Hon. Solomon Anusike A. V. Independent National Electoral Commission (INEC) & Ors (2009)
LawGlobal-Hub Lead Judgment Report
STANLEY SHENKO ALAGOA, J.C.A.
This is an appeal against the ruling of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal Anambra State Holden at Awka in Petition No. EPT/AN/SAE/72/2007 CORAM: Hon. Justice James Shehu Abiriyi (Chairman), Hon. Justice Ayuba Garba Kwajaffa (Member), Hon. Justice Peter Osoretinmwhen Isibor (Member), Hon. Justice Biobele Abraham Georgewill (Member) and Justice Abubakar Muazu Lamido (Member) delivered on the 15th October 2007. The facts leading up to this appeal are briefly stated hereunder as follows –
The Appellant who was Petitioner in the Tribunal below on the 14th May 2007 commenced action in the said Tribunal seeking the following reliefs –
i. Declaration that no election was conducted in the entire Orumba South Constituency in which your Petitioner was a candidate for the Anambra State House of Assembly under the All Progressive Grand Alliance on the 14th April 2007.
ii. Declaration that the return of the 4th Respondent as the winner of the April 14th 2007 of Assembly election for Orumba South Constituency is invalid, null and void and of no effect in that no election infact took place on that date or any other date.
iii. An order nullifying the “result” of the said election and directing the 1st Respondent to conduct election for the House of Assembly seat of Orumba South Constituency.
The above petition is contained at page 5 of the Record of Appeal. Subsequently the 4th Respondent brought a Motion dated the 18th September 2007 and filed on the 24th September 2007 pursuant to sections 144 (2), 147 (3) Electoral Act 2006, paragraphs 4, 49 and 50 of the 1st Schedule to the Electoral Act, paragraphs 3 and 6 of the Election Tribunal and Court Practice Direction 2007 and paragraph 36(1) and (4) of the Federal High Court Civil Procedure Rules 2000 praying the Tribunal for the following –
A. An order of the Honourable Tribunal striking out this petition; AND OR
B. An order of the Honourable Tribunal striking out the pre-hearing information sheet Form TF 007 and the Form TF 008 filed out of time in this Petition by the Petitioner on the 17th September 2007.
C. An order of the Tribunal dismissing the Petition of the Petitioner/Respondent for non compliance with the provisions of the Election Tribunal and Court Practice Direction 2007.
D. And for such other order or orders as the Honourable Tribunal may deem for to make in the circumstance.
The application is supported by a 22 paragraph affidavit.
The grounds relied upon by the 4th Respondent/Applicant are nine in number although the Applicant argued only grounds 8 and 9 which are as follows –
- The forms TF 007 and form TF 008 were not filed in accordance with the Practice Direction.
- The Petitioner has abandoned the Petition having failed to apply for the issuance of pre hearing notice within 7 days time limit from the date of service of the Respondents’ Reply as stipulated by the Practice Direction.
The Petitioner/Respondent (now Appellant) filed a counter affidavit. Written addresses were submitted by the parties. The Tribunal in a considered Ruling struck out forms TF 007 and TF 008 filed by the Petitioner/Respondent as having been filed out of time. The Tribunal also dismissed the Petition under paragraph 3(4) of the Election Tribunal and Court Practice Directions 2007. It is this ruling that has given rise to this appeal.
The Petitioner (hereinafter referred to simply as the Appellant) filed a Notice of Appeal dated the 5th November 2007 and filed same day. The said Notice of Appeal contains six grounds which are reproduced below shorn of the particulars –
GROUND ONE: ERROR IN LAW
The members of the honourable tribunal erred in law by failing to properly interprete the provisions of paragraph 3 (1) (2) (3) and (4) of the Election Tribunal and court Practice Direction 2007.
GROUND TWO: ERROR IN LAW
The honourable Tribunal erred in law when it held as follows, “petitioner/respondents counsel has questioned the powers of the president of the Court of Appeal to make the practice direction of this tribunal… we are of the view that we are bound to apply the practice directions and we will enthusiastically do so as an election Tribunal”
GROUND THREE: ERROR IN LAW
Members of the honourable Tribunal erred in law when they held that the petitioner is still bound to file Forms TF 007 and TF 008 when there is a pending application challenging the competence and validity of the petitioner’s reply on the 17th August.
GROUND FOUR: ERROR IN LAW
Members of the Hounourable Tribunal erred in law when they held that the applicant complied with the order of the honourable Tribunal made on 6th September 2007, on the 6/10/2007 when the application was argued.
GROUND FIVE: ERROR IN LAW
The honourable Tribunal erred in law and thereby occasioned miscarriage of justice when it failed and or neglected to pronounce on the petitioners counsel submission that the process filed on 6/10/2007 by the 4th respondent was overreaching a preemptor process and an abuse of process of court.
GROUNDS SIX: MISDIRECTION IN LAW
Members of the honourable tribunal misdirected themselves in law when they held as follows on page 6 of the ruling “be that is it may it behoves us to point out that by the time this tribunal made its order about which learned counsel for petitioner/respondent made heavy weather on the 6th September 2007 the petitioner was already out of time to apply for form TF 007”
The Appellant is seeking the following reliefs –
(a) To allow the appeal and set a side the decision of the tribunal dismissing the Petition
(b) An order directing that the Petitioner’s Petition be heard on its merit by another panel of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal.
This appeal came up for hearing on the 19th September 2009 and V.C. Mbamalu esq. holding the brief of S.O. Solomon for the 1st-3rd Respondents drew our attention to a Notice of Preliminary Objection filed by the 1st – 3rd Respondents dated the 20th October 2008 and filed on the 21st October 2008 which has been argued at pages 6 – 13 of the Brief of Argument of the 1st – 3rd Respondents. He adopted and relied on it.
Chugbo Enwezor, Counsel for the Appellant said no reply was filed for the Appellant with respect to the Preliminary Objection. Nevertheless he urged this Court to dismiss the preliminary objection. Other Counsel made no reference to the Preliminary Objection. Mr. Chugbo Enwezor thereafter adopted and relied on the Appellant’s Brief of Argument dated the 22nd May 2008 and filed on the 30th May 2008 and urged this Court to allow the appeal. V.C. Mbamalu adopted and relied on the Brief of Argument of the 1st – 3rd Respondents dated the 20th October 2008 and filed on the 21st October 2008 and urged this court to dismiss the appeal.
Arthur Obi Okafor esq. adopted and relied on the Brief of Argument of the 4th Respondent dated the 30th July 2008 and filed on the 1st August 2008. Counsel referred us to appeal No. CA/E/EPT/24/2008 BARRISTER CHUGBO ENWEZOR V. INEC & ORS. decided by this Division of the Court of Appeal on the 10th July 2008 and also the case of IKORO V. IZUNASO (2009) 4 NWLR (PART 1130) page 45 at 71 and urged us to dismiss the appeal.
I propose to deal firstly with the Notice of Preliminary Objection filed by the 1st – 3rd Respondents which is said to have been argued at pages 6 – 13 of the Brief of Argument of the 1st – 3rd Respondent’s. The ground of the objection of the 1st – 3rd Respondents is stated as follows, “The decision of the trial Tribunal appealed against vide the Notice of Appeal dated the 5th November 2007 and filed same day at the Tribunal’s Registry Awka is basically interlocutory in nature not being a final decision on merit and therefore a violation of section 246 of the Constitution of the Federal Republic of Nigeria 1999 and decided authorities of the Apex Court and this Honourable Count in ORUBU V. NEC (1988) 5 NWLR (2004) 1 NWLR (PART 854) 242; OKON V. BOB (2004) 1 NWLR (PART 1047) 191; AMGBARE V. SYLVA (2007) 18 NWLR (PART 1065) 1; and ENIMIKEMI V. SYLVA (2008) 8 NWLR (PART 1088) 2007.
Let me first and foremost express my dismay with the attitude of counsel for the Appellant towards a preliminary objection that seeks to jettison his appeal. Counsel while not preferring any argument nevertheless asks Court to discountenance it. On what grounds should the court do so if I may ask? Although the law is said to be in the bosom of the Court, Counsel called upon to take up a case must in fairness to their clients and in aid to the court put in their very best to justify that trust. To do otherwise is to be dishonest. Having said that, what does section 246 (1) (b) (i) of the Constitution of the Federal Republic of Nigeria 1999 say with respect to appeals. That section provides as follows; “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 Tribunals on any question as to whether –
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a state under this Constitution.”
(Underlining mine for emphasis).
This Section is very clear and unambiguous. It refers to appeals lying as of RIGHT from DECISIONS, not FINAL DECISIONS of the election petition Tribunal to the Court of Appeal. Compare section 246 (1) (b) (i) with Section 241 (1) (a) of the Constitution which provides that, “An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) final decisions in any Civil or Criminal proceedings before the Federal High Court or High Court sitting at first instance (Underlining mine for emphasis)
The preliminary objection is therefore baseless and is accordingly dismissed.
With respect to the Appeal proper, a myriad of issues have been formulated by the parties to this appeal from the grounds of appeal. I however think the proper issue for determination in this appeal is, “Whether the trial Tribunal was right in striking out forms TF 007 and TF 008 and dismissing the Petition under paragraph 3 of the Election Tribunal and Court Practice Direction 2007.” What are the provisions of paragraph 3 of the Election Tribunal and Court Practice Directions 2007 provide? The relevant subsections are 3(1) – (5).
3(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, whichever is the case, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007
3(2)- Upon application by a Petitioner under sub-paragraph (1) above, the Tribunal or Court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in FORM TF 008 for the purposes set out hereunder:
(a) disposal of all matters which can be dealt with on interlocutory application
(b) giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposition in view of the urgency of election petitions
(c) giving direction on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need to expeditious disposal of the petition
(d) fixing clear dates for hearing of the petition.
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.
3(4) Where the Petitioner and the Respondent fail to bring an application under this paragraph the Tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.
3 (5) – Dismissal of a petition pursuant to sub-paragraph (3) and (4) above is final and accordingly the Tribunal or Court shall be functus officio.
It is instructive to reproduce paragraphs 16 and 17 of the affidavit in support of the 4th Respondents Motion –
16 – That the Petitioner on the 17th August, 2007 outside the 5 days period limited by paragraph 16(1) and (2) of the 1st Schedule of the Electoral Act 2006 filed a Petitioner’s Reply.
17 – That the Petitioner subsequently applied for the issuance of Hearing Notice for pre-hearing session on the 17th September 2007 more than 38 days from the service of the 4th Respondent’s Reply on him.
The Appellant who is Respondent in the motion in reply said as follows at pages 26 and 27 of his counter affidavit –
26 – “I was informed by Chugbo Enwezor of Counsel in our office on Wednesday 3rd October, 2007 at about 2 pm and I verily believe him as follows –
(a) That he could not have filed FORM TF 007 and TF 008 as that would preempt application seeking to strike out my reply from their own calculation being filed out of time
(b) That the 4th Respondent or any respondents cannot be heard to seek any relief from the tribunal while still in disobedience of the order of this honourable tribunal made on the 6th September 2007 and that all the applications filed are abuses of the process of Court.”
27 – “That seeing the Respondent’s desperation to cling on the requirement of filing of FORMS TF 007 and TF 008 we on September 13, 2007 applied to the registry of this Honourable tribunal for the issuance of FORMS TF 007 and TF 008 pursuant to the deposition above our FORMS TF 007 and TF 008 was (sic) filed on the 17th September 2007 and promptly served on the Respondents.”
It is abundantly clear that by these depositions, the Appellant/has admitted that the application for FORMS TF 007 and TF 008 filed on the 17th September 2007 was filed out of time. He urged the court not to come to the conclusion that his petition was abandoned. The tribunal could still extend time for him to file FORMS TF 007 and TF 008 irrespective of the provisions of the Practice Direction to the contrary as no Practice Direction can stop the Tribunal from doing justice in his particular circumstance. Counsel even went on to submit that the Practice Direction 2007 was made ultra vires the powers of the President of the Court of Appeal and inconsistent with the Court of Appeal Rules and that its paragraphs 3(3), (4) and (5) are in conflict with section 119 (4) of the Constitution of the Federal Republic of Nigeria 1999 and paragraph 43(1) of the Rules of procedure for Election Petitions and should be adjudged null and void by virtue of section 1(3) of the Constitution. All this to me can be likened to a drowning man trying desperately to cling unto straw to stay alive. In the first place, the President of the Court of Appeal derives his powers to issue the Election Tribunal and Court Practice Directions 2007 by virtue of section 285(3) of the Constitution of the Federal Republic of Nigeria 1999, paragraph 50 of the First Schedule to the Electoral Act 2008 amongst others. Appellant had contended that the 4th Respondent applied for the striking out of the Petitioner/Appellant’s Reply but that could hardly be taken as a good reason for not filing FORMS TF 007 and TF 008. Paragraph 3(1) of the Practice Directions 2007 is unambiguous – “Within 7 days after the filing and service of the Petitioner’s Reply on the Respondent or 7 days after filing and service of the Respondents’ reply whichever is the case the petitioner shall apply for the issuance of pre-hearing notice as in form TF 007.” (Underlining mine for emphasis).
The consequence of non-compliance with this provision is clearly spelt out in paragraph 3 (4) – Dismissal of the petition and no application for extension of time to take that step shall be allowed. (Underlining mine for emphasis).
The word “shall” connotes a command and is mandatory. It admits of no reason why steps which ought to have been taken by a party in compliance with the Practice Direction were not adhered to. The tribunal below was therefore in my view right in striking out forms TF 007 and TF 008 filed out of time by the Appellant and in also dismissing the petition of the Appellant. In the circumstance the issue for determination is resolved in favour of the Respondent against the Appellant. The appeal fails and is dismissed and the Ruling of the National Assembly/Governorship and Legislative Houses Tribunal Anambra State holden at Awka delivered on the 15th October 2007 is accordingly affirmed.
There shall be N30,000.00 costs in favour of the 4th Respondent against the Appellant.
Other Citations: (2009)LCN/3354(CA)
