LABOUR PARTY v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS. (2011)

LABOUR PARTY v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS.

(2011)LCN/4781(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 1st day of November, 2011

CA/L/EPT/004/2011

RATIO

RULE OF INTERPRETATION: WHETHER A COURT WOULD AVOID THE INTERPRETATION OF STATUTE THAT WOULD LEAD TO ABSURDITY

It is trite that a court would avoid the interpretation of a statute that will lead to absurdity. He cited AWOLOWO V. SHAGARI (1979) 6-9 SC 51 66, 91 -92; TOTAL NIG PLC V. AJAYI (2004) All FWLR (Pt. 218) 887 at 906 paras D-F. In interpreting statutes, a court will also adopt an interpretation that aligns with common sense. He cited NIG ARAB BANK LTD V. COMEX LTD (1999) 6 NWLR (Pt. 608 Pg 648 at Pg 669; Barnets v Jarris (1953) 1 WLR 649 at 652. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

RESPONDENT’S NOTICE: WHETHER THE APPELLATE COURT CAN USURP THE POWERS OF THE TRIAL COURT TO DETERMINE ISSUES NOT SUBMITTED TO IT FOR DETERMINATION

The point is well taken that a Respondent’s notice filed by the successful party under Order 9 rule 2 of the Court of Appeal Rule 2011 is a notice to affirm the judgment on other grounds while a Respondent’s notice of intention to vary the judgment is to be brought under Order 9 rule 1 of the Court of Appeal Rules. Needless to say Order 9 of the Court of Appeal Rules can only be activated where the issues contained in the Respondents notice had been brought to the attention of the trial court who failed to use those reasons to arrive at its judgment in favour of the Respondents. This court cannot at the Appellate level usurp the powers of the trial court to determine issues not submitted to it for determination. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

APPLICATION FOR PRE-HEARING CONFERENCE: WHETHER THE LITIGANT OR PETITIONER COULD APPLY FOR A PRE HEARING CONFERENCE NOTICE JUST AS HIS LEGAL PRACTITIONER

It is for the public good and not a private interest strictu sensu, that elections are conducted. See Imiere V. Salami & 3 Ors, (1989) 2 NEP LR 131 at 144. That a Litigant or petitioner could apply for a pre hearing conference Notice just as his legal practitioner would is reasonably suggestive that the mode of application is a fluid like exercise devoid of any specified and technical mode of application. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

ELECTION PETITION PROCEEDINGS: REASON FOR THE ELECTION PETITION BEING CONSIDERED A SUI GENERIS ADJUDICATION BY THE COURTS

DUTY OF COURT: WHETHER THE COURT IN PERFORMING ITS DUTY OF INTERPRETATION MUST AVOID GOING BEYOND THE MEANING AND INTENDMENT OF THE LEGISLATION

In Mustapha v. C.A.C. (2009) 8 N.W.L.R. (pt.1142) page 43 at 51, this court, per Omoleye, JCA stated thus: “the courts are enjoined in the discharge of their duty of interpretation to avoid going beyond the meaning and intendment of the legislation. See the cases of Horizon Fibres (Nig.) Plc v. Bacon Linen; Adekanya v. FRN; Awuse v. Odili; SCC (Nig.) Ltd. v. Elemadu”. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

JUSTICE

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

Between

LABOUR PARTYAppellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. ACTION CONGRESS OF NIGERIA
3. OLUREMI TINUBURespondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the ruling of the National Assembly and State Assembly Election Petition Tribunal sitting at Lagos (Coram Honourable Justice Maurice Eneji (Chairman), Honourable Justice Ahman Abbas (member), Honourable Justice Musa Bazzar (member) delivered on 5th September, 2011 dismissing the appellants petition for the reason that the petitioner/appellant used a letter to apply for the issuance of pre-hearing notice instead of a motion on notice.
This case was set for hearing as pre-hearing session had been concluded, when on 8th July 2011 the 2nd & 3rd respondents filed a motion to set aside the pre-hearing notice issued in this petition for being incompetent and further to dismiss this petition. The letter dated 18th May 2011 formed the basis for the application for the issuance of the pre-hearing notice by the appellant.  See page 247 of them.
On 5th September 2011, the Trial Tribunal dismissed this petition inlimine on the ground that the petitioner/appellant used a letter to apply for pre-hearing notice. It is against the said ruling that the appellant filed its notice of appeal on 20th September 2011.  The respondent also filed a Respondent’s notice dated 14th October, 2011 urging this honourable court to affirm the judgment of the lower tribunal on the grounds that the petition before it is academic and abusive. Briefs were filed in this Court and issues were joined by the parties.
The Appellant’s brief was filed on 13th October, 2011 and deemed filed on 17th October 2011.  The Appellant also filed a reply brief on 25th October 2011 in response to the 2nd & 3rd Respondent’s Notice of preliminary objection.  The 1st Respondent’s brief dated and filed on 18th October 2011 was deemed filed on 19th October 2011.  The 2nd & 3rd Respondents’ brief was filed on 24th October 2011.  The 2nd & 3rd Respondents’ filed a Notice of preliminary objection on 24th October 2011.  The 2nd & 3rd Respondents also filed a Respondent’s Notice on 19th October 2011.  Also the 2nd & 3rd Respondents filed Reply brief in respect of the Respondent’s Notice on 27th October 2011.
The 2nd and 3rd Respondents filed a notice of preliminary objection, the grounds of which are set out below:
“i. The appellant in the formulation of its issues failed to link same with any ground of appeal.
ii. The said issue does not arise from the grounds of appeal upon which the brief of argument is predicated. The issue relates to the secretary of the lower tribunal who is not mentioned at all in the grounds of appeal
iii. The said issue is also contrary to the express provisions of paragraph 18 (1) & (2) of the First Schedule to the Electoral Act 2010 (as amended).
iv. Further to (1) – (iii) supra, the appellant’s issue for determination is fundamentally and incurably defective and liable to be struck out.
v. By necessary implication and operation of law,     when defective issue(s) for determination is/are struck out, the arguments arising from such issue(s) will also be struck out.
vi. Arising from (i) – (iv) supra, the appellant’s brief and indeed its entire appeal are defective and incompetent.”
Learned Senior Counsel for 2nd and 3rd Respondents submitted that the issue for determination is not linked or tied to either of the two grounds of appeal as the Appellants counsel made no effort to indicate in the brief in respect of the said issue which of the grounds of appeal it is related to. This failure, argued Learned Senior Counsel has left a lot to conjecture and speculation and this court has no jurisdiction to give an advisory opinion based on conjesture or speculation as the court cannot help a party to conduct its case or descend into the arena.  He cited ATTORNEY GENERAL ANAMBRA V. ATTORNEY GENERAL OF FEDERATION (2005) 5 SC (Pt 1) 73; PUNCH V. EYITEME (2001) 17 NWLR pt 741 pg 228 at 225; KALU V. UZOR (2006) 8 NWLR Pt 981 pg.
Learned Senior Counsel also argued that the pith of the sole issue for determination is as to the determination of the mode of an application made to the secretary of the Tribunal. Nowhere in the entire length and breath of the two grounds of appeal and the particulars thereof is there any mention of an application to the secretary of the lower tribunal. Thus  counsel argued, there is therefore an obvious disconnect between the issue for determination and the grounds of appeal since the grounds do not challenge any decision with respect to the applications made to the secretary of the Tribunal. He cited J. C. LTD V. EZENWA (1996) 4 NWLR Pt 443 Pg 391.
Learned Senior Counsel further argued that by the provisions of paragraph 18 (1) and (18 (2) of the First Schedule to the Electoral Act, there is no anticipation that an application for prehearing conference should be made to the secretary of the Tribunal as the wordings of paragraph 18 must be given their ordinary meaning. He cited AWOLOWO V. SHAGARI (1979) 6-9 S.C. 1
Learned Senior Counsel further argued that the Electoral Act is specific on the actions or steps that are required to be directed at the secretary of the lower Tribunal and the responses expected from the said secretary. These actions are specifically listed out in paragraphs 3 (1), (2), (3), 7, 9(4)(a), 11, 12(4), 13, 20, 23(2)(3)(4), 31(2), 33(3), 34(1), 40(4), 42(3), 45(7)(8), 48(3) and 52 of the First Schedule to the electoral Act.  Also paragraph 18 of the First Schedule to the Electoral Act does not make any mention at all in the entirety of the thirteen sub paragraphs and the twenty two sub paragraphs of the secretary of the lower tribunal.  Deducible from the foregoing therefore is the fact that the petitioner’s issue for determination is not premised on any valid law.  It is indeed at variance with the law. He cited UAC v MCFOY (1962) AC 152; SKENCONSULT V. UKEY (1981) 1 S.C. 6.
In reply to the arguments above, Learned Appellant’s Counsel argued that failure by the Appellant to state in his brief that the only issue for determination is tied to Ground 1 or Ground 2 of the notice of appeal is not the same as the effect in law where the issue for determination in an appeal does not arise from both grounds of appeal.  He submitted that it is well settled that the issue formulated must relate to the grounds of appeal and that clearly in this instance, the issue formulated is directly related to the grounds of appeal.  He cited UGO V. OBIEKWE (1989) 1 NWLR pt 80 pg 566; MODUPE V. STATE (1988) 4 NWLR Pt 87 Pg 130.
Senior Counsel further argued that the application contemplated in paragraph 18(1) is an application to the secretary of the Tribunal by a letter.  He argued that this court in appeal No. CA/J/EP/HR/127/2011 ALIYU IBRAHIM GEBI V ALH GARBA DAHIRU & ORS delivered on 22 August 2011 held unequivocally that a letter to the secretary of the Tribunal suffices in making an application for issuance of pre trial notice.
In deciding this preliminary objection, I will consider only the first leg of the objection since the second leg relates to the substance of the appeal itself and it would be premature at this point to consider it.  The 1st leg of the objection is against the form of issue while the 2nd leg is against the substance.  The 2nd leg deals with the substance of the appeal itself and will be considered with the appeal.  The first leg of objection is that the issue for determination as identified by the Appellant is not linked with the grounds of appeal and this court cannot on its own without descending into the arena of conflict link the issue with the grounds of appeal.
My understanding of that argument is that in writing the brief, the Appellant’s Counsel did not indicate specifically at the end of the issue for determination which ground of appeal it relates to.  There is no doubt that this court is incompetent to consider any issue not derived from ANY ground of appeal. See PRINCE BENJAMINE ADENIYI ALADEYELU V. MILITARY ADMIN EKITI STATE (2007) 5 SCNJ 1; (2007) 14 NWLR Pt. 1055 Pg. 619. However, I cannot agree with the greatest respect to the learned senior counsel for the 2nd & 3rd respondents that the objection is worthy of serious consideration.  Indicating the specific ground from where the issue is derived is merely a matter of preference and is not a matter of compulsion to warrant any penalty where it is not done.  So long as any issue is properly derived from the grounds of appeal, it is worthy of our consideration. See UNITY BANK PLC V. EDWARD BOANRI (2008) 2 SCNJ 116; PAUL ONYIA V. STATE (2008) 2 SCNJ 373. This question was laid to rest in JFS INVESTMENT LTD V. BRAWAL LINE LTD (2010) NWLR Pt. 1225 Pg. 495 at Pg.520 and IGWE V. EZEANOCHIE (2010) NWLR Pt. 1192 Pg 61 at Pg. 78-79.  This court per Ariwoola JCA in IGWE V. EZEANOCHIE supra held that the court can on its own relate the issues to the grounds of appeal in order to do substantial Justice between the parties.  The Supreme Court went further to explain the position further in JFS V. BRAWAL when Adekeye JSC held as follows at Pg 520 of the NWLR:
“Though the rules of court do not stipulate that the ground of appeal from which an issue for determination is formulated should be indicated, counsel do so for ease of reference.  Consequently, where briefs of arguments are properly filed and an appeal is ripe for hearing, and the issues formulated in the briefs filed are not incompetent, the appellate court shall not hesitate to bend backwards to glean through the grounds of appeal and marry them with the issues for determination raised in the briefs.  This is so because briefs of argument and the issues raised therein are meant to assist the court in easily identifying the issues in controversy between the parties.  In the instant case, the 2nd and 3rd Respondents’ preliminary objection was frivolous.”
In the circumstances, the preliminary objection against the form and not the substance of the sole issue for determination is overruled as misconceived and frivolous.
Now, let us consider the substance of this appeal and thereafter the Respondent’s Notice.  Learned senior counsel for the appellant identified a sole issue for determination which is similar to the issues as couched by the 1st Respondent’s counsel and learned senior counsel for the 2nd & 3rd Respondents.  I will adopt the issue as couched. It is set out below:
“Whether an application under paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended) by a petitioner to the secretary of the tribunal for the issuance of prehearing notice as in FORM TF 007 and prehearing information sheet as in FORM TF 008 must be by way of a motion as required by paragraph 47 of the First Schedule to the Electoral Act, 2010 (as amended.)”
Learned Senior Counsel for the Appellant argued that the combined effect of paragraph 18 (1) and (2) of the First Schedule to the electoral Act, 2010 (as amended) does not envisage a motion on notice for issuance of prehearing conference notice.  Paragraph 18 (2) of the First Schedule to the Electoral act, 2010 (as amended) admits of no discretion on the part of the trial tribunal.  Upon the mere application of the petitioners, the Tribunal is bound to issue prehearing conference notice.  The application of the petitioners by way of a letter writing for issuance of prehearing conference notice is proper.  The application for issuance of prehearing conference notice is an innocuous application which can be brought by either of the petitioners or respondents.  The respondents are not prejudiced and do not suffer any disability by the issuance of prehearing conference notice by an application made by writing a letter.  The Dictionary meaning of an application is simply a formal request.  What is important is the content of the request and not the form or method.
He submitted that there is a world of difference between applications under paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended) and applications under paragraph 47 of the First Schedule to the Electoral Act 2010 (as amended.)
He submitted that applications under paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended) are made to the secretary of the Tribunal by the petitioner but under paragraph 47 of the First Schedule to the Electoral Act 2010 (as amended) the applications are made to the Tribunal.  It is these types of applications that must be by way of motion on notice so as to put the respondents on notice.  In applications under paragraph 18, there is no need to put a respondent on notice as the forms in FORM TF 007 and TF 008 are issued by the secretary of the tribunal and the respondents will not suffer an injury or prejudice if they are not put on notice.
Senior Counsel further submitted that the Tribunal refused to follow the recent decisions of the Court of Appeal which are to the effect that once an application for prehearing notice is made within time, it does not matter in what form it is made.
He cited the Court of Appeal decision in CA/EPT/ADS/HA/2/2011 MR. SIMON ISA & ANOR V. ALH SA’AD TAHIR unreported delivered on 24th August 2011; CA/E/EPT/06/2011 LAWRENCE CHIKWUNWEKE EZEUDU V. OLIBIE JOHN & ORS unreported delivered on 5th September 2011; CA/J/EP/HR/127/2011 ALIYU IBRAHIM GEBI V. ALH GARBA DAHIRU & 3 ORS unreported delivered on 22nd August 2011. Counsel submitted that we are bound by the recent decisions of this court.
Senior Counsel further argued that the previous cases of RIRUWAI V. SHEKARAU (2008) 12 NWLR Pt 1100 Pg 142 and ADO V. MEKARA (2009) 9 NWLR Pt 1147 pg 491 were decided on the 2007 practice Directions and that this court should follow the recent authorities.  Counsel argued that the application challenging the mode of applying for the prehearing notice was not made within time since the 2nd – 3rd respondents had taken steps to participate fully in the prehearing session before it raised objection and they had waived their right to object to the pre-hearing session by virtue of paragraph 53(2) of the 1st Schedule to the Electoral Act.
Learned counsel for the 1st Respondent argued that the Tribunal was right to have found the letter written to start prehearing sessions as incompetent and to have dismissed to the petition. Counsel argued that the combined effects of paragraphs 18 (1) and 47 (2) of the 1st Schedule to the Electoral Act is that the mode of initiating the prehearing session is filing a motion.  Counsel argued that since the decisions of this court are at variance with each other, then the Tribunal was free to pick and choose which decision to follow, and that the Tribunal was right to choose to follow the latest decision of this Court in SAIDU USMAN NASAMU & ORS V. MALLAM ABUBAKAR ABUBALAR & ORS (unreported) CA/S/EPT/GOV/15/2011 delivered on 23rd September 2001 which upheld the view that a letter is not within the contemplation of the law while applying for prehearing session.  He urged the court to dismiss the appeal. In reply to the Appellant’s arguments the Learned Senior Counsel for the 2nd & 3rd Respondents argued that the essence of the entirety of the appellant’s contention in setting aside the ruling of the lower court is contained in paragraph 4.21 of the brief of argument where, contrary to the law, the appellant summed up its case thus:
“4.21 in applications under paragraph 18, there is no need to put a Respondent on notice as the Form in Form TF007 and TF008 are issued by the secretary of the Tribunal.”
Senior Counsel argued that the clear provisions of paragraph 18(2) of the First Schedule to the Electoral Act shows expressly that it is the Tribunal and not the secretary that issues the prehearing information sheet.  Moreover, Senior Counsel argued that paragraph 1 of the First Schedule of the Electoral Act separately defines the Tribunal and its secretary.  The Tribunal is expressly defined as “an Election Tribunal established under this Act or the Court of Appeal.”
Learned Senior Counsel argued that S. 285(1) and S. 285 (3) of the 1999 Constitution provides for the composition of the Election Petition Tribunals set up under the 1999 constitution and that this panel should not follow the decisions of our brothers in SIMON ISA & ANOR V. ALH SA’AD TAHIR supra and EZEUDU V. OLIBIE JOHN supra because both decisions did not consider the mandatory provisions of the 1999 Constitution.
Counsel further argued that paragraph 47 (1) of the 1st schedule specifically provides that all applications to the Tribunal must be made by motion on notice supported by affidavit.  He submitted that the law is trite that the duty of the court in the interpretation of statutes is not only to apply the ordinary dictionary meaning of clear and unambiguous words but to always try at all times to actualize and give effect to the intention of the legislature since lawmaking is within the exclusive confines of the legislature and the courts, whose jurisdiction is restricted to interpretation of the laws and who are without the jurisdiction to expand the said function.  See ORAKUL RESOURCES LTD V. NCC (2007) 16 NWLR Pt. 1060 Pg 270 at Pg. 304.
In this regard, senior counsel submitted that the general provisions with regard to applications under paragraph 18(1) and (2) of the 1st Schedule to the Electoral Act is defined and circumscribed within the specific definition/requirements of applications in paragraph 47(2) of the Electoral Act.  This is because the law is clear that the express mention of one thing is the exclusion of the other.  Therefore, the express requirements for an application in paragraph 47 of the Electoral Act exclude any definition not stated in the Act.
Counsel cited the new decided case of SAIDU USMAN NASAMU & ORS V. MALLAM ABUBAKAR & ORS (unreported) CA/L/EPT/GOV/05 to support the view that the application envisaged in paragraph 18(1) of the 1st Schedule is by motion on notice and cannot be by letter.
Senior Counsel also argued that the Supreme Court is quite clear on the point to the effect that where there are conflicting judgments of courts of equal jurisdiction over the subject matter in dispute the rule is that the decision that is later in time operates as a bar and it represents the correct position of the law.  See MKEDEM V. UDO (2000) 9 NWLR Pt. 673 Pg. 631 at Pg. 644 – 645 and NWANGWU V UKACHUKWU (2000) 6 NWLR Pt. 622 Pg. 674 at Pg. 695.
Senior Cousnel submitted in conclusion that there cannot be a waiver of the jurisdictional issue relating to prehearing applications.  He cited ADESOLA ABIDOYE (1999) 10-12 SC pt. 109 pg 122.
I must say that the authorities available from this court both reported and unreported are conflicting and confusing.
On the one hand, some authorities are of the view that prehearing sessions must be activated by motion on notice while on the other hand some are of the view that a mere letter suffices to activate the prehearing procedure.
The lower Tribunal held as follows on this issue:
“Therefore, having regard to the interpretation given by the Court of Appeal in the case of RIRUAWAL V. SHEKARAU (supra), to paragraph 6 (1) of the Practice Directions, 2007, which are in pari materia with the provisions of paragraph 47 (2) of the First Schedule to the Electoral Act, 2010, (as amended,) I find and hold very firmly, that the mode for an application for issuance of pre-hearing notice, ought to be by a motion on notice to the Tribunal, and not by way of a letter to the secretary of the Tribunal.  The Petitioner’s letter (Exhibit AAA), to the secretary of this Tribunal, for issuance of prehearing notice as in FORM TF007, is clearly incompetent and fatal to the hearing of his petition.”
The narrow issue identified for determination by appellant’s counsel and adopted by the Respondents and the court turns on the interpretation of paragraph 18(1) (2) and (3) vis a vis paragraph 47 of the 1st Schedule to the Electoral Act.  Some give the provisions a liberal interpretation while others give it a narrow interpretation.  Paragraph 18(1) (2) & (3) of the First Schedule to the electoral Act 2010 as amended states as follows:
“18(1) Within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply whichever is the case, the petitioner shall apply for the issuance of prehearing notice as in Form TF 007
(2) Upon application by a petitioner under sub-paragraph (1) of this paragraph, the tribunal or court shall issue to the parties or their legal practitioner (if any) a prehearing conference notice as in Form TF 007 accompanied by a prehearing information sheet as in Form TF 008 for-
a) the disposal of all matters which can be dealt with on interlocutory application;
b) giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions;
c) giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need for the expeditious disposal of the petition; and
d) Fixing clear dates for hearing of the petition.
(3) The respondent may bring the application in accordance with subparagraph (1) where the petitioner fails to do so, or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition (under lining mine)
(4) Where the petitioner and the respondent fail to bring an application under this paragraph, the     tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.”
In Paragraph 18 (3) the Respondent could bring the application in accordance with subparagraph 1 where the petitioner fails to do so.  There is a comma at that point.  Then the paragraph continues with OR by motion to be served on the petitioner etc.  This clearly shows that a motion is not contemplated in the first part to apply for prehearing but in the alternative OR a motion is needed to activate the process of dismissing the petition.  The word or used in paragraph 18 (3) is ordinarily disjunctive.  See VICTOR ELDOMA-EGBA V. NNAEMEKA C. CHUKWUOGOR (2004) 2 SCNJ 117.  This clearly shows that activating the process by a motion is an alternative to activating a first process by less formal means.
I am of the view that the above provisions accentuate the mandatory need to apply for a prehearing session rather than the mandatory form of the application.  Any method of application in my view is acceptable. The application may be by letter, my motion ex parte or on notice.  The paragraph as lengthy and copious as it is, is not explicit on the method of the application or the particular recipient of the application.
However, paragraph 47 of the 1st Schedule makes elaborate provisions for the format of applications made to the Tribunal or the court.  Paragraph 47 of the 1st Schedule states as follows:
“47 (1) No motion shall be moved and all motions shall come up at the prehearing session except in extreme circumstances with leave of Tribunal or court.
(2) Where by these Rules any application is authorised to be made to the Tribunal or Court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the respondent.
(3) Every such application shall be accompanied by a written address in support of the reliefs sought.” (Underlining mine)
This contrasts vividly with paragraphs 18(1) and 18(3).  It is clear that the lawmakers were indifferent to the mode of bringing the application by either the petitioner or respondent under paragraph 18(1) but were particular about the mode employed by the respondent for applying to dismiss the petition which was specifically stated to be by motion on notice in paragraph 18 (3) Paragraph 47 (2) is the relevant provision for consideration.  I have observed earlier that paragraph 8 (4) does not specifically indicate that it should be made to the Tribunal.  However, paragraph 47 (2) states that “where any application is to be made to the Tribunal or court …” this to me indicates that some applications may not be made to the Tribunal.  Thus the applications specifically stipulated to be made to the Tribunal or ordered by the Tribunal are those within the contemplation of paragraph 47.
In BADAMOSI AYUBA V. INEC CA/EP/HR/15/20009 of 14th May 2009 one of the cases decided on the 2007 Electoral Act, the motion for prehearing was refused because it was filed out of time.  In RIRUWAI V. SHEKARAU (2008) 12 NWLR Pt. 110 Pg. 142 at 149 even though the petitioner had filed the letter for prehearing out of time, this court held that the Tribunal was right to have dismissed the petition and also opined that an application must be by motion and where the application is out of time then it must be dismissed along with the petition. Those are the two cases on the other side of the divide. Suffice it to say that the moving force behind those cases was the fact that the prehearing process was initiated out of time
The issue of prehearing is one of jurisdiction. The Tribunal lacks the jurisdiction to go into prehearing session and to trial without proper prehearing application made within time.  See OKEREKE V. YA’ARDUA (2008) 12 NWLR Pt. 1100 Pg 95 at Pg 120-121. Thus the jurisdictional issue of prehearing cannot be waived by either party.  It goes to the root of the authority of the court to assume to try the petition See ADESOLA V. ABIDOYE supra.  The argument of learned appellant’s counsel that the respondents had waived their rights to raise the issue is with the greatest respect misconceived.  Be that as it may, I wish to reiterate that the application for prehearing notice must be made before the commencement of prehearing session.  It is mandatory and the petitioner need not seek leave to do so by way of motion on notice.
The dichotomy sought to be made by learned senior counsel for the 2nd and 3rd Respondents to the effect that the duties of the secretary to the Tribunal are different from that of the Tribunal is in my view of no moment.  There is attempt at vesting on the secretary an authority ultra vires the said secretary of the Tribunal if a mandatory application in simple form by way of letter is written to the Tribunal through the secretary.
In the normal course of administration of Justice in our courts, counsel often communicates to the Judges or Justices. This is never done directly but through the Registrars of courts.  Any communication or application to the Tribunal which is not by formal motion on notice or ex parte must perforce be through the secretary of the Tribunal.  I have considered the argument made by learned senior counsel for the 2nd – 3rd Respondents regarding the provisions of the 1999 constitution which gives the Tribunal exclusive powers of original jurisdiction in Election Petition matters and the fact that such powers are exercised through orders etc which have binding force when made.  However, the argument that issuance of prehearing forms must be through the instrumentality of court orders is skating on thin ice indeed.  It is quite obvious that the simple and clear provisions of paragraph 18 (2) to the effect that Form TF 007 and Form TF 008 shall be issued by the Tribunal or court does not detract from the informality of the application to be made by the petitioner.  As opined earlier, the formality arises in the circumstances envisaged in the latter part of paragraph 18(3).
I have always held the liberal view in election matters, especially at this point when our democracy is still in its infancy.  It would not argur well to sacrifice the aspirations of the voting public for a just determination of election petitions on the altar of technical Justice.  Elections and petitions arising from them are emotional issues both to the candidates themselves and the public.  Any interpretation that would shut out a litigant peremptorily from the seat of judgment should be avoided.  We are all scientists experimenting in the democratic laboratory.  We succeed in fits and starts.  The Electoral Act changes at every election with new sets of rules for the politicians, the public and the lawyers prosecuting election petitions in our courts.  For this experiment to succeed and for this country to perfect a formula that would stand the test of time, everyone involved in the process must be elastic in adjusting to the vagaries of circumstances.  Rigidity that would result in the failure of the experiment would not augur well for all stake holders. There is no doubt that paragraph 18 was intended by the legislature to ensure prompt trial of election petitions and to punish swiftly  any petitioner who is indolent in moving the wheels of Justice to a speedy trial of his petition. Any petitioner who files a letter within 7 days under paragraph 18 (1) has clearly shown his diligence in pursuing the petition.  It would be wrong in my humble view to shut such a petitioner out.  After all, equity looks at the substance not the form. I am reinforced in this view by the opinion of the Supreme Court in OMOJAHE V. UMORU (1999) 5 SCNJ Pg. 280 at 287 where the Apex court held that statutes are construed to promote the general purpose of the legislature.  Judges ought not to go by the letter of the statutes but also by the spirit of the enactment.  The purpose of the enactment was to ensure that the Petitioner activates the prehearing session timeously and within the time stipulated by law.  This was done in this case.
Moreover, I hold myself bound by the decision of the full court of this court made up of five Justices given in Appeal CA/J/EP/HR/127/2011 ALH GEBI V. ALH GARBA DAHIRU delivered on 22nd August 2011.  I entirely agree with the reasoning of my learned brother who read the lead judgment Ibrahim Mohammed Saulawa JCA and indeed the incisive reasoning and conclusions of my other brothers on that panel to the effect that a letter suffices to move the prehearing session.
I strongly believe and have always held fast to the view that other Justices are bound by the decision of a full panel of this court unless that decision conflicts with a decision of the Supreme Court.  There must be certainty in the law.  The election petition Tribunals must be certain of which law to administer.  This court must protect is integrity.  It cannot afford to blow hot and cold.  We are the last bus stop in the majority of election matters in this country.  I reiterate again the view that where a full panel of this court has taken a unanimous view on a point of law, by the doctrine of stare decisis, the other Justice are bound to follow.  At best where a Justice feels strongly to the contrary, that contrary view may be expressed abundantly to aid the development of the law.  However, that view cannot usurp the position taken by the full court.  As far back as USMAN V. UMARU (1992) 7 NWLR Pt. 254 Pg. 377 at 399 Ogundare JSC was emphatic on the circumstances when this court can depart from decision of the full.
That is only where there is contrary view from the Supreme Court or where a special panel is constituted by the President of the Court of Appeal to review that decision.  As Justices of this Court, we must maintain the integrity of our Court and the judicial system.  No one else would do so for us.  I hold myself bound by the majority views of my peers to the effect that a letter to activate the prehearing session is proper. In the circumstances the sole issue for determination by the appellant is resolved in favour of the appellant.
The 2nd – 3rd respondents on 19th October 2011 filed a Respondent’s Notice that the decision should be affirmed on other grounds than those relied on by the Tribunal.  The grounds for the notice are set forth below:
“i. The petition does not contain a prayer for the     nullification of the 3rd respondent’s election and return as the duly elected senator to represent the Lagos Central Senatorial District.
ii. Nullification of a prior election is a condition precedent to the grant of an order for a subsequent fresh/re-run election.
iii. Arising from i and ii supra, the petition failed to satisfy a condition precedent.
iv. The court cannot grant a party a relief not sought.”
The learned senior counsel for the 2nd-3rd respondents submitted two issues for determination in respect of the Respondent’s Notice.  They are stated below:
“1. Whether the petition before the lower tribunal is/was not incompetent and academic in the absence of a prayer for the nullification of the 3rd respondent’s election, thus failing to comply with a condition precedent which divests the lower tribunal of jurisdiction to entertain the petition and making same liable for dismissal? (Ground 1 in respondents’ Notice)
2. Whether the petition before the lower Tribunal is/was not abusive from inception in view of the     earlier filed at the Federal High Court?     (Ground 2 in the respondents’ notice)”
The contention of the 2nd and 3rd Respondents herein is that the appellant’s petition did not satisfy the condition precedent and/or basis that would entitle it to the reliefs sought. Learned senior counsel submitted that these reliefs as prayed, particularly the ultimate relief 4 cannot be countenanced and/or granted since the appellant as petitioner failed to pray for a nullification of the elections already held for the Lagos Central Senatorial District on the 9th April 2011.  He further argued that the provisions of section 140 of the Electoral Act, 2010 (as amended), which gives the lower Tribunal the power to nullify an election and particularly, section 140(2) empowers the tribunal to order a fresh election only where it has nullified an earlier election.  Paragraph 4 (3) (a) of the First Schedule to the electoral Act, 2010 (as amended) also envisages that the appellant, in a petition of the nature before the lower tribunal must pray for an order of nullification
Senior counsel referred to the cases of Ige v. Oluloyo (1984) 1 SCNLR Pg 158; LAWAL V. OKE (2007) 7 NWLR Pt 711 Pg 88 at 116; IAL 361 INC V. MOBIL OIL NIG PLC & ANOR (1999) 5 NWLR Pt. 601 Pg 1 ATOLAGBE V. AWURI (1997) 9 NWLR Pt. 522 Pg 536 at 566; NIGERCARE DEV. CO. LTD V.  A.S.W.B. (2008) 9 NWLR Pt. 1093 Pg 498 at 515-516; GAMBARI V. GAMBARI (1990) 5 NWLR Pt. 152 Pg 572 at 588; WESTERN STEEL WORK LTD V. IRON & WORK UNION OF NIG (1986) 3 NWLR Pt. 30 Pg 617 at 627; ADEOGUN V. FASHOGBON (2008(17 NWLR Pt. 1115 Pg 149; ABDULRAHEEM V. OLUFEAGBA (2007) ALL FWLR Pt. 360 Pg 1502 at 1529.
Learned senior counsel submitted that the only logical inference that can be made out of the combined reading of section 140 (2) of the Electoral Act, 2010 (as amended) and paragraph 4 (3) (a) of the First Schedule to the Electoral Act is that a prayer of nullification is a condition precedent to a prayer for fresh election. Any other interpretation would lead to confusion and anarchy. It is trite that a court would avoid the interpretation of a statute that will lead to absurdity.  He cited AWOLOWO V. SHAGARI (1979) 6-9 SC 51 66, 91 -92; TOTAL NIG PLC V. AJAYI (2004) All FWLR (Pt. 218) 887 at 906 paras D-F. In interpreting statutes, a court will also adopt an interpretation that aligns with common sense. He cited NIG ARAB BANK LTD V. COMEX LTD (1999) 6 NWLR (Pt. 608 Pg 648 at Pg 669; Barnets v Jarris (1953) 1 WLR 649 at 652.
Senior counsel posited that this court cannot grant a relief not prayed for.  He cited the following cases: FAAN v Greenstone Ltd (2009) 10 NWLR Pt. 1150 Pg 624 at 643; MUSTAPHA V. BULAMA (1999) 3 NWLR Pt. 595 Pg 376 at 384-385.
He also referred to the cases of BUHARI V. INEC (supra) at 526 E-G; HALI V. ATIKU (1999) 5 NWLR pt 602 pg 186; TRADE BANK PLC V. DELE MORENIKEJI NIG LTD (2005) 6 NWLR (921) 309 at 327 paras E-F; 328 paras B-C; OKOLO V. DAKOLO (2006) 14 NWLR (pt. 1000) 433 at 434 and A.G ABIA V. A.G. FEDERATION (2006) 16 NWLR (pt. 1005) 265 at 388-389; ETAJAJA & 2 ORS V. DOLMETSCH PHARMACY (2007) 6 SC (Pt. 1) 11.)
Learned senior counsel concluded that in the absence of a condition precedent all the reliefs contained in the petition are without foundation and must fail as you cannot put something on nothing.  He cited SKENCONSULT V. UKEY (1981) 1 SC 6; ROSEEK V. ACB (1993) NWLR pt 312 pg 382; ODUA INVESTMENT V. TALABI (1997) 10 NWLR  pt 523 pg 1; PLATEAU V. A. G. FEDERATION (2006) 3 NWLR pt. 967 pg 346 at 419 and ODEDO V. INEC (2008) 7 SC 25 at 57.
The 2nd ground of the Respondent’s notice is to the effect that the petition is an abuse of court process.  CHIEF VICTOR UMEH MAURICE IWU & ORS (2008) 8 NWLR Pt 1089 Pg 225 the Supreme Court at page 243 at paras B-G  ONYEABUCHI  V. INEC (2002) 8 NWLR Pt. 769 Pg 415 At 42; ARUBO V. AIYELELRU (1993) 3 NWLR 280 Pg 131.
Counsel submitted that the main consideration in determining whether or not an abuse of judicial process has occurred is the examination of the first process, vis-Ã -vis the second one, to see whether they are aimed at achieving the same purpose.  See AGWASIM V. OGICHIE (2004) 10 NWLR Pt 882 Pg 613.  The attention of this honourable court was drawn to FHC/ABJ/CS/418/2011 filed by the petitioner at the Federal High Court Abuja and this petition seeking to achieve the same end.  In this instance, appellant’s petition constitutes a gross abuse of the judicial process.
In response to the Respondent’s Notice, learned appellant’s counsel contended that the respondent cannot come by way of Respondents Notice where he intends to (a) dispute the jurisdiction of the court (b) contest the competence of the entire proceedings (c) maintain the absence of a fundamental pre-requisite.  The two grounds of the Notice cannot be maintained under the provision of the Electoral Act 2010 or the Federal High Court Rules 2009.  Senior counsel cited CHIEF WILLIAMS V. DAILY TIMES OF NIGERIA LTD (1990) 1 NWLR (pt. 124) 1; OGUNBADEJO V. OWOYEMI (1993) 1 NWLR (pt. 271) 517; GALADIMA V. TAMBAI (1994) 8 NWLR (pt. 365) 747.
He further submitted that by virtue of paragraph 53 (2) of the First Schedule to the Electoral Act, 2010, no demurrer proceedings are allowed by the Electoral Act and since no jurisdictional point of law was raised in any of the 2 grounds they can wait to be taken at the end of the case at the Tribunal.
Counsel further argued that before an application to set aside an election petition is allowed it must be made within a reasonable time when the party doing so has not taken fresh steps in the proceedings after knowledge of the defect. Senior counsel argued that having filed their reply to the petition and a reply to the fresh issues raised by the 2nd and 3rd respondents on 17th May 2011 issues have been joined on this petition.  H cited SAUDE V. ABDULLAHI (91989) NWLR Pt. 116 Pg 387.
On the substance of the Respondent’s Notice itself, senior counsel argued that there is no prayer for nullification in the petition because section 138 (1) (b) (c) and (d) of the Electoral Act, 2010 (as amended) creates the grounds for questioning an Election and section 140 of the electoral Act, 2010 (as amended) prescribes the reliefs that can be granted by an Election Tribunal.
He submitted that a petitioner, who did not participate in an election, can only ask the tribunal to order a fresh election and not to nullify an election he did not participate in.
In paragraphs 2. 3 – 2.8 of the appellants’ reply brief particularly paragraph 2.6, the appellant’s counsel had urged this court to ignore the issues raised in the Respondent’s Notice since the lower Tribunal did not consider them.  He urged this court to strike out the Respondent’s Notice as diversionary, lacking in substance and aimed at avoiding the hearing of the petition.
Senior Counsel for the 2nd – 3rd Respondent in the reply brief in respect of the Respondent’s Notice filed on 27th October 2011 argued that a Respondent’s Notice at this stage is proper.  Counsel submitted that an order for variation of a judgment is different from affirming the judgment on other grounds.  Learned Senior Counsel argued that a respondent who was successful at the lower court can apply like the 2nd and 3rd Respondents herein to affirm the decision in its favour on other grounds.  Put differently, the respondents herein do not seek a variation of the order of the lower court.  The respondents agree with the dismissal of the petition but only pray that the dismissal be also affirmed on other grounds.  In the light of the foregoing submissions, the arguments of the appellant pale into insignificance and the cases cited are also distinguishable and in fact dissimilar from the facts of this case.  He cited ADEGOKE MOTORS V. ADESANYA (1989) 3 NWLR (Pt. 109) 205.)
Let me first of all settle the issue of the propriety of a Respondent’s Notice at this point in time in the litigation journey of the parties.  This would clear the dust of conflict and allow us to see better how to proceed in respect of the arguments raised in respect of and replies to the Respondent’s Notice.
I have made a keen perusal of the records of proceedings at the Tribunal.  Let us take the events seriatim.  (1) The petition was filed on 28th April 2011, (2) the 1st Respondent reply to the petition was filed on 24th May 2011, (3) Notice of preliminary objection to the petition and the 2nd and 3rd Respondents’ reply to the petition was filed on 13th May 2011 (4) the Petitioner’s reply to the 1st Respondent reply was filed on 22nd June 2011, while the Petitioner’s reply to the 2nd and 3rd Respondents’ reply was filed on 18th May 2011 (5) Application for issuance of prehearing notice was filed on 17th May 2011. (6)The motion by the 2nd – 3rd Respondents to dismiss the petition for being fundamentally defective was filed on 24th May 2011 (7) motion by the 2nd and 3rd Respondents to set aside the prehearing notice was filed on 8th July 2011.  (8)  Ruling was delivered by the Tribunal on 5th September 2011.
The record of proceedings on the 8th of August 2011 shows that Chief Olanipakun SAN moved the motion filed on 8th July 2011 praying the Tribunal to set aside the purportedly defective pre-hearing notice issued and consequentially dismiss the petition. It is on page 264 – 270 of the Record.  The parties argued only the motion filed on 8th July 2011 and the ruling of the Tribunal appealed against shows that clearly in the 2nd paragraph of page 277 of the Record.
At page 291 of the record, the Tribunal in holding that the Respondents can reside from their earlier position of apparently participating in the prehearing session referred to the preliminary objection filed on 13th May 2011 by the 2nd and 3rd Respondents along with their reply to the petition.  That was by way of a passing reference to the issues contained in the notice of preliminary objection which the 2nd and 3rd Respondent have now raised by way of a Respondent’s Notice on appeal.  Also at page 292 of the record, the learned Tribunal expressed this view:
“From the above decision, it settled beyond any argument, that the present respondents/objectors can take a contrary position to the prehearing session, and can take their preliminary objection to the prehearing and petition, at any time during the trial of the petition.”
The above shows clearly that even though the Tribunal was aware of the preliminary objection to the petition, that was not the motion before it, hence the view that the Respondents were still at liberty to argue their preliminary objection at any time during the trial of the petition.
The Tribunal in the ruling appealed against highlighted in extensio all the application or motions that had been moved by the parties and when they were moved.  The Tribunal had considered a motion on notice filed on 22nd June 2001 by the petitioner for leave to file two additional witness statements and to call two additional witnesses at the presentation of the petitioner’s case.  The 1st Respondent’s counsel had moved his preliminary objection against the petitioner’s motion to file list of additional witnesses.  Those were the pending rulings when the motion for dismissal of the petitioner’s pre-hearing notice on grounds of incompetence was taken by the Tribunal and the arguments of the 2nd and 3rd Respondents were upheld and the petition dismissed.
Thus, there is no doubt that the issues raised in the Respondent’s notice were issues raised by the 2nd and 3rd Respondents in paragraphs 10-16 of the grounds of objection  raised and filed along with the petition on 13th May 2011.  That preliminary objection was not raised before the Tribunal. It was Uwaifo JSC who opined in BOB-MANUEL V. BRIGGS (2003) 5 NWLR (Part 813) page 323 at page 339 -340 as follows:
“It is said that the traditional role of a Respondent’s Notice is to seek to affirm the judgment appealed against on other grounds than may have been given in the judgment:  See Lagos City Council v Ajayi (1970) 1 All NLR 291 at 294.  The essential position of a Respondent who files a Respondent’s Notice is that the judgment is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the Judgment.  That can be seen in the observation of Olatawura, JSC at P. 31 of American Cyanamid case thus:
‘In my view invocation of Order 3 rule 14 (2) postulates that the judgment is correct but the reasons for the judgment are based on wrong premise when there is enough evidence on record which can sustain the judgment on other grounds other (sic) than those relied upon by the trial court.  The Respondent’s Notice postulates the correctness of the judgment notwithstanding the grounds of appeal by the appellant to set it aside.'”
To put in as succinctly as Uwaifo JSC in the later part of that judgment on page 340 “nothing was more appropriate than the Respondent’s notice in question in the circumstances it was sought to defend the judgment in the present case.”  Thus in my humble view, a Respondent’s notice brings to the attention of the Appellate court, factual or legal reasons apart from the facts and law which the trial court relied on to arrive at its ratio decidendi and to convince the appellate court that these reasons hitherto brought to the attention of the trial court but not considered can as well be used by the appellate court to affirm the judgment of the trial court which the Respondent seeks to defend. The 2nd and 3rd Respondents counsel went to great lengths to explain and distinguish the cases of WILLIAMS V. DAILY TIMES (1991) NWLR (Part 124) page 1 and OGUNBANJO V. OWOYEMI (1993) 1 NWLR (Part 271) page 517 cited by learned senior counsel for the Appellant from the facts of this case.  The point is well taken that a Respondent’s notice filed by the successful party under Order 9 rule 2 of the Court of Appeal Rulers 2011 is a notice to affirm the judgment on other grounds while a Respondent’s notice of intention to vary the judgment is to be brought under Order 9 rule 1 of the Court of Appeal Rules.  Needless to say Order 9 of the Court of Appeal Rules can only be activated where the issues contained in the Respondents notice had been brought to the attention of the trial court who failed to use those reasons to arrive at its judgment in favour of the Respondents.  This court cannot at the Appellate level usurp the powers of the trial court to determine issues not submitted to it for determination.  No Respondent can use the Respondent’s notice to make a case at the Appellate court that it did not make at the trial court.  OSAYANDE UHUMWANGHO V. F. I. OKOGIE & ANOR (1989) 12 SCNJ 84, (1989) 5 NWLR Pt. 122 Pg 471; NABISCO INC. V. ALLIED BUISCUITS COMP LTD (1998) 7 SCNJ 235, 1998 10 NWLR Pt. 568 Pg 16.
In the circumstances, this court would not enter into consideration of the issues raised by the Respondent’s notice.  They are completely irrelevant to this appeal and the notice itself adjudged misconceived and hereby struck out.
This court having resolved the sole issue in the appeal in favour of the Appellant, the appeal succeeds. The petition is remitted back to the Tribunal for adjudication. The petition shall be heard by a fresh panel duly constituted by the President of the Court of Appeal.

RITA NOSAKHARE PEMU, J.C.A.: I have had the preview of the Judgment just delivered by my learned brother, H.M. OGUNWUMIJU J.C.A and I fully adopt his reasoning and conclusions as mine.
Perhaps it is desirable that I chip in my humble contribution by way of emphasis to the sole issue for determination of the Appellant.
This issue has been rearing its head as a recurring decimal and indeed it has consistently stuck out as a sole thumb since the wielding of the Provisions of Paragraph 18(1) by the Courts of the 1st Schedule to the Electoral Act 2010 (as amended).
Learned counsel for the Appellant Chief Chukwuma Ekomaru (SAN) had in his sole issue for determination, formulated and indeed queried whether an application under Paragraph 18 of the First Schedule to the Electoral Act 2010 (as amended) by a petition to the Secretary of the Tribunal for the issuance of pre-hearing notice as in FORM TF 007 and pre-hearing information sheet as in FORM TF 008 must be by way of a motion as required by Paragraph 47 of the First Schedule to the Electoral Act, 2010 (as amended).
Paragraph 47 of the First Schedule to the Electoral Act 2010 (as amended) has this to say
“No motion shall be moved and all motion shall come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court”
Paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended) has this in its provisions
“Within 7 days after the filing and service of the Petitioners’ reply on the Respondent or 7 days after the filing and service of the Respondents’ reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in FROM TF 007.”
Learned counsel for the 1st Respondent had in Paragraph 3.3 of his Brief of Argument which was deemed filed on the 19th of October 2011, reproduced Paragraph 47(2) of the First Schedule to the Electoral Act 2010 which has this to say
“Where by these Rules any application is authorized to be made to the Tribunal or Court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the Respondent.”
Now, by sheer common sense and prudence, it is my view that the provisions of Paragraph 47(2), flow from Section 47, and this relates to ALL MOTIONS, where such processes must come by motion.
But the provisions of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended) where the term “the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007”, is unique on its own.
This ac presupposes an initiating process by way of a mere application and not an application to the Judge Stricitu Sensu.  It postulates an application to the Registry of the Tribunal, who now puts in motion the issuance of pre-hearing notice as in Form TF 007.  It is purely an ADMINISTRATIVE ACT.
There has been hue and cry about the provisions of Paragraph 18(1) and 47 and indeed paragraph 47(2) of the First Schedule to the Electoral Act (as amended).
Putting in place Election Petition Tribunals, is in the contemplation of the Constitution a machinery that can quickly dispense Justice at the shortest possible time.  Election Petition Tribunals are SUI GENESIS.  They have their own idiosyncratic features, which is geared towards a quick dispensation of Justice without any undue heed to technicalities.
If the drafters of Electoral Act 2010 (as amended) intended that the “application” referred to in Paragraph 18(1) of the First Schedule, be by MOTION, they would have specifically and expressly and patently said so.  But that provision is silent on the issue.  It is therefore the function of the Court to give it a meaning that would portend the doing of substantial Justice to all the parties before it, and indeed for the quick dispensation of election petitions before it, for which the Tribunals were set up for.
Indeed Paragraph 18(2) has this to say
“Upon application by a Petitioner under sub-paragraph (1) of this paragraph, the Tribunal or Court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as Form TF 008 for …………..”
Again, this subsection talks about the term “upon application”.  It did not say anything about MOTION.
Just as sub-paragraph 47(2) flows from paragraph 47 of the First Schedule to the Electoral Act 2010 (as amended), ipso facto, the provisions of Paragraph 18(2) flow from Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended).
Learned counsel for the 2nd and 3rd Respondents had alluded to the fact that Paragraph 18 of the 1st Schedule to the Electoral Act mandates for the making of an application by motion, and that pre-hearing is jurisdictional (citing OKEREKE VS YAR’ADUA (2008) 12 NWLR (Pt. 1100) 95 @ 120-121.  He argues that jurisdiction is a threshold fundamental and extrinsic to adjudication.
With respect, I do not share this view.  Indeed his entire argument on this issue constitutes much ado about nothing.
An Election Petition Tribunal constitutes the Tribunal Chairman, its members, and indeed the secretariat which includes the Secretary of the Tribunal e.t.c, and these all work together to bring out the complexion of the Tribunal.
Whether an application for pre-hearing is made to the Tribunal by letter or by motion is of no moment, but my view is that a letter suffices for purposes for interpretation of the word the application.
A letter simpliciter indeed suffices.  It is unharmful and indeed very convenient.  If it had to be by motion, it has to be moved and the Tribunal would be inundated with a litany of motions just for the issuance of pre-hearing notice as in Form TF 007.  This would defeat the very intendment of the Legislature that Election Tribunal matters be that of a “quick short work”.  Moreso the 2nd and 3rd Respondents participated in the Preliminary session in this case.  This constitutes a clear waiver.
Perhaps, in stretching my view, I have recourse to the Practice Direction of the Supreme Court of England.  By Order 3.2.1 of the White Book (The Civil Procedure Rules and Practice Directions Vol. 1 2005) it refers to “Court officers’ power to refer to a Judge.”  Ipso facto, the Secretary to an Election Petition Tribunal is akin and is indeed a “Court Officer” for purposes of hearing of Election petition.
By Order 3.2 of these Rules, it has this to say
“where a step is to be taken by a Court Officer-
the Court Officer may consult a Judge before taking that step……………..”
In paragraph 3.2.1, it states that the effect of the Rule is that the term “Court Officer” means a member of the Court Staff (Rule 2.3(1)).  Many steps taken by Court Officers concern the filing of documents, the issue of claim form, and the entry of default Judgments.
Notably is that the letter under reference in this matter was addressed to the Secretary of the Tribunal (See pages 247-248 of the Record of Appeal) and signed by Chief Chukwuma Ekomaru (SAN), counsel for the Practitioner.
I dare say that the need for “application” in Paragraph 18(1) connotes nothing but a “PRACTICE DIRECTION” and not a motion.  It has to do with the procedural tenets of the Tribunal and has nothing to do with the substance of the petition.
The result is that this issue must necessarily be in the negative, as I find the submission of learned counsel for the two sets of Respondents to be a total misconception. This issue is resolved in favour of the Appellant.
The Tribunal was wrong to have, on this innocuous basis dismissed the petition.
The Provisions of Paragraph 53(1) of the First Schedule to the Election Act 2010 (as amended) postulates that the non-compliance with any of the provisions of this schedule or rule or practice shall not, by any stretch of imagination, render any proceeding void, unless the lower Tribunal or Court deem fit.
I also overrule the Preliminary Objection as being misconceived.  The Respondents notice is misconceived and same is hereby struck out.  Case is remitted back to the Tribunal to enable parties conclude the pre hearing session.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: Having read before now the draft of the lead sagacious Judgment just rendered by my Lord H. M. Ogunwumiju, I dare say that I adopt in toto the reasoning and the conclusion meticulously and eruditely arrived thereat in allowing the appeal as the decision to foreclose the Appellant as Petitioner at the trial Tribunal was in my view peremptory, abrupt and a product of usurpative judicial legislation occasioning in Justice in the circumstance.
For the industry, research and in-depth and brilliant submissions brought into the argument of this appeal, by the vehemently opposing parties and the divided opinion of the courts of recent, I shall take the liberty to add my thoughts in extensio in support and buttress of the lead judgment which is nonetheless robust.
The appeal is sequel to the decision of the National Assembly and Legislative House Election Petitions Tribunal sitting in Lagos delivered on the 5th day of September, 2011, wherein the entirety of the Appellant’s petition was dismissed upon the preliminary objections of the 1st and specifically 2nd to the 3rd Respondents.  The Tribunal had held relevantly thus:
“Accordingly, I shall follow suit and do the needful in this application, I hereby find and declare that the argument by the petitioner’s counsel that prehearing notice can be issued by a letter to the Tribunal secretary, does not represent the law and is here by overruled.  The preliminary objection filed and argued by Chief Wole Olanipekun (SAN) lead counsel for the 2nd and 3rd Respondents, succeeds in its entirety and is hereby upheld and granted, as ordered here under.
ORDER
1. The petitioner’s counsel letter (Exhibit AAA), for issuance of pre hearing Notice having been adjudged to be incompetent and unmaintainable in law, is hereby set aside.
2. In the absence of a pre hearing notice, this petition, is hereby deemed to have been abandoned, and as prohibited by law, no extension of time shall be considered now to enable the petitioner file fresh pre hearing notice.
3. In line with paragraph 18 (4) of the first schedule of the Electoral Act 2010 as amended, the entire petition is dismissed.
4. The petitioner is hereby ordered to pay 2nd and 3rd Respondents, N50,000 (fifty thousand Naira) each as cost for this failed petition.
5. This election petition is accordingly determined and finally disposed.”
Irked and dissatisfied with the aforesaid decision the Appellant herein on the 20th September, 2011 lodged the instant appeal and upon 2 grounds of appeal as contained at pages 297 – 301 of the Record of appeal.
The said Grounds of appeal are herein under reproduced together with their particulars for ease of reference and clarity.
GROUNDS OF APPEAL
GROUND ONE
The trial Tribunal erred in law when they held that:
“Flowing from the above stance I find and hold that the Court of Appeal decisions in the case of Riruwai V.Shekaru (supra) and Ado V. Mekera (supra) cited by the 1st Respondent’s counsel to this Tribunal are subsisting and binding on this Tribunal.  The decisions clearly state that an application for issuance of pre hearing (sic) shall be a motion and not a letter.  I have no reason to think otherwise.  I bow and follow completely with the judicial precedent has been laid by their Lordships on this issue and do hereby find that the petitioners for offending the provisions of paragraph 47 (1) and (2) of the 1st schedule of the electoral Act 2010 as Amended, which by implication, has rendered his petition liable for dismissal under paragraph 18 (4) and(5) of the first schedule of the Electoral Act 2010 as Amended and thereby occasioned a miscarriage of Justice.
PARTICULARS
1. Riruwai V. Shekarau (2008) 12 NWLR (part 1100) 142 and Ado V. Mekera (2009) 9 NWLR (pt. 1147) 491 were decided on the provisions of the 2007 Practice Directions which was not part of the Electoral Act, 2006 whereas in the instant case, the impair provision were part of the Electoral Act, 2010 as Amended.
2. There are recent Court of Appeal decisions on the interpretation of paragraph 18 (1) of the First Schedule to  the Electoral Act, 2010 (as amended) relating to what form  the application for pre hearing notice stipulated in that paragraph should take.
3. On 24th August 2011, the Court of Appeal, Yola Division in Appeal No. CA/EPT/ADS/HA/2/2011 Mr. Simon Isa & Anr. V.  Alhaji Sa’ad Tahir per Hon. Justice Ite George Mbaba (CJA) held that once the application for pre hearing notice was made and the form issued by the requisite officer  of the Tribunal, that sufficed.
4. Recent Court of Appeal decisions are to the effect that it is of no moment if the petitioner’s application for pre hearing Notice was done by Motion on Notice, Exparte Motion or by a simple letter.
5. The trial Tribunal failed, refused and/or rejected to follow the decisions based on the Electoral Act 2010 (as amended).
6. The Ruling of the Tribunal has occasioned a miscarriage of Justice.
GROUND TWO
The trial Tribunal erred in law when it held that the petitioner’s application for issuance of pre hearing conference Notice in Form TF 007 and TF 008 must be by way of motion on Notice.
PARTICULARS
(a) The combined effect of paragraph 18 (1) and (2) of the First Schedule to the Electoral Act, 2010 (as amended) does not envisage a motion on Notice for issuance of pre hearing conference Notice.
(b) Paragraph 18 (2) of the 1st Schedule to the Electoral Act, 2010 as amended admits of no discretion on the part of the trial Tribunal.
(c) Upon the mere application of the petitioners, the Tribunal is bound to issue a pre hearing Notice.
(d) The application of the Petitioners by way of letter writing for issuance of pre hearing conference Notice is proper
(e) The application for issuance of pre hearing conference Notice is an innocuous application which can be bought by either of the petitioners or Respondents.
(f) The Respondents are not prejudiced and do not suffer any disability by the issuance of pre hearing conference notice by an application made by writing a letter.
(g) The decision of the trial Tribunal has occasioned miscarriage of Justice to the Petitioners/Appellants.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
a) An order allowing the appeal
b) An order setting aside the Ruling of the trial Tribunal dated 5th September, 2011
c) An order of this Honourable court deeming the pre hearing session and the report on it as property issued.
d) An order that the petition be heard by a different panel to be constituted by the president of the Court of Appeal.”
The Appellant filed his Appellants brief of Argument on 13/10/11.  It is dated 12/10/11 and was deemed filed on 19/10/11 following an order extending time to file same pursuant to motion filed on 13/10/11.  A  Reply brief dated and filed on 25/10/11 in response to the 2nd and 3rd Respondents notice of preliminary objection dated 21/10/11 and filed on 24/10/11.  The said briefs were adopted and relied upon as the Appellant’s argument in this appeal.  Only one issue was formulated.  In adumbration, learned senior counsel for the Appellant, Chief Chukwuma Ekomaru (SAN) referred us to the list of additional Authorities and the 2 Judgments of the Federal High Court attached to the said list of additional Authorities and submitted that a letter written by the petitioner’s counsel to the secretary of the Tribunal was sufficient in law to validly kick start a pre hearing session and that the pre hearing conference Notice issue was therefore, valid in law.  Learned counsel contended that on the state of the recent decisions of this court in its full panel, such as Gebi V. Dahiru & Ors. CA/J/EP/HA/127/2011 (decided on 22nd August 2011), so long as the application for a pre hearing conference was brought within 7 days of the filing of the petition, the application, whether by letter or motion or howsoever was valid as the method was immaterial.
Learned counsel, therefore urged it upon us to allow this appeal and to order for the hearing of the petition anon before another panel to be constituted by the president of the Court of Appeal.
In response, the 1st Respondent counsel, Mr. Omoruyi Benjamin, Esq. filed the 1st Respondent’s Brief of Argument dated 18th October 2011 and on the same date though deemed filed on 19/10/11 following the grant of an oral application to that effect by this court.  The brief is succinct and truly a brief as it goes straight to the issue formulated.  Learned counsel adopted the said Brief of Argument and referred us more particularly to the recent case of Nasamu V. Abubakar Ors. CA/S/EPT/Gov/15/2011 and urged us to hold that on the authority of this more recent case of this court we should affirm the decision of the lower Tribunal.  That the trial Tribunal was not wrong in feeling bound by the cases it relied upon as they were the decisions of this court.  He could choose and pick.  For the 2nd and the 3rd Respondents, their learned senior counsel, Chief Wole Olanipekun (SAN) leading a team of other lawyers, informed and referred this court to the Notice of preliminary objection filed 24/10/11 but deemed filed on 19/10/11 and 2nd and 3rd Respondents Notice for the Ruling appealed against to be affirmed on grounds other than that relied upon by the court upon the processes, 2nd and 3rd Respondents filed their Brief of arguments and a Reply brief to the Appellant’s Reply to the Respondent’s Notice.
Learned counsel adopted the said Briefs of argument and proceeded in oral adumbration to the effect that contrary to the petitioner’s assertion in his address that pre hearing session had closed when the objection was raised against its mode of commencement by letter writing, that pre hearing had in fact not closed.  He referred this court to page 290 of the record.
It is instructive that from the said page 290 of the Record of appeal (which is part of the Judgment appealed against, it is clear that there is a finding and conclusion of fact by the trial Tribunal that the pre hearing was ongoing and had not been concluded.
For the avoidance of doubt, we shall reproduce the portions verbatim thus:
“The second issue worthy of consideration now is whether on account of the Respondent’s having taken steps in the petition, and/or participated in the pre hearing session this petition will amount to a waiver of their right to the competence of the ongoing pre hearing session
(Underlining mine for effect)
In this petition?  The petitioner’s counsel has submitted ……….(omitted).
I agree that the 2nd – 3rd Respondents have actually been participating in the pre hearing session initiated by the petitioner via a letter but they have the right to, and have rightly resiled their position, in objecting to this petition and the pre hearing session.
This is because as early as 13/5/2011, when the 2nd – 3rd Respondents filed their process in reply to this petition they filed:
“Notice of preliminary objection and Reply of the 2nd and 3rd Respondents to the petition, brought pursuant to paragraph 9(5) and 12 of the First Schedule to the Election Act 2010 (as amended)”
That the condition precedent for the assumption of jurisdiction by the trial Tribunal had not arisen and additionally that the petition never satisfied statutory imprimaturs and could therefore have been validly dismissed by the trial Tribunal; urges that the decision of the trial Tribunal be so affirmed and on those other grounds also.
That the request for the ordering of a fresh election was improper as that order can only be predicated upon an order of nullification first sought and granted; that it will be absurd to interpret a statute in a way that would not reflect the legislative intent but lead to absurdity, particularly, where a vested right already subsists in the 2nd and 3rd Respondents.  Dr. Olunloye V. Ige was referred to.  I should say instanto and briefly that the prayer before this court is for a setting aside of the Judgment appealed and the order of a fresh hearing before, another panel and not the conduct of a fresh election as submitted.  That argument, which could be validly raised at the trial Tribunal at the hearing of the petition vis-Ã -vis the prayers appertaining section 140(2) of the Electoral Act as made, cannot be so raised here, as no such prayer has been made either on the grounds of Appeal or in the brief of Argument of the Appellant.  That aspect of address is with due respect, of no consequence, therefore.  In the same way, we do not see that any dichotomy exist between the Tribunal and the secretary of the Tribunal in so far as the making of an application or letter to the Tribunal addressed to the secretary is concerned.  Indeed the ground of appeal gives birth to the address relating to the letter to the secretary to the Tribunal.  It is its offspring and is tied to the ground and arising there from, contrary to the suggestion from the 2nd – 3rd Respondents, learned counsel.
In reply on point of law, Chief Chukwuma Ekomaro (SAN) submitted that the issue of an order for a fresh election being predicated upon an order for Nullification of an election is fluid as each legislation states what the power of the Tribunal may be.  He said, while it may be necessary in some instances such as under section 138(a) (b) (c) but under paragraph 138(d) it is not so.  That section 140(2) of the Electoral Act restating the power to order fresh election is only an instance of a power that may be exercised.  Finally, learned counsel contends that the dichotomy sought to be created between the secretary and the Tribunal is non existent.
On whether the Respondent’s Notice had properly arisen from points raised before the trial Tribunal, senior counsel for the 2nd and 3rd Respondents replied that it has so arisen, as found on pages 82 – 87 of the Record – (which is the Notice of preliminary objection)
It should be noted that at the trial, the Appellant’s petition was dismissed because the Petitioner/Appellant applied for the issuance of a pre hearing notice vide a letter addressed to the secretary rather than by a motion.  The case was set for hearing when on 8th July 2011, the 2nd and 3rd Respondents filed a motion to set aside the pre hearing notice issued for being incompetent and to further dismiss the petition.  See pages 209 – 246 of the record.
The Appellant formulated a lone issue for determination, to wit
“1. Whether an application under paragraph 18 of the First Schedule to the Electoral Act 2010 (as amended), by a petitioner to the secretary of the Tribunal for the issuance of a pre hearing Notice as in Form TF 007 and pre hearing information sheet as in Form TF 008 must be by way of a motion as required by paragraph 47 of the First Schedule to the Electoral Act, 2010, (as Amended) Learned counsel submits that the simple dictionary meaning of the word “application” is simply a formal request.  That it is the content and not the form or method of the request that is material.  In a harmless but apparent recoil from his stand that there is no dichotomy between the secretary and the Tribunal, learned Appellant’s counsel submitted, however, at page 4 paragraph 4. 19 and 4. 20 of his Brief of Argument that there is a world of difference between an application to the secretary of the Tribunal under paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as Amended) and paragraph 47 of the said Act which requires applications to be made to the Tribunal.  That application under paragraph 18(1) need not be served on the Respondent who will not be prejudiced however, as the secretary will in any case serve him with the Notice and more so when the letter or application is intended to activate the secretary to act.  That paragraph 47, however is a general provision appertaining all ‘other’ applications that may be made.  It is those that must be by motion and to be served on the other party.  The Appellant’s learned counsel had argued that in the circumstance of the first type of application, the Respondent will not be prejudiced as the issuance of the pre hearing Notice is to be made by the secretary.  I agree.  It is not the Respondent(s) that issue(s) the letter.  It is not also, issued subject to his consent or observation.  His only obligation to himself and the law is to note the date of conclusion of pleadings and to take steps by applying for same by bringing his own application for pre hearing if not done by the petitioner or for a dismissal order by motion following paragraph 47 and 18(4) of the 1st schedule to the Electoral Act upon Notice to the petitioner(s).  the fact of the Respondent coming by motion for dismissal is an implied statement that the earlier or other application may not be by motion.  The word “or” is disjointive in the circumstance.
The objection appears to me to be clearly a technical one on form rather than on Justice. While it is true that the 2nd – 3rd Respondents had timeously raised their objection to the competence of the petition and amongst other grounds on the alleged invalidity of the mode of commencement of the pretrial session by a letter, I do not, however, consider the applicability of paragraph 53(2) of the First Schedule to the Electoral Act of any moment, as the objection though timeous and articulate but unfortunately had no legal basis.  There was a finding of fact that subsist that the pre hearing was ongoing and the objection having been filed at the inception of the pleadings i.e. with the Reply of the 2nd – 3rd Respondents and even before the application for the pre hearing sought to be impugned, cannot be said to be an act of condonation or waiver.  However, the clear and unambiguous provisions of paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 as Amended shows that the application shall be made to the Tribunal or court; and it is the Tribunal or court that shall issue the requisite pre hearing Notice as in Form TF 007 and TF 008.
However, by paragraph 47(1)  – No motion shall be moved and all motions shall come up at the pre hearing session except in extreme circumstance with leave of the Tribunal or court.  Paragraph 47(2) of the 1st Schedule requires all such applications to be made by motion.  It is a command.  A peremptory order, however, under paragraph 18, though the application shall be made by the petitioner, the Tribunal or court shall issue to the parties or their legal practitioners (if any) a pre hearing conference Notice as in Form TF 007 accompanied by a pre hearing information sheet as in Form TF 008 for………”
By the aforesaid provision of paragraph 18(2) therefore, the Electoral Act recognized that a petitioner may act with or without a counsel and in either case is bound to apply for in accordance with the procedure and be issued the requisite pre hearing conference form.
Obviously, the cognizance to the existence of a petitioner acting without counsel makes it the more apparent that such a litigant who may be lay or a non legal practitioner would not be expected to apply by a motion mandatorily in view of the legal technicalities involved as it will defeat the sui generis nature of an election petition and humstring a petitioner form setting in motion the machinery for the ventilation of his electoral grievances.
What is more, the bringing of an application by motion outside the pre hearing period is forbidden.  See paragraph 47(1) 1st schedule.
Indeed the expression of one is the exclusion of the alternative or other. “expression Unius est exclusive alterius”
Indeed the expression of general thing does not derogate from the specific.  It is the opposite Generalia specialibus non derogant”
It is for the public good and not a private interest strictu sensu, that elections are conducted.  See Imiere V. Salami & 3 Ors, (1989) 2 NEP LR 131 at 144.  That a Litigant or petitioner could apply for a pre hearing conference Notice just as his legal practitioner would is reasonably suggestive that the mode of application is a fluid like exercise devoid of any specified and technical mode of application.  It may baffle the mind to think that the strict and formal requirement of an application to be supported by an affidavit to be served on the Respondent as provided for under paragraph 47(2) of the 1st Schedule to the Electoral Act, 2010 as amended can be in the contemplation of an initiating process for the commencement of a pre hearing conference towards the hearing of an Electoral petition!  It may not be readily accepted as the legislative intent to stultify the hearing of election petitions which are enjoined to be heard expeditiously.  See Electoral Act and Practice Directions.  See paragraph 55 of the 1st Schedule Electoral Act No. 6 of 2010.  By 53(1) none compliance with any Rule of practice or with any provisions of this schedule except otherwise stated or implied, shall not render any proceedings void, unless the Tribunal or court so directs … but the process may be set aside wholly or in part as irregular or amended or otherwise dealt with in such a manner and on such terms as the Tribunal or court may deem fit and just.
The courts are enjoined to do all that is necessary in order to ensure that Justice is done even, if it means the heavens fall, it has to be Justice according to law and not in accordance with judicial whims or caprices.  The decision in MISS TUTTU DAWODU V. MRS. JOKOTADE ISIKALU & ORS. of this court have been cited to us.  They appear to conflict one against the other.  However, in the recent decision of Nasamu & Ors V. Abubakar CA/S/EPT/GOV15/2011 of 23/9/11,This court held that a letter cannot be an application as envisaged under paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as Amended).  This may so appear, but that the said paragraph 18(2) has been entrenched as part of the Electoral Act – Substantive provision rather than a mere procedural Rule of Practice that may be waived or liberally interpreted by the courts using them as subservient handmaids and aids to the administration of Justice; and not omnipotent masters to be obeyed or to be operated at the peril of substantial Justice, may not in the form it is couched portray the intent as it stands as a specific and unqualified provision that does not limit or define the mode of application.  For its uniqueness, this court per Monica B. Domgban Mensem JCA in Appeal No. CA/J/EPT/HR/127/2011 Aliyu Ibrahim Geb V. Alhaji Garba Dahiru & Ors. (22/8/11) stated therein, thus:
“the provisions of paragraph 18 of the first schedule, Rules of Procedure for Election Petitions of the Electoral Act 2010 as amended is a formidable one.  It is a unique and fundamental provision of dare consequences in the election adjudication”.
It is obvious from Mensem JCA’s contribution that at any rate the trial tribunal had a discretion as to which mode.  I dare add that the petitioner had greater if not exclusive discretion.  That being so, can it be said that the trial tribunal or petitioner exercised its discretion (if he had any discretion) wrongly, as the case may be?  It has not been so  shown that the petitioner was wrong.  He was not wrong.  The trial tribunal was rather wrong in limiting him as to the mode.  On the authority of Usman vs. Umaru (1992) 7 N.W.L.R. (pt.254) 377 (SC), I am of the view that the decisions that ran counter the case ie., Aliyu Gebi vs. Dahiru & Ors. (Supra), that is to say Abubakar’s case and the cases relied upon by the trial tribunal were given per in curiam.  I would rather follow our decision in the Aliyu Gebi vs. Dahiru & Ors. case (Supra).  This was a decision of the full panel of the Court of Appeal and which appreciated the discretion of the petitioner in the mode of activating a prehearing conference by notice of mere application.
The interpretative duty of the Judex is to render unto a statute its clear grammatical meaning where it is clear and unambiguous, such that the legislative intent shall not be obviated or defeated.  See Attorney General (Fed) vs. Guardian Newspapers Ltd. (1999) 9 N.W.L.R. (pt.618) page 187.  See also the decision of this court in Appeal No. CA/L/125/08 Miss Tutu V. Mrs. Isikalu & Ors. delivered on 7th September 2010, wherein I had this to say at page 17 of my leading Judgment.  “The provisions of the Wills Law as in all laws where they are clear and unambiguous, must be given their ordinary and literary meaning.  See Ag. Fed. V. Guardian (Supra).  To give effect to the literary meaning will not lead to absurdity or be in conflict with any specific provisions of the Act.”

This leads me to the question that begs for answer i.e., “why is an election petition considered a sui generis adjudication by our courts?  The answer would appear to be as decided in the cases of Emiere V. Salami & 3 Ors. (1989) 2 NEPLR 131 at 133 i.e., that an election is so important.  A successful candidate at the polls who had been declared duly elected and returned should only be unseated on firm and substantial grounds and on proved allegations and not on fanciful and flimsy grounds.  See Ndoma Egba JCA in his dissenting Judgment at pages 145 – 163 at 162.
It is for this additional reason that the courts are enjoined to avoid technicalities and to expeditiously do substantial Justice in accordance to law. The schedule 1, paragraph 18 and 47 are part of the Electoral Act.  One important and notable feature of this appeal is that all the Respondents are in tandem with the Appellant that there was no complaint as to the initiation of the proceedings (petition) other than the mode for the application of the pre-hearing notice.
Instructively, paragraph 47(3) of the 1st schedule to the Electoral Act, prohibits the moving of any motion outside the prehearing stage except by leave granted upon special circumstances.  This peremptory provision, in my view, seems to confirm the point that application that shall be made to the Tribunal vide paragraph 18 of the 1st schedule (need not be by motion) exclusively; (this is because even if it is so made, it shall not be moved as of right) except upon leave granted on special circumstances.
I have perused the record of trial and note where the Appellant/Petitioner paid some fees for the letter.  It is important that by para. 47(2) an application by Motion shall be supported by an affidavit and shall state under what rule or order it is brought and shall be served on the Respondent.  The interpretative power of the judex is to expound the law and not to make the law.  For ours is a constitutional democracy under a written constitution and the principle of separation of powers must be respected.  To avoid confusion and anarchy, a court of law must not embark on legislative exercise of amending the act of parliament under the guise of interpretative duty as that would be an oppressive and a usurpative exercise.  A nascent democracy such as ours can ill afford that luxury, that would portend judicial tyrany.
This court, should not therefore embark on a voyage of importing the general provision of motion to be supported by affidavit to the specific provision of para 18(1) of the 1st schedule to the Electoral Act 2010.
In Mustapha v. C.A.C. (2009) 8 N.W.L.R. (pt.1142) page 43 at 51, this court, per Omoleye, JCA stated thus:
“the courts are enjoined in the discharge of their duty of interpretation to avoid going beyond the meaning and intendment of the legislation.  See the cases of Horizon Fibres (Nig.) Plc v. Bacon Linen; Adekanya v. FRN; Awuse v. Odili; SCC (Nig.) Ltd. v. Elemadu”.
By Section 140(4) of the Electoral Act, 2011, an Election Tribunal may strike out a petition on the motion of the Respondent on the ground that it is not in accordance with the provisions of this part of this Act or the provisions of the 1st schedule to this Act.  S.145 Electoral Act specifically affirms that the Rules of Procedure to be adopted for election petitions and appeals are as set out in the first schedule to this Act.
This makes the provisions of the 1st schedule, relating to prehearing conference application, a mandatory part of the Act and in respect of which no discretion as to the mode either by letter writing or motion has been stipulated as residing in the Tribunal to determine.  It resides in the petitioner.
It is instructive that although by sub paragraph 2 of Section 145 of the Electoral Act 2010, the right of the president of the Court of Appeal to issue practice directions to election tribunals is certain, no such notice providing the mode of making an application by “a motion and not letter writing” was brought to the attention of the trial tribunal. I have not seen any nor was referred to any, by the Respondent.  Even if it existed, it would be in conflict with the substantive part of S.145 and paragraph 18(1) of the 1st schedule to the Act 2010 that allows for the making of the application, how so ever and without limiting the mode.
That would have been invalid and subject to the Rules of Court in the 1st schedule.  That by paragraph 18(3) of the 1st schedule,
“the Respondent may bring the application in accordance with sub paragraph (1) where the Petitioner fails to do so, or…..”.
From the above provision, it is apparent that the Respondent can only be aware that the Petitioner has failed to apply where no service or notice of the application has been effected on him by the Tribunal/court.  This brings to the fore, my belief that there is logic in the fact that the 1st application also must not be such as must be made by Notice or motion as the Rules mandates the issuance of notice by the court and not service of the application.
Indeed, the sui generis nature of election petitions is such that the supreme court has held that while non compliance with procedural steps may in ordinary civil proceedings be waived and tolerated, they may not be so in election petition cases where the slightest act of non compliance will vitiate the entire proceedings. See Buhari vs. Obasanjo; Yusuf vs. Obasanjo….
On this lone issue formulated, it is apt to refer to the words of Kirpal J. in the Indian case of Peoples Union for Democratic Rights V. Minister of Home Affairs (1986) L.R.C. (Const) at 547 noted in the commentary by the Hon. Justice C. A. Oputa.  JSC contained in the All Nigeria Judges Conference papers 188, Abuja published by Spectrum Books Limited, wherein Kirpal J. stated as follows:
“In a changing society, the courts and the procedure adopted by the courts cannot remain static.  In the interest of the administration of Justice some of the old and well established procedural rules and practices have been altered.  Public interest litigations can now be initiated not only by filing formal petitions in court but even by writing letters and telegrams.  Entertaining letters, telegrams and articles in newspapers as petitions by the High Court may have been unthinkable a decade age, but this procedure has come to stay in case involving public interest litigation…”
This is what has been done in the pre-hearing conference application Rule by the legislature.  The courts should give effect to it.  This dosage of liberalism in public interest litigation does no harm.
It is in the light of the aforesaid, that I am firm in my view that the petition was prevented from reaching maturity for hearing on its merit by the reliance on a condition that was not required for the conduct of a valid pre-hearing conference, to wit the purported absence of a competent application by motion by the petitioner.
Since the Respondent did not also apply for same, but had Wrongfully approached the trial Tribunal with a motion to be heard outside the pre hearing period for a quashing order and a dismissal of the petition upon a wrong basis, the trial Tribunal was not right in the decision it arrived at on the basis of the mode of the application.
I have read the other 3 cases cited and relied upon by the Tribunal, and also the more recent cases of: Aliyu Gebi V. Garb Dahiru & Ors in Appeal No. CA/J/EPT/HR127/2011 Ezeudu V. Olibe John & Ors. CA/E/EPT/106/2011 and Mr. Simon Isa & Anr. Yola, Alhaji Sa’ad Tahir CA/EPT/ADS/HA/2/2011 of 24/8/11 and find that cases relied upon by the trial Tribunal were not decided strictly on the basis of whether a letter could validly initiate an application for a pre hearing session but the ratio therein the respective cases commends itself to me as meeting the Justice of those cases, specifically.  As I said, the trial Tribunal in this appeal was not bound to follow them as they were obiter and per incurem the extent Electoral Act.
However, the 2nd and 3rd Respondents’ Notice of preliminary objection would appear to have no basis as the grounds of the objection, did not arise from the decision appealed from or from the grounds of Appeal and arguments raised in the Appellant’s brief.
Similarly, the 2nd and 3rd Respondents ‘ Notice is in my view without basis as the grounds upon which they are anchored are grounds that have not been raised and determined on their merit at the trial.  At least no evidence has been led, or address proffered in respect there to by the parties.
To sustain the Respondents’ Notice on the grounds stated would tantamount to hearing only one side based on the pleadings of the parties alone.  Pleadings do not amount to evidence, unless admitted, or proved, and this court is not a trial court.
To accede to Ground 2 of the Respondents’ Notice will tantamount to disregarding the statutory powers conferred on the Federal High Court or State High Court to entertain exclusively pre-election matters and complaints.  The Tribunal has no jurisdiction in that regard.  The institution of the suits complained of was within the statutory jurisdictional competence of the Federal High Court exclusively.  There was no abuse of judicial process in instituting those suits there, as it was the prerogative power of the court that was involved.  There was no abuse either in coming before the Election Petition Tribunal subsequently upon competent a cause of action alleging exclusion from the ballot.  The prayers in the petition was not incompetent or academic as the prayers sought  for is what a court is enjoined to grant, whilst that prayer of nullification not sought has no basis to constitute a condition precedent for the complaint against exclusion from the ballot as claimed.  By and large both the preliminary objection and the Respondents Notice have neither basis nor merit.  They are dismissed.
The right of fair hearing is determined by the procedure followed and not in the correctness of a decision.  See UBA Ltd V. Achoru (1990) 6 NWLR 156.
The procedure provided by the electoral act cannot be jeopardized even by an agreement between the parties as it will be against public policy for anyone to waive a fair trial of a case.  See Ariori V. Elemo (1983) 1 SC 1357.

There is no doubt that a sense of the possible in Justice of an interpretation ought not to induce Judges to do violence to well settled rules of construction; but it may properly lead to the selection of one rather than the other of two reasonable interpretations. See Imperial Chemical Industries Ltd. V. Caro (inspector of Taxes) (1961) 1 W.L.R. 529, at pp 534, 545 whenever the language of the legislature admits of two constructions and, if construed in one way, would lead to obvious in Justice, the courts act upon the view that such a result could not have been intended, unless the intention to bring it about has been manifested in plain words. Smith V. Great Western Ry (1877) 3 App. Cas 165; Raiton vs. Wood (1890) 15 App Cas. 363; Coutts & Co. V. IRC (1953) AC 267 noted at page 208; Maxwell on interpretation of statutes Twelfth Edition by P.s.t. J. Langan Butterworths Wadwa.
It is in the light of the aforesaid, that I am firm in my view that the petition was prevented from reaching maturity for hearing on its merit by the reliance on a condition that was not required for the conduct of a valid pre-hearing conference, to wit the purported absence of a competent application by motion by the petitioner.
On the whole, this appeal has merit and is also allowed by me. Consequently. I abide by and subscribe to the order of my learned brother in his lead Judgment that the petition shall be remitted back to the Tribunal for adjudication by a fresh panel duly constituted by the President of the Court of Appeal and that relating to costs and the quantum thereof.
>

Appearances

Chief Chukwuma Eicomaru SAN with him is R. A. OlaiyaFor Appellant

AND

Benjamin Omoruyi – for the 1st Respondent.

Prof Yemi Osibajo SAN with him are: Bode Olanipekun, Mr. Ayo Adesanmi, Mr. I. O. Muftau, Mr. Muyinwa Ogunkolade, Mr. Olamide Olopade, Mr. Bimbo Ojenike, Miss Olawunmi Adeeko and Miss Oluwakemi
Williams. – for the 2nd & 3rd RespondentsFor Respondent

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