Augustine Onyedebelu V. Oyibo N. Nwaneri & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
The Governorship and Legislative Houses Election Tribunal (henceforth referred to as the lower Tribunal) in a Ruling delivered on 16th day of August, 2007 dismissed a petition filed by the petitioner on 14th of May, 2007 challenging the return of the 1st Respondent, as a member representing Oru East Constituency in the Imo State House of Assembly.
The Tribunal on the said date held thus:
“On the whole, the Petitioner having failed to bring an application in accordance with paragraph 3(1) of the Practice Directions, this petition is deemed abandoned by virtue of para 3(4) thereof and ought to be dismissed. Accordingly, petition is hereby dismissed.”
Dissatisfied with this ruling, the petitioner filed a Notice of Appeal which initially carried four grounds of appeal and with the leave of this Court, the 5th ground was filed on the 11th of December, 2007 from which he distilled four issues for determination. Devoid of their particulars, the grounds are as follows:
“GROUND 1 – ERROR IN LAW
The Honourable Tribunal erred in law when it held that the Petitioner is under duty to apply for pre-hearing conference 14 days after entering appearance by the Respondent pursuance (sic) to paragraph 3 of the Election Petition and Court Practice Directions 2007 whether or not the respondents filed any reply to the petition and by the said error arrived at a wrong construction of paragraph 3(1) of the Election Tribunals and Court practice Directions 2007.
GROUND 2 – MISDIRECTION OF LAW
The Honourable Tribunal misdirected itself in law when it held that:
‘The necessary intendment of paragraph 3 of the Practice Direction is that if the Petitioner is not vigilant and fails to apply for pre-hearing conference within 14 days after entering appearance his petition cannot be revived.’
GROUND 3 -ERROR IN LAW
The Honourable Tribunal erred when it held that the provision of paragraph 3(1) (2) (4) of the Election Petition Practice and Court Direction are mandatory and applicable to Petitioner notwithstanding that non of the respondents had filed and served any reply to the petition.
GROUND 4 – ERROR IN LAW
The Honorrrabie Tribunal erred in law when it held that “the provision of Order 28 Rule 7(1) of Federal High Court Civil Procedure Rules cannot apply to the present situation because unlike in civil cases there in provision under the Practice Direction and the first schedule :as to what the respondents should do failing which the Petition should apply for pre-hearing conference and consequently dismissed the petition notwithstanding the provision of paragraph 35(d) of the first schedule to the Electoral Act 2006.
GROUND 5 – ERROR IN LAW
The Honourable Tribunal erred in law when it held that the petition is deemed abandoned by virtue of paragraph 3(4) of the Election Tribunal and Court Practice Direction 2007. A holding contrary to law and thereby occasioned a miscarriage of justice.”
The facts of the case that gave rise to the appeal under consideration are that: On the 14th day of April, 2007 elections were held in respect of the Oru East State Constituency. The Petitioner, the 1st Respondent and five others were candidates at the election. The Appellant was the candidate of the Democratic Peoples Party (DPP), while the 1st Respondent was the candidate of Peoples Democratic Party (PDP). At the end of the election, the 1st Respondent was declared the winner by the 2nd and 4th Respondents.
The Appellant naturally was not happy with the declaration of the 1st Respondent as the winner of the election wherefore he filed an election petition on the 14th of May, 2007 before the lower Tribunal. He challenged the election on the ground that the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
After service of the petition on 1st Respondent, she filed a memorandum of conditional appearance on the 21st day of May, 2007. The Appellant subsequently filed a Motion on Notice to amend his petition. She also on the 16th July, 2007, filed a Motion on Notice praying the Tribunal for an order:
“(a) Setting down the petition for hearng/pre-hearing session.
(b) Granting leave to the Petitioner/Appellant to prove his case in the absence of reply from the Respondent in the alternative entering judgment for the Petitioner.”
The Appellant equally made an application for pre-hearing session scheduling on 17/07/07. The 1st Respondent also filed Motion for extension of time to file their replies to the petition which is contained at pages 159 – 192 of the records of appeal.
On the 23rd day of July, 2007 when the motion came up for hearing, the tribunal invited Counsel on both sides to address it on whether or not the petition was competent before it for failure to file the mandatory Pre-hearing Notice within the time allowed by the Practice Direction. The Tribunal heard arguments from the parties and on the 16th of August, 2007 delivered its ruling dismissing the petition.
Pursuant to Practice Direction No. 2 of 2007, the parties duly filed and exchanged brief of arguments. The Appellant’s brief dated 28th day of September, 2007 was filed on 2nd October, 2007. The 1st Respondent’s brief dated 9th day of October was filed the same day. 2nd to 55th Respondents filed theirs on the 28th January, 2008. In response to the brief of the respondents, the Appellant filed a reply-brief on the 18th of February, 2008.
From the five grounds of appeal, learned Counsel as stated earlier in this judgment distilled four issues for determination as follows:
“1. When does the duty to apply for pre-hearing conference arise in an Election Petition pursuant to the provisions of Election
Tribunal and Court Practice Directions 2007. (This issue is distilled from ground 1 of the Notice of Appeal).
- Whether in the circumstances of this case where the Respondents have failed to file any reply, the duty to apply for pre-hearing conference as envisaged by paragraph 3(1) of the Election Tribunal and Court Practice Directions 2007 has arisen. (This issue is distilled from the grounds 2 and 3).
- Whether in the provision of paragraph 5 of the first schedule to the Electoral Act, 2006 and the Federal High Court Civil Procedure Rules as applicable can avail the Petitioner/Appellant in the circumstance having regards to the provisions of S.35(d) of the first schedule to the Electoral Act, 2006. (This issue is distilled from ground 4).
- Whether a petition can be deemed to have been abandoned when the parties (i.e. Petitioner and Respondents) have filed before the tribunal, several applications; seeking extension of time to file a reply (pleadings) and also application to set down for hearing by the Petitioner/Appellant. (This issue is distilled from ground 5 of the grounds of appeal).
Learned Counsel for the 1st Respondent, distilled one for determination from the five grounds of appeal and it reads thus: “Whether the Tribunal below was right in dismissing the petition.”
For his part, learned Counsel for the 2nd to 55th Respondents, equally distilled one issue for the consideration of this Court to wit:
“Whether the Tribunal acted within the purview of paragraph 3 of the Election Tribunal and Court practice Directions, 2007 in dismissing the petition.”
On the 3rd of March, 2008 when the appeal came before us for hearing, the Appellant appeared in person and informed the Counsel that he did not see his client. However, since the Appellant’s brief had been filed, we deemed same to have been argued ii accordance with the Rules of this court. Counsel for the respondents both adopted their respective briefs and urged us to dismiss the appeal.
Learned Counsel for the Appellant in a brief settled by Chris O. Ahumibe argued issues number 1 and 2 together. After questing the provision of paragraph 3(1) of the Practice Direction, 2007, learned Counsel submitted that the said provision is clear, simple and unequivocal and ought to be given its ordinary meaning. He relied on the case of BUHARI v OBASANJO (2005) ALL FWLR (Pt 273) p.1 at 133 – 134. Given its ordinary meaning, learned Counsel submitted that, there must be filed and served the Respondents’ reply or Petitioner’s reply whichever is applicable before the duty to apply for pre-trial conference arises.
It is the submission of the learned Counsel that in the case on hand, the filing and service of reply aforesaid is a condition precedent to the application for pre-hearing conference. We were urged to so hold. Conversely, learned Counsel further submitted, that an application for pre-trial conference made before the filing and service of the respondents’ reply is irregular and premature. Learned Counsel opined that none of the Respondents had filed any reply and without the respondents’ reply there cannot be any Petitioner’s reply.
It is the contention of the learned Counsel that none of the Respondents filed and served any reply as at 18th July, 2007. Unfortunately, learned Counsel went on the Election Tribunal and Court Practice Direction, 2007 is silent on this situation. Learned Counsel argued that in an attempt to find a solution to the problem, the tribunal drew inferences or conclusions that amounted to judicial legislation which the Tribunal had no powers to do. The conclusion or inference made by the Tribunal, learned Counsel further argued, did not flow from the interpretation of the Practice Direction but the enacting or stating of further rules in a situation where the provisions were silent. The Supreme Court, he went on disagreed with this Practice in the case of BUHAHI v OBASANJO (supra) Part 174 page 329 at 386 paragraphs A – B.
It was submitted by the learned counsel that a distinction exists where a Court is called upon to interpret the provisions of a rule of Court or statute from where the Court embarks on “feeling the gap” in a situation where there exists no provision at all. Though the Practice Direction 2007 has provided for the application for pre-hearing conference in a situation where the Respondent has filed a reply, it has not provided for a situation where no reply has been filed.
In the above scenario, learned Counsel further submitted that it is not the duty of the Tribunal to speculate on the intention of the legislature no matter the compelling invitation to dos so by the circumstance. Learned Counsel urged us to resolve this issue in favour of the Appellant and hold that the duty to apply for a pre-hearing conference has not arisen in the circumstance where no replies have been filed by the Respondents.
Assuming without conceding that the tribunal was entitled to interpret or provide any lacuna in paragraph 3 of the Practice Direction, 2007 as it did, learned Counsel submitted that the Court ought to avoid an interpretation or the application of the law which will give primary to technicality. He relied on the cases of EKPUK v OLWN (2002) FWLR (Pt. 84) page 145, SOLEYE v. SONIBARE (2002) FWLR (Pt.95) page 221 at 235 (0 – 9), UNIVERSITY OF LAGOS v. AIGORO (1985) 1 NWLR (Pt.1) 143; U.B.A. PLC v MODE NIGERIA LTD (2001) FWLR (Pt. 40) 1664 referred to) p. 235, paras D – G.
Learned Counsel for the 1st Respondent on the other hand, contended that Election Petitions are proceedings sui generis. It is abundantly regulated by statute which sets out the procedures to be adopted including matters that are obligatory and mandatory as well, learned Counsel further contended.
It is the submission of the learned Counsel that the President of the Court of Appeal pursuant to the express provisions of Section 285(3) of the Constitution of the Federal Republic of Nigeria. 1999 made the Election Tribunal and Court Practice Directions 2007 which as a constitutional directive is binding and carries the full force of the Constitution being a subsidiary legislation made pursuant to powers granted by the Constitution.
Learned Counsel submitted that it is misconceived for the Appellant to suggest that the duty imposed on him by the Practice Directions will not be performed by him until all the respondents file their replies even when the law stipulates the period allowed for filing of petition and reply.
Learned Counsel for the 2nd to 55th Respondents for his part, submitted that the provisions of paragraph 3 of the Practice Directions are clear and unambiguous that within 7 days after filing and service of Petitioner’s reply on the Respondents or 7 days after the filing and service of the Respondents’ reply, whichever is the case the Petitioner shall apply for the issuance of pre-hearing notice as in form 7F 007.
It is the submission of the learned Counsel that an election petition is heard and determined by an appropriate election Tribunal. The jurisdiction of an election Tribunal is of a special nature, such that a slight default in complying with the procedural step which otherwise could be cured or waived in other proceedings could result in fatal consequences for the petition, except to the except to which the provision of the Electoral Act 2006 relaxed.
Learned Counsel further submitted that it is a misconception of law for the Appellant to suggest that the duty imposed on him by the Practice Direction will not be performed by him until the Respondents file their replies even when the law stipulates the time allowed for filing of petition and reply.
Now, let me begin by saying that a careful perusal of the grounds of appeal filed by the Appellant would reveal the fact that there is nothing absolutely in the said grounds that questions the legality of the Practice Directions.
In the case of UGO v OBIEKWE (1989)) 1 NWLR (Pt.99) p. 566, it was held that issues for determination in a brief must arise from and relate to the grounds of appeal filed and no more. Conversely any issue formulated which has no ground of appeal to support it is worse than useless. See OSINUPEBI V. SAIBU (1982) 7 SC. 104 at 110 – 111; WESTERN STEEL WORKS LTD. V. IRON AND STEEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (Pt. 49) 284 at 304.
The grounds of appeal as can be gleaned from their contents merely raise issues in a matter in which the Tribunal has been excised of all discretion as long as the Practice Direction issued by the President legitimately. The question that arises for determination in this appeal to my mind is whether it was applied rightly or wrongly. Lest I am misunderstood, the issues canvassed by the learned Counsel for the Appellant as I have already started will be given full consideration.
Paragraph 3(1) of the Practice Directions 2007 provides as follows:
“Within 7 days after filing and service of the Petitioner’s reply on the Respondents or 7 days after the filing and service of the Respondents; reply whichever is the case the Petitioner shall apply for the issuance of pre-hearing notice as in form TP007.”
Sub-paragraph (4) of the above paragraph states that:
“Where the Petitioner and the Respondent fail to bring an application under this paragraph the Tribunal shall dismiss the petition as abandoned petition and no application for extension of time to take step shall be filed or entertained. (Underlining supplied for emphasis).
It is instructive to state at this stage that the provisions of the Practice Directions quoted above are clear, simple and unequivocal. By the rules of interpretation of statutes or rules of Court they are to be given their plain and ordinary meaning. There is nothing in those paragraphs that will lead to absurdity in the adoption of their plain meaning. See the case of BUHARI v OBASANJO (supra).
In the case of LAGOS STATE v M.I. AIGORO (1984) 11 SC. 152 at 196 the Apex Court per Obaseki, JSC held thus:
“It is my view that the Practice Directions more than anything else enhance the prospect of securing compliance with the provisions of the rules and limit the incidence of non-compliance thereby securing quick dispensation of justice. The Court’s principal function is the adjudication of cases coming before it with justice and fairness. The rules of Court are designed to secure the ends of justice in each case within a reasonable time. That was the expressed principal aim of the Practice Directions (as contained in paragraph 6 thereof) in consonance with the entrenched rights of parties in Section 33(1) of the 1979 Constitution.”
Learned Counsel for the Appellant submitted that in view of the provision of Practice Directions 2007 the filing and service of reply is a condition precedent to the application of paragraph 3(4). In other words, before the duty to apply for pre-trial conference arises, replies by either Respondents or Appellants as the case may be ought to have been filed. Learned counsel further submitted that in the case on hand, none of the Respondents had filed any reply, and without the Respondents, reply there cannot be any Petitioner’s reply. With due respect to the learned counsel his submissions on this point are most incorrect and cannot help the case of the Appellant in any way.
It is trite law that where a condition precedent for the performance of a legal step has been provided by the law, failure to take step as stipulated will render every other action null and void.
In the case of GUARANTY TRUST BANK PLC v TANIK INVESTMENT LTD & ANOR (2005) Vol. 13 WRN 25 at 31 this Court per Muhammad, JCA (as he then was) held thus:
“Where a law requires the fulfilment of a precondition before a particular act, substantive or main act is done, non fulfilment of the pre-condition will be prejudicial to the party in default. By the requirements of the law he must take first things first. He cannot jump the initial hurdle set by the law itself.”
See AINA v JINADU (1992) 4 NWLR (Pt.233) 91 at 109 para B and ALHAJI ABUBAKAR AIIMED & ANOR v CROWN MERCHANT BANK LIMITED (2005) 41 WRN 117 at 126 para.
In view of the above, I am of the considered opinion that paragraph 3(1) of the Practice Direction mandatorily enjoins the Appellant to apply for the issuance of a pre-hearing notice. The duty to be vigilant and ensure the sustenance of the petition by applying for pre-trial conference lies on the petitioner/Appellant and his failure to be vigilant does not attract equity on his side as equity aids the vigilant.
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 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 close when the time allowed has lapsed. The cases of BUHARI v OBASANJO (supra) and BUHARI v YUSUF (2003) FWLR (Pt. 174, p. 329 cited by the learned Counsel are not apposite to the facts and circumstances of the case on hand. Learned Counsel yet cited the cases of SOLAYE v. SONIBARE; UNIVERSITY OF LAGOS v AIGORO; U.B.A. PLC v MODE NIGERIA LTD (supra) and submitted that in view of the dicta contained therein, it would amount to a miscarriage of justice to allow a defaulting party (the Respondents) who have failed to file a reply or any defence to the petition to go home smiling with a technical victory over the Petitioner/Appellant who in the circumstances has shown a strong desire to prove his case.
It is instructive at this juncture to pause and say that the learned Counsel has missed the point. The issue relating to noncompliance with the Practice Direction 2007 goes beyond a technical one. it is a substantial issue of jurisdiction. The seriousness of the provisions under s. 3(1) and (4) can be seen in the provisions of paragraph 3 (5) which provides that dismissal of the petition pursuant to sub-paragraph 3 and 4 shall be final and accordingly the tribunal shall be functus officio. The Tribunal lacked the jurisdiction to entertain the petition based on the mandatory provision of the Practice Directions, 2007. See the cases of ILORI v. UZOEGWU (2004) 19 WRN 93 para 17 at 105 per Ogunbiyi JCA; BAMIYI V ATTORNEY-GENERAL OF THE FEDERATION (2006) 6 NWLR (Pt. 66), p.421 and MADUKOLU v. NKEMDILIM (2001) 46 WRN 1. In the case of BAMIYI v A.G. (supra) the Apex Court per Karibi-Whyte JSC said:
“‘Where a provision provides that a thing shall be done, the natural meaning is that a peremptory mandate is enjoined.”
Again, in the case of ILOBI v UZOEGWU (supra) this Court per Ogunbiyi, JCA said:
“Further still, I will wish to restate that the use of the word ‘shall’ presupposes that a Petitioner must comply with the express provision in point and which cannot be compromised. The failure in the matter in issue is fundamental being a condition precedent. In other words that issue of the incompetent nature of the petition goes to the jurisdiction of the tribunal to entertain the suit.”
In the result, I am of the considered view that the lower Tribunal was right when it held inter alia thus:
“That what should the Petitioner do if the Respondent fails to file his reply as is required by law? Should he wait indefinitely until the Respondent – decide to file his reply. If that were to be the case, then an election petition will remain pending for as long as the respondent does not file his reply. That cannot be the intention of the President of the Court of Appeal who made the Practice Directions with a view to facilitating and ensuring expeditious disposal of election petitions which by their nature are sui generis. (Underlining supplied for emphasis).
In the light of all that have been said supra, issues numbers 1 and 2 formulated by the Appellant are resolved against him and in favour of the Respondents.
Issue number 3 is whether in the provision of paragraph 5 of the first schedule to the Electoral Act, 2006 and the Federal High Court Civil Procedure Rules as applicable can avail the Petitioner/Appellant in the circumstance having regards to the provisions of Section 35(d) of the first schedule to the Electoral Act 2006.
Learned Counsel for the Appellant began his consideration of this issue by submitting that this issue arises from the conclusion of the argument in issues 1 and 2. Learned Counsel submitted that the provision of paragraph 35(d) which specifies the procedure to be adopted by the Tribunal in the absence of reply is so clear and unambiguous and does not require the application of a pre-hearing conference which in itself entails the participation of both parties.
It is his further submission that it is no mistake when the Practice Direction omitted the issue of application for pre-hearing conference when the Respondents failed to reply or decline participation in an Electoral Proceedings. Learned Counsel contended that Order 28 Rule 7(1) Federal High Court Rules, 2000 can be invoked to give leverage for the application of provisions of paragraph 35 of the Rules of the Electoral Act, 2006.
It was submitted by the learned Counsel that where the Act or Statutes makes a provision for the doing of an act or thing, the provision of the Practice Direction cannot be applied or interpreted to fetter the provision of a statute. He relied on the cases of AFRIBANK v AKWARA (2006) ALL FWLR (Pt. 304) p. 401 at 429 and LAGOS STATE v AIGORO (1984) 11 SC 152.
Learned Counsel urged us to hold that recourse to the Federal High Court Rules and the provisions of paragraph 35(d) of the first schedule of the Electoral Act 2006 is proper and consistent with the justice of the case.
For his part, learned Counsel for the 1st Respondent contended that issue 3 and ground 4 of the grounds of appeal as well as issue 4 raise the issue of the application of paragraph 35(d) of the 1st schedule for the first time in this appeal. Learned Counsel further contended that they were not raised at the tribunal and no leave was obtained to argue them on appeal. It is the submission of the learned Counsel that the issue are incompetent and should therefore be discountenanced.
Learned Counsel submitted that these issues (3 & 4) did arise and could not have arisen from the conclusion of the argument in issues 1 and 2 of the Appellant’s issues determination.
It is pertinent to state from the on set that a careful perusal of the records of the lower Tribunal would leave no one in any doubt that the application of paragraph 35(d) is being raised for the first time in this appeal. That apart, no leave was sought to raise it in this Court as canvassed by the learned Counsel for the Appellant. The question that must be asked and answered is can the Appellant raise these issues for the first time without leave having been sought and obtained?
In the case of GABRIEL v THE STATE (1989) 5 NWLR (Pt. 122) p. 457 at p. 462 it was held thus:
“The Appeal Court will not entertain a new issue raised in the Court except question of law or the Constitution and then only with leave of Court.”
In the adversarial system we operate in this country, it is well settled beyond peradventure that there is no trial by ambush. As long as an issue is being raised for the first time on appeal without leave it should not be allowed. See the case of PROF. J.A. AKINNYANJU v. UNIVERSITY OF LAGOS (2005) 125 CNJ 159 and GLOBAL TRANSPORT SA v FREE ENTERPRISE (NIG) (2001) 12 WRN P. 136.
In view of the foregoings, issues 3 and 4 are resolved in favour of Respondents and against the Appellant.
In sum, with all the four issue resolved in favour of the Respondents, this appeal must be and it is hereby dismissed as lacking in merit with N30,000.00 costs in favour of the Respondents
Other Citations: (2008)LCN/2729(CA)
