UGBECHE v. ALLIED PEOPLES MOVEMENT & ORS
(2022)LCN/16566(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, June 17, 2022
CA/C/NAEA/HR/137/2022
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
NGAJI JUDE UGBECHE APPELANT(S)
And
1. ALLIED PEOPLES MOVEMENT 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. ALL PROGRESSIVES CONGRESS (APC) RESPONDENT(S)
RATIO
WHETHER OR NOT ELECTION MATTERS ARE SUI GENERIS
It is beyond any pre-adventure that Election matters are governed by legislations which are circumscribed, and which overrule the rules of Court. The Electoral Act, 2022, contains mandatory provisions, and election petitions stand on their own and are bound by the rules under the law. Thus, defects or irregularities which in other civil proceedings are not sufficient to affect the validity of the claim are not so in an election petition. In other words, slight default in compliance with a procedural step could result in fatal consequences for the petition. See OKE V MIMIKO (NO.1) (2014) 1 NWLR (pt.1388) 225. PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the National and State Houses of Assembly Election Petition Tribunal, Cross River State delivered on the 23rd of April, 2022, dismissing the appellant’s preliminary objection.
On the 26th day of February, 2022, the 2nd respondent conducted a rerun election for Ogoja/Yala Federal Constituency in Cross River State, in which the appellant, a candidate of 3rd respondent, was declared the winner of the election. Dissatisfied with the outcome of the said election, 1st respondent, a registered political party which also fielded a candidate, filed petition No EPT/CR/REP/002/2022 challenging the validity of the election and the appellant’s return as winner for the Ogoja/Yala Federal Constituency, Cross River State.
At the pre-hearing session held on 21/4/2022, the 3rd respondent now appellant, applied for the dismissal of the petition at the commencement thereof on the ground of tardiness and unpreparedness by the petitioner pursuant to Paragraph 18 (11) of the First Schedule to the Electoral Act, 2022 occasioned by the failure of the petitioner’s counsel to file answers to Form TF 008 after a pre-hearing conference notice Form TF 007 together with Form TF 008 which had been issued and served on it.
After hearing parties, the Tribunal in its ruling delivered on 26/2/2022 found that even if a petitioner failed to apply for the issuance of the pre-hearing notice pursuant to Paragraph 18 (11) of the Electoral Act, no miscarriage of justice has been occasioned to any of the respondents and thereby dismissed the appellant’s objection.
Dissatisfied with the ruling, the appellant filed this appeal on 25/4/2022 containing five grounds of appeal.
In the appellant’s brief of argument filed on 9/5/2022, learned counsel, Akinlolu Kehinde, SAN formulated a sole issue for the determination of this appeal thus:-
Whether the failure of the 1st respondent to file its answers to the pre-hearing questions amounts to substantial unpreparedness that warrants the dismissal of the petition.
It is pertinent to note that none of the respondents filed any process and therefore none would be heard on this appeal.
Proffering argument on the sole issue, learned senior Counsel, submits that one of the incidences of the special nature of election petition is that rules and regulations guiding election petition enjoy strict adherence and are strictly interpreted. Thus, any slightest non-compliance with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. In aid, counsel relied on the cases of BUHARI V YUSUF (2003) 14 NWLR (pt. 841) 446 at 498, KALLAMU V GURIN (2003) 16 NWLR (pt.842) 493 at 524 at 525, and APM & ANOR V INEC & ORS (2020) LPELR -49872 (CA).
Still in contention, counsel argued that in interpreting a statute, a sub-section of legislation must be construed with respect to the whole section and all the sections of the legislation as a whole. He thus submits that Paragraph 18 (11) of the 1st Schedule to the Electoral Act must be viewed within the context of not only those specific provisions but in the context of the entire Paragraph 18 of the 1st Schedule to the Electoral Act.
In further argument, he submits that failure of the 1st respondent to file its reply to the pre-hearing questions in the present case amounts to being substantially unprepared to participate in the pre-hearing session and that the contrary findings of the trial Tribunal are against the spirit of Paragraph 18 of the 1st Schedule to the Electoral Act aforesaid.
It is beyond any pre-adventure that Election matters are governed by legislations which are circumscribed, and which overrule the rules of Court. The Electoral Act, 2022, contains mandatory provisions, and election petitions stand on their own and are bound by the rules under the law. Thus, defects or irregularities which in other civil proceedings are not sufficient to affect the validity of the claim are not so in an election petition. In other words, slight default in compliance with a procedural step could result in fatal consequences for the petition. See OKE V MIMIKO (NO.1) (2014) 1 NWLR (pt.1388) 225.
The issue in contention in the instant case as stated earlier relates to the failure of the 1st respondent’s counsel to file his answers to the questions contained in the pre-hearing information sheet (Form TF 008) which the learned appellant’s counsel contend amounts to substantial unpreparedness under Paragraph 18 (11) of the 1st Schedule to the Electoral Act, 2022.
Paragraph 18 (1) (3) and (4) of the 1st Schedule to the Electoral Act, 2022 provides that within seven days after filing and service of the petitioner’s reply on the respondent or seven 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. The respondent may bring the application in accordance with Sub-Paragraph (1) where the petitioner fails to do so or by motion which shall be served on the petitioner and returnable in three clear days, apply for an order to dismiss the petition. Paragraph 18 (4) emphatically provides that 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 step shall be filed or entertained.
From the above, a petitioner is mandatorily expected to apply for pre-hearing or for the dismissal of the petition as the case may be. Likewise, the Tribunal Court may dismiss the petition as an abandoned petition.
What played out in the present case was that the petitioner has complied with the provision of Paragraph 18(1) of the 1st Schedule to the Electoral Act in that it applied for the issuance of the pre-hearing notice as in Form TF 007 which was accompanied by information sheet Form TF 008 containing the question to be answered by the parties. The petitioner now 1st respondent has also participated in the pre-hearing session which commenced on 21/4/2022. Furthermore, the 1st respondent has not disobeyed any scheduling or pre-hearing orders. The only thing the 1st respondent failed to do was to file the answers to Form TF 008. The key question is, does failure to file answers to questions in the pre-hearing information (Form TF 008) alone amount to substantial unpreparedness under Paragraph 18 (11) thereof? I do not think so given the fact that the 1st respondent was diligent and has made positive efforts towards the hearing of the petition by timeously applying for the issuance of pre-hearing session and also took active part in the said pre-hearing session. In EMMANUEL & ORS V NWAEBILI & ORS (2011) LPELR – 9201 (CA), this Court while considering a similar provision of Paragraph 18 of the 1st Schedule to the Electoral Act 2010 (as amended) has held the view that the said Paragraph ought to be interpreted liberally particularly when the petitioner as in this case is diligent and made positive efforts, towards hearing of his petition.
Perhaps, I need to emphasize here that Paragraph 18 (11) of 1st Schedule to the Electoral Act 2022 is meant to punish parties who outrightly fail to attend the pre-hearing session or obey scheduling or pre-hearing order, or are substantially unprepared to participate in the session or exhibit bad faith.
Learned Judges of the lower Tribunal have ruled out that possibility on page 259 of the record thus:-
“Further, the petitioner has not disobeyed any scheduling or pre-hearing orders as none had been previously made by the Tribunal either has it failed to participate in the session in good faith. The failure to file answers to Form TF 008 has not occasioned any miscarriage of justice against the respondent to warrant a dismissal of the petition as prayed by the 1st and 3rd respondents.”
May I also add that the decision of the trial Tribunal was in the realm of exercise of discretion which an appellate Court seldom interferes with except where such discretion was not judicially and judiciously exercised. In the absence of any evidence of indiscretion, this Court will be reluctant in interfering with such an exercise of discretion.
On the whole, the appeal is meritless and it is unhesitantly dismissed with cost which I assessed at N100,000.00 against the appellant and in favour of the 1st respondent herein.
RAPHAEL CHIKWE AGBO, J.C.A.: I have read in advance the judgment delivered by my learned brother Shuaibu, JCA and I agree with both the reasoning and conclusion that the appeal be dismissed. I abide by the consequential orders contained in the lead judgment.
BALKISU BELLO ALIYU, J.C.A.: I read in draft the judgment prepared by my learned brother, Muhammed Lawal Shuaibu, JCA, and agree with the reasoning and the conclusion reached therein.
In further support of the leading judgment, I wish to add that the learned senior counsel for the Appellant is correct in positing that election petitions are sui generis, however, the laws regulating them must be interpreted in such a manner as to avoid absurdity in order to meet the ends of justice, which is the ultimate goal of adjudication.
It is for this reason that I strongly disagree with the learned Appellant’s counsel’s position that the trial Court had no discretion in the application of the provisions of Paragraph 18(11) to the First Schedule to the Electoral Act.
This is because the legislature deliberately used the phrase “substantial unpreparedness” in the said Paragraph. This connotes that the Tribunal or the Court is given the discretion to decide whether the Appellant’s (petitioner) attitude amounted to substantial unpreparedness or not taking into consideration all the circumstances of the suit. I think the suggested interpretation of the learned Appellant’s counsel that the tribunal had no discretion in the matter of unpreparedness is wrong and against the spirit and intendment of the said provisions of Paragraph 18(11).
It cannot be overemphasized that the exercise of discretion can hardly be interfered with by this Court unless the Appellant provides us with sufficient materials to convince us that the lower tribunal’s exercise of discretion was wrong because of either a misconception of the law or misapplication of the facts. In this appeal, the Appellant’s contention is that the learned Judges of the Tribunal misconceived the said provisions of Paragraph 18(11) to the First Schedule of Electoral Act, which I am certain is not the case. I am of the firm view that the learned Judges properly understood the purpose and intendment of the provisions of the law, and correctly apply it to the circumstances of the case before them. The Appellate Court does not ordinarily substitute its exercise of discretion for that already exercised by the trial Tribunal without very strong and substantial reasons shown. None was shown in this appeal.
For the stated reasons and the fuller reasons in the leading judgment. I too find no merit in this appeal and I dismiss it. I affirm the ruling of the Tribunal and abide by the order of cost made in the leading judgment.
Appearances:
No legal representation For Appellant(s)
No legal representation For Respondent(s)
