Tony Dimegwu V. Independence Ogunewe & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
This is an appeal against the ruling of the National Assembly Election Tribunal holden at Owerri, Imo State delivered on 18/9/07. The lower tribunal had by the ruling in question dismissed the Appellant’s petition (EPT/NA/IM/24/2007 in limine, on the ground that it was incompetent.
It is common knowledge that on 21/4/07 elections were held by the 2nd – 8th Respondents in respect of the Ahiazu/Ezinihitte-Mbaise Federal Constituency. The Appellant, 1st Respondent and one Paul Opara contested the election on the platforms of the All Progressive Grand Alliance (APGA), the Peoples Democratic Party and All Nigerian Peoples Party, respectively. At the conclusion of the said election, the 1st Respondent was declared and accordingly returned, as the winner, having allegedly scored a total majority of 24,649 votes. Both the Appellant and Paul Opara were recorded to have scored 5607 and 4031 votes respectively. The Appellant was however dissatisfied with the result of that election and thus filed a petition No. EPT/NA/IM/24/2007 on 22/5/07, wherein he prayed the lower tribunal to:
a. Nullity the result of the election for the membership to the House of Representatives of the National Assembly for the entire Ahiazu/Ezinihitte-Mbaise Federal Constituency held on 21/4/07 and order that fresh election be conducted in the said constituency by the 2nd and 3rd respondents to determine the member to represent the said Constituency in the said House of Assembly
OR
b. order that the election be conducted in those polling stations and wards where there was no election to elect the member to represent the Ahiazu/Ezinihitte-Mbaise Federal Constituency in the House of Representatives on 21/4/07.
It is instructive that on 16/8/07, when the petition came up to pre-hearing session, the lower tribunal, suo motu, raised the issue of whether the petition was competent, “in view of the fact that the petitioner applied for pre-hearing session only on 18/7/07”. The learned counsel thereafter field and served their respective (written) addresses on the issue, which were accordingly adopted on 03/9/07. Thus on 18/9/07 the lower tribunal delivered a ruling wherein it came to the following conclusion:
To put it in another way, the application made by the petitioner on 13/7/07 is incompetent, and to that extent, it ought to be struck out. This Tribunal can only entertain an application for a pre-hearing session that was made, in relation to this petition between 1/8/07 and 7/8/07. There is no such application before the Tribunal. The effect of failure to apply for a pre-hearing notice either by the petitioner or the Respondent pursuant to paragraph 3(1) and (3) of the Practice Directions is provided under paragraph 3(4) of the said Directions as follows:
Where the petitioner and the Respondent fall 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.
This provision does not permit of any discretion. It is mandatory and the Tribunal has no option other than to dismiss the petition. Accordingly, the petition is hereby dismissed.
See pages 217 – 218 of the Record.
The Appellant being dissatisfied with the ruling in question, has filed this appeal upon four grounds of appeal. Parties have accordingly filed and served their respective briefs of argument. The Appellant’s brief, in particular, was filed on 03/12/07. The briefs of the 1st Respondent and 2nd – 8th Respondents were filed on 18/12/07 and 10/12/07 respectively.
The Appellant has formulated two issues in the brief thereof, thus:
a. Whether the Appellant’s application for pre-hearing conference compiled with the provisions of paragraph 3(1) of the Practice Direction (sic) No. 1 of 2007?
b. Whether the Practice Direction (sic) No. 1 of 2007 has the force of law?
On his own part, the 1st Respondent has raised a single issue in his brief, to wit:
Whether the honourable tribunal was right in dismissing the petition for non-compliance with the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Direction, 2007.
The 2nd – 3rd Respondents, on the other hand, have adopted the Appellant’s issues (a) & (b) as formulated in the brief thereof.
It is pertinent to allude to the fact that the Appellant has in issue No. (b) raised in the brief thereof, questioned the validity of the Election Tribunal and Court Practice Directions, 2007. Thus, I have deemed it expedient to adopt both issues for the determination of this appeal. I will however, now commence with the second issue.
ISSUE NO. 2
This issue was stated to have been predicated upon ground one of the Grounds of Appeal. It raises the question of whether the “Practice Directions, No. 1 of 2007” has the force of law capable of divesting a person’s right already acquired under a rule of Court. For the definition of “Practice Direction, the Appellant’s counsel cited and relied upon
UNIVERSITY OF LAGOS VS. AIGORO (1984) ALL NLR 394.
It was contended that according to AIGORO’S case (supra), the phrase “appropriate authority” means the person that has the authority to make rules of Practice and Procedure for the Court in question. It was also contended that into the instant case. Paragraph 50 of the First Schedule to the Electoral Act, 2006 provides that the Practice and Procedure of the Election Tribunals shall be a nearly as possible, similar to the Practice and Procedure of the Federal High Court in the exercise of its civil jurisdiction. That, the paragraph has also made the Federal High Court (Civil Procedure) Rules applicable to the Tribunals. It was thus argued, that the president of the Court of Appeal was not empowered, specifically or by necessary implication, to make rules of Practice and Procedure for the Election Tribunals or the Federal High Court. That section 254 of the Constitution of the Federal Republic of Nigeria, 1999 empowers the Chief Judge to make rules for the Federal High Court. That, there is no law empowering the president of the Court of Appeal to make rules for the Tribunals or any other court except the Court of Appeal.
It was further argued that even if the Hon. President has such powers to make rules for the tribunals, paragraphs 3(1) & (5) of the Practice Directions (supra) is unconstitutional, in so far as it purports to fetter the (Tribunal’s) discretionary powers to grant extension of time. That, the said paragraph 3(1) & (5) (supra) are inconsistent with paragraph 43(1), (2) & (3) of the First Schedule to the Electoral Act, 2006. Putting a reliance on AIGORO’S case (supra), it was further submitted that Practice Direction cannot be used to amend the clear provisions of the law.
It was pointed out that the lower tribunal refused to follow the Supreme Court’s decision in AIGORO’S case but instead relied on the Court of Appeal’s case of FOLAMI VS. IBRAHIM (2004) 10 NWLR (Pt.881) 43, thereby resulting in the lower tribunal coming to a wrong conclusion on the issue.
It was argued that the Practice Directions, 2007 (supra) have no force of law, as they are merely directive, thus ought not to have been used to dismiss any petition. The Court was urged to accordingly resolve this second issue in favour of the Appellant.
The submission of the 1st Respondent regarding the instant issue is to the effect, inter alia, that no provision of the Electoral Act, 2007 has affected the validity of the provision of paragraph 3(1) of the Practice Directions (supra). That, an election petition is sui generis, and the procedure thereof is strictly followed. See HARUNA ABUBAKAR & ANOR. VS. INEC & ORS. (2004)1 NWLR (Pt. 584) 207. It is contended that the lower tribunal was right in holding that the Practice Direction (supra) has the force of law, and that it’s constitutional unit declared otherwise by a court of competent jurisdiction. HARUNA & ORS. VS. MODIBBO & ANOR. (2004) 18 NWLR (Pt. 900) 487 at paragraph E.
On their part, the 2nd – 8th Respondents submitted that the issue of competence of the Practice Directions (supra) does not avail the Appellant, as it’s superfluous and out side the jurisdiction of the lower tribunal to make any pronouncement thereupon. That, by the doctrine of stare decisis, the lower tribunal was bound to follow the provisions of the Practice Directions (supra), which remain valid until declared otherwise by an appellate court.
It was further argued; that by section 285(3) of the 1999 Constitution (supra) and the sixth Schedule thereto, the Practice Directions, 2007 is part of the Constitution and derives its validity therefrom. See ABIA STATE UNIVERSITY VS. ANYAIBE (1996) 3 NWLR (Part 439) 646 at 66 – 661. That, the cases of HARUNA VS. MODIBBO (supra) 487 and UNIVERSITY OF LAGOS VS. AIGORO (supra) do not avail the Appellant, s both cases could allegedly be safely distinguished from the circumstance of the instant case. That, section 254 of the 1999 Constitution is not the base upon which the Practice Directions, 2007 (supra) was hinged. That, section S.256 applies to other provisions of the Electoral Act, 2006, such as section 14(1) in which the Federal High Court (Civil Procedure) Rules was specifically mentioned. See paragraph 50, Electoral Act, 2006.
It was finally submitted on the issue, that the Practice Directions, 2007 (supra) has the force of law, and that the Appellant violated paragraph 3(1) sufficiently for the lower tribunal to apply paragraph 4 thereof.
I have accorded an ample albeit very critical consideration upon the submissions of the respective counsel and vis-a-vis the various authorities referred to therein. It is not in doubt that Election Tribunals are the creation of the Constitution. See section 285 of the 1999 Constitution (supra) thus:
285(1) There shall be established for the Federal one or more elections tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether-
(a) any person has been validly elected as a member of the National Assembly;
(b) the term of office of any person under this constitution has ceased;
(c) the seat of a member of the Senate or a member of the House of Representative has become vacant; and
(d) a question or petition brought before the election tribunal has been properly or improperly brought.
(2) There shall be established in each State of the Federal one or more election tribunal to be known as the Governorship and Legislative Houses Election tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy governor or as a member of any legislative house.
(3) The composition of the National Assembly Election Tribunals, Governorship and Legislative Houses Election tribunals shall be as set out in the Sixth Schedule to this Constitution.
(4) The quorum of on election tribunal established under this section shall be the Chairman and two other members.
Paragraph 1(1) & (2) of the sixth schedule to the 1999 Constitution has provided for the composition of the National Assembly Election Tribunal.
On the other hand, paragraph 2(1) & (2) of the said sixth schedule has provided for the composition of Governorship and Legislative Houses Election tribunal. Instructively, both paragraphs 1(3) and 2(3) of the sixth schedule (supra) hove made identical provisions to the effect that:
(3) The Chairman and members shall be appointed by the President of the Court of Appeal in consultation with the Chief Judge of the State, the Grand Kachi of the Shariah Court of Appeal of the State or the President of the Customary Court of Appeal of the State as the case may be.
Curiously however, neither section 285 of the 1999 Constitution, nor paragraphs 1 and 2 of the Sixth Schedule thereto, had made specific provisions empowering the president of the Court of Appeal to make rules for the Election tribunals in question.
It is trite that, both the Chief Justice of Nigeria and the President of the Court of Appeal have been conferred with powers under sections 236 and 248 of the 1999 Constitution (supra) to make rules regulating the Practice and Procedure of the Supreme Court and Court of Appeal, respectively. Invariably, similar powers have also been conferred upon the Chief Judge, Federal High Court; the Chief Judge, Federal Capital Territory; Grand Kadi, Shariah Court of Appeal FCT; the President, Customary court of Appeal, FCT; The Chief Judge, State High Court, the Grand Kadi, State Shariah Court of Appeal; and the President, State Customary court of Appeal, under sections 254, 259, 264, 269, 274, 279, and 284, of the 1999 Constitution, respectively.
It is a well settled doctrine, that the Rules governing the procedure and practice of the Courts which were made by the respective Heads of Courts in question, pursuant to the powers conferred thereupon by the 1999 Constitution, form part and parcel of the Constitution. I think it may not be out of place to add that such procedural rules have the same force of law as the Constitution itself. See AKANBI & ORS. V. ALAO & ANOR. (1989) 3 NWLR (Part 108) 118; ABIA STATE UNIVERSITY VS. ANYAIBE (1996) 3 NWLR (Part 439) 646; 660 paragraph A – B per Kastina-Alu, JCA (as he then was). In AKANBI VS. ALAO’S case (supra), the apex Court considered the Court of Appeal Rules, which were made by the President pursuant to section 227 of the Constitution of the Federal Republic, 1979. The Supreme Court held, inter alia, thus:
“….the legal effect is that once it is shown that the Rules are made under powers conferred by the Constitution they would have the same force of law as the Constitution itself.”
Relatively, paragraph 50 of the First Schedule to the Electoral Act, 2006 (supra) has provided for the adoption, mutatis mutandi, of the Practice and Procedure of the Federal High Court (Civil Procedure) Rules in the exercise of its civil jurisdiction, thus:
- 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.
It is axiomatic, that the provisions of the First Schedule (supra) were made pursuant to the Electoral Act, 2006 (supra), especially sections 7(1), 141, 151 and 164(1) thereof. The enactment of the Electoral Act, 2006 became imperative by virtue of the Provisions of sections 153(f) and 285 of the 1999 Constitution (supra), and the Sixth Schedule thereto, the Independent National Electoral Commission (INEC) was established in pursuance of section 153 of the 1999 Constitution.
The argument of the Appellant’s learned counsel is that the Practice Directions, 2007 (supra) has no force of law.
It is trite that a Practice Direction is any direction given by the appropriate authority in the manner in which a particular rule of court should be complied with or observed. The main objective of a Practice Direction is to regulate the Practice and Procedure of the court, with a view to enhancing the prospect of securing compliance with the Rules of Court and thereby ensuring quick dispensation of justice to the parties. See UNIVERSITY OF LAGOS & ANOR. VS. AIGORO (1984) 15 NSC 745 at 765, lines 35 – 44 wherein the Supreme Court, per Obaseki JSC held, inter alia, thus:
It is my view that the Practice Directions more than anything else enhance the prospect of securing compliance with the provisions of the Rules and limit the incidence non-compliance thereby securing quick dispensation of justice. The court’s principle function is the adjudication of cases coming before it with justice and fairness. The rules of court are designed to secure the ends of justice in each case within a reasonable time. That was the expressed principle aim of the Practice Directions (as contained in paragraph 6 thereof) in consonance with the entrenched rights of parties in section 33(1) of the 1979 Constitution.
It was for the above reason that I dismissed the objection of counsel to the constitutionality and validity of the Practice Directions, 1982.
Thus, in view of the above authoritative holding of the apex court, the Appellant counsel’s reliance on AIGORO’S case, to the effect that Practice Directions are unconstitutional and have no force of law, is misleading and highly misconceived, to say the least.
In view of the provision of sections 275 of the 1999 Constitution (supra) and paragraphs 1 & 2 of the Sixth Schedule thereto, the president is undoubtedly empowered to make rules for regulating the Procedure and Practice of the Election tribunals duly established under (section 285) of the Constitution. Thus, in the instant case, the Election Petition Tribunal and Court Practice Directions, 2007 (supra) made by the President pursuant to paragraph 50 of the Sixth Schedule to the Electoral Act, 2006 (supra) is valid and, a fortiori, has the force of law. See HARUNA ABUBAKAR & ANOR. VS. INEC & ORS. (2004) 1 NWLR (Part 854) 207; 227 paragraphs D – E; NAA VS. OKORO (1995) 6 NWLR (Part 403) 510; 523; AKANBI VS. ALAO (supra) 118; ABIA STATE UNIVERSITY VS. ANYAIBE (supra) 646 respectively.
It was the contention of the Appellant’s learned counsel that-
… the President of one Court of Appeal is not empowered specifically or by necessary implication to make rules of Practice and Procedure for the Election tribunals and neither is he empowered to make such rules for the Federal High Court. There is no other section of the Constitution or any written currently in force that empowers the President of the Court of Appeal to make any rules of Practice and Procedure for the election tribunals and for any other court except the Court of Appeal.
It goes with out saying, that having regard to the above reasoning and the various authorities alluded to in support thereof, there is every reason to hold that the above submission is rather simplistic and highly preposterous, to say the least.
The provisions of paragraph 50 of the First Schedule to the Electoral Act, 2006 (supra) are undoubtedly to the effect, inter alia, that the Practice and Procedure of the tribunal or the Court shall be as early as possible similar to the Practice and Procedure of the Federal High Court in the exercise of its Civil jurisdiction. It was also provided by the said paragraph 50 (supra) that:
50: The Civil Procedure rules shall apply with such modification 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.
It must be reiterated, for the avoidance of doubt, that the above provisions of paragraph 50 of the First Schedule to the Electoral Act, 2006 (supra) have not in any way whatsoever conferred the Chief Judge of the Federal High Court with the power to make rules for the Practice and Procedure of the Election Tribunal and court. What’s more by virtue of paragraph 1 of the First Schedule to the Electoral Act, 2006, the ward “tribunal” ahs been interpreted to mean “an Election Tribunal established under the Act of the Court of Appeal.” It is therefore untenable for any law to be expected to confer a power on the Chief Judge of the Federal High Court to make rules governing the Procedure and Practice of the Court of Appeal.
In the light of the foregoing, the inevitable answer to issue No. 2 is in the affirmative, and it’s accordingly resolved in favour of the respondents.
Issue No. 1
The first issue of the Appellant was predicated on grounds 2 and 3 of the grounds of appeal. It raises the question of whether the Appellant’s application for pre-hearing conference complied with the provisions of paragraph 3(1) of the Practice Directions. No. 1 of 2007. Reference was made to paragraph 3(1) (3) & (4) of the Practice Directions, 2007 (supra). It was submitted that the petition was field on 22/5/07 and served on the 1st respondent on 06/6/07 for which the Respondent had 21 days to file his reply to the petition, which expired on 27/6/07. See paragraph 10(2) of the First Schedule to the Electoral Act, 2006. The 1st Respondent’s reply was filed on 25/6/07. That, the 2nd – 8th respondents were served with the petition on 18/6/07. They filed their reply on 09/7/07 i.e. the very day their time expired. The Appellant was served with 2nd – 8th respondents’ reply only on 31/7/07. See page 1758 of the Record.
It was further submitted that the Appellant brought his application for pre-hearing conference on 16/7/07. See page 178 of the Record. The argument of the Appellant’s counsel was to the effect that the application for pre-hearing conference was made within the time prescribed by paragraph 3(1) of the Practice Directions, 2007 (supra). That, the lower tribunal was in grave error when it held that the application was made 18 days earlier. That, the Appellant cannot be punished for being indolent, but rather the 2nd – 8th Respondents should be administered fro under taking to serve a process on 10/7/08, but kept it until 31/7/07.
It was contended that the spirit and intendment of the Practice Directions is to aid quick dispensation of justice, and not set up undue technical stumbling blocks, aimed of disposing of petitions without any hearing. That, the interpretation given to paragraph 391) of the Practice Directions by the lower tribunal is capable of leading to a manifest absurdity and a miscarriage of justice. See IWU VS. NWUGO (2004) 9 NWLR (Pt.877) 54 at 713; EGOLUM V. OBASANJO (1999) 7 NWLR (Part 611) 355 at 413. The Court was urged to accordingly resolve this issue in favour of the Appellant and hold that the petition thereof is competent.
On the other hand, the 1st respondent submitted, inter alia, that the grave consequences at non-compliance with the provisions of paragraphs 3(1)(2)(a), (b), (c) & (d) of the Practice Directions are provided under subparagraph (4) of paragraph 3 (supra). That the service of a process on a party is one of the fundamental conditions precedent to the exercise of Court’s jurisdiction. Any action or proceeding (commenced) in the matter before service is effected is a nullity. See ABU VS. ALELE WILLIAMS (1992) 5 NWLR (Part 241) 340; 349 paragraph E.
It was argued that having not applied for pre-hearing notice after 31/7/07, the Appellant had failed to comply with paragraph 3(1) of the Practice Directions, 2007 (supra). That the word ‘shall’ used in paragraph 3(1) (supra) is mandatory. See FOLARANMI VS. ABRAHAM & ORS. (2004) 10 NWLR (Part 881) 431; 444 – 449 paragraphs H – A; 454 – 455 paragraph H – G.
In consequence of the non-compliance with paragraph 3(1) (supra), the Appellant did not fulfil the condition precedent to the exercise of the lower tribunal’s jurisdiction to entertain the petition, thus, rendering the petition incompetent. See SOYANWO VS. AKINYEMI (2001) 8 NWLR (Part 714) 95; BOYI VS. HASSAN (2001) 18 NWLR (Part 744) 41 – 47.
In conclusion, the court was urged to resolve the issue against the Appellant, and accordingly dismiss the appeal.
The submission of the 2nd – 8th Respondents in the brief thereof is to the effect, inter alia, that paragraph 3(1) of the Practice Directions, 2007 (supra) is unambiguous in its content and requirement. That, the Appellant did not file any reply. That the 2nd – 8th Respondents reply filed on 08/7/07 could not be served until 31/7/07, thus as at 16/7/07 when the petitioner filed an application for a pre-hearing conference, “there was nothing to pre-hear”.
It was submitted that the filing of the application for a pre-hearing conference was premature, and therefore incompetent. It is deemed not to have been made at all. That, one cannot place something on nothing and expect it to stay. See UAC VS. MACFOY per Lord Denning (MP). That, after 31/7/07 no any application for pre-hearing was made. That, the petitioner had defaulted the time as provided in paragraph 3(1) of the Practice Directions, 2007, thus the petition ought be dismissed.
In the instant case, there is dispute regarding the facts that (i) the petition was filed on 22/5/07; (ii) the 1st Respondent’s reply was filed on 26/6/07, but served on the Appellant on 08/7/07. The Appellant however denied and the 2nd – 8th respondents’ reply although field on 09/7/07 could not be served on the Appellant until 31/7/07.
The provisions of paragraph 3(1) of the Election Tribunal & Court Practice Directions, 2007, the bane of contention in this appeal, are to the following effect.
- Pre-hearing session and scheduling
(1) within 7 days after the filing and service of the petitioner’s reply on the respondent, or 7 days after the filing and service of the respondent’s reply which is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007.
As alluded to above, it was submitted by the 2nd – 8th respondent’s learned that counsel that-
“Paragraph 3(1) of the 2007 Election & Court Practice Direction (sic) is unambiguous in its content and requirement…”
Ironically, however it’s my considered view that the above submission is, to say the least, misconceived. Having critically considered the provisions of paragraph 3(1) of the Practice Directions, 2007 (supra), there is every reason to believe that the words used therein are a far cry from being clear, plain and unequivocally unambiguous as to warrant this court to accord them their literal and grammatical meaning.It should be reiterated, for the avoidance of doubt, that it’s a well trite doctrine that the actual words used in a statute ought to be accorded their literal, grammatical or ordinary meaning devoid of any sentiment, decoration, or quibble, invariably, a court has an obligation to give effect to such words used in a statute that appear to be plain and unambiguous. This trite doctrine is hinged on the belief that a court has no business reading into a statute words which are not used therein. See UBA PLC. VS. AKPARABONG COMM. BANK (NIG.) LTD. (2005) 35 WRN 98 paragraph 8; OGUNADE VS. DADAYIRO (1972) 8 – 9 SC 1; NWRW VS. NRC (1996) 6 NWLR (Part 473) 496, 503; BUHARI VS. OBASANJO (2005) ALL FWLR (Part 273) 1; 133 – 134, respectively.
In the instant case, one does not undoubtedly need a microscopic glass to discern the lacuna inherent in the provision of paragraph 3(1) (supra). The said paragraph 3(1) of the Practice Directions, 2007 (supra) has not seemed to have tied down the Respondents to a time limit within which to file and serve their respective replies to the petition. For the provision of paragraph 3(1) of the Practice Directions, 2007 (supra) to become more meaningful and self explanatory, a subparagraph, requiring a respondent to file and serve his reply to the petition within a time limit, ought to have been inserted therein. Certainly, the absence of such a vital provision directing a respondent to file and serve his reply to the petition within a specified time limit, has rendered the provisions of paragraph 3(1) of the Practice Directions, 2007 (supra) rather ambiguous, invariably, the general principle is that where, as in the paragraph 3(1) of the Practice Directions, 2007 (supra) rather ambiguous, invariably, the general principle is that where, as in the instant case, the words of a statute are manifestly ambiguous, the court has a duty to give them a meaning that will resonate with common sense, order and system, so as to make them realistically operative. See BUHARI VS. OBASANJO (2005) 3 (Part 941) 1, 281 paragraph D.
It is also a well settled principle, that in constructing the provision of a section of paragraph of a statute, the entire provisions of the statute have to be read in order to determine the actual meaning and effect of the words being interpreted. See GARBA VS. FCSC (1988) 1 NWLR (Part 71) 449; AWOLOWO VS. SHAGARI (1978) 6 – 9 SC 51; BRONIC MOTORS VS. WEMA BANK (1983) 1 SCNLR 296; BUHARI VS. OBASANJO (supra) at 219 paragraphs D – F, respectively. Undoubtedly, the Election Tribunal & Court Practice Directions, 2007 (supra) were issued by the president, Court of Appeal by virtue of the powers conferred thereupon under paragraphs 1 & 2 of the sixth schedule to the 1999 Constitution; Section 151 of the Electoral Act, 2006; and paragraphs 50 of the First Schedule to the Electoral Act, 2996 (supra); respectively. Thus, in the absence of any clear and unambiguous provision in the practice Directions, 2007 (supra) requiring the Respondents to file and serve their respective replies to the petition within a stipulated time limit, the provisions of paragraphs 12(1) and 16(1) of the First Schedule to the Electoral Act, 2006 (supra) ought to be resorted to, thus;
(12) (1) The Respondent shall, within fourteen (14) days of entering an appearance file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he replies in opposition to the election petition.
(16) (1) If a person in his reply to the election petition raises new issues of facts in defence of his case which the petition has not dealt with the petitioner shall be entitled to file in the Registry, within five (5) days from the receipt of the Respondent’s reply, a petitioners reply in answer to the new issues of facts, so however that;
(a) The petitioner shall not at this stage entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him; and
(b) The petitioner’s reply does not run counter to the provisions of subparagraph (1) of paragraph 14 of this Schedule.
By virtue of paragraph 12(1) of the First Schedule to the Electoral Act, 2006, the Respondents into eh instant case had 14 days after entering an appearance within which to tile their replies to the petition. Whereas, by virtue of paragraph 16(1) of the said First Schedule, the petitioner had only five days from the receipt of Respondents’ reply to file his reply thereto. As alluded to above, the 1st Respondent’s reply petition was filed on 25/6/07 i.e. nineteen (19) days after the petition was served on him on 06/6/07. Likewise, the 2nd – 8th Respondents’ reply was filed on 09/7/07 i.e twenty one days after they were served with the petition on 18/6/07. Ironically however, despite the fact that the 2nd – 8th Respondents’ reply was filed on 09/7/07, it was not served on the Appellant until on 31/7/07. It goes without saying, therefore, that the Appellant’s time within which to file a reply to the 2nd – 8th Respondent’s reply had started running from the 31/7/07 (the day he was served the 2nd – 8th respondents’ reply to the petition) and ended on 04/8/07. See paragraph 12(1) of the First Schedule to the Electoral Act, 2006 (supra). In the same vein, the Appellant’s time to file his application for a pre-hearing conference started to run from the said 31/7/07 and ended on 07/8/07, respectively. See paragraph 3(1) of the Practice Directions, 2007 (supra), thus:
- (i) Within 7 days after the filing and service of the petitioners reply on the Respondent, or 7 days after the filing and service of the Respondent’s reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007. (underlining added for emphasis).
Page 175C of the Record is an affidavit of service sworn to by one Tony Dimegwu, the lower tribunal’s bailiff, to the effect that he served the 1st Respondent’s reply on the petitioner on 08/7/07. However, there is no such affidavit of service to prove that the petitioner was indeed served with the 2nd – 8th Respondents’ reply. Thus, in the absence of any proof to the contrary, this court has a duty to be bound by the record of the lower tribunal to the effect that the 2nd – 8th Respondents’ reply to the petition was served on the petitioner on 31/7/07. And I so hold.
As alluded to above, issue No. 1 was distilled from grounds 2 & 3 of the Grounds of Appeal, which are to the following effect.
B. GROUND TWO
ERROR IN LAW
The learned Trial Tribunal erred in law when it held that the appellant’s application for pre-hearing conference was premature.
PARTICULARS OF ERROR
- The last pleading in this petition was filed on 9/7/07
- The appellant applied for pre-hearing conference on 16/7/07
- As at the time when the appellant applied for the pre-hearing conference pleadings had already closed and time allowed the respondents to file their replies had already elapsed.
C. GROUND THREE
ERROR IN LAW
The learned Trial Tribunal erred in law when it held that on application for pre-hearing conference made after the close of pleadings but before the last reply is served on the incompetent.
PARTICULARS OF ERROR
- Paragraph 3(1) of the Practice Direction (sic) operates to aid quick disposal of election petitions.
- Applications for pre-hearing conference become necessary after the close of pleadings.
- A vigilant petition should not wait until the reply is served on him before he can apply for pre-hearing conference.
D. GROUND FOUR
MISDIRECTION
The learned Trial Tribunal misdirected itself when it held that the 2nd – 8th Respondents’ reply was served on the on 31/7/07.
PARTICULARS OF MISDIRECTION
- The 2nd – 8th respondents’ reply was served by the bailiff of the tribunal before the application fro pre-hearing conference.
- Subsequently, the counsel for the 2nd – 8th respondents inadvertently served another copy of the same reply on the petitioner’s counsel on 31/7/07.
- The proof of the 1st service was before the Trial Tribunal.
The central theme of the Appellant’s argument on the issue was that the application for the pre-hearing conference was filed on 16/7/07 and that the interpretation given to paragraph 3(1) of the Practice Directions, 2007 by the lower tribunal was capable of leading to a manifest absurdity and a miscarriage of justice. See IWU VS. NWUGO (supra) at 73.
I have considered the totality of the circumstances surrounding the case as a whole, the record of proceedings and the submissions of the learned counsel in the respective briefs thereof. In the instant case, parties are ad idem that the 2nd – 8th Respondents filed their joint Reply to the petition in the lower tribunal on 09/7/07. That fact is borne out by the Record, especially at pages 169 and 175A thereof. It is also not in dispute that the petitioner’s application for a pre-hearing conference was filed in the lower tribunal on 16/7/07. The said application is to the following effect.
13/7/2007
The Secretary,
National Assembly
Election Tribunal,
Owerri,
Dear Sir,
RE: PETITION NO EPT/NA/IM/24/2007: DEIMEGWU V. OGUNEWE
We are solicitors to the petitioner in the above petition.
Pleadings have closed in the said petition. May we humbly apply that parties be summoned for a pre-trial conference in accordance with the Practice Direction issued by the President of the Court of Appeal.
Thanking you for your anticipated cooperation.
Yours faithfully,
STANLEY CHIDOZIE
IMO ESQ
PP. NDUKWE NNAWUCHI & CO.
It was the finding of the lower tribunal at page 216 of the Record that:
There is no dispute that the petition was served on the 1st Respondent as early s 6/6/07, there is also no dispute that the 2nd – 8th Respondents were not served with the petition until 18/6/07. They filed their joint reply on 9/7/07 which was served on the petitioner on 31/7/07.
In the present case, the 2nd – 8th Respondents did not file a memorandum of appearance in the lower tribunal. By virtue of paragraph 10(2) of the First Schedule to the Electoral Act, 2006, they were entitled to file their reply not later than twenty one (21) days after the service of the petition thereon on 09/6/07. See paragraph 10(2) of the First Schedule (supra) thus:
10(1)
(2) The non-filing of a memorandum of appearance shall not bar the respondent from defending the election petition if the respondent files his reply to the election petition in the registry within a reasonable time, but in any case, not later than twenty-one days (21) from the receipt of the election petition.
Thus, in view of the above provisions of the law, this court has every reason to uphold the finding of the lower tribunal, to the effect that the 2nd – 8th Respondents had up to “9/7/07 to file their reply within time.”
By virtue of the provisions of paragraph 16(1) of the First Schedule to the Electoral Act, 2006, the petitioner had only five (5) days, on receipt of the Respondents reply, to file his reply to the Respondents’ reply. See paragraph 16(1) of the First Schedule (supra) thus:
16(1) If a person in his reply to the election raises new issues of facts in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the registry, within five (5) days from the receipt of the Respondent’s reply, a petitioner’s reply in answer to the new issue of fact….
(2) The time limited by subparagraph (1) of this paragraph shall not be extended.
I think, there is a need to allude to the fact that the provisions of paragraph 16(1s) of the First Schedule (supra) have not imposed a duty on a petitioner to file a reply to the Respondents reply. In the instant case, the application of the petitioner for a pre-hearing conference, dated 16/7/07, was filed on 16/7/07. It was certainly filed within the seven (7) days time limit, as provided under paragraphs 3(1) of the Practice Directions, 2007 (supra). It was the finding of the lower tribunal that time was not ripe for the petitioner to bring this application for pre-hearing notice when he did. According to the lower tribunal:
We have taken a decision on this point in the ruling of this Tribunal delivered in petition No. EPT/LH/IM/11/2007.
CALLISTUS U. AZUDIBIA VS. INEC & ORS. What we said in that ruling equally applies to this petition. It is to the effect that an application for a pre-hearing notice which is brought before the prescribed time is incompetent and ought to be struck out. See ADEWUMI VS. ATTORNEY-GENRAL OF ONDO STATE (1996) 8 NWLR (Part 464) 73. To put in another way, the application made by the petitioner 13/7/07 is incompetent and to that extent, it ought to be struck out.
There is no doubt, with due respect to the lower tribunal, the above finding was, to say the leas, misconceived. Having found as a fact, that the 2nd – 8th Respondents reply to the petition was filed on 09/7/07, it goes without saying that the petitioner was entitled, from the said 09/7/07, to file an application for a pre-hearing conference, in as long as the said application was filed within the seven (7) days time limit, as stipulated in paragraph 3(1) of the Practice Directions, 2007 (supra).
It would be reiterated, that the filing of the application on 16/7/07 for the pre-hearing conference presupposes the fact that the petitioner either did not intent, or has forfeited his right, to file a reply to the 2nd – 8th Respondents’ reply to the petition in question. In the present circumstance, it was certainly erroneous for the lower tribunal to have arrived at the conclusion as it did, that the filing of the application for the pre-hearing conference on 16/7/07 was pre-mature. Most unfortunately for the lower tribunal, the Record bears an eloquent testimony of the fact that the petitioner was passionately vigilant in pursuing his Constitutional and legitimate rights in the lower tribunal. I agree entirely with the submission of the Appellant’s learned counsel, to the effect, inter alia, that the 2nd – 8th Respondents, rather than the Appellant, deserved to be admonished for failing to serve their reply on the Appellant twenty one (21) days after they undertook to do so.
What’s more, it’s my considered view that the lower tribunal’s finding on the provisions of paragraph 3(1) of the Practice Directions, 2007 (supra), to the effect that the application for the pre-hearing conference in question was filed prematurely, tantamount to a sheer absurdity and breach of the Appellant’s right of hearing, as enshrined under section 36(1) of the 1999 Constitution, and a miscarriage of justice.
It is rather axiomatic, that the intendment and purport of Practice Directions, generally is to direct parties and counsel thereof to be vigilant to their responsibility to abide by the provisions of the Rules of Court in order to enhance their efficiency in the administration of justice. See UNIVERSITY OF LAGOS VS. AIGORO (supra) at page 756, lines 31 – 38, per Bello, JSC (of blessed memory, as he then was).
Undoubtedly, with the current trend in shifting from undue reliance on technicalities to doing substantial justice according to law, the hey days of the so called technical justice are not only numbered but over. See EGOLUM VS. OBASANJO (1999) 7 NWLR (Part 611) 355 at 413 per Achike, JSC (of blessed memory).
As pointed out above, the dismissing of the Appellant’s petition, in limine, by the trial tribunal has certainly amounted to a wanton breach of his fundamental right to fair hearing, as cherishingly enshrined under section 36(1) of the 1999 Constitution (supra) which provides thus:
36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
It is pertinent that the doctrine of fair hearing (audi alteram partem) in question, is not merely a technical principle. It is rather a rule of substance. See BAMAIYI VS. THE STATE (2002) FWLR (Part 46) 956 at 974 paragraphs D – F; KOTOYE VS. CBN (1989) NWLR (Part 98) 419; ATANO VS. AG. BENDEL STATE (1988) 2 NWLR (Part 75) 201, respectively.
In the light of the foregoing reasoning, there is no doubt that the answer to issue No. 1 ought to be in the affirmative, and same is hereby resolved in favour of the Appellant.
Hence, having accorded on ample regard upon the circumstances surrounding the appeal as a whole, the record of proceedings of the lower tribunal, and the submissions of the learned counsel in the respective briefs thereof, there is every reason for this court to hold that this appeal is meritorious. And I so hold. The appeal is accordingly allowed by me.
Consequently, the ruling of the lower tribunal, delivered on 18/9/07, dismissing the Appellant’s petition No. EPT/NA/IM/24/2007, is hereby set aside. The petition in question is hereby remitted to the lower tribunal for a trial on the merit. The sum of N30,000.00 is hereby awarded as costs in favour of the Appellant.
Other Citations: (2008)LCN/3054(CA)
