IBANGA SUNDAY STEPHEN IBANGA & ANOR. V. INDEPENDENT NATIONAL ELECTORAL & ORS.
(2011)LCN/4790(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of September, 2011
CA/C/NAEA/GOV/171/2011
RATIO
FRESH ISSUE ON APPEAL: DUTY OF THE PARTY WHO INTENDS TO RAISE NEW OR FRESH POINTS ON APPEAL TO SEEK LEAVE OF THE APPELLATE COURT TO RAISE SUCH POINTS
A party who intends to raise new or fresh points or questions on appeal which were not raised in the lower or trial court has a duty to seek leave of the appellate court to raise such points or questions. See Ejiofodomi vs. Okonkwo (1981) 11 SC 74; Edokpolo & Co. Ltd. v. Sam Edo Wire Ltd. (1989) 4 NWLR (Pt.116) 473; Ukpong v. Commissioner for Finance and Economic Development, Akwa Ibom State (2007) All FWLR (Pt.350) 1246. The appellants have failed or neglected to seek and obtain the leave of this Court to raise the fresh issues. The augment of the appellants is based on the general principle of law which is that the appeal court will permit an appellant to raise an issue that has not been canvassed or decided upon where such issues involves substantial point of law, procedural or substantive, and it is based on evidence already before the court and to do so will prevent an obvious miscarriage of justice. See A.G. Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt.92) 1; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523. The appellant in the instant case does not come under this principle on the ground that he had acquiesced to the procedure he now complains about and he must be taken to have indeed waived his right to raise any complaint thereabout on appeal. See Ariori vs. Elemo (1983) 1 SCNLR; Feed and Food Farms (Nig.) Ltd. v. N.N.P.C. (2009) All FWLR (Pt.484) 1436, (2009) 12 NWLR (Pt.1155) 387. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPH 18 OF THE FIRST SCHEDULE TO THE ACT AS TO WHOM THE PETITIONER SHOULD APPLY TO FOR THE ISSUANCE OF PRE-HEARING NOTICE AS IN FORM TF 007
Paragraph 18 of the First Schedule to the Act provides generally for pre-hearing session and scheduling. It contains 13 sub-paragraphs and an understanding of paragraphed 18 will entail a community reading of the sub-paragraphs with other relevant paragraphs thereof: Paragraph 18(1) and (2) are reproduced below: “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 as the case may be, 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 9i) of this paragraph, the tribunal or court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice s in Form TF007 accompanied by a pre-hearing information sheet as in Form TF008 for-” The business be conducted at the pre-hearing session are stated in the remaining portions of sub-paragraph 2. it is clear that the petitioner is to apply under paragraph 18(1) but the mode or means or method of application is not therein stated. The word “apply” is also not defined in any part of the Electoral Act. However, the employment of the word “application” in paragraphs 18(2) points to the fact that ‘apply’ must have relevance only in the realm of proceedings or processes of court or tribunal. Further, sub-paragraph 2 requires that it is the tribunal or court that shall issue Form TF007 to the parties or their legal representatives. It therefore goes without saying that the petitioner is to apply to the tribunal or court and not to the Secretary of the tribunal or court. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
APPLICATION; WHETHER THE WORD “APPLICATION” AS USED IN THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010 CONNOTES A LETTER AND THE APPLICATION IS TO BE MADE TO WHOM
I hold the view in firm agreement with the interpretation of the word “application” as already given through decisions of this Court that it does not mean a letter but an application by way of motion which can be either ex-parte or on notice. See Riruwal v. Shekarau & Ors. (2008) 12 NWLR (Pt.1199) 142. This standpoint is both logical and legal. Let me further buttress my position with the provision of Paragraph 47(2) of the First Schedule to the Electoral Act, 2010 which in clear and unambiguous terms provides that where by the Rules any application is requried to be made to the tribunal, such application shall be by motion, which may be supported by affidavit. The Electoral Act, 2010 (as amended) has clearly assigned roles, functions and duties to the Secretary to the tribunal. See for example paragraphs 3, 7, 9, 11 etc. There is no part of paragraphs 18 that specifies or designates the Secretary as the person to whom an application for the pre-hearing session is to be made. It is to be made to the tribunal and it can only be by motion. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
STATUTORY PROCEDURE: WHETHER WHERE A LEGISLATION HAS LAID DOWN A PROCEDURE FOR DOING A THING, SUCH A THING CANNOT BE DONE BY ANY MEANS OTHER THAN THE ONE SO LAID DOWN
The tribunal correctly stated the position of the law in its ruling that where legislation has laid down a procedure for doing a thing such a thing cannot be done by any means other than the one so laid down. See Okereke v. Yar’adua (2008) 12 NWLR (Pt.1100) 95, (2008) All FWLR (Pt.430) 626. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
JA’FARU MIKA’ILU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. IBANGA SUNDAY STEPHEN IBANGA
2. PROGRESSIVE ACTION CONGRESS Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. GODSWILL OBOT AKPABIO
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. ACTION CONGRESS OF NIGERIA
5. ALLIANCE FOR DEMOCRACY
6. ALL NIGERIA PEOPLES PARTY
7. ALL PROGRESSIVE GRAND ALLIANCE
8. CONGRESS FOR PROGRESSIVE CHANGE
9. LABOUR PARTY
10. HOPE DEMOCRATIC PARTY
11. NATIONAL REFORMATION PARTY
12. NATIONAL TRANSFORMATION PARTY
13. PEOPLES PROGRESSIVE ALLIANCE
14. AFRICAN RENAISSANCE PARTY
15. SOCIAL DEMOCRATIC MEGA PARTY Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Governorship Election Tribunal holden at Uyo, Akwa Ibom State, contained in the ruling delivered on 14th July, 2011 wherein the tribunal dismissed the petition of the appellants on the ground that the petition has been abandoned pursuant to Paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended).
The appellants were dissatisfied with the decision and filed their notice of appeal on 18th July, 2011 containing three grounds of appeal. The appellants as 1st and 2nd petitioners filed Election Petition No. EPT/AKS/GOV/08/2011 at the Governorship Election Tribunal, Uyo, Akwa Ibom State on 4th May, 2011 in respect of the election for the office of the Governor of Akwa Ibom State conducted by the 1st respondent and held on 26th April, 2011 and at the end of which the 1st respondent declared the 2nd respondent as the elected Governor. The record of appeal shows that upon service of the petition on them, the 1st respondent, filed his reply on 23rd May, 2011, the 2nd respondent’s reply was filed on 2nd June, 2011; 3rd respondent filed its reply on 31st May, 2011. The 4th to the 15th respondents did not respond to the petition.
The petitioners (hereinafter called the appellants) filed answer to the reply of 1st, 2nd and 3rd respondents on 3rd June, 2011 and 8th June, 2011 respectively whereby pleadings closed on 15th June, 2011.
By the letter dated 15th June, 2011 signed by Livinus Udofia Esq., (Solicitor) as learned counsel for the appellants and addressed to the Secretary, Election Petition Tribunal, Uyo, the appellants applied that pre-trial forms be issued and the petition be set down for pre-trial and subsequent hearing. See page 210 of the record of appeal. “Hearing Notice for Pre-Hearing Session” dated 16th June, 2011 were issued for service on the petitioners, as the 1st, the 2nd and the 3rd Respondents by which they were required to attend the tribunal on 5th July, 2011 at 9.0’clock in the forenoon for a pre-hearing session and for the purposes set out therein.
However, the 2nd respondent filed a motion on notice at the tribunal on 30th June, 2011 for an order dismissing the petition in its entirely on the grounds that:
“1. The Petitioners are required to apply for the issuance of pre-hearing notice in Form TF007 within 7 days after the filling and service of the close of pleadings.
2. Paragraph 47(2) of the Electoral Act 2010, as amended makes it mandatory for all applications authorized to be made to the Tribunal to be made by motion supported by an affidavit.
3. The time within which an application (as known to the Electoral Act) 2010 (as amended) can be made for issuance of form TF 007 in this petition has lapsed.”
By the motion on notice dated 4th July, 2011 and filed same day, the appellants prayed the tribunal for the following orders:
“i. AN ORDER extending the time within which the petitioners/applicants may apply to the Tribunal for pre-hearing notice to issue.
2. AN ORDER deeming the pre-hearing notice (Form TF 007) already issued by the Secretary of the Honourable Tribunal as having been properly issued.
3. AN ORDER deeming the pre-hearing information sheet (FORM TF 008) already filed by petitioner’s solicitor as having been properly filed and served.”
The two motions stated above came up for hearing on Tuesday, 5th July, 2011 and at the proceedings, the learned counsel for the appellants applied and withdrew the motion filed on 4th July, 2011 and same was accordingly struck out while hearing in respect of the 2nd respondent’s motion was adjourned to 7th July, 2011. Meanwhile on 6th July, 2011 the appellants filed a counter-affidavit to the affidavit in support of 2nd respondent’s motion. The tribunal took arguments of the parties on 7th July, 2011 and delivered its ruling thereupon on 14th July, 2011. The tribunal found merit in the 2nd respondent’s application and dismissed the petition as having been abandoned.
In respect of this appeal the appellants’ brief of argument was settled by Livinus Udofia Esq., as their learned counsel. It was filed on 2nd August, 2011. The 1st respondent brief which was filed on 9th August, 2011 was prepared by Dr.Onyechi Ikpeazu, SAN, CON, The 2nd respondent’s brief of argument settled by Chief Bayo Ojo, SAN was filed on 19th August, 2011 while the 3rd respondent’s brief of argument was settled by Adekunle Oyesanya Esq., and filed on 12th August, 2011. At the hearing of this appeal on 6th September, 2011, the learned counsel for the appellants, K.A. Oluigbo Esq., adopted and relied on the appellant’s brief of argument and the reply brief filed in response to the briefs of the 1st, 2nd and 3rd respondents.
Ben Osaka Esq, who appeared with Jacob Akpong for the 1st respondent also adopted the 1st respondent’s brief and relied thereon. He referred to the preliminary objection to grounds 1 and 2 of the grounds of appeal which he urged this court to discountenance as being incompetent. Chief Bayo Ojo, SAN, learned counsel for the 2nd respondent led a team of counsel including Adebayo Adenipekun, SAN and Chief Duro Adeyele, SAN. The learned Senior Advocate adopted the 2nd respondent’s brief of argument and argued the objection contained therein as well as the alternative argument in respect of the substantive appeal. For the 3rd respondent, Kunle Oyesanya, Esq. appeared with Dominic Okon, Edet Bassey Esq., and Emanuel O. Akpan, Esq. The learned counsel adopted the 3rd respondent’s brief and referred this Court to the preliminary objection therein as well as the argument on the appeal. The learned counsel for the appellants argued that this Court should allow the appeal white the learned counsel for the respondents respectively urged the Court to dismiss the appeal.
From the three grounds of appeal, the appellants formulated the following three issues for determination in this appeal:
“(1) Whether the Tribunal had the jurisdiction to entertain the 2nd Respondent’s motion fixed for hearing on the 5th day of July, 2011. (Ground 1).
(2) Whether the Tribunal had the jurisdiction to entertain the 2nd Respondent’s motion other than at the Pre -Hearing Session. (Ground 2)
(3) Whether the application of the Appellants for Pre-Hearing Session by letter instead of by motion was a fatal irregularity which robbed the Tribunal of jurisdiction to entertain the Petition (Ground 3).
The appellants argued each of the above issues extensively in the appellants’ brief of argument. The 1st, 2nd and 3rd respondents who filed their briefs of argument raised preliminary objection to the appeal. The 1st respondent’s objection to grounds 1 and 2 of the grounds of appeal was on the basis mainly that the appellants did not raise the complaints in those grounds before the tribunal and the appellants therefore require the leave of this Court to take them up on appeal. The argument on the preliminary objection is on pages 9 to 14 of the 1st respondent’s brief of argument. Without prejudice to the preliminary objection, however, the 1st respondent formulated three issues for determination of the appeal. They are:
“1. Did the hearing of the 2nd Respondent’s motion dated 30th June, 2011 amount to non-compliance with paragraph 18(3) of the 1st Schedule to the Electoral Act, 2010 (as amended) Ground 1
2. Did the hearing of the 2nd Respondent’s motion dated 30th June, 2011 after the date fixed for pre-hearing amount to non-compliance with paragraph 47(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) Ground 11.
3. Did the activation of the pre-hearing session by the Appellant by virtue of a mere letter addressed to the Secretary of the Tribunal comply with paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) Ground III.”
Each of these three issues was argued copiously on pages 15 to 28 of the 1st respondent’s brief.
The 2nd respondent also raised preliminary objection to the appeal and same is on pages 3-4 of the brief of argument. The objection is based upon the following grounds.
“1. Grounds 1 and 2 of the grounds of appeal and argument on issues 1 and 2 in the Appellants’ brief are incompetent because they raised new issues not canvassed at the trial Tribunal and leave of this Honourable Court was neither sought nor obtained to raise the new issues.
Furthermore, even if the appellants can raise the issues, the appellants have waived them as shall be shown in the argument below.
2. The discourse in pages 21 – 29 of the Appellants’ Brief of Argument are unrelated to the facts and evidence on record.
3. The conversation at those pages of the Appellant’s Brief are academic and suggestive of extra judicial and extraneous opinion.
4. The said pages 21 – 29 of the Appellants’ Brief run violently foul of the rules of writing Brief of Argument.”
These grounds of objection were argued on pages 5 to 14 of the 2nd respondent’s brief of argument.
In the alternative, the following two issues were formulated by the 2nd Respondent for determination in the appeal:
“1. Whether taking into consideration the totality of the circumstances leading to the dismissal of the petition, the 2nd Respondent/Applicant’s Motion filed on 30/6/2011 was/is competent (Grounds 1 and 2).
2. Whether the trial Tribunal was right in holding that the Appellants/Petitioners abandoned their petition for failing to comply with the provisions of paragraph 18(1), (2); 47(2) of the First Schedule to the Electoral Act, 2010 (as amended) and consequently dismissed same as abandoned pursuant to paragraph 18(4) thereof (Ground 3).”
Arguments elaborately rendered on these two issues are on pages 14 to 36 of the 2nd respondent’s brief of argument. The 3rd respondent adopted the issues for determination as stated by the appellants but also raised a preliminary objection on pages 4 to 5 of the brief of argument and argued same on pages 5 to 10 thereof.
The objection of the 3rd respondent is hinged on the following two grounds:
“(1) Grounds 1 and 2 in the Notice of Appeal and the issues distilled therefrom do not arise from the decision of the Tribunal leading to this appeal and in particular; the argument contained in the Appellants Brief of argument on pages 6 to 7 and pages 14 to 29 thereof amount to raising and arguing fresh issues on appeal which issues were not raised or considered by the Tribunal.
(2)The contemptuous drama presentation on pages 21 to 29 of the Appellants’ Brief of Argument constitutes an abuse of the process of this Honourable Court and ought to be struck out together with Appellants’ issues 3 under which it was argued.”
In the alternative, the 3rd respondent argued the main appeal on pages 10 – 14 of the 3rd respondent’s brief of argument. In answer to the above objections of the 1st, 2nd and 3rd respondents, the appellants filed a reply brief on 26th August, 2011. The appellants did not deny that ground 1 and 2 of the grounds of appeal raised fresh issues. They however, argued that the issues so raised are pure issues of law on whether the tribunal had the jurisdiction to have even heard the 2nd respondent’s motion to dismiss the petition and that being issues of law which requires no fresh evidence to support or to establish, the appellants do not require the leave of Court to raise the same.
For purpose of clarity, the two grounds of appeal (grounds 1 and 2) from which issues 1 and 2 in the appellants’ brief were formulated are as follows:
“GROUND 1: ERROR IN LAW
The learned Justice of the Tribunal erred in law and occasioned a miscarriage of justice when they assumed jurisdiction to entertain and entertained the Motion of the 2nd Respondent/Respondent field on the 30th day of June, 2011 and fixed for hearing on the 5th day of July, 2011.
PARTICULARS:
(a) By paragraph 18(3) of the First Schedule to the Electoral Act, 2010, a Motion by the Respondent/Respondent applying for an order to dismiss the petition for failure by the Petitioner/Appellant to file an application for Pre-Hearing Session, shall be returnable within three clear days.
(b) The Motion of the 2nd Respondent/Respondent applying for an order dismissing the petition was filed on the 30th day of June, 2011 and a return date for hearing thereof was fixed for the 5th day of July, 2011.
(c) The return date for the said Motion was fixed outside the statutorily allowed period for return of such an application and this constitutes substantial non-compliance with the Rules governing the conduct of Petitions in the Tribunal.
(d) The above stated non-compliance with the Rules rendered the Motion filed by the 2nd Respondent/Respondent on the 30th day of June, 2011, incompetent and robbed the Tribunal of the jurisdiction to entertain same.
GROUND 2: ERRON IN LAW
The learned Justices of the Tribunal erred in law and occasioned miscarriage of justice when they assumed jurisdiction to entertain and entertained the Motion of the 2nd Respondent filed on the 30th day of June, 2011 or allowed the said motion to be moved or to come up other than at the Pre-Hearing Session.
PARTICULARS
(a) By paragraph 47(1) of the First Schedule to the Electoral Act, 2010, no motion shall be moved and all motions shall come up at the Pre-Hearing Session except in extreme circumstances with leave of the Tribunal or Court.
(b) In response to the application of the Petitioners/Appellants (by letter) for the issue of Pre-Hearing Forms and setting down the petition for Pre-Hearing Session, the Secretary of the Tribunal issued Forms TF 007 and TF 008 and fixed a date for the Pre-Hearing Session on the 5th day of June, 2011.
(c) Rather than conduct the Pre-Hearing Session on the fixed date being 5th July, 2011, and entertain the 2nd Respondent/Respondent’s Motion as an integral part of or step in the Pre-Hearing Session, as contemplated by paragraph 47(1) of the First Schedule to the Electoral Act, 2010, the Tribunal on the 7th day of July, 2011, heard the 2nd Respondent/Respondent’s Motion and on the 14th day of July, 2011, dismissed the petition.
(d) The acts of the Tribunal aforesaid constitute substantial non-compliance with paragraph 47(1) of the First Schedule to the Electoral Act, 2010 and render the proceedings, and decision of the Tribunal invalid for want of jurisdiction.
(e) Then 2nd Respondent/Respondent did not show any extreme circumstances or seek or obtain leave of the Tribunal to bring application other than at the Pre-Hearing Session.”
On the objection by the 3rd respondent, it is not in doubt that having by paragraphs 3.0 and 3.1 on page 4 of the 3rd respondent’s brief unequivocally adopted the issues for determination formulated from the grounds of appeal he is objecting to, the objection to those grounds cannot be sustained as this will amount to approbating and reprobating. I am only to consider the second stanza of the 3rd respondent’s objection as to the content of pages 21 – 29 of appellants’ brief.
The summary of the objection by the 1st and 2nd Respondents to grounds 1 and 2 of the appellants’ grounds of appeal is that the Appellants thereby raised points not previously raised, argued and considered by the tribunal and the leave of this Court was required before such a point can be raised and argued.
I have previously set down the two grounds of appeal together with their particulars and it is clear therefrom that the appellants complaints relate to the procedure adopted or steps taken by the tribunal in hearing the motion on notice filed by the 2nd respondent. The record of appeal shows on pages 276 – 278 that Livinus Udofia Esq., learned counsel for the appellants was present during the proceedings of the tribunal on 5th July, 2011 when the motion came up for hearing. The learned counsel caused the motion to be adjourned to 7th July, 2011 when he was also in attendance and made his submissions before the tribunal, whose ruling was also delivered in the presence of the said learned counsel.
It is important to state that at no point in the proceedings did the learned counsel raise any of the points now being raised on appeal without the leave of this Court. A party who intends to raise new or fresh points or questions on appeal which were not raised in the lower or trial court has a duty to seek leave of the appellate court to raise such points or questions. See Ejiofodomi vs. Okonkwo (1981) 11 SC 74; Edokpolo & Co. Ltd. v. Sam Edo Wire Ltd. (1989) 4 NWLR (Pt.116) 473; Ukpong v. Commissioner for Finance and Economic Development, Akwa Ibom State (2007) All FWLR (Pt.350) 1246. The appellants have failed or neglected to seek and obtain the leave of this Court to raise the fresh issues. The augment of the appellants is based on the general principle of law which is that the appeal court will permit an appellant to raise an issue that has not been canvassed or decided upon where such issues involves substantial point of law, procedural or substantive, and it is based on evidence already before the court and to do so will prevent an obvious miscarriage of justice. See A.G. Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt.92) 1; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523.
The appellant in the instant case does not come under this principle on the ground that he had acquiesced to the procedure he now complains about and he must be taken to have indeed waived his right to raise any complaint thereabout on appeal. See Ariori vs. Elemo (1983) 1 SCNLR; Feed and Food Farms (Nig.) Ltd. v. N.N.P.C. (2009) All FWLR (Pt.484) 1436, (2009) 12 NWLR (Pt.1155) 387. I hold accordingly, that grounds 1 and 2 of the appellants’ grounds of appeal are incompetent and must be struck out. Issues 1 and 2 that were formulated from those grounds 1 and 2 the grounds of appeal ipso facto become incompetent as it is the law that an incompetent ground of appeal cannot give birth, or give rise to a competent issue. An issue for determination formulated from an incompetent ground of appeal is itself incompetent and must be discountenanced. Grounds 1 and 2 of the appellants’ grounds of appeal as well as issues 1 and 2 formulated therefrom are incompetent and must be struck out.
Pages 21 – 29 of the appellants’ brief of argument contain what the learned counsel described as the hypothetical answers supplied by a lawyer who monitored the proceedings of the tribunal. He also described the content of those pages as question and answer session. The poser here is the necessity of this discourse that covers almost a third of the appellant’s brief. For one, it is an unnecessary and indeed an undesirable adventure as it is not the practice of the court to entertain or decide on hypothetical issues. The rational conclusion thereon is that the entire content of the discourse on pages 21 – 29 of appellants’ brief are similarly discountenanced.
In consequence of the foregoing, I uphold the objections raised by the 1st and 2nd respondents to grounds 1 and 2 of the appellants’ grounds of appeal s well as the objections of the 2nd and 3rd respondents to pages 21 – 29 of the appellants’ brief. The two grounds of appeal and the two issues formulated therefrom are accordingly struck out while the content of pages 21 – 29 of appellants’ brief is discountenanced.
That leaves me with Issue No. 3, as the only live issue in the appellants’ brief. It concerns the decision of the tribunal that the letter written by the Petitioners (now Appellants for issuance of pre-hearing notices in Form TF007 did not meet the requirement of the relevant provisions of the Electoral Act, 2010 (as amended).
The basic background to this issue is that the learned counsel for the appellants, Livinus Udofia Esq., had on 15th June, 2011 written a letter addressed to the Secretary Election Tribunal, Uyo for the activation of the pre-hearing session, in respect of the petitioners’ petition. For clarity sake, I reproduce the ipsissima verba of the said letter herein as follows:
“Livinus Udofia & Co.,
Legal Practitioners Notary Public
(Essene Chambers)
15th June, 2011
Our Ref:
The Secretary,
Election Petition Tribunal,
Uyo.
Sir,
RE: EPT/AKS/GOV/08/2011 – APPLICATION FOR PETITION TO BE SET DOWN FOR PRETRIAL HEARING
Pleadings in the above petition have been exchanged and the Petition is ripe for pretrial.
May we therefore apply that the pretrial forms be issued and the petition set down for pretrial and subsequently hearing.
Thank you.
Yours faithfully,
Livinus Udofia & Co.,
Sgd
Livinus Udofia Esq
Solicitor.”
See page 210 of the record of appeal.
Pursuant to the said letter, hearing notices for pre-hearing session were prepared for service on the petitioners and the 1st, 2nd and 3rd respondents notifying them that they were to attend the tribunal on 5th July, 2011 for a pre-hearing session for the purposes stated there under. Meanwhile, the 2nd respondent filed a motion on notice for dismissal of the petition in its entirely on the ground that the appellants failed to file a motion on notice supported by affidavit as required by paragraph 47(2) of the Electoral Act, 2010. Applying the provisions of paragraph 18(1)(2)(3)(4) and 47(2) of the Electoral Act, 2010 as amended, the tribunal found merit in the 2nd Respondent’s motion and dismissed the petition as an abandoned petition.
The questions then arises, was the tribunal right or were the appellants wrong? The answer lies squarely on a detailed examination and interpretation of the relevant provisions of the Electoral Act, 2010 (as amended).
Paragraph 18 of the First Schedule to the Act provides generally for pre-hearing session and scheduling. It contains 13 sub-paragraphs and an understanding of paragraphed 18 will entail a community reading of the sub-paragraphs with other relevant paragraphs thereof:
Paragraph 18(1) and (2) are reproduced below:
“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 as the case may be, 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 9i) of this paragraph, the tribunal or court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice s in Form TF007 accompanied by a pre-hearing information sheet as in Form TF008 for-”
The business be conducted at the pre-hearing session are stated in the remaining portions of sub-paragraph 2. it is clear that the petitioner is to apply under paragraph 18(1) but the mode or means or method of application is not therein stated. The word “apply” is also not defined in any part of the Electoral Act. However, the employment of the word “application” in paragraphs 18(2) points to the fact that ‘apply’ must have relevance only in the realm of proceedings or processes of court or tribunal. Further, sub-paragraph 2 requires that it is the tribunal or court that shall issue Form TF007 to the parties or their legal representatives. It therefore goes without saying that the petitioner is to apply to the tribunal or court and not to the Secretary of the tribunal or court.
I hold the view in firm agreement with the interpretation of the word “application” as already given through decisions of this Court that it does not mean a letter but an application by way of motion which can be either ex-parte or on notice. See Riruwal v. Shekarau & Ors. (2008) 12 NWLR (Pt.1199) 142. This standpoint is both logical and legal.
Let me further buttress my position with the provision of Paragraph 47(2) of the First Schedule to the Electoral Act, 2010 which in clear and unambiguous terms provides that where by the Rules any application is requried to be made to the tribunal, such application shall be by motion, which may be supported by affidavit. The Electoral Act, 2010 (as amended) has clearly assigned roles, functions and duties to the Secretary to the tribunal. See for example paragraphs 3, 7, 9, 11 etc. There is no part of paragraphs 18 that specifies or designates the Secretary as the person to whom an application for the pre-hearing session is to be made. It is to be made to the tribunal and it can only be by motion. In the instant case, the tribunal can therefore not be faulted for holding that the letter of the petitioners (now appellants) dated 15th July, 2011 did not meet the requirement of an application for pre-hearing session, and in other words, that as at the end of the statutory period of 7 days required under paragraph 18(1) of the First Schedule to the Electoral Act, 2010 there was no valid application for pre-hearing session by the appellants up to the dated of the 2nd respondents’ motion on notice thereon. It was consequently right for the tribunal to have treated the petition as abandoned and dismiss it pursuant to Paragraph 18(4) of the First Schedule to the Electoral Act, 2010 as amended. The tribunal correctly stated the position of the law in its ruling that where legislation has laid down a procedure for doing a thing such a thing cannot be done by any means other than the one so laid down. See Okereke v. Yar’adua (2008) 12 NWLR (Pt.1100) 95, (2008) All FWLR (Pt.430) 626.The appellants’ letter by their learned counsel on 15th June, 2011 as their application for pre-trial session did not meet requirements of the Electoral Act, 2010 (as amended) and it thereby amounted to a nullity. By the same token all the administrative actions of the Chairman and Secretary of the tribunal thereon amount to nullity personified and dignified since no one can put something on nothing and expect it to remain solidly and validly in place.
The net result of the foregoing is that issue 3 in the appellants’ brief is resolved by me against the appellants but in favour of the respondents (1st, 2nd, and 3rd) who have formulated the same issue in their briefs.
Consequently and in the final analysis this appeal fails and it is dismissed.
I make no order as to costs.
JA’AFARU MIKA’ILU, J.C.A.: I have had the preview of the lead judgment of my learned brother, M.A. Oredola, JCA with which I agree entirely. I adopt the same reasons as contained in the aforesaid lead judgment and the conclusion reached therein. Consequently, I uphold the viewpoint in the lead judgment that this appeal lacks merit and it is accordingly dismissed me. I also make no order regarding costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Massoud Abdulrahman Oredola JCA gave me the opportunity of reading the draft of the lead judgment in this appeal. I agree with the reasoning of my learned brother and the occlusion that the appeal lacks merit. I therefore dismiss the appeal and I make no order as to costs.
Appearances
K.A. Oluigbo Esq.,For Appellant
AND
Ben Osaka Esq.,
Jacob Akpong Esq.,
Chief Bayo Ojo SAN,
Adebayo Adenipekun, SAN,
Chief Duro Adeyele, SAN,
Chief Victor Iyanam,
Uwemedimo Nwoko, Esq.,
Oluwashina Ogungbade Esq.,
Salman A. Salman, Esq.,
Edgerton Onah, Esq.,
Alex Owoeye Esq.,
Ubong Offiong, Esq.,
Utibe Nwoko, Esq and
O. Agbo Esq.,
Adekunle Oyesanya Esq.,
Dominic Okon Esq.,
Edet Bassey Esq.,
Emmanuel O. Akpan Esq.,For Respondent
