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NNAMDI IRO OJI & ANOR v. HON. NKOLE UKO NDUKWE & ORS (2019)

NNAMDI IRO OJI & ANOR v. HON. NKOLE UKO NDUKWE & ORS

(2019)LCN/13671(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of July, 2019

CA/OW/EPT/FHA/6/2019

 

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

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

Between

1. NNAMDI IRO OJI
2. ALL PROGRESSIVES CONGRESS (APC) Appellant(s)

AND

1. HON. NKOLE UKO NDUKWE
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

RATIO

WHETHER OR NOT ELECTION PETITIONS ARE SUI GENEREIS

I am of the considered view that the law is settled and has been so settled for long, that election petitions are sui generis. This is because separate provisions have been made in relation to election petitions in the amended 1999 Constitution, the Electoral Act 2010 as amended, and the Rules of Procedure for election petitions, otherwise and often referred to simply as 1st Schedule to the Electoral Act. Given the uniqueness of election petitions, I am of the considered view that the importation and application of principles of law that have evolved in ordinary civil cases over the years to election petitions without having regard to the very peculiar nature of election petitions, if care is not taken, can easily result in supplanting the clear and stringent or strict relevant provisions of the amended 1999 Constitution, the Electoral Act and/or 1st Schedule, designed for the expeditious determination of election petitions; and which by virtue of relevant provisions of the 1999 Constitution, must be accomplished within 180 days from the dates they are filed. PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT THE TRIAL OCURT CAN ON ITS OWN ELECT TO CHOOSE WHICH ONE OF  A CONFLICTING DECISION IT IS TO FOLLOW

The law would appear to be settled that a Court below this Court cannot on its own, elect to choose which one out of the conflicting decisions, or perceived conflicting decisions of this Court, it is to follow. This is just as this Court and indeed any other subordinate Court in the judicial hierarchy of this country, have no power to elect which one out of any conflicting decisions of the Supreme Court, it will or should follow. The Supreme Court has made it abundantly clear that in line with the principle of stares decisis and strict recognition of its supremacy as it were, this Court must follow its decision that is later in time in the event any of its conflicting decisions, are placed before this Court in respect of any matter in contention before it (i.e. Court of Appeal). See in this regard the case of OSAKUE V. FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA (2010) 5 SCM 185. Therein, the Supreme Court, forcefully put this position on ground and further made it clear that the prerogative of ?election? is that of the superior Court that has given the conflicting decisions or perceived conflicting decisions. Suffice, it to say that the same position applies to a Court lower to this Court vis a vis any conflicting decision of this Court. See in this regard the cases of NDILI V. AKINSUMADE (2000) LPELR ? 6910 (CA) and ADEJUGBE V. ADULOJU (2015) LPELR ? 24916 (CA), amongst many others. PER LOKULO-SODIPE, J.C.A.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal brought against the decision delivered on 27/5/2019 by the National and Houses of Assembly Election Tribunal holden at Umuahia, Abia State (hereafter to be simply referred to as ?the Tribunal?) consisting or made up of Hon. Justice A.A. Aderibigbe (Chairman) and Hon. Kadi M.Y. Usman and Hon. Justice Animahun as members 1 and 2 respectively. The decision of the Tribunal on appeal was delivered in Election Petition No. EPT/AB/REP/003/2019 (hereafter to be simply referred to as ?the petition?). The petition was initiated on 15/3/2019 by the Appellants as Petitioners (and hereafter to be simply referred to as ?the Petitioners?). The grounds of the petition are: –
?1. That the 1st Respondent (who is likewise the 1st Respondent herein) was not duly elected by the majority of lawful votes cast at the election.
2. That the said election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2010 as amended.

?In paragraph 45 of the petition, the

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Petitioners pray the Tribunal to determine as follows: –
?a. That the 1st and 2nd Respondents (who equally are 1st and 2nd Respondents herein) did not score the majority of lawful votes cast at the election held on the 23rd day of February, 2019.
b. That the Petitioners be declared as duly elected and accordingly be returned as the winners of the election.
ALTERNATIVELY
a. That the Honourable Tribunal do order a bye and or supplementary election in units where election did not hold and or were marred by irregularities which areas are:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxx

The election was conducted by the 3rd Respondent herein, and which is equally the 3rd Respondent in the petition.

?It is clear from the record that after the service of the petition on the Respondents therein, the said Respondents on diverse dates filed their respective replies to the petition and that the said replies were served on the Petitioners on diverse dates. The Petitioners equally filed their replies to the replies of the Respondents to the petition as catalogued

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hereunder: –
i. Petitioners? reply to the 3rd ? 7th Respondents? reply to petition, was filed on 27/4/2019;
ii. Petitioners? reply to the 2nd Respondent?s reply to petition, was filed on 6/5/2019;
iii. Petitioners? reply to 1st Respondent?s reply to petition was filed on 14/5/2019.

The Petitioners filed their application for the issuance of pre-hearing forms on 16/5/2019. The Petitioners and the 1st Respondent respectively, filed their answers to the pre-hearing information sheets on 22/5/2019; while the 2nd and 3rd ? 7th Respondents respectively, filed their answers to the pre-hearing information sheets on 23/5/2019. The petition came up before the Tribunal on 22/5/2019 and was by agreement of parties adjourned to 24/5/2019 for pre-hearing. On 24/5/2019, the names of the 4th ? 7th Respondents were struck out from the petition. This was sequel to the application in that regard by the Petitioners. After the Tribunal had struck out the names of the aforementioned Respondents from the petition, learned counsel for the 2nd Respondent raised the issue that the application for

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pre-hearing in the petition, served on the said 2nd Respondent on 16/5/2019 was served outside the time or period provided by the Electoral Act for the purpose. This is because, the pleadings between the Petitioners and the said 2nd Respondent closed on 6/5/2019. Learned counsel for the 1st Respondent though conceding that the application for pre-hearing as it relates to the said 1st Respondent, was served on the party within the period provided for the purpose, associated himself with the position of the 2nd Respondent. Learned counsel for the 3rd Respondent similarly raised the same issue as raised by the 2nd Respondent, in relation to the said 3rd Respondent. Learned counsel for the Petitioners duly responded to the issue raised by the 2nd and 3rd Respondents respectively. I will re-produce his submissions to the Tribunal as captured in the record as I consider it expedient to do so. The submissions go thus: –
?Ogunji: For the record, we submit with respect that the application for pre-hearing is competent and validly made within the time frame as allowed which is as stated or admitted by counsel to the 1st respondent. the contentions by the

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respondents that different applications for pre-hearing must be made for each respondent is wrong and not hinged on any statutory or judicial decision and none was cited. The Okereke?s case as relied on deals with failure to apply for pre-hearing. The reliance on Preye?s case (supra) is also wrong because in the interpretation invoking paragraph 49, it deals with different petitions, all tied together which requires separate filing fees, separate security for costs and separate application for pre-trial against the parties who are candidates being made a respondent but stated to be defending separate petition. I refer to the case of GEBI V. DAHIRU (2012) 1 NWLR (PT. 1282) 560.
By paragraph 18(3) I submit that once an application for pre-hearing is made, no respondent has any entitlement to dismiss the petition. The only course open is to file a motion which is returnable within 3 days. There is a statutory duty for the respondents to file a motion for that purpose. See Gebi v. Dahiru (supra).
Furthermore, each of the respondents have filed processes and served the petitioners I refer to the case of Osita Izunaso vs. Hope Uzodinma & Ors

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(CA/OW/EPT/SEN/49/2015.?

Having recorded the responses of the Respondents to the submissions of the Petitioners, the Tribunal adjourned till 27/5/2019 for ruling. On the said 27/5/2019, the Tribunal duly delivered its ruling and therein stated thus: ?…We have listened to the arguments on whether the application for issuance of pre-hearing notices was filed within 7 days after the service of the Petitioners’ response to the Respondents’ replies.

Paragraph 18(1) of the schedule to the Electoral Act 2010 (as amended) that deals with the issue involved in this ruling, reads: –
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 TF 008.”
There is no dispute on the position of the law that an application for issuance of pre-hearing notice filed out of time is a nullity. See xxxxxxxxxxxxxxxxxxxxxxxxxx

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The issue involved in this ruling goes beyond issuance of the application out of time. In this Petition, one application was made for all the three Respondents, based on an impression that pleadings closed in an Election Petition when the last Respondent files his Reply or when the Petitioners file their last Response to a Respondent’s Reply. This implies that Counsel understand this part of the procedure to be the same as in Civil Procedure. A good understanding of the issue involved in this ruling will therefore be appreciated by comparing the provision of paragraph 8 of the schedule to the Electoral Act with the position in Civil Procedure. This exercise is in order, because the provision of the schedule is a modified Civil Procedure Rules. Although Election Petition is not a civil suit, but it can be rightly described as quasi-civil suit, for sharing similar provisions with Civil procedure than any other Rules of Court. This view is supported by paragraph 54 of the schedule that reads:
“Subject to the express provisions of this Act, the practice and procedure of the Tribunal

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or the Court in relation to an election Petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable, having regard to the provisions of this Act, as if the Petitioner and the Respondent were respectively the plaintiff and the defendant in an ordinary civil action”.
Unfortunately, there is no provision in the Federal High Court Rules on pre trial or case management conference.
However, there is a provision therein on when pleadings are deemed closed.
Order 13 Rule 32 thereof reads:
?xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx”
The choice of words, deemed closed or close of pleadings are common to almost all the States’ High Court Rules. The implication of the above is that in making the schedule, the Legislature knew of the choice of words used in Civil Procedure Rules, particularly Federal High Court Rules and intentionally decided not to adopt the provision therein relating to close of pleadings and time

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within which to take a step. This follows the earlier view expressed that the schedule is a quasi Civil suit or an abridged Civil Procedure Rules. As shown in the above quoted paragraph 54 of the schedule, application of Federal High Court is subject to express provision of the schedule. In other words, where there is a provision in the schedule, resort cannot be had to the Federal High Court Rules.
It is therefore clear to us that there was a clear intention by the legislature not to allow pleadings to be closed before further steps are taken in an election petition. This, in our view, accord with the time factor involved in an election petition.
Our view on the intention of the legislature is supported by the mischief rule of interpretation of statutes. The rule is to the effect that where there is a prior situation/event that led to promulgation of a statute, the Court or Tribunal must bear it in mind when interpreting the statute, in order to avoid going back to the same incident that the legislature wanted to avoid. In xxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
The consequence of the

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above is that it is wrong to apply the rule on close of pleadings in Federal or States’ High Court Civil Procedure Rules to election petition cases. To do so will amount to importing the provision of the Federal High Court Civil Procedure Rules to supplant express provision of paragraph 18 of the schedule to the Electoral Act 2010 (as amended). This can only be done in the absence of a clear provision of paragraph 18 of the schedule. We adopted the above approach to explain the correct position of the law in order to avoid the arguments that some Court of Appeal Judgments had generated on the joint reading of paragraphs 18 and 49 of the schedule.
We now proceed to refer to some of the decided cases on the issue.
In making pronouncements on the issue, the Court in PREYE OSEKE & ANOR V. INEC (2011) LPELR CA/PH/EPT/25/2011, delivered on 25/10/2011, held thus: –
“The implication of the reading of paragraph 18 with paragraph 49 is that when there are more than one respondents the election Petition against each of the Respondents shall be deemed to be a separate Petition, in other words, where the Petitioner is to apply for issuance of

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pre-hearing notice as in Form TF007 under the said paragraph 18, he is to do so within 7 days after each Respondent files and serves his reply or after the Petitioner had filed and served Petitioner’s reply to each of the Respondent’s reply. If he fails to do so in respect of one of the Respondents, that the Respondent is empowered to suo motu dismiss the Petition against such Respondent. The Petitioner is not to wait for all the Respondents to file and serve their respective replies before applying for pre-hearing notice. See OKORO V. IZUNASO (supra). Though the Respondents are jointly sued before the Tribunal, the election petition against each of the Respondents is deemed under paragraph 49 of the Electoral Act to be separate Petition.”
In the case of ACTION CONGRESS OF NIGERIA & ANOR. Vs. AMAEWHULE & ORS. Appeal No. CA/PH/EPT/6/2011, delivered on 16/11/2011, the Court held thus:
“Finally, be it reiterated that, had learned appellants’ Counsel read paragraph 18 along with paragraph 49 of the first schedule, the error in this submission that paragraph 18 is only activated at the conclusion of pleadings between all the parties to the

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Petition would have been avoided.?
In KOKO (JP) V. INIMGBA & ORS Appeal No. CA/PH/EPT/20/2011, delivered on 25/10/2011, the Court of Appeal held that:
“The Petitioner is not to wait for all the Respondents to file and serve their respective replies before applying for pre-hearing notice, See OKORO V. IZUNASO (supra). Though the Respondents are jointly sued before the Tribunal, the election Petition against each of the respondents is deemed under paragraph 49 of the Electoral Act to be a separate Petition.”
See also ALI V. OSAKWE (2009) 14 NWLR (PT. 1160) 75 at 113 -135, OSEKE & ORS V. INEC & ORS (2011) LPELR 14249 (CA) and OSEKE &ORS. V. INEC & ORS. (2011) LPELR- 14249 (CA) (sic).
In MATHEW NWOGU & ANOR V. HON. BEDE UCHENNA EKE & ORS. (2015) LPELR
– 25996 9(CA), Appeal No. (CA), the Court held that:
?I am of the firm view that the lower Tribunal erred greatly in its conclusion that the Appellants ought to have filed application for pre-hearing Notice from 23/5/15 to 29/5/15, thereby treating the petition as if it were three petitions filed separately or individually against the three

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Respondents herein. The lower Tribunal found itself in this grave error by acceding to the interpretation placed on paragraph 49 of the 1st Schedule to the Electoral Act 2010 as amended by Respondents. It is my resolve that though the Petition has three Respondents, that did not and would not make the Petition “three in one”, it is one Petition. The Respondents referred to in paragraph 49 of the 1st Schedule to Electoral Act 2010 as amended cannot by any stretch of any imagination be coterminous or mean the same thing as Respondents to the Election Petition herein. A careful reading of paragraph 49 aforesaid revealed vividly that “two petitions …. ” is only referable to joinder of candidates or nominated candidates sponsored by a political party to participate in an election conducted by Independent National Electoral Commission and not Respondents enumerated as “Respondents” in Sections 133(1) and 137(1) (2) (3) of the Electoral Act 2010 as amended…

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?Paragraph 49 of 1st Schedule cannot elevate the petition to that unimagined pedestal to operate and divide or separate or dismember a petition into three separate petitions”.
In BENJAMIN C. UWAJUMOGU V. ACHONU ATHANASIUS NNEJI & ORS (2017) LPELR – 41435 (CA), the Court held that pleadings closed on filing of the last Respondent’s reply and that an application for pre-hearing made before then is invalid.
In LAWRENCE CHUKWUNWEIKE EZEUDU V. OLIBIE JOHN & ORS (2012) 7 NWLR (PT. 1298) P 1 (CA), the Court upheld an application for issuance of pre-hearing made before the close of pleadings.
Going by the above effect of interpretation of paragraph 18 of the schedule, using the mischief rule, it is our view that the earlier quoted judgments of the Court are preferred. That is, the application must not await the close of pleadings.
On the issue of issuance of one application on three Respondents, we hold that it suffices if the 7 days run concurrently for all the Respondents for the Petitioners

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to issue one application on the three of them. Our reasoning is based on the fact that in this situation, pleadings end on the same date and not on different dates, which paragraph 18 is intended to deal with, so that hearing is not stalled because of delay caused by a co-respondent. Accordingly, we hold that the application for pre-hearing filed on 16/5/2019 was filed out of time against the 2nd and the 3rd Respondents’ whose pleadings with the Petitioners closed on 6/5/2019 and 27/4/2019 respectfully. As such, the Petition is dismissed against the 2nd and the 3rd Respondents. It is valid against the 1st Respondent.?

Being dissatisfied with the ruling, the Appellants initiated the instant appeal by lodging at the registry of the Tribunal on 6/6/2019, a notice of appeal dated 3/6/2019. The said notice contains five grounds of appeal and the said grounds with their respective particulars read thus: –
?GROUNDS OF APPEAL
GROUND ONE:
The learned Justices of the Honourable Tribunal erred in law which error occasioned a miscarriage of justice when they held that a Petitioner must make different applications for each of the

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Respondents for the issuance of the pre-hearing form in a petition.
PARTICULARS OF ERROR:
1. A Petition irrespective of the number of Respondents is a single petition which requires only a single application for the issuance of pre-hearing form.
ii. The Honourable Tribunal’s interpretation of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended connotes multiple Petitions with multiple pre-hearings and multiple proceedings.
iii. The interpretation as given is in gross violation of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended.
iv. The decision under the circumstance is perverse and this led to a miscarriage of justice.
GROUND TWO:
The learned Justices of the Honourable Tribunal erred in law which error occasioned a miscarriage of justice when they dismissed the petition against the 2nd and 3rd Respondents on the basis of the viva voce request for dismissal of the petition without reference to Paragraph 18(3) of the First Schedule to the Electoral Act 2010 as amended.
PARTICULARS OF ERROR:
i. The 2nd Respondent who sought for the dismissal of the petition anchored

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his oral request on the contention that there was non-compliance with the provision of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended.
ii. The provision of Paragraph 18(3) of the First Schedule to the Electoral Act 2010 as amended is explicit on the procedure to be undertaken by the Respondent who seeks that a Petition be deemed abandoned and dismissed.
iii. The proceedings and procedure of the Honourable Tribunal in dismissing the Petition against the 2nd and 3rd Respondents was done in fragrant violation of Paragraphs 18(1) & (3) of the First Schedule to the Electoral Act 2010 as amended.
iv. This wrong procedure and proceedings occasioned a grave miscarriage of justice against the Petitioners/Appellants.
GROUND THREE:
The learned Justices of the Honourable Tribunal erred in law which error occasioned a miscarriage of justice when they dismissed the Petitioners’/Appellants’ Petition against the 2nd and 3rd Respondents on the grounds that they failed to apply for the pre-hearing Forms within time.
PARTICULARS OF ERROR:
i. The Petitioners/Appellants filed their application for the issuance of

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pre-hearing Form within the time allowed by Paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended.
ii. The close of pleadings which signifies the time within which the application will be made within 7 days ought to end on the 21st day of May 2019.
iii. The application for the issuance of pre-hearing Form was made on the 16th day of May 2019 which was within the time allowed by the law and which was 5 days before the time will expire.
iv. The decision under the circumstance is perverse.
GROUND FOUR:
The learned Justices of the Honourable Tribunal erred in law which error occasioned a miscarriage of justice when they held thus:
“It is therefore clear to us that there was a clear intention by the legislature not to allow pleadings to be closed before further steps are taken in an election petition. This in our view, accord with the time factor involved in an election petition”.
PARTICULARS OF ERROR:
i. By the provisions of Paragraph 18(1) of the First Schedule to the Electoral Act 2010 as amended pleadings ought to close before the application for the issuance of pre-hearing form.
ii. The decision

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that pleadings will not be closed for the Petitioner to make the application for the issuance of pre-hearing form is contrary to the clear intentions of the legislature.
iii. The several decisions of the Appellate Court on the subject dictate that it is upon the close of pleadings that the application for the issuance of pre- hearing form can be made.
iv. The decision under the circumstance is perverse.
GROUND FIVE:
The learned Justices of the Honourable Tribunal erred in law which error occasioned a miscarriage of justice when they held thus:
“Going by the above effect of interpretation of Paragraph 18 of the Schedule, using the mischief rule, it is our view that the earlier quoted judgments of the Court are preferred. That is, the application must not await the close of pleadings”.
PARTICULARS OF ERROR:
i. The preference of the earlier decisions of the Courts on the above issue contrary to the latest decision is wrong in law.
ii. The cases preferred did not deal clearly with the issues as stated.
iii. The Courts in the later cases stated clearly the decisions and re-instated the position of the law which the

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Honourable Tribunal refused to abide with.
iv. The refusal by the Honourable Tribunal to abide by the decision of the Court of Appeal in respect of the cases cited is wrong and led to a miscarriage of justice.?

The reliefs which the Appellants seek from this Court as set out in the notice of appeal are: (i) an order setting aside the decision dismissing the Petition against the 2nd and 3rd Respondents; and (ii) an order directing another panel to hear the Petition on the merit.

It pertinent to also say at this stage, that the 1st Respondent purportedly lodged a ?cross-appeal? against the judgment of the Tribunal. The purported ?cross-appeal? was equally entertained on 1/7/2019. I must however state that the Court will not dwell on the ?purported? cross-appeal in the instant appeal. This is because, it has not only been discovered after the hearing of the instant appeal that there is no notice upon which the said ?cross-appeal? is founded in the record of the instant appeal, but that the said ?cross-appeal? actually has a separate notice of appeal in the record in APPEAL NO.

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CA/OW/EPT/FHA/18/19. This is more so as the Hon. President of the Court of Appeal, on the basis that the said ?purported? cross-appeal is a different appeal from the instant one has constituted another panel of Justices of the Court of Appeal to entertain the same.

Prior to the hearing of the instant appeal on 1/7/2019, G.E. Ejemai, learned leading counsel for the 1st Respondent, argued the preliminary objection (hereafter to be simply referred to as ?P.O.?) as contained in the notice of P.O. filed by the party on 21/6/2019. In this regard, learned leading counsel in urging the Court to uphold the P.O. and strike out the appeal, adopted and relied on the argument in relation thereto, on pages 2-5 of the brief of argument of the 1st Respondent dated 20/6/2019 and filed on 21/6/2019. Similarly, U.C. Nnenji, learned counsel for the 2nd Respondent having informed the Court that the said party has a P.O. in the appeal, and that it is set out on pages 5-7 of the brief of argument of the said party dated 21/6/2019 and filed on the same date, adopted and relied on the same in urging the Court to strike out the appeal.
?

Chidozie

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Ogunji, learned leading counsel for the Appellants having referred to the reply briefs of argument he filed in response to the briefs of argument of the 1st and 2nd Respondents respectively, adopted and relied on the arguments in respect of the P.Os. contained therein; and urged the Court to dismiss the P.Os. of the said 1st and 2nd Respondents respectively. The reply briefs of argument of the Appellant to the briefs of argument of the 1st and 2nd Respondents respectively, are dated 26/6/2019 and filed on the same date.

?After the Court had entertained the P.Os. filed in the appeal, learned leading counsel for the Appellants, adopted and relied on their brief of argument dated 11/6/2019 and filed on 13/6/2019, as well as the reply briefs of argument to the briefs of argument of the 1st and 2nd Respondents respectively, identified hereinbefore, in urging the Court to allow the appeal.

In the same vein, learned leading counsel and learned counsel respectively for the 1st and 2nd Respondents, adopted and relied on the briefs of argument of their clients identified hereinbefore, in urging the Court to dismiss the appeal. Ijeoma Olaedo Osuagwu (Mrs.)

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learned counsel for the 3rd Respondent, equally adopted and relied on the party?s brief of argument dated 20/6/2019 and filed on 21/6/2019, in urging the Court to dismiss the appeal.

Two issues were formulated for the determination of the appeal in the Appellants? brief of argument. They read thus: –
?a. Whether there was a valid application necessitating the dismissal of the petition against the 2nd & 3rd Respondents. (Ground 2).
b. Whether the Honourable Tribunal was right in its decision dismissing the petition against the 2nd & 3rd Respondents. (Grounds 1, 3, 4 & 5).?

?Suffice it to say that the issues formulated for the determination of the appeal in the brief of argument of the 2nd Respondents is word for word the same with those formulated by the Appellants; save that the term ?striking out? was used in the said issues formulated by the 2nd Respondent instead of the term ?dismissal?, used by the Appellants in their issues. It is pertinent to also state that the issues formulated for the determination of the appeal in the briefs of argument of the 1st and 3rd Respondents

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respectively, are totally word for word, with those of the Appellants.

The settled position of the law, is to the effect that where there is a P.O. to the hearing of an appeal, such P.O. must be first considered and resolved. This is because the resolution of a P.O. to the hearing of an appeal in the affirmative, or upholding the same, renders the hearing of the substantive appeal, impossible or unnecessary. See the cases of UDENWA V. UZODINMA (2012) LPELR ? 22283 (SC) and ODELUGA V. ANIAKOR (2012) LPELR ? 19977 (CA), amongst many others.

The 1st Respondent raised the P.O. to the hearing of the instant appeal in a notice of P.O. dated 20/6/2019 and which was filed on 21/6/2019. In the notice, the 1st Respondent is urging this Court to strike out or dismiss the notice of appeal by which the instant appeal was initiated. The grounds for the objection are: –
?i. The decision of the Tribunal the subject of this appeal is an interlocutory decision and thus, not within the contemplation of Section 246(1) of the 1999 Constitution (as amended by dint of Section 8 of the Constitution of the Federal Republic of Nigeria (Second Alteration Act, 2010)

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ii. The two grounds of appeal contained in the said notice of appeal are grounds of facts or at best grounds of mixed law and facts which require leave of this Court or the tribunal before they can be filed or argued.
iii. The Appellants having not obtained the leave of this Court or the Tribunal in respect of the two grounds of appeal before or after filing same, the said grounds are defective and incurably incompetent.
iv. The Appellant?s (sic) brief of argument predicated on the defective notice of appeal is equally defective and cannot be countenanced by this Honourable Court.
v. By reason of (i) ? (iv) supra, this Honourable Court is stripped of the jurisdiction to entertain the appeal.?

The ?purported? P.O. (and I have used the word ?purported? most advisedly), raised by the 2nd Respondent and as set out at paragraph 3.01 on page 5 of its brief of argument identified hereinbefore reads:-
?By way of preliminary objection whether the notice of appeal filed without the leave of the Honourable Court in respect of interlocutory appeal over an

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interlocutory order of the Tribunal of the Tribunal (sic) based on ground of mixed law and facts.?

?Having used the word ?purported? in relation to the P.O. of the 2nd Respondent most advisedly, I consider it pertinent to dwell on the procedure in respect of a P.O. to the hearing of an appeal, in this Court. The procedure to be employed in raising a P.O. to the hearing of an appeal before this Court, is clearly provided for in Order 10 of the 2016 Rules of this Court. A respondent raising a P.O. to the hearing of an appeal is required to: (i) give three clear days notice of the P.O. before the hearing of the appeal; setting out the grounds of the objection, and (ii) file a notice of the P.O. together with twenty copies thereof with the registry within the aforementioned three days. These two conditions in my considered view must be complied with before a respondent can be said to have placed before this Court a ?valid? notice of P.O. It would however appear that the Supreme Court and indeed this Court, over the years have relaxed the procedure stated hereinbefore, and have often times, held to the effect that non-compliance

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with the aspect of the procedure in relation to the filing of a separate notice of P.O., is not a serious infraction to warrant the non-entertainment of a P.O. to the hearing of an appeal. In other words, the current position of the Supreme Court and indeed this Court, in respect of the non-filing of a separate notice of P.O. to the hearing of an appeal that is being entertained by this Court, is that it is sufficient if the P.O. in question is raised and argued in the brief of argument of the respondent to an appeal relying on the same; within the period provided for that purpose under the 2016 Rules of this Court. This is because, the adoption of this procedure by a respondent, sufficiently satisfies the purpose which the filing of a separate notice of P.O. under Order 10 (supra), is to serve and which is simply to put the appellant on notice. In this regard, see amongst many others, the exposition by the Supreme Court, per Peter-Odili, JSC; on the hearing of a P.O. not founded on a separate notice, in the case of BLESSING V. FRN (2018) LPELR ? 44213 (SC), See also the case of AGBASI V. UBA PLC (2019) LPELR ? 47193 (CA). I must however state that

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I do not understand the common position of the Supreme Court and this Court, in respect of the non-filing of a separate notice of P.O. as obliterating the need for a respondent raising the same, to pay the Court fee for the relief as it were. The fact that a P.O. is a separate procedure in an appeal and which would warrant a particular relief if sustained, and to which the filing of a reply brief of argument is applicable, in my considered view, is clearly brought out in the decision of the Supreme Court in the case of SPDC V. AGBARA (2015) LPELR ? 25987 (SC), wherein Ibrahim Tanko Muhammad, JSC; (as he then was) stated thus: –
I think a respondent may be placed on an equal footing, where he introduces an objection to the hearing of an appeal. His objection and submissions thereon may be regarded as the basis of his first brief. Where the appellant responds to the objection and new points or issues are raised therein, the respondent may equally be entitled but limited to reply to such new points or matters of law as raised by the appellant/respondent to the Preliminary Objection. The points of law replied by the respondents in their

28

Preliminary Objection, are, in my humble view, properly raised Emordi v. Kwentoh (1996) 2 SCNJ 134; Okonji v. Njokanma. This, in my view is also in compliance with the law of fair hearing.”
See also the case of NWACHUKWU V. ANELE (2019) (2019) LPELR ? 46609 (CA). Against the backdrop of the position of the law to the effect that a P.O. is a separate procedure in an appeal, it become obvious in my considered view, that a respondent in an appeal who has chosen to comply with the rule of this Court regarding the filing of a separate notice of P.O. and/or a respondent who has elected to raise and argue a P.O. in his brief of argument, must pay the requisite fee in respect of the same. In other words, it would be preposterous for a respondent who has elected to bring and argue his P.O. in his brief of argument (thereby circumventing the provision of the Rules of this Court relating to the filing of a separate notice of P.O.), not to pay the Court fee in respect of the P.O. while another respondent who files a separate notice of P.O., is made to pay the mandatory requisite Court fee for the said notice P.O. because of compliance with the Rules of Court.

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I do not think it is in line with the dictate of justice in any circumstance to allow any party to a suit, particularly an appeal, who has decided not comply with a particular provision of the Rules of Court to the letter, but which non-compliance is encouraged by judicial interpretation, to use the procedure such a respondent has chosen to adopt, to short change the Court of revenue due to it.
Given, the view I have expressed to the effect that I do not understand the position of the law to have obliterated the need for the payment of necessary Court fee by a respondent who has chosen to raise and argue a P.O. to the hearing of an appeal, in his brief of argument without the filing of a separate notice, it becomes obvious that the P.O. raised and argued by the 2nd Respondent in its brief of argument (which in any case appears to be meaningless as it would appear to be an expression of an incomplete or inchoate thought process), is not valid inasmuch as it is obvious ex-facie the endorsement of fees thereon, that the 2nd Respondent did not pay any fee at all (in contradistinction to inadequate fee), in respect of the said P.O. Payment of Court fee for

30

a claim, in respect of a procedure, or relief, brought or sought from the Courts (in contradistinction to inadequate payment of fee or shortfall in the fee paid), till date remains or is always a jurisdictional issue.
Flowing from all that has been said, is that the 2nd Respondent has failed to activate the jurisdiction of this Court to consider its P.O. on the merit; talk less of resolving the same, as he failed to pay any fee whatsoever in respect of the P.O. he raised and argued in its brief of argument. 2nd Respondent?s P.O., is accordingly struck out as being incompetent.

I have herein before set out the P.O. to the hearing of the instant appeal as contained in the notice of P.O. of the 1st Respondent and argued under Part A, paragraphs 1.3 ? 1.8 on pages 3-5, in the brief of argument of the said 1st Respondent identified herein before. The Appellants wonderfully saw the need to dwell on the P.O. in no less than 4 ?A4? pages of printing paper. This they did after they had cited the case of Lanlehin v. Akanbi (2016) 2 NWLR (Pt. 1495) 1 at page 16 whereat this Court is quoted to have stated thus: –                          ?Now,

31

unlike Section 241 and 242 of the 1999 Constitution which speaks of appeals as of right from Federal High Court or State High Court to the Court of Appeal and appeals with leave, there is no such dichotomy when it comes to an appeal from a decision of a National and State Houses of Assembly Tribunal. See Section 246(1)(b) of the 1999 Constitution as amended. Indeed, Section 246(1)(b) states that an appeal from decisions of the National and State Houses of Assembly Election Tribunal ?shall lie as of right?. The issue of leave therefore does not arise.?.
I am of the considered view that if this Court actually held or stated as re-produced above, in the case under reference, the Appellants should have seen that there was no need for them to consider the issue as to whether or not the grounds of appeal in their notice of appeal or any of them, are grounds of law or otherwise and/or in respect of which they (Appellants) required leave to appeal. In my considered view, this is because if a party has a right of appeal as of right against any decision of the Tribunal as said to have been decided in the case under reference, then the issue of

32

seeking leave to appeal for any purpose in connection with or relating to the exercise of the right of appeal in question, becomes otiose or impracticable.
I am however of the considered view that perhaps the Appellants went to the extra length of dwelling on the categorisation of the grounds of appeal in their notice of appeal as they are aware that a reading of the case that they cited, actually did not raise the issue relating to appeals against the decision of an election petition tribunal and neither made sure that the portion re-produced from the case they cited, is actually contained therein. I have said this much, as I have painstakingly read the case of Lanlehin v. Akanbi as cited by the Appellants and which is also reported as LANLEHIN V. AKANBI (2015) LPELR ? 42147 (CA) and (unless there are two different versions of the said judgment), I have not seen anything or portion therein, as re-produced in the reply brief of argument of the Appellants to the brief of argument of the 1st Respondent. I will however not make too much fuss regarding the accuracy or otherwise of what the Appellants claimed to have re-produced from the judgment of

33

this Court in the case under reference as contained in the NWLR cited, as I have not had the benefit of reading the case as reported in the particular law report in question. I should however not be taken as saying from all that I have stated hereinbefore, that the Appellants are wrong in the position they have taken that the question of appealing with or without leave in respect of any decision of an election petition Tribunal (election petitions being sui generis and appeals therein being the subject of Section 246 of the Constitution as amended), has no basis or foundation in law. This is because the position of the Appellants in this regard, finds total support in the decision of this Court in the case of NWOKOCHA V. IKE (2015) LPELR ? 25662 (CA), wherein this Court, dwelling on the issue as to whether an appellant has no right under Section 246 of the 1999 Constitution to appeal against an interlocutory decision of the Election Petition Tribunal, amongst others, said per Ige, JCA; thus: –
?xxxxxxxxxxxxxSection 246 of the 1999 Constitution of the Federal Republic of Nigeria

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provides: “246(1) xxxxxxxxxxxx.Section 246 (1) (b) gives right of appeal as of right from “decisions” of the National and States Houses of Assembly Election Tribunals to this Court. The provisions of the said Sections 246 (1) emphasizes the appeal must be from decisions pertaining to and raising any question as to whether any person has been validly elected as a member of National Assembly or of a House of Assembly of a State under the 1999 Constitution as amended or altered. By Section 285 (2) of the said Constitution the Lower Tribunal has been established with exclusive original jurisdiction to hear and determine petitions as to whether any person has been validly elected as a member of the National Assembly. Therefore any decision taken or procedure that may be adopted by the Lower Tribunal in hearing and determining the person elected as member of House of Representatives for ISIALA NGWA NORTH FEDERAL CONSTITUENCY SEAT constitutes a decision, order or taking action aimed at promoting and facilitating the just

35

and speedy disposal of the petition bearing in mind the urgency of the election petitions. That will give rise and right to appeal to this Court pursuant to Section 246 (1) which does not discriminate between final and interlocutory decisions. It appears to me that Section 246 (1) indubitably gives Right of Appeal from interlocutory decision of the Election Petition Tribunal to any party aggrieved. The said Section 246 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended, gives and guaranteed constitutional right of appeal to parties in Election Petition proceedings from an interlocutory decision or order of Election Petition Tribunal. Respondent also contended that if this Court finds as I have just found that Appellant has Right of Appeal then, Appellant requires leave and must seek the Leave of Court and obtain same to make his Notice and Grounds of Appeal competent.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
I am of the firm view that since the said Section 246 (1) provides that: “(1) An appeal to the Court of Appeal shall lie as right from – (b) decisions of the National Assembly and State Houses

36

of Assembly Election Tribunals …” there are no dichotomy between categories of appeal created in the said Section 246 (1) the 1999 Constitution and nothing is stated therein that an Appellant’s appeal requires leave to enable Appellant appeal to this Court. For avoidance of doubt the latin maxim of expressio unis est exclusio alterius can be invoked here. The express mention of “appeal as of right” negates any inference that interlocutory appeal must be by leave. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx?
Given, the above cited case, and as this Court is bound by its own decision, I cannot but say that it becomes obvious that the P.O. of 1st Respondent, is most unfounded in law and must be overruled and which I hereby do. Furthermore, as a P.O., is a separate proceeding in an appeal as it were, and as the 1st Respondent has glaringly refused to be guided by the settled position of law in place at all material times prior to filing his instant P.O., I consider it appropriate to award cost against him and in favour of the Appellants.

?Flowing from all that has been said, is that the P.O. of the 1st Respondent to the hearing of the instant appeal

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is overruled and consequently dismissed. Costs of N50,000.00 is awarded in favour of the Appellants being the successful parties in the P.O. entertained by the Court.
Now to the consideration of the instant appeal on the merit.

The two issues formulated for the determination of the appeal by the Appellants have been set out hereinbefore. The first of the issues, is as to whether or not the Tribunal had a valid application for the dismissal of their petition against the 2nd and 3rd Respondents, as at the time Tribunal struck them out of the petition as parties. In other words, the grouse of the Appellants is that the application for the dismissal of their petition and which resulted in the striking out of the 2nd and 3rd Respondents as parties therein, was improperly made orally; and not that the Tribunal lacked the vires to entertain the same under any circumstances. Though the Appellants would appear not to have cited any election petition case or matter on the issue, their stance that the Tribunal cannot properly strike out the 2nd and 3rd Respondents as parties in their petition, was anchored on the interpretation to be accorded the

38

provisions of paragraph 18 of the 1st Schedule to the Electoral Act. They also relied on non-electoral cases that go to show that when the provision(s) of an enactment provide for the particular manner of doing an act and or in respect of how a proceeding is to be undertaken, such manner of doing the act or initiating the proceedings in question, must be complied with.

On his part, the 1st Respondent in the main, argued that the issue of the proper filing of an application for the issuance of pre-hearing notice being jurisdictional in nature, it therefore can be raised at any time in the proceeding before the Tribunal, and in any manner. Cases considered relevant were, cited including some election petition matters. The positions of the 2nd and 3rd Respondents respectively, on the issue, is no different from that of the 1st Respondent.

I am of the considered view that the law is settled and has been so settled for long, that election petitions are sui generis. This is because separate provisions have been made in relation to election petitions in the amended 1999 Constitution, the Electoral Act 2010 as amended, and the Rules of Procedure for

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election petitions, otherwise and often referred to simply as 1st Schedule to the Electoral Act. Given the uniqueness of election petitions, I am of the considered view that the importation and application of principles of law that have evolved in ordinary civil cases over the years to election petitions without having regard to the very peculiar nature of election petitions, if care is not taken, can easily result in supplanting the clear and stringent or strict relevant provisions of the amended 1999 Constitution, the Electoral Act and/or 1st Schedule, designed for the expeditious determination of election petitions; and which by virtue of relevant provisions of the 1999 Constitution, must be accomplished within 180 days from the dates they are filed. There is therefore need for this Court and the Tribunal to always abide by decisions in respect of procedures stipulated under the Electoral Act or the provisions of the 1st Schedule, that have been interpreted by this Court in a previous or some previous cases; especially where the decisions of this Court in such cases, have not been not been overturned or reversed by any decision of the Supreme

40

Court.

In the light of all that I have said herein before, I cannot but say that this Court had as far back as August, 2011, stated the procedure to be adopted by a respondent that feels aggrieved by the non-application for pre-hearing form by a petitioner or petitioners as provided for, under paragraph 18 of the 1st Schedule. This was in the case of GEBI V. DAHIRU (2011) LPELR ? 9234 (CA) wherein this Court in the contributory judgment of Jauro, JCA; stated thus:
?…The narrow compass, within which this appeal oscillates, is on the interpretation of Paragraph 18(1)(2) and (3) of the First Schedule to the Electoral Act 2010 (as amended). The relevant provisions cited in the preceding sentence relate to the application for the commencement of pre-hearing session and issuance of pre-hearing notice Form TF 007 and pre-hearing information sheet Form TF 008. The 1st Respondent herein applied for the issuance of pre-hearing notice by a letter filed on the 1st June, 2011. The bone of contention therefore is whether such an application can be made by letter or as only

41

restricted to be made by motion, particularly in view of Paragraph 47 of the same Schedule to the Electoral Act 2010 (as amended).
The relevant sub-paragraphs of Paragraph 18 of the First Schedule to the Electoral Act 2010 (as amended) are hereby reproduced:
“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 pre-hearing notice as in Form TF007.
(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 accompanied by a pre-hearing information sheet as in Form TF 008 for:
a…
b…
c…
d…
(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.”
Paragraph 18(1) of the First Schedule to the Act,

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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

43

pre-hearing notice, leave is not necessary for making 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 ex parte or on notice…?
Having regard to the case cited above, and portion of it that has been re-produced, it would therefore appear that the Appellants are on firm grounds in their stance that an application for the dismissal of a petition for non-application for pre-hearing form or forms by the Petitioner or Petitioners, has to be made formally, i.e. by motion. However, what the Appellants would appear to have missed, and which the 3rd Respondent brought to the fore was that the oral application made to the Tribunal for the dismissal of the petition, even if it was not commenced by way of a formal motion was an irregularity which the Appellants did not complain about and that this infraction therefore was of no moment.
?I have re-produced hereinbefore, the

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submissions of the Appellants before the Tribunal after the issue of their (Petitioners) having not filed their applications for the issuance of pre-hearing forms within the periods stipulated by the 1st Schedule was raised. In my considered view, it is glaring from the said proceedings that the Appellants did not object to the manner by which the issue was raised immediately it was so raised. It was at the tail end of the submissions of their counsel in response to the issue, that it occurred to him to dwell on the manner by which the said issue should have been raised. This would appear to be a case of bolting the door after the horse had escaped. If the Appellants wanted to make the manner of raising the issue under consideration a matter of jurisdiction, they ought to have registered their opposition to the manner the same was brought, before responding to the same on the merit as it were. The Appellants having not done this, and having also not shown how the non-raising of the issue under consideration by way of motion, has caused them any miscarriage of justice, it becomes obvious in my considered view, that they therefore cannot be heard to say that

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there was no valid application before the Tribunal necessitating the dismissal of their (Appellants?) petition against the 2nd and 3rd Respondents, respectively.

Flowing from all that has been said, is that Appellants? issue 1 which in any event is more in the abstract; in that it was not framed in the light of the prevailing circumstances at the time of the entertainment of the objections of the 2nd and 3rd Respondents respectively, is resolved against the said Appellants.

?Appellants? issue 2 in the main questions the correctness of the decision of the Tribunal dismissing their petition against the 2nd and 3rd Respondents respectively, upon the election of the said Tribunal to be bound by the earlier decisions of this Court in respect of when to file or apply for the issuance of pre-hearing forms in compliance with the provisions of paragraph 18 of the 1st Schedule. I do not see the need to dwell at length on the issue as canvassed in the briefs of argument of the parties except to state that while it is the position of the Appellants that the Tribunal was wrong in its election; that of the 1st, 2nd and 3rd Respondents

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respectively, is that the Tribunal was right.
The law would appear to be settled that a Court below this Court cannot on its own, elect to choose which one out of the conflicting decisions, or perceived conflicting decisions of this Court, it is to follow. This is just as this Court and indeed any other subordinate Court in the judicial hierarchy of this country, have no power to elect which one out of any conflicting decisions of the Supreme Court, it will or should follow. The Supreme Court has made it abundantly clear that in line with the principle of stares decisis and strict recognition of its supremacy as it were, this Court must follow its decision that is later in time in the event any of its conflicting decisions, are placed before this Court in respect of any matter in contention before it (i.e. Court of Appeal). See in this regard the case of OSAKUE V. FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA (2010) 5 SCM 185. Therein, the Supreme Court, forcefully put this position on ground and further made it clear that the prerogative of ?election? is that of the superior Court that has given the conflicting decisions or perceived

47

conflicting decisions. Suffice, it to say that the same position applies to a Court lower to this Court vis a vis any conflicting decision of this Court. See in this regard the cases of NDILI V. AKINSUMADE (2000) LPELR ? 6910 (CA) and ADEJUGBE V. ADULOJU (2015) LPELR ? 24916 (CA), amongst many others. Given the positions of the law as enunciated in the cases cited above, and in the light of the portion of the ruling of the Tribunal re-produced hereinbefore, it becomes obvious that the Tribunal in its interpretation of the provisions of paragraph 18 of the 1st Schedule (supra) vis a vis the applicable rules, to pleadings in the Federal High Court and State High Courts, simply set out to commit a judicial heresy or sacrilege and actually committed same. This is most unfortunate as it would have saved all the parties and the Appellants in particular, time which is of essence in the hearing of the instant petition. I consider it expedient to say that having had the benefit of reading again the decisions of this Court in the 2015 and 2017 cases cited by the Tribunal in its ruling (but cases it elected not to follow), and assuming the

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Tribunal has the power to elect which of the perceived contradictory decisions of this Court, it should follow, (and which power it does not have), the interest of justice to have a petition determined on the merit as it relates to all the parties therein, should have dictated that it elected or abided by the later decisions of this Court (i.e. the decisions in the 2015 and 2017 cases) which it (Tribunal) is by a matter of law bound to follow in the first place. This is more so as the Tribunal would have avoided as it were the narrow or technical position this Court in relation to when pleadings close in a petition as enunciated in the previous cases the Tribunal relied on in striking out INEC i.e., 3rd Respondent in particular, as a party in a petition wherein allegation that the body must answer are massive (and which qualifies the said INEC as a statutory Respondent). The provisions of paragraph 18 of the 1st Schedule (supra) it should be noted envisage an infraction that would result in the dismissal of a petition in its entirety and not the severance of a party or some parties from a petition, with the petition in question remaining live before the

49

Tribunal for adjudication. In other words, reliance by the Tribunal on the previous cases decided by this Court on the issue at hand, engendered a situation whereby the Tribunal might be seen as not recognising and/or respecting the right of the Appellants to fair hearing. This cannot be the case if the Tribunal had allowed itself to be guided by the decisions of this Court in the cases the Tribunal refused to follow (and which having regard to the interpretation of the provision of paragraph 18(1) of the 1st Schedule in the said cases) afforded the term ?close of pleadings? vis a vis application(s) for the issuance of pre-hearing form(s), an expanded or more elastic application.

Flowing from all that has been said is that Appellants? issue 2 is resolved in their favour.

In the final analysis, the appeal is meritorious given the resolution of Appellants? issue 2 in their favour. Accordingly, the ruling of the Tribunal delivered on 27/5/2019 dismissing the Appellants? petition against the 2nd and 3rd Respondents respectively, is set aside. These Respondents therefore remain parties in the Appellants?

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petition before the Tribunal. I however do not see how this Court can by judicial fait order another panel to hear the petition on the merit. This is because the establishment of Election Tribunal hearing the type or class of election petition brought by the Appellants, is at the discretion of the Hon. President of the Court of Appeal who is also in charge of assigning or allocating to the said panels set up, the petitions to be entertained by them. It therefore follows that this Court has no vires to interfere with the assignment of petitions to any particular panel. I believe that it is for the Appellants (if they consider it wise for their petition to commence de novo having regard to the settled position of the law regarding the time within which a petition must be entertained and judgment delivered therein), to make necessary application for this purpose to the Hon. President of the Court of Appeal. They cannot achieve this by a judicial order.

?I make no order as to costs in the appeal although I have hereinbefore awarded cost in the sum of N50,000.00 in favour of the Appellants and against the 1st Respondent in the preliminary objection the said

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1st Respondent brought.
?
RAPHAEL CHIKWE AGBO, J.C.A.: I agree

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree

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Appearances:

Chidozie Ogunji with him, N.R. Chibuisi (Mrs.)For Appellant(s)

G.E. Ejemai with him, A.I. Badamasi and A.O. Nkoro for the 1st Respondent
U.C. Nnenji for 2nd Respondent holding brief for John C. Okoli
Ijeoma Olaedo Osuagwu (Mrs.) for 3rd Respondent

For Respondent(s)

 

Appearances

Chidozie Ogunji with him, N.R. Chibuisi (Mrs.)For Appellant

 

AND

G.E. Ejemai with him, A.I. Badamasi and A.O. Nkoro for the 1st Respondent
U.C. Nnenji for 2nd Respondent holding brief for John C. Okoli
Ijeoma Olaedo Osuagwu (Mrs.) for 3rd RespondentFor Respondent