MELA AUDU NUNGHE & ANOR v. MANU YUSUF SWA & ORS (2012)

MELA AUDU NUNGHE & ANOR v. MANU YUSUF SWA & ORS

(2012)LCN/5289(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of April, 2012

CA/J/EP/HR/42/2012

RATIO

WORDS AND PHRASES: MEANING OF SHALL AS USED IN THE FIRST SCHEDULE OF THE ELECTORAL ACT

ELECTION PETITION: THE PROVISIONS OF THE ELECTORAL ACT IN RESPECT O TIMING PROVIDED

The application for the issuance of a pre-hearing notice filed on 30-12-11, nineteen (19) days after the expiration of the time permitted, was certainty out of time, and the Tribunal was right to invoke paragraph 18(4) of the First Schedule to the Electoral Act to dismiss the Petition, some having been considered abandoned by reason of the Appellant’s own default. As was found by this Court in the case of Chief Okey Okoro V Hon. Osito Izunaso & 1694 Ors (2010) All FWLR 1550, the provisions of the Electoral Act, 2010 (as amended), especially in respect of timing provided in the First Schedule to the Act, should not be taken lightly by parties to an election petition. They are crucial and must be adhered to, as time is of the essence in the hearing and determination of election petitions which are sui generis. Strict compliance is expected from parties and enforced by both the Tribunal and Court, such that any default in compliance, no matter how slight, could entail fatal consequences, as in the instant Appeal. See also Buhari V Yusuf (2003) 14 NWLR (Pt. 841) 446 at 498. PER JUMMAI HANNATU SANKEY, J.C.A

JUSTICES

CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

1. MELA AUDU NUNGHE
2. CONGRESS FOR PROGRESSIVE CHANGE Appellant(s)

AND

1. MANU YUSUF SWA
2. PDP
3. YILA YARO MUSTAPHA
4. CAN
5. INEC
6. PRESIDENT ELECTORAL COMMISSIONER/RETURNING OFFICER, GOMBE STATE
7. ELECTORAL OFFICER, BILLIRI LGA GOMBE STATE
8. ELECTORAL OFFICER BALANGA LGA GOMBE STATE Respondent(s)

JUMMAI HANNATU SANKEY, J.C.A (Delivering the Leading Judgment): The Petitioners/Appellants claim to have contested an election into the National Assembly, House of Representatives, seat of the Billiri/Balanga Federal Constituency in Gombe State. The 1st Petitioner was the candidate.
The 2nd Respondent sponsored the 1st Respondent of that election. The election was held on 22nd October, 2011. The result of the election was declared on 23rd October, 2011. The 1st Respondent contested on the platform of the 2nd Respondent the sponsoring party. The 5th-8th Respondents declared the 1st Respondent winner of the electoral contest.
The Petitioners were unhappy with the turn of events and they filed a Petition therefore wherein they request the trial Tribunal to make the following orders in their favour:
”(i) That the 1st Respondent not being a candidate of the 2nd Respondent in the 2nd October, 2011 election was not validly declared as the winner of the said election by the 5th to 8th Respondents.
(ii) An order declaring the 3rd Respondent not a qualified contestant of the 2nd October 2011 election and annulling all the votes purportedly worn at the said election by him.
(iii) An order declaring the Petitioner as the winner of the winner of the National Assembly Election held on 22nd October, 2011 for the Balanga/Billiri Federal House of Representatives having polled the majority of the lawful votes cast and was therefore entitled to have been returned as the winner of the election.
IN THE ALTERNATTVE
(iv) An order directing the 5th to 8th Respondents to conduct a fresh election in all the polling units in the Local Government Areas mentioned above.”
On 30/12/2011, a letter dated 21/12/2011 was delivered to the registry of the Tribunal. On the strength of the letter, which requested for the issuance of pre-hearing forms, the Petition was set down for pre-hearing on 18/01/2012. The scheduled date of 18/01/2012 could not hold because of the civil unrest that enveloped parts of the country. The pre-hearing session was then further scheduled for 31/01/2012. Parties were accordingly notified by the service of hearing notices. In the interim, the Tribunal observed some developments or issues in the petition and thereupon directed that parties should be served with o further notice of hearing.
That notice of hearing was dated and served on 30/01/2012. It contained two issues which the Tribunal requested parties or their counsel to address it on. The issues were:
”a Whether the tribunal was with jurisdiction to treat petition GMS/EPT/HR/10/2011.
b. Whether in view of paragraph 18(1) and (4) of the 1st Schedule to the Electoral Act, 2010 (as amended) the petition was still alive.”
The records of the Tribunal showed that the Respondents were served with the Petition as follows:
a. The 1st respondent was served on 24/11/2011.
b. The 2nd respondent was served on 26/11/2011.
c. The 3rd respondent was served on 15/11/2011.
d. The 4th respondent was served on 17/11/2011.
e. The 5th – 8th respondents were served on 15/11/2011.
The Respondents filed their Replies, and served some, as follows:
i. 1st respondent’s reply was filed on 13/12/2011 which was served on petitioner s counsel M.A. Galaya Esq. – on 15/12/2011. The 1st respondent had earlier filed a memorandum of appearance on 02/12/2011.
ii. the 2nd respondent filed his reply on 09/12/2011 which was served on the petitioners counsel M.A. Galaya Esq – on 12/12/2011.
iii. The 3rd and 4th respondents did not file a reply within the time limited for then to do so from the date of service of the petition on them.
iv. The 5th – 8th respondents filed their joint reply on 05/12/2011 which was served on M.A. Magaji Esq. – in the office of the petitioner s counsel on 08/12/2011.
v. The petitioner did not file a petitioner’s reply.
The Petitioners served a letter, dated 21/12/2011, on the registry of the Tribunal addressed to ”The Chairman, National and State House of Assembly Election Petition Tribunal, Gombe” On 30/12/2011.
In the said letter, the Petitioners titled the document and wrote as follows:
”APPLICATTON FOR THE ISSUANCE OF PRE-HEARING NOTTCE TF OO7 AND TF 008
We are counsels (sic) representing the Petitioners in the above election petition filed before your tribunal. All processes have been filed, served and exchanged;. We hereby apply for the issuance of pre hearing notice.
Thank you.
Yours faithfully,
Signed
M.A. Galaya
Dated this 21st day of December 2011
Signed
M.A. Galaya Esq.,
The petitioners
His counsels P.E. EDIALE & CO.
C/o M. GALAYA & CO.
Adj. High Court T/Wada Gombe.”
The Tribunal, after taking arguments on the two questions formulated (supra), delivered its ruling on the 1st February, 2012 and thereby dismissed the Petition. The ruling is contained at pages 172 to 190 of the record of appeal. The Appellants herein, who were the Petitioners, were dissatisfied with the order of dismissal and hence filed a Notice of Appeal on the 13th February, 2012 containing three grounds of appeal at pages 197 – 194 of the Record of appeal. The reproduction of the grounds of appeal without their particulars is as follows:
”Ground 1
The learned justices of the National and State House of Assembly Election Petition Tribunal Gombe erred in Law when they held:
”Reading paragraphs 10(2) and 12(1) of the 1st schedule to the Act, if is clear that the application for pre-hearing was made clearly outside the mandatory seven day period after the service of the 1st respondent’s reply since the petitioners did not file a petitioners’ reply. From the named provisions, read together, it is clear that a respondent – like the 1st, 3rd – 8th respondents – are to be allowed to file their reply, and defend a petition, if such is filed within 21 days of their receipt of the petition. That is what occurred in this instance as regards the 1st, 5th – 8th respondents – though the 3rd and 4th respondents opted not to file a reply to the petition. It is our view that going by the analysis of processes filed in this petition as stated above, the last reply, in the absence of a petitioner’s reply, is that filed by the 1st respondent. The 1st respondent’s reply was filed, within twenty one days, on 13/12/2011. It was served on the petitioners on 15/12/2011. The petitioners had seven days from 15/12/2011 to apply for pre-hearing session to confer jurisdiction on this court.” at page 16 paragraph one of their ruling of 1st February, 2012.
Particulars of error supplied.
Ground 2
That the learned Justice of the National and state Houses of Assembly Election petition Tribunal Gombe erred in Law when they further held that:
”The Petitioners did not apply within the period limited by the provision of paragraph 18(1) of the 1st schedule thereby robbing this tribunal of jurisdiction to treat this petition. In consequence of that lapse, the duty of this tribunal is to dismiss this petition because the law deems it as having been abandoned by the force of paragraph 18(4) of the 1st schedule of the Act.” at page 15 paragraph 1 of its said ruling of 1st February 2012.
Particulars of error supplied.
Ground 3 MISDIRECTION
The whole ruling/decision is misconceived and against the weight of evidence.”
In compliance with the Election Tribunal and court practice Direction, 2011, the Appellants’ brief of argument dated 29th February, 2012 was filed on the 1st March 2012. On behalf of the 1st Respondent, a brief in response was dated and filed on the 9th March, 2012. The 2nd Respondent’s brief was also dated and filed on the 7th March 2012. Furthermore and on behalf of the 5th – 8th Respondents, their joint brief dated 6rh March, 2012 was filed on the 7th March, 2012. The 3rd and 4th Respondents however did not deem it fit to file any brief of argument. They were also not represented by any counsel in court despite the evidence of the hearing notice having been communicated to them.
On the 28th March, 2012 when the Appear come up for hearing, all other parties with the exception of the 3rd and 4th Respondents, were represented in court. In other words, while the learned counsel, Mr. Musa A. Tende in company of Mr. B.G. Donga appeared on behalf of the Appellants, Mr. P.A. Aki and Chief C. Ubale represented the 1st and 2nd Respondents respectively, while Mrs. Halita Raje stood in for the 5th-8th Respondents.
At the instance of the Court, all counsel were called upon to submit and address on whether or not the case of hand falls within the recent Supreme Court decision in the consolidated cases of ANPP v. Alhaji Mohammed Goni and 4 Others, also Alhaji Kasim Shettima & Other v. Alhaji Mohammed Goni and 4 Others in SC/1/2012 and unreported and delivered on the 17th February, 2012.
Without having to belabor the point, and on the consensus submission by all counsel, it is obvious that the Appeal before us is very much distinguishable from the consolidated Supreme Court Judgment in the authorities under reference. In other words, while Section 285 (6) of the Constitution 1999 of the Federal Republic of Nigeria (First Alteration) Act 2010 is applicable and governed the cases under reference, the subject matter of the Appeal at hand is a product of a Petition filed on the 12th November, 2011 against a re-run election held on the 22nd October, 2011. It therefore qualified as a fresh election which result was duly declared on the 23rd October, 2011. The election, I hasten to add, was as a result of the Judgment of this Court dated the 19th September, 2011. As rightly argued and submitted by all counsel therefore, the Appeal under consideration, being a product of a Petition emanating from a fresh re-run election, is very much alive and subsisting. Hence, this Court has jurisdiction to hear and determine same.
On the merit of the Appeal, all counsel of the hearing did adopt their respective Briefs of arguments and further adumbrated extensively thereon. While the Court, on behalf of the Appellants, was urged that the Appeal be allowed, the various Respondents’ counsel to the contrary submitted in favour of dismissing some as lacking in merit. Briefly and in further expatiation of their briefs, the learned Appellants’ counsel restated the salient intendment of paragraph 18(1) and (4) of the First Schedule which operation can only be invoked when the Respondents’ Reply has been properly filed and served on the Petitioner. That, where the reverse is however the case, the paragraph would not apply and hence the Tribunal cannot dismiss the Petition.
The learned 1st Respondent’s counsel, Mr. Aki, in further submission in addition to their Brief of argument, re-emphasized the absence of a competent appeal since the grounds of appeal are outside those as provided by Section 246(1) (b) of the Constitution 1999 as amended. That a similar a stipulation is also provided in Section 245 subsection (1) where on appeal against the decision of a Customary Court of Appeal must be in consonance with the said enactment: that is, it must relate to a question of customary law for the ground to qualify as competent. The case of Shelim V Gobang (2009) 173 LRCN 36 at 51 was relied upon. In respect of his second issue, learned Counsel urged the Court to hold that the Petitioners are still under an obligation to file an application for the issuance of Form 007 even where the Respondents foil to file any Reply to the Petition. That time will be computed under Paragraphs 10, 12 and 18(1) of the First Schedule to the Electoral Act (as amended). Counsel does not subscribe to the view that the petition should be left unattended. He thus urged the Court to dismiss the Appeal
On his part, Chief Ubale, learned Counsel for the 2nd Respondent, as an additional submission to his Brief of argument, submits that the 2nd Respondent filed its Respondent’s Brief on 09-12-11, within the 14 days allowed for the filing of a Reply, and this was clearly admitted by the Appellants at page 168 lines 4-5 of the Record of Appeal. That the Appellants, oh the other hand, filed their application for a pre-hearing notice on the 30-12-11, thus off ending paragraph 18(1) & (4) of the First Schedule. He contends that the 2nd Respondent is a Respondent for all purposes. He therefore urged the Court to dismiss the Appeal for lacking in merit.
Finally, Mrs. Roje, learned Counsel for the 5th-3th respondents, in adding to the submissions in the Respondents’ Joint Brief of argument, submits that since the said Respondents also filed their Brief of argument within time by virtue of paragraph 10(2) of the First Schedule to the Act, the Appellants failed to comply with paragraph 18(1) of the First Schedule by filing the Prehearing notice outside the 7 days so provided. Counsel thus urged the Court to uphold the decision of the Tribunal that the Petition was abandoned and to dismiss the Appeal.
In a brief reply on point of law, Mr. Tende submits that Paragraph 18(5) of the First Schedule does not take away the right of Appeal. It only takes away the jurisdiction of the Tribunal from further hearing the matter.
In his Brief of argument, the Appellants formulated one lone issue for the determination of the Court, thus:
”Whether paragraph 18(4) of the First Schedule to the Electoral Act is evocable where the Respondents reply to the Petition was filed (without and/ or extending time) outside the time of 14 days limited by paragraph 12 (1) of the Electoral Act 2010 (as amended).”
Without further ado, I adopt this as the sole issue for the determination of the Appeal, as the answer, one way or the other, will serve to determine the Appeal.
In summary, learned Counsel for the Appellants submits that, after the Appellants had filed their petition and same had been served on the Respondents, the Respondents in turn failed to file their Replies to the Petition within the time stipulated by law so to do. That there was thus no obligation on the Tribunal to invoke paragraph 18(1) & (4) to dismiss the Petition. Counsel contends that the Respondents filed their Replies outside the 14 days limited by paragraph 12(1) of the First Schedule, and no leave of the Tribunal was sought for on extension of time. That however, the Tribunal took the view and decided that, by a combined reading of paragraph 10(1) & (2) and paragraph 12(1) of the Schedule, the Respondents was entitled to 21 days within which to file their Replies. However, learned Counsel reasons that, whereas paragraph 12(1) was a specific provision, paragraph 10(1) & (2) were general provisions. Thus, by the authority of Schroder & Co V Major & Co. Nig. Ltd (1989) 2 NWLR (Pt. 101) 1 at 13 & 21, a general provision cannot derogate from or expand the clear wordings of a specific provision. Consequently, Counsel urges the Court to hold that 14 days is the time limited for the Respondents to file their Replies by virtue of Paragraph 12 (1) of the First Schedule to the Act. He further submits that, since by this timeline the Respondents were out of time and thus not properly before the Tribunal, paragraph 18(1) & (4) of the First Schedule was not evocable as no Respondents’ Replies were before the Tribunal. Learned Counsel, for that reason, urges the Court to of law the Appeal and set aside the Ruling of the Tribunal.
On this issue, Mr. Aki, learned Counsel for the 1st Respondent, submits that from the facts on record before the Tribunal, the 1st Respondent’s Reply was the last Reply to be filed and served on the Appellants. He contends that the said Reply was filed within the 21 days stipulated by paragraph 10(1) & (2) on the 13-12-11, while it was served on the Appellants on the 15-12-11.
That thereafter, the Appellants did not file their application for a prehearing notice until the 30-12-12, which he submits is clearly outside the 7 days limited for such. Counsel submits that, whereas the Appellants do not deny filing the pre-hearing notice on the 30-12-11, they take up issues instead with the Respondents by contending that there were no proper Replies filed by them. He submits that the failure to file Respondents’ Replies within time does not vitiate the consequences of paragraph 18(4) of the First Schedule. Counsel contends that, assuming 14 days is the relevant period for the computation of time for the filing of the Respondents’ Replies, the 2nd Respondent’s Reply was filed within time on 09-12-11 and served on the Appellant on 12-12-11. Thus, the filing of this Reply lone would have been sufficient to set in motion the operation of Paragraph 18(1).
That even where Replies were not so filed, pleadings are deemed closed at the expiration of the time fixed by the First Schedule for the filing and exchanging of Briefs. Learned Counsel submits that where the law makes a special provision on what is to be done and when to do it, a party caught napping has all but himself to blame. He relies on Emmanuel Ikpe & Ors V Sarah Sunday Elijah (2011) LPELR CA/C/NAHA/266/2011: Obuzor V Ake (2009) 2 NWLR (Pt. 1125) 388; and Ojukwu V Yar’adua & Ors (2010) 186 LRN 24 at 91 Paragraphs A-E (ratio 16). He therefore submits that the Tribunal was right in dismissing the Petition under Paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended). He urged the Court to dismiss the Appeal.
For the 2nd Respondent, it was submit ted by Chief Ubale that, in this Petition, there was no application either by the Petitioners or the Respondents, as anticipated under paragraph 18(4) of the First Schedule.
Counsel submits that based even on the Appellants’ submission in their Brief of argument, the 2nd Respondent was served the Petition on the 26-11-11, and it filed its Reply on the 09-12-11, within the 14 day period contemplated by Paragraph 12(1). He contends that the 2nd Respondent is a Respondent for all purposes since the 1st Respondent is not an independent candidate. Thus, the application for a pre-hearing session, as far as the 2nd Respondent is concerned, should be computed from 09-12-11. Since the Appellants opted not to file a Petitioners’ Reply to the 2nd Respondent’s Reply, the Appellants had only up to 16-12-11 to apply for a pre-hearing session, and not 21-12-11 or 30-12-11 when the purported application was dated and submitted to the Registry. Counsel thus submits that the Appellants were caught by Paragraph 18(4) which is evocable. He seeks to distinguish the case of Schroder & Co V Major & Co Ltd (supra) cited by the Appellants as, in his opinion, it did not deal with an election matter, which is sui generis, but was a civil case, and is therefore inapplicable. He thus urged the Court to dismiss the Appeal and affirm the decision of the Tribunal.
On behalf of the 5th-8th Respondents, Mrs. Raje submits that the duty on the Appellants to file an application for the issuance of a pre-hearing notice is not subject to the time of filing of the Respondents’ Replies. The non-validity of a Reply does not enlarge the seven (7) days the Petitioners have within which to file the said application, and by virtue of paragraph 18(4), no application for on extension of time outside the seven (7) days shall be filed or entertained. Counsel submits that the default in filing the application for a pre-hearing notice has led to fatal consequences resulting in the death of the Petition, and so the Tribunal was right to have dismissed some. Learned Counsel urged the Court to uphold the decision of the Tribunal and to dismiss the Appeal.
The pith of the Appellants’ complaint in this Appeal and indeed the real issue to be determined is when time would begin to run for the purpose of the provision of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended). In other words, of what point exactly is the Petitioner required, by law, to file an application for the issuance of a pre-hearing notice. In a situation where the Respondents fail to file Replies to a Petition for whatever reason, or where there are no valid replies property so-called before the Tribunal, is the time open-ended and thus entirely dependant on the dates on which the Respondents’ Replies are filed, or is there on end time for pleadings in Election petitions provided by law.
All the parties seem to be ad idem on the fact that time for the filing of the application for a pre-hearing conference would start to run at the close of pleadings. What this therefore means is that, after the filing and service of the Petitioner’s Reply to the Respondent’s Reply, or where the petitioner files no such Reply, then after the filing of the Respondent’s Reply to the Petition and service of some on the Petitioner, the Petitioner is required to apply for the issuance of a pre-hearing notice as in the Form 007 within seven (7) days. That is the Purport of paragraph 18(1) of the First Schedule to the Act.Therefore, the point of conflict between the parties to this Appeal is: When did pleadings in the Petition actually close?
The Appellants, by their submission, would have us believe that time for applying for the issuance of a pre-hearing notice is interminable, and could be at the whims and caprices of a Petitioner. Learned Counsel on their behalf has contended that, since the Replies of the Respondents, (by his calculation), were all filed out of time and therefore not properly before the Tribunal, then it was wrong for the Tribunal to have computed the time based on the date of filing and services of the Replies on the Appellants, and then to have proceeded to apply Paragraph 18(1) & (4) to dismiss the Appeal.
In other words, that the application of paragraph 18(1) & (a) to dismiss the Petition was wrong since the Respondents were equally guilty of filing their Replies out of time and so time had not begin to run.
Before delving into the facts on Record before us, it is wise to resolve the law on the point so that then the facts can be applied with ease to the law to arrive at a judicious decision. Paragraphs 7(1) (a) & (2), 9(1) (a) (b), 10(1) & (2), 11, 12(1), 16(1) & (2) are pertinent to the questions calling for an answer, thus I will reproduce them here-below:
“7.-(1) on the presentation of an election petition and payment of the requisite fees, the secretary shall forthwith-
(a) Cause notice of the presentation of the election petition to be served on each of the respondents;
(2) In the notice of the presentation of the election petition, the Secretary shall state a time, not being less than five days but no more than seven days after the date of service of the notice, within which each of the respondents shall enter on appearance in respect of the election petition.
9.-(1) Where the respondent intends to oppose the election petition, he shall-
(a) within such time after being served or deemed to have been served with the election petition; or
(b) where the Secretary has stated a time under paragraph 7(2) of this Schedule, within such time as is stated by the secretary, enter an appearance by filing a memorandum of appearance stating that he intends to oppose the election petition…
Non-filing of Memorandum of Appearance
10.-(1) If the respondent does not file a memorandum of appearance as required under paragraph 9 of this Schedule, a document intended for service on him may be posted on the Tribunal Notice Board and that shall be sufficient notice of service of the document on the respondent.
(2) The non-filing of a memorandum of appearance shall, not bar the respondent from defending the election petition if the respondent files his reply to the election petition in the Registry within a reasonable time, but, in any case, not later than twenty-one (21) days from the receipt of the election petition.
Notice of Appearance
11. The Secretary shall cause copies of the memorandum of appearance to be served on, or its notice to be given to the other parties to the election petition.
Filing of Reply
12-(1) The Respondent shall within 14 days of service of the petition on him file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies in opposition to the petition.
Service of Reply
13. The Secretary shall cause a copy of the reply to be served on each of the other parties to the election petition.
Petitioner’s Reply
16-(1) If a person in his reply to the election petition raises new issues of facts in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the Registry, within five (5) days from the receipt of the respondent’s reply, a petitioner’s reply in answer to the new issues all act,…
(2) The time limited by subparagraph (1) of this paragraph shall not be extended.”
The wordings of these provisions are set out in such plain, comprehensible and lucid terms that I don’t believe they require any interpretation of aids to decipher. Clearly by paragraph 7(1) & (2), upon the presentation of a Petition by the Petitioner, the Secretary of the Tribunal is required to serve a copy of same on each of the Respondents. In doing so, the Secretary shall prescribe a time limited to between five (5) and seven (7) days, within which the Respondents shall enter appearance in respect of the petition. Thus, by paragraph 9(1) (a) & (b), where the Respondents intend to oppose the Petition, they shall enter appearance within the time limited, i.e. within five to seven (5-7) days, as the case may be, and no more than that.
Thereafter, by paragraph 10(2) of the First Schedule, the law provides for situations in which a Respondent, for whatever reason, fails, neglects and/or refuses to file a memorandum of appearance within the time specified by paragraph 9(1) (a) & (b) preceding. Where such is the case, the law still allows a Respondent to defend a Petition in spite of his laxity in complying with paragraph 9(1) (a) & (b), if, and only if, he files his Reply to the Petition within and not later thon twenty-one (21) days from the date the Petition was served on him. This provision was inserted obviously in the interest of ensuring that an election petition is, as much as possible, determined on the merit and not heard in default of the appearance of the opposing party.
Once again, a deadline or time-limit was imposed on a Respondent who intends to take the benefit of the paragraph. Indubitably therefore, for this category of Respondent who omitted and/or failed to file a memorandum of appearance with in five to seven (5-7) days, (which ever was specified by the Secretary), after service of the Petition on him, he has a maximum of twenty-one (21) days within which to file a Reply. Where such a Reply is not filed within this time, some would fall fowl of paragraph 10(2) and cannot be said to have complied with the requirement. Such a Reply would thus not enable the Respondent to defend a Petition against him under these provisions. For the avoidance of doubt, by these provisions, after twenty-one (21) days of service of the Petition on a Respondent who fails to file a memorandum of appearance, no Reply can be validly and properly filed without on order from the Tribunal or Court as the case may be.
On the other hand, paragraph 12(1) provides for a situation where a Respondent actually complied with paragraph 9(1) (a) & (b), in that he did file a memorandum of appearance within the time delineated by law and set down by the Secretary to the Tribunal, i.e. between five to seven (5-7) days.
Under this paragraph, having timeously filed his memorandum of appearance, the Respondent is required to file his Reply to the Petition within fourteen (14) days of service of the Petition on him. It is clear that the fourteen (14) days time limit in this paragraph would start to run from the date the Petition was served on him and not from the date he filed his memorandum of appearance. Thus, in the case of a Respondent who filed a memorandum of appearance within the time prescribed in paragraph 9, any Reply filed outside the fourteen (14) days from the date of service of the Petition on him, would not be filed in accordance with paragraph 12(1) because it was filed out of the time provided therein. The effect of failing to file within the fourteen (14) days prescribed is that no valid reply would be deemed to have been filed under the paragraph. There is thus a subtle but significant difference between the provisions of paragraph 10(2) and paragraph 12(1).
Under the latter, i.e. paragraph 12(1), where a Respondent filed a memorandum of appearance, he has only fourteen (14) days after service of the Petition on him, whereas under the former, i.e. paragraph 10(2), where a Respondent filed no memorandum of appearance, he has twenty-one (1) days after service of the Petition on him. However, the common denominator in both paragraphs is that, whether or not a Respondent files a memorandum of appearance, after the expiration of the period of days set out therein for the filing of a Reply, a Respondent would be deemed not to have any Reply to the Petition. In my humble opinion, it is therefore not correct to say, as learned Counsel for the Appellants has submitted, that paragraph 12(1) is a specific provision which should be preferred over paragraph 10(2), a general provision. That would be missing the point. Each of the paragraphs caters to two different scenarios as elaborated upon earlier, to wit, where a memorandum of appearance is not entered and where a memorandum of appearance is entered.
Thereafter, paragraph 16(1) provides for a five (5) day time limit after service of a Respondent’s reply on a Petitioner within which the Petitioner may file a reply, if any. This is the next step after paragraphs 10(2) and 12(1) are duly complied with and a Respondent’s reply has been properly filed and served.

By the continuous, consistent and persistent use of the word, “shall” throughout the length and breadth of these paragraphs, denoting the mandatory nature of the provisions and the lack of an option or discretion in the matter, it is evident that pleadings should come to an end and be deemed closed after five (5) days of the receipt of the Respondent’s Reply by the petitioner, whether or not the Petitioner files a Reply thereto. Being mandatory therefore, any non-compliance with the provisions in these paragraphs on the filing of pleadings is grave and may be fatal to the case of the party in breach, unless otherwise ordered by the Tribunal.
Finally, of the close of pleadings, paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended) provides explicitly thus:
Pre-hearing Session and Scheduling
“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 a pre-hearing notice as in Form TF 007.
(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.
(4) Where the petitioner and the respondent fail to bring on 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.
(5) Dismissal of a petition pursuant to sub -paragraphs (3) and (4) of this paragraph is final, and the tribunal or court shall be functus officio.”
From the Record of Appeal and the submissions of learned Counsel, the following facts emerge clearly:
1. The 1st Respondent was served the Petition on 24-11-11. By the combined reading of paragraphs 7(2) and 9(1) (a) & (b) of the First Schedule, he had a maximum of seven (7) days within which to file a memorandum of appearance. These seven (7) days lapsed on 30-11-11, (both dates inclusive). The 1st Respondent however filed his memorandum of appearance on 02-12-11. Therefore, he filed three (3) days outside of time. As elucidated above, where the Respondent has filed a memorandum of appearance, (valid or not), he is thereafter governed by paragraph 12(1), (and not paragraph 10(2)1, and thus the 1st Respondent had only fourteen (14) days after service of the Petition on him to file his Reply to the Petition. Having been served the Petition on 24-11-11 and having filed his memorandum of appearance on 02-12-11 (albeit out of time), fourteen (14) days after the date service of the Petition was effected on him is 08-12-11. The 1st Respondent should thus have filed his Reply on or before 08-12-11. However, from the Record, as well as from his Brief of argument, the 1st Respondent’s Reply was filed on 13-12-11. Thus, the 1st Respondent was out of time to file both his memorandum of appearance as well as his Reply to the Petition. Consequently, neither of the processes is valid.
2. In respect of the 2nd Respondent, PDP, the Petition was served on it on 26-11-11. The 2nd Respondent did not file a memorandum of appearance as required under paragraphs 7 and 9 of the First Schedule. Thus, its situation is clearly governed by Paragraph 10(2) which covers Respondents who fail to file a memorandum of appearance. By this provision therefore, it had twenty -one (21) days from the date of service of the Petition on it to file its Reply. Since it was served the Petition on 26-11-71, its time would lapse on 16-12-11, (both dates inclusive). The 2nd Respondent however filed it Reply on 09-12-11, i.e. seven (7) days to the expiration date, and was therefore well within the confines of the time limit. The reply was served on the petitioner on 12-12-11. It is however noted that in filing its Reply, the 2nd Respondent purported to file a memorandum of appearance along with the Reply on the same date 09-12-11, i.e. concurrently. This was unnecessary.
3. The 3rd and 4th Respondents were served the Petition on 15-11-11 and 17-11-11 respectively. Both did not file any Replies within the time limited for them to do so. Instead they filed preliminary objections to the hearing of the Petition, and stopped there.
4. The 5th to 8th Respondents were served the Petition on 15-11-17. They also did not file a memorandum of appearance. Thus, by paragraph 10(2), they had twenty-one (21) days within which to file their Joint Reply, and time would therefore lapse on 04-12-11, (since November consists of 31 days). The Respondents however filed their Joint reply on 05-12-11 instead of 04-12-71, which is one (1) day outside the twenty-one (21) day period, and some was served on the Petitioner on 08-12-11.
By the preceding deductions, while both the entry of appearance on 02-12-11 and the Reply filed on 13-12-11 by the 1st Respondent, as well as the Joint Replies filed by the 5th-8th Respondents on 05-1 2-11, were all outside the time provided for doing so by the relevant paragraphs of the First Schedule
to the Act, the 2nd Respondent filed its Reply well within the time stipulated for such. The 2nd Respondent’s Reply, which was the latest Reply properly filed, was filed on 09-12-11, (see page77 of the Record), while it was served on the Petitioner on the 12/12/11 (see page 179 of the Record). Thus, by paragraph 18(1) of the First Schedule, having elected not to file a Reply to the Respondents’ Replies, the Petitioners had seven (7) days from 12-12-11, (the date of service on them), within which to apply for a pre-hearing notice.
Seven (7) days from 12-12-11 was 18-72-77, (both dates inclusive). The Petitioners however did not apply for a pre-hearing notice until 30-12-11, (by a letter dated 21-12-11), which date is well outside the seven (7) days limited by paragraph 18(1) of the First Schedule to the Electoral Act, 2010.
From the state of the above set-out facts elicited from the Record of Appeal, and by the relevant provisions of the paragraphs of the First Schedule to the Act, pleadings were deemed to have closed on the 12-12-11, when the Petitioner was served the 2nd Respondent’s Reply. However, in the computation of time in respect of when the Appellant was supposed to have made the application for the issuance of a pre-hearing notice, the Tribunal used the time the 1st Respondent filed his Reply and some was served on the Appellant, i.e. 13-12-11 and 15-12-11 respectively. This is what the Tribunal said at page 187 of the Record:
“Reading paragraphs 10(2) and 12(1) of the 1st Schedule to the Act, if is clear that the application for pre-hearing was made clearly outside the mandatory seven day period after service of the 1st respondent’s reply since the petitioners did not file a petitioner’s reply. From the named provisions read together, it is clear that a respondent – like the 1st 3rd-6th respondents – are to be allowed to file their reply and defend a petition, if such is filed within 21 days of their receipt of the petition. That is what occurred in this instance as regards 1st, 5th -8th respondents – though 3rd -4th respondents opted not to file a reply to the petition. It is our view that going by the analysis of the processes filed in this petition as stated above, the last reply, in the absence of a petitioner’s reply, is that filed by the 1st respondent. The 1st respondents reply was filed within twenty one days on 13-12-11. It was served on the petitioners on 15-12-11. The petitioners had seven days from 15-12-11 to apply for pre-hearing session to confer jurisdiction on this court.”
This position is clearly an error on the part of the Tribunal as the learned Judges evidently did not address their minds to the fact that the 1st Respondent’s Reply was not filed within time and thus, was not a valid Process before them. As found earlier in this Judgment and contrary to the finding of the Tribunal, the 1st Respondent’s memorandum of appearance and his subsequent Reply to the Petition were both out of time and therefore not valid processes before the Tribunal. Secondly, no notice was taken and no reference was made by the Tribunal in its Judgment to the Reply filed by the 2nd Respondent in its findings. This is a curious omission because, as found earlier, the 2nd Respondent’s Reply to the Petition filed on 09-12-12 and served on 12-12-11 was the only Reply properly filed within time and was also the latest or last Reply served on the Petitioners from whence time should begin to run for the purposes of applying for the issuance of a Prehearing notice.
As afore-stated, from the 12-12-11 when the Petitioners were served the 2nd Respondent’s Reply, the Petitioners did not apply for the issuance of a, Pre- hearing notice until 30-12-11, which is nineteen (19) clear days after they were served, whereas by paragraph 18(1), they had only seven (7) days within which to do so. Thus, the application should properly have been made on or before the 18-12-11, (both dates inclusive). Consequently, even though the computation by the Tribunal was faulty, it did ultimately arrive at the correct conclusion that the Petitioners were undeniably out of time when they applied for the issuance of a pre-hearing notice on the 30-12-11. This was the Tribunal’s finding, again at page 187 of the Record:
“The petitioners had seven days from 15-12-11 to apply for pre-hearing session to confer jurisdiction on this court. The petitioners did not apply within the period limited by the provision of paragraph 18(1) of the 1st Schedule thereby robbing this Tribunal of jurisdiction to treat this petition. In consequence of that lapse, the duty of this tribunal is to dismiss this petition because the law deems if as having been abandoned by force of paragraph 18(4) of the 1st Schedule to the Act.”
I have no reason to interfere with this conclusion based on my own computations of time with respect to when the various Replies of the Respondents were filed and served on the Appellants. The application for the issuance of a pre-hearing notice filed on 30-12-11, nineteen (19) days after the expiration of the time permitted, was certainty out of time, and the Tribunal was right to invoke paragraph 18(4) of the First Schedule to the Electoral Act to dismiss the Petition, some having been considered abandoned by reason of the Appellant’s own default. As was found by this Court in the case of Chief Okey Okoro V Hon. Osito Izunaso & 1694 Ors (2010) All FWLR 1550, the provisions of the Electoral Act, 2010 (as amended), especially in respect of timing provided in the First Schedule to the Act, should not be taken lightly by parties to an election petition. They are crucial and must be adhered to, as time is of the essence in the hearing and determination of election petitions which are sui generis. Strict compliance is expected from parties and enforced by both the Tribunal and Court, such that any default in compliance, no matter how slight, could entail fatal consequences, as in the instant Appeal. See also Buhari V Yusuf (2003) 14 NWLR (Pt. 841) 446 at 498.
In the result, I resolve the sole issue in this Appeal in favour of the 1st, 2nd and 5th-8th Respondents, and against the Appellants. The Appeal is solely lacking in merit. It is dismissed with no order made to costs. Each party is to bear the costs of the Appeal.

CLARA BATA OGUNBIYI, J.C.A.: I agree.

PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned Brother Jummai Hannatu Sankey, JCA. I am in full consonance with all the reasoning and conclusions therein as she has dealt exhaustively with all the issues raised. I would also throw my weight behind her conclusion and in the same vein reiterate the fact that time is of essence in the hearing and determination of election petitions which are sui generis.
I also agree that this appeal is devoid of merit and I too dismiss it with no order as to cost.

Appearances

For Appellant

AND

For Respondent