appellant is for ?leave? to grant inspection Order.
b. Section 151 (1) of the Electoral Act (2010) is to the effect that an application for inspection can be made and not that leave is required for the Order to be
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made.
c. An application praying for Leave of the Tribunal to grant the Order sought under Section 151 of the Electoral Act 2010 and which the Court heard was an application for leave to hear the matter.
GROUND TWO
The Tribunal below erred in law and did not consider the provision of para. 53 (1) of the 1st Schedule to the Electoral Act 2010 in determining the application before it especially as hearing of the petition had not commenced and thereby reached the wrong conclusion of law.
PARTICULARS OF ERROR
a. Election petition proceedings abhors technically and that an application was sought outside the pre-hearing but before the hearing of the petition is an application that para. 53 (1) of the 1st Schedule to the Electoral Act 2010 can save.
GROUND THREE
The Tribunal below erred in law and occasioned miscarriage of justice when it held that:-
Above all, the appellant by this application wants this Tribunal to assist her in her disguised and ingenious ploy to introduce new facts to the petition long after the expiry of time required by law to file petition. Time lines in election matters are
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sacrosanct. This Tribunal will not therefore lend its hand in aide of the applicant herein to violate the clear provisions of Section 285 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), and paragraph 14 (2 ) (a) (i) and (iii) of the First Schedule to the Electoral Act 2010?.
PARTICULARS OF ERROR
a. Section 151 of the Electoral Act 2010 did not provide that inspection of INEC documents must be done within the 21 days for filing election petition after declaration of result.
b. Section 151 of the Electoral Act 2010 makes provision among others for inspection of INEC documents for purpose of ?maintaining and defending? an election petition.
c. An election petition can only be maintained and defended after the petition has been filed.
d. The use of the finding of an inspection of INEC documents in an election petition is not an amendment of the petition or introduction of new facts.?
The appellant?s brief was filed on 18/07/2019 and in it three issues were formulated for determination:-
?a. Whether in view of paragraph 53 of the 1st Schedule to the Electoral Act 2010(as amended)
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the provision of paragraph 47 (1) in respect of this application has not been waived by the honourable tribunal hearing the application for ?Leave? to inspect INEC documents.
b. Whether an application filed by a party to election petition for inspection of INEC documents within Section 151 (1) of the Electoral Act must be made within 21 days after the declaration of result of the election.
c. Whether application for inspection of INEC documents and the result of the inspection is amendment of the petition or additional fresh evidence envisaged by paragraph 14 of the 1st Schedule to the Electoral Act.
Learned counsel for the 1st respondent filed his brief on 23/07/2019 and in it two issues were identified and framed for determination as follows:-
?1. Whether the lower tribunal was right to have held that the petitioners (sic) ought to have sought the leave of the tribunal to bring the application outside the pre hearing session.
?(Grounds 1 and 2)
2. Whether the lower tribunal was right to have held that granting the application will amount to allowing the petitioners (sic) to introduce new facts in
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the petition contrary to Section 285 (5) of the 1999 Constitution (as amended) and paragraph 14 (2) (a) (i), (iii) of the first schedule to the Electoral Act 2010 (as amended). (GROUND 3)?
On behalf of the 2nd respondent, a notice of preliminary objection was filed on 23/07/2019 and arguments thereon are contained in the 2nd respondent?s brief. The 2nd respondent also distilled two issues for determination of the substantive appeal thus:-
?1. Whether the Tribunal was right in its decision that the motion was invalid for failure to seek leave to move the motion outside the pre-hearing sessions.(Ground 1).
2. Whether the Tribunal was right in its decision that the application is an ingenious device to bring in documents to the petition outside the period of 21 days limited for filing/or amending the petition. (Grounds 2 & 3)?.
The 3rd respondent did not file any brief.
2ND RESPONDENT?S PRELIMINARY OBJECTION
As stated before, the 2nd respondent raised and argued a preliminary objection to this appeal. For the sake of proper understanding, the 2nd respondent?s notice of preliminary objection
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is hereunder reproduced:-
?TAKE NOTICE that the 2nd respondent herein named intends, at the hearing of this appeal, to rely on the following preliminary objection, notice whereof is hereby given to you viz:-
The appeal is a mere academic exercise. Time limit in the provisions of the electoral Act cannot permit the appellant to utilise any benefit that success in this appeal may give.
AND TAKE NOTICE that the Grounds of the said objection are as follows:-
1. The appellant has 14 days within which to call all her witnesses and she already started on 19th July, 2019.
2. This appeal comes up on 25th July, 2019 and the petition is adjourned to 27th July 2019.
3. By the time the inspection is carried out if ordered, the 14 days would have elapsed.?
?
As can be seen from the 2nd respondent?s preliminary objection and the grounds thereof, the objection is based on the speculation that if this appeal is heard and an order, for the appellant to inspect the polling documents and other materials used for the disputed election, is granted, by the time the appellant carries out the inspection, the 14 days given to the
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appellant to call her witnesses ?would have elapsed?. To be brief on the matter, the law is settled that a Court should refrain from indulging itself in any form of speculation, because speculation does not constitute any part of a judicial exercise but a mere curious guesswork. See Overseas Construction Co. Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407; Ivienagbor v. Bazuaye (1999) 9 NWLR (Pt. 620)552; African Continental Bank PLC v. Emostrade Limited (2002) 8 NWLR (Pt. 770) 501; Ikenta Best (Nig.) Ltd. v. A.G., Rivers State (2008) 8 NWLR (Pt. 1084) 612 and Olabisi Olakunle v. The State (2018) 6 NWLR (Pt. 1614) 91.
In any case, I agree with the oral argument of learned counsel for the appellant that it is for the appellant to manage the time allotted to her by the Tribunal for her to prove her petition, and that is not the business of the 2nd respondent.
Without further ado, the 2nd respondent?s preliminary objection is hereby struck out for being speculative and having no foundation in law, since the question of academic exercise can only arise after the time allotted the petitioner has elapsed.
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SUBSTANTIVE APPEAL
The three issues formulated by the learned counsel for the appellant adequately cover his grounds of appeal. However, the said three issues can be streamlined into the two issues aptly distilled by the learned counsel for the 1st respondent, and which issues are substantially the same as those articulated by the learned counsel for the 2nd respondent. This appeal will, therefore, be determined on the two issues framed by the 1st respondent, namely:-
?1. Whether the lower tribunal was right to have held that the petitioner ought to have sought the leave of the tribunal to bring the application outside the pre hearing session.
2. Whether the lower tribunal was right to have held that granting the application will amount to allowing the petitioner to introduce new facts in the petition contrary to Section 285 (5) of the 1999 Constitution (as amended) and Paragraph 14 (2) (a) (i), (iii) of the First Schedule to the Electoral Act 2010 (as amended).?
To save time, the above two issues will be taken and treated together.
?
The learned counsel for the appellant submitted that paragraph 47 (1) of the 1st Schedule to the Electoral Act 2010 (as amended)
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should be read together with the other provisions of the Electoral Act, especially paragraphs 18 (a) and 53 of the 1st Schedule thereto – which saves cases of non-compliance.
Learned counsel for the appellant referred to the case of Akintayo v. Jolaoye (2013) All FWLR (Pt. 679) 1152 and argued that the essence of the provision of 151 (1) of the Electoral Act, 2010 (as amended) is to enable the appellant to inspect the electoral documents in order to maintain her petition as provided by the Act.
Counsel further contended that there is no provision in the Electoral Act as to the time when an application for the inspection of electoral materials ?may be brought?.
Prince Orji Nwafor-Orizu, learned counsel who settled the appellant?s brief, finally urged ?the Court to allow the appeal timeously to enable the Petitioner (to) inspect the election materials and other packets to aid in the presentation of her petition?.
In response, J.I. Odibeli, Esq., learned counsel who settled the 1st respondent?s brief relied on the case of Nwankwo v. Yar?Adua (2010) LPELR 2109 and argued
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that the word ?shall? used in paragraph 47 (1) of the 1st Schedule to the Electoral Act, 2010 (as amended) ?connotes a command? and that the appellant ought to have obtained leave before filing her application for inspection after the pre-hearing session.
Relying on the case of Oke & Anor. v. Mimiko & Ors. (2013) LPELR 20645, learned counsel for the 1st respondent contended that the Tribunal was right in holding that granting the appellant?s application would amount to allowing her to introduce new facts in the petition, contrary to the provisions of the 1999 Constitution and the Electoral Act.
?
The arguments of G.A.I. Mowah, Esq., learned counsel who settled the 2nd respondent?s brief, are essentially the same as those of the learned counsel for the 1st respondent. To be brief and to avoid repetition of arguments, I will not waste precious judicial time in summarising the lucid arguments of the learned counsel for the 2nd respondent. However, before resolving the issues in this appeal, it is, perhaps, important to state that both the learned counsel for the 1st respondent and the 2nd respondent,
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respectively, urged the Court to dismiss the appeal.
The facts of this appeal are neither contested nor complicated. The parties agree that the appellant?s application for inspection of the election documents or materials was made after the conclusion of the pre-hearing session. The appellant admitted that the application was made after the pre-hearing session, when learned counsel stated in paragraph 3.02 of the appellant?s brief as follows:-
?3.02. The application was heard immediately after the pre-hearing session but before the commencement of hearing of the petition. The objection by the 1st respondent is that this application was made outside the pre-hearing session and that it is therefore technically incompetent.?
The 1st and the 2nd respondents contended strongly that the appellant ought to have obtained leave of the Tribunal to file her application after the pre-hearing session. I think that the 1st and 2nd respondents? argument has legal merit, in view of the clear provision of Paragraph 47 (1) of the First Schedule to the Electoral Act, 2010 (as amended) which is as follows:-
?No motion shall
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be moved and all motions shall be moved shall come up at the pre hearing session except in extreme circumstance with the leave of Tribunal or Court?.
The above statutory provision is unambiguous. It means that, for any application or motion to be moved after the pre-hearing session, the applicant must obtain leave of the tribunal or Court to do so after showing ?extreme circumstances? or exceptional reasons why the motion could not be moved during the pre-hearing session.
The use of the word ?shall? in the phrase ?all motions shall come up at the pre-hearing session? makes it mandatory that every application be heard during the pre-hearing session, unless and until the applicant obtains leave after he has given extreme or exceptional reasons why the application could not be taken during the pre-hearing session. See Rev. Joshua Elson Kallamu v. Gurin Nuhu Bobo & Ors. 16 NWLR (Pt. 847) 493 at 517, per Ogbuagu, JSC and Chief Alex Olushola Oke & Anor. v. Dr. Rahman Olusegun Mimiko & 4 Ors. (No 1) (2014) 1 NWLR (Pt. 1388) 225 at 267, per Alagoa, JSC, where the Supreme Court held that the word
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?shall? used in the Electoral Act ?connotes a command?.
Learned counsel for the appellant contended that the appellant had by her motion sought ?leave?. With due respect, I am unable to agree with this contention, because the ?leave? stated in the appellant?s application is merely leave to inspect the election materials and not ?leave? to move her motion or application outside the pre-hearing session.
The law is that any motion filed outside the pre-hearing session must be with the leave of the tribunal or Court. See Prof. Steve Torkuma Ugba & Ors. v. Peoples Democratic Party & Ors. (2013) 4 NWLR (Pt. 1345) 486.
In this case, since the appellant did not obtain leave of the Tribunal to move her motion outside the pre-hearing session, the said motion was incompetent.
Learned counsel for the appellant argued the inspection of documents sought would not result in fresh evidence or otherwise.
In paragraph 10 (1) (V) of her petition, the appellant pleaded, as one of the particulars in support of the grounds, as follows:-
?(v). Double voting as sponsored by
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PDP members who already have in their possession PVC?s of other voters numbering hundreds which they use in collaboration with INEC ad hoc and staff and security men to promote double voting?.
I think that by the above pleading, the appellant means that members of the 2nd respondent?s Party Peoples Democratic Party were involved in ?double-voting?. The issue or question is whether or not ?double-voting? is synonymous with ?over-voting?. The the two terms, if they are duly recognized in English or legal lexicon, are not synonymous. The term ?over-voting? means voting in excess of the number of voters duly accredited or registered voters. Thus, in the case of Boni Haruna & Ors. v. Adamu Mu?azu Modibbo & Anor. (2004) 16 NWLR (Pt. 900) 487; (2004) All FWLR (Pt. 238) 740, this Court held that over voting is the recording of more votes at a polling unit than those on the register of voters.
Double-voting?, to my mind, means an accredited voter or registered voter voting twice in one and the same election, contrary to the principle of law of equality votes,
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as expressed in the political slogan: ?One Person, One Vote?, which was recognized as a legal maxim stating the fundamental test of fair elections and/or fair electoral districts in the United States of America in the cases of Baker v. Carr, 369 U.S. 186 (1962) and Gray v. Sanders, 372 U.S. 368, 381 (1963). See Bouvier Law Dictionary, Compact Edition, page 1165. Double voting is, therefore, a species of multiple voting but, in the case of double voting, the voter votes only two times in one and the same election.
I am of the view that if the appellant?s application is granted by the Tribunal, in order for the result of the inspection of the election materials or documents to be of any utilitarian value, the appellant, must of necessity, amend her petition to show ?over-voting? as suggested in the second ground in support of the motion for inspection of the election materials. Such an endorsement, will of course, substantially alter the ground in support of the appellant?s petition by introducing the fresh fact of alleged over-voting. This will clearly breach the provisions of Section 285 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
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and Paragraph 14 (2) (a) of the First Schedule to the Electoral Act, 2010 (as amended).
Section 285 (5) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) provides that:-
?An election petition shall be filed within 21 days after the date of the declaration of the result of the election.?
Paragraph 14 (2) (a) of the First Schedule of the Electoral Act, 2010 (as amended) provides thus:-
?After the expiration of the time limited by ?
a. Section 134 (1) of this Act for presenting the election petition, no amendment shall be made:
i. Introducing any of the requirements of subparagraph (1) of paragraph 4 of this Schedule not contained in the original election petition filed, or
ii. Effecting a substantial alteration of the ground for, or the prayer in the election petition, or
iii. Except anything which may be done under the provisions of subparagraph (2) (a) (ii) of this paragraph, effecting a substantial alteration or sustain the prayer in the election petition?
?The law is quite clear that time limits in the
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Constitution and the Electoral Act, for doing any act or thing, in respect of an election petition, are immutable and sacrosanct and, therefore, any such act or thing done outside the time limits would amount to a mere nullity. See Udenwa v. Uzodinma (2013) 5 NWLR (Pt. 1346) 94; Shettima v. Goni (2012) 5 NWLR (Pt. 1298) 147; Ugba v. Suswam (2013) 4 NWLR (Pt. 1345) 427; Amadi v. INEC (2013) 4 NWLR (Pt. 1345) 595; Akpamudoeiye v. Akpabio (2013) 7 NWLR (Pt. 1354) 485 and PDP v. INEC (2014) 12 NWLR (Pt. 1437) 525.
The Tribunal was right when it held as follows:-
?Above all, the appellant by this application wants this Tribunal to assist her in her disguised and ingenious ploy to introduce new facts to the petition long after the expiry of time required by law to file petition. Time lines in election matters are sacrosanct. This Tribunal will not therefore lend its hand in aide of the applicant herein to violate the clear provisions of Section 285 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), and paragraph 14(2)(a)(i) and (iii) of the First Schedule to the Electoral Act 2010?.
?The point should be
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re-echoed here that proceedings in an election petition are sui generis. Therefore, unlike in ordinary civil causes or matters, statutory provisions regulating election petitions are strictly interpreted and also strictly applied, to the extent that any default in complying with a procedural requirement or step is treated as fatal, as the non-compliance cannot be cured or waived. See Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446.
In view of all that I have stated above, the two issues in this appeal are hereby resolved against the appellant and in favour of the respondents.
The appeal lacks merit and it is hereby dismissed.
The decision of the Tribunal contained in its ruling delivered on 05/07/2019 is hereby affirmed.
The sum of N100, 000.00 (One Hundred Thousand Naira only) is hereby awarded as costs in favour of each of the 1st respondent and the 2nd respondent against the appellant.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have seen the judgment just delivered by my learned brother MOORE ASEIMO ABRAHAM ADUMEIN JCA. I agree with my learned brother that the appeal has no merit and should be dismissed. 1st
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Schedule to the Electoral Act, the Practice Directions and all, extant rules of practice and procedure including pronouncement of the Supreme Court is to the effect that no amendment can be made after pleadings have closed. Anything gained from the inspection of the documents would go to no issue. The appeal is dismissed. I abide by the order as to costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA.
I am in full agreement with the reasoning and conclusions therein both in respect of the preliminary objection and the main judgment.
Paragraph 47(i) of the 1st Schedule to the Electoral Act 2010 (as amended) reads thus:
?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?
The appellant had after the pre-hearing session brought a motion ex parte pursuant to Section 151(1) and (2) of the Electoral Act 2010 praying for:
1. Leave of the Honourable Tribunal granting the Petitioner access to
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inspect the polling documents and other packets used in the conduct of the election in Delta North Senatorial District in the custody of INEC (3rd Respondent)
2. Order allowing the Petitioner to use the result of the inspection in maintaining her Petition.
It is crystal clear that the application of the applicant (now appellant) depended on the grant of leave by the lower Court to survive in the light of the provision of paragraph 47(1) of the 1st Schedule.
?The learned trial Judge of the tribunal after hearing him ruled inter alia thus:
?The prayers in the motion paper and the affidavit in support are not as simple as they appear. This is so because not only has the Petitioner applied for Inspection, she equally asked to be allowed to use the result of the inspection in maintaining the petition. It follows therefore that there cannot be a grant of the application for inspection without a corresponding consideration of the use to which the product of or result of the inspection will be put. Prayer 2 in the motion paper answers the question as to the use to which the result or product of the inspection will be put, that is, to maintain
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the Petition.
The question is whether it is in accord with justice to arm the Petitioner with weapons of assault with which to assault the Respondents without allowing the said Respondents any opportunity to counter the attack. We think not..
We say so because pleadings have closed and any window of opportunity for the Respondents to react or respond to any newly introduced facts has permanently closed. It is therefore not in accord with justice and consequently, in our view, not a proper exercise of discretion to grant this application at this stage when pleadings have closed?
What is the use of the prayers being sought by the appellant if they would not necessitate an amendment of his election petition? Such a proposed amendment would run foul of the provision of paragraph 14(2) of the 1st Schedule and Section 285(5) of the 1999 constitution (as amended) see A.P.A. & Anor V Senator Morafa & Ors unreported judgment delivered on 24/5/2019.
To my mind, this appeal is very frivolous and deserves to be dismissed.
I abide by the order as to cost in the lead judgment.
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Appearances:
Prince Orji Nwafor-Orizu with him, S.N. Anichebe, Esq. and E.I. Umunnakwe, Esq.For Appellant(s)
J.I. Odibeli, Esq. for the 1st Respondent.
Miss J.I. Nwakarame for the 2nd RespondentFor Respondent(s)
Appearances
Prince Orji Nwafor-Orizu with him, S.N. Anichebe, Esq. and E.I. Umunnakwe, Esq.For Appellant
AND
J.I. Odibeli, Esq. for the 1st Respondent.
Miss J.I. Nwakarame for the 2nd RespondentFor Respondent
