PREYE OSEKE & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR
(2011)LCN/4930(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of October, 2011
CA/PH/EPT/25/2011
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPH 18 OF THE FIRST SCHEDULE AS REGARDS WHEN THE PETITIONER CAN APPLY FOR THE ISSUANCE OF PRE-HEARING NOTICE
18(1) with in 7 days after the filling and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007. (3) The respondent may being 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. (4) Where the petitioner and the respondent fail to bring an application under this paragraph the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take step shall be filed or entertained.” Interpreting paragraph 18 of the First Schedule the entire provision of the Electoral Act must be considered. See CHIMIE v. UDE (1996) 3 NWLR Pt. 46 376; NWULE v. IWUAYANWU (2004) 15 NWLR 61 at 85. I am of the respectful view that paragraph 18 should be read with paragraph 49 of the First Schedule. It reads:- “49 Two or more candidate may be made respondent to the same petition and their case may, for the sake of convenience be heard at same time but for all purposes (including the taking of security) the election petition shall be deemed to be a separate petition against each of the respondents.” The implication of reading 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 pre-hearing notice as inform TF007 under the said paragraph 18, he is to do so with 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 respondent is empowered to invoke the provision of paragraph 18(3) or as the case may be the tribunal 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 IKORO 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.” PER TUNDE OYEBANJI AWOTOYE, J.C.A
PRE-HEARING NOTICE: WHEN WILL THE ISSUANCE OF PRE-HEARING NOTICE BE NECESSARY
It must be noted however that issuance of pre-hearing notice is only necessary where the petition is being contested and it is when the Respondent (any of them) files a reply. It is the filing of a reply that activates the provision of paragraph 18 of the FIRST SCHEDULE of the Electoral Act (as amended). It is the earliest indication of a contest which necessitates such an application. PER TUNDE OYEBANJI AWOTOYE, J.C.A
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. PREYE OSEKE
2. LABOUR PARTY Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. HON. BENSON FRIDAY
3. PEOPLE DEMOCRATIC PARTY (PDP) Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A (Delivering the Leading Judgment): On 12/10/2011, we gave a decision dismissing this appeal, after hearing the parties: I now give reasons for doing so.
This is an appeal against the decision of the National and state Houses of Assembly Election Tribunal sitting at Yenagoa Bayelsa state delivered on 16/8/2011 on the ground that the petitioners abandoned the petition under paragraph 18 of the First Schedule to the Electoral Act 2010.
Being aggrieved with the said decision, the petitioner filed notice of appeal containing 2 grounds of appeal.
After transmission of record of appeal learned counsel on either sides filed and exchanged briefs of argument which they later adopted in the course of the appeal. Each of the parties formulated issues for determination by this court.
The sole issue common to all the parties which encompasses the two Grounds of Appeal of the appellant is:-
“Whether the learned chairman and members of the Election Tribunal were right in dismissing the petition of having been abandoned for non-compliance with paragraph 18(1) of the First schedule to the Electoral Act 2010 when pleadings had not in fact come to a close. ”
The facts of this appeal can be succinctly put thus:
The appellants who were the petitioners filed and served their petition on all the Respondents but only the 2nd respondent filed his Reply to the petition on 14/6/2011.
The appellants did not apply for pre-hearing notice as required paragraph 18(1) of the First Schedule.
The petition was consequently dismissed on the application of the 2nd Respondent at the tribunal.
In his argument learned counsel for the appellant Dr. Anthony Okorodas submitted that the lower tribunal was wrong in dismissing the petition as having been abandoned when at the time the application for dismissal was brought by the 2nd respondent pleadings had not in fact come to a close. He submitted further that paragraph 18(1) of the First Schedule showed that the provision became mandatory only upon the close of pleadings because the provision was activated only upon the existence of one of two situations – the filing and service of wither the respondent’s reply or petitioner’s reply, after which the petition was required to apply for prehearing notice within 7 days. He stated further that the purpose of pre-hearing session was to plan the conduct of the entire case for the hearing of the petition. He further argued that it was after the service of art replies that pleadings came to a close. He relied on several authorities including ADESANYA V. PRESIDENT OF NIGERIA (1981) 2 NCLR 358, and ADIGUN V. A -G. (Oyo STATE) (1987) 2 NWLR 197.
He urged the court to allow the appeal.
Learned counsel for the 2nd respondent PREYE-AGEDAH in his adopted brief submitted that the timelines provided in paragraph 18(1) of the First schedule apply in its interpretation and not necessarily the actual filing of the appropriate Replies or pleadings. He cited IKORO v. IZUNASO (2010) ALL FWLR AND AZUDIBIA V. INEC (2008) 4 LRE IN 105 At 121. He cited other cases including OKEREKE V. YARADUA (2008) ALL FWLR (PT.430) 626. He submitted that the application of the petitioners now appellants for pre-hearing notice was rate and so the tribunal rightly dismissed the petition.
He finally urged the court to dismiss the appeal.
Learned counsel for the 1st respondents in his brief submitted that the time lines stipulated under paragraph 18(1) of the 1st schedule to the Electoral Act were not left for the whims and caprices of a petitioner. He submitted that the fact that the 1st and 3rd respondents had not filed their replies was not and should not be an excuse for flouting the provisions of the law. He relied on IKORO V. IZUNASO (supra) and NWANKWO V. YAR’ADUA (supra). He finally urged the court to dismiss the appeal.
I have carefully considered the submission of learned counsel on both sides.
This is a situation in which there are more than one respondents and having regard to the wordings of paragraph 18 of the First schedule to the Electoral Act, problems of interpretation have arisen. For clarity’s sake I shall quote the provision of paragraph 18(1) (3) & (4) of the First schedule of the Electoral Act (as amended) hereunder.
“18(1) with in 7 days after the filling and service of the petitioner’s reply on the respondent or 7 days after the fifing and service of the respondent’s reply whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.
(3) The respondent may being 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.
(4) Where the petitioner and the respondent fail to bring an application under this paragraph the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take step shall be filed or entertained.”
Interpreting paragraph 18 of the First Schedule the entire provision of the Electoral Act must be considered. See CHIMIE v. UDE (1996) 3 NWLR Pt. 46 376; NWULE v. IWUAYANWU (2004) 15 NWLR 61 at 85.
I am of the respectful view that paragraph 18 should be read with paragraph 49 of the First Schedule. It reads:-
“49 Two or more candidate may be made respondent to the same petition and their case may, for the sake of convenience be heard at same time but for all purposes (including the taking of security) the election petition shall be deemed to be a separate petition against each of the respondents.”
The implication of reading 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 pre-hearing notice as inform TF007 under the said paragraph 18, he is to do so with 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 respondent is empowered to invoke the provision of paragraph 18(3) or as the case may be the tribunal 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 IKORO 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.”
The words, “petitioner’s reply” “respondent” are not petitioners’ replies” and “respondents” and should not be so interpreted. To interpret otherwise would indirectly extend the time stipulated in paragraph 18(II) and do violence to the provision of paragraph 18(1) which forbids such extension of time.
In CA/PH/EPT/8/2011, ADONYE V. AYE ATAMAH PEBBLE & ORS delivered by this court on 6/10/2011 I had this to say on a similar point. The FIRST SCHEDULE does not allow the petitioner to wait indefinitely for the 1st Respondent to file a reply to apply for issuance or pre-hearing notice. It must be noted however that issuance of pre-hearing notice is only necessary where the petition is being contested and it is when the Respondent (any of them) files a reply. It is the filing of a reply that activates the provision of paragraph 18 of the FIRST SCHEDULE of the Electoral Act (as amended). It is the earliest indication of a contest which necessitates such an application.” It is in the light of the above that I shall view this appeal. The petitioners ought to have applied for pre-hearing notice within 7 days of being served with the 2nd Respondent’s Reply. The appellants having failed to so do, the lower tribunal was right in my respectful view to dismiss the petition against the 2nd Respondent. Since it was not contended either at the lower tribunal or before us that the petition against the other respondents should have survived, I shall comment no further.
This appeal lacks merit in the circumstance. It is accordingly dismissed.
M.D. MUHAMMAD, J.C.A.: I agree.
P. A. GALINJE, J.C.A.: I agree.
Appearances
DR. Anthony OkorodasFor Appellant
AND
Preye Agedah with I.M. Max Alagoa, I. Onovo and Alfred Eto for the 2nd and 3rd Respondent.
C.I. Oha and M. Fubara for the 1st Respondent.For Respondent
