MRS. GLORIA ANULIKA ANAEKWE V. MR. KINGSLEY IRUBA & ORS (2011)

MRS. GLORIA ANULIKA ANAEKWE V. MR. KINGSLEY IRUBA & ORS

(2011)LCN/4824(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of October, 2011

CA/E/EPT/24/2011

RATIO

APPLICATION/APPLY: MEANING OF THE TERMS ‘APPLICATION’ AND ‘APPLY’

…the term application as a noun simply denotes a request or petition. It may also mean a motion. Thus, the term ‘apply’ as a verb denotes to make a formal request or motion: as for instance, to apply for a loan or an injunctive relief. Contrastively, the term denotes a written (or oral) application requesting a court to make a specified ruling or order as in motion for leave to appeal; motion for summary judgment, et al. see BLACK’S LAW DICTIONARY, 8th edition at pages 108, 109, 1030, and 1038, respectively. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPH 18 (1) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2010 AS REGARDS THE WAY BY WHICH THE APPLICATION FOR ISSUANCE OF A PRE-HEARING SESSION NOTICE SHOULD BE MADE

…it’s not at all in dispute, that the actual mode by which the ‘application’ for issuance of a pre-hearing session notice has not been provided for under the First Schedule to the Electoral Act 2010 (Supra). However, the formats for both the HEARING NOTICE FOR PRE-HEARING SESSIONAND ‘PRE-HEARING INFORMATION SHEET referred to under paragraph 18 (1) & (2) (Supra) have been provided for as forms TF 007 and TF 008. Analogically, the requirement for an application under paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (Supra), could be likened to that under the provisions of order 23 of the High Court (Civil Procedure) Rules, 1998 regarding the undefended list procedure which provides, inter alia, thus: 1. Whenever application is made to a court for the issue of a writ of Summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and is stating that, in the deponent’s belief, there is no defence there to, the court shall, if satisfied that there are good grounds for believing that there is no defence there to, enter the suit for hearing in what be called the undefended list, and mark the writ of summons accordingly, and enter there on a date for hearing suitable to the circumstances of the particular case. It is trite that, the above provision has been a subject of various interpretations by both the Court of Appeal and Supreme Court alike. In one of such decisions, it was held by this Court that – By the ordinary meaning of application (Supra) it appears the intendment of the provisions of order 23 and particularly the use of the word application is that a special request must be made first before a writ of Summons is placed on the undefended list. The substratum of the provision is application. Once there is all (sic) application, however made either by a motion exparte under order 8 or by the filing of form one under order 5, the legal requirement is (sic) fulfilled once an application is made. In the case of OKNOFUA VINCENT OMOJAHE V. UWESU & 2 ors (1999) 5 SCNJ P.280 at 287, the Supreme Court held that statutes are construed to promote the general Purpose of the legislature. Judges ought not to go by the letter of the Statute but also by the spirit of the enactment…” His lordship, Saulawa, JCA; at pages 20 – 27 of the case under reference thereafter considered in extenso the cases of Ayuba v. INEC (unreported) APPEAL NO. CA/EP/K/15/2007; Riruwai v. Shekarau; (supra) and Okereke v. Yar’adua (2008) 12 NWLR (Pt. 110) 95; and brought out the point most clearly that the said cases, in the light of their peculiar facts, cannot be taken as deciding that motion is the only way by which application for issuance of pre-hearing notice can be made. My learned brother, Dongban-Mensem, JCA; dwelling on the issue concerning the making of application for issuance of pre-hearing notice in his concurring contribution at page 4 stated thus: –
“Paragraph 18 (1) is clear, unambiguous and indeed simple, the Petitioner shall apply for the issuance of pre-hearing notice. In fact the description of what the Petitioner shall apply for clearly shows that a simple request suffices. A written application puts the facts of the request on record as evidence of compliance. The application/request to issue activates the process of issuing Form TF 007 which is done by the Secretary to the Tribunal (paragraph 7(i) of the 1st Schedule of the Electoral Act). It befuddles me that so much ado is made about this very unambiguous provision and it is more curious to expect that a petitioner can be shut out at infancy, upon an alleged failure to make this application by way of motion! No doubt, a failure to put in the application at all, could be fatal to the Petitioner (refer: OKEREKE V YAR’ADUA (2008) 4 FWLR Pt. 4430 P626 @ 646).
An application for an application, as in a request, is a simple application; a “please, issue Form TF 007″ should be sufficient, all other details actually repose with the Court Registry before which all the processes are filed. To terminate an election petition for the simple reason of the form and not the substance of an enactment appears to be frivolously fallacious.” Later on, in the concurring contribution, the learned Justice of the Court of Appeal at page 7 stated thus: – “We must make a distinction as to the form of the application and the fact of the application under paragraph 18 (i). Form of application refers to the manner of making the request for the issuance of Pre-hearing Notice – should it be by motion exparte, motion on notice or a simple letter application? I am unable to comprehend the argument that this vital request should be by motion on notice; apart from the secretary, who has the duty to issue the pre-hearing Notice in consultation with the Chairman of the tribunal, who else is supposed to be put on notice and for what purpose? ….
Also dwelling on the issue, in his concurring contribution, my learned brother, Jauro, JCA; at pages 2 – 3 stated thus: – “Paragraph 18 (1) of the first schedule to the Act, clearly places a mandatory duty on the petitioner to apply for the issuance of pre-hearing notice. By paragraph 18(3) of the same schedule, the respondent may also bring an application for the issuance of pre-hearing notice. It should be noted that the issuance of pre-hearing notice is the beginning of the procedure towards the commencement of pre-hearing conference. Paragraph 18(3) goes on to provide that in the event of failure to apply for the issuance of the pre-hearing notice, the respondent may apply by motion served on the petitioner for the dismissal of the petition. The legislature in paragraph 18(3) made a distinction between an ‘application’ and a ‘motion’. The Legislature it appears envisages two types of applications the first is an application for issuance of pre-hearing notice, which can be in any form. The second is an application to dismiss the petition which has to be by formal motion on notice. An application for the issuance of a pre-hearing notice is very unique, in the sense that it is made before the commencement of pre-hearing session. In view of the fact that the law has placed a mandatory duty on the petitioner to apply for pre-hearing notice, leave is not necessary for making of the application as envisaged by Paragraph 47(1) of the First Schedule to the Act, notwithstanding the fact that it is made before the pre-hearing conference. The application for pre-hearing notice kick starts the procedure of pre-hearing conference; hence the application can be made by letter or motion, either exparte or on notice.” I must state that the decision (unreported) delivered on 22/8/2011 in APPEAL NO. CA/J/EP/HR/127/2011 – ALIYU IBRAHIM GEBI V. ALHAJI GARBA DAHIRU & 3 ORS is a unanimous one. I have only quoted portions of it that are most striking to me and I am of the considered view that it has been sufficiently demonstrated from the various portions of the judgment which I have quoted above, that the first position taken by this Court in relation to Paragraph 18(1) of the 1st Schedule, is that an application for issuance of pre-hearing forms can properly be made by way of letter addressed to the secretary of the Tribunal. In other words, that Paragraph 18(1) of the 1st Schedule has not provided that a petitioner shall make the application for issuance of pre-hearing notice by way of motion only. This Court is bound by its own decisions. This being the position I am of the settled view that the decisions delivered by the Calabar Division of this Court as well as the Makurdi Division (which the Respondents rely upon) must be taken to have been given per incuriam to the extent that they decide that an application for issuance of pre-hearing notice cannot be made by any other means or mode save by motion. Given this view, I actually see no need to choose between a decision of this Court that has not been overruled and those given per incuriam. However, if I saw the need to choose, from the conflicting decisions of this Court in respect of the issue as to whether or not an application for issuance of pre-hearing notice can properly be made by way of letter, I will readily abide with the decisions that decide to the effect that such an application need not be made by way of motion only. The duty to make an application for issuance of pre-hearing notice is basically placed on the petitioner who is the originator of an election petition. Though a respondent can also make the application, the provision of Paragraph 18(1) of the 1st Schedule gives him discretion not to do so. It is a settled position of the law, that it is the making of the application for issuance of pre-hearing notice/form that moves the Petition to the pre-hearing session stage. The petitioner is to make the application for the issuance of pre-hearing notice within a specified time frame after completion of pleadings in the Petition. An application for issuance of pre-hearing form, in the circumstances would appear to be no more than the initiating process for pre-trial session. The forms which are to issue consequent to the application made by the petitioner for their issuance; are clearly to be filled by the parties. The parties are to do this, without any interference or input from the court. The forms in my view are in the same class as a writ of summons which a plaintiff who conceives that he has a cause of action against some other person(s) simply obtains from the registry of the court upon application. An application for a writ can hardly be denied a plaintiff who believes that his matter is worth litigating in court. Although the life of the writ of summons can be terminated for diverse reasons after its issuance, the fact is that it is delivered to any person who applies for it, by the mere asking. It is clear from the Forms to issue upon the application of the petitioner for issuance of pre-hearing form/notice, that the court has absolutely no judicial discretion or power to exercise in relation to their issuance. Against the backdrop of all that I have said, it becomes glaring to me that “application” as used in the provision under consideration permits of any “documentable manner” of asking; and this definitely includes an application by way of letter. The manner of asking would need to be “documentable” so as to be ready evidence/proof of the day of the making the application, when in issue. In the light of all that I have said before now, and particularly abiding by the decision of this Court in APPEAL NO. CA/J/EP/HR/127/2011 – ALIYU IBRAHIM GEBI V. ALHAJI GARBA DAHIRU & ORS. (supra): my answer to Issue 1, is that the making of the application for the issuance of pre-hearing notice as in Form TF 007 by the Appellant by way of letter addressed to the secretary of the Tribunal is not in contravention or violation of the provision of Paragraph 18(1) of the 1st Schedule. In conclusion, I therefore hold that the Tribunal was very wrong when it held to the effect that the Appellant’s application for the issuance of pre-hearing notice by way of letter is wrong in law or not acceptable in law. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

APPLICATION FOR HEARING OF PRE-HEARING NOTICE: WHETHER IT IS THE MAKING OF THE APPLICATION FOR ISSUANCE OF PRE-HEARING NOTICE/FORM THAT MOVES THE PETITION TO THE PRE-HEARING SESSION STAGE

It is a settled position of the law, that it is the making of the application for issuance of pre-hearing notice/form that moves the Petition to the pre-hearing session stage. The petitioner is to make the application for the issuance of pre-hearing notice within a specified time frame after completion of pleadings in the Petition. An application for issuance of pre-hearing form, in the circumstances would appear to be no more than the initiating process for pre-trial session. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

JUSTICES

ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

MRS. GLORIA ANULIKA ANAEKWE Appellant(s)

AND

1. MR. KINGSLEY IRUBA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. RESIDENT ELECTORAL COMMISSIONER, ANAMBRA STATE
4. ELECTORAL OFFICER, NNEWI SOUTH L.G.A.
5. CONSTITUENCY RETURNING OFFICER NNEWI SOUTH CONSTITUENCY 1
6. COLLATION OFFICER, OSUMENYI WARD 1
7. COLLATION OFFICER, OSUMENYI WARD 2
8. SUPERVISORY PRESIDING OFFICER, OSUMENYI WARD 1
9. SUPERVISORY PRESIDING OFFICER, OSUMENYI WARD 2 Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling delivered on 11/8/2011 by the National and State Houses of Assembly Election Tribunal, Awka, Anambra State, (hereafter simply referred to as “the Tribunal”) dismissing Petition No. EPT/AN/HA/18/2011: as an abandoned Petition.
The Appellant was the Petitioner in Petition No. EPT/AN/HA/18/2011 (hereafter simply referred to as “the Petition”). The Appellant on 16/5/2011 instituted the Petition which relates to the Nnewi South Constituency 1 of the Anambra State House of Assembly election held on 26/4/2011. The Appellant contested the election on the platform of the Peoples Democratic Party (hereafter simply referred to as “PDP”). The Appellant is by the Petition challenging the declaration and return of the 1st Respondent as the winner of the election. The reliefs which the Appellant prayed of the Tribunal, as set out in paragraph 6 the Petition, are re-produced hereunder: –
“Your Petitioner most humbly prays this Honourable Tribunal for the following Reliefs:
1. That it may be determined that the return of the 1st Respondent is wrongful, null and void by reason that the 1st Respondent was not duly elected and returned by majority of the lawful votes cast at the said election.
2. That the Petitioner be declared as validly elected having polled the highest number of lawful votes cast at the election and subsequently be returned and 2nd Respondent be directed to issue the Petitioner with a Certificate of Return.
OR
In the alternative Order a re-run in Osumenyi Wards 1 and 2 to determine the eventual lawful winner of the said election.”
The 1st and 2nd – 9th Respondents respectively, duly filed their Replies to the Petition. The Petitioner also filed his Replies to the respective Replies of the 1st and 2nd – 9th Respondents. The 2nd – 9th Respondents will hereafter be simply referred to as “the 2nd Set of Respondents. Upon information given to the Tribunal by the Appellant that she had made the requisite application for the issuance of pre-hearing forms, the Tribunal set the Petition down for pre-hearing session which commenced on 15/7/2011. Subsequent to the conclusion of the pre-hearing sessions held in the Petition, the 2nd Set of Respondents brought a motion on notice dated 29/7/2011 and filed on 31/7/2011, seeking for the following: –
“1. An Order granting the Respondents/Applicants leaves of the Honourable Tribunal to entertain this Motion outside the pre Hearing Session.
2. An Order striking out the Petitioner’s Application (by letter) for the issuance of Pre Hearing Notice as in Form TF 007 for being incompetent and unknown to Law/Electoral Act 2010 (As Amended).
3. An Order setting aside the said Application/Notices for Pre Hearing Form sessions as well as the Pre Hearing session conducted in the Petition as a nullity having emanated from a process unknown to law and thus conducted without jurisdiction.
4. An Order dismissing this PETITION NO. EPT/AN/HR/18/2011: GLORIA ANIEKWE (sic) v. KINGSLEY IRUBA & ORS as abandoned petition.
5. And for such further Order or Orders as the Honourable Tribunal may deem fit to make in the circumstances.”
The grounds of the application as set out in the motion on notice are as follows: –
“1. The Petitioner/Respondent applied for the issuance of Pre Hearing Notice as in Form TF 007 by letter contrary to mandatory and express provisions (sic) Paragraph 47(2) of First the (sic) Schedule to the Electoral Act 2010 (As Amended).
2. The application for Pre Hearing Notice as in Form TF 007 made by the Petitioner in this Petition is unknown to Law and the Electoral Act 2010 (As Amended), thus incurably defective and grossly incompetent.
3. The proper application for the issuance of Pre hearing notice as in Form TF 007 is a condition precedent for the issuance of Pre hearing notice and the subsequent conduct of Pre hearing session in an Election Petition as well as hearing of the Petition.
4. The condition precedent for the conduct of Pre hearing session in this Election Petition was not satisfied in this case as there is no proper application known to Law/Electoral Act, 2010 (As Amended) for the issuance of Pre hearing Notice as in Form TF 007.
5. Any Pre Hearing session conducted without the proper Procedure is a nullity and robs the Honourable Tribunal of the jurisdiction to continue to entertain/hear this Petition.
6. The Application/Directive/Notices/Order for Pre Hearing Conference and the Pre Hearing Session conducted in this Petition as well as any other directives given therein amount to a nullity having been made without jurisdiction and ought to be set aside by this Honourable Tribunal.
7. This Petition No. (sic) PETITION NO. EPT/AN/HR/18/2011: GLORIA ANIEKWE V. KINGSLEY IRUBA & ORS is liable to be dismissed by virtue of paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as Amended) as no application for the Pre Hearing Notice known to Law and the Electoral Act, 2010 (as amended) has been made by Petitioner/Respondent.
8. This Honourable Tribunal is divest (sic) of the jurisdiction to continue with the hearing of this Petition in the circumstances.
9. To save the judicial and judicious time of this Honourable Tribunal and in the interest of justice.”
The Appellant filed a counter affidavit and written address in opposition to the motion brought by the 2nd Set of Respondents. The 2nd Set of Respondents aside from filing a written address in support of their motion also filed a further affidavit and further written address in the motion. The motion was entertained by the Tribunal on 8/8/2011 and ruling therein reserved till 11/8/2011, The Tribunal duly delivered its ruling on 11/8/2011 and in the ruling, dismissed the Appellant’s Petition as an abandoned Petition.
The Petitioner (now Appellant) being dissatisfied with the dismissal of the Petition as an abandoned Petition, lodged an appeal against the ruling of the Tribunal in that regard. The Notice of Appeal filed by the Appellant is dated 26/8/2011 and filed on 27/8/2011. The Notice of Appeal contains four grounds of appeal. The grounds of appeal shorn of their respective particulars read thus: –
GROUNDS OF APPEAL
GROUND ONE – ERROR IN LAW
The tribunal below erred in law when it held that the timing of filing of Appellant’s application for issuance of pre-hearing notice as in Form TF007 is incompetent and a nullity without due regard to the alternative option of having been filed after filing and service of Respondents’ Reply under paragraph 18(1)to the First Schedule to the Electoral Act, 2010 (as amended).
GROUND TWO – ERROR IN LAW
The learned trial Judges erred in law to have nullified the entirety of pretrial session had between the parties upon Appellant’s application of 1st July, 2011 when it ought to have held same as a waived irregularity, if it was irregular as the Respondents had taken fresh steps and no miscarriage of justice was shown.
GROUND THREE – ERROR IN LAW
The learned Tribunal Judges erred in law and thereby occasioned a grave miscarriage of justice when they determined that the Petitioners application by letter for pre-trial session as in Form TF 007 filed on 1st July, 2011 is incompetent and a nullity.
GROUND FOUR – ERROR IN LAW
The Tribunal below erred in law when it held that Appellant’s application dated 1/7/2011 for issuance of pre-hearing notice, upon which pre-trial was conducted is incompetent being a letter instead of a motion when there is no such legal qualification.”
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. Appellant’s Brief of Argument is dated 15/9/2011 and filed on the same date. Appellant filed Reply Briefs to the respective Briefs of Argument of the 1st and 2nd Set of Respondents. The Reply Brief in response to the Brief of Argument of the 1st Respondent is dated 27/9/2011 and filed on the same date. That in response to the Brief of Argument of the 2nd Set of Respondents is dated 26/9/2011 and filed on the same date. All the Briefs of Argument filed by the Appellant were settled by Chief G. Tagbo Ike; and Ikenna Mbazulike-Amechi, Esq. The Brief of Argument of the 1st Respondent dated 26/9/2011 and filed on the same date was settled by A.C. Anaenugwu, Esq.; Hipo C. Onwuegbuke, Esq.; G.B. Obi, Esq.; T.U. Oguji, Esq.; and Uzoamaka Ilobi (Mrs.). The Brief of Argument of the 2nd Set of Respondents dated 20/9/2011 and filed on 21/9/2011 was settled by Nkiru Frank Megwa (Mrs.) (Senior Legal Officer, INEC). At the hearing of the appeal on 28/9/2011, parties through their respective counsel duly adopted and relied on their Briefs of Argument as hereinbefore identified as their arguments in respect of their positions in the appeal.
The Appellant formulated two Issues in her Brief of Argument as arising for determination in the appeal. The Issues read thus: –
“(i) Whether the timing of Appellant’s application for issuance of pre-hearing notice as in form TF 007 is fatal to warrant nullification of the pretrial session, and dismissal of the petition as abandoned? (GROUNDS 1 & 2)
(ii) Whether the Appellant’s mode of application by letter dated 1st July, 2011 for issuance of pre-hearing notice as in Form TF 007 is competent under the Electoral Act 2010 (as amended)? (GROUNDS 3 & 4)”
The lone issue for determination in the appeal as formulated in the Brief of Argument of the 1st Respondent reads thus: –
“Whether the Honourable Tribunal was right in dismissing the petition as abandoned petition for non-compliance with the provisions of paragraph 18(1) of the First schedule to the Electoral Act, 2010 (as amended).”
Two issues are formulated for the determination of the appeal in the Brief of Argument of the 2nd set of Respondents. They read thus: –
“1. Whether the mere letter written to the Secretary of the Tribunal below written outside the period mandatorily stipulated under Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended) (sic) a proper Application for issuance of Pre-Hearing Notice as envisaged by law.
2. If the answer to issue one above is in the negative, is the Petition at the Tribunal below not liable to be dismissed as an abandoned Petition?
I consider it more expedient to formulate the issues for the determination of the appeal against the backdrop of the motion on notice entertained by the Tribunal and its reasons for its decision that the Petition is an abandoned Petition and of course in the light of the grounds of appeal. In this regard, I will resolve the appeal upon the following issues: –
(i) Whether the making of the application for issuance of Pre-Hearing Notice as in Form TF 007 by way of letter as the Appellant did, is in contravention or in violation of the provision of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 (as amended)?
(ii) Whether the Tribunal was right in dismissing the Appellant’s Petition as an abandoned Petition pursuant to Paragraph 18(4) of the First Schedule to the Electoral Act 2010 (as amended), based on its finding and holding that the Petitioner’s application by letter dated 01/7/2011 is incompetent and a nullity?
ISSUE 1
The Tribunal at page 600 of the record stated thus: –
“… Having found as (sic) have on the wrong timing of the application, it is no longer necessary to determine whether an application under Paragraph 18(1) of the First Schedule can properly be brought by a letter as opposed to a motion”.
Yet, immediately after stating as quoted above, the Tribunal from page 661 – page 663 of the record, dwelled on the very issue it said there was no longer any need to determine, and concluded by stating thus: –
“Accordingly, this application succeeds, the orders are granted as prayed.”
It would appear incontrovertible that the Tribunal by granting the orders prayed for in the application of the 2nd Set of Respondents had thereby found that the Appellant’s application by way of letter for issuance of pre-hearing form/notice is unknown to the Electoral Act, 2010 (as amended). (NB. The Electoral Act, 2010 (as amended) will hereafter be simply referred to as “the Electoral Act”). It was sequel to granting the orders as prayed in the application brought by the 2nd Set of Respondents, that the Tribunal found the Petition to be an abandoned Petition and dismissed the same pursuant to Paragraph 18(4) of the First Schedule to the Electoral Act.
In her Brief of Argument, the Appellant dealt with the issue as to whether or not the mode of applying by letter, for issuance of pre-hearing notice/form, she employed is competent under the Electoral Act. The
Appellant submitted to the effect that the cases of Riruwai v. Shekarau (2008) 12 NWLR (Pt. 1100) 142; and Ado v. Mekara (2009) 9 NWLR (Pt. 1147) 491 at 507 – 508; which the Tribunal relied upon in arriving at the conclusion that application for issuance of pre-hearing notice by way of letter, is wrong in law, are no more good law, as the cases must be deemed to have been overruled by later decisions in Hassan v. INEC (2008) 39 WRN 31; Dimegwu V. Odunewe (citation not supplied); Senator Bagudu & Anor. v. Mohammed Aliero & Ors: CA/S/EPT/SN/2/2011 (unreported) delivered on 24/8/2011 and Lawrence Ezendu v. Olibie John & Ors: CA/E/EPT/06/2011 (unreported) delivered on 5/9/2011.
The Appellant made various submissions that go to show that applying for the issuance of pre-hearing notice by way of letter is very competent under the Electoral Law. In this regard, the Appellant submitted to the effect that it is not in the contemplation of the Electoral Act that an application for issuance of pre-hearing notice shall be by motion inasmuch as it is settled law that all motions shall come up for determination at pre-hearing session. That it is an absurdity to argue that the very application that is to activate pre-hearing session will come up at the very session it ought to activate. It is also the submission of the Appellant that it is deducible from Paragraph 18(3) of the First Schedule to the Electoral Act that an application by way of letter, not being a motion, is one of the two options intended for use in the activation of pre-hearing session. Lastly, the Appellant submitted to the effect that the word “application” as used in Paragraph 47 of the First Schedule to the Electoral Act, is not applicable to application for the issuance of pre-hearing notice/form, as an application in that regard, is not made to the Court or Tribunal but the Secretary of the Tribunal. (NB. the First Schedule to the Electoral Act, 2010 (as amended), will hereafter be simply referred to as the “1st Schedule”).
The 1st Respondent in his Brief of Argument made various submissions in relation to this Issue. It is the submission of the 1st Respondent that in the light of the provisions of Paragraphs 18(1) and 47(2) and (3) of the 1st Schedule, it is clear that any application for issuance of pre-hearing notice must be made by motion supported by an affidavit and written address and that a petitioner who adopts any other mode of applying, will be contravening the provisions of the Electoral Act and the Petition shall be deemed abandoned and consequently dismissed. The cases of Ojong v. Duke (2003) 14 NWLR (Pt. 841) 581; and Nwankwo v. Yaradua (sic) (citation not provided) were cited as stating the position of the law to be that, where a statute provides for the doing of an act in a particular manner, that manner and none other must be employed. The cases of Riruwai v. Shekarau; and Ado v. Mekara (both supra) were cited in aid of the position of the 1st Respondent that application for issuance of pre-hearing notice, is to be by way of motion. Also cited in aid, are three unreported decisions of the Calabar Division of this Court delivered in September, 2011: and one decision of the Makurdi Division of this Court also delivered in September, 2011. The 1st Respondent submitted that if the cases of Riruwai v. Shekarau; and Ado v. Mekara (both supra) are no longer good law because of the later decisions of this Court cited by the Appellant, then the “later decisions” relied upon by the Appellant, are equally no longer good law in the light of the later decisions of this Court in Edeghe & Ors v. Godswill Obot Akpabio & Ors (unreported) delivered on 15/9/2011; and PDP v. Prof. Stephen Ugbah & Ors (unreported) delivered on 16/9/2011.The 1st Respondent submitted that whichever principle the Court decides to apply in deciding which of its conflicting decisions to follow, it is clear that the decisions of the Court to the effect that application for issuance of Pre-Hearing Notice must be made by way of motion are preferable. This is because the decisions to that effect, are later in time and/or decided by the full court i.e. panel of five Justices of the Court of Appeal.
The arguments canvassed by the 2nd Set of Respondents on the issue under consideration to all intent and purposes are not different from those of the 1st Respondent as already highlighted above. Indeed, the arguments of the 2nd Respondent on the issue can be properly described as a rehash of those of the 1st Respondent.
The provision of Paragraph 18(1) of the 1st Schedule in question reads:
“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 pre-hearing notice as in Form TF 007.”
The above provision is ipsissima verba with that in Paragraph 3(1) of the Election Tribunal & Court Practice Directions, 2007 (which will hereafter be simply referred to as “2007 Practice Directions”). The 2007 Practice Directions applied to Election Petitions under the Electoral Act, 2000. It is no doubt correct that this Court in the exposition of the provision of Paragraph 3(1) of the 2007 Practice Directions, in the cases of Riruwai v. Shekarau; and Ado v. Mekara (both supra), pronounced to the effect that application for issuance of pre-hearing notice as in Form TF 007 must be by way of motion. It however cannot be denied having regard to some other cases cited by the Appellant that this Court equally made pronouncements that run counter to those made in the cases of Riruwai v. Shekarau; and Ado v. Mekara (both supra) in relation to the same provision of Paragraph 3(1) of the 2007 Practice Directions. Thus there were conflicting decisions of this Court in relation to mode of application for issuance of pre-hearing notice as provided for under Paragraph 3(1) of the 2007 Practice Directions.
Under the extant Electoral Act, Election Petitions are governed by the provisions set out in the 1st Schedule; the Election Tribunal and Court Practice Directions, 2011; and the default Rules of Court i.e. the Civil Procedure Rules of the Federal High Court. As it can be seen from the provision earlier quoted above, the provision relating to the making of application for issuance of pre-hearing notice as contained in the 2007 Practice Directions, has now been elevated to a higher status by now being a provision in Paragraph 18(1) of the 1st Schedule. This is against the backdrop of the position of the law in respect of Schedule to an Act, vis-‘E0-vis Practice Directions. The law is that the Schedule to an Act is as much part of the Act as any other part of it.From the research that I have undertaken, the first occasion known to me, wherein this Court gave a consideration to the provision of Paragraph 18(1) of the 1st Schedule, is in the decision (unreported) delivered on 22/8/2011 in APPEAL NO. CA/J/EP/HR/127/2011 – ALIYU IBRAHIM GEBI V. ALHAJI GARBA DAHIRU & 3 ORS. The appeal under reference was entertained by a panel of 5 Justices of this Court (i.e. the full Court). The appeal was determined upon the three Issues formulated by the Appellant therein. The first of the three Issues reads thus: –
“Whether the failure of the First and Second Respondents to file an application for the issuance of the pre hearing notice as mandatorily required by paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended has not rendered the said Respondents’ petition incompetent thereby depriving the Tribunal of the Jurisdiction to hear the petition.”
Before the Tribunal, the 1st and 2nd Respondents in the matter, applied for the issuance of pre-hearing notice by a letter addressed to the Secretary of the Tribunal. Dwelling on the issue re-produced above, the Court per Saulawa, JCA; (who wrote the lead judgment) stated at pages 16 – 19 thus:-
“It is my belief that the answer to that fundamental question may not be farfetched. The requirement for pre-hearing session, rescheduling of election petitions, et al, has been explicitly provided in the Electoral Act, 2010 as amended (Supra). Most especially, the first schedule to the Act has provided, inter alia, as follows:
18-(1) 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 respondent’s reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.
(2) Upon application by a petitioner under sub-Paragraph (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 a CCOM: Parried by a prehearing information as in form IF 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 appears best adopted to ensure its just expeditious and economical disposal in view of the urgency of election petitions.
(c) giving discretions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in new (sic) the need for the expeditious disposal of the petition; and
(d) fixing clear dates for hearing of the petition.
The pertinent question, at this point in time, is whether or not the 1st and 2nd Respondents (petitioners) have compiled with the above well set out provisions of paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (supra). I have had a cause, for obvious reasons, hereinabove to copiously allude to the relevant portion of the findings of the lower tribunal at page 369 of the record of appeal. At the risk of being repetitive, I have deemed it expedient to, once more refer to the portion of the said findings, viz: –
For avoidance of doubt our position is that the allege (sic) breach (if any) of writing a letter for the issuance of pre-trial notice in this case is not fatal to warrant the striking out of the petition. More so that at this stage of the proceedings, the applicant has not thrown (sic) any miscarriage of justice or injustice he stands to suffer by the method employed in moving this petition to the stage of pretrial conference.
In the result, we are of the view that the letter to the tribunal as in this case comprise and carries out the indention (sic) and requirement of paragraph 18(1) of the first schedule to the Electoral Act 2010 (as amended). See page 369, lines 19-278 of the record.
Without much ado, I would want to believe that the above findings of the lower tribunal are rather unassailable. And my reason for saying so is not farfetched. Instructively, the term application as a noun simply denotes a request or petition. It may also mean a motion. Thus, the term ‘apply’ as a verb denotes to make a formal request or motion: as for instance, to apply for a loan or an injunctive relief. Contrastively, the term denotes a written (or oral) application requesting a court to make a specified ruling or order as in motion for leave to appeal; motion for summary judgment, et al. see BLACK’S LAW DICTIONARY, 8th edition at pages 108, 109, 1030, and 1038, respectively.In the instant case, it’s not at all in dispute, that the actual mode by which the ‘application’ for issuance of a pre-hearing session notice has not been provided for under the First Schedule to the Electoral Act 2010 (Supra). However, the formats for both the HEARING NOTICE FOR PRE-HEARING SESSIONAND ‘PRE-HEARING INFORMATION SHEET referred to under paragraph 18 (1) & (2) (Supra) have been provided for as forms TF 007 and TF 008. Analogically, the requirement for an application under paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (Supra), could be likened to that under the provisions of order 23 of the High Court (Civil Procedure) Rules, 1998 regarding the undefended list procedure which provides, inter alia, thus:
1. Whenever application is made to a court for the issue of a writ of Summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and is stating that, in the deponent’s belief, there is no defence there to, the court shall, if satisfied that there are good grounds for believing that there is no defence there to, enter the suit for hearing in what be called the undefended list, and mark the writ of summons accordingly, and enter there on a date for hearing suitable to the circumstances of the particular case.
It is trite that, the above provision has been a subject of various interpretations by both the Court of Appeal and Supreme Court alike. In one of such decisions, it was held by this Court that –
By the ordinary meaning of application (Supra) it appears the intendment of the provisions of order 23 and particularly the use of the word application is that a special request must be made first before a writ of Summons is placed on the undefended list. The substratum of the provision is application. Once there is all (sic) application, however made either by a motion exparte under order 8 or by the filing of form one under order 5, the legal requirement is (sic) fulfilled once an application is made. In the case of OKNOFUA VINCENT OMOJAHE V. UWESU & 2 ors (1999) 5 SCNJ P.280 at 287, the Supreme Court held that statutes are construed to promote the general Purpose of the legislature. Judges ought not to go by the letter of the Statute but also by the spirit of the enactment…”
His lordship, Saulawa, JCA; at pages 20 – 27 of the case under reference thereafter considered in extenso the cases of Ayuba v. INEC (unreported) APPEAL NO. CA/EP/K/15/2007; Riruwai v. Shekarau; (supra) and Okereke v. Yar’adua (2008) 12 NWLR (Pt. 110) 95; and brought out the point most clearly that the said cases, in the light of their peculiar facts, cannot be taken as deciding that motion is the only way by which application for issuance of pre-hearing notice can be made.My learned brother, Dongban-Mensem, JCA; dwelling on the issue concerning the making of application for issuance of pre-hearing notice in his concurring contribution at page 4 stated thus: –
“Paragraph 18 (1) is clear, unambiguous and indeed simple, the Petitioner shall apply for the issuance of pre-hearing notice. In fact the description of what the Petitioner shall apply for clearly shows that a simple request suffices. A written application puts the facts of the request on record as evidence of compliance. The application/request to issue activates the process of issuing Form TF 007 which is done by the Secretary to the Tribunal (paragraph 7(i) of the 1st Schedule of the Electoral Act). It befuddles me that so much ado is made about this very unambiguous provision and it is more curious to expect that a petitioner can be shut out at infancy, upon an alleged failure to make this application by way of motion! No doubt, a failure to put in the application at all, could be fatal to the Petitioner (refer: OKEREKE V YAR’ADUA (2008) 4 FWLR Pt. 4430 P626 @ 646).
An application for an application, as in a request, is a simple application; a “please, issue Form TF 007″ should be sufficient, all other details actually repose with the Court Registry before which all the processes are filed. To terminate an election petition for the simple reason of the form and not the substance of an enactment appears to be frivolously fallacious.”
Later on, in the concurring contribution, the learned Justice of the Court of Appeal at page 7 stated thus: –
“We must make a distinction as to the form of the application and the fact of the application under paragraph 18 (i). Form of application refers to the manner of making the request for the issuance of Pre-hearing Notice – should it be by motion exparte, motion on notice or a simple letter application? I am unable to comprehend the argument that this vital request should be by motion on notice; apart from the secretary, who has the duty to issue the pre-hearing Notice in consultation with the Chairman of the tribunal, who else is supposed to be put on notice and for what purpose? ….
Also dwelling on the issue, in his concurring contribution, my learned brother, Jauro, JCA; at pages 2 – 3 stated thus: –
“Paragraph 18 (1) of the first schedule to the Act, clearly places a mandatory duty on the petitioner to apply for the issuance of pre-hearing notice. By paragraph 18(3) of the same schedule, the respondent may also bring an application for the issuance of pre-hearing notice. It should be noted that the issuance of pre-hearing notice is the beginning of the procedure towards the commencement of pre-hearing conference. Paragraph 18(3) goes on to provide that in the event of failure to apply for the issuance of the pre-hearing notice, the respondent may apply by motion served on the petitioner for the dismissal of the petition. The legislature in paragraph 18(3) made a distinction between an ‘application’ and a ‘motion’. The Legislature it appears envisages two types of applications the first is an application for issuance of pre-hearing notice, which can be in any form. The second is an application to dismiss the petition which has to be by formal motion on notice.
An application for the issuance of a pre-hearing notice is very unique, in the sense that it is made before the commencement of pre-hearing session. In view of the fact that the law has placed a mandatory duty on the petitioner to apply for pre-hearing notice, leave is not necessary for making of the application as envisaged by Paragraph 47(1) of the First Schedule to the Act, notwithstanding the fact that it is made before the pre-hearing conference. The application for pre-hearing notice kick starts the procedure of pre-hearing conference; hence the application can be made by letter or motion, either exparte or on notice.”
I must state that the decision (unreported) delivered on 22/8/2011 in APPEAL NO. CA/J/EP/HR/127/2011 – ALIYU IBRAHIM GEBI V. ALHAJI GARBA DAHIRU & 3 ORS is a unanimous one. I have only quoted portions of it that are most striking to me and I am of the considered view that it has been sufficiently demonstrated from the various portions of the judgment which I have quoted above, that the first position taken by this Court in relation to Paragraph 18(1) of the 1st Schedule, is that an application for issuance of pre-hearing forms can properly be made by way of letter addressed to the secretary of the Tribunal. In other words, that Paragraph 18(1) of the 1st Schedule has not provided that a petitioner shall make the application for issuance of pre-hearing notice by way of motion only. This Court is bound by its own decisions. This being the position I am of the settled view that the decisions delivered by the Calabar Division of this Court as well as the Makurdi Division (which the Respondents rely upon) must be taken to have been given per incuriam to the extent that they decide that an application for issuance of pre-hearing notice cannot be made by any other means or mode save by motion. Given this view, I actually see no need to choose between a decision of this Court that has not been overruled and those given per incuriam. However, if I saw the need to choose, from the conflicting decisions of this Court in respect of the issue as to whether or not an application for issuance of pre-hearing notice can properly be made by way of letter, I will readily abide with the decisions that decide to the effect that such an application need not be made by way of motion only. The duty to make an application for issuance of pre-hearing notice is basically placed on the petitioner who is the originator of an election petition. Though a respondent can also make the application, the provision of Paragraph 18(1) of the 1st Schedule gives him discretion not to do so. It is a settled position of the law, that it is the making of the application for issuance of pre-hearing notice/form that moves the Petition to the pre-hearing session stage. The petitioner is to make the application for the issuance of pre-hearing notice within a specified time frame after completion of pleadings in the Petition. An application for issuance of pre-hearing form, in the circumstances would appear to be no more than the initiating process for pre-trial session. The forms which are to issue consequent to the application made by the petitioner for their issuance; are clearly to be filled by the parties. The parties are to do this, without any interference or input from the court. The forms in my view are in the same class as a writ of summons which a plaintiff who conceives that he has a cause of action against some other person(s) simply obtains from the registry of the court upon application. An application for a writ can hardly be denied a plaintiff who believes that his matter is worth litigating in court. Although the life of the writ of summons can be terminated for diverse reasons after its issuance, the fact is that it is delivered to any person who applies for it, by the mere asking. It is clear from the Forms to issue upon the application of the petitioner for issuance of pre-hearing form/notice, that the court has absolutely no judicial discretion or power to exercise in relation to their issuance. Against the backdrop of all that I have said, it becomes glaring to me that “application” as used in the provision under consideration permits of any “documentable manner” of asking; and this definitely includes an application by way of letter. The manner of asking would need to be “documentable” so as to be ready evidence/proof of the day of the making the application, when in issue.
In the light of all that I have said before now, and particularly abiding by the decision of this Court in APPEAL NO. CA/J/EP/HR/127/2011 – ALIYU IBRAHIM GEBI V. ALHAJI GARBA DAHIRU & ORS. (supra): my answer to Issue 1, is that the making of the application for the issuance of pre-hearing notice as in Form TF 007 by the Appellant by way of letter addressed to the secretary of the Tribunal is not in contravention or violation of the provision of Paragraph 18(1) of the 1st Schedule. In conclusion, I therefore hold that the Tribunal was very wrong when it held to the effect that the Appellant’s application for the issuance of pre-hearing notice by way of letter is wrong in law or not acceptable in law.
The second issue which I have formulated for the determination of this appeal is: –
“Whether or not the Tribunal was right in dismissing the Appellant’s Petition as an abandoned Petition pursuant to Paragraph 18(4) of the 1st Schedule to the Electoral Act, based on its finding and holding that the Petitioners application by letter dated 01/7/2011 is incompetent and a nullity?”
At page 660 of the record of appeal the Tribunal having stated thus: –
“… So, as between the Petitioner and the 1st Respondent, pleadings closed on 05/7/2011. In effect, the Petitioner duty to file an application for issuance of pre-hearing only arose pursuant to 05/7/2011 i.e. within 7 days thereafter. The Petitioner’s application by letter dated 01/7/2011, addressed to the Secretary of the Tribunal was therefore filed before the close of pleadings, a clear case of putting the horse before the cart and in breach of the provisions of Paragraph 18 (1) of the First Schedule to the Electoral Act, 2010.
Paragraph 18 (1) and (2) of the First Schedule to the Electoral Act, 2010 (As Amended) provides thus:
1. XXX
(NB – provision of paragraph 1B (2) not supplied)
Paragraph 47 (2) of the First schedule also provides thus:
“XXX”
We must therefore find and hold that the Petitioner’s application by letter dated 01/7/2011 is incompetent and a nullity. Having found as (sic) have on the wrong timing of the application, it is no longer necessary to determine whether an application under Paragraph 18 (1) of the First Schedule can properly be brought by a letter as opposed to a motion.”
Though the Tribunal portrayed itself as having considered the provisions of Paragraphs 18(1) and (2) as well as 47 (2) of the 1st Schedule in the portion of the ruling re-produced above, it is my considered view that the Tribunal by the pronouncement that immediately followed under the provision of Paragraph 47 (2), was simply and clearly saying that the application for issuance of pre-hearing forms made by the Appellant by the letter dated 1/7/2011 was incompetent and a nullity having been filed before the close of pleadings between the Appellant and the 1st Respondent and nothing more. This finding clearly connotes that the application made by way of letter by the Appellant as proper. I am of the further view that the Tribunal realizing that it had already tacitly or impliedly pronounced the Appellant’s application for issuance of pre-hearing from by way of letter to be proper, and contrary to its earlier stance that it was no longer necessary to determine whether or not an application can properly be made by way of a letter as opposed to a motion pursuant to the provision of Paragraph 18(1) of the 1st Schedule, thereafter proceeded in the ruling to dwell on the very issue, in order to negative what its earlier finding portended.
The Orders sought in the motion on notice brought in the Petition by the 2nd Set of Respondents and which was the subject matter of the ruling of the Tribunal had been set out in this judgment before now. The grounds of the application as set out in the motion had also been re-produced. There are three Orders sought by the 2nd Set of Respondents in relation to the petition. The Orders are simple and in no way ambiguous. The first of the three Order namely, the Order that the Petitioner’s (now Appellant) application (by letter) for issuance of Pre-Hearing Notice as in Form TF 007 be struck out because it is incompetent and unknown to Law and/or the Electoral Act, is clearly the Order on which the two other Orders hang. It is in my considered view clear as crystal from the three Orders sought in relation to the Petition by the 2nd Set of Respondents and the grounds for the application, that it was the mode or method or means by which the Appellant applied for the issuance of Pre-Hearing Notice that was being challenged and not the circumstances antecedent to the employment of the particular mode, means or method, used by the Appellant. This being the position of things before the Tribunal, what the Tribunal had to resolve primarily for the purpose of determining the entitlement of the 2nd Set of Respondents to the Orders which they sought was the appropriateness of the application for the issuance of Pre-Hearing Notice by way of letter employed by the Appellant vis-‘E0-vis the provision of Paragraph 18(1) of the 1st Schedule and any other provision of the said Schedule, it considered relevant for that purpose. The Tribunal however ended up considering and making a finding in respect of “the timing of the mode of application” employed by the Appellant. This the Tribunal did without first taking a position on the appropriateness of the mode employed. The Tribunal itself in my considered view had also put the horse before the cart. Be that as it may.
The Appellant has argued in her Brief of Argument that it was wrong of the Tribunal to have anchored its decision in the motion brought by the 2nd Set of Respondents on what the Tribunal considered as premature filing of the Appellant’s application dated 1/7/2011; and that the Tribunal thereby granted an unsolicited Order. The Appellant stated the position of the law to be that a court is without jurisdiction to grant an order not sought by the parties. The case of Kallo v. Daniel Jallo (1975) 2 SC (page not provided) and two other cases were cited in aid.
The 1st Respondent as well as the 2nd Set of Respondents in their respective Briefs of Argument submitted to the effect that in arguing the application, the Tribunal was clearly addressed on the impropriety of the timing of the application made by the Appellant by way of letter and that it was the Appellant that chose not to address the Tribunal on the issue in reply. That in the circumstance, the Appellant cannot legitimately complain that the Tribunal raised the issue suo motu without giving her the opportunity to be heard on the same. The two sets of Respondents further submitted that in any event, the Appellant cannot be heard on the issue as she did not make the same a ground of appeal.
I am of the considered view that the question as to whether or not the Tribunal granted the 2nd Set of Respondents an unsolicited Order is clearly intertwined in the consideration of the correctness of the decision of the Tribunal that the application of the Appellant by way of letter is incompetent and a nullity, upon the facts of the application of the 2nd Set of Respondents vis-‘E0-vis the Orders which they sought; and which are what the Tribunal declared itself as having granted in the ruling appealed against.
As already stated the motion brought by the 2nd Set of Respondents and the grounds of the application were clearly challenging the correctness or appropriateness of the application by way of letter for issuance of Pre-Hearing Notice employed by the Appellant and not for any other reason. It is settled law that depositions in the affidavits filed in relation to a motion constitute the evidence relied upon by parties in respect of the prayers or orders being sought in the said motion. The entitlement of the 2nd Set of Respondents to the prayers/orders which they seek in their motion must therefore be predicated on the facts deposed to in the affidavit in support of the motion entertained by the Tribunal and indeed any other affidavit filed by the 2nd Set of Respondents. The 2nd Set of Respondents have stated that they made the matter of “right timing” of the Appellant’s application by way of letter, an issue in their further affidavit. That may be so; but the question is what effect do the depositions in relation to the “right timing” of the application for issuance of Pre-Hearing Notice by way of letter, have in relation to the main or primary Order sought by the 2nd Set of Respondents and which Order glaringly did not require or admit of the issue of “right timing” for its determination. It is in my considered view clear that the depositions in relation to “right timing”, had no relevance to the determination of the main Order sought by the 2nd Set of Respondents and upon which the other two Orders hung inasmuch as the said main or primary Order and grounds for the application, never portended that the application filed by the Appellant was irregularly filed. In the circumstances the 2nd Set of Respondents clearly played themselves out of any entitlement to the Orders which they sought to the extent that the facts relating to “right timing” upon which they now claim that the Tribunal granted them the Orders which they sought in their motion are at variance to the said Orders. A fortiori the Tribunal too relying on the issue of “right timing” could not properly hold as it did at page 663 of the record concerning the motion of the 2nd Set of Respondents that “Accordingly, this application succeeds, the orders are granted as prayed”.
I must not be understood as saying that the Tribunal cannot properly determine the application it entertained, upon the issue of “right timing”, once all the parties had the opportunity of addressing the Tribunal on the issue. What the Tribunal should have realised and shown clearly in that regard, is that it is not determining the application upon the grounds or issue(s) it was specifically predicated or founded, and to have therefore refused the Orders as sought. It would then make its pronouncement on the Petition, on the issue of timing. The Tribunal having not shown itself to have acted as stated above, definitely end up granting the 2nd Set of Respondents, an Order which they never asked for and on the basis of the Order which is clearly incongruous with the primary Order sought by the 2nd Set of Respondents in the application before it, granted the said application. This is a clear case of the Tribunal granting the 2nd Set of Respondents an Order which they never asked for and which no court or tribunal has the jurisdiction to do.
The Appellant in her Brief of Argument has not only submitted to the effect that the decision of the Tribunal regarding the timing of her application for issuance of Pre-Hearing Notice made by letter was wrong but also that the timing of the application is not fatal to warrant the nullification of the pretrial sessions already conducted in the Petition and dismissal of the Petition as an abandoned Petition. The Appellant in this regard engaged in what she considered to be the right interpretation to be accorded the provisions of Paragraph 18(1) and (a) of the 1st Schedule. The Appellant also relied on the decision of this very court in APPEAL No. CA/E/EPT/06/2011: LAWRENCE C. EZEUDU V. OLIBE JOHN & 6 ORS; delivered on 5/9/2011.
The 1st Respondent as well as the 2nd Set of Respondents in their respective Briefs of Argument submitted amongst others, to the effect that it was obvious that the Appellant made the application for the issuance of pre-hearing Notice before the completion of pleadings and in the circumstance there was no application upon which Pre-Hearing Forms that issued in the Petition were founded. This is aside from the fact that an application for the issuance of pre-hearing notice cannot be made by letter as was done by the Appellant. The Respondents referred to the finding made by the Tribunal in relation to the state of pleadings in the Petition to buttress their stance.
The finding made by the Tribunal in relation to the state of pleadings in the Petition at pages 659 – 660 of the record reads thus: –
“Petitioner’s reply dated 17/6/2011 and filed on the same date, to the 2nd – 9th Respondents’ reply, was served on both the 1st Respondent and the 2nd – 9th Respondent’s (sic), on 24/6/2011. Therefore, as between the Petitioner and 2nd – 9th Respondents, pleading closed on 24/6/2011. The Petitioner however did file reply to the 1st Respondent (sic) reply; the said reply dated 28/6/2011 and filed on the same date was served on both the 1st Respondent and the 2nd-9th Respondents on 05/7/2011. So, as between the Petitioner and the 1st Respondent pleadings closed on 05/7/2011. In effect, the Petitioner’s duty to file an application for issuance of pre-hearing only arose pursuant to 05/7/2011 i.e. within 7 days thereafter.”
It is on the basis of the computation of time for the completion of pleadings as occurring from the date of service of pleading that the Tribunal concluded that the letter by which the Appellant applied for issuance of pre-hearing notice inasmuch as it was filed before the date of the service of the Appellant’s last pleading, in the Petition was filed out of time and thereby in breach of the provision of Paragraph 18(1) of the 1st Schedule. The Tribunal did not cite any authority it relied on in arriving at its conclusion to the effect that the application made by the Appellant for the issuance of pre-hearing notice was made out the time prescribed for that purpose by the 1st Schedule. The Respondents have however not only cited the authority that vindicates the conclusion of the Tribunal to wit: Azudibia v. INEC (2008) 4 LRECN 105; but also made submissions as to the correct interpretation to be accorded the provision of Paragraph 18(1) (supra) and they cited the cases they considered relevant in this regard.
It is certainly not in dispute that the provision of Paragraph 3(1) of the 2007 Practice Directions which is ipsissima verba with that of paragraph 18(1) of the 1st Schedule received the interpretation of this Court in the cases cited by the Respondents in their respective Briefs of Argument. This being so, the provision of Paragraph 18(1) should ordinarily be accorded the same interpretation whenever the need arises. I have used the word “ordinarily” advisedly because previous decisions of courts are always to be appreciated and understood in the light of the peculiar facts of the cases entertained by the courts.
Before now, I have found that the Appellant by making the application for the issuance of pre-hearing notice by way of letter has not contravened or violated the provision of Paragraph 18 (1) of the 1st Schedule. In other words, that the provision of Paragraph 18(1) of the 1st Schedule permits for the making of an application for issuance of pre-hearing notice by way of letter. I however must not be understood as saying that the Appellant in making the application by way of fetter is not bound by the time periods stipulated therein.
It is certainly not contestable that before a Petitioner can properly make an application for issuance of pre-hearing notice, in his Petition, pleadings must have closed in the Petition or deemed to have closed. It would appear from the finding of the Tribunal and which finding the Respondents glaringly support that the Tribunal is of the view that pleadings close, only upon service of the last process filed in the Petition in all situations. I am of the considered view that it is inherently wrong to make the date of the service of pleadings the determinant of when pleadings close, in all situations. In this regard I cannot but say that it is settled law that when a party is by the rules of court obligated to file a process within a specified time frame, the process in question is deemed as filed on the date it is lodged in the registry of the court. Hence a Notice of Appeal, for example, is deemed filed on the date it is lodged in the registry of the Court or Tribunal and not on the date it is served on the parties in the appeal. Though time will start to run or count against a party served with a court process in respect of what is expected of him in response to the process so served from the date of the service of the process in question, it is equally clear that the party responding would be deemed to have done what is required of him, on the date he files his response and not on the date the response is served on the opposing party. If this is done within the time frame for filing the response, all is well. If it is done outside the time specified for the purpose, then the issue of regularization would arise. Against the backdrop of all these, it becomes glaring to me that pleadings in the Petition did not close as between the Appellant and the 1st Respondent on 5/7/2011 (being the date of service of the Appellant’s reply to the 1st Respondent reply on the said 1st Respondent) as found by the Tribunal, but on 28/6/2011; being the date the Appellant filed in the Registry of the Tribunal, her reply to the 1st Respondent’s reply. The 1st Respondent by the provisions of the Electoral Act and/or the 1st Schedule has no other process to file in the Petition in reply to the Appellant’s reply. This being the case, the determinant of when pleadings closed between the Appellant and the 1st Respondent could not have been date of service of the Appellant’s reply on the 1st Respondent. It is not in dispute that the Appellant made her application for issuance of pre-hearing notice by way of letter on 1/7/2011 which glaringly was after she had filed her reply to the 1st Respondent’s reply.
The Appellant having filed her application for issuance of pre-hearing notice after the close of pleadings in the Petition, in my view cannot be said to have filed the application outside the time frame stipulated in Paragraph 18(1).
Even if the Tribunal were correct that that pleadings in the Petition were completed upon the service on the 1st Respondent of the Appellant’s reply on 5/7/2011 (which I clearly do not agree with) and that the 7 days which the Appellant had to file her application for issuance of pre-hearing notice began to run from the said 5/7/2011, and that the Appellant by making her application for issuance of pre-hearing notice on 1/7/2011 did so outside the time stipulated by Paragraph 18(1) of the 1st Schedule, I cannot but say that I do not see how the filing out of time of the Appellant’s application should have resulted in the dismissal of the Petition as an abandoned Petition. This again is against the backdrop of the fact that there was no other process to be filed in the Petition. So the perceived early filing of the Appellant’s application for issuance of pre-hearing notice in the circumstances cannot be said to have been done with the intention of shutting out any of the Respondents from putting the totality of the pleadings in respect of their cases before the Tribunal or that it was intended to cause any miscarriage of justice.
Indeed when it is borne in mind that time is of the very essence in Election Petitions and more so now that the time frame within which Election Petitions are to be determined both at the Tribunal level and appellate level have been specifically provided for in the Constitution, the action of the Appellant in applying for the issuance of pre-hearing notice a few days after she filed the last process in the Petition, if not commendable, at least should not result in the Petition being truncated. In this regard I cannot but rely on the decision (unreported) of this very Court delivered in APPEAL NO. CA/E/EPT/06/2011: LAWRENCE C. EZEUDU V. OLIBE JOHN & 6 ORS (supra), cited by the Appellant in her Brief of Argument.
In conclusion I hold that the Tribunal was very wrong to have dismissed the Petition as an abandoned Petition pursuant to Paragraph 18(4) of the 1st Schedule as the letter by which the Appellant applied for the issuance of prehearing notice dated 01/7/2011 is competent and adequately sustains the pre-hearing sessions already conducted and concluded therein. This conclusion resolves Issue 2.
Given the fact that the resolution of the two Issues formulated for the determination of the appeal is in favour of the Appellant, the appeal in the circumstances is meritorious and therefore succeeds. The ruling of the Tribunal granting the orders sought in the motion on notice dated 29/7/2011 and filed on 31/7/2011 brought by the 2nd – 9th Respondents and the finding that PETITION NO, EPT/AN/HA/18/2011 is an abandoned Petition pursuant to Paragraph 18(4) of the First Schedule to the Electoral Act 2010 (as amended) and dismissing the same; is hereby set aside. An order dismissing the said motion on notice is hereby entered. The Petition is hereby restored to the cause list of the Tribunal for it to be heard on the merit.
I make no order as to costs