SOMTO UDEZE & ANOR V. PRINCESS CHINWE C. NWAEBILI & ORS
(2011)LCN/4879(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of November, 2011
CA/E/EPT/30/2011
RATIO
INTERPRETATION OF STATUTE: HOW WORDS IN A STATUTE ARE TO BE CONSTRUED WHERE THEY ARE CLEAR AND UNAMBIGUOUS
It is a trite principle of interpretation of statutes that where the words of any statute are clear and unambiguous they must be given their ordinary meaning. The exception being where such approach would lead to absurdity or be in conflict with other provisions of the constitution or statute. Otherwise effect must be given to those provisions without recourse to any other consideration. See ADISA V. OYINWOLA (2000) 10 NWLR (PT 674) 116; AMADI V. NNPC (2000) FWLR (PT 9) 1527; BAKARE V. NIGERIAN RAILWAY CORPORATION (2007) ALL FWR (pt ) 1579 and A.G ONDO STATE V. A.G EKITI STATE (2001) 17 NWLR (pt 743) 706. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PARAGRAPH 18 (1), (3) AND (4) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT 2010 (AS AMENDED)
…the whole purport of paragraph 18 (1) is that where a petitioner files and serves a petition on a respondent who in turn files and serves his reply to the petition on the petitioner, the said petitioner shall within 7 days after receipt of such reply apply to the secretary of the tribunal for the issuance of pre hearing notice as in Form TF 007. On the other hand, if the petitioner upon receipt of the Respondent’s reply to the petition, wishes to reply to the said respondent’s reply he is allowed to do so within the time stipulated in paragraph 16 (1) of the first schedule to the Electoral Act 2010 (as amended) and shall within 7 days after service of the said petitioner’s reply on the Respondent apply to the secretary of the tribunal for the issuance of pre-hearing notice as in Form TF 007. Where the petitioner fails or neglects to applying within the time frame prescribed in paragraph 18 (1) thereof, paragraph 18 (3) provides for the Respondent to bring such application or in the alternative he can by motion on notice apply for an order of the tribunal to dismiss the petition. Where both the petitioner and the Respondent fail to bring an application as prescribed in paragraph 18 (1) and 18 (3), the tribunal or court shall dismiss the petition as an abandoned petition under paragraph 18 (4) and no application for extension of time to take that step shall be entertained. Infact, a careful and thorough perusal of the entire paragraph 18 (1) to 18 (12) of the First Schedule to the Electoral Act 2010 (as amended) leaves one not in any iota of doubt that the noble and progressive intention of the legislature to encourage speedy disposal of election petitions bearing in mind the urgency attached to them. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
INTERPRETATION OF STATUTE: WHETHER THE PURPOSE OF PARAGRAPH 18 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT 2010 (AS AMENDED) IS TO PUNISH A PETITIONER WHO PREMATURELY APPLY FOR THE ISSUANCE OF HEARING NOTICE AHEAD OF SERVICE OF A REPLY BY ONE OF MANY RESPONDENTS
It seems to me however that the fangs of paragraph 18 (1) of the first schedule to the Electoral Act 2010 as amended is clearly intended to close in on the jugular of an indolent, careless or negligent petitioner who to his own peril decides not to apply for the issuance of pre-hearing notice as in Form TF 007 within 7 days after the filing and service of the necessary pleading as the case may be. It is not, to my mind intended to visit the same crushing blow by way of dismissal of a petition upon a petitioner who prematurely apply for the issuance of hearing notice ahead of service of a reply by one of many respondents. This definitely will amount to standing substantial justice on the head upon a miry clay by stretching beyond the ideal and rational, the clear provisions of paragraph 18 (1) of the First Schedule to the Electoral Act 2010 (as amended). Hence this court took a proactive and dynamic stance in Appeal No. CA/E/EPT/06/2011. EZEUDE V. JOHN supra. Unreported judgment delivered on 5/9/2011 where in considering a similar issue held inter alia per Adumein JCA at pages 15 to 16 as follows:- “I am of the opinion that the tribunal also erred in dismissing the appellant’s petition on the ground that the application, by the appellant, for the issuance of pre-hearing notice (Form TF 007) was premature. If the tribunal had calmly and painstakingly read the provisions of paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended) it would been clear to it that the intention of the legislature is to ensure that parties are diligent in the prosecution and or defence of election petitions. Paragraph 18 (a) of the First Schedule to the Electoral Act, 2010 (as amended) is not intended to truncate a petition merely because the petitioner is ‘overzealous’ in the prosecution of his petition. That sub-paragraph is intended to punish a petitioner who is indolent in the prosecution of his petition.In the present case, that the application was prematurely filed has been hotly contested by the appellant. The supplementary record of appeal containing an index of the proof of service of the processes filed in tribunal is quite unhelpful and it does not clearly indicate the relevant proofs of service of the respondents’ respective replies on the appellant. This, perhaps, explains while none of the parties utilized the said supplemental record of appeal in their briefs. Assuming, however, that the appellant prematurely filed his application for the issuance of pre-hearing notice, this ought not to be fatal to the hearing and determination of the petition on the merits. The prematurity of applying for the issuance of pre-hearing notice in the petition ought not to have been promoted to the devastating and/or destructive consequence of having the petition summarily dismissed”. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
JUSTICES
ABUBAKAR JEGA ABDULKADIR (PRESIDING JUSTICE) Justice of The Court of Appeal of Nigeria
OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. SOMTO UDEZE
2. PEOPLES DEMOCRATIC PARTY (PDP) – Appellant(s)
AND
1. PRINCESS CHINWE C. NWAEBILI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. PROF. (PASTOR) C.E. ONUKAOGU
(Resident Electoral Commissioner Anambra State)
4. DR. EBUH GODDAY U.
(Returning Officer, Ogbaru II/State Constituency)
5. EZE ROMANUS O. (Collation Officer Iyiowa Odekpe/Ohita Ward)
6. NNATUANYA EKENE A.
(Collation Officer, Ossomala Ward) – Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of the National and State Houses of Assembly Election Tribunal sitting in Awka and delivered on the 8th day of September, 2011 in PETITION No. EPT/AN/HA/18/2011 wherein the Tribunal hereinafter referred to as (the Trial tribunal) dismissed the Petition of the present Appellant as an abandoned petition for his failure to apply for the issuance of pre-hearing Notice as stipulated under paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 as amended.
The 1st appellant was a candidate sponsored by the 2nd Appellant Peoples Democratic Party (PDP) at the House of Assembly Election for Ogbaru II State Constituency, Anambra State, held on 26th April, 2011 and 6th May 2011. The 1st Respondent on the other hand was the candidate sponsored by the All Progressives Grand Alliance (APGA) in the said election and was declared winner and returned as elected by the 2nd Respondent.
The Appellants being aggrieved with the outcome of the said election filed their Petition at the Registry of the trial tribunal on 26/5/11 wherein they challenged the return of the 1st Respondent as the validly elected candidate for the Anambra State House of Assembly in Ogbaru II State Constituency.
The 1st Respondent’s reply to the petition was filed on 30/6/2011 while that of the 2nd to 6th Respondents was filed on 29/6/2011. The 7th Respondent filed his own reply on 8/7/11. On the 5/7/11 the appellants filed their reply to the 1st Respondent’s reply to the petition. On the 7/7/2011 the Appellants, through a letter dated 5/7/2011 applied to the trial tribunal for the issuance of pre-hearing notice as in Forms TF 007 and TF 008 pursuant to paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 as amended.
Subsequently on the 8/7/2011 the appellants filed another application by way of motion for the issuance of the same pre-hearing notice.
Meanwhile, on the same 8/7/2011 the Secretary of the tribunal reacted by issuing Forms TF 007 and TF 008 to the appellants who on the same 8/7/11 filed their pre-hearing information sheet.
On the 13/7/11 the 2nd to 6th Respondents filed their own pre-hearing information sheet while the 1st Respondent filed his on the 15/7/11 together with issues for determination.
At the sitting of the trial tribunal on 19/7/11, the appellants applied to withdraw their motion for pre-hearing information sheets filed on 8/7/11 and it was consequently struck out. On the 27/7/11 the appellants motion to discontinue the petition against the 7th Respondent and filed on 18/7/11 was moved and granted by the trial tribunal.
Subsequently, the 1st Respondent, on 22/8/11 filed a motion on notice for the dismissal of the petition as an abandoned petition and the appellants reacted by filing a counter affidavit on 31/8/11. The 1st Respondent also responded with a further affidavit filed on 6/8/11.
The appellants had also on the 5/8/11 filed a motion on notice praying this tribunal to relist their motion filed on 8/7/11 and seeking the issuance of pre hearing notice but withdrawn and struck out on 19/7/11. The 1st and 2nd to 6th Respondents opposed the application by filing counter affidavits. At the sitting of the trial tribunal on 6/9/11 both the appellants motion to relist their motion on notice filed on 8/7/11 but was withdrawn and struck out on 19/7/11 as well as the 1st Respondents motion on notice filed on 22/8/11 seeking to have the petition dismissed as an abandoned petition were heard together. In a reserved Ruling delivered on 8/9/11 the trial tribunal dismissed the appellant’s motion for relisting on the ground that no sufficient reason was given to warrant the grant of same. It however granted the 1st Respondent’s motion and dismissed the appellant’s petition on the ground that the application for the issuance of pre-hearing notice as in Form TF 007 was made prematurely. The appellants being aggrieved with the said Ruling filed a notice of appeal containing eight grounds of appeal. It is dated 13/9/11 and filed on 15/9/11.
The parties subsequently filed and exchanged briefs of argument. The appellants’ brief of Argument dated 5/10/11 and filed on 6/10/11 was settled by Steve Unachukwu Esq. The 1st Respondent’s brief dated 10/11/11 and filed on 11/10/11 was settled by A.C. Anaenugwu Esq., while that of the 2nd to 6th Respondents dated and filed on 10/10/11 was settled by Arthur Obi Okafor SAN.
At the hearing of the appeal on 26/10/11, the parties adopted and relied on their respective briefs of argument.
In the appellants’ brief, one sole issue was formulated for determination. To wit:-
“Whether the lower tribunal was right to dismiss the petition as an abandoned petition on the facts and circumstances of the petition”.
The 1st Respondent also formulated a sole issue for determination as follows:-
“Whether the Honourable Tribunal was right in dismissing the petition as abandoned petition for non compliance with the provisions of paragraph 18 (1) of the First Schedule to the Electoral Act 2010 (as amended).
For the 2nd to 6th Respondents two issues were distilled for determination in their briefs of argument as follows:-
1. “Whether the mere letter to the Secretary of the Tribunal below written outside the period mandatorily stipulated under paragraph 18 (1) of the first schedule to the Electoral Act 2010 (as amended) is a proper application for issuance of pre hearing notice as envisaged by law.
2. If the answer to issue one above is in the negative, is the petition of the Appellant at the Tribunal below not liable to be dismissed as an abandoned petition?”
The issues as raised by the parties are in tandem with one another. I however opt for the sole issue formulated in the appellants’ brief of argument for the consideration of this appeal.
On the said issue, Steve Unachukwu of Counsel for the Appellant submitted that the issue whether an application was made at all and whether it was made prematurely before settlement or completion of pleadings are completely different issues requiring different considerations and responses.
He added that it is not the duty of the tribunal to make a case for either of the parties or depart from the case presented by the parties and decide a matter on the basis of issues not canvassed before it. Consequently, the decision of the tribunal to the extent that it dismissed the petition of the appellants as an abandoned petition because the application for issuance of pre-hearing notice was incompetent when the contention of the 1st Respondent was that such application was not made was against the weight of evidence led in the case.
Learned counsel then cited the following case to contend that it was wrong for the tribunal to raise an issue suo motu without giving the parties the opportunity to be heard on it:-
TOLORUNLEKE V. AGRICULTURAL & RURAL MANAGEMENT TRAINING INSTITUTE (ARMTI), 2009 16 WRN 39; OBUMSELU V. UWAKWE (2009) 28 WRN 147; UNIVERSITY OF CALABAR V. DR. ESSIEN (1996) 12 SCNJ 304 and OSHODIN V. EYIFUNMI (2001) 11 WRN 86 or (2000) 13 NWLR (PT 684) 298.
He added that since the tribunal found as of fact that the application for the issuance of pre-hearing notice as in Form TF 007 was made on 7/7/11 by the appellants, it follows that the 1st Respondent’s motion, in so far as it is predicated on the ground that no such application was made lacks merit. So, for the tribunal to relying on a different matter not raised by the 1st Respondent occasioned miscarriage of justice and should be se aside.
Dwelling on the aspect of the appellant’s letter of 7/7/11 requesting for the issuance of pre hearing notice, learned counsel submitted that the tribunal was wrong to have ruled that for the application to be competent it must be by way of motion on notice rather than by a letter written to the tribunal.
Learned counsel referred to what transpired at the sitting of the tribunal on 19/7/11 where having seen both the appellant’s letter and motion it opined that it was satisfactory to apply for issuance of pre-hearing notice by letter since all motion ought to be moved during pre-hearing session in accordance with the Electoral Act 2910 and it will be absurd to expect an application which will activate a pre hearing to be by motion because there will be no forum to move such motion before pre hearing commences, and this stance led the appellants to withdraw their motion filed on 8/7/11.
Unfortunately he says, the trial tribunal subsequently made a volte face by adopting the view that applications made by way of a letter are incompetent.
On the second arm of the Ruling learned counsel submitted that the 2nd – 6th Respondents who filed their joint reply on 29/6/11 did not serve same on the appellants until 13/7/11 after the parties have filed and exchanged pre-hearing forms and if they had waited till 13/7/11 before making the application they would have been out of time by 12/7/11.
Besides he added, as at the time the appellant’s filed their reply to the 2nd to 6th Respondents reply all the parties had filed their pre-hearing information sheets as in Form TF 008 without raising any issue of incompetence of the appellant’s application for the issuance of pre-hearing notice made on 7/7/11.
Learned counsel further submitted that the trial tribunal ought to have interpreted paragraph 18 (1) bearing in mind the mischief which the legislature sought to cure by it as it is not intended to punish a diligent and over anxious petitioner desperate to have his petition heard expeditiously but an indolent, unwitting and unready petitioner. He added that the sanctions prescribed in paragraph 18 (3) and (4) should only be apply in cases where the petition can rightly be described as abandoned and not in the case where the appellants have done everything required to move the petition to hearing.
He contended that it is an abuse of language to describe a petition in which the parties have filed and exchanged pre-hearing notices, and the petition set down for pre-hearing and scheduling and was almost concluded as abandoned.
On the adverse effect of undue adherence to technicalities and procedural Rules, learned counsel referred to the following cases:-
FAYEMI V. ONI (200) 8 WRN 103; ATIKU ABUBAKAR V. YARADUA (2008) 12 SCNJ 549 AT 581-583, EGOLUM V. OBASANJO (2004) 1 WRN 87 and SOGAOLU OLAYINKA V. INEC (2009) 32 WRN 105.
In support of his contention that an application for pre-hearing notice filed prematurely cannot be deemed abandoned he cited the following cases:-
EZEUDE V. OLIBE JOHN, APPEAL No. CA/E/EPT/06/2011 UNREPORTED Judgment of this court delivered on 5/9/11. MR. SIMON & ANOR V. ACHAJI SA’AD TAHIR & ANOR (unreported) Appeal No. CA/YL/EPT/ADS/HA/2011 delivered on 6/9/2011; and GEBI V. DAHIRU (unreported) Appeal No. CA/J/EP/HR/127/2011 delivered on 23/8/11 and REV. JOLLY T. NYAME V. PDP (unreported) Appeal No. CA/YL/EPT/TR/S/6/2011 delivered on 6/9/2011.
Also referring to paragraph 53 (2) of the First Schedule to the Electoral Act 2010 (as amended) and Section 151 of the Evidence Act, learned counsel submitted that the Respondents having become aware of the defect in the application but proceeded to file their pre-hearing information sheets and moved their applications during the pre-hearing, they are deemed to have waived their rights to complain against the timing of the application for pre-hearing notice.
For the 1st Respondent, it was submitted by A.C. Anaenugwu of counsel that the tribunal was right to dismiss the petition when the timing of the application for issuance of pre-hearing notice was clearly outside the purview of paragraph 18 (1) of the First Schedule to the Electoral Act 2010.
He added that by virtue of paragraph 18 (1) of the first schedule to the Electoral Act 2010 as amended the time for filing an application for the issuance of pre-hearing notice starts to run upon the filing and service of the relevant last pleading in the petition and ends 7 days thereafter – and the petitioner is expected to bring an application for issuance of pre-hearing notice within the stipulated period – and not before or after. Failure to so do he argued, renders the application incompetent, null and void. He relied on the case of AZUDIBIA V. INEC (2008) 4 LRECN 105 at 121.
Learned counsel further contended that the appellant having made the application for pre-hearing notice before the last pleading in the matter which is the petitioners reply to the 2nd – 6th Respondents reply was served on the Respondents on 19/7/11 when the time for such application started running by virtue of paragraph 18 (1), it follows that they ran foul of the said provisions by making the application prematurely.
On the aspect of the trial tribunal raising the issue of premature nature of the application made by the appellant Suo motu with out giving the appellants the opportunity to react to same. Learned counsel contended that the 1st Respondent’s counsel did raise the issue at the trial tribunal and the appellants joined issues on it as shown in page 577 of the record.
On the Unreported Decision in CA/E/EPT/06/2011. LAWRENCE C. EZEUDE V. OLIBE JOHN delivered by this court on 5/9/2011 and relied on by the appellants, learned counsel submitted that the decision cannot avail the appellants because the facts and circumstances are not the same.
He added that while in Ezeude’s case the appellant therein laboured under the impression that pleadings in the petition had closed before he applied for pre-hearing Notice, in the instant case the appellants knew that as the time of their application, the 7th Respondent had not filed his reply and was still within time.
Learned counsel also urged this court to apply the decision in Azudibia V. INEC to this case as it is more correct and accords more with the law. He further submitted that the appellant did not file any grounds of appeal challenging the clear finding of the trial tribunal to the effect that the appellant’s application by way of letter to the Secretary of the tribunal was incompetent, in which case the findings remains valid and inviolable regardless of the success of the appellants appeal on the issue of premature application.
For the 2nd to 6th Respondents, their learned senior counsel, Arthur Obi Okafor SAN in their brief of argument anchored his arguments and submissions on the same footing with that of the 1st Respondent and they shall be duly considered in this judgment.
Now the fulcrum around which the sole issue in this appeal revolves is paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 as amended.
It reads thus:-
18(1) “Within7 days after the filing and service of the petitioner’s reply on the Respondent or 7 days after the filing and service of the Respondent’s reply, as the case may be, the petitioner shall apply for the issuance of pre-hearing Notice as in Form TF 007”.
To my mind, the above provision is quite clear and unambiguous. It is a trite principle of interpretation of statutes that where the words of any statute are clear and unambiguous they must be given their ordinary meaning. The exception being where such approach would lead to absurdity or be in conflict with other provisions of the constitution or statute.
Otherwise effect must be given to those provisions without recourse to any other consideration. See ADISA V. OYINWOLA (2000) 10 NWLR (PT 674) 116; AMADI V. NNPC (2000) FWLR (PT 9) 1527; BAKARE V. NIGERIAN RAILWAY CORPORATION (2007) ALL FWR (pt ) 1579 and A.G ONDO STATE V. A.G EKITI STATE (2001) 17 NWLR (pt 743) 706.
Now simply, put the whole purport of paragraph 18 (1) is that where a petitioner files and serves a petition on a respondent who in turn files and serves his reply to the petition on the petitioner, the said petitioner shall within 7 days after receipt of such reply apply to the secretary of the tribunal for the issuance of pre hearing notice as in Form TF 007. On the other hand, if the petitioner upon receipt of the Respondent’s reply to the petition, wishes to reply to the said respondent’s reply he is allowed to do so within the time stipulated in paragraph 16 (1) of the first schedule to the Electoral Act 2010 (as amended) and shall within 7 days after service of the said petitioner’s reply on the Respondent apply to the secretary of the tribunal for the issuance of pre-hearing notice as in Form TF 007.
Where the petitioner fails or neglects to applying within the time frame prescribed in paragraph 18 (1) thereof, paragraph 18 (3) provides for the Respondent to bring such application or in the alternative he can by motion on notice apply for an order of the tribunal to dismiss the petition. Where both the petitioner and the Respondent fail to bring an application as prescribed in paragraph 18 (1) and 18 (3), the tribunal or court shall dismiss the petition as an abandoned petition under paragraph 18 (4) and no application for extension of time to take that step shall be entertained.
Infact, a careful and thorough perusal of the entire paragraph 18 (1) to 18 (12) of the First Schedule to the Electoral Act 2010 (as amended) leaves one not in any iota of doubt that the noble and progressive intention of the legislature to encourage speedy disposal of election petitions bearing in mind the urgency attached to them.
Now, in the instant case, can it be cogent to assert that the tribunal was right in it’s ruling that the appellant having applied prematurely to the Secretary of the tribunal for the issuance of pre hearing notice renders the petition liable to be dismissed as an abandoned petition.
It seems to me however that the fangs of paragraph 18 (1) of the first schedule to the Electoral Act 2010 as amended is clearly intended to close in on the jugular of an indolent, careless or negligent petitioner who to his own peril decides not to apply for the issuance of pre-hearing notice as in Form TF 007 within 7 days after the filing and service of the necessary pleading as the case may be.
It is not, to my mind intended to visit the same crushing blow by way of dismissal of a petition upon a petitioner who prematurely apply for the issuance of hearing notice ahead of service of a reply by one of many respondents. This definitely will amount to standing substantial justice on the head upon a miry clay by stretching beyond the ideal and rational, the clear provisions of paragraph 18 (1) of the First Schedule to the Electoral Act 2010 (as amended).
Hence this court took a proactive and dynamic stance in Appeal No. CA/E/EPT/06/2011. EZEUDE V. JOHN supra. Unreported judgment delivered on 5/9/2011 where in considering a similar issue held inter alia per Adumein JCA at pages 15 to 16 as follows:-
“I am of the opinion that the tribunal also erred in dismissing the appellant’s petition on the ground that the application, by the appellant, for the issuance of pre-hearing notice (Form TF 007) was premature.
If the tribunal had calmly and painstakingly read the provisions of paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended) it would been clear to it that the intention of the legislature is to ensure that parties are diligent in the prosecution and or defence of election petitions. Paragraph 18 (a) of the First Schedule to the Electoral Act, 2010 (as amended) is not intended to truncate a petition merely because the petitioner is ‘overzealous’ in the prosecution of his petition. That sub-paragraph is intended to punish a petitioner who is indolent in the prosecution of his petition.In the present case, that the application was prematurely filed has been hotly contested by the appellant. The supplementary record of appeal containing an index of the proof of service of the processes filed in tribunal is quite unhelpful and it does not clearly indicate the relevant proofs of service of the respondents’ respective replies on the appellant. This, perhaps, explains while none of the parties utilized the said supplemental record of appeal in their briefs.
Assuming, however, that the appellant prematurely filed his application for the issuance of pre-hearing notice, this ought not to be fatal to the hearing and determination of the petition on the merits. The prematurity of applying for the issuance of pre-hearing notice in the petition ought not to have been promoted to the devastating and/or destructive consequence of having the petition summarily dismissed”.
I am entirely in agreement with the view so expressed by this court and I adopt them as mine in this case. See also the following subsequent decisions of this court on the same issue. Appeal Nos. CA/E/EPT/25/2011 EMMANUEL NZELI V. CHINWE C. NWAEBILI (unreported judgment delivered on 13/10/11 where this court held that:-
“The next question that readily comes to mind is, whether this petition can be regarded as an abandoned petition, having regard to the circumstances of the case. The word ‘abandoned’ etymological derives its origin from the word ‘abandon’. The Oxford Advanced Learners Dictionary, 7th edition defined the word ‘abandoned’ on page one to mean “left and no longer wanted, used or needed’. To fully understand the import of this definition, resort must still be made to paragraph 18 and to find out the wisdom of the legislature in making such a provision with heavy sanctions against a petitioner. By the provisions of paragraph 18, the legislature aims at checking indolence on part of petitioners, particularly considering the sui generic nature of election petitions where time is of great essence. Paragraph 18 therefore is not intended to punish a diligent petitioner who has ignited and kick started process for the hearing of his petition. In the case at hand, the tribunal had already activated pre-hearing based on petitioner’s application, which commenced on 4th August, 2011. The application for the dismissal of the petition on ground of failure to apply for pre-hearing was argued in the course of pre-hearing on 17th August, 2011. The ruling dismissing the petition as an abandoned petition was also delivered in the course of pre-hearing session.
The petitioners contended that they filed the application for pre-hearing after filing their petitioners’ reply to 1st Respondent. The petition in the circumstances of this case was obviously not abandoned but on course. The sanction prescribed in paragraph 18 (3) and (4), should only be applied in circumstances where the petition can rightly be described as abandoned. The provisions of paragraph 18 (1) ought to be interpreted liberally, particularly where a petitioner is diligent and has made positive efforts as in this case towards the hearing of his petition. See Ezeude V. John (supra). The tribunal was therefore in grave error in dismissing the petition as an abandoned petition”.
See also Appeal No, CA/E/EPT/31/2011 unreported judgment delivered on 19th October, 2011.
Learned counsel for the 1st and 2nd to 6th Respondents had in their respective briefs of argument referred to the case of AZUDIBIA V. INEC (2008) 4 LRECN 105 to contend that it appears more correct and accords more with the law and urged this court to apply it in this case in preference to EZEUDE V. OLIBE JOHN. Supra which is in conflict with the former?
However, notwithstanding their persuasive submissions, I am inclined and convinced to follow the later decision of this court in EZEUDE V. OLIBE JOHN being later in time and not only accords more with substantial justice but also coveys the true intention of the legislature as reflected in paragraph 18 (1) of the First Schedule to the Electoral Act 2010 as amended. It has also been preferred and followed in the subsequent decisions of this court including NZELI V. NWAEBILI and UZOKWE V. ONYEKA supra. See SOBAMOWO V. ELEMUREN (2008) 11 NWLR (PT 1097) 12 at 28 where the court held as follows:-
“It is trite that in certain amount, common sense must be applied in construing statutes and the object of the statute has to be considered. See ELABANJO V. DAWODU (2006) 15 NWLR (PT 1001) 76. Another principle is that construction most agreeable to justice and reason must be adopted and this position is well set out in ‘Maxwell on the interpretation of statutes’ thus:-
“In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and principles should, in all cases of doubtful significance be presumed to be the true one”.
What is more, in furtherance of the quest for true and substantial justice which is the current standpoint of the Apex court of this country, I will now address one other salient issue.
The appellant had on 7/7/11 applied to the Secretary to the lower tribunal for the issuance of pre-hearing notice as in Form TF 007. His application was duly granted and pursuant thereof, Forms TF 007 and TF 008 were issued on the parties who accordingly reacted to them. Thereafter, the tribunal issued notices to the parties that pre-hearing session shall commence on 19/7/2011. The pre hearing session did take off and ran from the said 19/7/2011 to 5/9/2011 during which period all the parties filed and moved one application or the other till the 1st Respondent moved his motion filed on 22/8/11 for an order dismissing the petition for failure of the appellants to apply for the issuance of pre-hearing notice which makes the petition an abandoned petition.
The big question is, can such a petition be deemed to have been abandoned when a pre-hearing session had been activated by the appellant’s application (albeit filed prematurely) and the pre-hearing sessions have been held for about Five times with the full participation of the parties under the control and direction of the Chairman and members of the tribunal? To my mind, to term such a petition as abandoned and proceed to dismiss it as such is totally out of place and inconsistent with the ideals of justice on the merit. I am therefore in agreement with the view of this court in GEBI V. DAHIRU unreported judgment of Jos Division in Appeal No. CA/J/EPT/HR/127/2011 delivered on 23/8/2011 where it held while considering paragraph 18 of the First Schedule to the Electoral Act 2010 (as amended) as follows:-
“I believe the mischief which paragraph 18 of the 1st schedule sought to cure was dilatory approach to the prosecution of petitions, not bubby trap to manipulate the frustration of hearing of the petition and give a respondent technical victory and the petitioner technical knockout”.
Equally in emphasizing the need to avoid hinging on technicalities in Election matters the Supreme Court in the case of NWOBODO V. ONOH (1984) 1. SCNLR I at page 92, held per Uwais JSC (as he then was) as follows:-
“Election petitions are by their nature peculiar from other proceedings and are very important from the point of view of public policy. It is the duty of the courts therefore to endeavour to hear them without allowing technicalities to unduly fetter their jurisdiction”.
See also EGOLUM V. OBASANJO (1999) 1 NWLR (PT 611) 35 5 at 413 where the same court per Achike JSC (of blessed memory) held that:-
“The heydays of technicalities are now over because the weight of judicial authorities has shifted from undue technicalities to doing substantial justice even – handedly to the parties to the case”.
In SHUAIBU V. NIGERIA ARAB BANK LTD (1998) s NWLR
(PT 551) 582 at page 596 the supreme held as follows:-
“The prime duty of any court in the court’s decision making is to do substantial justice and it would not allow that to be clogged with undue technicalities”.
The urgent necessity to deemphasize technicalities was amplified by the Apex court in ABUBAKAR V. YARADUA (2009) 5 WRN 1 at 122 where it held per Niki Tobi JSC that:-
“I am in agreement with the Court of Appeal when the court held that full opportunity should be given to parties in the interest of justice without due regard to technicalities. Gone are the days when courts of law were only concerned with doing technical abstract justice based on avid legalism. We are now in the days when courts of law do substantial justice in the light of prevailing circumstances of the case. It is my hope that the day of doing technical justice will not surface again”.
See also USMAN V. UMARU (2001) FWLR (PT 70) 1544; AFOLABI V. ADEKUNLE (1983) 2 SCNLR 141; OLUBODE V. SALAMI (1985) 2 NWLR (PT 7) 282; IBRAHIM V. SHERIFF (2004) 14 NWLR (PT 892) 43 and GOODHEAD V. AMACHREE (2004) 1 NWLR (PT 854) 352.Learned counsel for the 1st Respondent had in his brief of argument submitted that the appellant did not file any ground of appeal challenging the clear finding of the trial tribunal to the effect that the appellant’s application by way of letter to the Secretary of the tribunal was incompetent.
He added that a finding not challenged by an appellant in any of the grounds of appeal remains rightly or wrongly the settlement of that issue as between the parties to the appeal. He relied on the following authorities: KOYA V. U.B.A. LTD (1997) 1 NWLR (PT 481) 251 at 266; SULE V. NIGERIA COTTON BOARD (1985) 2 NWLR (PT 5) 17; KANO STATE URBAN DEVELOPMENT BOARD V. FANZ CONSTRUCTION CO. LTD. (1990) 4 NWLR (PT 142) 1 at 29 and AWOTE V. OWODUNNI (1986) 12 SC 294 at 309.
For the 2nd to 6th Respondents it was also contended on their behalf by their learned senior counsel, that the specific finding of the tribunal below that the application of the petitioners for pre-hearing notice by way of letter is incompetent was not challenged by the appellants either by way of appeal or application to set aside it ought not to be disturbed by this court. There being no grounds of Appeal or argument canvassed against the said decision.
I have carefully perused the notice and grounds of appeal as contained in pages 583 to 595 of the Record of Appeal. Of particular interest is ground two of the Appeal and it is herein below reproduced, excluding the particulars of error.
GROUND TWO
ERROR IN LAW
“The trial tribunal erred in law when it dismissed the petition in the instant case on the ground that the application for the issuance of pre-hearing notice as in Form TF 007 was filed by way of letter written to the Secretary of the tribunal rather than motion was therefore incompetent which incompetence makes the petition an abandoned petition”.
From the above it is quite glaring that the appellants did actually appeal against the said decision of the trial tribunal contrary to the contention of the respondents. It is also to my mind reflected in the sole issue formulated for determination by the appellants in their brief of argument which though sounded ambiguous but nonetheless substantially conveyed the true intent of the grounds of appeal.
In the circumstance, I am of the firm view that the trial tribunal did not bring to bear or apply the principle of substantial justice but rather stepped on the sinking sand of technicality when it dismissed the appellant’s petition as an abandoned petition, on the ground that it was filed prematurely. The sole issue for determination in this appeal is therefore resolved in favour of the appellants.
On the whole, I hold that this appeal has merit and it is hereby allowed.
The Ruling of the National and State Houses of Assembly Tribunal sitting in Awka, Anambra State (Coram B.S.S. MOHAMMED J.; C.C. THOMAS ADIELE J. and A.O. JIBODU J.) in PETITION No. EPT/AN/HA/65/2011 delivered on the 8th day of September 2011 is hereby set aside.
The said PETITION No. EPT/AN/HA/65/2011 is hereby ordered to be remitted back for relisting and adjudication on the merit by another panel of the said tribunal.
N60, 000 cost is awarded against the Respondents in favour of the appellants.
ABUBAKAR JEGA ABDULKADIR, J.C.A : I agree.
A.O. LOKULO-SODIPE, J.C.A : I agree.
Appearances
S.C. UnachukwuFor Appellant
AND
A.C. Anaenugwu for1st Respondent
H.E. Nwachukwu for 2nd-6th RespondentsFor Respondent
