PROFESSOR DORA NKEM AKUNYILI & ANOR V. DR. CHRIS NWABUEZE NGIGE & ANOR
(2011)LCN/4900(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of November, 2011
CA/E/EPT/37/2011
RATIO
POWER OF ELECTION TRIBUNAL: WHETHER AN ELECTION TRIBUNAL HAS POWER TO RECONSIDER AND REVERSE ITSELF ON ISSUE(S) IT HAD SETTLED IN THE PREVIOUS MOTION BROUGHT BEFORE IT
It is not in doubt that the Tribunal had no power to reconsider and particularly to reverse itself on the issue it had settled in the previous motion brought before it by the 1st Respondent. To this extent therefore, the Tribunal was very wrong to have granted the motion of the 2nd Respondent. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ADAMU JUARO Justice of The Court of Appeal of Nigeria
Between
1. PROFESSOR DORA NKEM AKUNYILI
2. ALL PROGRESSIVES GRAND ALLIANCE (APGA) Appellant(s)
AND
1. DR. CHRIS NWABUEZE NGIGE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling delivered on 20/10/2011 by the National and State Houses of Assembly Election Tribunal, Awka Anambra State, (hereafter simply referred to as “the Tribunal”) striking out petition No.EPT/AN/NAE/SE/26/2011.
The Appellants as Petitioners instituted Petition No. EPT/AN/NAE/SE/26/2011 (hereafter simply referred to as “the Petition”) on 17/5/2011 before the Tribunal challenging the declaration and return of the 1st Respondent as the winner of the election to the Senate of the Federal Republic of Nigeria for Anambra Central Senatorial District held on 9/4/2011 with a re-run into some Wards and Polling Units held on 26/4/2011. The 1st Appellant contested the questioned election on the platform of the 2nd Appellant; while the 1st Respondent contested the said election on the platform of the Action Congress of Nigeria. The grounds of the Petition as set out in paragraph 7 thereof are: –
“(a) That the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
(b) That the election was invalid by reason of non-compliance with the provisions of the Electoral Act and the manual made thereunder.”
The prayers in the Petition as set out therein read thus: –
(i) That it be declared that upon a proper computation of the lawful votes cast at the election the subject matter of this Petition, the return of the 1st Respondent as the winner of the Election to the Senate held on the 9th April, 2011 with a re-run election in some Wards and Polling Units on 26th April, 2011 for Anambra Central Senatorial District is null and void in that the 1st Respondent was not elected by majority of lawful votes cast at the election.
(ii) That the return of the 1st Respondent as the winner of the said election be set aside.
(iii) That it be declared that the Petitioners scored the highest number of valid votes cast at the questioned election and that the 1st Petitioner ought to have been returned as the winner of the election.
(iv) That the 1st Petitioner be returned as having been duly elected by majority of lawful votes cast at the Election to the Senate held on the 1st April, 2011 with a rerun election in some Wards and Polling Units on 26th April, 2011 for Anambra Central Senatorial District.”
The Appellants as Petitioners pray in the ALTERNATIVE that: –
(A) The questioned election was invalid by reason of non compliance with the provision of the Electoral Act and the Manual for Election Officials 2011 made pursuant to Section 153 of the Electoral Act in that:-
(i) The number of registered voters in the two Polling Units in the constituency where the election did not hold to wit; Orubuchi Kindergarten II Polling Unit, Code No. 004, Nkpor Ward II, Dunukofia Local Government Area and Central Primary School I Polling Unit, Code No. 003, Abba Ward in Njikoka Local Government Area is in excess of the margin of win by votes of the 1st Respondent and a return could not in the circumstances have been made.
(ii) The total number of registered voters in Polling Units where the election is void by reason of OVER-VOTING as set out in paragraphs C(I), (II), (III), (IV), (V), (VI), (VII), (VIII), (IX), (X), (XI), (XII), (XIII), F(III), (IV) and H(a), (b), (c), (d) and (e) of the Petition is in excess of the margin of win of the 1st Respondent and a rerun cannot be made in the circumstances.
(iii) The total number of registered voters where the election was marred by various malpractices which substantially affected the result of the election as set out in paragraph E of this Petition is in excess of the margin of win by votes of the 1st Respondent and a return cannot be made in the circumstances.
(B) By reason of paragraph 2A (I)(II) and (III) above, the Petitioners pray that the questioned election be nullified and a re-run ordered.”
The 1st and 2nd Respondents respectively, filed their Replies to the Petition and the Appellants equally filed Petitioners’ Replies to the respective Replies filed by the Respondents. The Appellants after the close of pleadings duly activated the pre-hearing stage of the Petition by applying for the issuance of pre-hearing notice. All the above were done while the Petition was before the Tribunal as constituted by Hon. Justices Bwala, Cocodia and Adeigbe. The Petition never proceeded to hearing before the Tribunal as constituted in the manner hereinbefore stated.
The 1st Respondent on 8/9/2011 filed a motion on notice of the same date in the Petition. The prayers of the 1st Respondent in the motion read thus: –
1. AN ORDER granting leave to the 1st Respondent/Applicant to apply by way of motion outside the prehearing session for the reliefs contained in the prayers herein below set out.
2. AN ORDER DECLARING that the Tribunal has no more jurisdiction to continue with the hearing of the petition in PETITION NO; EPT/AN/NAE/26/2011 Prof. Dora Nkem Akunyili & Anor V. Dr. Chris Nwabueze Ngige & Anor, said petition having been abandoned.
2. (Sic) AN ORDER SETTING ASIDE the Notice of Pre-hearing Sessions (Form TF 007) issued by the Secretary of this Tribunal on the 27th of July 2011, the Pre-hearing Information Sheets (Form TF 008) filed by the parties in this petition for lack of jurisdiction.
3. AN ORDER DECLARING the petition in these proceedings as abandoned and dismissing same; the “pre-hearing sessions” having been initiated in breach of the provisions of Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended).
4. AND FOR SUCH ORDER or further Orders as the Honourable Tribunal may deem fit to make in the circumstances.”
The grounds for the application as set out therein are: –
“(i) Pleadings in this petition were concluded on the 14th and 21st day of June, 2011 respectively when the Petitioners filed their Replies to the respective Replies of the 2nd and 1st Respondents;
(ii) The Petitioners on the 24th day of June 2011 by a letter of same date applied to the Secretary of the Tribunal for the issuance of Forms TF007 and TF008 respectively which letter purport to kick start the pre-hearing session in this suit;
(iii) Upon a proper interpretation of paragraph 18(1) of the 1st Schedule, the Petitioners ought to have applied for the issuance of the said Form TF008 by a Notice of Motion pursuant to paragraph 18(1) of the 1st Schedule, supra;
(iv) The said letter for issuance of pre-hearing forms dated 24th June 2011 was made without jurisdiction and therefore void;
(v) The proceedings of the Tribunal conducted on the 25th and 29th of July 2011, and other subsequent dates in purported compliance with the provisions of Paragraph 18 of the 1st Schedule, supra are nullity and ought to be set aside;
(vi) Since the proceedings are null and void, the petition herein is pro tanto abandoned and ought to be dismissed.”
The Appellants filed a counter affidavit in response to the supporting affidavit of the 1st Respondent’s motion and a written address in opposition to the said motion. (See pages 903 947 of the record). The 1st Respondent filed a further affidavit in response to the counter affidavit of the Appellants as well as a written reply on point of law in respect of his application. (See pages 948 – 957 of the record). The 2nd Respondent not being in agreement with the issues canvassed by the Appellants filed what it termed “Reply on Points of Law by the 2nd Respondent”. (See pages 958 – 971 of the record).
Going by the record of appeal, the Petition first came up before the Tribunal as newly constituted (coram – Honourable Justices Onajite-Kuejubola; Udu-Eze; and Mukhtar) on 16/9/2011 (See page 1113 of the record). On that day, a motion dated 3/8/2011 and filed by the 1st Respondent on the same date was struck out by the Tribunal upon the application in that regard by the said 1st Respondent. The Tribunal on the same day entertained another motion dated 27/8/2011 and filed on 5/9/2011. The Tribunal on the said 16/9/2011 adjourned its ruling on the motion it entertained to 27/9/2011 and also adjourned the Petition to the same date for continuation of pre-hearing. It was on 27/9/2011 that the Tribunal entertained the 1st Respondent’s motion dated 8/9/2011 and filed on the same date. It was at the hearing of the said motion that 1st Respondent’s counsel sought for the leave of the Tribunal and indeed procured the said leave to add an additional ground 7 to the grounds of the application being entertained by the Tribunal. The additional ground 7 is “that the Petitioners did not filed (sic) and served (sic) Form TF008 as required by paragraph 18(2) of the 1st schedule to the electoral act.” No submission in relation to this ground (i.e. additional ground 7) was made in any of the written addresses of the parties that filed the same in respect of the 1st Respondent’s motion. This no doubt is due to the fact that the additional ground 7 was not before the Tribunal at all material times parties were filing their written addresses. Parties however made oral submissions in respect of the additional ground 7, at the hearing of the 1st Respondent’s motion. In this regard, learned senior counsel for the 1st Respondent is recorded as having said: –
“…. The additional ground is that the petition (sic) did not filed (sic) form TF008. Paragraph 18(2) provides as stated.
The said form was neither filed nor served, which supports the other ground, that the tribunal has no jurisdiction to continue with this petition the tribunal is empowered by paragraph 18(11) to dismiss a petition where a petitioner is unprepared or fails to participate actively in good faith, (sic) the hearing of the petition. If paragraph 18(11) is read together with paragraph 18(4) the petition will be dismissed.” (See page 1117 of the record)
Learned senior counsel for the 2nd Respondent on his part stated thus at page 1118 of the record: –
“In respect of the oral application adding the 7th ground. The court is bound by record of the court; it is bound to see its record. No Form TF008 filed (sic) and completed by the petitioner was filed the record of court does not lie, that alone suffices for the buria (sic) of the petition.”
Under “Reply by Petition:” the Tribunal recorded thus at page 1121 of the record: –
“On the 7th ground that contention is not available to the respondent the duty of showing that a petitioner did not file or fill Form TF008 is on the person making the allegation that onus to discharge by merely making the allegation that point is belated in view of what transpired before the old panel matter already fixed for hearing that 7th grounds, (sic) is not supported by affidavit evidence to substantiate it submission of counsel cannot constitute evidence The respondents (sic) to have raised the point in the affidavit and urge court to see its record. I urge the court to resolve issue in the application against the 2 respondent (sic).”
Under “Reply by 2nd Respondent” the Tribunal recorded at page 1122 of the record thus: –
“All submissions on waiver, both in the nature of form substantive or procedural or time of filing, objection, all of them within trial de novo have been overtaking (sic) by event. I command (sic) the court to court ruling this morning. This petition should be dismissed.”
Under “Point of law by 1st Respondent:” the Tribunal at page 1122 of the record, recorded thus: –
“The court record is there to see if the petitioners filed and served Form TF008. The petitioner (sic) cannot be heard to say that the issue is belated.”
The Tribunal in its ruling stated thus at pages 1151 – 1152: –
“On the issue of de novo trial, we have earlier on, on 29/9/2011 held that it simply means starting the trial afresh which does not invalidate orders validly made by the previous panel. It should be borne in mind that we are not, and we do not have the capacity to sit over any lawful order made by the previous panel.
In law this panel and the previous are one. Therefore, all orders made by the previous panel validly made are valid and subsisting including the orders issuing form TF008 to all parties and setting the petition into pre-trial conference. Again we found (sic) no difficulty in upholding the arguments of the petitioners on this issue. This issue is also resolved against the respondents.
Having hold (sic) that the order made by the previous panel are valid we are of the view that the issue of wavier heavily canvassed by counsel is overtaken by events. The additional ground added by the 1st Respondent while arguing his application is also affected.
Consequently, the order declaring that the tribunal declares that it has no more jurisdiction to continue with the hearing of petition in petition No. EPT/AN/NAE/SE/26/2011 Professor Dora Nkem Akunyiti & another V. Dr. Chris Nwabueze Ngige & Another said petition having been abandoned cannot be made. Also an order setting aside the notice of pre-hearing sessions (form TF007) issued by the secretary of this Tribunal on 27th of July, 2011, the pre-hearing information sheet (Form TF008) filed by the parties in this petition cannot be granted.”
It was after the ruling of the Tribunal in which it refused the orders sought by the 1st Respondent in his motion dated 8/9/2011 and filed on the same date that the 2nd Respondent brought the motion dated 11/10/2011 and filed on the same date, pursuant to Paragraphs 47(1) and (2); and 18 (ii) (sic) of the 1st Schedule to the Electoral Act (as amended) and in which the following were sought: –
An order of this Honourable Tribunal dismissing the petition for non-filing of requisite pre-hearing Notice particularly forms TF007, TF008 and or TF009 by the Petitioners.
(2) Alternatively an order striking out or dismissing the petition for inability to conclude pre-hearing conference and or issue pre-hearing Report due to absence or none (sic) filing of the requisite pre-hearing Notice by the Petitioners particularly forms TF007, TF008 and or TF009 by the petitioners.
3. Or an order dismissing the petition in that the petitioners are substantially unprepared for the pore-hearing (sic) session in the absence of requisite forms TF007, TF008 and or TF009.”
The grounds of the application as set out therein are: –
“(i) The Petitioners did not fill nor file the pre-hearing Notice as in forms TF007, TF008 and or TF009 in the above petition.
(ii) The record of the Tribunal and the ruling of the Tribunal …./…./2011 (sic) confirmed that the Petitioners did not fill or file pre-hearing Notice as in forms TF007, TF008 and or TF009.
(iii) There is no basis for further pre-hearing conference in the circumstances.
(iv) The petitioners did not answer any of the information or questions as required of the petitioners to answer and or supply in forms TF007, TF008 and or TF009 as no such forms TF007, TF008 and or TF009 were filed by the petitioners.
(v) The Tribunal cannot proceed and or conclude pre-hearing session, scheduling and write pre-hearing Report in the absence of answers to the questions filled and filed by the Petitioners.
(vi) The statutory period within which the Petitioners are to fill and file the prehearing Notice has lapsed.
(vii) The Petitioners are substantially unprepared in the absence of forms TF007, TF008 and or TF009 to participate in the session and to conclude same without any of the appropriate forms.
(viii) A condition precedent to the conclusion and issuance of the pre-hearing Report is the presence of the appropriate forms TF007, TF008 and or TF009 duly filled and filed by the parties.
(ix) The absence of forms TF007, TF008 and or TF009 by a Respondent also has the effect of the Petitioner having judgment entered in the Petitioner’s favour.”
The Tribunal entertained the 2nd Respondent’s motion as hereinbefore set out together with another motion and in its ruling delivered on 20/10/2011 the Tribunal having held that “for non compliance with the mandatory filing and service of Form TF008 by petitioners herein despite having applied for pre-hearing session, it becomes impracticable to issue a report and invariably robs the tribunal of jurisdiction to entertain the petition”, struck the same out.
The Petitioners (now Appellants) being dissatisfied with the striking out of their Petition by the Tribunal lodged an appeal against the Ruling of the Tribunal in that regard. Appellants’ Notice of Appeal dated 20/10/2011 was filed on 21/10/2011. The Notice of Appeal contains eight grounds of appeal.
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument is dated 31/10/2011 and filed on the same date. The Brief of Argument was settled by O.A. Obianwu, Esq. (SAN); A.C. Anaenugwu, Esq.; H.C. Onwuegbuke, Esq.; G.B. Obi, Esq.; T.U. Oguji, Esq.; Uzoamaka Ilobi (Mrs.); and Chidozie Ogunji, Esq. The Brief of Argument of the 1st Respondent dated 4/11/2011 and filed on the same date was settled by Chief G.N. Uwechue, SAN; Kola Awodein, SAN; Rickey Tarta, SAN; Chief Niyi Akintola, SAN; Chief Emeka Ngige, SAN; Hon. Bona Oraekwe; Ngozi Udodi (Ms); and P.E. Okoye, Esq. The Brief of Argument of the 2nd Respondent dated 4/11/2011 and filed on the same date was settled by Prof. Ilochi Okafor, SAN; O.J. Nnadi, SAN; C.E. Ezenduka, Esq.; Emeka Ajaegbo, Esq.; Ikem Taylor Nwanegbo, Esq.; and Francis U. Abazuonu, Esq. The appeal was entertained on 14/11/2011 and all learned counsel for the parties adopted and relied on the respective Briefs of Argument they filed on behalf of their clients in respect of their positions in the appeal.
In their Brief of Argument, the Appellants formulated a lone issue from eight grounds of appeal as arising for determination in the appeal. The Issue reads: –
“Having heard and refused the application seeking to strike out the petition for non-filing of Form TF 008 amongst other grounds, in its decision of 4th October, 2011 was it proper for the tribunal to subsequently turn around to entertain and accede to the application dated 11th October, 2011 by the 2nd Respondent, on the same ground of non-filing of Form TF 008 by the petitioners.”
In his Brief of Argument, the 1st Respondent aside from submitting to the effect that the lone Issue formulated by the Appellants did not encapsulate all the grounds of appeal and that by implication grounds 3, 4, 5, 6 and 8 which were not covered by the said lone Issue are deemed abandoned, formulated seven Issues as arising for determination in the appeal. The Issues read thus:
“1) Whether the lower Tribunal in its ruling of 44th October, 2011 (sic) to the 1st Respondent’s motion of 11/09/2011 made any pronouncement on the issue of filing or non-filing of Form TF 008 (pre-hearing information sheet) by the Petitioners so as to preclude it from entertaining and granting the 2nd Respondent’s application to strike out or dismiss the petition on account of Petitioners’ failure to complete and file their Form TF 008. (Distilled from Grounds 1 & 2)
2) Whether the lower Tribunal was right in holding that Exhibit “A” the purported Form TF 008 attached to the Petitioners’ counter affidavit uncertified, unavailable in the Tribunal file and not previously served on any of the respondents, was a worthless and questionable document that could not be relied upon (Distilled from Ground 3)
3) Whether the lower tribunal having regard to Paragraph 53 of 1st Schedule, supra was right in striking out the petition for non-filing of Form TF 008 in the light of a purported pre-hearing session said to have been conducted by a previous panel. (Distilled from Ground 4)
4) Whether in the absence of a duly completed filed and served Form TF 008 from the Petitioners who initiated the proceedings, was the Tribunal right in holding that it was not in a position to issue a pre-hearing session Report. (Distilled from Ground 5)
5) Whether the sanction for non-filing of Form TF 008 by a Petitioner includes, amongst others, the striking out of the petition. (Distilled from Ground 6)
6) Whether the lower Tribunal was right in entertaining the 2nd Respondent’s application dealing with issue of loss of jurisdiction of the Tribunal 7 days after the date of first pre-hearing session, (Ground 7)
7) Whether having regard to the Petitioner’s (sic) failure to file their Form TF 008, the lower Tribunal was right in setting aside all steps taken at the “prehearing session” for lack of jurisdiction.”
The 2nd Respondent formulated seven Issues for the determination of the appeal in its Brief of Argument. The Issues are: –
“(i) Was the Tribunal right in striking out the petition having found from the record of the Tribunal that though the Appellants properly applied for issuance of pre-hearing notice but failed to fill, file and serve the form TF 008 on the Tribunal and Respondents as borne out from the record of Tribunal? (Grounds 1 & 2 of the Notice of Appeal).
(ii) Whether Exhibit ‘A’ attached to the further affidavit of the Appellants (a purported Form TF 008) not found in the file of the Tribunal, or in the Tribunal’s Registry nor served on any of the parties nor endorsement copy available and on the face of it contains alterations sought to be explained in the further counter affidavit of the Appellants was rightly discountenanced by the Tribunal, having regard to the state of the affidavit evidence of the parties? (Ground 3 of the Notice of Appeal).
(iii) Whether the order striking out the petition based on the non-compliance with paragraph 18(2) and other relevant sub-paragraphs of paragraph 18 of the 1st Schedule amounted to sitting on appeal or a review of the decision of the predecessors of the panel that struck out the petition? (Ground 4 of the Notice of Appeal).
(iv) Whether the Tribunal which started pre-hearing and so stated in the Rulings of the Tribunal is not deprived of the jurisdiction to continue w1h the pre-hearing and issue report in the absence of Form TF 008 filled, filed and served by the Appellants? (Ground 5 of the Notice of Appeal).
(v) Whether the doctrine of waiver will apply over the breach of paragraph 18 of the 1st schedule to the Electoral Act 2010 (as amended)? (Ground 6 of the Notice of Appeal).
(vi) Whether issue of jurisdiction could be limited by time or could be raised at any time, in any manner and in any form? Alternatively, whether the Tribunal can close its eyes to the challenge of the competence of a petition based on the breach of paragraph 18 of the 1st Schedule to the Electoral Act 2010 (as amended)? (Ground 7 of the Notice of Appeal).
(vii) What is the legal position where a court finds in the middle of the proceedings that a condition precedent to assumption of jurisdiction and continuing with the proceedings is lacking or does not exist? (Ground 8 of the Notice of Appeal).”
The appeal will be resolved on the Issue as formulated by the Appellants. This is because the said Issue is not only subsumed in the Issues formulated by the 1st and 2nd Respondents respectively, but also as the positive resolution of the Issue will render the consideration of any other Issue formulated by the other parties in the appeal.
Dwelling on the Issue for the determination of the appeal, the Appellants submitted in the main that as the Tribunal had pronounced upon the issue of their not filing Form TF 008 in its ruling of 4/10/2011, the very same issue could not be properly reviewed by the Tribunal in the subsequent ruling delivered by it on 20/10/2011, talk less of the said Tribunal arriving at a different decision on the issue in its said ruling of 20/10/2011. The cases of Adighije v. Nwaogu 2 NWLR (Pt. 1125) 231 at 252- 253; and Adigun v. A-G, Oyo State (No. 2) (1987) 2 NWLR (Pt. 56) 197 at 212 amongst others were cited in aid. It is also the submission of the Appellants that the Tribunal by its ruling delivered on 20/10/2011 succeeded in reviewing its stance in its ruling delivered on 4/10/2011 to the effect that it lacked the vires to review the decisions of the panel it succeeded.
The submission of the 1st Respondent in the main in respect of the Issue at hand is that as the Tribunal never made any pronouncement in respect of the additional ground 7 of his application ruled upon on 4/10/2011, the question of the Tribunal reviewing its earlier decision in that regard has no basis or foundation. The 1st Respondent also submitted that even if the Tribunal made a pronouncement in respect of the additional ground 7 (and he did not concede this), there was nothing that precluded the Tribunal from dealing with the same issue subsequently. In this regard, the 1st Respondent submitted firstly that the 2nd Respondent had a right of its own to have raised afresh the same issue by its motion of 11/10/2011 as the motion of 8/9/2011 in which the issue/ground was first raised, was not a joint motion but his own (i.e. 1st Respondent). Secondly, that the issue/ground was properly raised and decided upon by the Tribunal as motion subsequently brought by the 2nd Respondent raised the issue of forgery (which is a form of fraud) in relation to Exhibit A attached to the Appellants’ counter affidavit. Thirdly as the principle of issue estoppel or issue of functus officio relied upon by the Appellants cannot be raised to defeat lack of jurisdiction on the part of the Tribunal and the case of FRN v. Ifegwu (2003) 5 SC 252 amongst other was cited in aid.
The substance of the submissions of the 2nd Respondent in respect of the Issue under consideration is basically the same as that of the 1st Respondent. In the circumstance, I see no need to embark on a separate review of the submissions of the 2nd Respondent as this will amount to repeating what I had earlier stated above in relation to the submission of the 1st Respondent on the Issue at hand.
In this judgment, I have before now, set out the additional ground 7 the 1st Respondent introduced into his motion at its hearing. I have also set out the motion of the 2nd Respondent entertained by the Tribunal after its ruling on 4/10/2011 in respect of the 1st Respondent’s motion, as well as the grounds of the said 2nd Respondent’s motion. I am of the considered view that despite the ingenuity or skill that has been put into the drafting or couching of the grounds of the motion of the 2nd Respondent, this has not beclouded the fact that all the nine grounds revolve basically around the ground or issue that the Appellants did not file and serve Form TF008 as required by paragraph 18(2) of the 1st Schedule to the Electoral Act. In other words, there is no running away from the fact that the ground, around which the motion of the 2nd Respondent basically revolves, is the same or the very additional ground 7 introduced into the motion of the 1st Respondent dated 8/9/2011 at the hearing of the said 1st Respondent’s motion.
It is my considered view that it has before now been sufficiently demonstrated that despite the fact that the said additional ground 7 was introduced into the motion of the 1st Respondent at the hearing of the motion, all the parties made submission in relation to the said ground. The various submissions of the parties as recorded by the Tribunal have been hereinbefore reproduced in this judgment. It is therefore my considered view that whether or not the motion of the 1st Respondent dated 8/10/2011 was a joint one made by the 1st and 2nd Respondents, parties in the Petition undoubtedly joined issues in relation to the additional ground 7 having regard to their submissions hereinbefore re-produced in this judgment.
The Tribunal too averted its mind to the ground in its ruling in respect of the said 1st Respondent’s motion. In this regard, the Tribunal having decided to the effect that trial “de novo” did not imply the wiping off of every act taken or order legitimately made in the Petition by the panel which entertained the said Petition before it, further stated in clear terms that all the orders made by the previous panel, are valid and subsisting including the orders issuing form TF008 to all parties and setting the petition into pre-trial conference. Again, in the same ruling the Tribunal further held to the effect that in view of its holding that the orders made by the previous panel are valid, it was of the view that the issue of wavier heavily canvassed by counsel is overtaken by events. Furthermore that the additional ground added by the 1st Respondent while arguing his application is also affected. It is my considered view that the Tribunal in its ruling delivered on 4/10/2011, clearly took the position that the ground of the Appellants not filing or serving Form TF 008 was no longer an issue for resolution given the previous valid orders made by the panel that entertained the Petition before it. The Tribunal apparently had before it its own record which showed glaringly that pre-trial commenced in the Petition on 25/7/2011. (See pages 1105 – 1107 of the record). Equally, in the record before the Tribunal were “The Report of Pre-Trial Conference; Mutual Agreements; Streamlining of Witnesses; Streamlining of Documents”; as contained at pages 1107A – 1107F of the record.
Clearly the Tribunal having by its ruling of 4th October, 2011 saved all that the pages of the record earlier referred to, could not in the same ruling had found the Appellants not to have filed and served Form TF 008. This is particularly so as everything concerning the Appellants as set out on the pages of the record earlier referred to could only have been placed before the Tribunal vide their completed Form 008.
The Tribunal in granting the prayer of the 2nd Respondent in its motion dated 11/10/2011 and which motion it entertained after the ruling it delivered on 4/10/2011 in respect of the 1st Respondent’s motion, clearly reversed itself as it relates to Form 008. It is not in doubt that the Tribunal had no power to reconsider and particularly to reverse itself on the issue it had settled in the previous motion brought before it by the 1st Respondent. To this extent therefore, the Tribunal was very wrong to have granted the motion of the 2nd Respondent. If the Tribunal had appreciated that the underlining issue it was considering and which it was going to resolve in favour of the 2nd Respondent was the self same issue that it had saved, in the ruling it delivered in respect of the 1st Respondent’s motion on 4/10/2011, it definitely would have dismissed the 2nd Respondent’s motion. The Tribunal instead of appreciating its own prior stance in the Petition, decided to concentrate on the order being sought in the 2nd Respondent’s motion without appreciating the fact that the order sought by the 2nd Respondent in its motion dated 11/10/2011, is predicated or founded on the resolution in the affirmative of the self same issue it had previously resolved in the negative in the same petition. This is not good enough and cannot be allowed to stand.
In the light of the foregoing, the sole Issue formulated for the determination of the appeal not only succeeds but also disposes of the appeal.
In the final result, the appeal is meritorious and it succeeds. The decision of the Tribunal, striking out Petition No. EPT/AN/NAE/SE/26/2011 is hereby set aside. In its stead the motion of the 2nd Respondent dated 11/11/2011 is dismissed. The Petition is restored to the Cause List of the Tribunal for it to heard on the merit in the light of the pre-trial proceedings at pages 1105-1107F of the record or as the Tribunal may consider it appropriate to amend or update against the backdrop of all that has transpired in the Petition after it took over the petition.
I make no order as to costs.
ABUBAKAR JEGA ABDULKADIR, J.C.A: I agree.
ADAMU JUARO, J.C.A: I agree.
Appearances
O.A. Obianwu, SAN; with T.U. Oguji; V.E. Okonkwo (Mrs.); and E. S. ChijokeFor Appellant
AND
Emeka Ngige, SAN; with Ngozi Udodi; Bona Oraekwe P.E. Okoye and F.N. Odigbo
O.J. Nnadi, SAN; with C.I. Aiguobarueghan; A.A. Onwuka; and F.U. AbazuonuFor Respondent
