TONY NWOYE V. MR. AMEKE CHRISCATO IKECHUKWU & ORS
(2011)LCN/4902(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of November, 2011
CA/E/EPT/36/2011
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPHS 16 (1) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT, 2010 (AS AMENDED) AS REGARDS WHETHER THE TIME WITHIN WHICH TO APPLY TO FILE A PETITIONER’S REPLY CAN BE EXTENDED
Now, coming back to the Appellant’s application for extension of time to file a Petitioner’s Reply to 3rd to 7th Respondents, the relevant law regulating the filing of Petitioner’s reply to Respondents Reply in election petitions is provided for in Paragraph 16 of the 1st Schedule to the Act. Paragraph 16 (1) and (2) of the 1st Schedule to the Act, provides thus: 16 (1) If a person in his reply to the election petition raises new issued of facts in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the Registry, within five (5) days from the receipt of the respondent’s reply, a petitioner’s reply in answer to the new issues of fact, so however that – (a)… (b)… (2) The time limited by subparagraph (1) of this paragraph shall not be extended.” It is crystal clear from the aforementioned provisions, that there is no room for manoeuvre. Paragraph 16 (2) cited above, is very categorical that no extension of time will be granted in respect of the time limited by subparagraph one, namely, the five days. When the application came up before the tribunal, parties were heard and the tribunal considered all submissions made before delivering its ruling. I do not therefore see where to fit in the cases of Isiyaku Mohammed v. Kano N. A. (supra), Adigun v. A. G. Oyo (supra) and Akinfe v. State (supra) on breach of fair hearing, in the proceedings before the tribunal. Paragraph 16 (2) of the 1st Schedule to the Act, has been interpreted in a plethora of cases. See Hashidu v. Goje (2008) 15 NWLR (pt 843) 352, Onyedebalu v. Nwaneri (2008) 1 LRECN 207, Ikoro v. Izunaso (2008) 4 LRECN 1. The tribunal is bound by the aforementioned decisions and was right when it held as follows on pages 643 to 644 of the record: “Let us say straight away that time cannot be extended for the Petitioner to file a reply to the Respondents’ reply. Paragraphs 16 (1) of the 1st Schedule to the Electoral Act, 2010 (as amended) hereinafter referred to as the Rules grants the Petitioner the prerogative to file a reply to a Respondents reply within five days of the receipt of the Respondents’ reply and paragraph 16 (2) of the Rules provides that the time so granted to the Petitioner “shall not be extended” indeed it was held in Hashidu v. Goje (2003) 15 NWLR (pt. 843) page 352 at 380 that the tribunal has no power to extend time to file a reply to the Respondent’s reply.” PER ADAMU JAURO, J.C.A
INTERPRETATION OF STATUTE: INTERPRETATION OF PARAGRAPH 18 (1) (3) AND (4) AS REGARDS AN APPLICATION FOR PRE HEARING SESSION
Paragraph 18 (1) (3) and (4) relating to application for pre hearing session provides thus: “18 (1) Within 7 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, whichever is the case, the petitioner shall apply for the issuance of pre hearing notice as in Form TF 007 (3) The respondent may bring the application in accordance with subparagraph (1) where the petitioner fails to do so, or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition. (4) Where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.” By the aforementioned provisions, a petitioner is mandatorily expected to apply for pre hearing notice within seven days upon the settlement of pleadings. Upon the failure of the Petitioner to apply, the Respondent may apply for pre hearing or the dismissal of the petition. See Paragraph 18 (3) earlier reproduced above. The court may also dismiss the petition as an abandoned petition, see Paragraph 18 (4) above. The law having placed a mandatory duty on the Petitioner to apply for pre hearing notice, there is no specific format for making the application. The application can therefore be made in any form be it by letter, motion either ex parte or on notice. See the following unreported cases: Aliyu Ibrahim Gebi v. Garba Dahiru & Ors CA/J/EP/HR/127/2011 of 22nd August 2011, Mr. Simon Isa & Anor v. Alhaji Sa’ad Tahir & Anor CA/YL/EPT/ADS/HA/2/2011 of 6th September 2011, Ezeudu v. John CA/E/EPT/06/2011 of 5th September, 2011 and Azubuike Ikenna Esq. v. Mr. Ben Nwankwo & Ors CA/E/EPT/23/2011 of 28th September, 2011. For the avoidance of doubt, I wish to repeat it loud and clear that an application for pre hearing notice can be made by letter. The Appellant however having for long disclaimed and abandoned the letter, to file a motion, he cannot now resort to or resuscitate the letter after the dismissal of his petition. PER ADAMU JAURO, J.C.A
APPLICATION FOR PRE-HEARING NOTICE: WHETHER THE DUTY IMPOSED ON THE PETITIONER TO APPLY FOR PRE HEARING NOTICE CAN NOT BE PERFORMED BY HIM UNTIL THE RESPONDENTS FILE THEIR REPLIES
The position of the law has been well stated in Onyedebelu v. Nwaneri (2008) 1 LRECN 207 at 224, where my lord, Abdullahi JCA stated thus: “Again, it is a misconception on the part of the Appellant to suggest that the duty imposed on him by the Practice Directions will not be performed by him until the Respondents file their replies even when the law stipulates the period allowed for filing of the petition and reply. It is trite that when the law makes provision for time to perform a certain act it is presumed that the period will come to a close when the time allowed has lapsed.” PER ADAMU JAURO, J.C.A
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
TONY NWOYE Appellant(s)
AND
1. MR. AMEKE CHRISCATO IKECHUKWU
2. PEOPLES DEMOCRATIC PARTY
3. THE RETURNING OFFICER ANAMBRA EAST/WEST FEDERAL CONSTITUENCY
4. THE ELECTORAL OFFICER ANAMBRA EAST LOCAL GOVERNMENT (INEC)
5. THE ELECTORAL OFFICER ANAMBRA WEST LOCAL GOVERNMENT (INEC)
6. THE RESIDENT ELECTORAL COMMISSIONER ANAMBRA STATE
7. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ADAMU JAURO, J.C.A (Delivering the Leading Judgment): This appeal is against the ruling of the National and State Houses of Assembly Election Petition Tribunal Anambra State, sitting in Awka delivered on 19th September 2011 in petition number EPT/AN/HR/17/2011. The ruling was in respect of three applications, namely:
(i) Petitioner’s motion for the issuance of pre hearing notice,
(ii) Petitioners application for extension of time to file petitioner’s reply to 3rd to 7th Respondents and
(iii) The 1st Respondent’s application to dismiss the petition as an abandoned petition.
The three applications were consolidated and argued together and in the said ruling, the petitioner’s two applications were dismissed and the 1st Respondent’s application granted and the petition dismissed as an abandoned petition.
A brief summary of the facts giving rise to this appeal is hereby made thus: The Appellant and the 1st Respondent are members of the same political party, the Peoples Democratic Party, hereinafter referred to as P. D. P. The elections of the House of Representatives for Anambra East/West Federal Constituency Anambra State were held on the 26th April, 2011. Upon the conclusion of the election, the 3rd to 7th Respondents declared and returned the 1st Respondent as the winner of the election. Distressed by the declaration and return of the 1st Respondent as the winner of the election, the Appellant as Petitioner challenged same by a petition filed in the tribunal.
The petition of the Appellant is dated 10th May, 2011 and filed in the registry of the Tribunal on 11th May, 2011 The Appellant in the said petition contended that he was the one that contested and won the election for the Anambra East/West Federal Constituency held on 26th April, 2011 under the platform of the P. D. P. The Appellant further contended that the 7th Respondent instead of declaring him the winner of the election, wrongfully, amazingly and inexplicably declared the 1st Respondent. The facts given in support of the petition inter alia included the allegation that the 1st Respondent was not qualified to contest the election in the sense that he was not sponsored in the election by any registered political party in the land. The Appellant’s main ground therefore was that it was him, not the 1st Respondent that was the candidate of the 2nd Respondent, the P. D. P. The Appellant as Petitioner sought for the following reliefs in paragraph 9 of the petition, viz:
“(1) A declaration of court that the 1st Respondent was not validly or duly returned as a member of the House of Representatives for the Anambra East/West Federal Constituency having not been sponsored by the Peoples Democratic Party in the election nor gone through or participated in all the stages of the said election held on 26/4/2011.
(2) A further declaration of court that the votes attributed to the 1st Respondent in the said election i.e. 16,020 votes were improperly or invalidly attributed to him and ought to have been attributed to the petitioner who had been sponsored by the PDP in the election, had contested in the same and actually won the election with the aforesaid 16,020 votes.
(3) A declaration of court that the return made in favour of the 1st Respondent by the constituency returning officer on 27/4/2011 was undue and invalid in that the petitioner and not the said 1st Respondent was the candidate of the PDP who actually contested the election and earned the majority votes of 16,020 votes in the election.
(4) A declaration of court that the petitioner was validly elected as the member of the Federal House of Representatives to represent Anambra East/West Federal Constituency in the election to the National Assembly held on 26/4/2011 since the majority of the votes had been cast for him in the said election.
(5) An order of injunction that the INEC issues a certificate of return in favour of the petitioner to enable him take his rightful place at the National Assembly to represent the Anambra East/West Federal Constituency, Anambra State, and a further order of injunction restraining the 1st Respondent from parading or putting himself forward as the person returned or elected as the member of the aforesaid Anambra East/West Federal Constituency or from enjoying any rights/perquisites of that office.
See pages 6 and 7 of the Record of Appeal.
Upon the service of the petition, the 1st Respondent filed a reply to the petition on 2nd June, 2011. The 2nd and 3rd to 7th Respondents filed their respective replies on 31st May, 2011 and 1st June, 2011. On 8th June, 2011 the Petitioner filed the Petitioner’s Reply to the 1st Respondent. The Petitioner’s Reply to the 1st Respondent was served on the 1st Respondent on 11th July, 2011, and on the 2nd Respondent on 8th July, 2011 and on the 3rd to 7th Respondents on 16th June, 2011. The reply of 3rd to 7th Respondents was however not accompanied with front loaded documents; hence they applied for extension of time to file same. The said application was granted in a ruling delivered on 25th August, 2011. See pages 628 to 631 of the Record.
The Petitioner initially applied for pre hearing by a letter which he later disclaimed and disowned, hence filed a motion for the commencement of pre hearing. In the same vein, the Petitioner filed an application for extension of time to file a Petitioner’s Reply to 3rd to 7th Respondents. The 1st Respondent, on the other hand filed a motion for the dismissal of the petition on the ground of failure to apply for pre hearing within the prescribed period. The three applications as earlier stated in this judgment were consolidated and argued together. The two applications filed by the Petitioner were dismissed and the one filed by the 1st Respondent granted, hence the dismissal of the petition as an abandoned petition. See pages 642 to 646 of the record of Appeal.
Aggrieved by the aforementioned ruling dismissing his petition, the Appellant challenged same vide a notice of appeal dated 21st September, 2011 and filed the same day. The Notice of Appeal was predicated on four grounds of appeal as shown on pages 647 to 653 of the Record of Appeal.
In compliance with the Rules of Court and Election Tribunal and Court Practice Directions 2011, briefs of argument were filed and exchanged. The Appellant’s brief of argument is dated 24th October 2011, while the Appellant’s Reply brief to the 1st Respondent is dated 8th November 2011 and filed on the 9th November, 2011. The 1st Respondent’s brief is dated 27th October, 2011 and filed on 31st October, 2011. The 2nd Respondent did not file any brief of argument. The 3rd to 7th Respondents’ brief is dated 11th November, 2011 and filed the same date.
Mr. C. Chuma Oguejiofor leading F. C. Okeke Esq. and I Onuamah Esq. for the Appellant adopted the Appellant’s brief and the Appellant’s Reply brief to 1st Respondent and urged the court to allow the appeal. Mr. C. I. Okafor leading C. I. Aiguobarueghian Esq. for the 1st Respondent adopted the 1st Respondent’s brief in urging the court to dismiss the appeal. Mr. Clems Ezika for the 2nd Respondent stated that he did not file any brief of argument on behalf of the 2nd Respondent. Mr. O. J. Nnadi SAN leading A. A. Onwuka Esq. and F. U. Abazuonu Esq. for the 3rd to 7th Respondent adopted and relied on the 3rd to 7th Respondents’ brief in urging the court to dismiss the appeal.
The Appellant formulated two issues for determination on pages 6 to 7 of the Appellant’s brief of argument. The two issues are reproduced thus:
“(i) Whether the trial before the trial Tribunal had conformed with the principles of fair hearing and S 36 of the 1999 Constitution as amended and if it did not, is the entire trial not complete nullity?
(ii) Whether the learned Trial Tribunal was right in declaring the petition an abandoned petition upon an incompetent application of the 1st respondent and after having also found that there was an application for issuance of pretrial notice by a letter which was also made within time by the appellant.”
The 1st Respondent nominated two issues for determination on page 3 of the 1st Respondent’s brief. The two issues are as follows:-
“a. Whether the trial before the lower tribunal had conformed with the principles of fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended); and if the answer is in affirmative,
b. Whether the lower tribunal was right in dismissing the Appellant’s petition as abandoned.”
The 3rd to 7th Respondents on their part submitted two issues for determination on page 5 of their brief as follows:
“(1) Whether the Tribunal was right in refusing to grant the application for extension of time within which the Appellant shall file the Appellant’s Reply to the 3rd – 7th respondents’ reply filed and served on the Appellant more than 5 days after the service of the said Reply on the Appellant by the 3rd – 7th Respondents.
(2) Whether the Tribunal was right in dismissing the Appellant’s petition as an abandoned petition.”
The issues formulated for determination by the parties appear to be identical as they seem to be conveying the same message. In the circumstance therefore, the issues as formulated by the Appellant will be adopted in resolving the appeal.
ISSUE ONE
The contention of the Appellant is that the Tribunal was wrong in refusing to grant his application for extension of time to file the Petitioner’s Reply to 3rd to 7th Respondents. Learned counsel stated that the refusal to grant the aforesaid application breached the Appellant’s right to fair hearing as provided in Section 36 (1) of the 1999 Constitution (as amended). Learned counsel contended that when served the 3rd to 7th Respondent’s Reply, unaccompanied by frontloaded documents he assumed it was irregular, hence could not respond to it. Learned counsel argued that the Tribunal pointed out the irregularity in the reply of 3rd to 7th Respondents, but yet granted them extension of time to file frontloaded documents, on the grounds of interest of justice and not to shut them out.
Learned counsel however queried that when it was his turn to apply for extension of time, the interest of justice was not extended to him but his application out-rightly refused.
Learned counsel argued that by granting the 3rd to 7th Respondents’ application and refusing his own, the tribunal has not treated them equally or given them a leveled playing ground. Learned counsel argued that failure to give leveled playing ground to parties by refusing his application amounts to a breach of natural justice and fair hearing which renders any proceedings a nullity. In support of the submissions, reference was made to the following cases Isiyaku Mohammed v. Kano N. A. (1968) 1 ANLR 42, Okereke v. Yar’adua (2008) 8 MJSC 182 at 190, Adigun v. A. G. Oyo State (1987) 1 NWLR (pt 53) 678 at 721, Akinfe v. State (1988) 3 NWLR (pt 85) 729 at 753, Long-John v. Blakk (1998) 5 SC 83 at 104. In concluding, learned counsel urged the court to hold that the proceedings in the tribunal were a complete nullity.
In responding, the 1st Respondent contended that fair hearing entails affording a party the opportunity to present his case in an atmosphere free from fear or intimidation. Learned counsel stated that the tribunal afforded all parties before it, the opportunity on being heard on all material issues before reaching its decision on the applications. Learned counsel submitted that Paragraph 16 (2) of the 1st Schedule to the Electoral Act 2010 (as amended) clearly prohibits extension of time for the filing of a petitioner’s reply. Learned counsel further submitted that the case of Okereke v. Yar’adua (supra) is not applicable to this case, as it was decided on the requirements to accompany a petition not a Respondent’s Reply. In support of the submissions, reference was made to the following cases: Tyonex Nig. Ltd. v. Pfizer Ltd (2011) All FWLR (564) 175 at 184, Lambert Iwuoha v. Felix Okoroike (1996) 2 NWLR (pt 429) 231 at 250. In concluding, learned counsel urged the court to hold that there was no breach of fair hearing and resolve the issue against the Appellant.
The 3rd to 7th Respondents in their response stated that by Paragraph 16 (1) of the 1st Schedule to the Electoral Act 2010, a Petitioner has 5 days from the date of service of the Respondent’s Reply within which to file a Petitioner’s Reply. Learned counsel further stated that Paragraph 16 (2) of the 1st Schedule to the Act provides that the time limited by subparagraph one shall not be extended. In support of Paragraph 16 (2) of the 1st Schedule and its interpretation, reference as made to the following cases: Azudibia v. INEC (2008) 4 LRECN 105 at 120-121, Ikoro v. Izunaso (2008) 4 LRECN 1 at 16, Onyedebelu v. Nwaneri (2008) 1 LRECN 207 at 224, Hashidu v. Goje (2003) 15 NWLR (pt 843) 352 at 380. Learned counsel stated that the tribunal is bound by the aforementioned cases.
Learned counsel submitted that the law is clear that where a person has been afforded an opportunity of fair hearing and failed to utilize same, he cannot later complain of lack of fair hearing. In support, reference was made to the following cases: Newswatch Communications Nig. Ltd v. Atta (2006) 12 NWLR (pt 993) 144 at 170, Jonason Triangle Ltd v. C. M. & P. Ltd (2002) 15 NWLR (pt 789) 176, Ndaba (Nig) Ltd v. UBN Plc (2009) 13 NWLR (pt 1158) 256 at 319. In concluding, learned counsel urged the court to hold that refusal to grant the Appellant’s application for extension of time to file Petitioner’s Reply does not affect his right to fair hearing as to render the proceedings before the tribunal a nullity.
The major grouse of the Appellant under this issue is that his right to fair hearing had been breached, thus rendering the proceedings of the tribunal a nullity. In what way if one may ask, was the Appellant’s right to fair hearing breached? The Appellant asserted that the breach of his right to fair hearing was as a result of the tribunal’s failure to grant him extension of time to file Petitioner’s Reply to 3rd to 7th Respondents. The Appellant feels so strong and bitter about this, moreso in the face of the fact that the tribunal earlier granted extension of time to 3rd to 7th Respondents to file frontloaded documents. As rightly submitted by the Respondents, there is no appeal against the ruling granting 3rd to 7th Respondents extension of time, hence I am of the view that much noise or fuss should not now be made on the ruling.
Now, coming back to the Appellant’s application for extension of time to file a Petitioner’s Reply to 3rd to 7th Respondents, the relevant law regulating the filing of Petitioner’s reply to Respondents Reply in election petitions is provided for in Paragraph 16 of the 1st Schedule to the Act. Paragraph 16 (1) and (2) of the 1st Schedule to the Act, provides thus:
16 (1) If a person in his reply to the election petition raises new issued of facts in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the Registry, within five (5) days from the receipt of the respondent’s reply, a petitioner’s reply in answer to the new issues of fact, so however that –
(a)…
(b)…
(2) The time limited by subparagraph (1) of this paragraph shall not be extended.”
It is crystal clear from the aforementioned provisions, that there is no room for manoeuvre. Paragraph 16 (2) cited above, is very categorical that no extension of time will be granted in respect of the time limited by subparagraph one, namely, the five days. When the application came up before the tribunal, parties were heard and the tribunal considered all submissions made before delivering its ruling. I do not therefore see where to fit in the cases of Isiyaku Mohammed v. Kano N. A. (supra), Adigun v. A. G. Oyo (supra) and Akinfe v. State (supra) on breach of fair hearing, in the proceedings before the tribunal. Paragraph 16 (2) of the 1st Schedule to the Act, has been interpreted in a plethora of cases. See Hashidu v. Goje (2008) 15 NWLR (pt 843) 352, Onyedebalu v. Nwaneri (2008) 1 LRECN 207, Ikoro v. Izunaso (2008) 4 LRECN 1. The tribunal is bound by the aforementioned decisions and was right when it held as follows on pages 643 to 644 of the record:
“Let us say straight away that time cannot be extended for the Petitioner to file a reply to the Respondents’ reply. Paragraphs 16 (1) of the 1st Schedule to the Electoral Act, 2010 (as amended) hereinafter referred to as the Rules grants the Petitioner the prerogative to file a reply to a Respondents reply within five days of the receipt of the Respondents’ reply and paragraph 16 (2) of the Rules provides that the time so granted to the Petitioner “shall not be extended” indeed it was held in Hashidu v. Goje (2003) 15 NWLR (pt. 843) page 352 at 380 that the tribunal has no power to extend time to file a reply to the Respondent’s reply.”
I do not therefore see any breach of fair hearing or the principles of natural justice as claimed by the Appellant. Issue one therefore fails and is resolved against the Appellant.
ISSUE TWO
The Appellant under this issue stated that there was an application by letter for pre hearing notice made to the Secretary of the Tribunal. Learned counsel argued that in so far as there was an application by letter made timeously, the learned tribunal erred in its decision that the Appellant’s petition was an abandoned petition. Learned counsel submitted that the subsequent application made by the Appellant for pre trial notice by motion dated 30th August, 2011 was made on the basis of the Reply and statement on oaths of 3rd to 7th Respondents served on the Appellant by Order of the tribunal made on 25th August, 2011. In support of the submission, reference was made to an unreported decision of this division namely, Lawrence Ezeude v. Olibie John & Ors, No. CA/E/EPT/06/2011.
Learned counsel contended that the position taken by the tribunal as to when pleadings closed was wrong, as there was no indication as to when the 3rd to 7th Respondents’ Reply was served or the date the 2nd Respondent’s processes were served. In support of the submission, reference was made to the following cases: Ikoro v. Izunaso & Ors (2008) 4 LRECN 1 at 5 and 6, Dimegwu v. Ogunewe & Ors (2008) 4 LRECN 458 at 465 to 456. Learned counsel submitted that there was no reason why the tribunal should have deemed the petition as an abandoned petition, hence urged that the issue be resolved in favour of the Appellant.
In response, the 1st Respondent stated that the Appellant filed a motion ex parte on 26th August 2011, applying for pre hearing notice. Learned counsel contended that the said application was made three months after the close of pleadings, the last pleading being the reply of 3rd to 7th Respondents. Learned counsel stated that the motion ex parte for pre hearing notice was based on the assumption that the extension of time granted to 3rd to 7th Respondents to file their witnesses’ statement on oath and frontloaded documents was the last pleading in the petition. Learned counsel however argued that the time of applying for pre hearing notice in the petition had long expired before the filing of the 3rd to 7th Respondents list of witnesses. In support of the submission, reference was made to the case of Onyedebelu v. Nwaneri (2008), LRECN 207 at 224.
On the issue of letter, learned counsel argued that the Appellant had vigorously argued abandoning and disclaiming the said letter, which formed the basis of filing the motion ex parte applying for pre hearing notice. Learned counsel therefore posits that the Appellant cannot now resort to the said letter which he disclaimed and abandoned long ago, in preference for a motion ex parte. In support, reference was made to the case of Garba v. Galadima (1993) NWLR (pt. 285). Learned counsel contended that the motion ex parte for pre hearing notice was filed out of the prescribed time to apply for pre hearing, hence the petition abandoned. In concluding, learned counsel urged the court to resolve the issue in favour of the Respondents.
The 3rd to 7th Respondents stated that the Appellant argued strongly in the tribunal abandoning his letter, and in place of which he filed a motion ex parte for pre hearing notice. Learned counsel argued that the motion ex parte was filed months out of the prescribed time of applying for pre hearing notice.
Learned counsel argued that the Appellant cannot now resort back to the said letter which he disclaimed long ago. In concluding, learned counsel urged that the issue be resolved in favour of the Respondents.
I wish to start the resolution of the issue under consideration by a quick revisit to the three applications considered in the ruling now on appeal. The three applications considered in the ruling under review, upon which issues were joined and argued are as follows:
(i) Petitioner’s motion for the issuance of pre hearing notice or commencement of pre hearing.
(ii) Petitioner’s motion for extension of time within which to file a Petitioner’s Reply to the Reply of 3rd to 7th Respondents, and
(iii) The 1st Respondent’s application to dismiss the petition as an abandoned petition.
Apparently, the issue of letter was not seriously canvassed, save for the fact that the Appellant vigorously argued abandoning and disclaiming the said letter which he earlier filed. See pages 517 to 518 and 513 of the Record of Appeal. It is therefore not in dispute that the letter filed by the Appellant which he disclaimed has for long been abandoned and discarded. The tribunal however after dismissing the petition and in the last paragraph of the ruling curiously made a pronouncement on the letter, albeit by way of orbiter.
Of the three applications considered in the ruling, the one relating to extension of time to file Petitioner’s Reply to 3rd to 7th Respondents has been considered under issue one. A consideration will be made on the two applications before revisiting the letter. The motion for pre hearing is dated 30th August, 2011 and filed on 1st September, 2011 Paragraph 18 (1) (3) and (4) relating to application for pre hearing session provides thus:
“18 (1) Within 7 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, whichever is the case, the petitioner shall apply for the issuance of pre hearing notice as in Form TF 007
(3) The respondent may bring the application in accordance with subparagraph (1) where the petitioner fails to do so, or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition
(4) Where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.”
By the aforementioned provisions, a petitioner is mandatorily expected to apply for pre hearing notice within seven days upon the settlement of pleadings. Upon the failure of the Petitioner to apply, the Respondent may apply for pre hearing or the dismissal of the petition. See Paragraph 18 (3) earlier reproduced above. The court may also dismiss the petition as an abandoned petition, see Paragraph 18 (4) above. The law having placed a mandatory duty on the Petitioner to apply for pre hearing notice, there is no specific format for making the application. The application can therefore be made in any form be it by letter, motion either ex parte or on notice. See the following unreported cases: Aliyu Ibrahim Gebi v. Garba Dahiru & Ors CA/J/EP/HR/127/2011 of 22nd August 2011, Mr. Simon Isa & Anor v. Alhaji Sa’ad Tahir & Anor CA/YL/EPT/ADS/HA/2/2011 of 6th September 2011, Ezeudu v. John CA/E/EPT/06/2011 of 5th September, 2011 and Azubuike Ikenna Esq. v. Mr. Ben Nwankwo & Ors CA/E/EPT/23/2011 of 28th September, 2011. For the avoidance of doubt, I wish to repeat it loud and clear that an application for pre hearing notice can be made by letter. The Appellant however having for long disclaimed and abandoned the letter, to file a motion, he cannot now resort to or resuscitate the letter after the dismissal of his petition.
A consideration will now be made of the Appellant’s motion for pre hearing notice. The motion is dated 30th August, 2011 and filed on 1st September, 2011. The Appellant’s petition is dated and filed on 11th May, 2011, and served on the Respondents. All the Respondents filed their respective Replies. The Appellant however only filed a Petitioner’s Reply in respect of the 1st Respondent on 8th June, 2011. The Petitioner’s Reply to the 1st Respondent was served on the 1st Respondent on 11th July 2011, and on 2nd Respondent on 8th July, 2011 and 3rd to 7th Respondents on 16th June, 2011. The computation of when to apply for pre hearing notice is normally made according to law. Hence upon the expiration of the statutory period limited for the parties to file their pleadings, the time for the Petitioner to apply for pre hearing starts running without waiting for any party who may default in filing his pleading. The position of the law has been well stated in Onyedebelu v. Nwaneri (2008) 1 LRECN 207 at 224, where my lord, Abdullahi JCA stated thus:
“Again, it is a misconception on the part of the Appellant to suggest that the duty imposed on him by the Practice Directions will not be performed by him until the Respondents file their replies even when the law stipulates the period allowed for filing of the petition and reply. It is trite that when the law makes provision for time to perform a certain act it is presumed that the period will come to a close when the time allowed has lapsed.”
Based on the foregoing, whether the Petitioner has filed Petitioner’s Reply to other Respondents or not, pleadings will be deemed closed with them upon the expiry of the time limited for filing the Petitioner’s Reply to them. In the circumstance, resort must be made to the last date the Petitioner’s Reply on the 1st Respondent was served on the Respondents. The last date as earlier indicated in this judgment, was the service effected on the 1st Respondent which was on 11th July, 2011. The computation of the 7 days will therefore commence from the 11th July, 2011. The motion for pre hearing notice dated 30th August, 2011 and filed on 1st September, 2011 was no doubt filed outside the seven days prescribed by law, thus qualifying the petition as an abandoned one.
As a consequence of the foregoing the two issues for determination are resolved as follows:
(i) Issue one on fair hearing fails and is resolved against the Appellant.
(ii) Issue two succeeds to the extent that a letter could ignite and kick start pre hearing session. The Appellant however having disclaimed and abandoned the letter which informed the reason for filing the motion, cannot now seek refuge under the letter.
The appeal partially succeeds to the extent of issue two as stated above. The aspect of the ruling dated 19th September, 2011 in petition number EPT/AN/NAE/HR/17/2011 refusing the Petitioner’s two applications and granting that of the 1st Respondent by dismissing the petition as abandoned is hereby affirmed. There will be no order as to costs.
ABUBAKAR JEGA ABDULKADIR, J.C.A: I agree.
A.O. LOKULO-SODIPE, J.C.A: I agree.
Appearances
C. Chuma Oguejiofor Esq. with F. C. Okeke Esq. and I. Onuamah Esq.For Appellant
AND
C. I. Okafor Esq. with C. I. Aiguobarueghian Esq.
Mr. Clems Ezika with C. C. Ofoegbunam Esq.
Mr. O. J. Nnadi SAN with A. A. Onwuka Esq. and F. U. Abazuonu Esq.For Respondent
