PEOPLES DEMOCRATIC PARTY V. PROF. STEVE TORKUMA UGBA & ORS
(2011)LCN/4815(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of October, 2011
CA/MK/EPT/10/2011
RATIO
GROUND OF APPEAL: POSITION OF THE LAW ON THE CONTENT OF A GROUND OF APPEAL
However, it is trite that a ground of appeal consists of the error of law or fact alleged by an appellant as the defect in a judgment appealed against and relied upon to set the judgment aside. A ground of appeal must therefore relate to the decision appealed against. It must attack the decision of a court on the issue decided by it. Accordingly on appellant is not of liberty to argue any ground which is not related to the judgment appealed against. See Metal Const. (W.A) LTD V. Migliore (1990) 1 NWLR (PT. 126) 299: Bhojsons Plc. V. Daniel – Kalio (2006) 5 NWLR (Pt. 973) 330. PER UCHECHUKWU ONYEMENAM, J.C.A
ISSUES FOR DETERMINATION: EFFECT OF AN ISSUE FOR DETERMINATION THAT IS PREDICATED ON AN INCOMPETENT OR DEFECTIVE GROUND OF APPEAL
It is the law that where an issue for determination is predicated on an incompetent or defective ground of appeal, such becomes unarguable. See: Thor LTD V. F.C.M.B. LTD (2002) 4 NWLR (PT. 757) 427. PER UCHECHUKWU ONYEMENAM, J.C.A
RULES OF INTERPRETATION: THE RULES AND PRINCIPLES GOVERNING THE INTERPRETATION OF STATUTORY PROVISIONS
I resume on the pedestal of the rules and principles governing the interpretation of statutory provisions as set out by the Supreme Court in Basinco Motors Ltd V, Woermann – Line 4 Anor 2010 10 WLR 1 at 29 – 30. The principles are set out thus: (1) “It is the intention of the Legislature that should be sought, and same is to be ascertained from the words of the statute alone and not from other sources. (2) Where the words used in the provisions of a statute are clear, simple and unambiguous, they should be given their simple, natural and ordinary meaning. (3) The Court is not concerned with the result of its interpretation, that is, it is not the Court’s province to pronounce on the wisdom or otherwise of the statute but only to determine its meaning. (Underlining mine for emphasis) (4) The court must not import into legislation words that were not used by the Legislature, and which will give a different meaning to the text of the statute as enacted by the Legislature. (5) The Court must not bring to bear on the provisions of a statute its prejudices as to what the law should be, but rather should interpret the law from the clear words used by the Legislature.(Underlining mine for emphasis). (6) The court must not amend the statute to achieve a particular object or result. PER UCHECHUKWU ONYEMENAM, J.C.A
MOTION: WHAT A MOTION ENTAILS
A motion is written or oral application requesting a court to make a specific ruling or order. Motion includes motion on notice, motion ex-parte, Calendar motion, cross-motion, motion for settlement, motion to modify, show-cause motion, dilatory motion et cetera. See: Bryan A. Garner, Black’s Law Dictionary 9th Edition p. 1106. PER UCHECHUKWU ONYEMENAM, J.C.A
EX-PARTE MOTION: NATURE OF THE EX-PARTE MOTION
I want to reiterate the fact that a motion ex parte in law will not ordinarily require service on the other party to robe a Tribunal or court with the jurisdiction to entertain some. By its nature, ex parte application is for one party only. Ex-parte refers to those proceedings where one of the parties has not received notice and therefore is neither present nor represented. If a person received notice of hearing and chose not to attend, then the hearing would not be called ex-parte. So ex-parte motion is a motion made to the court by one party to a lawsuit without prior notice to any other party. By its inherent character and disposition therefore, ex-parte is on one side only; done by, for, or on the application of one party alone. PER UCHECHUKWU ONYEMENAM, J.C.A
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISION OF PARAGRAPH 6 (1) OF THE ELECTION TRIBUNAL AND COURTS PRACTICE DIRECTIONS, 2007 AS REGARDS THE PROHIBITION OF MOVING MOTIONS BEFORE THE TRIBUNAL OR COURT EXCEPT IF IT IS AT THE PRE-HEARING SESSIONS OR WHERE EXTREME CIRCUMSTANCES ARE SHOWN AND LEAVE OF THE TRIBUNAL OR COURT WAS SOUGHT AND OBTAINED
The Supreme Court in Okereke V. Yar’Adua (2008) 12 NWLR (pt. 1100) P. 95 at 120 paras F- D; also reported in (2008) LPELP-SC. 246/2007 P.25-26 Paras C-A. Per Muhammad, J.S.C. stated: “I need to quote once more, Paragraph 6 of the Practice Directions: ‘6. Motions and Applications: (1) No motion shall be moved. All motions shall come up of the pre-hearing session except in extreme circumstances with leave of Tribunal or Court.’ The paragraph above has made an outright prohibition of moving motions before the tribunal or court except if it is at the pre-hearing sessions or where extreme circumstances are shown and leave of the tribunal or court was sought and obtained. From the Record of Appeal, I fail to trace where such extreme circumstances or where the court’s leave was sought and obtained. I then wonder what was the basis upon which the court below relied to entertain the motion and the preliminary objection of the 1st and 2nd respondents in utter disregard to the provisions of the practice Directions as contained in paragraph 6(1) above. Whatever was the basis, I think the law as set out earlier is that where any of the factors which entitle a court to assume jurisdiction is missing, that court lacks competence to adjudicate over the parties and the subject matter before it. See the locus classicus case of Madukolu V. Nkemdilim (supra). Pre-trial sessions in the present dispensation are a condition precedent before a Tribunal or Court can proceed to entertain any election petition or matters rerating thereto. The position of the law is trite that no matter how well conducted; where a court lacks the competence and jurisdiction to entertain a matter, the proceedings conducted thereon are a nullity. See Achiakpa & Anor v. Nduka & ors (2001) 7 SCNJ 585; International Bank for west Africa Ltd. V. Pavex International Co. (Nig.) Ltd. (2000) 4 SCN7, 200; Adesola v. Abidoye & Anor (1999) 12 SCNJ 61. I hold that the court below lacked competence and had no jurisdiction to entertain the motion on notice filed on 08/08/07 by the petitioner and the preliminary objection filed by the 1st and 2nd respondents. The Proceedings, including the ruling delivered on 20th March, 2007, are a nullity.” (underlining mine for emphasis). Paragraph 6 (1) of the Election Tribunal and courts Practice Directions, 2007 reproduced above is in pari materia with paragraph 47(1) of the First Schedule (supra). Okereke V. Yar’Adua (supra) is also on all fours with the instant case. PER UCHECHUKWU ONYEMENAM, J.C.A
Justice
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEME NAM Justice of The Court of Appeal of Nigeria
Between
Justice
PEOPLES DEMOCRATIC PARTYAppellant(s)
AND
PROF. STEVE TORKUMA UGBA
2. ACTION CONGRESS OF NIGERIA (ACN)
3. GABRIEL TORWUA SUSWAM
4. INDEPENDENT NATIONAL ELECTORAL COMMISSIONRespondent(s)
UCHECHUKWU ONYEMENAM, J.C.A (Delivering the Leading Judgment): On Friday, 16th day of September, 2011, I pronounced my judgment in this appeal and reserved the reasons to be made known on a later date. See Section 134 (4) of the Electoral Act No.6 of 2010. I shall herein make my reasons known.
In pronouncing my judgment on 16/9/11, I gave a skeleton of the brief facts of the appeal. I shall herein also give details of the facts.
On 29/6/11 the petitioners had approached the Tribunal with a motion ex-parte dated 23/6/11. The motion was brought pursuant to paragraph 18(1) and 47(2) of the First Schedule to the Electoral Act, 2010 as amended. In granting the application on 29/6/11, the Tribunal ordered as follows:
“An Order is made directing the Secretary of the Tribunal to issue pre-hearing Notice as in FORM TF007 to be accompanied by a pre-hearing information Sheet as in FORM TF 008 for commencement of the pre-hearing conference towards the hearing of this petition.”
See page 272 of the Record
Disgruntled, the appellant by motion on notice dated and filed 4/7/11 prayed the Tribunal for:
(1) “AN ORDER of this Honourable Tribunal setting aside the proceedings and Orders made on the 29th of June, 2011 ordering the issuance of pre-trial Notice and setting aside as null and void the Notice of pre-trial Hearing issued at the instance of the petitioner.
(2) AN ORDER of the Honourable Tribunal dismissing the petition in the entirety on grounds that no valid application has been made by the petitioner pursuant to the provisions of paragraph 18 of the 1st Schedule to the Electoral Act, 2010 as amended
(3) FOR SUCH ORDER or other Orders that the Honourable Tribunal may deem fit to make in the circumstance of the Case.”
On 19/7/11, the Tribunal in its considered ruling dismissed the application.
Then again, the appellants being discontented has appealed to this Court via Notice of Appeal dated 29/7/11 and filed 1/8/11. The appellant’s Notice of Appeal contains 6 Grounds of Appeal. See pages 304 – 311 of the Record. Parties filed their respective briefs as required by the Rules. In the appellant’s brief of argument settled by Chief Solo U. Akuma MON, SAN, dated and filed 19/8/11, three issues were couched for determination:
“1. Whether the Governorship Election Tribunal has jurisdiction to entertain any motion before the Prehearing session without the leave of the Tribunal obtained upon extreme circumstances shown by the 1st and 2nd Respondents.
2. Whether the Governorship Election Tribunal was right when it held that application for issuance of pre-trial notice made pursuant to Paragraphs 18(1) and 47(2) of the 1st Schedule to the Electoral Act 2010 as amended does not require to be served on the Appellant and that non service of the said Application on the Appellant does not tantamount to the infringement of the right of the Appellant to fair hearing.
3. Whether the pre-hearing Notice (Form TF 007) issued by the Secretary of the Governorship Election
Tribunal Pursuant to the order of the Tribunal made on the ex-parte application of the 1st and 2nd Respondents is valid in the light of the provisions of paragraph 18(2) of the 1st Schedule of the Electoral Act 2010 as amended.”
The 1st and 2nd respondents in their brief of argument settled by Oluwarotimi Akeredolu, SAN, dated and filed 24/8/11 articulated 3 issues for determination:
(1) “Considering the unambiguous provisions of paragraph 18(1) and (2) of the First Schedule to the Electoral Act 2010 (as amended) whether leave of the lower Tribunal was necessary, to be sought and obtained before hearing and determining 1st and 2nd Respondents’ application for the issuance of Prehearing Notice.
(2) Whether the Governorship Election Tribunal was not right when it held that application for issuance of Pre-trial notice made Pursuant to Paragraphs 18(1) and (2) of the First Schedule to the Electoral Act 2010 (as amended) does not require service on the Appellant and whether non-service of the said Application on the Appellant infringed the right of the Appellant to fair hearing.
(3) Whether the Governorship Election Tribunal was not right in making an order directing the Secretary of the Tribunal to issue Forms TF007 and TF008 to the parties in the Petition. ”
Before the appeal was heard on 15/9/11, Mr. Orkumah of counsel indicated that the 1st and 2nd respondents filed a Notice of preliminary objection dated and filed 24/8/11. He stated that the preliminary objection was argued in the 1st and 2nd respondents’ brief. However Mr. Orkumah on realizing that the prayer in the Notice of preliminary objection was not in consonance with the prayer and the argument of the objection in 1st and 2nd respondents’ brief applied to withdraw the preliminary objection. As learned counsel for the appellant and other respondents did not oppose the application for withdrawal, the court granted Mr. Orkumah’s application as prayed. Accordingly, the Notice of preliminary objection was struck out. Resultantly, the argument of the 1st and 2nd respondents on the preliminary objection of pages 4 – 9, paragraphs 5.00 – 5.13 of their brief were struck out. At the hearing of the appeal on 15/9/11, Nasiru Dan Giri Esq learned counsel for the appellant leading C.T. Mue Esq adopted the appellant’s brief along with a reply brief dated 28/8/11 and filed 29/8/77. In addition Mr. Don Giri applied that their arguments in response to the 1st and 2nd respondents’ preliminary objection of pages 14 of the appellant’s reply brief to the 1st and 2nd respondents’ brief be discountenanced in view of the fact that the said preliminary objection had been struck out. Learned counsel urged the Court to allow the Appeal. Mr. S. A. Orkumah, learned counsel for the 1st and 2nd respondents leading Mr. M. I. Atagher, J.T. Agor and M.T. Assoh adopted the 1st and 2nd respondents’ brief. He cited an additional authority: Gebi V. Dahiru unreported Appeal No. CA/J/EP/HR/127/2011 delivered on 22/8/11, Jos Division, particularly pages 17-22, 26, 31-33; 2-3 of the contribution of Adamu Jauro, JCA. Learned counsel urged the court to dismiss the Appeal. The 3rd and 4th respondents did not file any brief of argument.
I will observe at this point that; at page 5 paragraph 2.11 of the appellant’s brief, the appellant applied to abandon Ground 5 of their Grounds of Appeal as shown of page 308 of the Record. The court was urged to strike out the said Ground of Appeal. As there was no opposition in any of the respondent’91E2’9180’99s briefs, I herein grant appellant’s application as prayed. Ground 5 of the Grounds of Appeal having been abandoned is hereby struck out.
I have examined the issues as formulated in the appellant’s and 1st and 2nd respondents’ brief s. The issues formulated in both briefs are substantially the some except for phraseology. However, I will adopt the issues as formulated by the appellant to ensure that all the issues are dispensed with finally. I will consider the issues in a reverse order while renumbering them. For clarity, I will reproduce the issues in the order they shall be resolved.
“1. Whether the pre-hearing Notice (Form TF 007) issued by the Secretary of the Governorship Election Tribunal Pursuant to the order of the Tribunal made on the ex-parte application of the 1st and 2nd Respondents is valid in the light of the provisions of paragraph 18(2) of the 1st Schedule of the Electoral Act 2010 as amended.
2. Whether the Governorship Election Tribunal was right when it held that application for issuance of Pre-trial notice made Pursuant to paragraphs 18(1) and 47(2) of the 1st Schedule to the Electoral Act 210 as amended does not require to be served on the Appellant and that non service of the said Application on the Appellant does not tantamount to the infringement of the right of the Appellant to fair hearing.
3. Whether the Governorship Erection Tribunal has jurisdiction to entertain any motion before the Prehearing session without the leave of the Tribunal obtained upon extreme circumstances shown by the 1st and 2nd Respondents.
On issue no. 1, I commend the industry of the learned senior counsel in their submissions. However, it is trite that a ground of appeal consists of the error of law or fact alleged by an appellant as the defect in a judgment appealed against and relied upon to set the judgment aside. A ground of appeal must therefore relate to the decision appealed against. It must attack the decision of a court on the issue decided by it. Accordingly on appellant is not of liberty to argue any ground which is not related to the judgment appealed against. See Metal Const. (W.A) LTD V. Migliore (1990) 1 NWLR (PT. 126) 299: Bhojsons Plc. V. Daniel – Kalio (2006) 5 NWLR (Pt. 973) 330.
Ground 6 of the appellant’s grounds of appeal is not borne out of the Record. It does not relate to the ruling appealed against. The said ground 6 is incompetent and liable to be struck out. It is the law that where an issue for determination is predicated on an incompetent or defective ground of appeal, such becomes unarguable. See: Thor LTD V. F.C.M.B. LTD (2002) 4 NWLR (PT. 757) 427. Issue no. 1 is distilled from ground 6 of the grounds of appeal. Issue no. 1 is therefore based on an incompetent ground of appeal and as such goes to no issue. Issue no. 1 is liable to be struck out. Accordingly, ground 6 and issue no.1 are hereby struck out.
With this, we are now left with Grounds 1-4 of the Grounds of Appeal and Issues 2 and 3. The determination of this appeal shall be based on the resolution of these 2 issues.
On issue no. 2, Chief Akuma, SAN for the appellant submitted that paragraph 47 of the First schedule to the Electoral Act, 2010 (as amended) deals with motions and applications. Therefore a community reading of paragraphs 18(1) and 47(1) and (2) of the First Schedule to the Act will show that on application for Prehearing notice brought under paragraph 18(1) of the 1st Schedule shall be by Motion on Notice. Learned senior counsel referred to Dr. Onmeje V. Odumu & Ors unreported Appeal No. CA/J/HA/399/2007 delivered on 6/4/2011. He further submitted that under paragraph 47(2) of the 1st Schedule to the Act (supra) every application shall be made by motion and shall be served on the respondent. It is submitted that paragraphs 47(2) of the 1st schedule to the Act (supra) did not classify the motion and it is therefore not of the discretion of the 1st and 2nd respondents to file a motion ex-parte in order not to serve the appellant and circumvent the provisions of paragraph 47(2) of the 1st schedule aforesaid.
Following cases were cited: Dr. Onmeje V. Odumu (supra): Ado v. Mekara (2009) NWLR (Pt. 1147) P. 491 at 507-508 G- C. It was also learned senior counsel’s submission that by the word “shall” in paragraph 47(2) of the 1st Schedule (supra), the said provision is couched in mandatory terms which makes it mandatory that the application for issuance of the pre-hearing notice must be served on the respondent. He relied on Odofin v. Agu (supra); Nnoye V. Anyichie (2005) 2 NWLR Pt. 910 P. 629; C.N. Onuselogu Ent. Ltd. V. Afribank Nigeria Ltd (2005) 12 NWLR Pt. 940 P. 577 at 587 C – E.
The learned senior counsel distinguishing the case of Rirwai v. Shekarau (2008) 12 NWLR (Pt. 1100) P. 142 at 163 cited by the Tribunal argued that, although the court of Appeal in that case restricted application to motion: the court of Appeal did not state that application brought Pursuant to paragraph 6 (2) of the Practice Direction 2007 should not be served on the respondents.
Referring to the following cases: Ononye V. Chukwuma (2005) 17 NWLR (Pt. 953) P.90 at 115 D- G: Obimonure V. Erinosho (1966) 1 ALL NLR 250; Scott Emuakpo V. Ukanbe (1975) 12 SC 4; Skem Consult (Nig) Ltd V. Ukey (1981) 1 SC 6: it was his submission that the appellant having not been served with the said motion, the Tribunal locked jurisdiction to entertain same, a fortiori the proceedings and order made on 29th June, 2011 by the Tribunal is a nullity. Learned senior counsel added that failure to serve the appellant with the said motion amounted to a breach of the appellant’s right to fair hearing contrary to section 36(1) of the 1999 constitution. Resultantly, the order made ex-parte on 29/6/2011 for the issuance of Pre-hearing notice was null and void. He referred to; Okoreaffia v. Agwu (2008) 12 NWLR (Pt. 1100) p. 168 finally chief Akumo, SAN urged the court to resolve this issue in the negative and in favour of the appellant.
In reply on this issue, Akeredolu, SAN argued that not every step in a proceeding requires the respondent to be put on notice. That on application for issuance of pre-hearing notice is like an originating process in substance. He submitted that where an order made by the Tribunal does not genuinely offend a party, said party cannot claim to be artificially dissatisfied with the order and not being aggrieved cannot challenge it. He relied on: Ekunola v. CBN (2006) 14 NWLR (Pt. 1000) p. 292 at 316 Para C – D; 6 – 11
On fair hearing, the learned senior counsel submitted that a party claiming denial of fair hearing must show what in Justice or miscarriage of Justice he suffered as a result of the denial. It was learned senior counsel’s contention that the appellant in this Appeal did not show in its counter-affidavit of the Tribunal that the non-service of the 1st and 2nd respondents’ application for the issuance of the Pre – hearing notice occasioned a miscarriage of Justice on it. He submitted that the right to fair hearing is a fundamental right and not cosmetic or fanciful right to be claimed for the sake of it. He relied on; Ejiogu v. Irona (2009) 4 NWLR (Pt. 1132) P. 512 at 577-578 Para C-B.
Learned senior counsel for the 1st and 2nd respondents submitted that the service on the appellant contained in Paragraph 47(2) of the First Schedule to the Electoral Act, 2010 (as amended) is not the duty or responsibility of the party who has filed a court process, but it is cast on the Secretary of the Tribunal and the persons charged therewith as pinpointed in order 6 Rule 1 of the Federal High court (civil Procedure) Rules 2009. In the circumstances, it is wholly wrong and inappropriate to cast the burden of service of process on 1st and 2nd respondents who had done all that was required in filing the application to activate the pre-trial session within the stipulated time prescribed by the statute. He cited: Saude v. Abdullahi (1989) 7 SGNJ 216 at 228, 240-241, 244-247, 256-258: Paragraph 53(4) of the 1st Schedule to the Electoral Act 2010 (amended).
Akeredolu, SAN for the 1st and 2nd respondents, further argued that the nature of ex-parte motion demands that the other party is excluded from participation in its hearing and determination unless the Judge otherwise directs. He relied on P. 1036 of Black Law Dictionary; Paras 45 (5) and (6) of the First Schedule to the Electoral Act 2010 (as amended): para 872, 44 Halsbury Law of England, 4th Edition; Nafiu Rabiu V. The State (1981) 2 NCLR 293; Egolum V. Obasanjo (1999 7 NWLR 611) 355; Ojukwu V. Obasanjo 19 NSCQR 90 at 121 – 122.
The Court was urged to resolve the issue in favour of the 1st and 2nd respondents.
On issue no. 3, the learned senior counsel Chief Akumo, submitted that to move any motion before the pre-hearing session, the applicant in the said motion shall seek leave of the Tribunal or court. In seeking the leave the applicant must show in the supporting affidavit to the said motion extreme circumstances to justify the granting of the leave. It is submitted that by virtue of paragraph 47 (1) of the 1st schedule to the Act, the Tribunal or court is not authorized to allow any motion to be moved and granted before the pre-hearing session when leave of the Tribunal or court had not been sought and obtained. The following cases were cited: Nwankwo V. Yar’Adua (2010) 12 NWLR (PT. 1209) P. 518 AT 557 Para E; Soyanwo v. Akinyemi (2001) 8 NWLP (Pt’97 714) P.95. It was Counsel’s contention that where leave is necessary before on application can be validly filed, such leave ought to be applied for and obtained before such application can be competent. He relied on Odofin V. Agu (1992) 3 NWLR (Pt. 229) P. 350 at 331; Re Madaki (1996) 4 NWLR (Pt. 459) P. 153.
The learned senior counsel in addition submitted that since the 1st and 2nd respondents failed to show extreme circumstances in the affidavit in support of the motion ex-parte why the motion should be taken before pre trial session neither was leave obtained: the Tribunal locked jurisdiction to entertain the motion ex-parte. He cited Okereke V. Yar’Adua (2008) 12 NWLR (Pt. 1110) P. 95 at 120 para F – D. The Court was urged to resolve this issue in the negative and in favour of the appellants.
In reply the learned Senior Counsel Akeredolu for the 1st and 2nd respondents submitted that pre-hearing session and Scheduling in the Election petition Tribunal are governed solely by the provisions of paragraph 18(1) and (2) of the First Schedule to the Electoral Act, 2010 (as amended). It was his contention that Paragraph 18(1) and (2) of the First Schedule is not mode subject to Paragraph 47 (1) of the First Schedule to the Electoral Act 2010 (as amended). In furtherance to his argument, the learned senior counsel postulated that the provisions of paragraph 18(1) and (2) of the First Schedule is clear and unambiguous, it requires no resort to any other law and its interpretation or construction must be plain in its Ordinary words without any inference. He referred to; Buhari V. Obasanjo (2005) 2 NWLR pt. 910) 241: Okereke V. Yar’Adua (2008) 12 NWLR (pt. 1100) 95; Jamunal Steel Structure Ltd. V. ACB Limited & Anr (1988) 7 SCNJ 326 at 344 – 345.
The court was finally urged to hold that the 1st and 2nd respondents properly activated and invoked the powers of the Tribunal for the commencement for the issuance of the pre-hearing notice and the Tribunal had the requisite jurisdiction to entertain the application.
On points of law, learned senior counsel for the appellant submitted that by the decision in State V. COP in Re Appolos Udoh (1987) (sic) NWLR (Pt. 63) 120, a diligent litigant has a duty to ensure that the processes he filed were served before his motion was moved and granted. Finally, he urged the court to allow the appeal and dismiss the Petition.
I have discountenanced submissions in the appellant’s reply brief that amounted to re arguing the appeal
In resolving issue no. 2 which is distilled from Grounds 2, 3 and 4, I resume on the pedestal of the rules and principles governing the interpretation of statutory provisions as set out by the Supreme Court in Basinco Motors Ltd V, Woermann – Line 4 Anor 2010 10 WLR 1 at 29 – 30. The principles are set out thus:
(1) ‘It is the intention of the Legislature that should be sought, and same is to be ascertained from the words of the statute alone and not from other sources.
(2) Where the words used in the provisions of a statute are clear, simple and unambiguous, they should be given their simple, natural and ordinary meaning.
(3) The Court is not concerned with the result of its interpretation, that is, it is not the Court’s province to pronounce on the wisdom or otherwise of the statute but only to determine its meaning.
(Underlining mine for emphasis)
(4) The court must not import into legislation words that were not used by the Legislature, and which will give a different meaning to the Justice of the statute as enacted by the Legislature.
(5) The Court must not bring to bear on the provisions of a statute its prejudices as to what the law should be, but rather should interpret the law from the clear words used by the Legislature.(Underlining mine for emphasis).
(6) The court must not amend the statute to achieve a particular object or result.”
The learned Tribunal in dismissing the motion to set aside the ex-parte order made on 29th June, 2011 held that paragraph 47 (2) of the 1st schedule to the Electoral Act, 2010 (as amended) does not apply to paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended). Paragraph 18(1) Provides:
“Within 7 days after the filing and service of the petitioner’91s reply on the respondent or 7 days after the filing and service of the respondent’91E2’9180’99s reply, as the Case may be, the petitioner shall apply for the issuance of Prehearing notice as in Form TF 007.”
Paragraphs 47 (2) Provides:
(2) Whereby these Rules any application is authorized to be made to the Tribunal or Court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the Respondent”
In interpreting the aforesaid paragraphs the Tribunal held as follows:
‘It’s our humbly (sic) view that a litigant or a party to an Election Petition cannot just quote or choose to interpret sub-paragraph from an entire paragraph of a statute. It must be interpreted as a whole. See P.D.P V. TAIWO (2004) 8 NWLR Pt. 876 P. 650. Paragraph 10(1) and (3) of the 1st schedule to the Electoral Act, 2010 as amended read together shows that the application for the issuance of a pre-hearing Notice can be made either Ex-parte or on Notice. The requirement of a motion on Notice comes up if the petitioner fails to file the application and the Respondent seeks to apply for an order to dismiss the petition the requirement of paragraph 18(1) is satisfied by the petitioner. If the legislature had wanted the application to be made by Motion on Notice and not Ex-parte it would have so stated as if did in paragraph 3 of the same paragraph” See pages 287 of the Record. Lines 14 – 23.
After quoting paragraphs 47(1), (2), (3), (4) and (5), the Tribunal concluded thus:
“As we observed earlier, a sub-paragraph of a law should not be interpreted in isolation; moreover, it’s a cardinal principle of interpretation that where the words used in an enactment are clear and unambiguous, they must be given the effect of their ordinary meaning. See Jammal Steel Structions Ltd. ACB Ltd. (1973) 1 ALL NLP Pt. 2 P. 208; IBWA Ltd. v. Imano Nig. Ltd & Anr (1988) 7 SCNJ Pt. 11 P. 326 at 344 – 345.
A community construction of the above quoted paragraphs shows (sic) that the application that are envisaged therein are quote and unquote (sic) ‘application properly so called’ in which the Prayers or reliefs are sought and granted… It’s our firm view and we hold that paragraph 47(2) does not apply to paragraph 18(1). See Pages 288-289 of the Record.”
From the stand point of the principles of law laid down by the Supreme Court in Basinco Motors Ltd V. Woermann-Line 4 Anor (supra), I am of the view that the words used in Paragraphs 18(1), 47 (2) are clear, simple and unambiguous and as such should be given their simple, natural and ordinary meaning. In consonance with the Tribunal’s call in its ruling for a community construction of paragraphs; it is barefaced that paragraph 47 governs all motions and applications in election petition. The intention of the Legislature is made clear by the caption of paragraph 47 which is: “Motions and Applications.’ It does appeal that the Tribunal in arriving at its conclusion concerned itself with the result of its interpretation rather than the simple determination of its meaning in violation of one of the cardinal principles enunciated by the Supreme Court in Basinco Motors Ltd V. Woermann-Line 4 Anor (supra).
Paragraph 47(2) provides that any application authorized to be made to the Tribunal or court shall be by motion. A motion is written or oral application requesting a court to make a specific ruling or order. Motion includes motion on notice, motion ex-parte, Calendar motion, cross-motion, motion for settlement, motion to modify, show-cause motion, dilatory motion et cetera. See: Bryan A. Garner, Black’s Law Dictionary 9th Edition p. 1106. So an application under paragraph 18(1) and 47 (2) can be in any form so long as the intent of requesting a Tribunal or court to make a specific ruling or order is made manifest. See Aliyu Ibrahim Gebi v. Alhaji Garba Dahiru & 3 ors unreported Appeal No. CA/EP/HR/127/2011 delivered on 22nd August, 2011 Jos Division. In my view, paragraph 47(2) applies to paragraph 18(1) to the extent that the nature, quintessence, soul and or substance of the motion or application is not dislocated. Whereas paragraph 18(1) governs pre-hearing Sessions and Scheduling of time for specific applications; Paragraph 47 governs Motions and Applications in election petition. There are different forms of motions. The competence of each depends on both the conformity with the essence of its form and the condition precedent relating thereto. Take for instance a motion on notice: by its very nature service is required unless a statute or rules of court provides otherwise, a Judge directs otherwise or it is out rightly waived by the Person who is required to be served.
Paragraph 47(2) provides for motion and service of said motion without specifying the type of motion. The said Paragraph to my mind does not undermine the fact that there ore different types of motions and that each form has its very nature. It does not also in my understanding seek to abrogate the essence of unique forms of motions so as to force service on them even when their very nature abhors service. Akeredolu, SAN for the 1st and 2nd respondents relying on paragraph 872, 44 Halsbury’s Laws of England, 4th Edition urged this Court to read Paragraph 47(2) together with Paragraph 45 (5) and (6) of the First Schedule to the Electoral Act 2010 (as amended).
Paragraph 872, Halsbury’s Laws of England States;
“Statutes to be construed as a whole for the purpose of construction, the con Justice of words which are to be construed includes not only the particular phrase or section in which they appear, but also the other parts of the statute.
Thus a statute should be construed as a whole so as, so far as possible, to avoid any inconsistency or repugnancy either within the section to be construed or as between that section and other parts of the statute. The literal meaning of a particular section may in this way be extended or restricted by reference to other sections and to the general purview of the statute.
Where the meaning of sweeping general words are in dispute, and it is found that similar expressions in other parts of the statute have all to be subjected to a particular limitation or qualification, it is a strong argument for subjecting the expression in dispute to the same limitation or qualification.
It is sometimes said that where there is an irreconcilable inconsistency between two provisions in the same statute, the later prevails, but this is doubtful, and the better view appears to be that the courts must determine which is the leading Provision and which the subordinate provision, and which must give way to the other’
By paragraph 872, 44 Halsbury’s Lows of England, 4th Edition rules of interpretation, the con Justice of the words ‘shall be served on the respondents’ in paragraph 47 (2) of the First Schedule (supra) are to be construed not only to include that particular phrase or paragraph in which it appeals, but also other parts of the First Schedule to the Electoral Act. The reason is to avoid inconsistency or repugnancy within the said paragraph 47 (2) of the First Schedule (supra) or as between it and other provisions of the First Schedule to the Electoral Act. For this reason I shall heed the call of the learned senior counsel for the 1st and 2nd respondents to have paragraph 45 (5) and (6) of the First Schedule to the Electoral Act, 2010 (as amended) in mind while construing paragraph 47(2) of the First schedule (supra). Construing paragraph 47 (2) in that light, the sweeping generalities of the phrase “shall be served on respondents’ shall be subjected to the qualifications in paragraph 45 (5) and (6) to meet the quintessence of motion on notice and motion ex parte. I am therefore not persuaded by the argument of the learned senior counsel for the appellant that any application brought Pursuant to paragraph 18(1) and 47(2) shall be served on the respondent as the motion must be a Motion on Notice. This is particularly as a result of the meaning of motion expressed earlier in this judgment. I hereby hold as urged by the learned senior counsel for the 1st and 2nd respondents, that Paragraph 47(2) does not preclude or forbid ex-parte application in on application under paragraph 18 (1). I also hold that the Tribunal was in error when it came to the conclusion that Paragraph 47 (2) does not apply to paragraph 18 (1).
The question that therefore follows is was service on the appellant required in the circumstance of this case? It is the sweeping general words of paragraph 47(2) of the First Schedule (supra) that stirred this dispute. As I have stated above, when paragraph 47 (2) is read together with paragraph 45 (5) and (6), it is apparent that the lawmakers were alive to the nature of motion on notice and motion ex parte. That is to say whereas the former requires service, the later does not unless the court directs otherwise. It follows that in interpreting paragraph 47 (2), the Expression shall be served on the respondent” must be subjected to the some limitation as expressed in paragraph 45 (5) and (6) and the literal meaning restricted by reference to paragraph 45 (5) and (6). Accordingly, the sweeping general words of Paragraph 47 (2) which is in dispute; shall by reference to paragraphs 45 (5) and (5) be subjected to the qualification that will express the very nature count of the type of motion the applicant has chosen to bring as his application. See paragraph 872, 44 Halsbury’s Laws of England, 4th Edition rules of interpretation.
Following this interpretation, the 1st and 2nd respondents’ motion ex parte could not have been served on the appellant unless so directed by the Tribunal even by reason of Paragraph 47(2). It was the want of proper interpretation of paragraph 47(2) that made the Tribunal arrive at a wrong conclusion that the said Paragraph does not apply to paragraph 18(1). The Tribunal evidently misconceived the applicability of paragraph 47(2) to paragraph 18(1) and service of motion ex parte on a respondent.
I want to reiterate the fact that a motion ex parte in law will not ordinarily require service on the other party to robe a Tribunal or court with the jurisdiction to entertain some. By its nature, ex parte application is for one party only. Ex-parte refers to those proceedings where one of the parties has not received notice and therefore is neither present nor represented. If a person received notice of hearing and chose not to attend, then the hearing would not be called ex-parte. So ex-parte motion is a motion made to the court by one party to a lawsuit without prior notice to any other party. By its inherent character and disposition therefore, ex-parte is on one side only; done by, for, or on the application of one party alone.
The contention of the appellant that the 1st and 2nd respondents’ application for issuance of pre-hearing notice needed to be served on her cannot be maintained in view of the genius of ex-parte application. From what I have said above, although the Tribunal’s reason for its decision was wrong; its conclusion that the appellant needed not be served with the motion ex parte was correct. The Tribunal was therefore right when it held that such non service of the motion ex parte on the appellant did not infringe on the appellant’s right to fair hearing. For the Tribunal to hold otherwise, would mean a frontal collusion with the very essence of ex-parte applications. From the foregoing, the issue of whose duty it was to serve the motion ex-parte does not arise and as such need not be considered.
In conclusion, I hold that the Tribunal in the circumstance of this appeal, that is; where the application for issuance of pre trial notice made Pursuant to Paragraphs 18 (1) and 47(2) was by motion ex parte, was right to rule that the appellant needed not be served.
Issue 3 distilled from Ground 1 is predicated upon the fact that the issue was canvassed of the Tribunal but the Tribunal failed to countenance it. The general rule is that a ground of appeal must relate to the decision appealed against. Therefore, any judgment of the Court of Appeal founded on issues not canvassed in the Court below and not adverted to and pronounced upon in the judgment appealed against is not really an appeal against that judgment. However, where there is adequate material before on appellate Court in respect of on issue which a trial Court had failed to treat or advert its mind to, such issue, shall be resolved by the appellate court. See The State V. Godfrey Ajie (2000) 7 SC (Pt. 1) 24 at 30.
In summarizing the facts before the Tribunal, the appellant stated that the Tribunal failed to consider whether the motion ex parte brought by the 1st and 2nd respondents, which was moved and granted outside pre-hearing session required leave of the Tribunal. See page 5 paragraph 2.10 of the appellant’s brief. See also submissions of pages 9 – 10 paragraph 4.11 of the appellant’s brief. None of the respondents proffered argument to the contrary nor submitted on that issue. It is correct that the issue of leave was raised by the appellant at the Tribunal. See: Ground 2 of the grounds upon which the appellant then applicant relied on for her application of page 110 of the Record. See also her submissions in the written Address of pages 119 – 120, paragraphs 4.10-4.11 of the Record. Besides, the 4th respondent also canvassed the some issue of not obtaining leave in her written Address of Pages 129 – 130, paragraphs 4.9 – 4.12 of the Record. There is sufficient material before this court to the effect that issue no. 3 was raised of the Tribunal but it failed to consider and pronounce on it. In accordance, I hold that the very declination of the Tribunal to pronounce on the issue validly submitted to it rightly forms the basis of a complaint in this Court. I shall therefore proceed to resolve issue no. 3.
The heightened fuss is whether the motion ex parte moved by the 1st and 2nd respondents outside prehearing session without leave of the Tribunal or show of extreme circumstances in their supporting affidavit is competent by virtue of paragraph 47(1) of the First Schedule to the Electoral Act 2010 (as amended).
Pursuant to the great import of the holding on this issue, I pray to suspend my words for a while and abide by the Supreme Court words. The Supreme Court in Okereke V. Yar’Adua (2008) 12 NWLR (pt. 1100) P. 95 at 120 paras F- D; also reported in (2008) LPELP-SC. 246/2007 P.25-26 Paras C-A. Per Muhammad, J.S.C. stated:
“I need to quote once more, Paragraph 6 of the Practice Directions:
‘6. Motions and Applications:
(1) No motion shall be moved. All motions shall come up of the pre-hearing session except in extreme circumstances with leave of Tribunal or Court.’
The paragraph above has made an outright prohibition of moving motions before the tribunal or court except if it is at the pre-hearing sessions or where extreme circumstances are shown and leave of the tribunal or court was sought and obtained. From the Record of Appeal, I fail to trace where such extreme circumstances or where the court’s leave was sought and obtained. I then wonder what was the basis upon which the court below relied to entertain the motion and the preliminary objection of the 1st and 2nd respondents in utter disregard to the provisions of the practice Directions as contained in paragraph 6(1) above. Whatever was the basis, I think the law as set out earlier is that where any of the factors which entitle a court to assume jurisdiction is missing, that court lacks competence to adjudicate over the parties and the subject matter before it. See the locus classicus case of Madukolu V. Nkemdilim (supra).
Pre-trial sessions in the present dispensation are a condition precedent before a Tribunal or Court can proceed to entertain any election petition or matters rerating thereto. The position of the law is trite that no matter how well conducted; where a court lacks the competence and jurisdiction to entertain a matter, the proceedings conducted thereon are a nullity. See Achiakpa & Anor v. Nduka & ors (2001) 7 SCNJ 585; International Bank for west Africa Ltd. V. Pavex International Co. (Nig.) Ltd. (2000) 4 SCN7, 200; Adesola v. Abidoye & Anor (1999) 12 SCNJ 61. I hold that the court below lacked competence and had no jurisdiction to entertain the motion on notice filed on 08/08/07 by the petitioner and the preliminary objection filed by the 1st and 2nd respondents. The Proceedings, including the ruling delivered on 20th March, 2007, are a nullity.” (underlining mine for emphasis).
Paragraph 6 (1) of the Election Tribunal and courts Practice Directions, 2007 reproduced above is in pari materia with paragraph 47(1) of the First Schedule (supra). Okereke V. Yar’Adua (supra) is also on all fours with the instant case. The main issue in the referred case was whether the Presidential Election Tribunal sitting as Tribunal and not of a pre-hearing session had the jurisdiction to entertain motions. Pungent submissions were made on the fact that the issue of competence of a Petition being jurisdictional can be raised of any stage of the proceedings whether of pre’97hearing or outside prehearing. In the said submission, counsel therein referred to: Ishola V. Ajiboye (1994) 6 NWLR (Pt. 352) 506. Not withstanding the said submissions, the Supreme Court held as quoted above. This is instructive of the fact that no motion, no matter how momentous; as nothing can be more consequential in our adversary judicial system than the issue of jurisdiction; can be moved outside pre-hearing session without abiding Paragraph 47 (1) of the First Schedule (supra). The little but insignificant distinction between the case under reference and the instant case is whereas the motions in the former were on notice; in the instant the motion is ex parte. I hold the view that the distinction if any is of no moment because of the wordings of paragraph 47(1) of the First schedule (supra), the words: “no motion, all motions”, are inclusive of any form of motion. Gaining more support for this view, is the fact that; in the decision in Okereke V. Yar’Adua (supra), the issue of jurisdiction could not prevail on the apex court from basing their decision on the strict but literal interpretation of Paragraph 6(1) of the Election Tribunal and Courts Practice Directions, 2007. The under quoted pronouncements of the Supreme Court in Nwankwo v. Yar’Adua (supra), has heightened and firmed up my view in the interpretation I have given to paragraph 47 (1) of the First Schedule (supra). Now to the quotations:
Per Adekeye, J.S.C. said:
‘Non compliance with the practice Direction is fundamental as it vitiates all steps taken of the trial resulting in nullity. Where any proceedings are begun other than as provided the rules, such proceedings are incomplete. In the instance of this case, failure to comply with provisions of paragraph 6(1) of the Election Tribunal and court practice Directions 2007 invalidates the steps taken by the presidential Election Tribunal in the hearing of the application and its decision in the Ruling delivered on 3/9/07″ (underlining mine for emphasis)
Per Adekeye, J.S.C. also opined:
‘As regards motions and applications
Paragraph 6(1) states that-
‘No motion shall be moved. All motion shall come up of the pre-hearing session except in extreme circumstances with leave of Tribunal or Court” The foregoing is surely a mandatory provision because the operative word there is there is ‘shall’. The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive it is mandatory. The word “shall” in ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.”(Underlining mine for emphasis) See (Pages 79-80, Paras G – B), (P, 78, Paras C – E) LPELR respectively.
Per Onnoghen, J.S.C. stated:
“…From the totality of the above provisions of the Practice Direction, it is very clear that on election Tribunal or court can only hear motions and/or objections on point of law of the pre-hearing session not when it sits as a Tribunal or Court to hear or try election petitions. In the instant case, it is not disputed that what was heard and determined by the lower court was a preliminary objection on points of law raised against the erection petition of the appellants that the lower court did not hear and determine some at a pre-hearing session as provided in Practice Direction but of the hearing/trial of the petition. It is settled law that where a statute lays down a procedure for doing anything no other method is to be employed in doing the thing. In other words,
‘Where a statute or legislation provides for a particular method of performing a duty regulated by the statute that method and no other must have adopted”. See C.C.B Plc. V. A.G. Anambra State (supra)” (underlining mine for emphasis.) See: (P. 30, Paras A- G) LPELR
Per I.F. Ogbuagu, J.S.C. at P.42, Paras B-F LPELR opined:
“I will touch even briefly, on the issue or principle in respect of the laid down procedure in a statute or rules of court which was also briefly discussed in Chief Okereke’s v. Yar’Adua & ors. Case (supra) at page 238 Per Onnoghen, JSC. It is now firmly established that where a statute lays down a procedure for doing a thing there should be no other method of doing it. See the case of CCB Plc. V. Attorney-General of Anambra State (1192) 10 SCNJ 37 at 163; Buhari V. Yusuf (2003) 6 SC. (Pt. II) 156; (2003) 4 NWLR (Pt. 841) 446 at 492.
The inference I can draw from the extensive quotations of the Supreme Court’s pronouncements above is that it is immaterial as to whether the motion is on notice or ex parte: all motions entertained before pre-hearing sessions must abide paragraph 47(1) of the First Schedule (supra) which is same as Paragraph 6 (1) of the Courts Practice Directions (supra). I maintain this view owing to the outright prohibition of the Supreme Court of moving motions before a Tribunal or Court except in strict compliance with Paragraph 6(1) of the practice Directions (supra). In my opinion, the Supreme Court’s decisions that motions must abide Paragraph 6(1) of the Courts Practice Directions (supra) are unassailable because this is the literal interpretation of that simple and unambiguous piece of legislation. In the instant case, paragraph 47 (1) of the First Schedule (supra), on Act of the National Assembly and a special statutory provision which governs motions and applications in election petition has laid down conditions for moving motions outside pre-hearing sessions. The method as set out in paragraph 47 (1) of the First Schedule (supra), must be adopted, followed and complied with as there is no other method.
What is more, the principles laid down by the Supreme Court in Basinco Motors Ltd v. Woermann-Line & Anor (supra) will only permit me in the interpretation of paragraph 47(1) of the First Schedule (supra), to:
(a) Seek the intention of the legislature in relation to motions brought in election petition
(b) Give simple, natural and ordinary meaning to the paragraph since the provisions are clear, simple and unambiguous.
(c) Determine the meaning of the Paragraph and not to concern myself with the result of its interpretation.
The principles in the above referred case however forbid me in the interpretation of paragraph 47(1) of the First Schedule, to:
(a) Import into the paragraph words not used therein and which will give a different meaning to the Justice of the statute as enacted by the Legislature.
(b) To amend the said paragraph to achieve a particular result.
Ensuing from the above, I am of the humble view that paragraph 47(1) of the First Schedule (supra) relates to ALL motions. It made no distinction. To uphold the submission that Paragraph 47 (1) of the First schedule (supra) does not apply to motion ex parte will entail; firstly, to import into that paragraph words not used by the Legislature which will definitely give a different meaning to the paragraph and secondly, to amend the Paragraph to accommodate the 1st and 2nd respondents. This the law does not allow, I restrain myself from the indulgence. I find great support for this view, while relying on stare decisis in following the Supreme Court’s interpretation of paragraph 6 (1) of the Courts Practice Directions (supra), which is in pari materia with paragraph 47 (1) of the First schedule (supra). See; Okereke v. Yar’Adua (supra). The intention of the Legislature for confining motions to pre-hearing sessions is to expedite election petitions since time is of essence. If this is correct, then my interpretation of paragraph 47 (1) of the First schedule (supra), does not run counter to that intention. This I assert, for the reason that the 1st and 2nd respondents’ compliance with paragraph 47 (1) would not have delayed the proceedings or caused on adjournment nor resulted to time lag between the time they filed their motion ex parte and obtained the order of the Tribunal. It would only have taken on additional Paragraph of at most two sentences to seek the Tribunal’s leave on the face of the motion ex parte and not more than three paragraphs in the affidavit in support of the motion to state the obvious extreme circumstances. The Tribunal’s order would have merely included the fact that leave has been granted the applicants upon show of extreme circumstances to move their motion ex parte outside pre-hearing session. It is for this, that I hold the strong view that compliance with paragraph 47 (1) of the First Schedule (supra) which is in conformity with the spirit of quick dispensation of election petition, the overall intention of the Electoral Act must be complied with.
Limpidly, I will bring to bare salient issues in the judgments of this Court in Gebi v. Dahiru (supra) and Gabriel Torwua Suswam V. Prof. Stephen Torkuma Ugba & 3 ors, unreported Appeal No. CA/MK/EPT/07/2011, Makurdi Division delivered on 16/9/2011 to allay the insinuations or imputations of discordant judgments by this court. In Gebi v. Dahiru (supra) the issue was whether the failure of 1st and 2nd respondents to file on application for a pre-hearing notice as mandatorily required by paragraph 18(1) of the First Schedule (supra) did not render the petition incompetent thereby depriving the Tribunal of the jurisdiction to hear the petition. The pertinent question the court answered therein was whether or not the 1st and 2nd respondents (Petitioners) had complied with the provisions of paragraph 18(1) of the First Schedule (supra) by merely writing a letter to the Tribunal for the issuance of pre-hearing notice without coming by way of motion. The Court answered in the affirmative holding that mere letter satisfied paragraph (18) (1) of the First Schedule (supra). Again, in the unreported judgment of this court: Gabriel Torwua Suswam V. Prof. Stephen Torkuma Ugbo & 3 ors (supra), delivered by my learned brother A.A.B. Gumel, JCA: this court decided that motion ex parte sufficed as on application under Paragraph 18 (1) of the First Schedule (supra). I shall hereunder reproduce both the sole issue and the decision therein.
Issue:
“Whether the Motion Ex-parte filed by 1st and 2nd Respondents for the issuance of pre-trial Notices was competent, having regards to paragraphs 18(1) and 47(2) of the 1st schedule to the Electoral Act, 2010 (as amended).”
See: page 5 of the judgment in Appeal No./MK/EPT/)7/2011
Decision:
“Since specific provisions hove been so made for all sorts of applications, a party is only of liberty to choose whatever method it deemed fit or found convenient to make on application where no specific method has been provided under whatever relevant provisions. This, no doubt, is the most expedient and pragmatic position. Therefore, in the absence of any further Prescription in Paragraph 18 (1) (Supra), the expression ’91E2’9180’9cshall apply’91E2’9180’9d therein is permissive enough to allow for on Ex’97parte motion to be brought as an application but this must further be subject to the other Provisions of Electoral Act and the general state of the law. (Underlining nine for emphasis). I therefore hereby hold that to the extent of the Provisions of Paragraph 18(1) (Supra), this appeal totally lacks merit and it is hereby dismissed.”
See: pages 7 – 8 of the judgment in Appeal No./MK/EPT/07/2011 At the risk of repetition, I presume it right to replicate issue no. 3 in the instant appeal of this point. The issue is:
“Whether the Governorship Election Tribunal has jurisdiction to entertain any motion before the prehearing session without the leave of the Tribunal obtained upon extreme circumstances shown by the 1st and 2nd Respondents”.
The dispute in Appeal No./MK/EPT/07/2011 is glaringly legally distinct from the issue in the instant appeal and expectedly the decisions are bound to be different. The focus in APPEAL NO./MK/EIT/07/2011 were: paragraphs 18 (1) and 47 (2) of the First schedule (supra), the issue was as to the mode of application that meets the requirement of paragraph 18 (1) of the First Schedule (supra). This court held that although motion ex parte sufficed as a mode of on application under Paragraph 18 (1) of the First schedule (supra), but such motion ex parte must still comply with other provisions of the Electoral Act and the general state of the Law. In the present appeal, the focus are: paragraphs 18 (1) and 47 (1) of the First Schedule (supra), the issue is, whether a motion ex parte moved outside pre-hearing session without leave of the Tribunal and show of extreme circumstances in the supporting affidavit is competent by virtue of paragraph 47 (1).
The mode of on application is quite distinguishable from the competence of the application. The mode connotes the form or manner of the application. It is the style of the application. In relation to paragraph 18 (1) of the First Schedule (supra); it means the manner, style or the form of on application for the commencement for the issuance of the pre-hearing notice of the Tribunal. This Court in Gebi V. Dahiru (supra) decided on the mode of application under paragraph (18) (1) of the First Schedule (supra).
The court therein held that a “letter” per se suffices as on application under the said paragraph. It was the mode of the application that was in issue in both Gebi v. Dahiru (supra) and Suswam v. Ugba (supra). Following the decision in Gebi v. Dahiru a letter or any other type of application suffices in form under paragraphs 18 (1) & 47 (2) of the First Schedule (supra). In the above referred case, the word application in Paragraph (18) (1) of the First schedule (supra) was made generic. The interpretation given to it went across the board. With such broad interpretation, the word application will cover the following terms: A request or petition; Motion or Bankruptcy. Bankruptcy in this sense referring to a request for on order not requiring advance notice and on opportunity for a hearing before the order is issued. With the understanding that a motion is either an oral or written application seeking a specified ruling or order from the court. The effect is that; whereas application includes motion, application does not mean motion under Paragraphs 18(1) and 47 (2) of the First Schedule (supra).
See Bryan A. Garner, Black’s Law Dictionary 9th Edition Pages 115 and 1106.
Inadvertently, these forms of applications are often ignorantly used interchangeably and this works out confusion. I note, that each of these forms of application is governed by conditions, Procedures, Prerequisites stipulated in statutes, rules of court and in the instance, the Electoral Act Such prerequisites are often expressed as conditions precedent or compulsory conditions. The competence of any application therefore is determined by its conformity to the conditions precedent necessitated by that particular mode of application. While I accept that the decision in Gebi V. Dahiru (supra) as to the form of application is sound, however once a party chooses or adopts a particular form of an application as he is entitled to under paragraph 18(1) of the First Schedule (supra), the Prerequisites of that form of application becomes the conditions precedent for the validity or competence of the form of application so chosen. The Electoral Act, 2010 as amended, by paragraph 47(1) of the First Schedule (supra) made it clear as to the conditions precedent of any motion that is moved outside pre-hearing session. Compliance with paragraph 47 (1) of the First schedule (supra) therefore determines the competence of ALL motions moved outside pre-hearing session. Mr. Orkumah for the 1st and 2nd respondents made reference to pages 2-3 of the contribution of Adamu Jauro JCA, in Gebi V. Dahiru (supra). I have with ultimate logical reasoning considered His Lordship’s contribution and with all due respect to my learned brother, I am not persuaded by the reasoning therein for the simple reason of stare decisis. I lean on the Supreme Court decisions in Okereke V. Yar’Adua (2008) 12 NWLR (Pt. 1100) 95 also Reported in (2008) LPELR – SC 246/2007: Nwankwo V. Yar’Adua (2010) LPELP – SC.279/2007 which were not considered by the learned Justice. Mr. Orkumah also referred this court specifically to pages 17 – 22, 26 and 31-33 of the lead judgment in Gebi V. Dahiru. Perusing the referred pages, I have observed that pages 17-22 deal with mode of application, stressing that letter or any other form of request to the Tribunal suffices under the law. I have not departed from that position in the instant case. At page 26, Saulawa, JCA, delivering the lead judgment held that the cases of Badamasi Ayuba & Anor V. INEC & 3 ors (unreported) Appeal No. CA/EP/HR/15/2009; Rirwai V. Shekarau (2008) 12 NWLR (Pt. 1100) 142; Okereke V. Yar’Adua (supra) were distinguishable from the case of Gebi V. Dahiru (supra). As well, the court’s considerations of pages 31-33 do not relate to the appeal of hand. The specific Pages relied on by Mr. Orkumah are of no moment in the appeal at hand. In all, neither the case of Gebi V. Dahiru (supra) nor Suswam V. Ugbo (supra) is on all fours with the instant appeal. None of the decisions therein is therefore persuasive.
The position is however different from the case of Okereke V. Yar’Adua (supra) which is on all fours with the instant appeal. Therein, the Supreme Court was called upon to determine whether having regard to the provisions of paragraph 6(1) of the Election Tribunal and Courts Practice Directions, 2007, the Tribunal was not without jurisdiction to hear and determine motions outside pre-hearing session. The Supreme Court categorically declared that paragraph 6(1) of the Courts Practice Directions (supra) which is in pari materia with paragraph 47(1) of the First Schedule (supra) must be strictly adhered to. I have already copiously quoted their Lordships above, I will avoid repetition.
The 1st and 2nd respondents in the appeal of hand, having chosen motion ex-parte as their mode of application voluntarily submitted themselves to the rules and conditions that govern that form of application in the 1st schedule to the Electoral Act, 2010 as amended. The Electoral Act, 2010 (as amended) by Paragraph 18(1) of the First Schedule (supra) left the option as to the mode of application to the petitioner. The some Electoral Act, 2010 (as amended) in my own understanding, by paragraph 47 (1) stipulates the conditions precedent for a petitioner who chooses to come by way of motion to validly activate the powers of the Tribunal for the commencement for the issuance of pre-hearing notice. For emphasis; Paragraph 47 (1) of the First Schedule (supra) provides:
‘No motion shall be moved and all motions shall come up of the pre-hearing session except in extreme circumstances with leave of Tribunal or Court”
The key phrases in this paragraph are:
(1) No motion shall be moved;
(2) All motions shall come up of pre-hearing session;
(3) Except in extreme circumstances
(4) With leave of the Court.
By virtue of paragraph 47(1) of the First schedule (supra) and in accordance with the Supreme Court decisions examined above, I hold that any motion entertained outside pre-hearing session: without show of extreme circumstances and leave of the Tribunal or court sought and obtained, is incompetent and as such will rob the Tribunal or Court of its jurisdiction. Jurisdiction is not a matter to be taken lightly or for granted. A court cannot casually assume jurisdiction over a matter when the conditions precedent are not satisfied or do not appear to have been satisfied. In the instant case the conditions precedent for moving the motion ex parte outside pre-hearing sessions are: show of extreme circumstances and leave of court. See Odofin & Anr. V. Agu & Anr (1992) LPELR SC./101/1989 also Reported. In (1992) 3 NWLR (Pt.229) P. 350 of 371; Ekanem Ekpo Out V. A.C.B International Bank PLC & Anr.
Upon a proper perception, the conditions precedent in paragraph 47 (1) of the First Schedule (supra) are not onerous neither are they of variance with the well established intendment of the Electoral Act for speedy disposal of election petitions. As not in dispute, the 1st and 2nd respondents failed to abide by the said conditions precedent thereby rendering their motion ex parte incompetent. The motion being incompetent the Tribunal locked the jurisdiction to hear and determine some. See Nkemdilim V. Madukolu (1962) 2 SCNLR 341 also Reported. (1962) 1 ALL NLR 589.
In sum, I hold that the Governorship Election Petition Tribunal sitting of Makurdi, Benue State lacking the jurisdiction to entertain the motion ex parte filed on 23rd June, 2011 by the 1st and 2nd respondents, having entertained same; the Tribunal’s proceedings of 29th June, 2011 including the Order made thereat are a nullity and liable to be set aside. I resolve this issue in favour of the appellant.
Consequently, Appeal No. CA/MK/EPT/10/2011 succeeds and is allowed. I set aside the Order made by the Governorship Election Tribunal on 29th June, 2011 directing the Secretary of the Tribunal to issue pre-hearing Notice as in Form TF007 to be accompanied by a pre-hearing information Sheet as in Form TF008 for the commencement of the pre-hearing conference towards the hearing of Petition No.: GET/BN/02/2011.
MOHAMMED LADAN TSAMIYA, J.C.A: I agree with the judgment just delivered by my learned brother JUSTICE UCHECHUKWU ONYEMENAM JCA.
HON. JUSTICE ALI ABUBAKAR BABANDI GUMEL J.C.A: I also agree with the judgment delivered by my brother Uchechukwu Onyemenam JCA.
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Appearances
NASIRU DAN GIRI WITH C.T. MUEFor Appellant
AND
S.A. ORKUMAH WITH M.I ATAGHER
J.T. AGOR
M.T. ASSOH FOR THE 1ST AND 2ND RESPONDENTS
CHIEF E.K. ASHIEKAA FOR THE 3RD RESPONDENT
J.S. OKUTEPA, SAN, WITH A.C. UCHIN (MRS
N.I. OGOH (MISS)
O.M. AJONYE
E.E. OBUA (MISS) FOR THE 4TH RESPONDENTFor Respondent
