Usman Ali Maitsidau & Anor V. Engr. Hamisu Ibrahim Chidari & Ors (2008)
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BABA ALKALI BA’ABA, J. C. A.
This is an appeal against the Ruling of the Kano State Governorship and Legislative Houses Tribunal delivered on the 7th day of August, 2007, contained at pages 160 – 163 of the record of proceedings.
The 2nd appellant sponsored the 1st appellant to contest election into the Kano State House of Assembly for Makoda Constituency, Kano State while the 1st respondent contested the said election under the platform of the 2nd respondent, the Peoples Democratic Party, (PDP).
The election was conducted on the 14th of April, 2007, after which the result was declared by the 3rd respondent, on the 16th day of April, 2007. The 1st respondent was declared the winner of the said election.
Dissatisfied with the declaration and return of the 1st respondent as the winner of the said election, the appellants, on the 12th of May, 2007 filed an election petition at the Tribunal challenging the declaration and return of the 1st respondent as the winner of the said election on the ground that the election is invalid by reason of corrupt practices and non-compliance with the Electoral Act because of the burning down of
the 6th Respondent’s office in Koguna, Makoda Local Government where voting materials for polling units in Durma Ward was kept, thereby causing a serious breach of the peace warranting the cancellation and postponement of the election of the said ward.
Those 6th respondents’ staffs were also unable to conduct election in Maitsidau ward because of violence. The petition was served on respondents and the 1st respondent filed a reply dated and filed on 6/7/07. The petitioners/appellants filed a Petitioners reply to the 1st respondent’s reply dated 10/7/07 on 11/7/07 contained at pages 91 – 98 of the record of proceedings. The 3rd – 23rd respondents filed a motion for extension of time to file a reply to the petition dated 18/7/07. The 1st respondent filed a motion dated and filed on 18/7/07, praying for the following orders:
“1. An order dismissing the Election Petition for want of jurisdiction by the Hon. Tribunal.
- For such further order(s) as the Hon. Tribunal may deem fit to make in the circumstances.”
While the motions filed by the 3rd – 23rd respondents and the 1st respondent respectively were pending, the petitioner/ appellant filed an application for the issuance of a pre-hearing notice. A motion dated 26/7/07 was filed in respect of the pre-hearing notice and the motion came up on 7/8/07 for hearing and the Tribunal suo motu raised the issue that the application was filed out of time consequently the Tribunal dismissed the petition in accordance with the provisions of paragraph 3(4) of the Election Tribunal and Court Practice Directions as an abandoned petition. The election Tribunal in its ruling at pages 160 – 163, inter alia held:
“Having struck out the said motion on notice, there is nothing left before the Tribunal in relation to pre-hearing application. By Section 74(1) (m) of the Evidence Act Cap. 112, Laws of the Federation of Nigeria, 1990, this Tribunal is allowed to make reference to the processes before it. We have meticulously and painstakingly cross check the correspondence file of this petition and discovered that the Petitioner’s reply was filed on 11/7/07 and served on the respondents on 12/7/07 and 16/7/07 respectively. By paragraph 3(1) of the Practice Directions, the Petitioners are supposed to apply for Pre-Hearing within
7 days after service of their reply. The seven days after the service of Petitioners’ reply i.e. using the 16th July, 2007 as the last date, will expire on 23rd July, 2007. As at today 7th August, 2007, there is no application to that effect. There being no application there is nothing to adjourn.
Consequently we invoke the powers conferred upon this Tribunal by paragraph 3(4) of the election Tribunal and Court Practice Directions 2007 to dismiss the petition as an abandoned petition. The petition is accordingly dismissed as an abandoned petition.”
Dissatisfied with the Ruling of the Tribunal dated the 7th day of August, 2007 contained at pages 160 – 163 of the record of proceedings, the appellants by their notice of appeal dated and filed on the 21/8/2007 containing three grounds of appeal, at pages 164 – 167 of the record of proceedings, appealed against the Ruling to this Court.
In accordance with the Court of Appeal Rules Practice Direction 2007, the appellants filed their joint brief of argument dated the 6th day of September, 2007, filed on the 7th day of September, 2007 while the respondents’ brief dated and filed on the 21st day of September, 2007, was deemed properly filed and served by order of this Court granted on the 15th day of October, 2007.
At the hearing of the appeal which came up on the 26/3/08, counsel to the parties adopted and relied on their respective briefs of argument without advancing oral argument.
From the three grounds of appeal, the appellants distilled one issue for determination in this appeal as follows:
“1. Whether having regard to the steps taken by the Petitioners and the respondents counsel in the petition and all the pending applications before the Tribunal, the Tribunal was justified in law to have dismissed the petition under paragraph 3(4) of the Election Tribunal and Court Practice Direction 2007 as an abandoned petition.”
The respondents on the other hand also formulated only one issue for determination in this appeal which reads:
“1. Whether having struck out the motion for the issuance of pre-hearing notice the Election Petition Tribunal was right when it dismissed the petition as an abandoned petition notwithstanding the pending motions.”
Learned counsel for the appellants, M.K. Dabo, Esq, commenced his submission by first giving the background facts of the case in his brief of argument as follows: He stated that there were three pending applications before the Tribunal viz, the application by the petitioners/appellants for pre-hearing notice dated 25/6/07 filed on 26/7/07 at pages 147 – 152 of the record; the motion on notice dated 17/7/07 filed on 18/7/07 for extension of time to file memorandum of appearance and Reply filed by the 3rd – 25th respondents and a motion on notice dated and filed on the 18th day of July, 2007, praying for:
“An order dismissing the Election Petition for want of jurisdiction by the Hon. Tribunal.
- For such further order(s) as the Hon. Tribunal may deem fit to make in the circumstances.”
He then submitted that the Tribunal was in error to have first taken for consideration and determination the motion for the issuance of prehearing notice instead of the motion for extension of time which ought to have been taken first because if the said motion to file memorandum and reply had first been taken, the petition would have been saved from dismissal as issues would have been joined between the parties in the petition.
It is argued by the learned counsel for the appellants that it is now the general practice that where there are in the case two pending motions, one seeking to terminate the proceedings on a ground of irregularity, the other seeking to regularize the irregularity, the latter is to be taken first. See NALSA AND TEEM ASSOCIATES v. N.N.P.C (1991) 8 NWLR (PT.212) 652. Pointing out that the issue raised by the Tribunal suo motu has the effect of terminating the proceedings in the petition. Relying on the Supreme Court case of LONG JOHN v BLAKK & ORS. (1998) 5 SCNJ 68, where the Court held that where there are two motions, one seeking to dismiss the appeal for failure to file appellant’s brief and the other seeking an order for extension of time within which to file the appellants brief, the one seeking extension of time should be heard first. Citing the cases of CONSORTIUM M.C 3632 LOT 4 NIGERIA v. N.E.P.A. (1991) 7 S.CN.J. 1 and OLUMESAN v. OGUNDEPO (1996) 2 NWLR (PT.433) 628 at 646 – 647-648, learned counsel for the appellants contended that the Tribunal ought to have leaned in favour of the proceedings that will result in substantial justice to the parties.
According to the learned counsel for the appellants, the proceedings of 7/8/07 was premature in that the Tribunal ought not to have taken and considered the petitioners’ (appellants) application for the issuance of the pre-hearing notice until the 1st and 2nd respondents’ application dated and filed on 18/7/07 which is contained at pages 131 – 140, has been taken.
Reference was made by the learned counsel for the appellants, to the Electoral Act, 2006, 1st Schedule, paragraph 49(5) to the effect that an objection challenging the regularity or competence of an election shall be heard and determined before any further step in the proceedings. If the objection is brought immediately the defect on the face of election petition is noticed. He pointed out that the 1st and 2nd respondents’ motion referred to was before the Tribunal when the proceedings of 7/8/07 was taken and argued that the motion referred to ought to have been taken and determined before further steps are
taken on the petition. See UZOBINMA v. UDENWA (2004) 1 NWLR (PT.854) 303 at 327-328 Paras. E.
In conclusion, learned counsel for the appellants urged the court to hold that the order made on 7/8/2007 by the Tribunal was perverse hence it has occasioned a miscarriage of justice.
Accordingly the learned counsel for the appellants urged that since the petition was not listed by the Tribunal for hearing on the 7th day of August, 2007, for the purpose of dismissal as an abandoned petition in accordance with Paragraph 3(1) – 3(4) of the Election Tribunal and Court Practice Directions 2007, the said petition ought not to have been dismissed by the Tribunal. He urged the Court to allow the appeal and grant the reliefs sought by the appellants.
It is the submission of S.J. Gani, Esq, learned counsel to the respondents in this appeal, in response to the submission of the learned counsel for the appellants that it settled that the jurisdiction of an Election Petition Tribunal to deal with election petition is very special in nature, different from that of an ordinary civil case. Pointing out that the procedure is governed by law made specially to regulate the proceedings in respect of election matters. See BUHARI v. YUSUF (2003) FWLR (PT.174) 329 at 355 where the Supreme Court of Nigeria per Uwaifo, JSC, held, that it is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. So an election petition is neither seen as a civil preceding in the ordinary sense nor, of course a criminal proceedings. It is sui generis. It is stated by the learned counsel for the respondents that the Hon. President of the Court of Appeal is empowered by the provisions of Section 285(3) of the Constitution of the Federal Republic of Nigeria, 1999 and paragraph 50 of the 1st Schedule of the Electoral Act, 2006, to issue the Practice Directions applicable to the Presidential, Governorship, National Assembly and State Assembly Election petition. See ABUBAKAR v. INEC (2004) 1 NWLR (PT.854) 207 at 227 Paragraphs A-D. He stressed that by paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007, a petitioner is supposed to apply for the issuance of prehearing notice within seven days after the service on him of the respondent’s reply (not respondents’) reply and where the petitioner chooses to file a reply to the said reply to the respondent’s reply, it must be done within the seven days of the service of the reply of the respondent on the petitioner.
That once the petition complies with paragraph 3(1) of the Election Tribunal and Court Practice Directions, the Tribunal shall invoked the provisions of paragraph 3(2) of the Election Tribunal and Court
Practice Directions, 2007, by issuing a pre-hearing conference notice.
Furthermore, learned counsel for the respondents submitted that going by the provisions of paragraph
6(1) of the Election Tribunal and Court Practice Directions no motion shall be moved as all motions shall come up and be determined at pre-hearing session except in extreme circumstances with the leave of the Tribunal. Reference was made to paragraph 3(3) and 3(4) of the Election Tribunal and Court Practice Directions, 2007, by the learned counsel for the respondents who stated that where a respondent fails to carry out his obligations as provided in paragraph 3(3), the Election Tribunal will invoke its powers as provided in paragraph 3(4) of the said Election Tribunal and Court Practice Directions, 2007. He further stated that the petitioners/appellants having filed and served a reply to the 1st respondent’s reply on the 16th day of July, 2007, ought to have applied within seven days for the pre-hearing notice in compliance with the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007, as the expiration date of the seven days period, is the 23rd day of July, 2007. Learned counsel for the respondents emphasized that the application for the pre-hearing notice as provided by paragraph 3(1) is the foundation upon which the petition and indeed the hearing of the petition is based. Consequently, it is a condition precedent to the hearing of the petition.
Concluding his submission, learned counsel for the respondents submitted that paragraph 49(5) of the 1st Schedule to the Electoral Act, 2006, is inapplicable to the instant appeal and in the circumstances, the Tribunal was right in dismissing the petition as that was the only option left to the Tribunal. He urged us to dismiss the appeal and affirm the ruling of the Tribunal dated 7/8/07.
Although both counsel to the appellants and the respondents couched their respective sole issue in different words, nevertheless, in effect they are the same. However, I find the issue distilled by the learned counsel for the respondents more apt for the determination of this appeal, for that reason I adopt it in the determination of this appeal.
Reference was made and reliance placed on the provisions of paragraph 3(1) – 3(4) of the Election Tribunal and Court Practice Directions, 2007 by both counsel in their respective briefs as well as the
Tribunal as the said provisions formed the basis of the ruling appealed against by the appellants. It is therefore pertinent to reproduce the provisions of paragraphs 3(1) – 3(4) of the Election Tribunal and
Court Practice Directions, 2007 as follows:-
“3.1 Within 7 days after the filing and service of the Petitioner’s Reply on the Respondent, or 7 days after the filling 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.
3.2 Upon application by a petitioner under sub-paragraph (1) above, the Tribunal or Court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in Form TF 008 for the purposes set out hereunder:
(a). disposal of all matters which can be dealt with on interlocutory application;
(b). giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions;
(c). giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need to expeditious disposal of the petition;
(d). fixing clear dates for hearing of the petition.
3.3 The Respondent may bring the application in accordance with subparagraph (1) above 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.
3.4 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.”
The submission of the learned counsel for the appellants relying on the authorities cited that a court faced with two applications, one to kill and one to save, should first give preference to the application to save and take it first before taking the one to kill, is sound and well founded but that only applies in ordinary civil cases as rightly submitted in my view by the learned counsel for the respondents.
An election petition is heard and determined by an appropriate Election Tribunal as usually provided by the Constitution. In the 1999 Constitution, such provision is made under Section 285 and the 6th Schedule to the Constitution. The procedure is largely governed by a law made specially to regulate the proceedings. The jurisdiction of an Election Tribunal to deal with Election Petitions is of very special natures different from that in an ordinary civil case; see ONITIRI v. BENSON (1960) S.CN.L.R. 314 at 317.
It is plain that the proceedings are special for which special proceedings are made under the Constitution. See OYEKAN v. AKINJIDE (1965) N.M.L.R. 381 at 383. Election Petitions are distinct from the ordinary civil proceedings. See OBIH v. MBAKWE (1984) 1 S.CN.L.R. 192. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise either could be cured or waived in an ordinary case could result in fatal consequences to the petition.
It is clear from the ruling of the Election Tribunal dated the 7th day of August, 2007, that the appellants failed to comply with the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007. This is so because the petitioner’s reply was filed on 11/7/2007 and served on the respondents on 12/7/2007 and 16/7/2007 respectively and by paragraph 3(1) of the Election Tribunal and
Court Practice Directions, 2007, the petitioners are supposed to apply for the pre-hearing notice within 7 days after service of the reply.
The prescribed seven (7) days after service of their reply that is using the 16th July, 2007, will expire on 23/7/2007 and that even on the 7th day of August, 2007, there was no application for the pre-hearing notice hence the striking out of the petition by the Tribunal in accordance with the provisions of paragraph 3(4) of the Election Tribunal and Court Practice Directions, 2007.
It is trite that a court is entitled to look at its own record and proceedings on any matter and take notice of their contents although they may not be formally brought before the court by the parties. See ONWUKA v. OWOLEWA (2001) 7 NWLR (PT.713) 695 at 714. Relying on the just cited authority the Tribunal has the right and is entitled to proceed and determine the petition by its ruling dated 7/8/07.
It was held in N.A. WILLIAMS & ORS. V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 S.C. 145 at 152 – 153 that Rules of court are meant prima facie to be obeyed and no favours should be shown for not obeying same. It is clear from the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007, that the provisions of paragraph 3(1) must be complied with and cannot be circumvented. See TEJUOSO v. OMOJOWOGBE (1998) 7 NWLR (PT.559) 628 at 634.
It is no doubt patent that the decision of the Election Tribunal contained in its ruling dated the 7/8/07 is an exercise of the discretionary power of the Tribunal and that it is settled law that it is a jurisdiction which is vested in the Election Tribunal. It must be borne in mind that in this regard, care must be taken not to attempt to substitute any discretion for the discretion of the Election Petition Tribunal. The true principle is that, for an appellate court to interfere with the exercise of the discretionary power vested in the court below, it must be shown how that power was wrongly exercised to justify the intervention of the appellate court. See ALSTHON S.A. v. SARKI (2005) 3NWLR (PT.911) 208 at 224 – 225, CEEKAY TRADERS LTD v. GEN. MOTORS CO. LTD (1992) 2 NWLR (PT.222) 132 and RASAKI A. SALU v. MADAM TOWURO EGEIBON (1994) 6 NWLR (PT.348) 23.
Learned counsel for the appellants strenuously argued that the Tribunal was in error to have dismissed the petition going by the provisions of paragraph 49(5) of the 1st Schedule of the Electoral Act, 2006. Paragraph 49(5) reads:
“An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings if the objection is brought immediately the defect on the face of the election petition is noticed.”
As the motion on notice for extension of time filed by the 3rd – 25th Respondents, referred at page 5 of the appellant’s brief, not having been filed on behalf of the appellants, the learned counsel for the appellants cannot rely on it particularly that the 3rd – 25th respondents have not complained at all. The learned counsel for the appellants cannot hold brief for the respondents.
In any event, the relief being sought by the 3rd – 25th respondents is the same that was granted by the Tribunal. It should be noted that the Tribunal is precluded by the provisions of paragraph 3(4) of the Courts Practice Directions, 2007 from taking any further step as the appellants’ failure to comply with the provisions of paragraph 3(1) of the Court Practice Directions, 2007 has in effect ousted the jurisdiction of the Tribunal hence the question of determining the issue of jurisdiction does not even arise. The 3rd – 25th respondents who in fact did not file any brief are in default of paragraph 3(3) of the Courts Practice Directions, 2007 hence the complaint of the appellants is not justified.
The question or issue of doing substantial justice to the petition does not arise at all where the Tribunal by the provision of paragraph 3(4) of the Election Petition Tribunal and Court Practice Directions 2007 is precluded from hearing the petition where there is noncompliance with the provisions of paragraph
3(1) of the Election Tribunal and Court Practice Directions, 2007.
In view of the aforesaid, I resolved the sole issue in the affirmative in favour of the respondents against the appellants.
In the result, I hold that there is no merit in this appeal which is hereby dismissed. I affirm the Ruling of the Governorship and Legislative Houses Election Tribunal, Kano State in Petition No. EPT/KNS/HA/10/07 delivered on the 7th day of August, 2007.
I award costs assessed at N30, 000.00 to the 1st respondent only.
Other Citations: (2008)LCN/2771(CA)
