SENATOR JOHN JAMES AKPANUDOEDEHE & ORS. v. GODSWILL OBOT AKPABIO & ORS.
(2011)LCN/4735(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of September, 2011
CA/C/NAEA/GOV/173/2011
RATIO
PRELIMINARY OBJECTION: DUTY OF THE COURT TO CONSIDER FIRST THE PRELIMINARY OBJECTION TO THE COMPETENCE OF AN APPEAL WHEN RAISED
A preliminary objection to the competence of an appeal is an impediment which the court must clear before going into the nitty gritty of the appeal itself. The law is settled that whenever a preliminary objection is properly raised attacking the competence of a ground of appeal or the appeal itself, it should be considered and determined or resolved first by the appellate court at the preliminary or initial stage before going into the merits of the appeal. See N. N. B. Plc v. Imonike (2002) 5 NWLR (Pt. 760) 294; Nigerian Navy v. Garrick (2006) 4 NWLR (Pt. 969) 69. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
GROUND OF APPEAL: EFFECT OF A GROUND OF APPEAL THAT NO ISSUE HAS BEEN FORMULATED OR DISTILLED FROM
The position of the law has been rightly stated that a ground of appeal in respect of which no issue has been formulated is deemed to have been abandoned and it must be struck out. Put differently, grounds of appeal which are not related to issues for determination in an appeal are deemed to have been abandoned. see Aromolaran v. Kupoluyi (1994) 2 NWLR (Pt.325) 221; Ngilari v. Mothercat Ltd. (1995) 8 NWLR (pt.311) 370 Dahiru v. Kamale (2005) 9 NWLR (pt.929) 8; Ochin v. Akpechi (2000) 5 NWLR (pt.656) 225; Nkado v. Obiano (1997) 5 NWLR (pt.503) 31. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
CONSEQUENTIAL ORDER/RELIEF: CIRCUMSTANCE UNDER WHICH A COURT WILL GRANT AN ORDER NOT SOUGHT FOR BY A PARTY BEFORE IT
The law is settled that no court has the power or the jurisdiction to grant a relief not sought by a party before it. A court is however, entitled to make orders that are consequent upon a valid judgment, ruling or any decision and which are to give effect or value to the order of court. These are consequential or incidental orders that naturally, follow, or flow from the decision and to strengthen the relief claimed: See Fabiyi v. Adeniyi (2000) 6 NWLR (pt. 662) 532; Bogban v. Diwhre (2005) 16 NWLR (Pt. 951) 274. Additionally, the appellants have however not established any miscarriage of justice occasioned by that pronouncement by the tribunal. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
INTERPRETATION OF STATUTE: NON-COMPLIANCE WITH THE PROVISIONS OF PARAGRAPH 18 (1) AND (2) OF FIRST SCHEDULE TO THE ELECTORAL ACT, 2010
Paragraph 18 (1) and (2) of First Schedule to the Electoral Act, 2010 makes it mandatory that the petitioner must apply for pre – hearing notice within 7 days after he has filed and served a reply to the respondent’s reply or after he has been served with the reply of the respondent, as the case may be. The respondent has the option to either apply for pre-hearing notice, if is still within time or seeking the dismissal of the petition where the petitioner fails or omits to apply within time. The consequences of the failure to apply by any of the parties as stated in sub – paragraphs 3 and 4 of Paragraph 18 is that the petition will be treated as abandoned and, dismissed by the tribunal. A petitioner who fails to comply with Paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended) takes the blames for non – compliance and suffers the attendant consequence of dismissal of his petition. No more no less. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
STATUTORY PROCEDURE: WHERE THE LAW PROVIDES A MODE OF CARRYING OUT A PARTICULAR STEP WHETHER IT CAN ONLY BE DONE AS SPECIFICALLY PROVIDED BY THE LEGISLATURE NO MATTER HOW HARSH, HARD, PAINFUL OR EVEN ABSURD THE LAW MIGHT SEEM
Rules of Court are meant to be obeyed and where the law provides a mode or means of carrying out a particular duty or step, it must be done as specifically provided by the legislature no matter how harsh, hard, painful or even absurd the law might seem or sound. Indeed, if the law provides the mode for doing an act, it stands to reason to expect that the act can only be considered as having been properly done, if it is preformed in the way and manner prescribed by the law. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
JA’FARU MIKA’ILU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. SENATOR JOHN JAMES AKPANUDOEDEHE
2. DR. IME SAMPSON UMANAH
3. ACTION CONGRESS OF NIGERIA (A.C.N.) Appellant(s)
AND
1. GODSWILL OBOT AKPABIO
2. NSIMA EKERE
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Governorship Election Tribunal (hereinafter called the tribunal) sitting at Uyo, Akwa Ibom State, contained in the ruling delivered on 18th July, 2011 wherein the tribunal granted the 1st and 2nd respondents’ motion for dismissal of the appellant’s petition among other order sought therein.
The appellants as petitioners filed Petition No. EPT/AKS/15/2011 on 16th May, 2011 to challenge the declaration and return of 1st and 2nd, respondent by the 4th respondent as winners of the governorship election, held on 26th April, 2011 in Akwa Ibom State Nigeria and as the elected Governor and Deputy Governor respectively of the State.
Upon service of the petition, the respondents filed their respective replies to the petition whereafter the appellants as petitioners applied for issuance of pre – hearing notice vide their letter dated 17th June, 2011 but filed on 27th June, 2011. The tribunal’s Secretary issued pre – hearing session notice on 29th June and the pre – hearing session was fixed for 5th July, 2011. It is to be noted that on the same 27th June, 2011, the petitioners filed an application by way of motion ex – parte for issuance of pre – hearing notice. The said Motion ex – parte was set down for hearing by the tribunal on 5th July, 2011; the application was granted and another set of pre – hearing notices were issued and served on all the parties. Pre – hearing session was then fixed for 14th July, 2011. Howbeit, on 11th July, 2011 the 1st and 2nd respondents filed a motion on notice, wherein they sought the following reliefs.
“1. An Order setting aside the Pre-hearing Notice dated 29/06/2011 and served on the 1st and 2nd Respondents in this Petition.
2. An Order setting aside the proceedings of this Honourable Tribunal of 05/07/2011 as a whole and in particular, the ex – parte motion of the Petitioners dated 27/06/2011, which was moved and granted.
3. An Order setting aside the ex- parte Order of this Honourable Tribunal granting leave to issue and serve Pre – hearing Notice in this Petition.
4. An Order dismissing this Petition in its entirely, same having been abandoned as envisaged by paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended).”
The motion described above was heard by the tribunal on 15th July, 2011 and the reliefs sought therein were granted in the ruling delivered on 18th July, 2011. The tribunal ordered as follows:
“2. The motion on behalf on the 1st and 2nd respondents dated the 11th day of July, 2011 and filed on the same day is hereby allowed in orders:
(i) Discharging the order ex – parte made by this tribunal on the 5th day of July, 2011 and setting same aside
(ii) Dismissing the substantive petition No. EPT/AKS/GOV/15/2011 between the parties.
(iii) Affirming the return of the 1st respondent, Godswill Obot Akpabio, as the Governor of Akwa Ibom State in the election that was conducted throughout the State on the 12th day of April, 2011 by the 4th respondent, the Independent National Electoral Commission (INEC).
This shall also be the judgment of the tribunal in the petition.
(SGD)
HON. JUSTICE ADAM O. ONUM
(CHAIRMAN)
18/7/2011
(SGD)
HON. JUSTICE LATEEF LAWAL – AKAPO
(MEMBER)
HON. JUSTICE AJOKE S. ADEPOJU
(MEMBER)
18/7/2011
The petitioners (hereinafter called the appellants) who felt dissatisfied with the decision of the tribunal filed their notice and grounds of appeal on 23rd July, 2011, wherein they raised ten grounds of appeal with the particulars stated therein. In pursuance of the appeal, the appellants brief of argument which was settled by Kola Awodein SAN was filed on 11th August, 2011. Six issues were formulated in the brief as follows:
“(i) Considering Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), is the unsigned judgment of the Tribunal delivered on 18th July, 2011 valid and not liable to be set aside?
(Distilled from Ground 1 of the Notice of Appeal)
(ii) Whether the Tribunal was right in dismissing the petition on the ground that the Appellants’ failure to seek and obtain leave of the Tribunal to move the application for issuance of pre – hearing Notice rendered the proceedings a nullity thus making the petition liable to being dismissed as an abandoned petition (Distilled from Grounds 3, 4, 5, and 10 Notice of Appeal)
(iii) Whether the Tribunal was right in holding that there was no valid application for pre – hearing notice as at the date of the Ruling and in dismissing the petition. (Distilled from Ground 8 of the Notice of Appeal)
(iv) Whether the Honourable Tribunal was right in not holding that the Respondents’ motion was incompetent on the basis that the Respondents had waived their purported right to challenge the Appellant’s application of the 5th of July, 2011 (Distilled from Ground 9 of the Notice of Appeal)
(v) Whether the Honourable Tribunal was right in not dismissing the 1st and 2nd Respondents’ application dated 11th July, 2011 (Distilled from Ground 7 of the Notice of Appeal)
(vi) Whether or not the Learned Justices of the Tribunal were right when their Lordships gratuitously affirmed the return of the 1st Respondent as the Governor of Akwa Ibom State in the Election that was conducted on the 26th of April, 2011 where no such relief was sought by either party in the application before the Tribunal. (Distilled from Ground 6 of the Notice of Appeal).”
The 1st and 2nd respondents filed their brief of argument on 19th August 2011. It was prepared by Chief Bayo Ojo SAN. They raised preliminary objection to the competence of the appeal and urged this Court some of the grounds of appeal therein. The grounds for the preliminary objection as stated on page 2 of the brief are as follows:-
“1. Ground 2 of the grounds of appeal has been abandoned, as no issue has been distilled therefrom.
2. Grounds 1, 2, 3, 4, 5,7,8, 9, and 10 of the grounds of appeal are grossly incompetent as the Appellants have failed abysmally to quote the Ruling/ Judgment alleged as error in law.”
Argument on the preliminary objection is on pages 2 to 6 of the brief while argument in the alternative is on pages 6 to 34 of the brief. The 1st and 2nd respondents formulated the following four issues for determination of the appeal. They are:
i. Whether the ruling/judgment of the trial tribunal can by any stretch of reasoning be held to be unauthenticated (Ground 1 of the Grounds of Appeal)
ii. Whether upon a proper construction of the provision of paragraph 18 (1), (2) and Paragraph 47 (1) and (2) of the First Schedule to the Electoral Act, 2010, the trial Tribunal is right in dismissing the Petition on the ground that the Appellant failed to seek and obtain the leave of the Tribunal to move the application for issuance of pre -hearing notice. (Grounds 3, 4, 5, 8, and 10 of the Grounds of Appeal)
iii. Whether the Honourable trial Tribunal was right in acting upon the 1st and 2nd Respondents’ motion dated and filed on 11th July, 2011. (Grounds 7 and 9 of the Grounds of Appeal)
iv. Whether the Honourable trial Tribunal was right it affirmed the return of the 1st Respondent as the Governor of Akwa Ibom State in the election that was conducted on the 26th day of April, 2011. (Ground 6 of the Grounds of Appeal).”
On behalf of 3rd Respondent, the brief of argument was settled by Adekunle Oyesanya Esq. and filed on 22nd August, 2011. Five issue were raised for determination in the appeal as follows:-
“(a) Whether or not section 294(1) of the 1999 Constitution (as amended) is relevant to the judgment? (Ground 1)
(b) Whether or not the Tribunal considered the particular issue of the timeousness of the 1st and 2nd Respondents application to dismiss the petition raised by the Appellants in their Written Address in opposition to the said application? (Ground 2)
(c) Was the Tribunal right to have dismissed the petition for the failure of the Appellants to seek and obtain leave to move their application for issuance of pre-hearing notice? (Grounds 3, 4, 5 and 8)
(e) Is the Tribunal’s Order affirming the election of the 1st Respondent not a consequential Order in the circumstances? (Ground 6)
The 4th respondent’s brief of argument was prepared by Dr. Onyechi Ikpeazu SAN, OON It was filed on 16th August, 2011. The 4th Respondent posited that the two issues for determination of the appeal are as follows:
1. Whether the Appellants have established that the decision of the Tribunal was not authenticated by the learned Judges of the Tribunal. Ground 1.
2. Whether the Tribunal adequately considered the provisions of the Electoral Act, 2010 (as amended) and the Federal holding High Court Rules in that the Tribunal acted without jurisdiction on 5th July, 2011 when it heard the Appellant’s motion and purported to make an order setting the Petition down for pre-hearing session. Grounds 2, 3, 4, 5, 6, 7, 8, and 10.”
In response to the briefs of the respondents, the appellants, filed reply briefs. Appellants’ reply brief to 1st and 2nd respondents preliminary objection and brief of argument and the appellant reply brief to the 3rd respondent’s brief of argument were filed on 26th August, 2011 while appellants, reply brief to the 4th respondents, brief of argument was filed on 19th August, 2011.
At the hearing of the appeal before us, all the learned counsel for the parties canvassed arguments in support of the issues formulated in the briefs as mentioned above. The 1st and 2nd respondents in the appeal expressed their dissatisfaction with part of the same decision of the tribunal by filing a notice of cross appeal on 30th July, 2011 where they raised two grounds of appeal and in the cross appellants brief settled by Chief Bayo Ojo, SAN and filed on 19th August, 2011 the following two issues were formulated for determination of the cross appeal;
“a) whether upon a proper construction, the word “shall” immediately preceding the phrase “be served on the respondent” at paragraph 47 (2) of the First Schedule to the Electoral Act, 2011 (as amended) can be said to be merely directory and not mandatory. (Ground 2 of the grounds of Cross Appeal).
b) Whether taking into consideration the provision of paragraph 47 (1) of the First Schedule to the Electoral Act, 2010 (as amended), the application required by paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (as amended) can be made ex parte. (Ground 1 of the grounds of cross appeal)”
Argument canvassed in support of these issues is on pages 3 to 19 of the cross appellants’ brief of argument.
The appellants as cross respondents filed the cross respondents brief of argument on 26th August, 2011. They formulated two issues for determination of the cross appeal as follows:
“1. Whether the Honourable Tribunal was right in relying on the case of Riruwai v. Shekarau in holding that the application contemplated under paragraph 18 (1) of the 1st Schedule to the Electoral Act, 2010 (as amended) could be ex-parte.
2. Whether the word shall which occur in paragraph 47 (2) of the 1st Schedule to the Act is directory or mandatory.”
A preliminary objection to the competence of an appeal is an impediment which the court must clear before going into the nitty gritty of the appeal itself. The law is settled that whenever a preliminary objection is properly raised attacking the competence of a ground of appeal or the appeal itself, it should be considered and determined or resolved first by the appellate court at the preliminary or initial stage before going into the merits of the appeal. See N. N. B. Plc v. Imonike (2002) 5 NWLR (Pt. 760) 294; Nigerian Navy v. Garrick (2006) 4 NWLR (Pt. 969) 69.
In the instant appeal although the 1st and 2nd respondents, stated that their objection relates to the competence of the appeal, it is apparent that the preliminary objection relates to the abandonment of ground 2 and incompetence of grounds 1, 2, 5, 4, 5, 6, 7, 8, 9, and 10 thereof. It was argued that the appellants formulated issues from grounds 1, 3, 4, 5, 6, 7, 8, 9, and 10 of the grounds of appeal, but no issue was raised from ground 2 thereof. The 1st and 2nd respondents’ argument that no issue was raised from ground 2 and the ground of objection is derivable from the issues set out at pages 3 – 4 of the appellants brief wherein no reference was made to ground 2 as having generated any issue. A cursory reference was made to ground 2 under the argument of Issue 2 at page 6 of the brief. However ground 10 mentioned under issue 2 at page 4 is excluded under issue 2 at page 6 of the brief. Specifically, ground 2 is a complaint that the application filed by 1st and 2nd respondents on 11th July, 2011 seeking the dismissal of the petition was incompetent not having been brought within reasonable time after close of pleadings. This complaint has no material link with issue 2 and cannot be said to have been argued thereunder. The position of the law has been rightly stated that a ground of appeal in respect of which no issue has been formulated is deemed to have been abandoned and it must be struck out. Put differently, grounds of appeal which are not related to issues for determination in an appeal are deemed to have been abandoned. see Aromolaran v. Kupoluyi (1994) 2 NWLR (Pt.325) 221; Ngilari v. Mothercat Ltd. (1995) 8 NWLR (pt.311) 370 Dahiru v. Kamale (2005) 9 NWLR (pt.929) 8; Ochin v. Akpechi (2000) 5 NWLR (pt.656) 225; Nkado v. Obiano (1997) 5 NWLR (pt.503) 31. It is correct to state that grounds 2 was truly abandoned since no issue was distilled therefrom. It is accordingly struck out. see onafide v. olayiwola (1990) 11 SCNJ 10.
On the second leg or ground of objection, the 1st and 2nd respondents have not in anyway demonstrated how the failure to quote passages of the ruling where the alleged errors occurred, prevented them or this court from clearly discerning those portions of the said ruling in respect of which complaints have been raised by the appellants. They have also not shown any miscarriage of justice which this failure had, or has, or may have occasioned to them, considering particularly that they have argued this appeal in alternative to the preliminary objection. Thus, I do not find ground 2 of objection sustainable and it is overruled and struck out accordingly. Consequently grounds 1, 3, 4, 5, 6, 7, 8, 9, and 10 of the grounds of appeal are lawful, legal, sustainable and sustained together with the issues distilled therefrom.
I have read and compared the issues formulated by the parties as quoted above and I have resolved to examine, consider and determine this appeal on the six issues formulated by the appellants which I believe to be more apt and apposite.
Issue No. 1 is about the validity of the tribunal’s ruling delivered on 18th July, 2011 which led to this appeal. The appellants had contended that the ruling was unsigned and thus invalid, null and, void. They relied others on decisions of Awoniyi v. Aleshinloye (1998) 9 NWLR (pt. 564) 72 and Adefarasin v. Dayekh (2007) All FWLR (pt.348) 911.
The 1st and 2nd respondents and indeed all the respondents argued to the contrary. The 1st and 2nd respondents who also made authentication of the tribunal’s ruling an issue, posited that a duly signed copy of the ruling appealed against was forwarded to this Court among other documents from the tribunal and this had put the authenticity of the said ruling beyond doubt. The 3rd respondent and the 4th respondent also argued that the genuiness or authenticity of the ruling cannot be impugned.
It suffices to state here that in the course of hearing of this appeal, we called for the manuscript of the said ruling as transmitted by the tribunal to this court. Having seen or sighted the tribunal’s record of proceeding, which was done during the hearing of this appeal in the open court, I am of the firm view point that issue No. 1 raised in appellants’ brief is of no moment. It was evident that the record/ruling was duly signed by majority of the judges of the tribunal putting it beyond doubt that it was authentic, genuine, legitimate and therefore valid. We therefore accept the ruling as valid. Both the parties and the court are bound by the record of appeal, unless it is successfully challenged.
The next is issue No.2 which is whether the tribunal rightly dismissed the petition for failure of the appellants to seek and obtain leave to move the application for pre-hearing notice and thereby reduced the proceedings to a nullity. Rightly in the view of this Court, Professor Osinbajo, SAN described this issue as the core or cornerstone of this appeal. All the other issues revolve around it. I therefore deem it proper to resolve this issue after other issues as it might become necessary to do so.
The appellants argued issues 3 and 5 together in their brief of argument.
The questions posed by those issues centre on the existence or otherwise of a valid application for pre-hearing notice as at 18th July, 2011 when the ruling now in contention was delivered and the refusal by the tribunal to dismiss the 1st and 2nd respondents’ application dated 11th July, 2011.
Although couched as they are, these Issues can still conveniently be taken with issue 2 and I will resolve them with the said Issue 2 accordingly.
Issue No.4 is that the tribunal ought to have held that the respondents’ motion was incompetent in that they had waived, their right to challenge the appellants’ application of 5th July, 2011. The appellants argued that the 1st and 2nd respondents filed their application to set aside the pre – hearing notice and to dismiss the petition since they were present and or after participating in the pre – hearing session on 5th July 2011. They referred to Paragraph 53 (2) of the First Schedule to the Electoral Act, 2010 as amended and submitted that the 1st and 2nd respondents had waived any right they have to object to any alleged or perceived irregularity since they failed to raise their objection timeously, having waited for a period of six days after the proceedings, before they sought the order to set aside the same. Appellants submitted that a period of six days was unreasonable in the circumstances, this being an election petition. This unreasonable delay precluded the tribunal from exercising jurisdiction to entertain the application as the appellants further argued.
The above Issue 4 tallied with Issue 3 in the 1st and 2nd respondents’ brief. On this issue, the 1st and 2nd respondents argued that though they were present on 5th July, 2011, they could not have been heard in respect of appellants’ ex – parte application as they could only be seen and not be heard. They relied on Seven – Up Bottling Company v. Abiola & Sons Ltd. (1993) 2 SCNJ 37. The 1st and 2nd respondents argued also that six days cannot be viewed as unreasonable delay or to amount to d waiver of their rights, particularly when they did not take step after having knowledge of the defect complained of. They made reference to relevant pages of the record of appeal.
The proceedings of 5th July, 2011 are on pages 14538 – 14539 of record of appeal. I have perused the said proceedings. It is gleaned therefrom that though 1st and 2nd respondents were recorded as having been present or represented by counsel, they did not participate thereat. It can also be gathered from the record, that it was only the appellants’ motion ex parte for issuance of pre – hearing notices that was heard and no pre-hearing session was conducted on 5th July, 2011. As to whether the 1st and 2nd respondents waited for too long and thereby waived their right, it is also in the record that upon the grant of appellant’s motion ex -parte, pre – hearing session was fixed for 14th July, 2011. Thus, it cannot be said, that the 1st and 2nd respondents who filed their motion to set aside the proceedings before the 14th July, 2011; precisely on the 11th July, 2011 delayed unreasonably. This issue is a straight battle between the appellants and the 1st and 2nd respondents and it is my firm viewpoint and I resolve
accordingly that there was noun reasonable delay. Additionally, that the tribunal had jurisdiction to entertain the motion of 1st and 2nd respondents and was not precluded from hearing the same.
Issue No. 6 in the appellants’ brief is whether the tribunal rightly “affirmed” the return of 1st respondent as Governor of Akwa Ibom State.
The appellants are right that such a relief was not sought by any of the parties in their motions and the granting of that relief was done gratuitously by the tribunal. The law is settled that no court has the power or the jurisdiction to grant a relief not sought by a party before it. A court is however, entitled to make orders that are consequent upon a valid judgment, ruling or any decision and which are to give effect or value to the order of court. These are consequential or incidental orders that naturally, follow, or flow from the decision and to strengthen the relief claimed: See Fabiyi v. Adeniyi (2000) 6 NWLR (pt. 662) 532; Bogban v. Diwhre (2005) 16 NWLR (Pt. 951) 274. Additionally, the appellants have however not established any miscarriage of justice occasioned by that pronouncement by the tribunal.
Now to Issues 2, 3, and 5 together, as stated earlier. These are core, issues which deal with the decision of the tribunal to dismiss the petition upon the motion of the 1st and 2nd respondents. The 1st and 2nd respondents had contended by their motion that no application known to law was filed by the appellants before the tribunal issued pre – hearing notices. The argument was whether leave was required for the appellants to obtain the order of court for issuance of pre – hearing Notices.
In this appeal the appellants’ submission is that the tribunal, fell into error of law by deciding that the appellants required leave of the tribunal to move their application for issuance of pre – hearing notice by virtue of Paragraph 47 (1) of the First schedule to the Electoral Act, 2010. The material argument of the 1st and 2nd respondents is that the appellants required leave under Paragraph 47 (1) and that the tribunal had a discretion in the granting or refusal of such an application depending on the particular and peculiar circumstances of each case.
The argument of the 3rd respondent is that the appellants who had jettisoned or abandoned their previous application by letter and opted for the same application by way of motion ex -parte cannot pick and choose which of the provisions of the First Schedule to obey and which to disobey.
The 3rd respondent argued that the appellants who came to the tribunal under the cover of Paragraph 47 (2) cannot disobey, or ignore the provisions of Paragraph 47 (1) which requires that a party must seek and obtain leave.
Paragraph 18 (1) and (2) of First Schedule to the Electoral Act, 2010 makes it mandatory that the petitioner must apply for pre – hearing notice within 7 days after he has filed and served a reply to the respondent’s reply or after he has been served with the reply of the respondent, as the case may be. The respondent has the option to either apply for pre-hearing notice, if is still within time or seeking the dismissal of the petition where the petitioner fails or omits to apply within time. The consequences of the failure to apply by any of the parties as stated in sub – paragraphs 3 and 4 of Paragraph 18 is that the petition will be treated as abandoned and, dismissed by the tribunal. A petitioner who fails to comply with Paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended) takes the blames for non – compliance and suffers the attendant consequence of dismissal of his petition. No more no less.
In the instant case, the appellants firstly initiated their application for issuance of pre -hearing session and scheduling by writing a letter. They subsequently filed a motion, ex-parte which by express implication amounts to an abandonment of the previous application by a letter that much was also stated before us. It is thus obvious that the appellants must accept the conditions or terms laid down by the Electoral Act to be satisfied by an applicant with an application brought by way of a motion be it ex – parte or on notice.
Now, Paragraph 47 of the First Schedule to the Electoral Act, 2010 in general terms provides for motions and applications. Specifically, Paragraph 47 (1) prohibits in express terms the moving of; any motion before the pre – hearing session, except with leave of court or tribunal in extreme circumstances. For the avoidance of doubt paragraph 47 (2) provides as follows:
“(2) Where by these Rules any application is authorized to be made to the Tribunal of Court such application shall be made by motion which may be supported by affidavit and shall state under what rule of law the application is brought and shall be served on the respondent;” (Emphasis added)
Regarding paragraphs 18 and 47 (supra), it is a basic rule of statutory interpretation that where the words of a statute are clear and unambiguous, those words shall be construed so as to give effect to their natural or literal meaning from the words as used, because that will be in the interest of justice. See Yusufu v. Obasanjo (2003) 16 NWLR (pt.847) 532. Nothing is to be added which has not been included or taken out when it has been included. No addition. No subtraction. See okumagba v. Egbe (1965) 1 All NLR 62 Ogbuanyinya v. Okuda (1979) 6 -9 SC 32. Construction of statutes must be purposive with the adoption of a holistic approach.
It is to be noted, that the above provision has sufficient similarity with paragraph 6 of Practice Directions 2007 which also states that all motions shall come up at pre – hearing session, except in extreme circumstances with leave of tribunal or court. On the provision of Paragraph 6 (1) of practice Directions, 2007 the Supreme court stated the position in Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100) 95 at 120 thus;
“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.”
In the instant case, we have verified from the records and it is clear that on 5th July, there was no pre – hearing session; the application therefore having been overtaken by the motion ex -parte subsequently filed by the appellants. That motion ex -parte which gave rise to the issuance of another set of notices for pre – hearing fixed for 14th July, 2011 was, therefore moved before pre – hearing session since it gave birth to, pre hearing. The appellants who filed a motion under Paragraph 47(2) must comply with Paragraph 47 (1) of the First Schedule by seeking and obtaining leave of court to move their motion ex -parte.
Rules of Court are meant to be obeyed and where the law provides a mode or means of carrying out a particular duty or step, it must be done as specifically provided by the legislature no matter how harsh, hard, painful or even absurd the law might seem or sound. Indeed, if the law provides the mode for doing an act, it stands to reason to expect that the act can only be considered as having been properly done, if it is preformed in the way and manner prescribed by the law. That to my mind won’t amount to asking too much, because to do otherwise will amount to lowering of set standards and a breach of statutory provisions – substantive or procedural. I do not perceive anything which is technical or unjust in the demand for compliance with requirements of the law. This is more so, because there should be no arbitrary shifting of the goal posts after the game has commenced. Indeed, certainty and predictability are essential components of the law. The law remains what it is, that is, the law. The court or tribunal for whatever reasons does not enjoy the liberal levity, license or luxury of ameliorating the harshness of the law or its outcome. Until it is amended, the law remains valid, binding and subsisting on all parties who invoke it. In the construction of statues, the necessary intendment of the legislature must be given effect and reckoned with at all times.
In my view, the appellants’ failure to comply with paragraph 47 (1) was fatal to the success or even existence of their application and the order granted or made thereupon. It was as good as not applying for pre-hearing and the tribunal cannot be faulted for invoking paragraph 18(4) of the First schedule to the Electoral Act, 2010 (as amended) by treating the petition as having been or deemed abandoned and dismissing the same.
From the foregoing the issues in this appeal as formulated and argued by the appellants and adopted or argued by the respondents are resolved against the appellants.
Let me state that having found so far in respect of the appeal, that the cross appeal by the 1st and 2nd respondents as cross appellants which raised two issues was also considered in the course of preparing this judgment. I had earlier on in this judgment reproduced the two issues in the cross appeal. The appellants/cross respondents’ two issues had also been reproduced. In view of the resolution of the issues in the appeal having been made in favour of the respondents, the cross appeal has become a mere academic exercise and requires no further consideration by me in this judgment.
In the premise and in conclusion, the appeal lacks merit and it is dismissed. I make no order as to costs.
JA’AFARU MIKA’ILU, J.C.A.: I have read the lead judgment of my learned brother M.A. Oredola, JCA. I agree with the reasons in it and the conclusion reached. I also agree that the cross appeal has become a mere academic exercise. The appeal is dismissed a lacking in merit.
I make no order as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the draft of the lead judgment of my learned brother, Massoud Abdulrahman Oredola, JCA. I am in agreement with the reasons adduced in the lead judgment and the conclusion that there is no merit in this appeal. I therefore dismiss the appeal without awarding costs.
Appearances
Prof. Oluyemi Osinbajo, SAN with Doyin Ewedemi Esq., and Abimbola Ojenike Esq.For Appellant
AND
Chief Bayo Ojo, SAN with Adebayo Adenipekun, SAN, Chief Duro Adeyele, SAN, Chief Victor Iyanam, Uwemedimo Nwoko, Esq., Oluwashina Ogungbade, Esq., Salman A. Salman, Esq., Edgerton Onah, Esq., Alex Owoeye, Esq., Utibe Nwoko, Esq and O. Agbo, Esq.,
Adekunle Ogesanya, Esq., with Dominic Okon, Esq., Edet Bassey, Esq. and Emmanuel Akpan, Esq. (for the 3rd Respondent)
Ben Osaka Esq., with Jacob Akpong Esq. and Imabong I. John (Mrs) (for the 4th Respondent)For Respondent
