INDEPENDENT NATIONAL ELECTORAL COMMISSION v. OSITA BONAVENTURE IZUNASO & ORS
(2019)LCN/13755(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of August, 2019
CA/OW/EPT/SEN/25/19
RATIO
SERVICE OF ORIGINATING PROCESSES: HOW IT AFFECTS JURISDICTION
Service of originating processes is a fundamental requirement that bestows jurisdiction on a Court. Failure to serve can erode the competence of the Court. See SALEH & ORS V MUHAMMED & ANOR (2010) LPELR-11068(CA) with similar facts with the preliminary objections taken here by the 2nd and 3rd Respondents and the consequences of taking steps upon becoming aware of the pending appeal, i.e. where a party becomes aware of the process by other means than personal service, this Court Per GARBA, JCA held thus:
“I would start a consideration of the preliminary objection by saying that the learned counsel for the 1st and 2nd Respondents is right in law when he said that the service of a Court process were required by law is a fundamental issue which if not made has the legal effect of taking away the requisite judicial authority and power in a Court of law to act in a case in which the service was required. In other words, service of a Court process is fundamental to the assumption of jurisdiction by a Court and failure to serve where required by law renders null and void any order made against a party who should have been served. See U.B.A. V. AJILEYE (1999) 13 NWLR (633) 116 @ 125, WEMA BANK .V. ODULAJA (2000) 7 NWLR (663) 1 @ 7, TENO ENG, LTD.V. ADISA (2005) 3-4 SC, 8 @ 11. PER YARGATA BYENCHIT NIMPAR, J.C.A.
SERVICE OF PROCESSES: WHERE PARTY TO BE SERVED IS INFORMED BY OTHER MEANS
However it is also an established principle of our law that where a party who should have been served was or became aware of the process of the Court in a case by other means than personal service, the requirement of the said service is rendered unnecessary, surplusage and its absence will not affect the jurisdiction of the Court. See ACHUZIA .V. OGBOMAH (2004) ALL FWLR (277) 505 @ 523-4, AUTO IMPORT – EXPORT V. ADEBAYO (2002) 18 NWLR (299) 554, JONASON TRIANGLES .V. CM AND P. (2002) 15 NWLR (789) 176. PER YARGATA BYENCHIT NIMPAR, J.C.A.
ELECTION PETITION: DUTY OF THE APPELLANT
In election petition proceedings the appellant has no duty at all; the secretary must compile and transmit the record within 10 days. The secretary of the Tribunal is a staff of the Court and any failure on his part remains the lapse and failure of the officers of the court, which cannot be visited on the Appellant; an admonition by the apex Court in the case of EDE & ANOR V MBA & ORS supra says:
“…Certainly, the error committed by the Registry was an administrative error which was irregular. But, the most relevant question one would pose here is: should this Court allow an unsuspecting litigant to suffer as a result of the mistakes/omissions occasioned by the Registry staff certainly, no! I repeat and adopt what Olatawura, JSC (of blessed memory) said in the case of Cooperative and Commercial Bank Plc v. Attorney General Anambra State & Anor (1992) 8 NWLR (Pt.261) 528 at p 561; that: “It will be contrary to all principles to allow litigants to suffer the mistake of the Court Registry. PER YARGATA BYENCHIT NIMPAR, J.C.A.
WHETHER THE COURT CAN VISIT THE SIN OF THE COURTS REGISTRY ON A PARTY
In other words, the Court will not visit the “sin” of the Court’s Registry, on a litigant or his counsel, unless, it was shown that the litigant and/or his counsel was a party thereto or had full knowledge of the “sin” or mistake and encouraged or condoned the said act. Therefore, on the authorities, justice, equity, fairness and good conscience, must persuade me, to hold further, that this Appeal deserves to succeed and it in fact does.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
INDEPENDENT NATIONAL ELECTORAL COMMISSION Appellant(s)
AND
1. OSITA BONAVENTURE IZUNASO
2. EHTELBERT ANAYO ROCHAS OKOROCHA
3. ALL PROGRESSIVES CONGRESS Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory decision by the National and State House of Assembly Election Tribunal sitting in Owerri, Imo State Coram: Hon. Justice Polycarp kwahar, Chairman; Hon. Justice Mikailu Abdullahi, Member I and Hon. Justice J. S. C. Okibe, member II (hereinafter to be called the Tribunal) and delivered on the 20/6/2019 wherein the Tribunal dismissed an application brought by the Appellant praying the Court for enlargement of time within which to file its Reply to the petition brought by the 1st Respondent against the return of the 2nd Respondent by the Appellant. Dissatisfied by the decision, the Appellant filed a Notice of Appeal dated the 29th day of June, 2019 and filed on the 1st July, 2019 setting out 4 grounds of Appeal and seeking the following reliefs:
a. An order allowing this Appeal
b. An order setting aside the decision of the Tribunal.
Facts leading to this appeal are amenable to brevity and I shall summarize them here. The Appellant conducted elections into the National Assembly on the 23rd February, 2019 and returned the 2nd
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Respondent as duly elected, aggrieved the 1st Respondent filed the petition challenging the return on several grounds. The Appellant was duly served with the Petition and a reply to the petition was filed after which the Appellant by its own application contended that the counsel who filed the Reply lacked authorization to do so and then applied to withdraw the said Reply, application granted and the Reply was subsequently struck out. Thereafter, the Appellant by way of motion on notice applied for extension of time to file their Reply to the petition, to substitute the one withdrawn and struck out, the application was stoutly opposed and the Tribunal upon due consideration dismissed same thus this appeal.
The Appellant?s Brief settled by I.P.ANANABA is dated the 23rd July, 2019 and filed on the 24th July, 2019. It distilled two issues for determination as follows:
i. ?Whether the Application for enlargement of time to file the 3rd Respondent/Appellant Reply to the Petition amounts to an amendment of the Respondent?s Reply under Paragraph 14(1) & (2) or a breach of Paragraph 10(2) of the 1st Schedule of the Electoral Act 2010 (as amended).
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ii. Whether the Tribunal below exercised its discretion judicially and judiciously in refusing to enlarge the time for the 3rd Respondent to file its Reply.”
The 1st Respondent? Brief was settled by PRINCE ORJI NWAFOR ORIZU ESQ., it is dated the 7th day of August, 2019 and filed on the same day. It adopted the two issues formulated by the Appellant for determination in this appeal.
The 2nd Respondent filed a Preliminary Objection dated 7th day of August, 2019. The 2nd Respondent?s Brief settled by OLAJIDE TORIOLA ESQ., dated 29th July, 2019 was filed on the same day and it incorporated arguments in support of the Preliminary Objection at pages 3-7 of the Respondent?s Brief. In respect of the main appeal, the 2nd Respondent distilled a sole issue thus:
Whether the learned trial Judges of the Lower Tribunal were correct to have dismissed the Appellant?s Application for enlargement of time.
The 3rd Respondent also filed a Notice of preliminary objection dated 29th July 2019 on the 31st July, 2019 and incorporated arguments in support of the Preliminary objection in the 3rd Respondent?s
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brief settled by ADEMOLA ABIMBOLA ESQ., dated 29th July, 2019 and filed on the same day. It donated an issue thus:
Whether or not the lower Tribunal was right in dismissing the Appellant?s application.
The Appellant filed Reply briefs to the 2nd and 3rd Respondent?s preliminary objections. The Replies to the preliminary objections are dated 12th August, 2019 for the 2nd Respondent and filed on the 14th August, 2019. The reply to the 3rd Respondent?s brief is dated 6th August, 2019 filed on the 7th August, 2019.
All parties adopted their respective briefs at the hearing of the appeal.
As required by the rules and practice of this Court, the preliminary objection must be taken first because the import of an objection if it succeeds is to terminate the appeal in limine and without any determination on the merit, see KLM ROYAL DUTCH AIRLINES V ALOMA (2017) LPLER- 42588(SC) where KEKERE-EKUN,JSC said:
“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s
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jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Odunukwe Vs Ofomata (2010) 18 NWLR (Pt.1225) 404 @ 423 C – F; Ndigwe Vs Nwude (1999) 11 NWLR (Pt.626) 314: N.E.P.A. Vs Ango (2001) 15 NWLR (Pt.734) 627; Muhammed v. Military Administrator Plateau State (2001) 18 NWLR (Pt.744) 183.”
The two preliminary objections shall be taken together and resolved all at once for expediency.
PRELIMINARY OBJECTIONS
The 2nd Respondent?s Notice of preliminary objection challenged the jurisdiction of the Court and sought an order dismissing the Appeal for want of competence. The grounds upon which the objection was based are:
i. The Notice of Appeal dated and filed on the 1st July, 2019 was not served on the 2nd Respondent.
ii. The Record of Appeal was compiled and transmitted outside the time limit provided under the law.
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Proffering arguments in support of the preliminary objection, the 2nd Respondent at pages 3-7 of the 2nd of the Brief submitted that the Notice of Appeal was not served on the 2nd Respondent personally and contrary to requirements of the Rules and relied on HARUNA & ANOR V LADEINDE (1987) 4 NWLR (Pt. 67) 941 and OBIMONURE V ERINOSHO (1966) 1 ALL NLR 250 to the effect that where a process is to be served on a party, failure to serve is a fundamental defect, particularly an originating processes like a Notice of Appeal. The same principle was enunciated in the case of AMADI V OKOLI (1977) 7 SC 57. Furthermore, that failure to ensure personal service on the 2nd Respondent also renders the appeal incompetent as decided in ADEGBOLA V OSIYI & ORS (2017) LPELR- 42471 (SC).
Continuing to argue the Preliminary Objection the 2nd Respondent submitted that the record of appeal was transmitted out of time going by the date the Notice was filed and the date the record was transmitted to this Court being the 1st July, 2019 and 15th July, 2019 respectively which is clearly out of time. Learned counsel for the 2nd Respondent
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submitted that by paragraph 9 of the Election Petition and Court?s Practice Direction, 2011, the record of appeal in any election shall be compiled and transmitted within 10 days and the use of the word shall makes it imperative, citing THE REGISTERED TRUSTEES OF GOSPEL LIGHT INTERNATIONAL MINISTRIES V MR. ISAIAH EHANIRE (2018) LPELR-44835 (CA) and PATRICK MICHAEL V BANK OF THE NORTH LER (2015) SC 248/2003 to urge the Court to uphold the preliminary Objection and strike out the appeal.
The 3rd Respondent on his part filed the Notice of Preliminary objection seeking an order striking out the appeal for want of competence. The grounds upon which the objection was rooted are that:
i. The Notice of appeal dated and filed on the 1st July, 2019 was not served on the 3rd Respondent.
ii. Reliefs sought in the Notice of Appeal are not grantable in law as they are devoid of necessary particulars.
Arguing the objection the 3rd Respondent at pages 2-12 of the 3rd Respondent?s brief submitted that the Court lacks jurisdiction because the Notice of Appeal was not served on the 3rd Respondent as required by law and service of initiating processes on a party is fundamental
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and failure to serve divest the Court of jurisdiction, also vitiates the proceedings. He relied on OKE V AIYEDUN (1986) 2 NWLR (Pt. 548; EIMSKIP LTD V EXQUISITE INDUSTRIES (NIG) LTD (2003) 4 NWLR (Pt. 809) 88; SALEH V MUHAMMED (2010) LPELR- 11068 (CA). On the failure to serve the Notice of appeal, the 3rd respondent lifted a long quotation from EZIM V MENAKAYA (2018) 9 NWLR (Pt. 1623) 113 at 126-127 and ADEGBOLA V OSIYI & 2 ORS (2017) 5-6 S.C.(Pt. 1) 157.
On the reliefs sought, the 3rd Respondent contended that it is not grantable citing WEMA BANK PLC V OSILARU (2008) 10 NWLR (Pt. 1094) 150 requiring that a relief must be clear and succinct, relying on the cases of NSCDC BENUE STATE COMMAND V SAMUEL (2019) LPELR- 46870(CA);OCTS EDUCATIONAL SERVICES LIMITED V PADSON INDUSTRIES LIMITED (2012) LPELR- 14069 (CA). Arguing further, the 3rd Respondent submitted that the Court is not a father Christmas to grant just any relief, citing the following cases:PETER ADEBAYO ODOFIN & ANOR V CHIEF AGU & ANOR (1992) 3 NWLR (Pt. 229); CHIEF N. T. OKOKO V MARK DAKOLO (2006) 14 NWLR (Pt. 1000) 401; AYANBOYE V BALOGUN (1990) 5 NWLR (Pt. 151) 392 at 413; IGE V OLUNLOYO
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(1984) ALL NLR 150; ATSER V GACHI (1997) 6 NWLR (Pt. 570) 609 and LADOKE V OLOBAYO (1992) 8 NWLR (Pt. 261) 605 to urge the Court to strike out the Appeal.
In response, the Appellant submitted that service of Court processes in election petitions is not the responsibility of the Appellant but that of the Court officials citing Order 2 Rule 2 of the Rules of this court and further said the sin of the Court officials cannot be visited on the Appellant, relying on MAIYANGA V BAUCHI STATE OF WORKS (SIC) (1998) 4 NWLR (Pt. 547) 337 and EDE & ANOR V MBA (incomplete citation). The Appellant observed that the 2nd and 3rd Respondents were served with the Record of Appeal wherein the Notice of Appeal is part of and having appeared and filed briefs, it means they have overlooked the default in serving the Notice of Appeal, citing Order 2 Rule 1 (a) of the Rules of this Court. Appellant submitted that the cases cited by the 2nd Respondent are not relevant because the Notice has been communicated to the Respondents and no objection can lie on the ground that the Notice of appeal was not served personally. On non-transmission of record on time, the
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appellant submitted that it the fault of the Registry of the Tribunal, an administrative error which should not be visited on the appellant, citing FAMFA OIL LTD V AG FED & ANOR (2003) LPELR-1239 (SC) supporting the submission that it would amount to injustice to punish a party for the wrong of the registry of the Court.
On the contention that the reliefs sought are not grantable, the Appellant submitted that the reliefs are clear and the 3rd Respondent was referring to a different Notice of Appeal filed on the 1/7/19, referred to page 499 to contend that the reliefs are grantable, relied on Order 4 Rule (3) and SALIHU V WASIU (2016) ALL FWLR (Pt. 837) 714 and 728 to submit that a consequential order can be made upon allowing the appeal, he urged the Court to rely on Section 15 of the Court of Appeal Act to do justice. On the case of NSCDC BENUE STATE COMMAND V SAMUEL, PETER ADEBAYO ODOFIN & ANOR V CHIEF AGU, OCTS EDUCATIONAL SERVICES supra, the appellant submitted that it is not applicable. It urged the Court to dismiss the Preliminary objections of the 2nd and 3rd Respondents and hear the appeal in the interest of justice.
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RESOLUTION OF THE PRELIMINARY OBJECTIONS
The 2nd and 3rd Respondents individually complained that they were not personally served with the Notice of Appeal. They were however served with the record of appeal. Service of originating processes is a fundamental requirement that bestows jurisdiction on a Court. Failure to serve can erode the competence of the Court. See SALEH & ORS V MUHAMMED & ANOR (2010) LPELR-11068(CA) with similar facts with the preliminary objections taken here by the 2nd and 3rd Respondents and the consequences of taking steps upon becoming aware of the pending appeal, i.e. where a party becomes aware of the process by other means than personal service, this Court Per GARBA, JCA held thus:
“I would start a consideration of the preliminary objection by saying that the learned counsel for the 1st and 2nd Respondents is right in law when he said that the service of a Court process were required by law is a fundamental issue which if not made has the legal effect of taking away the requisite judicial authority and power in a Court of law to act in a case in which the service was required. In other words, service of a Court process is fundamental
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to the assumption of jurisdiction by a Court and failure to serve where required by law renders null and void any order made against a party who should have been served. See U.B.A. V. AJILEYE (1999) 13 NWLR (633) 116 @ 125, WEMA BANK .V. ODULAJA (2000) 7 NWLR (663) 1 @ 7, TENO ENG, LTD.V. ADISA (2005) 3-4 SC, 8 @ 11. However it is also an established principle of our law that where a party who should have been served was or became aware of the process of the Court in a case by other means than personal service, the requirement of the said service is rendered unnecessary, surplusage and its absence will not affect the jurisdiction of the Court. See ACHUZIA .V. OGBOMAH (2004) ALL FWLR (277) 505 @ 523-4, AUTO IMPORT – EXPORT V. ADEBAYO (2002) 18 NWLR (299) 554, JONASON TRIANGLES .V. CM AND P. (2002) 15 NWLR (789) 176. In the present appeal learned counsel for the 1st and 2nd Respondents had not suggested the 1st and 2nd Respondents did not become aware of the appeal by any other means because they were not personally served with the Notice of Appeal. On the contrary, the learned counsel had at paragraph 1.12 on pages of the 1st and 2nd Respondent’s brief stated
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thus:- “…. But the Record of Proceedings was served on their counsel, Alley Legal Practitioners and consultants, Kaduna on 6th October, 2007.” This statement is a clear and express admission or at least an acknowledgement that the record of the present appeal was served on the learned counsel for the 1st and 2nd Respondent two (2) weeks before he filed the notice of preliminary objection. It is common knowledge now that the record of an appeal served on parties thereto and transmitted to the Court from the Lower Courts and Tribunals usually include and contain a certified copy of the Notice of Appeal filed in such Courts or Tribunals against the decision with which any of the parties was dissatisfied. There is therefore a presumption that the copy of the record appeal served on the learned counsel for the 1st and 2nd Respondents included and contained a copy of the Notice of Appeal filed by the Appellants’ against the ruling of the Lower/tribunal and in respect of which the record of appeal was compiled and served on him. Learned Counsel had not attempted to challenge the record of the appeal served on him on any ground whatsoever but particularity that it
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did not contain or include a copy of the Notice of Appeal in question. In the circumstances, the presumption that the record of appeal served on him was complete and correct accorded it by law remains unrebutted and the 1st and 2nd Respondents are bound by the record. FIBIRAH V. MINIMAH (2003) 5 SCNJ 142, VEEPEE INDUSTRIES .V. COCOA INDUSTRIES (2008) 13 NWLR (1105) 486 572, OGUNTAYO V. ADELAJA (2009) 15 NWLR (1163) 150 @ 190-1. See SALEH & ORS V MUHAMMED & ANOR (2010) LPELR-11068(CA).
The situation in this appeal is very similar to the case cited above, the fact that learned Counsel had reacted to the Appellant’s brief clearly shows that the 2nd and 3rd Respondents became aware of the appeal by other means than the personal service of the Notice of Appeal required by law. It should be noted that the essence of the requirement of service of a Court process on a party is to enable that party to know what the case is against him and so prepare for its defence. The requirement is aimed at avoiding a situation where a party would be surprised or even condemned on a Court process of which he is unaware. Where he becomes aware of the process by any
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means and even takes steps to react to it, he cannot be heard to validly challenge or even complain about the said process on the ground that it was not formally brought to his notice by being served as required by law. As long as a party appears in a case and takes adequate steps therein to fully and actively participate in the proceedings therein, the requirement of the service of notice of the said case or proceedings becomes overtaken by the conduct of the party and therefore a mere formality, the absence of which has no legal consequence on the case or jurisdiction of the Court. In the present appeal, I agree with the learned counsel for the Appellant that since the Learned Counsel for the 2nd and 3rd Respondents had taken steps to participate in the appeal by filing the 2nd and 3rd Respondents’ brief, the default in service of the Notice of Appeal becomes mere irregularity and a formality which does not affect the competence or jurisdiction of the Court to entertain the appeal.
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On the second issue challenging the record of appeal on the ground that it was transmitted beyond the time allowed, the simple answer is that the duty of transmitting
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Record is purely that of the secretary of the Tribunal and the duty does not shift like you have in normal civil proceedings where after the time allowed the Registrar of the lower Court to transmit, the duty automatically shifts on the appellant and he must do so within a number of days; and where the record gets transmitted out of time in a regular civil appeal, the appellant must seek to regularize it or it becomes incompetent.
In election petition proceedings the appellant has no duty at all; the secretary must compile and transmit the record within 10 days. The secretary of the Tribunal is a staff of the Court and any failure on his part remains the lapse and failure of the officers of the court, which cannot be visited on the Appellant; an admonition by the apex Court in the case of EDE & ANOR V MBA & ORS supra says:
“…Certainly, the error committed by the Registry was an administrative error which was irregular. But, the most relevant question one would pose here is: should this Court allow an unsuspecting litigant to suffer as a result of the mistakes/omissions occasioned by the Registry staff certainly, no! I repeat and adopt what
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Olatawura, JSC (of blessed memory) said in the case of Cooperative and Commercial Bank Plc v. Attorney General Anambra State & Anor (1992) 8 NWLR (Pt.261) 528 at p 561; that: “It will be contrary to all principles to allow litigants to suffer the mistake of the Court Registry. In other words, the Court will not visit the “sin” of the Court’s Registry, on a litigant or his counsel, unless, it was shown that the litigant and/or his counsel was a party thereto or had full knowledge of the “sin” or mistake and encouraged or condoned the said act. Therefore, on the authorities, justice, equity, fairness and good conscience, must persuade me, to hold further, that this Appeal deserves to succeed and it in fact does.” As I have given a glimpse of some of the facts relied upon by the applicants above, I am of the opinion that once a party, such as the applicants herein, has performed creditably his own portion of responsibility of what he is required by the law to fulfill, in instituting an action, he should not be made to suffer the failure, blunders, or omissions of the Court Registry. It will be inequitable to do so. By our law and practice, once a prospective
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party has properly made his claim as required by law and delivered same in the Registry, what is left to be done such as sorting out of the processes, giving them identification numbers for ease of reference; distributing such processes to the various Justices is the domestic responsibility of the Registry. The party has no more say on it except what the Court/Registry requires of him to do. Thus, it will be unconscionable and against the interest of Justice to penalize such a party for such errors, lapses, mistakes or accidental slips or omissions by administrative or clerical functions of the Registry.”
The objection touching on transmitting record out of time is misconceived too. That takes us to the ground of objection that the reliefs are not grantable. The reliefs named on the Notice of Appeal are:
a. An order allowing the appeal
b. An order setting aside the decision of the Tribunal.?
It is clear that reliefs were stated on the Notice of Appeal, and they are clear, discernable and obviously straight forward. Whether they are grantable or not can be answered from the decision of the Supreme Court in the case of KATTO V CBN (1991)
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LPELR- 1678(SC) as follows:
”While it is desirable that the exact relief sought be stated in the notice of appeal so that the Court may be guided in making its order at the conclusion of the appeal, an appeal which is valid in other respects will not be dismissed or struck out merely because the relief sought is not inserted in the notice of appeal. Whether an appeal will be dismissed or allowed or struck out or the case remitted for retrial depends in the main on the nature of the complaints projected by the grounds of appeal and the merit or demerit of the complaints. In effect, the order to be made is dictated by the outcome of the appeal, that is, whether it succeeds or fails. If I may confess, I hardly turn to the notice of appeal to verify the reliefs sought by an appellant before making an order following the success of his appeal. The order I make is that which appears to me to flow from the decision arrived at in the appeal.” Per AKPATA, J.S.C
I need not say more. The end result of the preliminary objections of the 2nd and 3rd Respondents is that they remain bereft of life, I find no merit in the preliminary objections and they are hereby dismissed.
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MAIN APPEAL
The Appellant formulated two issues for determination, the 1st Respondent adopted the two issues distilled by the Appellant while the 2nd and 3rd Respondents donated a single issue each. Upon a careful consideration of the Notice of Appeal, the Record of Appeal and the Briefs of the parties in this appeal, the Court shall adopt the issue presented by the 2nd Respondent which is very similar to the issue distilled by the 3rd Respondent for determination in this appeal, the issue donated by the 2nd Respondent states thus:
?Whether the learned Judges of the lower Tribunal were correct to have dismissed the Appellant?s Application for enlargement of time.”
The appellant in proffering arguments in support of its two issues submitted that the appellant?s complaint is fundamental because it conducted the election in issue and by the refusal to allow it file a Reply to the petition out of time; it was shut out from the petition and consequently excluded. It sought to know whether the application dismissed was synonymous to an amendment under Paragraph 14 (1) & (2) of the 1st Schedule to the Electoral Act, ?
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or in breach of Paragraph 10 (2) of the 1st Schedule of the Electoral Act. It argued that the application was brought under Paragraph 45 (1), (2), & (3) of the 1st Schedule to the Electoral Act and no more. Appellant impugned the ruling of the Tribunal for holding that Paragraph 45 is circumscribed by unrelated provisions of Paragraph 10(2), 14(1) & (2) and 16 of the 1st Schedule of the Electoral Act 2010 as amended. Learned counsel argued that no provision of the Electoral Act prohibited the grant of extension of time to its Reply but specifically forbade the Petitioner from seeking extension of time to amend his petition or Reply (Paragraph 14(2), 16(a) and 45(1). It relied on RIMI V INEC & ORS (2004) LPELR 7402 (CA) which it claimed has not been over ruled and the findings of the Tribunal were therefore strange because nothing stops a Respondent from making such an application, more so, it had filed a Reply within time though it had been withdrawn and the Tribunal having granted the application, the application to file a fresh one in issue couldn?t have been for an amendment as Paragraph 14 of the 1st Schedule deals with
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Amendments only.
On its issue two, the Appellant submitted that the Tribunal did not exercise its discretion judiciously or judicially contrary to settled case law authorities and the Tribunal failed to consider the reasons for withdrawing the initial reply filed by a counsel not authorized to do so. That the unprofessional conduct of a counsel should not be visited on the Appellant, it relied on R.LAUWERS IMPORT EXPORT V JOZEBSON INDUSTRIES CO LTD (1988) LPELR- 2934(SC) and AKINPELU V ADEGBORE & ORS (2008) LPELR 354 (SC) on not visiting the sins of counsel on the litigant to finally urge the Court to allow the appeal.
The 1st Respondent?s brief submitted that it did not oppose the application at the Tribunal in the belief that the Tribunal could enlarge time for taking of a step. He urged the Court to determine the appeal expeditiously to enable his petition proceed to hearing.
The 2nd Respondent in contesting the appeal relied on PDP V INEC & ORS (2014) LPELR- 23808(SC) and CPC V INEC (2011) 18 NWLR (Pt. 1279) 493 where the apex Court in a similar application foreclosed the grant of extension of time, like the applications
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dismissed by the tribunal in hand. He further relied on Paragraph 14 (1), (2) (a-b) of the 1st Schedule and the case of NGIGE V OBI (2006) 14 NWLR (Pt. 999) 1 barring amendments after 21 days of the time limited for filing petitions and by seeking to substitute a process for another, it amounts to an amendment, referred to the case of FRN V ADEWUNMI (2007) LPELR- 1273 (SC) 27 on the meaning of substitution. He further relied on UGWU V ARARUME(2007) 12 NWLR (Pt. 1048) 367 and OKE V MIMIKO (2014) 1 NWLR (Pt. 992) 223 where the apex Court in clear terms resolved the issue at stake. He contended that by paragraph 10(2), 14(1) and (2) of the 1st Schedule, the Tribunal couldn?t have granted the application. Arguing further, the 1st Respondent submitted that statutory provisions are not read in isolation as decided by the Court in AKPAMGBO- AKADIGBO & ORS V CHIDI & ORS (2015) LPELR-24564 (SC) and BALOGUN V SALAMI & ORS (1963) LPELR- 25407(SC).
?
On the Reply earlier filed but withdrawn, the 2nd Respondent submitted that it was valid having been filed by a legal officer in the employ of the Appellant and within time, it therefore cannot amount to
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an unprofessional conduct. He finally urged the Court to dismiss the appeal.
The 3rd Respondent on his part submitted that election matters are sui generis and different from regular civil proceedings, relied on BARRISTER PETER MADUBUEZE V COMRADE TONY NWOYE & ORS (2015) LPELR- 40448 (CA) to submit that the Rules of procedure for election petitions must be strictly observed, citing OJONG V ETA (2011) LPELR- 3986. Learned counsel argued that failure to abide by the Rules is fatal, citing AJADI V AJIBOLA 2004 16 NWLR (Pt. 898) 91; BUHARI V YUSUF (2003) 14 NWLR (Pt. 841) 446 and therefore the application refused was against the rules in election matters. He referred to the prayers on the motion paper wherein the Appellant sought to be allowed to file a comprehensive and authorized Reply to the petition brought after the time allowed for the filing of replies because it also sought to file a reply different from the earlier one withdrawn, an act which constituted an amendment. He agreed with the Tribunal in refusing the application. He relied on A. G. ANAMBRA STATE V A.G. FEDERATION (1993) LPELR-3157(SC); FRN V ADEWUNMI (2007) LPELR- 1273 (SC) on
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whenever a party seeks to substitute a process, it amounts to an amendment to say the Appellant sought to amend the process. He relied on Paragraph 14 of the 1st Schedule to submit that amendments are not allowed that would introduce new facts after the time allowed for the filing of the process, citing KHALIL V YAR?ADUA (2003) 16 NWLR (Pt. 847) 446; YUSUF V OBASANJO (2003) 16 NWLR (Pt. 847) 532; INEC V RAY (2004) 1 NWLR (Pt. 892) 92; OKUNOLA V FALEKE (2015) LPELR- 26030(CA); ODUBU V AKPOREHE (1999) LPELR- 13096; PDP V INEC (supra).
On whether the Tribunal was right to rely on paragraph 10(2) to refuse the application, the 3rd Respondent found support in the decision of the court in the case of STANLEY V AKINADE (2019) LPELR- 48052. He finally urged the Court to dismiss the appeal because the application was brought outside the time allowed.
RESOLUTION
The sole issue adopted for determination is straight forward, it seeks to know whether the Tribunal is right in dismissing the application brought by the Appellant to file a Reply outside the period allowed by the Electoral Act. It would be appropriate to resolve the issue of whether the
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application was on amendment as disputed by the parties. There was a Reply filed for the Appellant which the present counsel for Appellant withdrew and was struck out. So generally speaking, there was no Reply before the Court. However, time for filing a Reply had lapsed. The counsel that filed the Reply withdrawn and struck out is a staff of the Appellant and it was filed within the time allowed for the filing of Reply but the Appellant alleged it was unauthorized and consequently withdrawn. The withdrawal of the Reply and the making of the application to file another Reply were beyond the time allowed for the Appellant to file a reply. Having filed a reply earlier, which was withdrawn, the attempt to file a substitute amounts to an amendment, and this is so even when the Appellant chooses to use the word substitution, see FRN V ADEWUNMI (supra) where the Supreme Court said:
“Now, a substitution is the same thing as an amendment and an amendment whenever made by the Court, relates back to the original date of the document so amended.? See the cases of Col. Rotimi v. Macgregor (1974)11 S.C. 133 and The Nigerian Air Force v. James Ex-Wing Commander
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(1) (2002) 18 NWLR (Pt. 798) 295; (2002) 12 SCNJ 379.
Therefore, whether it was called fresh Reply, substitution or amendment, it will have the same effect, coming after the time allowed. Assuming the Court is wrong, then the application will translate into filing a fresh Reply and the application was brought outside the time allowed. Any attempt at filing a fresh reply after the time allowed will still not be allowed. It?s a crystallize position of law, unshakeable and unmovable.
Paragraph 10(2) of the 1st Schedule to the Electoral Act provides a second window for the filing a reply by a respondent to a petition and it states:
?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 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.?
Time is therefore limited for the filing of a reply, which is a maximum of 21 days going by above paragraph. There is also paragraph 12(1) of the 1st Schedule to the Electoral Act which limits 14 days
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from date of service of the petition. The combined effect of paragraph 10(2) and 12(1) gives dual opportunities to the Respondent at filing a reply. Undoubtedly, the maximum time allowed is 21 days. The application made in this case came in after 21 days. Appellant was served with the petition on the 3/3/2019 and had up to 10/4/2019 to file its Reply. Now, can an amendment to a Reply or fresh filing of a Reply or any step by a Respondent with regards to the filing of a reply or any step whatsoever and under whatever guise be allowed after 21 days? Paragraph 14(2) (b) provides an answer and it states thus:
?Subject to Subparagraph (2) of this paragraph, the provisions of the civil procedure Rules relating to amendments of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words ?any proceedings? in those provisions there were substituted the words ?the election petition or reply.?
(2) After the expiration of the time limited by-
(b) Paragraph 12 of the schedule for the filing the reply, no amendment shall be made-
i. alleging that the claim of the seat or
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office by the amendment shall be incorrect; or
ii. except anything which may be done under the provisions of subparagraph (2) (a) (ii) of this paragraph, effecting any substantial alteration in or addition to the admissions or the denials contained in the original reply filed, or to the facts set out in the reply.?
The Supreme Court in the case of OKE V MIMIKO (supra) categorically settled the question whether amendments can be made after the period limited by the first schedule requiring a party to file a petition or reply, it said thus:
?It offends the provision of paragraph 14(2) (a) and (b) of the First Schedule to the Electoral Act, 2010(as amended) to introduce new facts which were not available at the time of filing an election petition. And this is irrespective of the mode by which the applicant approaches the Court, whether foe extension of time to an act or for amendment to the petition. The result is the same. It must have impact on the petition.?
I also had cause to say something on the issue in the case of OKUNOLA & ANOR V FALEKE (2015)LPELR- 26030 (CA) thus:
“The filing of a Respondent’s reply is
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guided by Paragraph 12 (1) of the First Schedule to the Electoral Act, 2010 (as amended). It states thus: “The Respondent shall, within 14 days of service of the petition on him file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies in opposition to the election petition.” The said provision has received judicial interpretation by the Apex Court which dealt with similar issues of late filing of Respondent’s processes in the cases of PDP v INEC (2015) 1 NWLR (Pt. 1440) 281 and NGIGE V INEC (2015) 1 NWLR (pt. 1440) 281. Election petitions are indeed peculiar and enjoy a special status thus the tag sui generis. Time generally is of essence in the determination of election petitions and therefore timelines have been set to ensure that election petitions are determined expeditiously. Paragraph 12 (1) of the First Schedule to the Electoral Act, 2010 (as amended) provides thus: “The Respondent shall, within 14 days of service of the petition on him file in the Registry his reply, specifying in it which of the facts alleged in the election petition
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he admits and which he denies, and setting out the facts on which he relies in opposition to the election petition.” It is settled that failure to abide by timelines set in the rules and practice directions for the determination of election petitions is fatal to the party required to have taken such a step, see MRS OLABISI AYODELE SALIS & ANOR v BAREEHU OLUGBENGA ASHAFA 7 ORS (2015) LPELR 25670 (CA). I agree with the Appellants that the default goes to the root of the Tribunal’s jurisdiction and is fundamental. Jurisdictional issues can be raised at any time so Paragraph 53(2) of the 1st Schedule to the Electoral Act as amended cannot affect issues of jurisdiction which can be raised for the first time on appeal and even orally, see the case of GALADIMA v. TAMBAI (2000) 11 NWLR (PT.677) 1 where the Court held as follows: “It is trite law that the issue of jurisdiction can be taken up in the Supreme Court, or before the Court of Appeal or the High Court at any stage of the proceedings, even for the first time on appeal… An attack or question as to jurisdiction cannot be properly glossed over by any Court once it is raised by the defendant or the
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Respondent. The procedure by which such a fundamental issue is raised may not be in consonance with the stipulated rules of Court for questioning a decision of the Court, nevertheless, that will never be allowed to defeat the right to question the jurisdictional defect. To do so is unwittingly to postpone the doom’s-day.” The fact of a party taking a step cannot erode a fundamental vice, in fact, no application to file a process out of time can be allowed once the time has expired as held by the Supreme Court, see NGIGE V INEC (2015) 1 NWLR (Pt. 1440) 281. Furthermore, the Supreme Court in the case of PDP V INEC (2014) LPELR – 23808 (SC) had this to say on failure of the respondent to file brief within the time stipulated. It said thus: “It has been stated in quite a number of decisions in this Court that election petitions are sui generis as such must be conducted strictly in compliance with the rules guiding them… On the whole, I hold that the brief of the 26th Respondent filed on the 27th August, 2014 having been filed in flagrant disobedience to the paragraph 6 of the Practice Directions is incompetent and is hereby struck out”. Also, in the case of
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A.C.N v NOMIYE (2012) 7 NWLR (PT 1300) 568 at 588-589, the Court on the issue of failure to take a step within time allowed held that once time has lapsed, the Court will lack jurisdiction to consider any process from the defaulting party. The application of the 1st and 2nd Respondents that Paragraph 53(2) of the 1st Schedule to the Electoral Act be invoked is flawed. The times stipulated in the Electoral Act and practice directions are sacrosanct and must be strictly obeyed as failure to comply will render such process filed out of time incompetent and liable to be struck out. The 1st and 2nd Respondent filed their reply out of time. Having exceeded the time allowed, the 1st and 2nd Respondents’ reply is incompetent and is hereby struck out. The trial Tribunal erred in relying on the said Paragraph 53(2) to save the 1st and 2nd Respondents’ reply filed out of time. They also lacked the competence to call witnesses without pleading.”
The Appellant wanted to bring a new set of facts after 21 days limited for it to do so and the Tribunal rightly dismissed the application. The argument of the appellant that having withdrawn the earlier Reply it reserved the
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right to file another is untenable and preposterous because beyond the time limited, the Tribunal would be divested of jurisdiction to grant the application. There is no discretion to exercise when jurisdiction is lacking, the law does not allow it to do so, this is because there are strict time lines for the taking of any step in an election petition and by the use of the word shall and what it portends, extension of time is not contemplate at all, see PDP V INEC (supra) which held:
“It has been stated in quite a number of decisions in this Court that election matters are sui generis and as such must be conducted strictly in compliance with the rules guiding them. Thus by Section 285(7) of the Constitution of the Federal Republic of Nigeria,1999 (as amended) this Court shall hear appeals from the Court of Appeal arising from election matters within sixty (60) days from the date of the delivery of the judgment appealed against. In order to regulate and manage the 60 days allotted by the Constitution, the Practice Directions has prescribed time within which each party is to comply with the processes leading to the hearing of the appeal. It is thus my view
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that in the circumstance such as this, no party is allowed to default and then turn around to plead the Interpretation Act. The combined effect of Section 285 (7) of the 1999 Constitution (as amended) and paragraph 6 of the Practice Directions is that they limit the doing of any act to the period prescribed therein. Any action done outside the period prescribed is, to say the least, a nullity. The use of the word “shall’ in paragraph 6 of the Practice Directions, makes it mandatory. No party or this Court has any discretion in the matter. The 26th respondent was served on 22nd August, 2014. Its time started to run from that same date irrespective of the fact that it was served at 4:00 pm or thereabout. Accordingly it’s time for filing its brief expired on 26th August, 2014. The subsequent filing of the brief on 27th August, 2014 was done outside the time allowed by the Practice Directions. See: CPC V. INEC (2011) 18 NWLR (Pt. 1279) 493; ACN V. Nyako…” Per OKORO, J.S.C.
The paragraphs referred to above though applicable to the apex Court have very similar provisions and same in content with those applicable in the Court. This is no longer a moot point
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having received judicial attention in several decisions. It is indubitable that no step can be taken outside the prescribed times in the Electorate Act. It is now settled that election petitions are sui generis in so many respects, statutory provisions regulating the conduct of elections and resolution of disputes are strictly regulated by law and that is why a breach of such regulations have dire consequences, see OJONG V ETA(supra) that it is the total jurisprudence of election petition that is sui generis and not a part of it and therefore any procedure set out must be strictly followed and complied with.
In OSHIOMOLE V AIRHIAVBERE (2013) 7 NWLR (Pt.1353) 376 at 404 the need for parties to stick to time lines was emphasized in this manner:
“Parties are bound to strictly comply with the dictates of the enabling statutes in drafting their pleadings and presentation of the petition as inadvertence or omissions can be costly as same will not be tolerated in election proceedings. See: Obih v. Mbakwe (1984) 1 SCNL 192; Buhari v. INEC (2008) 4 NWLR (Pt. 1078) 546.”
Therefore, the Tribunal was right and couldn?t have done otherwise. The
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Appellant?s decision to withdraw the Reply earlier filed was a step not carefully considered in the light of extant laws. It was a step in the wrong direction, wrong judgment and a self-inflicted harm. The earlier the Respondent realizes that there are no special privileges for it or concessions to it as a party in the determination of election petitions arising from its conduct of National elections, the better. The Tribunal did not therefore exclude the Appellant from the petition but it excluded itself, technically, like scoring a home goal in football. Failure to comply with statutory provisions regulating election petitions are fatal because it leaves the Tribunal or Court without jurisdiction and jurisdiction is the life wire to any proceedings. Time in election litigation is an essential commodity which must be guarded jealously and utilized carefully. This is informed by the need to expeditiously determine disputes arising from elections. It does not give room for enlargement of time once the time limited for taking a step has expired. The apex Court in OKE V MIMIKO (supra) said:
?In view of the delicate nature of election matters, it
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will not overlook seemingly minor defects or irregularities as would the ordinary civil causes. The rule of the game is not stricto sensu the same. It is the enabling statutes for instance that determine the jurisdiction of any adjudicatory body as in this case whereof the Electoral act is the governing legislature that guides and directs all workings of an Election petition Tribunal in election matters placed before it. Where the workings of the Act place mandatory compliance any exercise of discretion will be without jurisdiction and therefore a nullity.?
Before ending this judgment, let me say a word on the difficult position the 1st Respondent placed himself, as a Respondent, he is under no duty to file a Respondent?s brief if he is not playing the traditional role of a Respondent to an appeal. He was in such difficulty trying to maintain a middle course of wanting to have a brief before the Court and still aligning with the Appellant. The rule is, if you are filing a Respondent?s brief then you are performing the role of a respondent or you have filed a Respondent?s notice or cross Appeal. Outside of that, it is advisable to
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just refrain from filing a Respondent?s Brief say so to the Court at the hearing. There is nothing useful in the 1st Respondent?s brief before the Court, he adopted the two issues distilled by the Appellant and then became shy to proffer arguments in support.
Flowing from the resolution of the sole issue adopted for determination, the appeal is unmeritorious and liable to be dismissed. It is hereby dismissed. The Ruling of the trial Court delivered on 20th June, and 2019 is hereby affirmed.
I make no order as to cost.
TOM SHAIBU YAKUBU, J.C.A.: I agree.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree.
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Appearances:
I.P. AnanabaFor Appellant(s)
Orji Nwafor Orizu with him E.I. Umunnakwe for the 1st Respondent.
W.A. Olajide for the 2nd Respondent.
Ademola Abimbola for the 3rd RespondentFor Respondent(s)
Appearances
I.P. AnanabaFor Appellant
AND
Orji Nwafor Orizu with him E.I. Umunnakwe for the 1st Respondent.
W.A. Olajide for the 2nd Respondent.
Ademola Abimbola for the 3rd RespondentFor Respondent
