Alhaji Badamasi Ayuba & Anor V. Independent National Electoral Commission (INEC) & Ors (2009)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, J.C.A.
The appellants in this appeal, by their joint petition No. EPT/KNS/HR/3/2007 dated and filed on the 11th day of May, 2007, challenged the declaration and the return of the 4th respondent on the ground that the 1st appellant, was the validly nominated candidate of the 2nd appellant who ought to be returned as the elected member of the Federal House of Representatives, representing Dambatta/Makoda Federal Constituency at the election held on the 21st day of April, 2007 conducted by the 1st – 3rd respondents. The 4th respondent, filed his reply to the petition dated 18th May, 2007 and filed on the 19th day of May, 2007 and same was served on counsel to the petitioners on the 28th day of June, 2007, while the 1st – 3rd respondents filed their joint reply dated 4th June, 2007 and filed on the 5th day of June 2007 and same was served on the 1st appellant/petitioner’s counsel on the 11th day of June, 2007. On the 23rd day of July, 2007, the appellants filed their Motion on Notice before the Tribunal praying for the issuance of pre-hearing session as in Form TF 007 as required by the Tribunal and Court Practice Directions 2007. The motion is contained at pages 183 – 184 of the printed record and it reads as follows:
“TAKE NOTICE that this Honourable Tribunal shall be moved on the day of 2007 at the hour of 9′ O’clock in the forenoon or soon thereafter as counsel may be heard on behalf of the applicant for:
- AN ORDER ISSUING THE FORM TF007 AND OTHER PRE-HEARING SESSION DOCUMENTS AND TO SCHEDULE THE PRE-HEARING SESSIONS.
- FURTHER OR OTHER ORDERS as the Honourable Tribunal may deem expedient in the circumstances.”
The said motion was supported by a, seven (paragraphs affidavit deposed to by one Mathew Jubille Aigbe, Male, a Legal Practitioner with the Chambers of Mohammed Shuaib counsel to the petitioners/appellants. Paragraphs 2, 3, 4, 5 and 6 of the affidavit are as follows:-
“2. That I have the consent of the petitioners/applicants as well as the authority of my employers to depose to the facts herein contained.
- That facts to which I depose to this affidavit are facts within my personal knowledge as well as from documents at my disposal.
- That I know as facts vide a letter dated the day of 2007, we applied on behalf of the applicants for the issuance of the Form TF007 and the other pre-hearing documents.
- That upon enquiry as to why up to this moment the said documents had not been issued, we were made to understand by the staff of this Tribunal that there is a new directive from the Chairman that all such applications should come by was of motion.
- That it will be in the interest of justice to grant this application.”
The motion was opposed by all the respondents on the ground that the motion asking for the issuance of pre-hearing session as in Form TF007 was filed outside the time stipulated by the said Practice Directions 2007. The Tribunal having heard all the parties, delivered its ruling on the 9th day of August, 2007 and held that the application requesting for pre-trial session as in Form TF007 was brought outside the time required by the said Practice. Directions, 2007 and struck out the petition. The Tribunal at page 237 of the record held:
“It is our view that the petitioners are wrong in their contention. It is totally unacceptable that the petitioners will keep on waiting for the 1st – 3rd respondents to regularize their irregularity filed joint reply to the petition. Contrary to the submission of learned counsel to the 1st respondent as to the import of paragraph 3(1) of the Practice Directions 2007, our understanding of that paragraph is that where more than one respondent files reply to the petition within time the last in time to be served on the petitioners among those replies filed would serve as basis to the computation of seven (7) days within which the petitioners ought to have applied for pre-hearing notice as in Form TF007 accompanied by Form TF008. However, where only one respondent files a reply the petitioner can still apply for pre-hearing notice provided the time for other respondents to file reply has lapsed.
From all that has been said above the inescapable conclusion we have come to is that the present application for pre-hearing filed by the petitioners on 23rd July, 2007 was filed out of time in breach of the provisions of paragraph 3(1) of the Practice Directions, 2007, having been filed out of time, it is hereby refused. The implication of the foregoing is that there is no application for the issuance of pre-hearing notice within the contemplation of paragraph 3(1) of the Practice Directions. In the circumstance, we hereby invoke the provisions of paragraph 3(4) of the Practice Directions, 2007 to dismiss the petition as an abandoned petition.”
The appellants were not satisfied with the ruling dated the 9th day of August, 2007 as a result, the appellants filed a notice of appeal against the said ruling dated the 27th day of August, 2007, containing five grounds of appeal at pages 239 – 242 of the record.
In accordance with the Rules of Practice and Procedure of the court, briefs of argument were filed and exchanged between the parties to this appeal.
At the hearing of the appeal which came up on the 3rd day of March, 2009, counsel to the parties adopted their respective briefs without advancing any oral argument.
The appellants in their joint brief of argument dated the 31st day of March, 2008 and deemed filed 14/4/08 formulated five issues for determination in this appeal at page 6 of the amended appellants’ brief of argument as follows:
“a. Whether or not the entire ruling of the Honourable Justices of the Kano State Election Tribunal dated 9th August 2007 in respect of this case is A NULLITY.
b. Whether the refusal of the learned Justices of the Kano State Election Tribunal to allow the appellants to address them on the issue they raised suo moto before their ruling which dismissed the petition amounts to denial of fair hearing.
c. Whether if answer to the issue (B) Above is in the affirmative, the refusal occasioned miscarriage of justice.
d. Whether the refusal of the lower Court to follow the ratio outlined by the Supreme Court was erroneous and occasioned miscarriage of justice.
e. Whether the refusal to take into Consideration the appellant’s right of reply to respondents reply was right and if the answer is no whether a miscarriage of justice was occasioned.”
Theist – 3rd respondents on the other hand in their brief of argument dated the 9th day of October, 2007 deemed filed on the 22nd day of November, 2007, in which they formulated only one issue as follows:
“Whether the Kano State National Assembly Election Tribunal was right to have struck out the petition in its ruling delivered on the 9th day of August, 2007 on the ground that the appellants’ application for pre-trial session was brought outside the prescribed period by the Tribunal and Courts Practice Directions, 2007.”
The 4th respondent in the 4th respondents’ brief of argument dated the 26th day of May, 2008, deemed filed on the 8th day of July, 2008, formulated two issues as follows:-
“a. Whether in the circumstances of this matter, the ruling delivered by the Kano State Election Tribunal on 9th August 2007 in which it struck out the petition is a nullity.
b. Whether the Tribunal was right when it dismissed the application of the appellant for pre-hearing filed on the 23rd day of July 2007 on the grounds that same was filed out of time.”
Both sets of respondents that is the 1st – 3rd respondents and the 4th respondents filed and argued a Notice of preliminary objection at pages 2 – 4 of the 1st – 3rd respondents brief and page 4 – 5 of the 4th respondents brief respectively.
The 1st – 3rd respondents by their notice of preliminary objection are challenging the competent of grounds 1 – 4 of the notice of appeal.
While the 4th respondents by his notice of preliminary objection challenging the competence of ground 2 and 3 of the Notice of Appeal.
Issues for determination whether filed by appellant or respondent must be tailored to the real and crucial issue in controversy. See IBRAHIM V. OJOMO (2004) 4 NWLR (PT.862) 89, (2004) VOL.4 M.J.S.C. 143. An issue for determination is a point so crucial that when decided one way or the other affects the fate of the appeal. It is a point that when decided in favour of a party, he is entitled to win the appeal. See ONIFADE V. OLAYIWOLA (1990) 7 NWLR (PT.161) 130; OKOYE V. NIGERIA CONSTRUCTION AND FURNITURE CO. LTD. (1991) 6 NWLR (PT.199) 501. In this connection see also SANUSI V. AYOOLA (1992) 9 NWLR (PT.265) 275 and IGAGO V. THE STATE (1999) 14 NWLR (PT.637).
Having studied the issues formulated by the parties in this appeal as well as the preliminary objections filed and argued by two sets of respondents, I find that the only issue formulated by the learned counsel for the 1st – 3rd respondents is all encompassing and sufficient for the determination of the appeal. It should be noted that the issue touches on jurisdiction which is fundamental and its determination one way or the other can dispose of this appeal.
In the determination of the only issue formulated by the learned counsel for the 1st – 3rd respondents, I intend to confine myself to the submission of the learned counsel to the parties relevant to the issues only, as I consider the submission of counsel to the parties on the other issues as either irrelevant or academic.
Learned counsel for the appellants, Salisu Sule, Esq stated that the respondents were served with the Petitioners’ petition on the 11th day of May, 2007 and 12th day of May, 2007 but decided to file their respective replies and since this replies were before the Tribunal, it ought to have invoke the principle in U.S.A. LTD V. DIKE NWDRA & ORS (1978) 11 NSCC 19 to extend time for the respondents to deem the replies as properly filed and served, so that the replies could be properly before the court so that the appellants application before the court could be heard.
Directions leads to injustice, placing reliance on the case of NNEJI V. CHUKWU (1988) 3 NWLR (PT.81) at 184.
It is the view of the learned counsel for the appellants that the dismissal of the appellants’ petition on technical ground occasioned injustice to the appellants. It is argued by the learned counsel for the appellants that the appellants’ letter of 10th day of June, 2007 applying for the issuance of pre-hearing notice has fulfilled the requirement of paragraph 3(2)(a) of the Practice Directions upon which the Tribunal may accept and issue pre-hearing notice instead of dismissing the appellants’ petition based on wrong calculations as to the dates of filing of the pre-hearing notice.
In conclusion learned counsel for the appellants urged the court to resolve the issue in favour of the appellants.
Responding to the submission of the learned counsel for the appellants, learned counsel for the 1st – 3rd respondents, M.A. Suleman, Esq, submitted that the Tribunal was justified in its ruling delivered on the 9th day of August, 2007, in view of the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007 made pursuant to Section 285(3) of the Constitution of the Federal Republic of Nigeria, 1999.
It is pointed out by the learned counsel for the 1st – 3rd respondents that it is a mandatory requirement to apply for a pre-hearing session once each or all the respondents have filed and serve their replies within the period specified by the Court Practice Directions, 2007. The learned counsel for the 1st – 3rd respondents is of the view that the Tribunal was right in invoking the provisions of paragraph 3(4) of the Practice Directions, 2007 in dismissing the petition as an abandoned petition.
Concluding his submission on the sole issue, learned counsel for the 1st – 3rd respondents, urged the Court to dismiss the appeal and affirm the ruling of the Tribunal delivered on the 9th day of August, 2007.
Learned counsel for the 4th respondent, M.N. Duru Esq, submitted that the Tribunal was right in holding that the application for the issuance of the pre-hearing notice was filed out of time and therefore incompetent. Pointing out that in arriving in its decision the Tribunal took into account the undisputed evidence before it as to when various replies of the respondents were served on the petitioners vis- a -vis the clear provisions of paragraph 3(1) and (2) of the Election Tribunal and Court Practice Directions, 2007 and reproduced the said paragraphs at page 9 of the 4th respondent’s brief of argument. He referred to paragraphs 3(1) and 3(2) of the Practice Directions 2007 and stated that by the clear provisions of paragraph 6(2) of the same Practice Directions that an application for the issuance of pre-hearing notice should be by a motion and reproduced the provisions of paragraph 6(2) of the Practice Directions 2007 at page 10 of the 4th respondent’s brief.
It is contended that by no stretch of imagination would be said that the paragraphs envisaged that a mere letter purportedly written to the Registrar of the Tribunal, will suffice, placing reliance on the Ruling of the Tribunal which held that the letter is not in compliance with the provisions of the law. He argued that the case of EMMA O, EMESIM V. HONCALISTA NWACHUKWU (1999) 3 NWLR (PT.596) 590, relied upon by the learned counsel to the appellant is inapplicable to the instant appeal having regard to the clear provisions of the Practice Directions, 2007. Learned counsel for the 4th respondents relying on the provisions of paragraph 3(1) of the said Practice Directions, 2007, stated that if the Petitioners (appellants) filed a reply to the respondent’s reply, then the seven days (7) will begin to run from the date the last reply was served. However in the instant appeal where no reply was filed then the seven days (7) will begin to run from the date the respondent’s reply was served on the petitioner.
According to the learned counsel for the 4th respondent the Tribunal was right in its computation by counting the seven days (7) beginning from the date the reply was served on the petitioners (appellants).
In conclusion, learned counsel for the 4th respondents urged the court to dismiss the appeal and affirm the ruling of the Tribunal.
An election petition is heard and determined by an appropriate Election Tribunal as usually provided by the Constitution. In the 1999 Constitution, such provision is made under Section 285 and the 6th Schedule to the Constitution. The procedure is largely governed by a law made specially to regulate the proceedings. The jurisdiction of an Election Tribunal to deal with Election Petitions is of very special natures different from that in an ordinary civil case; see ONITIRI V. BENSON (1960) S.C.N.L.R. 314 at 317.
It is plain that the proceedings are special for which special provisions are made under the Constitution. See OYEKAN V. AKINJIDE (1965) N.M.L.R. 381 at 383. Election Petitions are distinct from the ordinary civil proceedings. See OBIH V. MBAKWE (1984) 1 S.C.N.L.R. 192. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise either could be cured or waived in an ordinary case could result in fatal consequences to the petition.
In the case of OKEREKE V. YAR’ADUA (2008) ALL FWLR (PT.430) 626 at 646, the Supreme Court of Nigeria per Muhammad, JSC, hold as follows:
“Now, although the stipulation under sub-paragraph (4) of paragraph 3 of the Practice Directions, appeared to me to be harsh on the petitioner by making an order for dismissal of the petition which forecloses any chance for him to re-present the petition, it still had to be complied with by the Tribunal or Court as such steps are a condition precedent to the hearing of any matter in relation to the petition pending before the Tribunal or Court. Non-compliance thereof will strip off the Tribunal or Court of jurisdiction as one of the factors which confer jurisdiction on a court of law is not complied with.”
Paragraphs 3(1) – 3(4) of the Court Practice Directions, 2007, applicable to the instant appeal are hereby reproduced below as follows:
“3.1 Within 7 days after the filing and service of the Petitioner’s Reply on the Respondent, or 7 days after the filling and service of the Respondent’s Reply, whichever is the case, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.
3.2 Upon application by a petitioner under sub-paragraph (1) above, the Tribunal or Court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in Form TF 008 for the purposes set out hereunder:
(a). disposal of all matters which can be dealt with on interlocutory application;
(b). giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions;
(c). giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need to expeditious disposal of the petition;
(d). fixing clear dates for hearing of the petition.
3.3 The Respondent may bring the application in accordance with subparagraph (1) above where the Petitioner fails to do so, or by motion which shall be served on the Petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.
3.4 Where the Petitioner and the Respondent fail to bring an application under this paragraph, the Tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.”
It is clear from the ruling of the Election Tribunal dated the 9th day of August, 2007, that the appellants failed to comply with the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007. This is so because the appellants/petitioners’ application for pre-hearing notice was dated the 23rd day of July, 2007 while the 1st – 3rd respondents’ reply was dated the 4th day of June, 2007 filed on the 5th day of June, 2007. The 4th respondent’s reply is dated and filed on the 19th day of May, 2007.
It was held in N.A. WILLIAMS & ORS. V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 S.C. 145 at 152 – 153 that Rules of court are meant prima facie to be obeyed and no favours should be shown for not obeying same. It is clear from the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007 that the provisions of paragraph 3(1) must be complied with and cannot be circumvented. See TEJUOSO V; OMOJOWOGBE (1998) 7 NWLR (PT.559) 628 at 634.
It is no doubt patent that the decision of the Election Tribunal contained in its ruling dated the 9/8/07 is an exercise of the discretionary power of the Tribunal and that it is settled law that it is a jurisdiction which is vested in the Election Tribunal. It must be borne in mind that in this regard, care must be taken not to attempt to substitute any discretion for the discretion of the Election Petition Tribunal. The true principle is that, for an appellate court to interfere with the exercise of the discretionary power vested in the court below, it must be shown how that power was wrongly exercised to justify the intervention of the appellate court. See ALSTHON S.A. V. SARKI (2005) 3 NWLR (PT.911) 208 at 224 – 225, CEEKAY TRADERS LTD V. GEN. MOTORS CO. LTD (1992) 2 NWLR (PT.222) 132 and RASAKI A. SALU V. MADAM TOWURO EGEISON (1994) 6 NWLR (PT.348) 23.
Learned counsel for the appellants strenuously argued that the Tribunal was in error to have dismissed the petition having regards to the appellants/petitioners letter of 10th day of June, 2007, for issuance of pre-hearing notice as the said application, according to the learned counsel for the appellants has fulfilled the requirement of Paragraph 3(1) and (2) of the Practice Directions.
From a careful study of the record, it is clear that the 1st – 3rd respondents filed their joint reply to the petition dated the 9th day of May, 2007, filed on the 10th day of May, 2007 while the 4th respondents’ reply is dated the 18th day of May, 2008 and filed on the 19th day of May, 2007. No reply to the reply of the two sets of respondents was filed by the appellants/petitioners, who filed their application for the pre-hearing notice dated the 23rd of July, 2007.
The Tribunal by the provision of paragraph 3(4) of the Election Petition Tribunal and Court Practice Directions 2007 is precluded from hearing the petition where there is non-compliance with the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007 as in the instant appeal.
In view of the aforesaid, I resolved the sole issue in the affirmative in favour of the respondents against the appellants.
In the result, I hold that there is no merit in this appeal which is hereby dismissed. I therefore affirm the Ruling of the Governorship and Legislative Houses Election Tribunal, Kana State in Petition No. EPT/KNS/HR/03/07 delivered on the 9th day of August, 2007.
I award costs assessed at N30, 000.00 to the 4th respondent against the 1st appellant.
Other Citations: (2009)LCN/3253(CA)
