Dr. Mrs. Marian Nneamaka Comfort Ali & Anor. V. Senator Patrick Enebili Osakwe & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A,

This is an appeal against the ruling of the Governorship and Legislative Houses Election Petition Tribunal sitting at Asaba, Delta State delivered on Thursday 6th September 2007 wherein the Tribunal granted the Respondents’ motion to dismiss the petition and refused the Petitioners’ motion for enlargement of time within which the Petitioners may apply for the issuance of pre hearing notice.

The facts leading to this appeal are as follows:

The Petitioners Dr. Mrs Marian Nneamaka Comfort Ali and the Peoples Democratic Party filed a petition dated 26/5/07 the same day, They are the Appellants in this appeal. The Petition was against (1) Senator Patrick Enebili Osakwe (2) Accord Party (3) INEC They are the Respondents in this appeal.

The Petitioners at the Election Petition Tribunal claimed sundry reliefs principal of which is a declaration that the 1st Respondent was not properly and/or not validly nominated by the 2nd Respondent – Accord party to contest the election to the office of Senator. The 1st and 2nd Respondents tiled a Reply to the petition on 29/6/07 and on the same day filed a separate notice of preliminary objection to the jurisdiction of the Tribunal to entertain the petition itself. The 3rd Respondent filed on 19/6/07 a similar notice of preliminary objection to dismiss the petition for lack of jurisdiction of the tribunal to hear the petition.

The Petitioners filed a Reply to the 1st and 2nd Respondents’ Reply on 10/7/07. On the same 10th July 2007 the Petitioners filed a motion for extension of time to file Petitioner’s Reply to the 3rd Respondent’s Reply. It was never heard or determined by the Tribunal. On 13/7/07, three applications were filed:

(1) The Petitioners filed an application to set down for pre-hearing conference.

(2) 1st & 2nd Respondents filed another application to dismiss the petition.

(3)The 3rd Respondent also filed another application to dismiss the petition.

On 27/7/07 the Petitioners again filed a motion for an order extending time within which to apply for issuance of pre hearing notice and secondly for setting down for pre trial conference. On 1st Aug 07, the three applications were consolidated and argued before the Tribunal with consent of all counsel. They are:

i. Motion dated 13/7/07 filed by the 1st & 2nd Respondents to dismiss the petition for failure to apply for issuance of pre-trial Hearing Notice in accordance with the Practice Directions.

ii. Motion dated 13/7/07 by the 3rd Respondent which is in pari materia with motion (1) above.

iii. Motion dated 25/7/07 filed on 27/7/07 by the Petitioners for an order for extension of time to apply for the issuance of pre-hearing notice as in form TF 007 and an order deeming the previous applications in like manner filed on 13/7/07 and 17/7/07 respectively properly filed.

The learned Tribunal on 6/9/07 gave a considered ruling and granted 1st – 3rd Respondents applications, refused the Petitioner’s application and for reason of failure to apply within time for the issuance of pre hearing Notice dismissed the Petitioners’ petition. The Petitioners now Appellants have appealed against that decision. From the subsisting grounds of appeal, the Appellants initially formulated six issues for determination. I will come to them anon. The Appellants flied an Appellants’ brief in the substantive appeal dated 10/12/07 on same day but deemed filed on 11/12/07.

Thereafter the 1st and 2nd Respondents filed notice of preliminary objection dated 10/01/08 on the same day. The objection was argued with the amended 1st & 2nd Respondents’ brief dated and filed on 17/12/07. The 3rd Respondent filed notice of preliminary objection dated 24/12/07 and filed on 27/2/08. The objection was argued with the 3rd Respondent’s brief of argument filed on 2/01/08 and deemed filed on 10/01/08. The Appellants responded to the notices of preliminary objection filed by the 1st & 2nd Respondents on one part and the 3rd respondent on the other part by incorporating arguments in reply thereto in their Reply to the 1st & 2nd Respondents preliminary objection dated 08/01/08 and filed the same day. The Appellants also filed a Reply dated 10/01/08 on 11/01/08 to the 3rd Respondent’s preliminary objection. The Appellants’ reply brief in the substantive appeal was dated and filed on 8/1/08. The 1st & 2nd Respondents substantive amended brief is dated and filed on 17/12/07 as aforesaid. The 3rd Respondent’s amended brief on the substantive appeal dated 24/12/07 was filed on 10/1//08 as aforesaid.

I will take the preliminary objections raised against the hearing of this appeal first. The 1st & 2nd Respondent counsel stated in. main the following grounds of objection:

(1) The appeal is an interlocutory appeal for which leave of court is required in accordance with S.246(1)(b) of the 1999 Constitution.

(2) There is proliferation of the grounds of appeal

(3) Incompetent notice of appeal.

(4) Lack of jurisdiction of this court.

I have deliberately left out ground 5 of the grounds as set out because it obviously did not arise from the ruling of the tribunal nor from any of the grounds of appeal. It is that the petition as presented relate to Pre-election matters.

The 3rd Respondent in the notice of preliminary objection predicated their objection on the view that the appeal is brought contrary to the provisions of S.246(1)(b) of the 1999 Constitution in that the petition was dismissed for non compliance with the provisions of the Practice Directions and thus the decision did not determine the petition on the merit or decide one way or the other whether either of the parties to the election was duly elected.

Learned counsel for the 1st & 2nd Respondents Messrs Ohwovoriole SAN and Imadegbelo SAN argued that there is proliferation of the grounds of appeal and where this is so the grounds and issues formulated thereon should be struck out being a violation of Order 6 r. 3 & 6 of the Court of Appeal Rules 2007. He further submitted that ground 3 is a direct reproduction of ground 1, and ground 6 duplicates ground 5. He argued that issues 1 & 6 are formulated from ground 11 and this is frowned at as an appellant cannot formulate two issues from one ground of appeal. He cited DR. SENATOR UKPO V. MR. ADEDE (2001) FWLR Pt. 77 Pg. 850 at 867.

The Appellants’ counsel Chief Dr. Chimezie Ikeazor SAN and Rickey Tarfa SAN in response argued that the Appellants have the right to formulate as many grounds of appeal as they think fit provided they each raise a distinct complaint which is all the Appellants have done in this case. He cited EZEKWESILI V. ONWUAGBU (1998) 3 NWLR Pt. 541 at 217.

Appellants’ counsel also argued that a ground of appeal is competent where a reasonable complaint has been raised in respect of the judgment being appealed against. Counsel argued that even if there is proliferation, it amounts to mere surplusage and may be ignored by the court. They cited-

(1) DEGI v. FRANCIS (1999) 3 NWLR PT.596 Pg. 576 at Pg. 588

(2) MILITARY ADMINISTRATOR OF BENUE STATE v. ULEGEDE (2001) 17 NWLR Pt. 741 pg. 194.

(3) Bango v. Chado (1998) Pt. 564 Pg. 139 at Pg. 148

I have looked at the grounds of appeal as filed by the Appellants on 17/9/07. Clearly grounds 1 & 3 are exactly the same, ground 6 is however not a repetition of ground 5 . Be that as it may, what is the implication where there is duplication of grounds of appeal? Order 6 r. 3 & 6 of the 2007 Court of Appeal Rules cited by 1st & 2nd Respondents’ counsel are to the effect that vague grounds or incompetent grounds are liable to be struck out. My own humble view is that where it appears as in this case that each ground of appeal in itself is a good and competent ground, but there is duplicity in relation to one or two of them, the court are obliged to ignore the surplusage and countenance the grounds of appeal and issues formulated thereon. After all, the essence of a competent ground of appeal is to apprise the opposite party of the nature of the appellants’ complaint in words that are not vague. See Arewa Paper Converters v N.I.D.C (2006) 7 SCNJ 457; EZEKWESILI v. ONWUAGBU (1998) 3 NWLR Pt. 541 pg. 217 at 244 where this court held:

” … an appellant has a right to file as many grounds of appeal and issues as he thinks fit. The Appellant in this appeal having claimed and exercised this right, this Court cannot seriously complain except to say that the burden of our work is made slightly more tedious and complex.” Likewise, where there is duplicity, the Appellant is at liberty to withdraw or abandon the surplusage by neglecting to formulate issues based on them. See Hon. Araka V. Ejeagwu (2000) 12 SCNJ 206. This Appellants’ counsel had done that when he abandoned the surplusage in paragraph 3: 19 of his brief. Thus grounds 3, 4, 7 and 12 being abandoned by the Appellants, the grounds are hereby struck out. On the point raised about the Appellants’ counsel distilling more than one issue from a ground of appeal, the decision law is that issues for determination should contain points raised in one or more grounds of appeal – that is multiple grounds may raise an issue whereas issues should not out number grounds of appeal. See Stirling Civil Engineering Nig Ltd v. Ambassador Mahmood Yahaya (2005) 4 SCNJ 133; Dr. Mazie v. Chike Mbamalu (2006) 7 SCN./ 411.

I agree with learned 1st & 2nd Respondents’ counsel that it is improper to formulate multiple issues from one ground of appeal. See Mercantile Bank of Nig & Anor v. Linus Nwobodo (2005) 7 SCNJ 569. What however is the significance of the Appellants’ counsel’s impropriety in formulating more than one issue from a ground of appeal? Pats-Acholonu JSC said in Mercantile Bank v. Nwobodo supra at Pg, 572 that the implication is that there has been a parade or display of palpable ignorance nay culpable lack of knowledge of the law to the effect that the appellant’s counsel is not sure what he is appealing against. In that case the Supreme Court dismissed the appeal because the sole ground of appeal was incompetent, as it did not arise from the judgment of the court below. In the case at hand, I would not go as far as to strike out the multiple issues 1 & 6 derived from ground 11 which is a competent ground of appeal because the Supreme Court did not recommend such an extreme sanction but merely to comment that it shows lack of understanding on the part of counsel.

The next head of objection by the 1st & 2nd Respondents is to the effect that the appeal without leave to this court is incompetent, the decision of the lower court being not a decision or ruling envisaged under S. 246 of the 1999 Constitution. This head of objection also tallies with the sale ground of objection raised by the 3rd Respondent’s counsel as earlier set out in this judgment. I will consider all arguments of the entire Respondents’ counsel and the answer given to them by the Appellants’ counsel together. Learned Senior Counsel for the 1st & 2nd Respondents submitted that the notice of appeal filed on the 17/9/07 by the Appellants without leave of this Court or the Tribunal below is incompetent as the Tribunal’s ruling of 6/9/07 was not a decision or ruling envisaged under S. 246 of the 1999 Constitution. Learned Senior Counsel argued that for there to be an appeal as of right the election petition must have been determined on the merits. Where a decision although terminating the rights of the parties is made in the course of the proceeding, such decision is one made in an election petition and not on an election petition. Learned Senior Counsel cited Onitiri v. Benson (1960) 5 FSC 150 at 153 and Okon v. Bob (2005) ALL FWLR Pt. 243 Pg. 674 particularly the later in extensio.

Learned senior counsel for the 3rd Respondent Mr. Ogaga Ovrawah on this issue argued that while S. 246 regulates the conditions of a valid appeal, and that the dismissal of the petition not being on the merits does not confer any right of appeal on the Appellants being a decision in an election petition rather than a decision on an election petition. He cited Orubu v. NEC (1988) 5 NWRL Pt. 94 Pg. 323 at pg. 355; Okokhue v. Obadan (1989) 5 NWLR Pt. 120 Pg. 185; also Okon v. Bob (2004) 1 NWLR PI. 854 pg. 378.

He proffered a slightly divergent view from counsel to the 1st & 2nd Respondents by insisting that the Appellants do not have a right of appeal by way of leave under S.242 of the Constitution since S.242 was made subject to S.241. He submitted that the phrase “subject to” is used to introduce a condition restriction and limitation. It shows an intention to subordinate a provision to the section it is subjected to. He cited Tukur v. Government of Gongola State (1999) 4 NWLR Pt. 117 pg. 517 at pg. 529. He argued that a community reading of S.241 and 242 of the 1999 Constitution with other provisions would show clearly that they do not apply to appeals from election petitions.

Finally on this issue learned counsel argued that the express word ‘election’ in S. 246(1)(b) of the Constitution makes it a special provision made for election appeals alone.

In answer to all counsel for the Respondents, learned Senior counsel for the Appellants argued that the cases cited by 1st & 2nd Respondents counsel are no longer good law particularly Orubu v. NEC supra and that the Supreme Court had departed from same in Awuse v. Odili (2003) 18 NWLR Pt. 851 pg. 116. He argued that the case of Okon v. Bob cited by the both counsel was arrived at by this court per incuriam since it did not consider the Supreme Court’s decision in Awuse v. Odili supra. He argued that post 1999 Constitution appeal lies as of right from any decision of an election petition tribunal to the Court of Appeal.

This issue of the right of appeal of a party to the Court of Appeal from a decision of the Election Petition Tribunal has generated much heat in recent times and this court made a pronouncement on this issue recently in Amgbare v. Sylva (2007) 18 NWLR Pt. 1065 Pg. 1. In Amgbare v. Sylva, supra at Pg. 19 Galadima JCA reading the leading judgment held thus

“The law is fairly settled that there is no right of appeal against an interlocutory decision in an election petition…………….. ”

My Lord. In Amgbare v. Sylva(1) also referred to the case of Awuse v. Odili. The decision also relied heavily on the case of Oruba v. NEC Supra. The decision also went on to distinguish the cases of Chief Evarisi Uba v. Dr Okey Enemno (2006) All FWLR Pg. 311 and Buhari v. Obasanjo (2005) 13 NWLR Pt. 941 Pg. 1 from the facts in Amgbare v. Sylva(1)

In Amgbare v. Sylva, the petitioners/appellants appealed against the ruling of the election petition tribunal which granted the Respondents (-who were 2nd – 7th Respondent in the petition) extension of time to file a reply and refusing an application to bar them from defending the appellant’s petition. There is therefore no doubt that the ruling of the lower tribunal in that case was purely an interlocutory decision. The facts are quite different from this one where the rights of the parties have been determined even though not on the merits. Even though the issue put before the Supreme Court in Awuse v. Odili was whether the decision of the Court of Appeal sitting as an Appeal Tribunal was not appealable to the supreme court, the apex court made far reaching and comprehensive pronouncements while considering S.246(1)(2) & (3) of the 1999 Constitution which we cannot just brush aside.

Let us take a closer look at the decision in Awuse v. Odili by the Supreme Court. I will hereunder make copious references from the decision from Pt. 851 of NWLR.

Kutigi JSC (as he then was) who read the leading judgment refused categorically to answer the question agitating our minds that is it the jurisdiction of the court of appeal in respect of appeals from the election petition tribunal be they interlocutory or as in this case one which though not on the merit determined the rights of the parties. Read His lordship at pg. 151

“It must be emphasized here now that whether the decision of the Governorship election tribunal striking out the petition was interlocutory or not, is a matter to be raised and decided in the Court of Appeal itself and not in this court. So also is the question whether the Court of Appeal has or has not the jurisdiction to entertain an interlocutory appeal in respect of an election petition as contended by Mr. Sofola.”

His lordship refused to be drawn into our fray. My Lord Mohammed JSC contributing and supporting the lead judgment was not so reticent.

Read his Lordship on Pg. 154 – 155 Para H.A

“The appellant’s counsel has argued that this appeal concerns an interlocutory decision and not a decision on the merit. An answer to this submission is the recent decision of this court in the case of Mohammed Buhari & 2 Ors. v. Chief Olusegun Obasanjo & Ors. Case No. SC.194/2003 9 (unreported) delivered on 23rd September, 2003. In that case the full panel of this court ruled that “decision” as has been defined under section 318 of the 1999 Constitution included (interlocutory) ruling in any proceedings.”

My lord Justice Onu JSC held on Pg. 156 of the same judgment referring to Buhari v. Obasanjo that:

“In the former case, the full panel of this court ruled correctly in my view, that “decision” as defined under section 318 of the 1999 Constitution included interlocutory ruling in any proceedings.”

Iguh JSC on his Lordship’s part said at pg. 157 of the report that

“In making provision in respect of “decision” of the Court of Appeal in election petition matters, section 246(3) of the 1999 Constitution makes no distinction between “interlocutory” and/or “final” decision of the court.”

Uwaifo JSC was direct and live. Hear His lordship at Pg. 164.165

“The definition of “decision” in section 318(1) of the 1999 Constitution gives a wide implication to any ‘determination’ by a court. This obviously includes any interlocutory decision. It follows that the Court of Appeal has jurisdiction to entertain an appeal from interlocutory decisions of the Election Tribunals set up under section 246 of the 1999 Constitution. The decisions reached therein by the Court of Appeal shall be final by virtue of subsection (3) of that section.

Ejiwunmi JSC at Pg. 169-70 of the same judgment had this to say ” Bearing in mind the argument of the 1st respondent that the jurisdiction of the Court of Appeal is limited only to hearing appeals from the decision of the Governorship Election Tribunals, as to whether any person has been validly elected to the office of governor or Deputy Governor, it is pertinent in the con of this question to look more carefully at the wording of section 246(1) which when read together is as follows:-

“An appeal to the Court of Appeal shall lie as of right from the decision of the Governorship Election Tribunal on any question as to whether any person has been validly elected to the office of Governor.” (Italics mine)

Though the word “any” when used as an adjective, is defined in Longman Dictionary of the English Language thus:-

“one or some indiscriminately, whichever is chosen” was deliberately used by the lawmakers to indicate that an appeal to the Court of Appeal was not limited only to hearing appeals only to whether any person has been validly elected to the office of Governor (Italics mine). It follows therefore that the provisions of section 246(1) allow appeals to lie to the Court of Appeal in respect of interlocutory decision of the Governorship Election Tribunals and the other tribunals named in that section of the Constitution. Be that as it may, the provision of section 318(1) of the 1999 Constitution leaves no one in doubt as to the meaning of decision. It reads: “decision” means, in relation to a court, any determination, of that court and includes judgment, decree order conviction sentence. And upon that premise an appeal surely lies to the Court of Appeal in respect of the interlocutory decision of the Governor’s Election Tribunal sitting in Port Harcourt.”

Tobi JSC in that judgment concentrated his lordship’s energy in debunking the view expressed by Sofola SAN that the decision in Onuaguluchi v. Ndu (2001) 7 NWLR Pt.712 Pg. 309 to the effect that no appeal can lie from the judgment of the court of appeal to the Supreme Court on an election matter is not good law.

All the learned legal giants-Justices of the Supreme Court went to great pains to distinguish the case of Orubu v. NEC from the circumstances of the case in Awuse v. Odili. They were all of the firm view that both cases i.e Orubu v. NEC and Awuse v. Odili must be seen from different statutory and constitutional provisions. Uwaifo JSC explained that Orubu had to be interpreted the way it was because Para 27(1) of the 3rd schedule to Decree No.37 of 1989 which provided categorically that all interlocutory questions and matters shall be disposed of before a single judge had an overriding effect upon the definition of “decision” in S. 277(1) of the 1979 Constitution being a suspended part of the 1979 constitution, whereas S. 318(1) of the 1999 Constitution still maintains its supremacy and does not distinguish between an interlocutory decision or final decision of an election petition tribunal.

Thus the majority opinion of the learned justices of the Supreme Court as espoused in Awuse v. Odili supra was to confirm their earlier stand in Buhari v. Obasanjo (2003) 17 NWLR Pt. 841 Pg. 446 that S.246 must be read with S.315 of the 1999 Constitution to the effect that whether it was a decision on an election petition or in an election petition there is a right of appeal from the election petition tribunal to the court of appeal. This distinction between a decision in an election petition (during the course of proceedings) and on an election petition (after conclusion on the merits) was made by the Supreme Court in Orubu v. NEC. In that case, the Court held that:

“The only reasonable conclusion that can be drawn by inference if sections 36 and 37 of the Local Government Decree 1987 are read together with the provisions of paragraphs 28(1) and (2) and 51(2) of the schedule 3 of the Decree is that there is a right of appeal from a final decision of the High Court to the Court of Appeal. The inference also extends to any ruling in interlocutory matters in view of paragraph 27(1) of schedule 3 to the Decree except that i n that case t he appeal must be part of the appeal against the final decision of the High Court”

As Uwaifo JSC explained in Awuse v. Odili, the compelling reason for the conclusion in Orubu v. NEC was S.27(1) of schedule 3 to Decree No. 37 of 1987 which states categorically:

“All interlocutory questions and matters shall be heard and disposed of before a Judge……….”

In fact Uwais JSC (as he then was) who wrote the leading judgment observed at pg. 347 of the NWLR that an ordinary look at paragraph 27(1) does not convey the impression that there cannot be an interlocutory appeal in an election petition, but that a look at the whole statute “shows an inclination by the drafters of the Decree to ensure that because of the nature of election petitions and the need for urgency, election petitions are expected to be devoid of procedural clogs which can cause delay”

Ogundare JCA (as he then was) also held in Okokhue v. Obadan (1989) 5 NWLR Pt. 120 Pg. 185 at Pg. 205 that the phrase “a decision on an Election Petition” could only mean a determination of any question whether any person has become elected … Any other decision made in the course of the election proceeding would only be a decision in Election Petition.”

Clearly their Lordships were interpreting Decree No.37 of 1987 a provision regulating the conduct of election petitions during the military era and not a provision under the 1999 Constitution. The matter of on a decision or in a decision emanated from the very wordings of the provisions under review by the Supreme Court. However, the Supreme Court in the new dispensation taking into consideration the powers conferred by the 1999 Constitution on the citizenry to have unfettered access to justice, in Buhari v. Obasanjo and Awuse v. Odili refused to take the bait and stuck to the bald provisions of S. 318 of the 1999 Constitution in interpreting the word ‘decision’ Whether the decision was on a matter/suit or in a matter/suit the position of the Supreme Court is that the word ‘decision’ in S.318 of the 1999 Constitution gives a wide implication to any ‘determination’ by a court, be it interlocutory or final. Thus I would not go so far as to embrace the sweeping and absolute bar imposed on any interlocutory appeal as espoused in Amgbare v. Sylva supra.

In the case at hand, we cannot by any definition describe the ruling of the Tribunal as interlocutory since it determined the rights of the parties. The 1999 Constitution does not curtail a right of appeal be it as of right or with leave where final or interlocutory. We cannot by judicial interpretation reduce the rights of the citizenry to access to the courts. Granted that election matters are sui generis but the Electoral Act defines a ‘decision’ in pari materia with the constitutional interpretation see first schedule- Sec-164 the interpretation section.

I must say with the greatest humility and respect to all concerned that the language of the law as we understand it has always been whether a decision was interlocutory or final not whether the decision was in the matter/cause or on the matter/cause. We speak primarily the language of the law. Why don’t we stick to the legal lexicon. A decision can be interim, interlocutory or final. Proceedings as we can know even in election petitions can become hydra headed, the branches have to be cut off one by one before getting to the trunk and sometimes the death of a branch leads to the death of the tree. In such a case it becomes a final decision. The test to determine whether a decision is interlocutory or final is whether or not it determines the rights of the parties rather than merely an issue finally and the matter will not be further brought back to the same court. The test approved in Nigeria is the nature of the order made. In the case at hand, the right of the parties was determined by the dismissal of the petition by the Tribunal. In effect there is no more petition by the Appellants against the Respondents before the Tribunal. It is the effect of the order rather than the nature of the proceedings from which the order emanated that is relevant. See Union Bank PIc v. Boney Marcus Industries Ltd v. Ors (2005) 7 SCNJ 406; Iwueke v. Imo Broadcasting (2005) 9-10 SCNJ 35, Ogolo v. Ogolo (2006) 2 SCNJ 235 also Ugo v. Ugo (2008) 5 NWLR Pt. 1079 Pg. 1. Since this was a final decision of the tribunal though not on the merits which determined the rights of the parties, the Appellants were not obliged to seek leave to appeal as they could appeal as of right.

I have read the judgment of this court in Appeal No. CA/PH/EPT/9/2008 Hope Democratic Party v. INEC & 3 Ors delivered by this court on 14th April 2008. I am afraid I cannot with the greatest respect go along with the ratio that where the decision of the lower court is not on the question whether any person has been validly elected as a member of the National Assembly, State Assembly, Governor or Deputy Governor, then there cannot be an appeal as of right. My humble view is that all questions brought by way of Election Petitions to the lower Tribunal fall into the categories provided in S. 246(1) (b) (i)-(iii) and S.246(1)(b) is the only provision of the constitution relating to appeal from Election Petitions Tribunal to the Court of Appeal. It is an all inclusive provision. In fact in Awuse v. Odili the learned justices of the Supreme Court refrained from pronouncing that the appeal as of right in respect of any decision of the Election Petition Tribunal was conditional on leave being first sought or obtained. In the construction of statutes in pari materia, previous decision on such statutes must be called in aid. See AG Abia v. AG FRN & 35 Ors (2005) 6 SCNJ 1

The similar constitutional provision as it relates to the Supreme Court is S.233(2)(e)(i)-(iii) of the 1999 constitution which provides as follows:-

“An appeal shall lie from decisions of the court of appeal to the Supreme Court as of right in the following cases.

(e) decision on any question-

(i) whether any person has been validly elected to the office of President or Vice-President under this constitution.

(ii) whether the term of the office of President or vice president had ceased.

(iii) whether the office of president or vice president has become vacant, (Underlining Mine)

The above provision is in pari material with S.246(1)(b) of the Constitution Which states as follows:-

“246(1) An appeal to the court of appeal shall lie as of right from

(b) decisions of the National Assembly Election Tribunals and Governorship and legislative House Election Tribunal on any question as to whether:-

(i) any person has been validly elected as a member of the National Assembly of a State under this constitution,

(ii) any person has been validly elected to the office of Governor or Deputy Governor.

(iii) the term of office of any person has ceased or the seat of any such person has become vacant.

(Underlining Mine)

I am emboldened in this stance by the Supreme decision in Abubakar v. Yar’ Adua 2008 4 NWLR Pt. 1078 Pg. 465 at Pg. 495-496. In that case Niki Tobi JSC held that any appeal on grounds of law alone is as of right. The case was an interlocutory appeal from the ruling of the Presidential Election Petition. It was a question of interrogatories which the Supreme Court held to be a matter of strict law and that there was no need for leave. Tabai JSC was also explicit as Pg. 525 in his exposition of the law and he held in the same case as follows:-

“Section 233 (1) of the 1999 Constitution of the Federal Republic of Nigeria provides to the effect that an appeal from the decision of the Court of Appeal in any civil or criminal proceedings shall lie as of right to the Supreme Court where the grounds of appeal against the decision, whether final or interlocutory, involves questions of law alone and it is filed within the time stipulated by the Rules of Court, the appeal is competent. See Mohammed v. Olawumi (1990) 2 NWLR (Pt. 133) 458. No. leave is required in such a case.”

The Supreme Court has as seen above interpreted Supreme Court appellate Provisions which are in pari material with appellate provisions guiding the Court of Appeal. I dare say we are bound by the interpretation to the effect that where an appeal is on grounds of law alone be it interlocutory or final from the Election Petition Tribunal, no leave is required to hear such an appeal by the court of appeal. In the case at hand, all the twelve grounds of appeal raised questions of law. That head of objection is overruled.

Finally, I am of the firm view that the ruling appealed against being a decision which determined the rights of the parties, there was no need for the Appellants to seek leave of this court or the court below to bring this appeal. See Ugo v. Ugo supra. The preliminary objection is hereby dismissed.

Now, to the substantive appeal. As pointed out earlier, the Appellants by Para 3:19 had withdrawn grounds 2, 3, 7 & 12 and they are hereby struck out. In respect of the remaining grounds of appeal, learned Appellants’ counsel distilled 6 issues for determination to which all counsel for the Respondents subscribed. They are set out below:

ISSUES FOR DETERMINATION

ISSUE ONE

Whether the Honourable Tribunal breached the fundamental principle of FAIR HEARING when it shut-out the petitioners/Appellants depriving them of the opportunity of having their petition heard on the merit on the ground that the petitioners or their counsel failed to apply for the issuance of pre-hearing notice within the time prescribed by the said Practice Directions 2007, and then proceeded to dismiss the petition. (Ground 11).

ISSUE TWO (ABANDONED)

Whether the Honourable President of the Court of Appeal was seized of the power to enact the Tribunal and Court Practice Directions 2007 published as S.17 of 2007 preferred for use by the trial Tribunal in this petition, and whether the said Practice Directions 2007 is ultra vires the Honorable President of the Court of Appeal. (Ground 8).

ISSUE THREE

Whether the Election Tribunal had the power to grant extension of time within which to apply for issuance of pre-hearing Notice in the circumstance of this case? (Grounds 9).

ISSUE FOUR

Did the Election Tribunal not misconstrue and misapply or improperly apply Para. 49 (5) of the 1st Schedule to the Electoral Act 2006 in the circumstance of this case? ( Grounds 3 and 4).

ISSUE FIVE

Assuming without conceding that the Election tribunal and Court Practice Directions was valid, was the Election Tribunal right in treating the petition as “abandoned” Petition based on inter alia: the incompetent application of the 1st and 2nd Respondents in the circumstance of this case? (Grounds 5 & 6).

ISSUE SIX

Whether the Honourable Election Tribunal was right when it failed to entertain firstly the motion seeking to keep the petition alive but rather went on to entertain the motions which sought to dismiss the petition and which petition it eventually dismissed. (Ground 10).

Issue one is whether the lower tribunal breached the fundamental principle of fair hearing when it deprived the Appellants of the opportunity of having the petition heard on the merit by dismissing the petition on the ground that the Appellants’ counsel failed to apply for the issuance of pre hearing notice as prescribed by the Practice Directions 2007. Learned Appellants’ counsel argued that the principles affair hearing as enshrined is S.36(1) of the 1999 Constitution were breached in this ease and that the Appellants were deprived of the right to present their ease on the merit with unfettered access to the courts. He cited the following cases:

1. Unongo v. Aku (1983) 2 SCNLR 332 at 353
2. Emesim v. Nwachukwu (1999) 6 NWLR Pt. 605 Pg. 154
3. Saleh v. Monguno (2006) 15 NWLR Pt. 1001 Pg. 26 at 62
4. Ugwu v. Ararume (2007) 12 NWLR Pt.1048 Pg.365 at 450
5. Nwobodo v. Onoh (1984) 1 SCNLR Pg. 1
6. Egolum v. Obasanjo (1999) 7 NWLR Pt. 611 Pg. 413
7. Goodhead v. Amachree (2004) 1 NWLR Pt. 854 pg. 352
8. Ibrahim v. Sheriff (2004) 14 NWLR Pt. 892 pg. 43
9. Amoo v. Alabi (2003) FWLR Pt. 174 Pg. 198 at 211
10. Yusuf v. Obasanjo (2003) 16 NWLR Pt. 847 Pg. 554 at 640

Learned Counsel for the 1st & 2nd Respondents argued that from the facts and circumstances of this ease, the Appellants were not denied fair hearing of their petition. He argued that the indolence of the Appellants caused them to fail to file the notice for pre hearing conference within the time stipulated by the Practice Directions and equity does not aid the indolent. The Practice Directions 2007 were within the knowledge of the appellant who failed to obey same. The motions that led to the dismissal of the Appellants’ petition were heard on the merit and al1 the parties were given opportunity to be heard on the issues raised. He cited Abubakar v. INEC (2004) 1 NWLR Pt. 854 Pg. 207 at Pg. 227; Buhari v. Yusuf (2003) 14 NWLR Pt. 841 Pg. 446 and Amaeehi v. INEC all authorities to the effect that the rules of court must be obeyed particularly in cases of election petitions where time is of essence.

On this issue learned counsel for the 3rd Respondent submitted succinctly that equity does not avail a n indolent litigant or counsel in an election petition where the rules of procedure are strict and should be adhered to. He also cited Abubakar v. INEC supra at Pg. 231 and Buhari v. Yusuf supra.

My lords, learned Appellants’ counsel wants us to allow this appeal on the basis that the Appellants were deprived’ of fair hearing by the tribunal. However, the esteemed Senior Counsel did not point out which of the twin pillars of fair hearing was damaged by the lower tribunal. Is it “nemo judex in causa sua” – you cannot be a judge in your own cause. Or is it “audi allarem partem” – you must hear the other side, that is opportunity to be heard. See Unipetrol Plc v. Bukar (1997) 2 NWLR Pt. 488 Pg. 472 Senior Counsel did not make any attempt at stating specifically how the Tribunal denied the Appellants access to justice in the circumstances of this case. Three motions were argued very robustly by counsel on both sides and the court upheld the arguments in favour of the motion to dismiss the petition for failure to obey the Practice Directions. Learned Senior Counsel has not alleged bias, has not alleged lack of notice of that day’s proceedings or being prevented from addressing the court fully in aid of the Appellants’ application. The doctrine of fair hearing envisages that parties be given the opportunity to freely present their case and that courts are impartial. See Egevafo Ekpeto v. Ikono Wanogho (2004) 12 SCNJ 220. The Appellants’ Counsel at the Tribunal was not at any time prevented from putting up a good case against the motion for dismissal or in aid of the motion for extension of time. Pray, wherein then lies the lack of fair hearing? We will not follow the flag of lack of fair hearing in the circumstances of this case. Counsel cannot challenge the decision because they lost at the Tribunal on the basis of fair hearing. It is the judicial process that led to the decision that can be challenged on that basis. The question of fair hearing does not come into the issue of whether the tribunal properly exercised its discretion. I agree with learned counsel for the 1st & 2nd Respondents on the first part and the learned counsel for the 3rd Respondent on the second part that the Appellants cannot be heard to complain of breach of fair hearing in the circumstances of this case. All the arguments and authorities in aid of the position submitted by Appellants’ counsel to the effect that the Tribunal should not have shut out the Appellants on a technicality are really of no moment and go to no issue on the question of fair hearing. The applications heard that day were the motions filed by the parties, and in the procedure adopted there is no allegation that any member was biased or that the Appellants were deprived of the opportunity of being heard. See LSDPC v. Adold Stamm (2005) 1 SCNJ 210. The submissions of counsel on issue one went beyond the confines of the question of fair hearing raised by him and dwelt on the issue of the proper exercise of the Tribunal’s discretion in refusing to grant extension of time to file motion for pre-hearing notice.

I wish to add that a fair hearing does not mean a fair trial. A fair trial consists of a fair hearing. A fair trial consists of the entire hearing of the case. Ogboh v. FRN (2002) 4 SCNJ 393; Mohammed v. Kano M.A ( 1968) 1 All NLR Pg. 424 Gbadamosi v. Odia (1992) 6 NWLR PT. 248 Pg. 491. A fair hearing may not necessarily result in a fair trial. To my mind there was fair hearing of the motions that led to the dismissal of the Appellants’ petition. The issue of whether the ruling which came at the end of the trial of the motions was fair or not is another matter entirely which will be discussed subsequently as it has been raised in issues 3, 4, 5, & 6 of the Appellants’ amended brief. In the circumstances, I will not consider them in relation to this issue. In my humble view the first issue is resolved against the Appellants.

Learned Appellants’ counsel had abandoned Issue Two and it is hereby struck out. Issue Three is whether the Election Petition Tribunal had the power to grant extension of time within which to apply for issuance of pre-hearing notice in the circumstances of this case.

On issue 3, Appellants’ counsel argued that in the first instance, time within which to apply for pre hearing notice had not lapsed at the time the 1st and 2nd Respondents applied to have the Petition dismissed for Appellants’ counsel’s failure to apply for issuance of pre hearing notice. Learned Senior Counsel argued that the Appellants applied twice on 13th and 17th July 2007 respectively for the issuance of pre hearing notices. The notices are on Pg. 169 and 191 of the Record. He further argued that the Appellants were not late in filing either applications since there was no valid 3rd Respondent’s Reply to the Petition. He submitted that time cannot start to run against the Appellants until there has been a reply to the Petition by all the Respondents. He argued that even the tribunal conceded all Pg. 324 of the record and Pg. 27 of their ruling that the objection of the 3rd Respondent “lacks merit and must fail as the said 3rd Respondent till date has no reply upon which it can compute time against the Petitioners in this Petition”

He further submitted that S.14(b) of the Interpretation Act which applies to the Electoral Act 2006 defines a singular to include the plural, thus the interpretation of respondent in paragraph 3(1) of the Practice Direction include not only the 1st & 2nd Respondents but also the 3rd Respondent. He submitted that to interpret paragraph 3(1) any other way would be absurd since in any matter there may be several respondents served at different times, their statutory period to file a Reply would differ and service on the Petitioners would differ. He submitted that to apply for a pre hearing notice when the reply of some of the respondents are yet to be received would be self defeating in view of the fact that the issues to be settled at the pre hearing session would emanate from the pleadings of all the parties. Counsel urged us to hold that pleadings have not yet closed and that the decision of the Tribunal, arrived at in ignorance of S. 14 of the Interpretation Act is per incuriam. Learned Senior Counsel also postulated the argument that even if time had lapsed, there was ample power to extend time by the Tribunal even though the Appellant had abundante cautela filed a motion for extension of time on 27th July 2007. He submitted that the tribunal should not have closed its eyes to the Federal High Court Rules 2000, and the 1st schedule to the Electoral Act both of which provided for extension of time in these circumstances.

He argued that both the Practice Directions and the Electoral Act must be read together. He cited RIMI v. INEC (2004) 15 NWLR Pt. 895 Pg. 121 at pg. 132 regarding the position taken by the Court of Appeal after the 2003 elections. It was further posited that it was wrong of the Tribunal to hold that once a Petitioner defaults in complying with para. 3 of the Practice Directions, he is prohibited from bringing an application for regularizing it even when the default is that of counsel. He submitted that the provisions of the Practice Directions cannot override the provisions of para 43 (1) of the 1st schedule to the Electoral Act and that in so far as para 3 of the Practice Directions clashes with para 43(1) of the 1st schedule, it is unconstitutional null and void. He cited Haruna v. Modibbo (2004) 10 NWLR Pt. 900 Pg. 487 at Pg. 535 and Unilag v. Aigoro (1984) 1 NSCC 143.

In reply learned counsel for the 1st & 2nd Respondents Mr. Imadegbelo SAN argued that by the Appellants’ filing of a motion for extension of time they had conceded their default in not applying within time for issuance of the pre hearing notices. He submitted that the notices dated 13th & 17th July respectively were filed in violation of the provisions of Para 3(1) (2) (3) & (4) of the Practice Directions since at the time they were filed the Appellants had not received a reply from the 1st & 2nd Respondent. The Petitioners Reply to the 1st & 2nd Respondents’ Reply was filed out of time outside the 5 days prescribed by Para 16 of the 1st schedule to the Electoral Act. He quoted extension of time by judicial definition to mean “extension of time prescribed by the Rules of court for taking certain procedural steps” and cited Williams v. Hope Rising (1982) 1 All NLR Pg. 1 at Pg. 6. He further submitted that, the pertinent question is whether the Appellants can file an application for extension of time to regularize their lateness in applying for pre-hearing notice.

The provisions of paragraph 3(4) in its literal and ordinary meaning simply says that there shall not be an application for extension of time for the Appellants to comply with the provision of paragraph 3(1) of the Practice Directions 2007. He submitted that the word “shall” used in the subparagraph is mandatory. See the case of Kato v. C. B. N. (1991) 9 NWLR (Part 214) Page 126 at Page 147 and MAIWADA v. F.B.N. PLC (1997) 4 NWLR (part 500) Page 497.

In other words, the Appellants are legally foreclosed from applying for Pre-hearing Notice once they fail to do so within the time prescribed for doing that by the law. On the other hand, the Tribunal had no jurisdiction to entertain such an application for Pre-hearing notice filed out of time. He cited the following cases:

(a) Buhari v. Yusuf (2003) 14 NWLR Pt. 841 Pg. 446;

(b) Jimoh Ojubelo v. Musemilu Lamidi (1989) 10 NWLR Pt. 621 Pg.177

(e) Ojong v. Duke (2003) 14 NWLR Pt. 841 Pg. 581 Pg. 610-611

(d) Ladipo v. Oduyoye (2004) IEPR Pg. 705 at Pg. 708

He submitted that while the Appellants brought their motion for extension of time under para 43 of the 1st schedule to the Electoral Act, the provisions of para 3 (a) of the practice Directions came after the enactment of the Electoral Act and the Act did make indicate that its provisions should govern the Practice Directions. He submitted that thus para 43 of the 1st schedule to the electoral Act is not applicable to the issue of pre-hearing notice specifically provided for by the Practice Directions. He cited Yusuf v. Obasanjo (2003) 16 NWLR Pt. 847 Pg. 554 at Pg. 603.

He argued that since only the Practice Directions provides for pre hearing conference and makes provisions in relation thereto, no re course can be had by the Appellants to the 1st schedule to Electoral Act or the Federal High Court Rules to extend time in relation to any provision of the Direction to which they are unknown.

Learned counsel for the 3rd Respondent Mr. Ogaga Ovrawah Esquire submitted that no rule of law makes it mandatory for the 3rd Respondent to file a reply Petition even though an application to regularize the reply was on record.

He argued that the Appellant cannot rely on the default of the 3rd Respondent as an excuse for their non compliance with the rules. Para 10(2) of the 1st schedule to the electoral Act allows a Respondent 21 days after receipt of a petition to file a reply. Time began to run against the Appellants after the 21 days of the 3rd Respondent’s receipt of the Petition.

Counsel also argued that the Appellants raised the point that the tribunal ought to have applied the Federal High Court rules for the 1st time on appeal and did not seek or obtain leave to do so and such fresh arguments and issues are incompetent without leave and should be discountenanced. He cited Egbuziem v. NRC (1994) 4 NWLR Pt. 116 Pg. 473; Goji v. Ewete (2001) 15 NWLR Pt. 736 Pg. 273 at 281; Edokpolor v. Sam-Edo (1989) 4 NWLR Pt. 116 Pg. 473;

3rd Respondent’s counsel further submitted that Or. 36 & Or. 38 of the Federal High Court Civil Procedure Rules 2000 do not apply to this case as these rules are subject to the Electoral Act and the practice Directions. He also cited Yusuf v. Obasanjo (2003) 16 NWLR Pt. 847 Pg. 554 at Pg. 603. He further argued that the 1st & 2nd Respondents’ counsel’s application to dismiss the petition was not incompetent or statute barred as argued by the Appellants’ counsel in para 4.52 to 4.57 of the Appellants’ amended brief. He argued that para 3(3) of the practice direction gives the respondent a choice in the course of action to take. He further submitted that contrary to the argument put forth by the Appellant counsel that practice Directions do not have the force of law, and relied on Unilag v. Aigoro (1984) 1 NSCC 143, the case of NPA v. Okoro (1995) 6 NWLR Pt. 403 Pg. 510 at 523 is to the effect that counsel cannot afford to ignore practice directions except at their peril.

In his reply to the Respondents counsel on points of law, the Appellant counsel substantially repeated his arguments that the Appellant did not receive fair hearing at the lower court. On issues 3 & 4, he argued that the Practice Directions must be subject to the express provisions of the Electoral Act. On the contention of the 3rd Respondent counsel that the Appellants’ counsel was raising a fresh point on appeal regarding the applicability of the Federal High Court Rules, he argued that a fresh issue on appeal is different from a fresh argument on the same issue on appeal. He argued that a fresh issue or point if it affects jurisdiction of the lower court can be raised for the 1st time on appeal even without leave. He cited Oyakhire v. State (2006) 15 NWLR Pt. 1001 SC Pg. 157 at 171.

The Appellants claim that they filed the application for issuance of pre-hearing notice as in form TF 007 within time. The evidence on record is that the Petitioner filed a petition on 25th May 2007. By the provisions of para 9(1)(b) of the first schedule the Respondent may file an appearance within the time stated by the Secretary of the Tribunal. By para 12(1) of the 1st schedule, the Respondent must file a reply within 14 days of entering appearance. If the Respondent decides not to file a memorandum of appearance, he must file not later than 21 days of the service of the Petition on him, a reply to the Petition. See paragraph 10(2) of the 1st schedule. In this case the 1st & 2nd Respondents who were served on 11th June filed a Reply to the Petition on 29/6/07 and it was served on the Petitioners on 3rd July, 2007.

By the provisions of para 16(1) of the first schedule, the Petitioner’s Reply must be filed within 5 days of service of the Respondents’ Reply that is 8th July 2007. The Petitioners’ Reply was filed on 10th July 2007 i.e on the seventh day of service on them of the Reply of the 1st and 2nd Respondents. Thus as between the Petitioners and the 1st and 2nd Respondents pleadings had closed on 8th July 2007 in the absence of the Petitioners’ Reply. Therefore, there was no valid Petitioners Reply before the Tribunal as para 16 (2) of the 1st schedule specifically states that there cannot be extension of time to file Petitioner’s Reply to Respondents’ Reply.

The 3rd Respondent was served the Petition on 28th of May and thereafter filed memorandum of conditional appearance, preliminary objection and 3rd Respondents’ Reply on 19th June 2007, which was served on the Petitioners the same day. The time within which the 3rd Respondent should have tiled a Reply expired on 18th June 2007 by virtue of para 10(2) of the 1st schedule. Therefore, as between the Petitioners and the 3rd Respondent, pleadings had closed on 18th June 2007. Now Paragraph 3, sub-paragraphs 1,3&4 of the Practice Directions made pursuant to the Electoral Act, provides as follows:

“PRE-HEARING SESSION AND SCHEDULING,

3-(1) Within 7 days after the filing and service of the Petitioner’s Reply on the Respondent, or 7 days after the tiling 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 sub-paragraph (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.

(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.

Therefore, since there is no valid Petitioner’s Reply to the 1st & 2nd Respondent’s Reply, time began to run against the Petitioners to apply for service of pre hearing notice regarding its Petition against the 1st & 2nd Respondent tram 3rd July and expired on 10th July 2007, by virtue of para 3(1) set out above. Since the 3rd Respondent should have filed a reply on 18th June 2007, time began to run against the Appellants to apply for pre hearing notice from 19th June and expired on 25th June regarding the Petition against the 3rd Respondent. The Appellants filed the applications for issuance of pre hearing notices on 13th July, 2007 and later on 17th July respectively. The argument of Appellants’ counsel is that they filed the applications within time because as at the time the applications were filed, there was no valid 3rd Respondent’s Reply and time cannot begin to run against the Appellants in the absence of such a Reply from the 3rd Respondent. Appellants have propounded other arguments in aid of this position already set out above. The argument of Appellants’ counsel that according to S.14(b) of the Interpretation Act the word ‘respondent’ though singular also means plural and as such the respondents are siamese twins who are indivisible or inseparable is in my view unacceptable.

An action whether in normal civil proceedings or election petitions is taken out both jointly and severally against more than one respondent. The case against each respondent must be made out either jointly or severally depending on the cause of action. In this election petition, it is obvious that the case of the 1st & 2nd Respondents may be inseparable, but the 3rd Respondent being an independent Federal Government Agency must defend itself independently against any allegation by the Petitioner. According to the Petition of the Appellants, the Appellants are challenging the 3rd Respondent’s acceptance of the nomination and its subsequent clearance of the 1st Respondent to run for election. In civil matters and sometimes in election petitions there may be principal/real/substantive parties and merely nominal parties depending on the reliefs claimed against each party. See Plateau State v. A G Federal (2006) 1 SCNJ 1.

In this Petition, the reliefs 1-3 were sought against the 1st & 2nd Respondents while only relief 4, an order to recognize the 1st Petitioner as the winner of the election was sought against the 3rd Respondent. Relief 4 thus depended on the success of reliefs 1-3. Even though all parties in the election Petition were principal parties, different reliefs were being sought against them. In an election petition the action is severally against each respondents, except of course where there is privity of interest. I agree with Messrs Ohwovoriole SAN and lmadegbelo SAN for the 1st & 2nd Respondents and Mr. Ovrawah for the 3rd Respondent that the Appellants cannot rely on the default of any Respondent as an excuse for failure to comply with the rules. To say that because the 3rd Respondent had not filed a valid reply and pleading had not closed and therefore, time had not started to run against the Appellant to apply for pre hearing notice is in my view with the greatest respect a fallacious argument. The existence of several pending applications challenging the competence of the Petition or seeking to regularize some steps taken should have propelled rather than deterred the Appellants from applying for pre hearing notice in time. The 1st schedule to the Electoral Act & the Practice Directions and indeed normal civil procedure rules have all taken care of the contingency and stated the next step for a serious Plaintiff/Petitioner to follow whenever there appears to be inability or unwillingness of the respondent to defend the action expeditiously. Therefore, the plurality of the Respondents notwithstanding, the fate of the action or indeed its lifespan is not left to the whims and caprice of the respondent while the court and the Plaintiff/Petitioner fold their arms to abide the pleasure of such tardy respondent. It is clear at least, to me that the Appellants did not file the applications for pre hearing notice within time.

On the question of whether the Tribunal was right in deciding the case by applying only the provisions of the practice directions, and holding that the 1st schedule is inapplicable, let me set out the reasoning of the Tribunal on this issue below at Pg. 17 of the Tribunal’s ruling and Pg. 314 of the Record. The Tribunal held as follows:

“The Tribunal has painstakingly scrutinized the provisions of the First schedule to the Electoral Act and has found that while the provisions therein contained provide for various and diverse specified situations or contingencies, the matter of pre-hearing notice and procedure governing the same are glaringly not included in the various and specified situations or contingencies provided for in the said First Schedule. The matter of Pre-hearing notice and procedure therefore are exclusively provided for in the Practice Directions.”

The Tribunal went further on Pg. 316 of the Record to say that:

“All the principles or canons, the Tribunal has no doubt, apply to the interpretation of subsidiary legislations which the First Schedule to the Electoral Act and the practice Directions both are. Given all that has been said, the Tribunal is therefore of the firm view that the provisions of the First Schedule to the Electoral Act are simply or basically applicable to proceedings in petitions taken out there under (i.e under the First Schedule) Indeed it is the firm view of the Tribunal, from a community reading of the provisions of paragraph 43(1), (2) and (3) as well as the other provisions of the said Paragraph, that the power to extend time under the said Paragraph 43 is most applicable to applications made in that regard in respect of acts required to be done within a specified time frame under the provisions of the First Schedule ..”

The Tribunal then concluded on Pg, 317 of the Record that:

“It is the view of the Tribunal that the provisions that deemed the petition in which pre-hearing notice is not applied for within the time frame stipulated therein as an abandoned one liable to be dismissed as such by the Tribunal and having also prohibited making of an application for extension of time to apply for pre-hearing notice or entertainment of such application, have unequivocally shown that the provisions of the First Schedule relating to extension of time are inapplicable to the matter of pre-hearing notice.”

It is apparent from the above that the Tribunal was of the view that the 1st Schedule to the Electoral Act having not made provisions for tiling issuance of pre-hearing notice or similar provisions the said practice Direction having the same force & effect as the 1st schedule being both subsidiary legislations, thus recourse must be had exclusively to the provisions of the Practice Directions which specifically forbid extension of time to apply for pre-hearing notice and that the Tribunal cannot exercise any discretion in the matter to extend time.

The question now arises on whether the Practice Directions can survive independently of the Electoral Act The practice directions were made pursuant to Para 50 of the 1st schedule which states as follows:

“Subject to the express provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.” (Underlining mine)

In the first instance, the 1st schedule to the Electoral Act is part of the Electoral Act which is an Act of the National Assembly, S.151 of the Act provides for the Rules contained in the 1st schedule to the Act. Just as part and parcel of the various schedules to the 1999 constitution form part and parcel of the said constitution. Thus, the 1st schedule has the force of substantive law and not a subsidiary legislation made pursuant to a substantive law. Consequently, I am of the view that the practice Direction cannot have the same force and effect as the 1st schedule to the Electoral Act.

The Practice Direction cannot take away the right to seek extension of time provided for in the 1st schedule thus any subsidiary legislation must be made with regard to the provisions of the Electoral Act.

I have set out above the provisions of Para 3 of the practice Directions. I will hereunder set out the provisions of Para 43 of the 1st schedule.

Para 43

(1) The Tribunal or Court shall have power, subject to the provisions of Section 141 of this Act and paragraph 14 of this Schedule, to enlarge time for doing any act or taking any Proceedings on such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this Schedule.

(2)An enlargement of time may be ordered although the application for the enlargement is not made until after the expiration of the time appointed or allowed.

(3)When the time for delivering a pleading or document or filling any affidavit, answer or document, or doing anything or act is or has been fixed or limited by any of the sections, paragraphs or rules under or in pursuance of this Act or by a direction or an order of the Tribunal or Court, the costs of an application to extend the time, where allowed or of an order made there on shall be borne by the party making the application unless the Tribunal or Court otherwise orders.

(4) Every application for enlargement or abridgement of time shall be supported by affidavit.

(5)An application for abridgement of time may be ex parte but the Tribunal or Court may require notice of the application to be given to the other parties to the election petition.

(6)An application for enlargement of time shall be made by motion after notice to the other party to the election petition but the Tribunal or Court may, for good cause shown by affidavit or otherwise, dispense with the notice.

(7) A copy of an order made for enlargement or abridgement of time shall be filed or delivered together with any document filed or delivered by virtue of the order.

From the above, it is obvious that this provision was enacted to save proceedings in the Tribunal which would otherwise have been thrown out on technicalities without giving litigants the opportunity of fully ventilating their cause or defending actions against them to the full. The National Assembly saw it fit to include it so as to operate to ensure substantial justice as much as possible so that parties are not shut out of proceedings on the ground that they are unable to comply with the rules of court or Practice Directions that relate to set times for the filing of court processes.

We can see that Para 43(3) includes extension of time for doing anything where time has been fixed or limited by “any of the sections, paragraphs, or rules under or in pursuance of this Act or by a direction” Thus Para 43(3) had anticipated that any rule or practice direction made pursuant to the 1st schedule would provide for extension of time and the tribunal would exercise its discretion depending on the circumstances of each case.

I am of the view and in agreement with the general submissions of learned Appellants counsel that excessive weight was given to the provisions of the Practice Direction to the detriment of superior legislation and that the tribunal was wrong to have held that the Practice Direction was independent of the Electoral Act to the point that its provisions being later in time had the same force and effect and they were obliged only to apply same. If the provisions were of the same force and effect then the argument that where specific provision are subsequent to general provisions, the specific provisions prevail would hold water. I cannot but agree with the Respondents’ counsel that practice Directions must be obeyed to the peril of a party who ignores them. It is here important to reiterate that one is not in any way denigrating the need and importance of Practice Directions. In fact they are tools in enhancing compliance with the rules of court. However, they must be used by the courts not only to ensure speedy trial within a reasonable time, they must also be utilized by the courts to promote substantial justice. A subsidiary legislation which is what the practice direction is cannot derogate from the spirit and letters of the Electoral Act which is an Act of the National Assembly. The Electoral Act in its 1st schedule states specifically when extension of time is prohibited. There cannot be extension of time to present a petition. A petition must be presented within 30 days when a result is declared See S. 14 of the Electoral Act and Para 431(1) of the 1st schedule. Para 14 (2) of the 1st schedule prohibits applications for extension to amend pleadings to include new particulars Para 16(2) also prohibits extension of time for the petitioner to file a reply to the Respondent’s Reply. Finally by Para 17(2) a party cannot extend time to apply for directions beyond 10 days after filing of Reply to the petition. The above are the specific provisions in the Electoral Act prohibiting extension of time. Any other process can be extended in accordance with the provisions of Para 43. Any provision barring extension of time not specifically included is expressly excluded. Thus I cannot agree with the 3rd Respondent’s counsel that the Practice Direction sought to repair the lacuna in the Electoral Act. If the Electoral Act wanted to prohibit extension of time in any other situation it would have stated so. I agree with the learned Appellants’ counsel that this is a case where there is a conflict between the provisions of the Practice Direction and the Electoral Act. Let us look at the locus classicus on this point in Nigeria. See Unilag v. Aigoro (1984) NSCC Pg. 745 where the contention was made that the Chief Justice of the Federation is incompetent to give practice directions which fetters the exercise of judicial discretion, The Supreme Court at P. 755-756 of the NSCC report held unequivocally per Bello JSC (as he then was) thus:

“By the combined effect of the definition of “enactment” which means “provision of any law or a subsidiary instrument” under Section 277(1) of the 1979 Constitution and Section 27 of the Interpretation Act 1964 which provides “subsidiary instrument” means any order, rules, regulations rules of court or hy laws either made before or after the commencement of this act in exercise of powers conferred by an Act. The Supreme Court Rules 1977 is an enactment while the Practice Direction do not qualify as such. Consequently, a Practice Direction has no force of law and cannot fetter a rule of court and cannot tie the court in the exercise of its discretion. Where there is a conflict between a rule of court and a Practice Direction, the rule must prevail.”

I daresay the above stated position of the law still holds good today. See also Abubakar v. Yar’Adua (2008) 4 NWLR Pt. 1078 Pg. 465 at Pg. 515 on the supremacy of the Electoral Act over the Practice Directions. This must be distinguished from the circumstances in Abubakar v. INEC (2001) 1 NWLR Pt. 854 Pg. 207 where the court refused to countenance a brief filed out of time without any effort to seek for extension of time. In the case of Ikaro v. Izunaso & 16a 4 Ors CA/PH/EPT/488/2007 Unreported referred to us by the Respondent Counsel where the Court of Appeal held that the failure of the Petitioner to apply for pre-hearing conference to be fatal to the life of the Petition. In that case no attempt at all was made by the Petitioner/Appellant to ask for pre-hearing notice until weeks after time to do so has expired. Significantly, there was no application by the Appellant for extension of time to regulate the process filed out of time, thus the court refused to countenance a brief filed out of time without any effort to seek for extension of time. Regarding the introduction before us of the argument that the Federal High Court Rules are applicable and the argument that leave is needed to argue this point. I am of the view that a fresh point on appeal on the same issue does not need leave. The question of the superiority of the Federal High Court Rules and Rules in the 1st schedule a vis-avis the practice directions is still in my view the same and there was no need to ask for lease to advance arguments on same. I will only add that the Federal High Court rules are subordinate to the special rules of the Electoral Act as provided in the 1st schedule and can only fill any lacuna in the 1st schedule. The Directions on the other hand are subordinate to both the 1st schedule and the Federal High Court Civil Procedure Rules.

Our attention has been drawn to the judgment of the Supreme Court in SC.246/2007 (unreported) delivered on 9/5/08 -Chief Emmanuel Osita Okereke v. Alh Umaru Musa Yar’ Adua & 33 Ors. The question put to the Supreme Court in that case was whether or not the Court of Appeal had the jurisdiction to determine the preliminary objection of the 1st & 2nd Respondent at the stage and time it did. The objection was determine was determined when time to apply for pre hearing notice had lapsed. The Petitioner/Appellant had argued that since the court of appeal was sitting as the presidential election Tribunal and not a pre hearing session, it had no jurisdiction to hear the preliminary objections of the Respondent even though the Justices of the Supreme Court affirmed that the Practice Direction provides that there can be no extension of time to apply for pre hearing session, the question put to us here was not the question put to the Supreme Court. We are here to determine whether or not the tribunal was right to base its decision not to grant extension of time on the superiority of the Practice Directions over the Electoral Act. A case is authority for the facts and law which it decided. The authority referred to us has not been of help as the facts and law considered are quite distinguishable from the facts and law in this case. For reasons given above, I am of the view that the third issue be resolved in favour of the Appellants.

My lords, let us look at the justice of this case. I will itemize the different stages of an election petition.

(1) Filing of the Petition within 30 days of the publication of the result.

(2) Filing of memorandum of appearance by the Respondent fol1owed by a Reply within 14 days or alternatively, filing a Reply within 21 days in the absence of a memorandum of reply.

(3) Filing of the Petitioner’s Reply within 5 days of service on him of the Respondent’s Reply.

(4) Application by the Petitioner or the Respondent for pre hearing session at which stage motions and other matters would be taken and issues streamlined for trial,

(5) Trial or hearing of the Petition on the merit.

We are here stuck between stages 3 and 4. What is the time frame involved in this case? As pointed out earlier, pleading closed as between the Appellants and the 1st & 2nd Respondent on 8th July 2007, Time to file pre hearing notice is calculated from 4th July 2007 the next day after the Petitioner was served with 1st & 2nd Respondent Reply to 10th July 2007 The Petitioner did not file the first application for issuance of pre hearing notice in relation to the petition against the 1st & 2nd Respondent until 13th July 2007, three days later. If not for the fixed opinion of the Tribunal that they were prohibited by Para 3(4) of the Practice Direction from entertaining any application for extension of time, then if they had followed the principle in decided cases that a practice direction cannot remove the exercise of the courts discretion granted to them by statute, then they might have seen their way through to exercise their discretion to grant extension of time to keep the petition alive, Oputa JSC in Unilag v. Aigoro supra had this to say at Pg, 242,

“Rules of Court and Practice Directions are rules touching the administration of Justice: they are rules established for attaining Justice with ease, certainty and dispatch; and as such, they must he understood as made consistent with that fundamental principle of Justice deciding cases and appeals on their merits. Consequently, in all cases where a strict adherence to the rules would clash with the fundamental principles, the courts have invariably leaned heavily on the side of doing justice”.

I think the learned judges of the tribunal should have leaned towards accepting the superior legislation contained in the 1st schedule to the Electoral Act to enable them exercise their discretion to determine whether or not the application for extension of time was meritorious or not Then the Tribunal would have been doing substantial justice instead of clinging tenaciously to technical rules, As Niki Tobi JSC opined in Abubakar v. Yar’ Adua (2008) 4 NWLR Pt. 1087 Pg. 465 at 512 what is wrong in the Tribunal giving an extra kilometer to the Appellant in order to achieve substantial justice.

On issue 4, Learned Senior Counsel for the Appellants also argued that the Tribunal’s ruling was in breach of para 49(5) of the first schedule to the Electoral Act 2007. He submitted that once an objection is raised to the competence of the Petition, it should have been taken first and neither party nor the Tribunal should have taken further steps in the proceedings. He argued that since the 1st & 2nd Respondents had in their Reply to the Petition filed a separate notice of preliminary objection on 29/6/07 challenging the jurisdiction of the tribunal to entertain the Petition and the 3rd Respondent filed a similar one on 19th June 2007, then those motions filed in time should have been heard first before the motion to dismiss the Petition for noncompliance with para 3(1) of the Practice Direction. He cited Elugbe v. Omokhafe (2004) 18 NWLR Pt. 905 Pg. 319 at 339.

I also share the view expressed by the Tribunal on Pg. 14 of its ruling and on Pg. 311 of the record that contrary to the Appellants arguments, the Appellants were not constrained by Para 49(5) of the 1st schedule to refrain from taking fresh steps in the proceedings before the determination of pending notices of preliminary objection challenging the jurisdiction of the Tribunal to try the action. The object of Para 49(5) is to stop the Tribunal from proceeding to hearing the case on the merit before hearing the preliminary objection on jurisdiction or other procedural defect. This is to prevent a situation in which the objecting party in taking fresh steps in the proceedings may be seen to have waived the challenge or objection. I do not think any of these circumstances are applicable to the Appellants in this case and cannot form the basis of an excuse to ignore/suspend the rules. In my view the Tribunal did not misapply the provisions of paragraph 49(5) of the 1st schedule. This issue is resolved against the Appellants.

Issue 5 and the next question is whether the Tribunal was right to have treated the petition as an abandoned petition, by relying on the provisions of Para 3(4) of the Practice Direction. The tribunal held thus on this issue on Pg. 325 of the record:

“By the reasoning in the portions of its two previous Rulings hereinbefore re-produced and which it has adopted in the instant Ruling, the Tribunal has therefore held to the effect that upon the expiration of the period provided in sub-paragraph (1) for making the application for issuance of pre-hearing notice by the petitioners and the respondents, the instant petition by operation of law is deemed to be an “abandoned petition” and that it remains so despite the filing of the applications under consideration.”

Counsel for the Appellants had argued that Para 3(4) of the Practice Direction envisages dismissal suo motu by the Tribunal on the basis that the Appellant had abandoned the petition whereas Para 3(3) envisages a situation w here the Respondent may bring a motion to move the Tribunal to declare the petition abandoned as the 1st& 2nd Respondents had done in this case.

Learned Appellants’ Counsel further argued that the Tribunal was wrong in treating the Appellants’ Petition as an abandoned Petition. He argued that the 1st & 2nd Respondents application to dismiss the petition being out of time by three days and on their failing to apply for extension of time to bring motion to dismiss, then it was wrong to treat the Petition as abandoned and then dismiss on the application of the 1st & 2nd Respondents. To treat the Petition as abandoned, thereafter, the tribunal must do so suo motu.

Learned Appellants’ counsel also argued that on Pg. 28 of the Tribunal’s ruling and Pg. 325 of the record, the Tribunal conceived that the Petition having been abandoned could not be revived by an application for extension of time despite the fact that no decision had been given deeming the Petition abandoned at the time of arguing the motion for extension of time. He also argued that a Petition cannot be rightly deemed abandoned by implication when the abandonment is not embodied in a decision of the Tribunal. He argued that the word ‘abandonment’ includes both the intention to abandon and the external act by which the intention is carried into effect. He cited Ndoma-Egba v. Chukwuogor (2004) 6 NWLR Pt. 869 Pg. 382 at 420.

He argued that the procedure in paragraph 3 (3) of the Practice Directions is different from the procedure envisaged in para 3(4), the former at the instance of the Respondent and the latter at the instance of the court. He urged this Court to hold that it is a serious misdirection for the tribunal to have resolved the issue of default on the basis of abandonment under paragraph 3 (4) while the application considered was brought by the Respondents under paragraph 3(3). Where a rule of court has sub-paragraphs each providing for different grounds of moving the court with different consequences, the court must confine its consideration to the sub-para under which it was moved to act. He cited Saidu v. Mahmoud (1998) 2 NWLR Pt. 536 Pg. 130 at Pg. 138-139 Dada v. Ogunsanya (1992) 3 NWLR Pt. 232 Pg.754 at 764-765.

Counsel for the 1st & 2nd Respondents submitted that the Appellants were required by virtue of Para 3(1) of the Practice Direction and the use of the word “shall” to mandatorily apply for pre hearing notice within 7 days after filing and service of Petitioner’s reply or Respondent’s Reply whichever the case. He argued that the word ‘shall’ is mandatory. He cited Kato v. C.B.N. (1991) 9 NWLR Pt. 214 Pg. 126 at 147; Maiwada F.B.N. Plc (1997) 4 NWLR Pt. 500 Pg. 497. He submitted that the Petitioners were unduly indolent and tardy in the prosecution of the Petition and that the Tribunal properly held that the petition was abandoned. He argued that the provisions of Para 3(4) of the Practice Directions must be given their proper meaning. He cited Abba v. Jumare (1999) 5 NWLR Pt. 620 Pg. 270 at Pg. 278. He argued that the word ‘within’ as used in Para 3(1) of the Practice Direction had been defined in Iloka v. Utomi (1992) 2 NWLR Pt. 592 Pg. 538 at Pg. 585. He urged this court to give effect to the meaning of the word ‘within’. He cited Praying Band of C & S v. Udokwu (1991) 3 NWLR Pt. 182 Pg. 116 at Pg. 745; Oke v. Atoloye (1985) 2 NWLR Pt. 9 Pg. 578 at Pg. 590-591; Oviawe v. Integrated Rubber Products (1997) 3 NWLR Pt, 492 Pg. 126. He urged us to adhere to that definition to hold that the Appellant having failed to file the application for pre hearing notice within time had abandoned their petition.

Learned counsel for the 3rd Respondent argued that it is an attempt at mischief for Appellant’s counsel to argue that the 1st & 2nd Respondent’s application to dismiss the petition was statute barred since Para 3(3) of the Practice Direction contained no provisions as to limitation of time within which the Respondent must act. He further submitted that the word OR in sub paragraph 3 merely puts a Respondent to election as to the course of action to take.

My own humble view is that strictly speaking, in so far as a Petitioner does not apply ‘within’ time for pre hearing notice as provided by Para 3(1), the Respondent by Para 3(3) may apply to have the petition dismissed or the tribunal may regard the petition as ‘abandoned’ under Para 3(4) pending the time something is done by the Petitioner to retrieve or revive it. Whether the tribunal dismissed the petition on Respondent’s application under Para 3(3) or deemed it abandoned under Para 3(4), the legal effect is the same. In the case under para 3(4) there need be no formal pronouncement by the Tribunal. The significance of Para 3(4) is that since neither of the parties had deemed it fit to apply for issuance of pre hearing notice, then the petition to all intents and purposes has been abandoned by the parties particularly by the Petitioner and it is put in abeyance as being abandoned. Be that as it may, I agree with 1st & 2nd Respondents’ counsel that Para 3 (3) is silent as to the time frame to bring an application to dismiss the petition by the Respondent and that the Respondents’ applications were not incompetent as argued by Appellants’ counsel. It is only common sense to assume that after time had expired to apply for pre hearing notice and both parties are in default, the petition becomes automatically abandoned. That is where within 7 days after the close of pleading and no application is forthcoming from both parties the tribunal without much ado suo motu can deem the petition legally abandoned, until as I said earlier it was resuscitated. As I held earlier while looking at the justice of this case, was it not rather premature in the circumstances to deem the petition as abandoned and to dismiss same given the fact that there was an application to extend the life of the petition which application could have been considered on the merit by the tribunal? The 5th issue is resolved in favour of the Appellants.

The 6th issue raised by the Appellants’ counsel is that the Tribunal was wrong when it failed to entertain first the motion seeking to keep the petition alive but rather went to entertain simultaneously with it the motion to have the petition dismissed. It was submitted for the Appellants that where there are two applications before the court one to dismiss the case for not taking a step to comply with the rules of court and the other for enlargement of time and leave to take the necessary steps to regularize the matter, the one which would allow the court to pursue the course of substantial justice ought to be heard first. He cited Consortium M.C. v. NEPA (1992) 6 NWLR Pt. 246 Pg. 132 and Nalsa & Team Associates v. NNPC (1991) 8 NWLR Pt. 212 Pg. 652 at 667. This issue was not answered by counsel for the 1st & 2nd Respondents. However counsel for the 3rd Respondent argued that the Tribunal considered the Appellants motion first and dismissed it. It was after its dismissal that the Tribunal granted the prayers of the 1st & 2nd Respondents to dismiss the petition. That was the procedure rightly adopted by the Tribunal and in accord with the position of the Supreme Court as stated by Nnaemeka-Agu JSC in Consortium MC v. NEPA supra at Pg. 143

“……….In such a case, if there are two motions. One seeking to regularize a point of non-compliance with a rule or an order of Court and the other seeking to strike out or dismiss the proceedings on the ground of non-compliance, a Court of justice and equity ought to take the motion which seek to regularize the proceedings and preserve them from being struck out or summarily dismissed first before considering the application for striking out or dismissal for noncompliance…………This is in accord with the rule that the Courts are now expected to do substantial, and not technical justice. In such a case the aim of the Court ought to lean in favor of the proceeding that will bring about the doing of substantial justice …. To do otherwise will amount to a wrongful exercise of the Court’s discretion”.

Also recently in Lagos State v. Adold Stamn (2005) 1 SCNJ 210 at Pg. 221-222 where the Supreme Court held that generally two such applications can be heard simultaneously as long as parties are heard in respect of both applications. Suffice it to say that the Tribunal was not wrong in the procedure it adopted in hearing the application. This issue is resolved against the Appellants.

For reasons given above, and having resolved the germain issues in favour of the Appellants, I am of the firm view that the Appellants’ appeal succeeds. By the ruling, the case became suspended at the pre hearing stage. The ruling of the trial court striking out the petition for failure to file pre hearing notice is hereby set aside. By the inherent powers of this court and powers conferred by Or. 4 r.. 4 of the Court of Appeal Rules and S. 16 of the Court of Appeal Act 2002, it is hereby ordered that the Appellants motion dated 25th July 2007 filed on 27/7/07 for enlargement of time within which the Petitioners may apply for the issuance of pre hearing notice in Form TF 007 is hereby granted. Order is hereby made that the applications dated 13/7/07 and 17/7/07 be deemed properly filed and served.

Order is hereby made setting down the petition for pre-hearing session. The petition is hereby sent back to the tribunal to’ continue from the stage it reached before the ruling. APPEAL ALLOWED. N30,000.00 Costs for the Appellants against the 1st and 2nd Respondent.

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Other Citations: (2008)LCN/2787(CA)