MR. EMMANUEL IKPE & ANOR v. SARAH SUNDAY ELIJAH & ORS.
(2011)LCN/4838(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of October, 2011
CA/C/NAEA/226/2011
RATIO
CROSS-APPEAL: WHETHER A RESPONDENT WHO WANTS A COMPLETE REVERSAL OF A DECISION OR CONCLUSION ON ANY ISSUE MADE AGAINST HIM MUST DO SO BY WAY OF CROSS-APPEAL
The respondent’s notice does not contemplate a situation where the applicant will use it to ask for a complete reversal of decision or conclusions made against him on certain issues. The respondent who wants a complete reversal of a decision or conclusion on any issue made against him which are crucial and fundamental to a case must do so by way of cross-appeal. See A.T.E. Co. Ltd vs. Military Governor, Ogun State (2009) 15 NWLR (Pt.1163) 26 at pp.60, 71-72; Adekeye vs Akinolugbade (1987) 3 NWLR (Pt.60) 214; Ejiogu vs Irona (2009) 4 NWLR (Pt.1132) 513 at 572. PER EJEMBI EKO, J.C.A.
PRE-HEARING NOTICE: INTERPRETATION OF PARAGRAPH 18(1) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT, 2010 (AS AMENDED) AS TO THE TIME FRAME WITHIN WHICH THE PETITIONER MUST APPLY FOR THE ISSUANCE OF PRE-HEARING NOTICE
Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) is very germane to this issue. It provides:- “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, as the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007.” This provision creates some obligation on the petitioner. His duty is to cause the petition to be heard timeously, time being of essence in election petition. Pre-trial session, as rightly submitted by Joe Agi, SAN, for the 1st Respondent is the beginning, not the conclusion or actualization, of the proceedings. Paragraph 18(1) of the 1st Schedule to the Electoral Act, as amended, employs the petitioner as a guard, perpetually vigilant and keeping close watch on the respondents. He can not afford any slight dereliction of duty. It does not lie in the mouth of the petitioner to say, as the present Appellants seem to suggest, that he will discharge his duty only if and when each and all the respondents to his petition have filed the reply or replies to the petition before he takes steps under paragraph 18(1). It is clear from the conduct of the petitioners/Appellants in this matter that they knew exactly what their obligation was under paragraph 18(1). They took steps on 27th June, 2011, at pages 108 and 109 of the Record to ask for pre-hearing notice as in Form TF007 stating inter alia: “That the 1st Respondent hereof have (sic) filed her Reply to the petition of the petitioner while the 2nd and 3rd Respondents have not filed their Reply despite being served with all the processes in this matter and the time allowed for them to enter their reply has since elapsed.” Paragraph 12(1) of the 1st Schedule to the Electoral Act, 2010 as amended, obligates the respondent to the petition, who has been served the petition, to file his reply to the petition within 14 days of the service of the petition on him. Accordingly, these Petitioners/Appellants cannot be heard to say that pleadings have not closed in their petition because the 2nd and 3rd Respondents were yet to file their respective replies after “the time allowed for them to enter their replies had since elapsed.” Election matters or petitions are sui generis and time is of essence. It is clear from the Electoral Act, 2010 as amended, particularly paragraph 18(1) of the 1st Schedule thereof it is the obligation of the petitioner to demand for pre-hearing session after pleadings have closed or are deemed to have closed.The Reply of the 1st Respondent, filed on 11th June, 2011, was served on the petitioners/Appellants on 14th June, 2011. The Petitioners Reply to the 1st Respondent’s Reply was filed on 18th June, 2011. Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010, as amended, is very clear: within 7 days after the filing and service of petitioners/Appellants’ reply on the 1st Respondent or 7 days after the filing and service of the 1st Respondent, the Petitioners/Appellants were under obligation to file their application for issuance of pre-hearing Notice as in Form TF007. I am in complete agreement with the Respondents that the 7 day period elapsed on 24th June, 2011. Accordingly, the purported application for issuance of pre-hearing notice filed on 27th June, 2011 was filed out of time and therefore completely a non-starter. Time started to run after the service on the petitioners of the 1st Respondent’s Reply. I agree with Mr. Umoren of counsel to 2nd Respondent that there was no valid application before the lower Tribunal for the issuance of pre-hearing session. See Ikono vs Izunaso (2009) 4 NWLR (Pt.1130) 45 at 66. PER EJEMBI EKO, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. MR. EMMANUEL IKPE
2. ACTION CONGRESS OF NIGERIA (ACN) Appellant(s)
AND
1. SARAH SUNDAY ELIJAH
2. PEOPLE’S DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): The 1st Respondent contested on the platform of the 2nd Appellant for a seat in the Akwa Ibom State House of Assembly in the Nsit Atai State Constituency in the general election conducted on the 16th April, 2011. He contested for the seat with the 1st Respondent and others. The 1st Respondent contested on the platform of the 2nd Respondent. The election was conducted by the 3rd Respondent. At the close of the poll the 1st Respondent was returned by the 3rd Respondent as the person duly elected to the State House of Assembly to represent the said Nsit Atai Constituency. Aggrieved by the return of the 1st Respondent by the 3rd Respondent, the Appellants presented their petition at the Governorship/Legislative Houses Election Tribunal at Uyo on the 17th May, 2011.
The petition was served on each of the Respondents. It is however not clear from the Record of Appeal on which date each of them was served.
The Record of Appeal shows that the 1st Respondent’s Reply to the petition (pages 68-95) filed on 14th June, 2011, was served on the Appellants on 14th June, 2011. See page 104 of the Record. The Appellants, as petitioners, filed their joint reply to the 1st Respondent’s Reply on 18th June, 2011. See pages 98-103 of the Record.
The 2nd and 3rd Respondents were yet to file their respective replies to the petition, as respondents thereto. On 28th June, 2011 the 3rd Respondent filed at the lower Tribunal an application for enlargement of time within which to file his reply to the petition. The 2nd Respondent, also out of time, filed his application for enlargement of time within which to file his reply to the petition on 5th July, 2011. These two applications were pending at the time the lower Tribunal dismissed the Appellants’ petition on 18th September, 2011 on the ground that the Appellants had not filed a valid application to initiate or commence the pre-hearing session. On 18th July, 2011 the lower Tribunal suo motu caused notice to be served on the parties wherein it raised two issues and invited the parties to address it on the said issues, namely:
“1. Whether the Tribunal has jurisdiction to proceed with the hearing of the pre-trial session and the petition in view of the provisions of paragraphs 18 and 47 of the provisions of paragraphs 18 and 47 of the 1st Schedule to the Electoral Act, 2010 (as amended).
2. Whether the letter dated 27th June, 2011 and addressed to the Secretary National Assembly Election Tribunal, Uyo by counsel to the petitioners wilt suffice as an application for prehearing having regards to paragraphs 18 and 47 of the 1st Schedule to the Electoral Act, 2010 (as amended).”
By the notice, the lower Tribunal invited the parties to address it on the two issues, raised suo motu, on 21st July, 2011. At the resumed hearing the parties agreed to exchange written addresses on these issues. On 11th August, 2011 the issues were duly argued by the adoption of the written addresses variously filed by the parties. Ruling on it was reserved to 18th August, 2011. The Ruling was delivered on the said 18th August, 2011, and the lower Tribunal dismissed the petition of the Appellants on the grounds that the letter filed by the Appellants’ counsel to initiate the pre-hearing session was incompetent and therefore the petition was deemed abandoned.
This petition was originally before a different panel before it was transferred to the second panel. At the first panel effect was given to the letter dated 27th June, 2011 and pre-hearing Form TF007 was issued to each of the Respondents to the petition. The letters at pages 108 and 109 were filed on 27th June, 2011.
At the risk of repetition: the 1st Respondent’s Reply to the petition dated 11th June, 2011 was served on the Petitioners/Appellants on 14th June, 2011. They filed their joint reply thereto on 18th June, 2011. And on 27th June, 2011 their counsel filed the letters at pages 108 and 109, addressed to the Secretary of the Tribunal, requesting him to issue Form TF007 for pre-hearing session to commence.
The only issue of substance really in this appeal is whether there was any valid or competent application filed by the Petitioners/Appellants requesting that Form TF007 be issued.
Parties in the appeal filed and exchanged briefs of argument which they each adopted as their respective arguments in the appeal at the hearing of this appeal on 10th October, 2011. The Appellants want the appeal to be allowed. The Respondents, naturally, urged us to dismiss the appeal. I have painstakingly read all the briefs filed and exchanged.
The 1st Respondent, by leave of this court, filed Respondents’ Notice wherein he raised an issue of the two applications of the Petitioners/Appellants filed at pages 108 and 109 of Record not having been paid for and therefore an incompetent process each. This clearly is a preliminary objection to the countenance of the application for pre-hearing as in Form TF007 to issue. This apart, this is a substantive complaint which can only be properly raised as a ground of appeal in a substantive appeal or cross-appeal. In my considered opinion Orders 9 of the Court of Appeal Rules, 2011, providing for Respondent’s Notice of contention on appeal that the decision of the lower Tribunal should be varied or allowed in part is not another substitute for cross-appeal enabling the respondent to raise substantive complaint which otherwise should have been by way of cross-appeal. The 1st Respondent’s Notice of contention is, therefore, in my considered view, incompetent and it is hereby struck out.
The respondent’s notice does not contemplate a situation where the applicant will use it to ask for a complete reversal of decision or conclusions made against him on certain issues. The respondent who wants a complete reversal of a decision or conclusion on any issue made against him which are crucial and fundamental to a case must do so by way of cross-appeal. See A.T.E. Co. Ltd vs. Military Governor, Ogun State (2009) 15 NWLR (Pt.1163) 26 at pp.60, 71-72; Adekeye vs Akinolugbade (1987) 3 NWLR (Pt.60) 214; Ejiogu vs Irona (2009) 4 NWLR (Pt.1132) 513 at 572.
I now come to the issue: whether there was any valid or competent application for pre-hearing notice, Form TF007, to issue to kick-start the petition. Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) is very germane to this issue. It provides:-
“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, as the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007.”
This provision creates some obligation on the petitioner. His duty is to cause the petition to be heard timeously, time being of essence in election petition. Pre-trial session, as rightly submitted by Joe Agi, SAN, for the 1st Respondent is the beginning, not the conclusion or actualization, of the proceedings. Paragraph 18(1) of the 1st Schedule to the Electoral Act, as amended, employs the petitioner as a guard, perpetually vigilant and keeping close watch on the respondents. He can not afford any slight dereliction of duty. It does not lie in the mouth of the petitioner to say, as the present Appellants seem to suggest, that he will discharge his duty only if and when each and all the respondents to his petition have filed the reply or replies to the petition before he takes steps under paragraph 18(1). It is clear from the conduct of the petitioners/Appellants in this matter that they knew exactly what their obligation was under paragraph 18(1). They took steps on 27th June, 2011, at pages 108 and 109 of the Record to ask for pre-hearing notice as in Form TF007 stating inter alia:
“That the 1st Respondent hereof have (sic) filed her Reply to the petition of the petitioner while the 2nd and 3rd Respondents have not filed their Reply despite being served with all the processes in this matter and the time allowed for them to enter their reply has since elapsed.”
Paragraph 12(1) of the 1st Schedule to the Electoral Act, 2010 as amended, obligates the respondent to the petition, who has been served the petition, to file his reply to the petition within 14 days of the service of the petition on him. Accordingly, these Petitioners/Appellants cannot be heard to say that pleadings have not closed in their petition because the 2nd and 3rd Respondents were yet to file their respective replies after “the time allowed for them to enter their replies had since elapsed.” Election matters or petitions are sui generis and time is of essence. It is clear from the Electoral Act, 2010 as amended, particularly paragraph 18(1) of the 1st Schedule thereof it is the obligation of the petitioner to demand for pre-hearing session after pleadings have closed or are deemed to have closed.The Reply of the 1st Respondent, filed on 11th June, 2011, was served on the petitioners/Appellants on 14th June, 2011. The Petitioners Reply to the 1st Respondent’s Reply was filed on 18th June, 2011. Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010, as amended, is very clear: within 7 days after the filing and service of petitioners/Appellants’ reply on the 1st Respondent or 7 days after the filing and service of the 1st Respondent, the Petitioners/Appellants were under obligation to file their application for issuance of pre-hearing Notice as in Form TF007. I am in complete agreement with the Respondents that the 7 day period elapsed on 24th June, 2011. Accordingly, the purported application for issuance of pre-hearing notice filed on 27th June, 2011 was filed out of time and therefore completely a non-starter. Time started to run after the service on the petitioners of the 1st Respondent’s Reply. I agree with Mr. Umoren of counsel to 2nd Respondent that there was no valid application before the lower Tribunal for the issuance of pre-hearing session. See Ikono vs Izunaso (2009) 4 NWLR (Pt.1130) 45 at 66.
This appeal, in my considered view, lacks substance and it is hereby dismissed. The lower Tribunal held at page 329 of the Record, and it can not be faulted, that where a statute clearly provides for a particular act to be done or performed; failure to perform the act, on the part of a party, as directed by the statute will be interpreted as not only a delinquent conduct but also as not complying with the statute by the party enjoined or obligated to do so. These Appellants clearly disobeyed and were insubordinate to the clear and mandatory directive of paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010, as amended.
Parties shall bear their respective costs.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother E. Eko, JCA. I agree with his reasoning and final conclusions that the Appeal is lacking in merit. Appeals is hereby dismissed. I abide by all the other orders in the lead judgment of my learned brother.
JOSEPH TINE TUR, J.C.A.: I have read the judgment delivered by my Lord Ejembi Eko, JCA and I am in agreement that this appeal lacks merit and is dismissed.
In dismissing the petition on 18-08-2011 the Tribunal held that:
“…we find ourselves bound to dismiss this petition because it is deemed to have been abandoned because neither of the parties have applied or validly applied for the issuance of Form TF007 as demanded by paragraph 18(1) of the 1st Schedule more than seven days after pleadings were deemed closed on or about 18-06-2011 and this tribunal is robbed of jurisdiction thereby. This petition is consequently dismissed for being abandoned under paragraph 18(4) of the 1st schedule to the Electoral Act, 2010 (as amended). Emesin vs Nwachukwu (1999) 3 NWLR (Pt.596) 590.”
In paragraph 2.04 of the appellants’ brief filed on 21-09-2011 it is conceded that the appellants filed Reply brief in response to the brief of the 2nd Respondent on 18-06-2011 which was served the same day on the 1st Respondent. By the provisions of paragraph 18(1) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended pleadings were deemed closed on 18-06-2011 and the appellants had seven days to apply for pre-trial session. This expired on 25-06-2011 if the computation of time should exclude the day the pleading closed. I hold that the seven days having expired on 25-06-2011 whereas the application was made to the Tribunal on 27-06-2011 was clearly out of time.
The appellants have not been able to fault the judgment of Tribunal. For this reason I also dismiss this appeal and abide by the orders of my Lord.
Appearances
David David, Esq – for the Appellants.For Appellant
AND
Joe Agi, SAN, with Nta A. Nta; F. O. Onyebueke, Udenyi Omaji (Mrs), Vincent Mba and Affiong Onum
U. E. Umor, Esq.
F. J. Obot, Esq.For Respondent
