PASTOR AMINCHI HABU & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13581(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of June, 2019
CA/A/PEPC/004/2019(R)
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1. PASTOR AMINCHI HABU
2. PEOPLES DEMOCRATIC MOVEMENT (PDM) Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. MOHAMMADU BUHARI
3. ALL PROGRESSIVE CONGRESS (APC) Respondent(s)
RATIO
THE LITERAL RULE OF INTERPRETATION
After relying on the affidavit evidence in support of the motion, the 2nd respondent through his learned senior counsel leading other learned senior counsel and legion of learned junior counsel adopted the written address attached to the motion paper in which it was advocated that by the mandatory, clear and unambiguous provisions of Paragraph 18(1), (3) and (5) of the First Schedule which should be given literal construction read with the cases of Marwa v. Nyako (2012) 6 NWLR (pt.1296) 199 at 280, Calabar Central Cooperative Thrift and Credit Society and Ors. v. Ekpo (2008) 6 NWLR (pt.1083) 12 NWLR (pt.1209) 518 at 558 and 559, Obioha v. Dafe (1994) 2 NWLR (pt.325) 157 at 173, Eguamwense v. Amaghizenwen (1993) 9 NWLR (pt.315) 1 at 3, Ugwu v. Ararume (2007) 12 NWLR (pt.1048) 367 at 441 ? 442, Bamaiyi v. AGF (2001) 12 NWLR (pt.727) 468 at 497, Dingyadi v. INEC (2011) 10 NWLR (pt.1255) 347 at 398 ? 390, Nwora v. Nwabueze (2013) 16 NWLR (pt.1379) 1 at 23, Re: Madaki (1996) 7 NWLR (pt.459) 153 at 168 ? 169, Okereke v. Yar’Adua (2008) All FWLR (pt.430) 626 at 646, ANPP v. INEC (2008) LPELR ? 9256, Omisore v. Aregbesola (2015) 12 NWLR (pt.1482) 205 at 290 ? 291, Enwezor v. INEC (2009) 8 NWLR (pt.1143) 223 at 237, HDP v. INEC (2009) LPELR ? 8677, Asetubode v. Bipi (2011) LPELR ? 9782. PER GARBA, J.C.A.
THE MEANING OF CLOSE OF PLEADINGS IN ELECTION MATTERS
I agree with the 2nd respondent/applicant that close of pleadings in election matters can only import and/or mean the time all the parties in the petition are by the provisions of the First Schedule (which provides for the filing and exchange of petitions and replies in paragraphs 12 and 16 thereof) are expected to have filed the necessary pleadings in the petition vide Chukwu v. Ude-Okoye (2017) All FWLR (pt.982) 1025 cited by the 2nd respondent read with the decision of this Court in the case ofHon. (Mrs.) Rita Ada Ibemere Okoroafor and Anor. v. INEC and Ors. in Appeal No. CA/OW/EPT/SEN/31/2015 per the lead judgment prepared and delivered by Ige, J.C.A., on 12.10.15 in pages 23 ? 34 thereof following the earlier judgments of the Court in Nwadike and Anor. v. Onyereri and Ors. CA/OW/EPT/1/2015 delivered on 19.08.15 and Ikoro v. Izunaso and Ors. (2010) All FWLR 1550 at 1569 ? 1570 per the lead judgment prepared by his lordship, Garba, J.C.A. PER GARBA, J.C.A.
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Lead Ruling): The 2nd respondent filed this motion on notice on 21.05.19. It prays for an order dismissing/striking out the petition for failure of the petitioners to apply for the issuance of pre-hearing notice within the time prescribed by Paragraph 18 of the First Schedule to the Electoral Act 2010 (as amended, (the First Schedule).
?The grounds upon which the motion on notice is brought stated in the body of the motion paper that the petition was filed on 19.03.19 and the 2nd respondent who was the last of all the three respondents to be served with the petition, was also the last respondent to file his reply on 29 04.19, thereby bringing pleadings to a close as between all the parties, and between the petitioners and the 2nd respondent in particular, on the said 29.04.19; and that the petitioners failed and/or refused to apply for the issuance of pre-hearing notice for the commencement of the pre- hearing session as in Form TF007 within 7 days of the filing of their reply to the 2nd respondent’s reply in contravention of Paragraph 18 (1) of the First Schedule thus robbing the Court of
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the jurisdiction to take any action in respect of the petition, as the condition precedent for the activation of the Court’s jurisdiction was not kick-started which ought to bring the petition to grief by entry of an order for its dismissal on account of lack of jurisdiction of the Court to entertain the petition.
The affidavit in support of the application deposed to by a Mr. Olatubora Moses Ayodeji, one of the learned counsel for the 2nd respondent, reiterated that parties had identified their respective processes filed before the Court on 08.05.19 showing the petition was filed on 19.03.19 and the 2nd respondent’s reply was filed on 25.04.19, while the petitioners’ reply to the 2nd respondent’s reply was filed on 29.04.19; and that the petitioners only applied for the issuance of pre- hearing notice on 25.04.19 without having applied for the issuance of the pre-hearing notice after filing their reply to the 2nd respondent’s reply, being the last in the series of the petitioners’ reply.
After relying on the affidavit evidence in support of the motion, the 2nd respondent through his learned senior counsel leading other learned senior counsel and
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legion of learned junior counsel adopted the written address attached to the motion paper in which it was advocated that by the mandatory, clear and unambiguous provisions of Paragraph 18(1), (3) and (5) of the First Schedule which should be given literal construction read with the cases of Marwa v. Nyako (2012) 6 NWLR (pt.1296) 199 at 280, Calabar Central Cooperative Thrift and Credit Society and Ors. v. Ekpo (2008) 6 NWLR (pt.1083) 12 NWLR (pt.1209) 518 at 558 and 559, Obioha v. Dafe (1994) 2 NWLR (pt.325) 157 at 173, Eguamwense v. Amaghizenwen (1993) 9 NWLR (pt.315) 1 at 3, Ugwu v. Ararume (2007) 12 NWLR (pt.1048) 367 at 441 ? 442, Bamaiyi v. AGF (2001) 12 NWLR (pt.727) 468 at 497, Dingyadi v. INEC (2011) 10 NWLR (pt.1255) 347 at 398 ? 390, Nwora v. Nwabueze (2013) 16 NWLR (pt.1379) 1 at 23, Re: Madaki (1996) 7 NWLR (pt.459) 153 at 168 ? 169, Okereke v. Yar’Adua (2008) All FWLR (pt.430) 626 at 646, ANPP v. INEC (2008) LPELR ? 9256, Omisore v. Aregbesola (2015) 12 NWLR (pt.1482) 205 at 290 ? 291, Enwezor v. INEC (2009) 8 NWLR (pt.1143) 223 at 237, HDP v. INEC (2009) LPELR ? 8677, Asetubode v. Bipi (2011) LPELR ? 9782
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the only method to have been followed by the petitioners in the present petition was to comply with the mandatory provisions of Paragraph 18 (1) of the First Schedule, failure of which should attract an order of dismissal of the petition as abandoned as the petitioners did not apply for the issuance of pre-hearing notice within 7 days after close of pleadings in the petition with the filing of their reply to the 2nd respondent’s reply on 29.04.19, upon which the 2nd respondent concluded that based on the submissions/arguments (supra) the petition should be dismissed.
?The petitioners filed a counter affidavit with written address in opposition to the motion on notice on 28.05.19 to the effect that the 2′ respondent’s reply to the petition filed on 25.04.19 being the last reply filed and the petitioner having applied for the issuance of pre-hearing notice and information sheet dated 13.05.19 as well as the petitioners’ answers to the pre-hearing information sheet which was filed on 07.05.19, the close of pleadings between the parties signalled the filing of the application for the issuance of a pre-hearing notice which the petitioners rightly applied for on
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25.04.19 after the filing of the 2nd respondent’s reply to the petition citing in support the cases of Aregbesola and Anor. v. Adenike and Ors. (2015) LPELR ? 25594, Uwajumogu v. Nneji and Ors. (2017) LPELR ? 41435, Omisore v. Aregbesola (2015) 15 NWLR (pt.1482) 205 at 234; consequently, the petitioners canvassed that the motion be dismissed.
The 2nd respondent’s reply address to the petitioners’ written address which was filed on 07.06.19 raised preliminary onslaught on the petitioners’ counter affidavit and written address that it was filed outside and in infraction of Paragraph 18 (3) of the First Schedule as rules of Court are meant to be obeyed. Therefore the breach of Paragraph 18 (3) of the First Schedule by the petitioners should render their counter affidavit and written address of no moment which should be struck out on account of the motion being uncontested and not requiring further proof citing in support the cases of Okediran v. Ayoola and Ors. (2011) LPELR 4063(CA), Anyanwoko v. Okoye (2010) 5 NWLR (pt.1188) 497 at 520, Omisore v. Aregbesola and Ors. (2015) All FWLR (pt.813) 1673, ANPP v. Goni (2012) 7 NWLR (pt.1298) 147
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at 182?183, Adesanya v. Otuewu (1993) 1 NWLR (pt.270) 414 at 456, Okongwu v. N.N.P.C. (1989) 4 NWLR (pt.115) 296 at 309.
The 2nd respondent argued in the alternative and on the merits in the reply address that the case of Aregbesola v. Adenike (supra) was decided on the concession made that the application for a pre-hearing notice was prematurely made only in respect of the 3rd respondent therein but properly filed in respect of the 1st and 2rd respondents, so the petitioners herein ought to first concede to the fact that though the application may be competent in respect of the 1st and 3rd respondents, it remained incompetent in respect of the 2nd respondent.
The 2nd respondent added that the case of Uwajumogu v. Nneji and Ors. (supra) dealt with abuse of process by filing multiple applications for issuance of pre-hearing notice in response to each of the respondent’s reply closing pleadings between the petitioner and each of the respondent, while in the present case the objection is based on the premiss that the application for the issuance of pre-hearing notice in respect of the pleadings between the petitioners and the 2nd respondent was
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filed prematurely and thus amounted to an abandonment of the petition, therefore the case is distinguishable from this case and that the cases (supra) cited by the petitioners are in effect only authorities for what they have decided and cannot be applied to unrelated circumstances as in the present application citing in support the case of Okafor v. Nnaife (1987) 4 NWLR (pt.64) 129 at 163.
The 2nd respondent further argued in the written address that pleadings would have closed when all the parties are by law or rules of Court expected to have filed all the necessary processes; that in this petition, pleadings were yet to close at the time the petitioners filed the application for the issuance of pre-hearing notice on 25.04.19 which was premature; and that the fact that answers to pre-hearing information sheet were filed did not amount to waiver of the right to complain that the jurisdiction of the Court was not activated by the filing of an application for the issuance of pre-hearing notice in the circumstances as an issue of jurisdiction cannot be waived citing in support Order 13 Rule 32 of the Federal High Court (Civil Procedure) Rules, 2009 read with
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the cases of Chukwu v. Ude-Okoye (2017) All FWLR (pt.982) 1025 at 1048, Okereke v. Yar’Adua (2008) 12 NWLR (pt.1100) 95 at 120 ? 121, N.C.C. v. MTN (Nig.) Comm. Ltd. (2008) 7 NWLR (pt.1086) 229 at 259 ? 260, Ukpong v. Comm. Finance and Econ. Devt. Akwa Ibom (2007) All FWLR (pt.350) 1246 at 1274, Okolo v. U.B.N. Ltd. (2004) 3 NWLR (pt.859) 87 at 108, Sa’eed v. Yakowa (2013) 7 NWLR (pt.1352) 124 at 144; upon which the 2nd respondent concluded by urging in the reply address that the petition should be dismissed as the case of the petitioners herein is “irredeemable and no amount of pontification can breathe life into it”.
The 1st and 3rd respondents did not oppose the application.
The portion of the decision in Okediran v. Ayoola and Ors (supra) cited by the 2nd respondent as applicant to the motion and reproduced in page 2 of the 2nd respondent/applicant’s reply address is clear that the “3 clear days” in the tail-piece of Paragraph 18 (3) of the First Schedule is for the protection of the respondent to the application in order for the respondent to the application to have advance notice of the application and thus give time to the
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respondent to the application to prepare his response upon the point(s) raised by the application. In this case, the respondents to the application are the two petitioners. Paragraph 18 (3) of the First Schedule on the returnable date of “3 clear days” was therefore inserted for their benefit and protection. They have not complained. I, therefore, respectfully refuse to countenance the application of the case of Okediran v. Ayoola and Ors. (supra) in favour of the applicant in the present case in the circumstances.
I agree with the 2nd respondent/applicant that close of pleadings in election matters can only import and/or mean the time all the parties in the petition are by the provisions of the First Schedule (which provides for the filing and exchange of petitions and replies in paragraphs 12 and 16 thereof) are expected to have filed the necessary pleadings in the petition vide Chukwu v. Ude-Okoye (2017) All FWLR (pt.982) 1025 cited by the 2nd respondent read with the decision of this Court in the case ofHon. (Mrs.) Rita Ada Ibemere Okoroafor and Anor. v. INEC and Ors. in Appeal No. CA/OW/EPT/SEN/31/2015 per the lead judgment prepared and delivered by
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Ige, J.C.A., on 12.10.15 in pages 23 ? 34 thereof following the earlier judgments of the Court in Nwadike and Anor. v. Onyereri and Ors. CA/OW/EPT/1/2015 delivered on 19.08.15 and Ikoro v. Izunaso and Ors. (2010) All FWLR 1550 at 1569 ? 1570 per the lead judgment prepared by his lordship, Garba, J.C.A.
In the instant case, the petitioners filed their reply to the 1st respondent’s reply to the petition on 05.04.19, and their reply to the 2nd respondent’s reply to the petition on 29.04.19 as well as the reply to the 3rd respondent’s reply to the petition on 12.04.19. The petitioner’s reply to the 2nd respondent’s reply to the petition filed on 29.04.19 was the last reply to be filed and conclusively closed the pleadings in the petition on 29.04.19.
The petitioners were therefore in error when they reckoned the date of close of pleadings in the petition on 25.04.19, which was the date the 2nd respondent filed his reply to the petition. Accordingly, the application for the issuance of pre-hearing notice filed by the petitioners on 25.04.19 was prematurely filed and is hereby not countenanced.
?The application for the issuance of
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pre-hearing notice filed by the petitioners on 30.04.19 upon payment of the filing fee of N300 which was filed a day after the close of pleadings on 29.04.19 forms part of the record of Court as a process duly filed in the registry of the Court which the Court is entitled to look at for the purpose of determining the controversy generated by this application on the footing that the parties and the Court are bound by the record of the Court vide Court videOji Ada and Ors. v. Ossai Uku and Ors. (1977) 5 F.C.A. 218, Ogli Oko Memorial Farms Ltd. v. Nigeria Agricultural and Cooperative Bank (2008) 4 SCNJ 436 at 448 or (2008) 12 NWLR (pt.1098) 412.
The application for the issuance of pre-hearing notice filed on 30.04.19 was therefore properly filed within the time-frame of seven (7) days stipulated by Paragraph 18 (1) of the First Schedule and properly vests the Court with the requisite jurisdiction to embark on the pre-hearing session. The motion to dismiss the petition on ground of being abandoned for failure of the petitioners to file application for the issuance of pre-hearing notice is, with respects, devoid of merit and is hereby dismissed without costs.
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ABDU ABOKI, J.C.A.: I agree.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A.: I agree.
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Appearances:
Mr. Aliyu I. Lemu with him, Mr. M.S. Hussaini, Mr. A.H. Shehu and Mr. O.S. EmejuluFor Appellant(s)
Mr. Yunus Ustaz Usman, (SAN), Mr. Omoruyi Augustine Omonuwa (SAN, OFR), Prof. Fabian Ajogwu (SAN, F.C.Arb), Mr. Samuel Tomi Ologunorisa (SAN), Mr. Tanimu M Inuwa (SAN) with him, Abdulrahman Madak, Esq., B. M. Salihu Esq., Eze A. Nwa-Uwa, Esq., Mohammed Ibrahim Tola, Esq.,Udu Diegbe, A. I. Aderogba, Esq.,P. M. Ayam, Esq.,Owolona Aako-Adekwu, Esq.,Ifeanyi Ihejirika, Esq., Matthew Echo Esq.,Pereboh Sanni, Esq.,Wendy Kuku, Esq., Abdulaziz Sani, Esq., M.S. Danbaba, Esq., Mercy Nakpo Adabson, Esq.,Aremiyau Yusuf Abubakar, Esq., Ogboji Chijioke O. Esq., Jessica lyoke, Sadiya Abdulrahman, Esq., Danjuma Danasabe, Kadiri Ohiole, Esq.,Adefolojogun Olubunmi Aroloye, Esq.,Zecharia Maleeks Jnr. Esq. for the 1st Respondent.
Chief Wole Olanipekun (OFR,SAN) , Mr. Nnamonso Ekanem (SAN), Dr. B. Olanipekan (SAN), Mr. Akin Osinbajo (SAN) with them, Edwin Anikwem, Lanre Akinsola, Emmanuel Uwadoka, Adelani Ajibade, Aina O. Salami, M. I. Hanafi, O. A. Ibadin for the 2nd Respondent.
Prince L.O. Fagbemi (SAN, FCIArb), Mr. Oladipo Okpeseyi (SAN), Mr. Y.C. Maikyau (SAN) with them, Akin Oladeji, Esq.,Funso Olukoga, Esq.,Japhet Opawale, Esq.,S. A. Sanni, Esq., Chuka Iguh, Esq., Abdul Fatai Oyedele, Esq. (MCIArb) and Thomas Ojo, Esq.for the 3rd Respondent
For Respondent(s)
Appearances
Mr. Aliyu I. Lemu with him, Mr. M.S. Hussaini, Mr. A.H. Shehu and Mr. O.S. EmejuluFor Appellant
AND
Mr. Yunus Ustaz Usman, (SAN), Mr. Omoruyi Augustine Omonuwa (SAN, OFR), Prof. Fabian Ajogwu (SAN, F.C.Arb), Mr. Samuel Tomi Ologunorisa (SAN), Mr. Tanimu M Inuwa (SAN) with him, Abdulrahman Madak, Esq., B. M. Salihu Esq., Eze A. Nwa-Uwa, Esq., Mohammed Ibrahim Tola, Esq.,Udu Diegbe, A. I. Aderogba, Esq.,P. M. Ayam, Esq.,Owolona Aako-Adekwu, Esq.,Ifeanyi Ihejirika, Esq., Matthew Echo Esq.,Pereboh Sanni, Esq.,Wendy Kuku, Esq., Abdulaziz Sani, Esq., M.S. Danbaba, Esq., Mercy Nakpo Adabson, Esq.,Aremiyau Yusuf Abubakar, Esq., Ogboji Chijioke O. Esq., Jessica lyoke, Sadiya Abdulrahman, Esq., Danjuma Danasabe, Kadiri Ohiole, Esq.,Adefolojogun Olubunmi Aroloye, Esq.,Zecharia Maleeks Jnr. Esq. for the 1st Respondent.
Chief Wole Olanipekun (OFR,SAN) , Mr. Nnamonso Ekanem (SAN), Dr. B. Olanipekan (SAN), Mr. Akin Osinbajo (SAN) with them, Edwin Anikwem, Lanre Akinsola, Emmanuel Uwadoka, Adelani Ajibade, Aina O. Salami, M. I. Hanafi, O. A. Ibadin for the 2nd Respondent.
Prince L.O. Fagbemi (SAN, FCIArb), Mr. Oladipo Okpeseyi (SAN), Mr. Y.C. Maikyau (SAN) with them, Akin Oladeji, Esq.,Funso Olukoga, Esq.,Japhet Opawale, Esq.,S. A. Sanni, Esq., Chuka Iguh, Esq., Abdul Fatai Oyedele, Esq. (MCIArb) and Thomas Ojo, Esq.for the 3rd RespondentFor Respondent