Abdullahi Alhaji Minjibir & Anor. V. Sani Sale Minjibir & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
The 1st Appellant – Abdullahi Alhaji Minjibir was the candidate fielded by the 2nd Appellant – Peoples Democratic Party for election to the Minjibir/Ungongo Federal House of Representatives Constituency of Kano State. The election was held on 21st April, 2007. The Respondent-Sani Sale Minjibir also contested in the said election for the same office. He was sponsored by the 2nd Respondent-All Nigeria Peoples Party. The 3rd and 4th Respondents organized and conducted the said election in the course of their statutory functions. At the end of the day, the 1st Respondent was declared and returned by the 3rd and 4th Respondents as the successful candidate and winner of the election in question.
Being dissatisfied with the said declaration and return, the 1st and 2nd Appellants herein as Petitioners, filed a petition numbered EPT/KNS/HR/42/2007 before the Tribunal. It was dated and filed on 22nd May, 2007, containing 14 paragraphs and challenging the conduct of the said election and return of the 1st Respondent. (Pp. 2-25 of the record)
Upon being served with the petition, both 1st and 2nd Respondents filed their joint memorandum of conditional appearance dated 14th June, 2007 and filed on the same date. (P.59 of the record) Thereafter, on 28th June, 2007 the 1st and 2nd Respondents filed their joint reply dated the same date to the petition. (Pp. 87-99 of the record) The said joint reply was duly served on the Petitioners and 3rd and 4th Respondents through their respective learned counsel on 2nd July, 2007 and 5th July, 2007 respectively. (Pp. 134 – 137 of the record)
The 3rd and 4th Respondents engaged in filing motions for extension of time to file their memorandum of appearance, dated 3rd July, 2007 and filed on 5th July, 2007. (Pp. 138 – 144 of the record) Another motion for extension of time to file their reply to the petition is dated 20th July, 2007 and filed on 23rd July, 2007. (Pp. 198-234 of the record)
Thereafter and on 27th July, 2007 to be precise, the Petitioners vide their motion on notice dated 26th July, 2007 prayed the Tribunal for, “an order issuing the Form TF 007 and other Pre-Hearing session documents and to schedule the Pre-Hearing Sessions.” (Pp. 237-242 of the record) The 1st and 2nd Respondents also filed a counter-affidavit deposed to on 1st August, 2007 against the aforesaid Petitioners’ motion for issuance of Form TF007 and other pre-hearing session documents. (Pp. 245 and 246 of the record) the Petitioners also filed a further and better affidavit sworn to on 9th August, 2007 in response to the aforesaid counter-affidavit filed by the 1st and 2nd Respondents (Pp. 260-261 of the record).
On 13th July, 2007, and in the course of hearing the petition, the learned counsel for the 3rd and 4th Respondents applied and withdrew their motion on notice dated 3rd July, 2007. The application was granted and the said motion was struck out having been withdrawn by counsel. (P. 266 of the record).
On 9th August, 2007, the motion on notice filed by the Petitioners for issuance of Form TF007 was taken, argued and duly heard. The learned counsel for all the Respondents respectively opposed the application. (Pp. 268-271 of the record). The Tribunal in its considered ruling delivered on 10th August, 2007, found that the application for issuance of Form TF007 by the Petitioners was filed out of time. It then went ahead and dismissed the petition as an abandoned petition. (Pp. 272-279 of the record).
Aggrieved by the unpalatable turn of events as heralded by the Tribunal’s ruling, the Petitioners (hereinafter referred to as Appellants) filed their notice and grounds of appeal dated 23rd August, 2007 but filed on 24th August, 2007 containing four grounds of appeal. (Pp. 280-283 of the record). Out of these grounds of appeal, two issues were distilled for determination by the Appellants. The issues are reproduced below:
2.02 Whether the learned Trial Tribunal was right when it struck out this petition as an abandoned petition notwithstanding the existence of a subsisting application by the 3rd and 4th Respondents for extension of time within which to file their reply.
2.03 Whether the learned Trial Tribunal’s Ruling which was based on speculations and assumptions regarding the date the 2nd and 3rd Respondents were served with the petition in this matter, led to a miscarriage of justice in this petition.
The 1st and 2nd Respondents in their brief of argument dated and filed on 19th November, 2007 submitted one issue for resolution in this appeal. It states: (i) Whether the Honourable Tribunal was in error in dismissing the petition for the Petitioners failure to comply with the mandatory provisions of the Election Tribunal and Court Practice Direction, 2007 which command filling of an application for issuance of pre-hearing notice as in Form TF007?
The 3rd and 4th Respondents also in their brief of argument dated 6th November, 2007 and filed on 7th November, 2007 formulated two issues for determination in the instant appeal. Both issues are as follows:
3.2 Whether or not the Appellants petition was liable to be dismissed as abandon in accordance with the provisions of paragraph 3(4) of the Election Tribunal and Court Practice Direction, 2007.
3.3 Whether or not the learned trial Tribunal was right in its Ruling when it took judicial notice of the date of filing of the Motion on Notice by 3rd and 4th Respondents in arriving at its decision.
Howbeit, it is to be noted that on 19th November, 2007, the learned counsel for the 1st and 2nd Respondents filed a notice of their intention to rely on or raise preliminary objection, challenging the competence of the appeal. The grounds for the preliminary objection were couched in the following terms:
(i) The Mandatory provisions of the Practice Direction No. 2 of 2007 to the Electoral Act, 2006, No.2 Section 149 was violated in that;
(a)The Conditions of Appeal were not fulfilled within the statutory period i.e. at the time of filing of the Notice of appeal to enable the Secretary of the Tribunal compile the record of proceedings within 10 days (paragraphs 2 and 4 of the Practice Directions No.2 of 2007)
(ii) No leave to Appeal was sought for or obtained before the interlocutory appeal against the decision dismissing the petition as an abandoned petition was filed. (Section 246(1) of the Constitution of the Federal Republic of Nigeria, 1999)
(iii) The Ground 1 contained in the Notice of Appeal filed on 24th August, 2007; Issue 2 formulated in the Appellants’ Brief of Argument and the Argument of issue 2 thereon are incompetent.
It was also stated in the said notice of preliminary objection by the 1st and 2nd Respondents, that reliance would be placed on the affidavit sworn to by Hajia Rabi Farouk. The 1st and 2nd Appellants also filed a counter-affidavit in rebuttal.
Arguments canvassed in respect of the preliminary objection can be found on pages 4 – 8 of the 1st and 2nd Respondents brief of argument. I intend to dispose of the said preliminary objection raised herein before proceeding with the issues in the appeal if there is further need for such an exercise.
On the first ground of objection, the learned counsel for the 1st and 2nd Respondents argued that there was non-compliance by the Appellant herein, regarding requirements for payment of filing fees, furnishing the Tribunal’s registry with requisite copies of notice of appeal, coupled with non payment of assessed fees for service on the Respondents. It was thus his submission in essence, that mandatory provisions of the Practice Directions No. 2 of 2007 has been breeched by the Appellants herein and the consequences must follow. Reliance was placed on Nabhani V. Nabhani (1967) 1 ALL NLR 47 and Ogunmade V. Fadairo (1972) 8-9 SC 1 which deal with rules of construction of statutes as authorities on the point being made.
In reply, the learned counsel for the Appellants maintained that the delay if any and in this regard was that of the Secretary to the Tribunal who has the duty of assessing fees, compiling, transmitting and effecting service of court processes on the parties. He referred to FBN V. MMDC Ltd (2005) ALL FWLR Pt. 127 page 171 at page 195 and urged that the sins of the Court’s registry should not be visited on the litigant.
The law is quite clear that once an appellant has deposited the assessed money for making up and forwarding the record of appeal he has performed his duty. Therefore, if any portion of the record of proceedings is missing, or any administrative steps are delayed or undone, it is the fault of the Registrar of the lower court. See Akaide V. State (1996) 8 NWLR (Pt. 468) 525. Upon due consideration after perusal of the court processes placed before us in respect of this ground of preliminary objection inclusive of the affidavit evidence and the record of appeal, I am of the firm viewpoint that the ground of objection is more inclined towards the direction of technicality or capitalizing on administrative lapses rather than the doing of substantial justice. Presently, courts are gradually moving away from the era of technical justice to one of doing substantial justice. This ground of objection lacks merit and it is accordingly overruled.
On the second ground of objection, the contention of the learned counsel for the 1st and 2nd Respondents is that the ruling of the Tribunal appealed against did not decide the validity or otherwise of the election of the parties to the petition. According to him, that the petition was dismissed on the ground that the Petitioner did not apply for pre-hearing notice as required by the Practice Directions. He added that since no prior leave of either the Tribunal of the Court was previously sought and obtained before the interlocutory appeal was filed, that the appeal must be dismissed.
On his part, the learned counsel for the Appellants counter argued that the Tribunal’s ruling delivered on 10th August, 2007 was final and not interlocutory and that no further leave is required in the given circumstances, moreso, when the test for determining interlocutory decision from a final one is applied thereto. Reference was made to the case of Maduabuchukwu V. Maduabuchukwu (2006) ALL FWLR Pt. 318 Page 695 at 710 Paras. B – C to the effect that if the order appealed against finally determined the rights of the parties, then that decision is a final one.
By virtue of Section 246(1) (b) of the Constitution of Federal Republic of Nigeria, 1999, an appeal lies as of right from decisions of the National Assembly/Governorship and Legislative Houses Election Tribunal to the Court of Appeal, “on any question as to whether any person has been validly elected as a member of the National Assembly.” Thus, the right is obviously a constitutional one. Put differently, the appeal being as of right, there is no need to seek leave to appeal from the Election Tribunal to the Court of Appeal.
The question be asked: What was the complaint or challenge mounted by the Appellant against the declaration and return of the 1st Respondent herein as the winner of the said election? Answer to the question can be gleaned from the reliefs contained in the petition and sought by the Appellants from the Tribunal. Paragraph 14 thereof states:
a) That the election into the Minjibir Constituency of the Federal House of Representatives conducted on 21st April, 2007 by the 3rd Respondent was not conducted in compliance with the Electoral Act, 2006 which non-compliance has substantially affected the result of the petition. (sic)
b) X X X
c) X X X
d) That the entire election into the Minjibir Constituency of the Federal House of Representatives conducted on April 21st 2007, be nullified and the return of the 1st in respect thereof be so nullified and that a fresh election be held in Minjibir Federal Constituency. (sic)
It is firmly established that in the quest to clarify between an interlocutory and final decision, a court is obliged to determine or consider whether the decision or order in question has finally disposed of the rights of the parties. If it does, then the order of judgment is final. If it does not and the parties are still before the court or the matter is capable of being re-litigated, then it is interlocutory. See Mohammed V. Olawumi (1990) 2 NWLR (Pt. 133) 458; Universal Trust Bank Plc. V. Odofin (2001) 8 NWLR (Pt. 715) 296. Looked at from whatever angle, the invocation of Paragraph 3(4) of the Election Tribunal and Court Practice Direction, 2007 by the Tribunal in this case, and the order of dismissal of the petition as an abandoned petition, conclusively brought any notion of continuation and further proceedings in the petition to an unceremonious abrupt end. Indeed, it had somewhat and in a sense determined the challenge mounted by the petition and reliefs sought thereunder. With such an unwholesome and unwelcome development, a dissatisfied Petitioner should be able to approach the appellate court as of right without recourse being had to seeking leave of either the lower Tribunal or the Court of Appeal.
Again, the word, “decisions” in Section 246 (1) of the 1999 Constitution (supra) in relation to a court has been defined under Section 318(1) of the same 1999 Constitution to mean and include “any determination, judgment, decree, order, conviction, sentence or recommendation.” Furthermore, the aforesaid constitutional provision did not stipulate or specify any distinction between decisions given on the merits of the case and where it is otherwise.
I am thus in full agreement with the submissions of the learned counsel for the Appellants that the ruling or decisions of the Tribunal delivered on 10th August, 2007 which dismissed the instant petition was a final decision in all intendments and purposes and from which an appeal lies as of right. Indeed, one tends to wonder as to what is left, either for the parties or the Tribunal after a petition has been dismissed and the Tribunal subsequently or thereby became functus officio thereon. This ground of objection is misconceived and is accordingly overruled by me.
The third ground of objection is anchored on the validity of ground one of the grounds of appeal, issue number two distilled therefrom and arguments canvassed thereon. The contention of the learned counsel for the 1st and 2nd Respondents is that ground one of the notice of appeal touched on the existence of an application by 2nd and 3rd Respondents and that from the record, there is no such application filed jointly or severally by the 2nd and 3rd Respondents. Thus, both the said ground of appeal and issue number two formulated therefrom are incompetent. He maintained that since no such fact was in existence throughout the proceedings before the Tribunal, the more reason why no issue as such could have been distilled therefrom, talk less of arguments being predicated thereon. That Appellants cannot raise a ground of appeal touching on 2nd and 3rd Respondents only to turn round and argue an issue based on 3rd and 4th Respondents. It was then submitted that grounds of appeal, issues formulated therefrom and arguments predicated thereon can be likened to pleadings that cannot be changed at will so as to avoid springing of surprises on the other party. We were urged to strike out or discountenance ground one, issue number two and arguments thereon.
Regarding this third ground of objection, mum is the word from the Appellants. It is settled, that grounds of appeal are the basis for considering whether a decision is wrong or right. Thus, the main purpose of grounds of appeal is to isolate, identify and accentuate for challenge, the reasonableness or otherwise of the decision appealed against. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156. Legion of cases dealt with determinants of valid and competent grounds of appeal. Hence, inter alia a valid or competent ground of appeal must contain precise, clear, unequivocal and direct challenge or complaint against the decision in question. In other words a competent ground of appeal must give the exact particulars of the mistake, error or misdirection alleged and not otherwise, either by way of misstatement, misplacement or juxtaposition of facts, details and particulars. See Nwabueze V. Nwora (2005) 8 NWLR (Pt. 926) 1; Excel Plastic Industry Ltd. v. First Bank of Nig. Plc (2005) 11 NWLR (Pt. 935) 59.
Indeed, one of the overriding determinant as to whether a ground of appeal is good or bad is whether or not any reasonable, readily identifiable complaint has been raised in it against the judgment being challenged. See Degi V. Francis (1999) 3 NWLR (Pt. 596) 576/588 Paras. G – H.
Subsequently thereafter, issue for determination in the appeal must emanate from the ground of appeal which must in turn have arisen from the decision appealed against. See A.W. Nig. Ltd V. Super Maritime (Nig) Ltd (2005) 6 NWLR (Pt.922) 563/577 – 578. Thus, there can be no valid issue unless it is distilled from a competent ground of appeal and any issue that is not so distilled is incompetent and should therefore be struck out. See Adebayo V. FCDA (1998) 6 NWLR (Pt. 552) 118/125 Paras. G-H. In the instant case, ground number one of Appellants grounds of appeal without the particulars states:
The learned Tribunal erred in law which occasioned a miscarriage of justice when it dismissed the Petitioners’ petition as an abandoned petition when to its knowledge; there existed within its record an application by 2nd and 3rd Respondents seeking for an extension of time within which to file their reply.
It is glaring that the complaint in Appellant’s first ground of appeal pertains to the date the 2nd and 3rd Respondents were served with the petition. Thereafter, Appellants issue number two as formulated and previously reproduced in this judgment, clearly relates to the Tribunal’s ruling having been based on “speculations and assumptions regarding the date the 2nd and 3rd Respondents were served with the petition.” However, in his argument on the said issue number two, learned counsel for the Appellants made reference to a motion filed by the 3rd and 4th Respondents and subsequently withdrawn and yet the Tribunal based its decision regarding computation of time within which Petitioners can bring an application for issuance of Form TF007 on the said withdrawn motion. It was then submitted that a court of law is disallowed from basing its decision on speculation as opposed to reliable and verifiable facts. Reference was made to and placed on Dalfam Nig. Ltd V. Okaku Int. (2002) FWLR Pt. 96 Page 501 at 541 Para. C to buttress the point that no court is allowed the luxury of speculation.
It is settled that a ground of appeal must not only connect with and relate to the decision appealed against, it must also be relevant. Thus, any complaint that does not relate to the ruling or judgment appealed against is irrelevant and therefore incompetent. This is moreso, because an unrelated and irrelevant ground of appeal cannot challenge a non-existent decision. What is more, an appellant’s right of appeal is confined within the decision appealed against. If the judgment says one thing and the ground and issue state another, that would be a perfect scenario of talking at cross purposes.
Like pleadings, parties are bound to their grounds of appeal and are not at liberty to juxtapose or argue grounds which are not related or inter-connected with the judgment appealed against. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156. A vague confusing and uncertain ground of appeal is not susceptible to being readily and clearly understood. By virtue of Order 6 Rule 2(3) of the Court of Appeal Rules, 2007, a ground of appeal which is vague incomprehensible, unreasonable and imprecise offends against the stated rule of court and may be struck out. Consequent thereto, it is the law that where an issue for determination is extracted from an incompetent or defective ground of appeal, such issue becomes unarguable. See Nkpuma V. State (1995) 9 NWLR (Pt. 421) 505/507. It thus follows that an issue cannot be grounded on an incompetent ground of appeal. A ground of appeal, to be competent must arise, dovetail and emanate from or relate to a particular aspect of the decision of the lower court appealed against. Where it does not, the ground of appeal, the issue formulated and arguments predicated thereon, must be struck out by the Court.
As previously stated by me, that mum is the word with the Appellants on this ground of objection. Where there is no response by or reply from an appellant to a point or points raised by the respondent in an appeal, it will amount to an admission or concession to the point being made. The appellant would be deemed to have conceded the said point. See Order 10 Rules 5 and 10 of the Court of Appeal Rules, 2007. In the instant appeal, the 1st and 2nd Respondents’ brief is dated 19th November, 2007 and filed on the same date. Appellants joint reply to the preliminary objection raised by the 1st and 2nd Respondents is dated 23rd January, 2008 and filed on 28th January, 2008. The said Appellants reply brief amply and fully addressed grounds one and two of the preliminary objection and was completely and ominously silent on the third ground of objection and arguments advanced thereon. The appeal came up for hearing before us on 3rd April, 2008. It can thus be seen and glaringly too that the Appellant can be rightly deemed to have conceded to the point raised under the third ground of preliminary objection by the 1st and 2nd Respondents to the effect that ground number one in Appellants’ notice of appeal, coupled with issue number two formulated in Appellants brief and the arguments canvassed thereon are all incompetent and should be struck out or discountenanced. In the instant case, the Appellants ground number one of the grounds of appeal which pertains to existence in the Tribunal’s record of an application by 2nd and 3rd Respondents seeking for extension of time within which to filed their replies and particulars of error on 3rd and 4th Respondents, coupled with issue number two formulated from it and the argument advanced in respect thereof are confusing and conflicting with one another. They ought to be discountenanced and struck out. See Order 17 Rules 5 and 10 of the Court of Appeal Rules, 2007. I so find and hold and they are accordingly struck out.
On the issue formulated by the 1st and 2nd Respondents which has been previously reproduced and adopted by me in this judgment and which in essence is the determination as to whether the Tribunal was wrong to have dismissed the petition in the given circumstances of this matter, it is contended by the learned counsel for the Appellants that the Tribunal was wrong when it struck out the petition notwithstanding the subsistence of an application by the 3rd and 4th Respondents for extension of time within which to file their reply. He argued that the most appropriate thing would have been that the said motion by the 3rd and 4th Respondents should have been taken, granted or refused before the one by the Appellants for issuance of pre-hearing notice – Form TF007 is given any consideration. Furthermore, that jf the former had happened, the latter would have ripened for hearing, saved and met the justice of the case and not otherwise.
In another submission, learned counsel for the Appellants maintained that the Tribunal gave a very narrow and restricted interpretation to the provisions of paragraph 3 of the Election Tribunal and Practice Directions, 2007, which said approach led to the present apparent absurdity in the matter, since the 3rd and 4th Respondents have been denied the opportunity to join issues with the Appellants. He also pointed out that failure to do so by the Tribunal was not in accord with the decision of Supreme Court in Mobil Producing Nig. Unlimited & Anor V. Chief Simeon Monokpo (2003) 12 SCNJ 200 and Agbu V. Agbu (2007) FWLR 195/204. We were urged in conclusion to resolve this issue as argued in favour of the Appellants.
On this issue, the learned counsel for the 1st and 2nd Respondents counter argued that the Election Tribunal and Court Practice Directions, 2007 which is applicable to election petitions, provided practice and procedural provisions to guide and regulate the course of proceedings before election Tribunals and with consequential sanctions for non-compliance. It is further contended that where there are more than one set of Respondents, as in the instant case, the Petitioner cannot be made to wait indefinitely, until all the replies are filed, moreso, when the time to do so had expired and as found by the Tribunal.
Learned counsel for the 1st and 2nd Respondents placed reliance on the cases of Abubakar V. INEC (2003) 1 NWLR (Pt. 854) 207/240; Barrister Ladipo V. Han. Oduoye & Ors (2001) 1 EPR 705/708; Folaranmi V. Abraham (2004) 10 NWLR (Pt. 881) 434/447 – 448, 450 – 451, 454 – 458 and Uzodinma V. Udenwa (2004) 1 NWLR (Pt. 854) 303/342 Paras. C – D. He then maintained that election petitions being proceedings which are sui generis they are expected to be devoid of procedural clogs that cause unnecessary delays, hence, the relevant rules of practice and procedure, which must be obeyed had statutory flavour and force of law, are issued in mandatory terms. During the course of hearing this appeal, Nureini Jimoh Esq, learned counsel for the 1st and 2nd Respondents referred us to a recent decision of this Court in Garba Ado & Anor V. A. A. Sule Lokon Mekara & 5 Ors. (Unreported Appeal No. CA/K/EP/NA/14/07 of 31st March, 2008. We were finally urged to dismiss the appeal.
As for O. G. Obande Esq., learned counsel for the 3rd and 4th Respondents, it was his submission that the mandatory provisions of Paragraph 3(4) of the Practice Directions, 2007 provides for dismissal of the petition in the event of non-compliance with the requirements contained therein. Furthermore, that the said Practice Directions, 2007 has the force of law. Reference was made by him to several cases. They include, P.D.P. V. Taiwo (2004) 8 NWLR (Pt. 876) 656/676 Paras. D – E; Abubakar V. INEC (2004) 1 NWLR (Pt. 854) 207/227 and Khalil V. Yar’adua (2003) 16 NWLR (Pt. 847) 446/487 – 488. He finally urged the Court to affirm the Tribunal’s decision.
Courts inclusive of Tribunal are creation of statutes and the jurisdiction of each court is therefore assigned, confined, configured, limited and circumscribed by the statute creating it and or procedural provisions regulating it. Hence, courts are enjoined to expound and not expand their jurisdictions. Indeed they cannot assume, confer jurisdiction on themselves by misconstruing or giving liberal constructions to statutes or responding to invitation from the parties to do so. See Dalfam (Nig) Ltd. V. Chaku Int’l Ltd. (2001) 15 NWLR (Pt. 735) 203.
Rules of Court include practice directions made in addition thereto. Thus, such orders, rules, regulations and or directives are made to regulate and provide adequate guidelines for the conduct of proceedings before the court or tribunal regarding issues of practice and procedure. Having been made by the appropriate authority and in this case, the President of the Court of Appeal who has been constitutionally vested with powers to set up the Tribunals or Court in the first place, the Practice Directions have not only statutory flavour but also the potency and force of law. It has been held and repeatedly too by this Court that the President of the Court of Appeal is empowered to issue Practice Directions and which said Practice Directions has the force of law. See N.A.A. V. Okoro (1995) 6 NWLR (Pt. 403) 510; Abubakar V. INEC (2004) 1 NWLR (Pt. 854) 207/227 Paras D – E. In this regard, where either rules of court or such practice directions, provide for the doing of something or an act before a case can be heard or proceeded with, they must be followed and strictly too. Rules of Court are meant to be obeyed and observed in compliance and not otherwise or circumvented. Consequently, courts and tribunals are duty bound to give effect to such rules, regulations and directives which are made for enhanced practice and procedure and the parties are also ‘enjoined to do so. See Folaranmi V. Abraham (2004) 10 NWLR (Pt. 881) 434/447 – 448. Indeed, no favour should be shown for not obeying them. See Ojugbele V. Lamidi (1999) 10 NWLR (Pt. 621) 167/171; Ikeni V. Efano (1997) 4 NWLR (Pt. 559) 628.
It is now fully established that proceedings before an election tribunal is not only strict but stringent. Hence, election petition and the rules governing it are incomparable, radically distinctive and in a special class or cadre with the cognomen of sui generis. A hybrid of a sort with set rules targeted towards fixed goal posts with the need for urgency and with time being of the utmost essence. Consequently, defects, defaults, inadequacies or shortcomings that are readily pardonable, overlooked or ignored in other civil proceedings do not enjoy such kid gloves treatment before election tribunals. They are likely to be sanctioned and visited with the full weight of the law, and they work both ways and equally too on the parties – alike. Thus, such procedural missteps or miscalculations which are capable of being over-looked elsewhere, might spell doom in an election petition, once such defects or irregularities are not excepted or exempted by provisions of the electoral laws or any other relevant procedural provisions. See Samamo V. Anka (2000) 1 NWLR (Pt. 640) 283. In Buhari V. Yusufu (2003) 14 NWLR (Pt.841) 446/498 the apex Court restated the position thus:
… the slightest default in complying with procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition.
See also Oni V. Fayemi (2008) 8 NWLR (pt. 1089) 400/444 – 445 Paras. G – H, wherein, it was again emphasized by this Court that parties and their counsel should give heed to the directives contained in the Practice Directions, as failure to do so might lead to unsavoury and unpalatable result which would not augur well for such parties.
In the instant appeal, Paragraph 3 of the Election Tribunal and Court Practice Directions, 2007 was construed and applied by the Tribunal. It provides thus:
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.
(2) Upon application by a petitioner under subparagraph (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 TF007 accompanied by a pre-hearing information sheet as in Form TF 008 for the purposes set out hereunder:
a) disposal of all matters which can be dealt with on interlocutory application.
b) giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions;
c) giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases’ having view the need to expeditious disposal of the petition;
d) fixing clear dates for hearing of the petition.
(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 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 abandoned petition and no application for extension of time to take that step shall be filed or entertained.
(5) Dismissal of a petition pursuant to subparagraphs (3) and (4) above is final, and accordingly the Tribunal or Court shall be functus officio.
I have already set out salient facts of this case in this judgment. Howbeit, a chronological review of sequences of events therein, will disclose the correctness or otherwise of the Tribunal’s decision. The petition was filed on 22nd May, 2007. The 1st and 2nd Respondents, filed their joint reply to the petition on 28th June, 2007. Though, the 3rd and 4th Respondents withdrew their motion for extension of time to file memorandum of appearance filed on 5th July, 2007, they however on 23rd July, 2007 filed another motion for extension of time within which to file their reply to the petition. The latter motion was not withdrawn and was pending before the Tribunal. Paragraphs 3, 4 and 5 of the affidavit in support of the said motion for extension of time to file reply by the 3rd and 4th Respondents sworn to by Hafiz Khalif the Legal officer of 3rd Respondent are relevant and thus reproduced below:
- That it took some time before Independent National Electoral Commission was able to collect and assign petitions to Counsels/Solicitors all over the country.
- That O.G. Obande Esq., of counsel handling this matter was issued a letter of authority to represent the Commission in respect of this petition sometime on June 22nd, 2007.
- That I know as a fact that time allowed for filing reply to the petition has since elapsed.
(Pages 199 and 200 of the record) Thereafter, the Appellants’ motion for issuance of Form TF007 and other pre-hearing session documents was filed on 27th July, 2007.
It can be seen from all the above, that at least as at 22nd June, 2007 when the 3rd Respondent assigned the defence of the petition to their counsel, they must have been duly served with the petition long before the exercise which led to the said counsel being briefed to represent and defend them .. What is more, there is no complaint regarding service of the petition on 3rd and 4th Respondents. Hence, even if the said date of 22nd June, 2007 could be regarded as the date of service of the petition on them, it follows and going by their own admission, that they were clearly out of time. By virtue of Paragraph 10 (2) of the First Schedule to the Electoral Act, 2006, the 3rd and 4th Respondents are obliged to file their reply, not later than twenty one (21) days from the date of receipt of the election petition. It then means, that both 3rd and 4th Respondent at the most liberal and best of computation of time would have had up to 13th July, 2007 within which to file their reply.
Now, Paragraph 3(1) of the Practice Directions, 2007 (supra) commands that the Petitioner shall apply for issuance of pre-hearing notice as in Form TF007 within seven (7) days after the service of the Petitioner’s reply on the Respondent as provided under paragraph 16(1) of the First Schedule to the Electoral Act, 2006 or seven (7) days after the filing and service of the Respondent’s reply as provided under either paragraph 10 (2) or 12(1) of the First Schedule to the Electoral Act, 2006, whichever be the case. In the instant case, we have the reply of the 1st and 2nd Respondents and no reply from 3rd and 4th Respondents and also no Petitioner’s reply from the Appellants herein. Thus, going by the relevant, requisite and binding rules of Court and directives, time within which the Appellants could rightly have applied for issuance of pre-hearing notice as in Form TF007 expired on 20th July, 2007. The Tribunal found that time within which to do this by the Appellants expired on 26th July, 2007. I have now found otherwise.
What is momentous in this appeal is the resultant effect of non-compliance with procedural directives of the Election Tribunal and Court Practice Directions, 2007, particularly Paragraph 3 thereof and whether such non-compliance attracts the sanction of regarding the petition as abandoned. This was the decision reached by the Tribunal in this matter. It is to be noted, that an appellate court is mainly concerned with the correctness or otherwise of the decision of a lower court over which it exercises jurisdiction. Thus, so long as the lower court have come to a correct decision, even though its reasoning in reaching the decision is wrong or faulty, the decision would not be tampered with. It would be upheld. See Dalfam (Nig) Ltd V. Okaku Int’l. Ltd (supra) at page 243 paras. A-D.
It is firmly established, that a court is competent to adjudicate and exercise judicial powers on a matter, when the subject matter is within its jurisdiction. The locus classicus on the point is Madukolu V. Nkemdilim (1962) 2 SCNLR 341. It is thus to be expected that in order to retain jurisdiction, the subject matter must remain within and not outside or beyond the court’s conferred jurisdiction.
Once jurisdiction is taken out or lost for instance, such as when a matter is deemed or regarded as abandoned by operation of law then the court would found itself hamstrung and incapacitated. It must be realized that a Court or Tribunal is capable of acquiring jurisdiction and losing it as a result of subsequent developments. Once the latter happens, the Court or Tribunal becomes deprived of its originally acquired jurisdiction. When a court subsequently loses jurisdiction to continue hearing in a matter before it, the fact that it once had it becomes meaningless. It would not avail it. And once a Court or Tribunal lacks or loses jurisdiction, either at the commencement, during or towards the conclusion of proceedings, no matter how well conducted are null and void. See Madukolu V. Nkemdilim (supra).
It is worth reiterating that it is firmly established that electoral law provisions, both substantive and procedural are meant to be construed strictly and not liberally:- This is because, by the tenor of the total provisions of the rules or directives, time is highly of essence. This is moreso, because the dictates of public policy would not admit of the leisure of extension of time regarding failure to file a process before the stipulated time expires. See Salihu V. Adesanya (1999) 2 NWLR (Pt. 592) 533. Again, once the period set down in an enactment is not complied with, the matter could be thrown out, even if the excess or delay is only one day. The issue of periodic limitation in an enactment as it pertains to a matter, is one of clear law which a court of law cannot and should not manage in the light of the facts of the case. If ‘you keep binding or relaxing the rules, you will end up with no defined rules. And, just as in the given circumstances of this case, if a party is made to wait at the behest, convenience, rate or pace of the other party, it could as well be an endless one. Since it is not the function of a court to rewrite the law, it has to do its main function of expounding the law by a declaring a matter to be what the law has already regarded it as having been, such as a matter which is either statute barred or deemed as abandoned in appropriate circumstances. See Aina V. Jinadu (1992) 4 NWLR (Pt. 233) 91/111 Paras. G – H. Having given due consideration to this matter and construction of Paragraph 3 of the Practice Directions, 2007 (supra) I am in no doubt that the requirements contained in sub-paragraphs (i) – (iv) thereof must be strictly complied with without relaxation or circumvention whatsoever. In the event of non-compliance, no favour or indulgence must be shown. The requisite sanction and ultimate consequence of such non-compliance must be invoked on the defaulting party. Such application would evoke the resultant effect of dismissal of the petition. I believe that no other construction could have been given to the said directives of the Practice Directions, 2007 (supra) other than the one which the Tribunal gave it.
On the whole, it is my firm viewpoint that the adopted issue for determination in this appeal must be answered in the negative and in favour of the Respondents. The appeal lacks merit and it ought to fail. It is accordingly dismissed. I therefore affirm the decision of the Governorship and Legislative Houses Election Petition Tribunal in Petition No. EPT/KNS/HR/42/07 delivered on 10th August, 2007. Costs assessed in the sum of N20,000:00 shall be paid to both the 1st and 2nd Respondents and N10,000:00 to both the 3rd and 4th Respondents respectively.
Other Citations: (2008)LCN/2841(CA)
