SIR CELESTINE OMEHIA & ANOR v. R. T. HON. CHIBUIKE ROTIMI AMAECHI & ORS.
(2011)LCN/4752(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of September, 2011
CA/PH/EPT/9/2011
RATIO
STARE DECISIS: EXCEPTIONS TO THE RULE THAT AN APPEAL COURT IS BOUND TO FOLLOW ITS OWN PREVIOUS DECISIONS AS WELL AS THOSE OF COURT OF CO-ORDINATE JURISDICTION
On a careful examination of the whole matter we have come to the clear conclusion that this Court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (Two of them apparent only) are these already mentioned which for convenience we here summarize. (i) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow (ii) The court is bound to refuse to follow a decision of its own which though not expressly overruled cannot in its ganion stand with a decision of the House of Lords (iii) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuram.” It needs be stated at this juncture that YOUNG V. BRISTOL AEROPLANE CO LTD (supra) is an English Court of Appeal decision which is of mere persuasive authority. See DADA V. STATE (1977) NCLR 135; ADETOM OLADEJI (NIG.) LTD. V. N.B. PLC (2007) 5 NWLR (PT.1023) 415. However in USMAN V. UMARU (1992) 7 NWLR 377 the Supreme Court considered the above issue of whether this court has power to vary or correct its decision and cited YOUND V. BRISTOL AEROPLANE (supra) with approval. PER T. O. AWOTOYE, J.C.A.
STARE DECISIS: WHETHER UNDER THE DOCTRINE OF STARE DECISIS THE APPEAL COURT IS BOUND BY ITS OWN DECISION EXCEPT IN SPECIFIED CIRCUMSTANCES
It is now well settled that under the doctrine of stare decisis, the court below as an intermediate court of Appeal between the court below it and this court as the final appellant court is bound by its own decision except in circumstances specified in Yound v. Bristol Aeroplane Co. Ltd (1944) 2 ALL ER 293 300 that it (a) the Court of Appeal is entitled to decide which of two conflicting decision of its own to follows?” The issue arose in view of the following conflicting decisions of this court: (i) RIRUWAI V. SHEKARAU (2008) 12 NWLR (Pt.1100) page 142 (ii) HOPE DEMOCMTIC PARTY V. INEC (supra) in CA/A/EP/5/2007 decided on 17/11/2009. (iii) GEBI .V. DAHIRU & ORS IN CA/J/EP/HER/127/2011 decided on 22/8/2011 (iv) ADO v. MEKARA (supra) (v) ALERUCHI WILLIAMS & ANOTHER V. INEC and other decided on 20/9/2011 on Appeal No.CA/PH/EPT/10/2011 and some other cases. PER T. O. AWOTOYE, J.C.A.
PRE-HEARING NOTICE: WHETHER A PETITIONER CAN FILE A MOTION FOR THE ISSUANCE OF PRE-HEARING NOTICE
The word apply “as used in paragraph 18(1) is different from the word “motion” as used in paragraph 18(3) of the First Schedule of the Electoral Act A Petitioner cannot in the face of paragraph 47(2) file a motion for issuance of pre-hearing notice as motions can only be heard during pre-hearing sessions not before. At the stage of applying for pre-hearing notice, pre-hearing has not commenced. The application of the petitioner is the trigger he must pull for the pre-hearing to commence. It would infact appear that even in cases where the Respondent is permitted to file motion under paragraph 18(3) he would need to seek leave of court under paragraph 47(1) to so do. I therefore hold that writing of the letter as done by the petitioners is sufficient and it satisfied the requirement of paragraph 18(1) of the Electoral Act. PER T. O. AWOTOYE, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. SIR CELESTINE OMEHIA
2. ALL PROGRESSIVES GRAND ALLIANCE Appellant(s)
AND
1. R. T. HON. CHIBUIKE ROTIMI AMAECHI
2. ENGR. TELE IKURU
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
T. O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal from the Ruling of the Governorship Election Petition Tribunal Holden at Port Harcourt decided on 27/7/2011.
The petitioners at the lower Tribunal after the receipt of the replies of the Respondents had by a letter dated 24/6/201l applied for the issuance of the Pre-hearing Notice. The tribunal acted on the said application and ordered the issuance of the pre-hearing notice accompanied by the pre-hearing information sheet.
The 1st and 2nd respondents on receipt of the pre-hearing Notice filed a motion challenging the manner the application for pre-hearing notice was brought insisting that an application in the form of a letter was incompetent because paragraph 47(2) of the 1st schedule made it mandatory that all application be brought by “Motion”.
The 3rd and 4th Respondents made similar applications.
In its ruling the Tribunal relying on RIRUWAI v. SHEKARAU 2008 12 NWLR (PT.1100 page 142 and ADO v. MEKARA (2009) 9 NWLR (PT.1147) 491 dismissed the petition.
It is against this decision that the appellants filed notice of appeal containing 10 grounds of appeal. After transmission of record of appeal each of the parties filed a brief and the briefs were exchanged.
In their amended appellants’ brief of argument the appellants formulated and argued four issues for determination. They are as follows:-
“2.01 WHETHER, IN THE CIRCUMSTANCES, THE TRIBUNAL WAS RIGHT TO HOLD THAT INSPITE OF THE SUPREME COURT DECISION IN OKEREKE V. YAR’ADUA 2008 12 NWLR (PT.110) 95 THE TRIBUNAL HAD THE JURISDICNON TO HEAR THE RESPONDENTS’ MOTIQNS *OUTSIDE THE PRE-HEARING SESSION? [GROUNDS 1 & 2].
2. WHETHER THE TRIBUNAL WAS RIGHT TO FOLLOW THE EARLTER JUDGMENT IN RIRUWAI V. SHEKARAU (SUPRA) BECAUSE IT WAS A JUDGMENT OF THE ”FULL COURT” OF APPEAL RATHER THAN THE LATER JUDGMENT IN HASSAN V. INEC (SUPRA) GROUND 9].
3. WHETHER, IN THE CIRCUMSTANCES, THE TRIBUNAL WAS RIGHT TO HOLD THAT IT WAS PRECLUDED BY THE COURT OF APPEAL DECISIONS IN RIRUWAI V. SHEKARAU (SUPRA), (SUPRA) AND THE UNREPORTED CASE OF AYUBA V. INEC (SUPRA) FROM FOLLOWING THE JUDGMENT OF THE COURT OF APPEAL ON THE POINT IN QUESTION IN THE CASE OF AND WITHOUT PRONOUNCING ON THE SUBMISSIONS MADE FOR THE PETITIONERS/APPELLANTS ON THE PROVISIONS OF PARAGRAPHS 18 AND 47 OF THE 1ST SCHEDULE TO THE ELECTORAL ACT?
4. WHETHER IN ALL THE CIRCUMSTANCES OF THE CASE THE OBJECTION BY THE RESPONDENTS ON THE MANNER AND FORM OF THE APPELLANT’S SAID APPLICATION IS NOT A MERE TECHNICALITY WHICH DOES NOT AFFECT THE SUBSTANTIVE OR MAIN ACTION? [GROUND 10]
The 1st and 2nd Respondents in their adopted brief formulated and argued two issues for determination.
The issues are:-
“(i) Whether the lower Tribunal is not bound by the decisions of the superior court in RIRUWAI V. SHEKARAU (2008) 12 NWLR (Pt.1100) page 142 and
ADO V. MAKERA (supra)
(ii) Having regard to the provisions of the Electoral Act 2010 as amended whether the appellants could apply for issuance of pre-hearing notice in forms TF007 and TF008 by a letter and whether the lower tribunal was not right in law to dismiss the petition having been rubbed of jurisdiction.”
The 3rd Respondent in his adopted brief of argument formulated and argued two issues for determination. The issues are:-
“(1) Whether or not the lower tribunal was right in dismissing the petitioner’s petition for non-compliance with the provision of paragraph 18(1) of the Electoral Act (as amended).
(2) Whether the dismissal of the petition by the lower tribunal was based on mere technicality.”
Learned counsel for the 3rd Respondent also raised preliminary objection challenging the competence of each of the grounds of appeal
The 4th Respondent in their adopted amended brief of argument raised preliminary objection to the competence of the grounds of appeal as contained in the appellants’ notice of appeal.
Learned counsel also formulated one sole issue for determination to wit:-
“(1) “Was the lower tribunal in error when it exercised its jurisdiction to hear and determine the Respondents motions and came to the conclusion that a letter written to the tribunal secretary does not qualify as an application for the purpose of applying for the issuance of a pre-hearing notice.”
Learned counsel for the appellants filed Reply briefs which he adopted to each of the briefs filed by the Respondents.
I have carefully considered the submissions of learned counsel on both sides.
Learned senior counsel for the 4th Respondent in his oral submission in expatiation of his brief urged the court not to depart from the earlier decision of the Court of Appeal to the effect that a letter written to the tribunal does not qualify as an application for the issuance of a pre-hearing notice under paragraph 18(1) of the 1st Schedule of the Electoral Act. He relied on TIVERTON ESTATES LTD V. WEARWELL LTD 1974 1 ALL ER 209 and YOUNG V. BRISTOL AERO PLANE CO. (1944) 2 ALL ENGLAND REPORTS 293. This is in view of the judgment delivered by this court on 20/9/2011 in CA/PH/EPT/10/2011. WILLIAMS & ANOR V. INEC and ORS. Where this court departed from the earlier decision of RIRUWAI V. SHEKARAU (supra), ADO v. MEKARA (supra).
I deeply appreciate the industry put into this appeal by learned counsel on both sides especially the strong submissions of learned senior counsel E. C. Ukara SAN for the 4tr Respondent on whether or not a court of Appeal can depart from its earlier decision.
I have carefully gone through the two authorities cited by learned senior counsel. The two cases are clear on the point in my respectful view that a Court of Appeal is not bound to follow a decision of its own it is satisfied that the decision was given per incurian or there are conflicting decisions of its own whereby the court is free to pick out of them.
Lord Greene MR. on YOUNG V. BRISTOL AEROPLANE CO (supra) at page 300 had this to say;
On a careful examination of the whole matter we have come to the clear conclusion that this Court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (Two of them apparent only) are these already mentioned which for convenience we here summarize.
(i) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow
(ii) The court is bound to refuse to follow a decision of its own which though not expressly overruled cannot in its ganion stand with a decision of the House of Lords
(iii) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuram.”
It needs be stated at this juncture that YOUNG V. BRISTOL AEROPLANE CO LTD (supra) is an English Court of Appeal decision which is of mere persuasive authority. See DADA V. STATE (1977) NCLR 135; ADETOM OLADEJI (NIG.) LTD. V. N.B. PLC (2007) 5 NWLR (PT.1023) 415.
However in USMAN V. UMARU (1992) 7 NWLR 377 the Supreme Court considered the above issue of whether this court has power to vary or correct its decision and cited YOUND V. BRISTOL AEROPLANE (supra) with approval.
OGUNDARE JSC on page 398 of the Report had this to say:
It is now well settled that under the doctrine of stare decisis, the court below as an intermediate court of Appeal between the court below it and this court as the final appellant court is bound by its own decision except in circumstances specified in Yound v. Bristol Aeroplane Co. Ltd (1944) 2 ALL ER 293 300 that it (a) the Court of Appeal is entitled to decide which of two conflicting decision of its own to follows…”
The issue arose in view of the following conflicting decisions of this court:
(i) RIRUWAI V. SHEKARAU (2008) 12 NWLR (Pt.1100) page 142
(ii) HOPE DEMOCMTIC PARTY V. INEC (supra) in CA/A/EP/5/2007 decided on 17/11/2009.
(iii) GEBI .V. DAHIRU & ORS IN CA/J/EP/HER/127/2011 decided on 22/8/2011
(iv) ADO v. MEKARA (supra)
(v) ALERUCHI WILLIAMS & ANOTHER V. INEC and other decided on 20/9/2011 on Appeal No.CA/PH/EPT/10/2011 and some other cases.
Learned senior counsel urged us not to follow our decision in Aleruchi Williams & Another v. INEC and others (supra) but to follow RIRUWAI V. SHEKARAU (supra) to the effect that writing of a letter falls short of an application under paragraph 18(1) of the First Schedule of the Electoral Act. With due respect I disagree.
I am satisfied that the earlier cases cited which we are being urged to follow did not consider the import of the word “apply” as used in paragraph 18(1) in contradistinction to motion as used in paragraph 18(3) of the Fist Schedule and this was never canvassed before the said Divisions of the Court of Appeal. The panels of this court did not, with due respect consider that a construction holding motion as used in paragraph 18(3) to be synonymous with application will violently conflict with the provision of paragraph 47(2) of the First Schedule. This was not considered by the panels and indeed was not even canvassed before them. Such a construction will not give effect to the intendment of the legislature as laid down by the Supreme Court in ORUBU v. INECT (1988) 5 NWLR (Pt.94) 324 at 347.
For the above reasons, I am unable to follow those decisions even though I deeply respect the industry put into them by the respective learned Justice who sat in the respective panels in the Divisions of the Court of Appeal.
In Aleruchi’s case (supra) I did state on the meaning of paragraph 18(1) with respect to what constituted an application thus.
“How is the petitioner to apply? I am not unaware of the conflicting decision on this issue. learned counsel on both sides have cited several cases including petition No.CA/A/EP/5/2007 HOPE DEMOCRATIC PARTY v. INEC and others decided on 17/11/2009 and the very recent decision of CA/J/EP/HER/127/2011 ALHAJI IBRAHIM GEBI V. DAHIRU & ORS. Decided on 22/8/2011. I have deeply considered the case cited and the reasonings therein.
I must state that the effect of paragraphs 18 and 47 particularly the word “apply” as used in contradistinction to “motion” as used in paragraph 18(1) and 18(3) were never considered in all the previous decisions cited by learned counsel.
In am with due respect more persuaded by the decision in the recent case of GEBI V. DAHIRU & ORS (supra)
It does appear paragraph 47(2) and paragraph 18 of the First Schedule do not flow together paragraph 47(2) states.
“Where by the these Rules any application is authorized to be made to the Tribunal or court such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the respondent.”
This sub-paragraph does not agree with paragraph 18 of the same First Schedule. In a situation like this a construction that will bring an effective result and achieve the manifest purpose of the legislation should preferred to that which would reduce the legislation to futility on absurdity. See SUSSEX PEERAGE CLAIM (1844) CLAND FIN 85 at 143, R. v. CITY OF LONDON JUDGE (1892) 1 Q B273 at 290, MANDARA v. A.-G. FEDERATION (1984) NSCC 221 at 224, AWOLOWO v. SHAGARI v. (1979) 6 – 9 SC 51 at 65 – 66.
An interpretation that gives paragraph 47(2) dominance over paragraph 18 will render paragraph 18(3) absurd in that the words “may bring the application in accordance with subparagraph.
(1) Where the petitioner fails to do so OR by motion would be taken to do violence to the provision of paragraph 47(2) and this cannot be the intendment of the law.
See ORUBU V. NEC (1988) 5 NWLR (Pt.94) 323 at 347 where UWAIS JSC stated that the rules of the Electoral Act are to be applied to ensure that effect is given to the intendment of the legislature.
I, in the light of the above respectfully follow the recent decision of this court in Aleruchi’s case (supra).
I shall view this appeal in this light.
Of all the grounds of appeal of the appellants I find Ground 4 most competent worthy of consideration and wide enough to deal with the grievance of the appellants in this case. I adopt issue two as formulated by learned senior counsel for the 1st and 2nd respondents in his brief as the sole issue to be considered in this appeal.
It reads thus:-
Having regards to the provisions of the Electoral Act 2010 as amended whether the appellants could apply for issuance of pre-hearing notice in Forms TF 007 and TF 008 by a letter and whether the lower tribunal was not right in law to dismiss the petition having been rubbed of jurisdiction.”
For non-compliance with the provision of paragraph 18. Rather the Respondent is to take a constructive step of applying for the issuance of Form TF 007 should the petition fail so to do. See Aleruchi’s case (supra).
However, having regard to the fact that the petition filed on 17/5/2011 was dismissed because the lower tribunal found that the letter dated 24/6/2011 written by Chief Elekima to the secretary of the Tribunal applying for the issuance of pre-hearing notice did not satisfy the requirements of paragraph 18(1) of the Electoral Act as amended) and in the light of the decision of this Court in Aleruchi’s case (supra) I hold that the lower Tribunal erred in this regard. The word apply “as used in paragraph 18(1) is different from the word “motion” as used in paragraph 18(3) of the First Schedule of the Electoral Act A Petitioner cannot in the face of paragraph 47(2) file a motion for issuance of pre-hearing notice as motions can only be heard during pre-hearing sessions not before. At the stage of applying for pre-hearing notice, pre-hearing has not commenced. The application of the petitioner is the trigger he must pull for the pre-hearing to commence.
It would infact appear that even in cases where the Respondent is permitted to file motion under paragraph 18(3) he would need to seek leave of court under paragraph 47(1) to so do.
I therefore hold that writing of the letter as done by the petitioners is sufficient and it satisfied the requirement of paragraph 18(1) of the Electoral Act.
I resolve the sole issue in favour of the appellants. This appeal is meritorious. It succeeds.
I hereby set aside the decision of the lower tribunal delivered on 27/7/2011 in EPT/GOV/PH/2/2011. In its place I hereby remit the petition back to be heard on its merit by another election petition tribunal.
M. D. MUHAMMAD, J.C.A.: I agree
P. A. GALINJE, J.C.A.: I agree
Appearances
J. C. Ezike with Chief S. Elekina, D. Demna, C. O. Ejezie, K. S. Elenwo and M. I. OkonuFor Appellant
AND
A. O. Dave with O. A. Diyan and D. Atogbo for the 1st and 2nd Respondents.
Ighodalo Imadegbelo SAN with N. O. O. Oke SAN and U. Egbon for the 3rd Respondent.
E. C. Ukala SAN with Dike Udenna, N. F. Odihiri Gaffar for the 4th Respondent.For Respondent
