SENATOR HARUNA ABUBAKAR & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS
(2003)LCN/1479(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of October, 2003
CA/A/EP/151/2003
RATIO
COURT AND PROCEDURE: WHERE A CLAIM IS EX-FACIE VALID
“It is settled law that if the claim is exfacie valid in that it joins necessary parties; discloses a cause of action against the parties named in this case cited no further document need to be considered to decide whether or not the claim is valid. See Adeyemi v. Opeyori (1976) 9-10 SC 31, where Obaseki, JSC, held when the writ of summons and statement of claim is on the face of it clear and valid; the issue of jurisdiction is established. The validity of the claim therefore gives jurisdiction to the court without a recourse to any other document; and certainly it is not necessary to consider the position of the defence as contained in an affidavit in support of the motion to strike out or dismiss the claim on grounds that the petition is defective, which reason is alleged to divest the court of jurisdiction as in the instant appeal. In Arjay Ltd. v. A.M.S. Ltd. (2003) 7 NWLR (Pt. 820) 577, the Supreme Court overruled the decision of the Court of Appeal which required further pleadings to the plaintiffs/appellants’ claim before the issue of jurisdiction may be determined.” PER VICTOR AIMEPOMO O. OMAGE, J.C.A.
JURISDICTION: THE JURISDICTION OF AN ELECTION TRIBUNAL
“The jurisdiction of an election tribunal is of a special nature, such that a slight default in complying with the procedural step which otherwise could be cured or waived in other proceedings could result in fatal consequences for the petition; except to the extent to which the provisions of the Electoral Act, 2002 are relaxed; per Uwaifo, JSC in Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 at 498.
In commencing consideration of the submission of the appellant, I agree that the legality and validity of a claim before any court is determined on the face of the claim before the court only.” PER VICTOR AIMEPOMO O. OMAGE, J.C.A.
JUSTICES:
RAPHAEL OLUFEMI ROWLAND Justice of The Court of Appeal of Nigeria
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
CHRISTOPHER MITCHELL CHUKWUMAH-ENEH Justice of The Court of Appeal of Nigeria
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
Between
- SENATOR HARUNA ABUBAKAR
2. NATIONAL DEMOCRATIC PARTY – Appellant(s)
AND
- INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. RESIDENT ELECTORAL COMMISSIONER, NASARAWA STATE
3. ALHAJI ABDULAHI ADAMU
4. PEOPLES DEMOCRATIC PARTY AND 82 OTHERS – Respondent(s)
VICTOR AIMEPOMO O. OMAGE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment, described as the ruling of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal which held in Nasarawa State.
The tribunal presided over the Governorship election petition in Nasarawa State in the matter between:
(1) Senator Haruna Abubakar
(2) National Democratic Party against (1) The Independent National Electoral Commission and 85 others.
In the ruling; the chairman and four members of the tribunal held as follows:
“We hereby decline jurisdiction to entertain the election petition filed on 20/5/2003. In Nigerian Leather Works Ltd. v. Noss and Umlanff Nigeria Ltd. & Another (1977) NCAR 428 at 431 Uwaifo, JCA, (as he then was) stated as follows: “the proper order to be made where jurisdiction of a court is ousted is to strike out the case.”
Again in Oloriode & Ors. v. Oyebi (1984) 1 SCNLR 390; (1984) 5 SC 1 at 32. Obaseki, JSC stated as follows:
“I think the proper order when the court has no jurisdiction to adjudicate upon a matter for whatever reason like the parties before the court having no locus standi is to strike out the action etc. Accordingly, we hereby make an order striking out the election petition filed on 20/5/2003 for non-compliance with the statutory provisions of the First Schedule to the Electoral Act, 2002, and for being incompetent. We hereby make no order as to costs since the learned counsel did not ask for any”.
In the body of the judgment, the learned chairman and members of the election tribunal aforesaid mentioned considered the preliminary objections raised by the 1st, 2nd, 3rd and 4th respondents to wit that the petitioner appellant failed to comply with section 133(1) of part (VII) of the Electoral Act, 2002, and section 4(1) of the First Schedule to the Electoral Act. In their separate and various motions which seek a dismissal or striking out of the said petition the 4th, 3rd, 1st & 2nd respondents averred that the petition was in utter disregard of the Electoral Act, 2002.
The petitioners were dissatisfied with the ruling/judgment of the court below; they have filed this appeal of thirteen grounds with particulars and formulated the following issues:
(1) Was it right for the Tribunal in its determination of the issue of jurisdiction to go outside the contents of the petition.
(2) Whether the petition is incompetent for failure to join as parties the running mates of the 1st appellant and 3rd respondent respectively in the Governorship election and to specify in the body of the petition the names of persons listed in paragraph 12 of the affidavit in support of the 3rd respondent’s preliminary objection their interest, scores as well as their political parties.
(3) Whether on the face of the petition, the provisions of section 132 of the Electoral Act, 2002 and paragraph 4 of the 1st Schedule thereto have been complied with.
(4) Whether having regard to the averments contained in the petition the tribunal was right in striking out the petition for failure to join as parties the security agents, police and army officers as well as one Ayuba Samuel.
(5) Whether having regard to the provisions of paragraph 49 of the 1st Schedule of the Electoral Act, 2002, the party who has taken fresh step after knowledge of any irregularity complained of in a petition can competently object to the defect as irregularity complained of.
Up to the time of hearing there is no brief filed for the 1st, 2nd, 5th – 82nd respondents. The counsel for the said respondents I. K. Bawa informed the court that the counsel instructed by the parties failed to file any brief and was known to the INEC only recently.
The learned counsel did not state the name of the said counsel. Mr. Bawa made an oral application for extensions of time to enable him file the respondent’s brief for the 1st, 2nd, 5th – 82nd respondents.
The said counsel was shown proof of service on INEC, of the appellant’s brief in August, 2003. Reference was also made to the provisions of paragraph 7 of the Practice Direction No.1; made by the Honourable President of the Court of Appeal under section 285 of the Constitution of the Federal Republic of Nigeria. The provisions of paragraph 7 is as follows:
“Respondent shall file in the court and serve on the appellant his own brief within 3 days after service in accordance with paragraph 5 above paragraph 5 reads ‘within a period of 5 days after the service of the record of proceedings the appellant shall file in the court and serve all the respondents a written brief being a succinct statement of his arguments in the appeal’.”
When the counsel for the 1st, 2nd, 5th – 82nd respondents, Mr. Bawa was informed of the above written; he sought and was granted the leave of the court to withdraw his application. In any case, because of the provisions in paragraph 9(d) of the Practice Direction No.1; the said counsel for the 1st, 2nd, 5th – 82nd respondents to the appeal was disallowed to give any oral argument. The chapter reads as follows:
“9(d) Save with the leave of the court no oral argument will be heard on behalf of any party for whom no brief has been filed.”
In this appeal therefore, the 1st, 2nd, 5th – 82nd respondents have filed no brief.
The counsel for the 3rd respondent filed a brief for the 3rd respondent which is out of time by wide margin totally outside the provision of paragraph 9(d) of the Practice Direction No.1 referred to above. The learned counsel expressed surprise at the existence of the rules contained in the practice direction; and said he had filed the brief for the 3rd respondent in compliance with the Court of Appeal Rules.
The rules of filing briefs in the Court of Appeal will apply only where the Electoral Act; as well as the practice direction made thereunder do not apply; or where provisions on the issue are not provided for in the Electoral Act, 2002, see paragraph 51 of the 1st Schedule to the said Electoral Act. It reads; “subject to the express provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with the practice and procedure relating to appeals in the Court of Appeal or the Supreme Court as the case may be regards being had to the need for urgency on electoral matters. The operative word of the Electoral Act paragraph 51 the opening paragraph says subject to the provisions of the Act.” Under the provisions of the 1999 Constitution, the President of the Court of Appeal is empowered to make provision for practice direction.
It has been ruled that practice direction made under the 1999 Constitution and as it is a direction in respect of the Electoral Act, 2002 has the force of law. See N.A.A. v. Okoro (1995) 6 NWLR (Pt. 403) 510 at 523.The 3rd respondent’s brief so called; cannot and will not be countenanced by the court as it offends the practice direction being filed out of time. There is therefore no brief filed in respect of or for the 3rd respondent in this appeal. There is consequently pending before this court only the appellant’s brief.
The Electoral Act, 2002, makes no provision for the situation now before the court when the appellant’s brief only is validly before the court. I have therefore to resort to the provisions of the Court of Appeal Rules 2002, where the respondents fail to file respondents brief. It is in Order 6 rule 10 of the Court of Appeal Rules which disallow oral argument where the respondent fails to file his brief. However in Order 6 rule 4; sub-rule (2) rules are prescribed where the respondent filed a respondents’ brief to do as follows:
“The respondents’ brief shall answer all material points of substance contained in the appellant’s brief and
contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. etc.”
In view of the above is the view valid which assumes that the failure of the respondent to file and serve the respondent’s brief to the appellant’s brief; when there is proof of service on the appellant’s brief on the respondents creates the obverse view that the respondent has thereby failed to answer the points of substance in the appellants brief? The Court of Appeal Rules do not so provide and there is no provision in the rules for consent judgment in the Court of Appeal. It is safe however to conclude that facts contained in the appellants brief are not denied if the respondents failed for any reason to file a valid brief.
At the hearing of the appeal, the appellant adopted his brief. In accordance with the rules cited above, the respondents whose briefs were not before the court were not allowed any hearing beyond the preamble concerning their lack of brief of the parties for a proper appreciation of the reasons why some issues formulated by the appellant will not receive a full consideration it is necessary to reiterate the appellant’s issue for determination of the appeal. However before I recite the issues, I will here state as contained in the appellant’s brief some salient facts which led to the judgment of the court below. The substance of the judgment has been quoted above.
On 20th May, 2003, the petitioners now appellants filed a petition against the election of the 3rd respondent as the Governor of Nasarawa State following the Governorship election held in the State on 19th April, 2003.
The following are joined as parties as respondents in the petition, 1st, 2nd, 5th – 82nd respondents; and their names are contained in the front page of the petition. Alhaji Abdullahi Adamu, the person declared winner of the Governorship election was cited as the 3rd respondent; while the party which sponsored him the P.D.P was cited as the 4th respondent. On 22nd May, 2003, the tribunal, hereafter referred to as the court below made an order for discoveries of documents on the 1st and 2nd respondents at the request of the petitioner. The 4th respondent filed a notice on a motion for extension of time to file a memorandum of appearance which the court below granted. The 4th respondent eventually filed a 68 paragraph reply to the appellants’ petition, the 4th respondent thereafter filed a notice of a preliminary objection in which the 4th respondent urged the court below to strike out the appellants’ petition for non-compliance with some provision of the Electoral Act which render the petition incompetent. The 4th respondent subsequently submitted before the court below that the incompetence of the petition or the defect on it, renders the court devoid of jurisdiction to entertain the petition.
In the case of the 3rd respondent, he filed before the court below a memorandum of unconditional appearance on 13th June, 2003. The printed record of proceedings shows that the 3rd respondent participated in the proceedings on 16th and 17th June, 2003. The 3rd respondent filed a reply of 68 paragraphs to the appellants’ petition. The 3rd respondent subsequently argued before the court below that the petition is incompetent for failure to join the running mates in the case of the appellant and one respondent who contested the election as running mates. The appellant filed two counter affidavits, each to the party who objected to the petition.
The tribunal at the hearing of the preliminary objections filed, consolidated the prayers, and counter-affidavits. On the 10th July, 2003, the said tribunal delivered its ruling and upheld the submissions of the 3rd and 4th respondents to strike out the petition. It is against the ruling that the issues hereunder were formulated from the 13 grounds of appeal and its particulars. The issues are:
(1) Whether it is right for the tribunal to go outside the contents of the petition.
(2) Whether the petition is incompetent for failure to join as parties the running mates of the 1st appellant and 3rd respondent and to specify in the body of the petition, the names of the persons listed in the affidavit of the 3rd respondent in support of the preliminary objection whether their interests and scores should be stated.
(3) Whether there is compliance with the provision of section 132 of the Electoral Act, and with paragraph 4 of the 1st Schedule thereto.
(4) Whether the Tribunal was right in striking out the petition for failure to join as parties the security agents, police and other army officers as well as one Ayuba Samuel.
(5) Whether having regard to the provision of paragraph 49 of the 1st Schedule of the Electoral Act, a party who has taken fresh step after knowledge of any irregularity in a petition can competently object to the defect or irregularity. Whether the tribunal was right in striking  out the counter-affidavit, whether the tribunal was right in failing to consider and determine the issue of locus standi of the objection.
The reliefs sought by the appellants are:
(1) To allow the appeal.
(2) To set aside the ruling of the tribunal and direct the petition to be heard by another panel newly constituted.
In this appeal, there are issues which for tardiness ought to be considered together, in the same discussion. Because the issues contain the same theme it is appropriate to determine the issue in one topic. These are in the appellant’s issues one, four and five.
The issues postulate the form and nature of the petition and whether it was not too late in time in the proceedings to entertain the objection to strike out the petition on which the court acted. The first issue on which the appellant made a submission in his brief is whether on the face of it the petition is defective sufficiently to warrant the order of striking out made by the tribunal. The appellant has submitted in his brief of argument that the claim before the court below is cognizable and discloses a cause of action under the provisions of section 4(1) a-d, 2, 3,4,5 & 6 and section 134(b) of the Electoral Law, 2002 and that the petition contained the names only of the party against whom the appellant as applicant in the court below have complaints against. They are the parties sued and no more who can sustain the claim that they have made against them.
Therefore in filing the petition, the appellant has stated thereon the names only of the person who was a candidate at the election and the party who sponsored him as required under section 133(1) a & b of the Electoral Law, 2002. Appellant submitted that he did not cite the name of the running mate of the 1st appellant and that of the 3rd respondent because the two running mates did not contest the election independently. There are appendages, they do not have scores personal to them; they were not required to be joined as parties by section 178 of the 1999 Constitution. He submitted that neither of the persons not included in his petition could as long as the actual contestants exist commence action against others who contested the election, consequently the appellant’s counsel submitted that the petition on the face of it is regular in content and in form.
The appellant submitted that the ground of the petition is as contained in subsection (b) of section 134(1) of the Electoral Act, 2002 that the election of the 3rd respondent was invalid by reason of corrupt practices; or non-compliance with provisions of the Act. On the face of it, counsel submitted, the petition is valid as it has offended no provisions of the Electoral Act. He submitted that it is settled law; that the jurisdiction of a court is determined by the claim before the court. In the face therefore of a competent claim before the court, the tribunal below was in error to strike out the petition.
In this appeal, the proceeding of the electoral body is strict. It is often repeated that election petition and rules applicable to it and its procedure are unique. It is the reason why election petitions are described as sui generis, they are different from other proceedings, they are neither allied to civil nor to criminal proceedings. They stand on their own bound by its own rules made under the law.
Defects or irregularities which in other proceedings are not sufficient to affect the validity of the claim are not so in an election petition; see Samamo v. Anka (2000) 1 NWLR (Pt. 640) 283, particularly at 293.
An election petition is heard and determined by an appropriate election tribunal.
The jurisdiction of an election tribunal is of a special nature, such that a slight default in complying with the procedural step which otherwise could be cured or waived in other proceedings could result in fatal consequences for the petition; except to the extent to which the provisions of the Electoral Act, 2002 are relaxed; per Uwaifo, JSC in Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 at 498.
In commencing consideration of the submission of the appellant, I agree that the legality and validity of a claim before any court is determined on the face of the claim before the court only.
It is settled law that if the claim is exfacie valid in that it joins necessary parties; discloses a cause of action against the parties named in this case cited no further document need to be considered to decide whether or not the claim is valid. See Adeyemi v. Opeyori (1976) 9-10 SC 31, where Obaseki, JSC, held when the writ of summons and statement of claim is on the face of it clear and valid; the issue of jurisdiction is established. The validity of the claim therefore gives jurisdiction to the court without a recourse to any other document; and certainly it is not necessary to consider the position of the defence as contained in an affidavit in support of the motion to strike out or dismiss the claim on grounds that the petition is defective, which reason is alleged to divest the court of jurisdiction as in the instant appeal. In Arjay Ltd. v. A.M.S. Ltd. (2003) 7 NWLR (Pt. 820) 577, the Supreme Court overruled the decision of the Court of Appeal which required further pleadings to the plaintiffs/appellants’ claim before the issue of jurisdiction may be determined.
Relying on the case of A.-G., Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645, the apex court quoted on the issue of adequacy of the claim on which to adjudicate by the tribunal the apex court relied on the opinion of Karibi Whyte, JSC in the appeal who ruled as follows, in the A.-G., Kwara State.
“There is no doubt the issue of whether a plaintiffs’ action is properly within jurisdiction or indeed justiciable can be determined even on the endorsement of the writ of summons, as to the capacity in which action was being brought or against who action is brought. It may also be determined on the subject matter endorsed on the writ of summons, if this is not actionable.”
In my view, the above shows the liberal view to be generally adopted in a claim before the court to actualize the time honoured dictum of audi alteram partem in fair hearing. This is necessary so that a court of law does not become a hazardous enterprise of pitfalls on its own rules, for litigant or petitioners, in order not to demoralise an aggrieved litigant before he commences an action in the court of law. As I have written above, election petitions are of a different genre its rules have to be strictly observed.
In the instant appeal on the issue as to whether the complaint can sustain the petition and give jurisdiction to the tribunal, the question to be resolved is this, whether there is substantial compliance with sections 133(1), 14(1) of the Schedule of the Electoral Act as complained by the respondents; and as averred by the appellants, section 133(1) and (2) of the Electoral Act subscribes thus:
“133(1)An election petition may be presented by one or more of the following persons:
(a) A candidate at an election.
(b) A political party which participated at the election.
(2) The person whose election is complained of is in this Act referred to as the respondent; but if the petition complained of the conduct of an electoral officer, a presiding officer, a returning officer or any other person who took part in the conduct of an election; such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.”
The specific complaint of the respondents of the 3rd and 4th respondents in the instant appeal is that the running mates of the appellant at the election and the person who was the running mate of the 3rd respondent were not joined and also that some electoral officers were not joined. They submitted before the court below that such non-joinder disrobes the tribunal of jurisdiction; and the tribunal below agreed. In considering this issue two considerations are called for and appropriate to be determined.
(1) Whether the said running mates on their own contested election, and whether without the running mates adjudication of the real issue in controversy cannot be made.
(2) Whether the complaint made by the respondent was brought without delay after the complainants have taken steps in the proceedings; being aware of the alleged I defect in the petition.
On the issue of non-joinder of parties which the respondent submitted in the court below, the question to be determined is this, are the names of the people who contested the election not stated in the petition? I will answer that the names of the actual contestants at the election are stated in the petition; though; the names of the running mates at the election are not stated. The names of the appellant and that of the 3rd respondent and the parties which sponsored them are stated. The question which requires an answer.
Are the running mates necessary parties to the determination of the issues contained in the petition? Arguments can be advanced for both situation, but the issue is did the running mates on their own contest election? The names of the running mates would be necessary if without their names being inserted it will be impossible to determine the issue in controversy. Such a person becomes an indispensable person, but he is not in the instant case.
In Buhari v. Yusuf (supra) an indispensable party is described as one without whose presence no adequate judgment can be entered determining rights of the parties before the court. It is a person who has such an interest in the controversy that the court cannot render a final decree without affecting his interest. He is a person who must be joined because non-joinder (of him) prejudices his right and interests, such that the action cannot continue without him. I am in agreement with the view expressed in Buhari v. Yusuf (supra). A running mate for a governorship election is in the election by virtue of the provision of section 178 of the 1999 Constitution.
He is an appendage of the main contestant for the governorship election; the running mate is bound by whatever decisions the electorate and or the tribunal decides. He rises or falls with the candidate. His absence or non-joinder will not prevent, deter or delay the adjudication of the issue in controversy, and he is bound by the decision of the tribunal when made concerning the party who contested the election. The running mate is therefore not a necessary party; his non-joinder will not delay or prejudice the proceedings because the running mate has no separate right or interest to be prejudiced, or acclaimed. In the absence of complaint against electoral officers by the petitioner, they have been ruled to be statutory parties.
In my view and I so rule, the failure of the appellant to join the running mate in the appellants petition in the court below is not grievous a reason to strike out the petition, and rule that there is substantial compliance with section 133(1) & (2) of the Electoral Act, 2002.
The second issue which arises for consideration on the complaint in the motion of objection of the respondents concerns the time when the application to strike out the petition was made before the tribunal below. The printed record shows that the 3rd and 4th respondents filed each a memorandum of appearance to the petition after they became aware of the petition because they were duly served the petition of the appellant. Each of them entered appearance after filing memorandum of appearance. The 4th respondent first and the 3rd respondent separately filed what they described as preliminary objection. How preliminary can an objection to a claim be when each of the respondent had in the case of the 3rd respondent entered an unconditional appearance; and filed a reply each of 68 paragraphs to the petition. The severity of the Electoral Act, 2002 on the strict compliance with its rule is tempered in my view, by the provisions of section 49(1) & (2) of the Electoral Act, 2002.
It subscribes as follows; “Non-compliance with any of the provisions of this schedule or with a rule of practice for the time being operative except otherwise stated or implied shall not render any proceedings void unless the tribunal or court so directs but the proceedings may be set aside wholly or in part as irregular or amended or otherwise dealt with in such manner and on such terms as the tribunal or court may deem fit and just.
(2) An application to set aside an election petition or a proceeding resulting there from for irregularity or being a nullity shall not be allowed unless made within a reasonable time when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect”.
This gives discretion to the court or tribunal to be exercised to preserve a petition in court not to strike out the petition which substantially complies with the Electoral law, as in the present appeal. The 1st and 2nd respondents did not at all file any brief; the counsel reported that their external counsel failed to file any document in the proceedings. The 3rd and 4th respondents filed, after entering appearance in the proceeding, 68 paragraphs reply each to the petition. In the reply, the 3rd respondent even agreed with some stated paragraphs of the appellants’ brief; before each of the 3rd and 4th respondents filed their preliminary objection.
In my view, steps have been taken by the 3rd and 4th respondents in the proceedings in the court below since the respondents became aware of the defects they alleged in the petition. Their right to complain is deemed to have been waived. The objections of the 3rd and 4th respondents are therefore caught by the limitations in subsection 2 of section 49 of the Electoral Law, 2002.
The 3rd and 4th respondents should not by the court below have been allowed to raise the objections let alone act on it to strike out the petition. For the reasons above stated the answer will be no to the question whether the tribunal was right to strike out the petition.
It is no in the light of section 50(2) to the 5th Schedule of Decree No. 36 of 1998 which says: “An application to set aside an election petition or a proceeding resulting therefrom for irregularity as for being a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect. It is on this provision that Ezeke v. Dede (1999) 5 NWLR (Pt. 601) 80 was determined, which decision conflicts with the interpretation by the Kaduna Division of the Court of Appeal in Tafida v. Bafarawa (1999) 4 NWLR (Pt. 597) 70. The same rule as to delay to file objection to an appeal, which defeats the objection unless made within time is contained in Order 7 rule 5 of the Court of Appeal Rules, 2002.
However, I am inclined to and cite in support of the delay or waiver of a right to raise a preliminary objection of the 3rd & 4th respondents as determined by the Supreme Court in A.-G., Bendel State v. A.-G., Federation and 22 Ors. reported in 1982 NCLR Vol. 3(1) the relevant part reads; if the defendant had wanted to found on the alleged non-compliance with Order 5 rule 2, they should have come to court armed with a motion to set aside the claim before entering an appearance.
The same rules applies in the application before the tribunal below; the respondents have taken steps before an objection was raised in the proceedings, they should not have been heard to cause a strike out of the petition, what the respondents raised is not a preliminary objection, whatever name it is called; it is an objection which was made after steps had been taken in the proceedings after the respondents became aware of the alleged defects in the petition. It is unlike the situation in Tafida v. Bafarawa (supra); where argument tendered continued simultaneous filing of objection and appearance as not a step in the proceeding.
In answer therefore to the appellants issue 3, which asked whether having regard to the averment contained in the petition the tribunal was right in striking out the petition for failure to join the security agents, police, army officers, party thugs as well as one Ayuba Samuel, I will refer to the provisions of the Electoral Act, 2002, section 145(1) which makes provisions for criminal trial for infraction of its rules for conduct of the election concerning those against whom such an allegation is made and answer in the negative when the appellant asked whether the tribunal should have struck out the petition at that stage in issue 4, and held in the negative.
Issues two, five and seven go too deeply into the substance of the matter to be determined in the tribunal when I make here the order to send the petition back to a tribunal below to determine the substance of the appeal. I will therefore refrain from commenting on the said issues 2, 5 & 7. In view of the foregoing, I deem it right and appropriate in the circumstance to set aside the order to strike out the petition made on 10th July, 2003, by the tribunal and direct that the petition be heard before another panel of Election Tribunal for Nasarawa State.
There will be no order of costs.
RAPHAEL OLUFEMI ROWLAND, J.C.A.: I read before now the judgment just delivered by my learned brother Omage, JCA. I agree entirely with his reasoning and conclusion. The 4th respondent was served with the appellants brief but failed to file any written brief. The 1st, 2nd and 5th – 86th respondents were also served but failed to file any written brief. Their counsel I. K. Bawa sought for an adjournment to bring an application for extension of time to file a written brief out of time but withdrew same. The Practice Direction No.2 of 2002 made by the Hon. President of this court in compliance with the provisions of the 1999 Constitution of the Federal Republic of Nigeria provides for a period of three days within which a respondent is to file the respondent’s brief. The brief under reference was filed out of time and therefore incompetent. Since none of the respondents has filed a brief we therefore have only the appellants brief before us. This appeal is therefore determined on the basis of appellants’ brief alone.
For this reason and for the fuller reasons given by my learned brother Omage, JCA in the lead judgment, I too, allow this appeal. I also abide by the consequential orders contained in the lead judgment.
ZAINAB ADAMU BULKACHUWA, J.C.A.: I have read before now the judgment just delivered by my learned brother Omage, JCA.
This is an unfortunate situation where the brief filed by the 3rd respondent on the 3rd of September, 2003 which has been brilliantly written becomes incompetent having been filed out of time in breach of the provisions of the Practice Directions No.2, 2003 which provides that a respondent brief should be filed within 3 days of being served with the appellant’s brief.
In the instant case the appellant’s brief was filed on the 11/8/2003 and the respondent (in particular the 3rd respondent) confirmed that they were served with the appellant’s brief on the 4th August, 2003 and they in turn filed the 3rd respondent’s brief 23 days thereafter.
As we are all aware election matters by their nature require the utmost urgency in their determination, and the reason given by the learned counsel for the 3rd respondent that he is unaware of the Practice Direction to my mind is untenable as we as lawyers all know that ignorance of the law is never a defence.
The brief though well researched and brilliantly written becomes incompetent and liable to be disregarded by this court – See KJA O. v. Musa Yar’Adua & 70rs. Appeal No. CA/A/EP/GOVT/2003 (unreported); Mohammed v. Klargester (Nig.) Ltd. (1996) 1 NWLR (Pt. 422) 54; N.A.A. v. Okoro (1995) 6 NWLR (Pt. 403) 510.
The 1st, 2nd and 4th respondents did not file a brief before us and did not give any reasonable explanation for their failure to do so.
In the absence of any respondent brief this appeal will be determined solely on the appellants’ brief as provided by the provision of Order 6 rule 9(5) of the Court of Appeal Rules, 2002, and the facts and argument therein accepted.
It is for the above and the more elaborate reasons in the lead judgment that I will allow this appeal.
I also abide by the consequential orders therein including orders as to costs.
CHRISTOPHER M. CHUKWUMA-ENEH, J.C.A.: I have read the lead judgment in this matter by Omage, JCA and I agree with the reasoning and conclusions therein.
This appeal arose out of the ruling given by the Nasarawa State National Assembly Governorship/Legislative Houses Election Tribunal consequent upon the notices of motion filed by the 3rd and 4th respondents and the striking out of the appellant’s petition on grounds of incompetence (the two sets of respondents are to be clearly identified later).
Mr. I. K. Bawa for the 2nd, 5th to 86th respondents otherwise known herein as the 1st set of respondents filed no brief at all. They did not file any motion for leave to file their brief out of time rather he applied orally for adjournment to enable the 1st set of respondents attend to matters of their brief as the external solicitors to whom the exercise of representing them in the appeal had defaulted in filing a brief on their behalf.
Confronted with the time frame to file a brief under the Practice Direction and the constraint in election matters generally and in the instant matter particularly, that is 3 days allowed after service of the appellant’s brief, Mr. Bawa applied to withdraw both applications for adjournment and time to file their brief.
Mr. I. Hamman for the 3rd respondent (otherwise known as the 2nd set of respondents) referred to their brief of argument filed on 3/9/03, clearly out of time having been served the appellant’s brief on 12/8/03. Learned counsel was totally bemused by the mini melodrama surrounding their brief, as he confessed being unaware of the Practice Direction No.2 dated 15th April, 2003 let alone paragraph 7 of the same requiring a respondent as the instant 3rd respondent to file a brief within 3 days of service of the appellant’s brief. There was no motion before the court to regularise the brief filed out of time nor was oral application to that effect made to the court. Learned counsel however applied for time to put their house in order. The application was refused in view of the time constraint in this matter.
Mr. Anikwem for the appellants having identified their brief of argument filed on 11/8/03 adopted the same and proceeded to highlight some points to the effect that running mates of the 1st appellant and the 3rd respondent not being necessary parties as contemplated in the Election Act, 2003 were not joined in the petition as parties. He referred to section 133(2) of the Electoral Act, 2002 and the case of Buhari v. Yusufu (2003) 4 NWLR (Pt. 841) 446 to buttress the point. On the 3rd respondent and the brief filed out of time on 3/9/03, Mr. Anikwem submitted that the said brief is incompetent having been filed out of time and relied on paragraph 7 of Practice Direction No.2 of 15th April, 2003 and the case of Mohammed v. Klargester (Nig.) Ltd. (1996) 1 NWLR (Pt. 422) 54 at 61 E.F.. He also referred to the case of N.A.A. v. Okoro (1995) 6 NWLR (Pt. 403) 510 at page 523 paragraph G to show that parties and counsel ignore Practice Directions at their peril. Relying on Order 6 rule 10, learned counsel submitted that the appeal be heard on their brief alone and that the respondents had to be deemed to have accepted the case for the appellants. The court was urged to allow the appeal and remit the petition to the tribunal to hear on the merits.
Before delving into the main appeal, I think it is proper to reflect on the consequences of failure of the respondents to file their briefs as postulated in Order 6 rule 10 of the Court of Appeal Rules, 2002 which is thus:
“… If the respondent fails to file his brief, he will not be heard in oral argument except with leave of court”.
It must be restated that the matter being an election petition which apart from the peculiar features of the action making it sui generis the need for urgency on electoral matters has made time of the essence. The time for filing briefs in an election petition is governed by the Court of Appeal Rules within the leeway allowed it by the Practice Direction usually issued to regulate appeals coming to the court, in this instance the relevant one is Practice Direction No.2 of 15/4/03 and paragraph 7 of the same provides:
“7. Respondent shall file in the court and serve on the appellant his own brief within 3 days after services in accordance with paragraph 5 above.”
(Italics for emphasis)
The 1st set of respondents I must reiterate filed no brief. They made oral applications for adjournment and to be allowed time to file their brief, both applications were refused. As for the 3rd respondent he filed a brief out of time and to that extent irregular. There can be no doubt as stated by Uwais, JSC (as he then was) in Nwankwo v. Attah (1999) 5 NWLR (Pt. 601) 134: that, “As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of procedural cogs that cause delay in the disposition of substantive disputes” hence the relevant rules are issued in mandatory forms.
However, the court in dealing with paragraph 7 of this Practice Direction No.2 of 15/4/03 is evidently dealing with rule of court.
And it is settled that non-compliance with the rules of court has to be regarded as mere curable irregularity. In other words in normal circumstances i.e. in ordinary civil cases court’s discretionary power to grant extension of time to file brief of argument is unfettered although such a discretion has to be exercised judiciously and judicially if the exceptional circumstances for being out of time are established to the court’s satisfaction. But in election matters as the instant one the use of the word shall in paragraph 7 of the Practice Direction in regulating filing of the respondent’s brief connotes mandatory direction that has to be complied with exactly.
The instant Practice Direction has gone further to provide in paragraph 9(d) that no oral argument will be heard on behalf of respondent of whom no brief has been filed. Worse still in the instant matter the 3rd respondent filed no motion before the court to regularise the said brief and so in the absence of setting out exceptional circumstances which have to be deposed to in the supporting affidavit to the motion for being out of time, there is little or nothing by way of materials before the court to act upon. Courts are not known to accede to such matters in vacuous. The case for the 3rd respondent was made more parlous by his learned counsel’s acknowledgement of being unaware of the applicable Practice Direction No.2 of 15/4/03 to this matter.
Thus provoking the response that ignorance of the law is no excuse.
Besides, it would with respect seem naive not to contemplate that by granting extension of time to file the said brief, the appellants would want time to file a reply to the 3rd respondent’s brief thereby occasioning undue delay in the hearing of the matter.
Reverting to the instant appeal, the point has to be made that the mere fact that the appeal rests on the appellants’ brief alone does not make the appellants’ success in the appeal a foregone conclusion as the court is still obliged to come to a decision on the appeal after due consideration of all the issues raised in the brief. This aspect of the matter has been adequately treated in the lead judgment.
With these few comments, I couldn’t agree more that the appeal is meritorious and should be allowed and I abide by the orders made in the lead judgment.
STANLEY SHENKO ALAGOA, J.C.A.: The 4th respondent was served with the appellants’ brief but failed to file any written brief. The 1st, 2nd and 5th – 86th respondents were also served but failed to file any written brief. Their counsel I. K. Bawa belatedly sought for an adjournment to bring an application for extension of time to file written brief out of time but withdrew same. Perhaps, the most pitiable of the respondents was the 3rd respondent who had filed what was undoubtedly a thoroughly researched brief but had done so out of time. The appellants brief was served on the 3rd respondent on the 12th August, 2003.
The 3rd respondent filed his brief on the 3rd September, 2003. The Practice Direction No.2 of 2002 made by the President of the Court of Appeal and dated 15th April, 2002 provides for a period of three days within which the respondent is to file his brief and the said brief having been so filed out of time is incompetent. What we therefore find is a situation in which none of the respondents has filed a brief. This appeal has thus been heard and determined solely on the brief filed by the appellants.
It is for this and the other reasons given by my learned brother Omage, JCA, in his lead judgment which I have read before now that I allow the appeal. I also abide by all the consequential orders contained in the lead judgment including orders as to cost.
Appeal allowed.
Appearances
Edwin Anikwem, Esq. (with him, Emmanuel Obile, Esq.) For Appellant
AND
Ibrahim Hamman, Esq. (with him, M.L. Jalanda, Esq., T.S. E
Padabson, Esq. and O.G. Akaaka, Esq.)
I.K. Bawa, Esq. For Respondent
