Alhaji Usman Sule Rirwai & Ors V. Mallam Ibrahim Shekarau & Ors (2008)
LawGlobal-Hub Lead Judgment Report
ANYANWU, J.C.A.
On the 14th day of April, 2007 elections were held throughout Nigeria into the Governorship seats of the thirty-six States of the Federation. Seven candidates representing their various political parties contested the Governorship seat of Kano State. After the election, the 1st respondent Mallam Ibrahim Shekarau of the All Nigeria Peoples Party emerged winner with 671,184 votes. He was therefore returned.
The petitioner sponsored by Action Congress came 3rd with 126,235 votes. The petitioner being dissatisfied with the result of the election filed a petition before the Governorship and Legislative Houses Election Petition, Tribunal holden at Kano on 14th May, 2007 challenging the results and return of the 1st respondent. The respondents were served with the petition. The 1st and 2nd respondents filed their reply to the petition and the appellant further filed and served their response to the respondents’ reply on 6th June, 2007.
The facts of this petition and the crux of this appeal is narrow. At the close of pleadings on the 6th July, 2007 the petitioner did not apply for the issuance of pre-hearing notice as prescribed by paragraph 3(1) of the Election Tribunal and Court’s Practice Directions, 2007. The respondent also failed to bring an application in accordance with paragraph 3(1) of the Practice Directions. Consequently the tribunal Suo motu thereafter slated the petition for dismissal and issued hearing notices to that effect to the parties for 27th July, 2007.
The petitioners on getting this notice for dismissal filed a motion on notice on the 26th July, 2007, which was served on the parties on the 27th July, 2007 at the tribunal. The learned counsel for the petitioners insisted that the motion should be heard, even though the motion on notice was not ripe for hearing. The respondents objected to its being heard as the petition as of that date was already dead by reason of non-compliance with paragraph 3(4) Practice Directions.
The petitioners in their motion prayed for the following orders:
(1) An order of extension of time for the issuance and service of pre-hearing notice and information sheet as in Forms TF 007 and TF 008.
(2) An order for the issuance and service of pre-hearing notice as in Form TF 007 accompanied by pre-hearing information sheet as in Form TF 008 on all the parties to this petition.
(3) And any other order(s) as this honourable tribunal may deem fit to make in the circumstances.
From the record of proceedings in the lower tribunal the 2nd respondent did in fact file a motion for dismissal also dated 26th July, 2007 but filed on the 27th July, 2007.
When the petitioners’ counsel announced that he was ready to move his motion. All the respondents indicated that they all had preliminary objections to the petitioners’ motion.
All the learned counsel to the three sets of respondents moved their preliminary objections orally and the petitioners’ counsel replied. The tribunal then adjourned and thereafter delivered a well, considered ruling. The tribunal dismissed the petition in line with paragraph 3(4) of the Electoral Tribunal and Court Practice Directions, 2007.
The petitioners being dissatisfied filed a notice and three grounds of appeal. The petitioners also formulated three issues for determination namely:
(1) Whether the Honourable justices of the Kano State Election Tribunal were right in dismissing the
appellant’s petition despite the pendency of appellants application dated 26th July, 2007 and whether the said application can be dismissed in contravention of the Election Tribunal and Court Practice Directions, 2007 (as amended).
(2) Whether there was conflict between the provisions of the 1st schedule to the Electoral Act, 2006 and the Practice Directions,2007, and if there is such conflict which one takes precedence.
(3) Whether the letter of application by appellants’ counsel for pre-trial hearing notice was competent.
The 1st respondent formulated one issue for determination namely:
Whether the tribunal below was in error in its interpretation and application of the provisions of paragraph 3(3 – 5) of the Practice Directions in the face of the appellants default to comply with the mandatory provisions of the said rules by failure to apply for pre-hearing conference notice within time? Or Whether the trial tribunal could in any way be faulted for dismissing the appellants petition owing to the latter’s failure to comply with the provision of the Practice Directions in relation to the initiation of the mandatory pre-hearing conference?
The 2nd respondent gave a notice of preliminary objection and challenged the competence of this appeal on two grounds namely:
(1) The ruling appealed against did not decide the validity of the election of any of the parties to the petition contrary to section 246(1) of the Constitution of the Federal Republic of Nigeria, 1999.
(2) No leave to appeal has been sought for or obtained before the appeal was lodged.
The learned counsel to the 2nd respondent argued his preliminary objection convincingly; however I do not wish to go through the path of technicalities. I would rather go to the merits of this appeal. See the case of Erisi v. Idika (1987) 1 ANLR 382; (1987) 4 NWLR (Pt.66) 503 where Nnamani, JSC held:
“It remains for me to say with all respects, that substantial and well reasoned as this objection has been,
it is nevetheless a further journey into the arena of technicalities. This court has resolutely set its face
against them, preferring in decisions of which Nofiu Surakatu v. Nigeria Housing Society Ltd. & Anor. (1981) 4 SC page 26 may be one of those making the beginning of that stance to do substantial justice between the parties. The courts are courts of law but may the day never come when they cease to be courts of justice.”
The courts have held that in all cases substantial justice is what should be paramount in adjudication of any matter rather than technicalities that do not go to the substance of the matter. Be that as it may I am minded to take the path of substantial justice by dealing with the issues as presented by the parties. The 2nd respondent also formulated only one issue for determination namely:
(1) Whether the honourable tribunal was in error in dismissing the appellant’s petition for non compliance
with the mandatory provision of the Election Tribunal and Court Practice Directions, 2007 on application for issuance of pre-hearing notice.
The 3rd – 48th respondents also gave notice of their preliminary objection however as I have stated above, I will rather go to the substantive issues to determine this appeal rather than delve into the realm of technicalities. The 3rd – 48th respondents formulated two issues for determination namely thus:
(1) Whether the dismissal of the petition is a breach of fair hearing and a violation of the Election Tribunal and Court Practice Directions, 2007.
(2) Whether the honourable tribunal was in error in dismissing the petition prior to the taking of argument
on the motion on notice for pre-hearing and if so, whether the dismissal has occasioned a miscarriage of
justice.
The issues formulated by the parties are basically the same, and cover the whole sphere of this appeal however I would rather utilize that of the appellants to ensure that all the issues formulated by them are dispensed with finally.
Issue One:
Whether the tribunal was right in dismissing the appellant’s petition despite the pendency of appellants
application dated 26th July, 2007 and whether the said applications can be dismissed in contravention of the Election Tribunal and Court Practice Directions, 2007 (as amended).
The learned counsel for the appellants submitted that the tribunal dismissed the appellants’ petition during the pendency of their motion for extension of time within which to regularize their position before the court. The motion dated 26th July, 2007 was not heard and the petition dismissed which occasioned a miscarriage of justice and lack of fair hearing. The principle was emphasized by Tobi, JCA as he then was in Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616) 622 at 642.
The appellants’ motion was seeking to regularize the entire proceedings while the 1st respondent’s application was seeking to bring to an abrupt end the petition. The practice has always been to give priority to a motion seeking to regularize a process. See John v. Blakk (1998) 6 NWLR (Pt.555) 524; Consotium M.C. v. N.E.P.A. (1992) 6 NWLR (Pt.246) 132; Basil Egbuonu v. Borno Radio Television Corporation (1997) 12 SCNJ 97 at 113, (1997) 12 NWLR (Pt. 531) 29; Attorney General. Federation v.AIC Ltd. & Ors. (1995) 2 NWLR (Pt. 378) pg 388 Thomas E. Olumesan v. Ayodele Ogundepo (1996) 2 NWLR (Pt.433) 628.
Learned counsel to the appellant also submitted that it is settled law and mandatory that a court must make a decision and pronounce on every application which is before it and failure to do so is a breach of fair hearing. See Ogboru v.Ibori & Ors. (2005) 13NWLR (Pt.942) 319.
The appellant’s counsel submitted finally that the tribunal failed to consider, hear and determine the appellants’ motion dated 26th July, 2007 before it proceeded to give its judgment dismissing the appellant’s petition.
There are some basic facts in this petition that were not denied by any of the parties. All parties agreed that the pre-hearing conference had by the computation of time closed on the 13th July, 2007. The appellant in his affidavit in support to his motion alleged that he applied to the tribunal for pre-hearing notice by a letter dated 12th July, 2007. This letter was neither exhibited nor is it in the record of proceedings. Be that as it may, the alleged letter is of no moment as it does not conform with what is envisaged in paragraph 3(1) of the Practice Directions, 2007.
It is trite law that a court must hear and determine all application filed before it. See the case of Afro-Cont. Ltd. V. Co-op Assoc. of Prof Inc. (2003) 5 NWLR (Pt.813) 303 where it was held inter alia:
“It is mandatory that a court must make a decision and pronounce on every application which is before It and failure to do so is a breach of the right to fair hearing.”
The tribunal had given notice to the parties for the 27th July. 2007 for the dismissal of the petition subject to paragraph 3(4) of the Practice Directions, 2007, which states:
“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.”
This paragraph of the Practice Directions is mandatory it does not leave any room for discretion.
The appellant alleged in his submission that the Tribunal refused to hear his motion on notice which amounted to denial of fair hearing.
Application in legal parlance or court procedure does not mean a letter written to the court but an application by motion either ex parte or on notice. See paragraph 6(2) of the Practice Directions, 2007 and the case of Sincerity and Trust Multi Purpose Cooperative Society Ltd. v. Emenue (2002) 11 WRN 16; (2002) 10 NWLR (Pt.776) 509.
Matters which border on jurisdiction of the court can be raised Suo motu by the tribunal or orally by the counsel. Once raised it must be determined first. This is because a challenge on irregularity and competence of a matter or an action ought to be determined first before any further steps are taken. Emesim v. Nwachukwu (1999) 3 NWLR (Pt.596) 590.
“When an objection to the jurisdiction of the court is raised, it ought to be resolved first, one way or the other before the court proceeds to hear the case on the merits and the court has the jurisdiction to do so.”
In the present petition, the respondents objected to the motion being moved it being incompetent before the court. See paragraph 3(4) of the Practice Directions which states:
“No application for extension of time to take that step shall be filed or entertained.”
This already robs the tribunal of jurisdiction to entertain the motion on notice filed by the appellant for extension of time.
The tribunal from the above was within its powers to refuse hearing the motion on notice, as it had no jurisdiction so to do. Where a court has no jurisdiction it cannot do anything and that is where the matter ends. Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688; Attorney-General Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552; Barclays Bank of Nigeria v. C.B.N (1976) 1 ANLR (Pt. 1) 409; (1976) 6 SC 175.
There is no longer any question of fair hearing as it does not now arise without jurisdiction. If a court lacks jurisdiction the question of doing substantial justice is not relevant since defect of jurisdiction relates to embarking on the case and not to miscarriage in the course of it or to the correctness of the decision. In the instant case, the issue of substantial justice or fairness raised by the appellant does not so. much arise. See Emesim v.Nwachukwu (1999) 3 NWLR (Pt.596) 590; Abdullahi v. Gaya LRECC 144; Nnonye v.Anyichire (1989) 2 NWLR (Pt.101) 110; jang v. I.N.E.C. (2004) 12 NWLR (Pt.886) 46.
The appellant argued that the tribunal ought not to have allowed the respondents to orally address the tribunal on the merit or otherwise of the appellant’s motion. It would be recalled that the appellants’ motion was filed after being served with the tribunal’s notice for dismissal of the petition. All the respondents were served at the tribunal on 27th July, 2007. They had all attended the tribunal for dismissal of the petition. When the appellant insisted on moving his motion, before the tribunal struck out his petition, the respondents then orally addressed the court to point out that the tribunal had no jurisdiction to entertain an incompetent motion. See paragraph 3(4) of the Practice Directions, 2007. The appellant also replied to the oral submissions of the respondents and can no longer complain about the procedure adopted since he also participated. However, in questions of jurisdiction the form in which it is raised is irrelevant. See Emesim v. Nwachukwu (supra).
The motion filed by the appellant is incompetent as per paragraph 3(4) and the tribunal had no jurisdiction to entertain a 2nd application for extension of time. See the case of N.N.B. Plc v. Denclay Ltd. (2005) 4 NWLR (Pt.916) 549. Issue 1, is therefore resolved against the appellant.
The learned counsel to the appellant in his issue No.2 submitted that there is a conflict between the provisions of the 1st Schedule to the Electoral Act, 2006 and those of the Election Tribunal and Court Practice Directions, 2007. He made reference to paragraph 43(1) of the 1st Schedule to the Electoral Act, 2006 which states thus:
‘Tribunal or Court shall have powers subject to the provisions of section 141 of this Act and paragraph 14
of this Schedule to enlarge time for doing any act or taking any proceedings on such terms (if any) as the
justice of the case may require except otherwise provided by any other provision of this Schedule.”
Counsel referred the court also to paragraph 3(4) of the Practice Directions which states as follows:
“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 step shall be filed or entertained.”
Counsel submitted that paragraph 43 of the 1st schedule to the Electoral Act, 2006 makes provisions for enlargement and abridgement of time. He referred the court to the cases of Bani Haruna & Ors. v.Adamu Muazu Modibbo & Ors. (2004) 16 NWLR (Pt.900) 487; Muhammed Buhari & Anor v. Chief Olusegun A. Obasanjo & Ors. (2005) 13NWLR (Pt. 941) 1; Muhammed Hassan H. Rimi v. INEC & Anor. (2004) 15 NWLR (Pt.895) 121.
Counsel further submitted that once the principles for the grant of extension of time were made out in the affidavit in support of the appellants’ application, such application for extension of time ought to be heard and that the Practice Directions cannot take away or set aside the decision of superior courts. In furtherance of his submission counsel stated that where there is a conflict between the substantive law and the procedural law that the Electoral Act being the substantive law should prevail against the Practice Directions, 2007 which is the procedural law.
The Practice Directions, 2007 was issued by the President of the Court of Appeal in the exercise of the powers conferred on him by section 285(3) of the Constitution of the Federal Republic of Nigeria, 1999, paragraph 50 of the I” Schedule to the Electoral Act, 2006 and by virtue of all other powers. This Practice Directions, 2007 given under the hand of the president shall apply to the President, Governorship, National Assembly and States Assembly Election Petitions. See Haruna v. Modibbo (2004) 16 NWLR (Pt.900) 487.
The Practice Direction is to ”facilitate the just and speed disposal of the petition bearing in mind the urgency of election petitions.” See paragraph 7(i) of the Practice Directions, 2007.
With respect, the learned counsel for the appellant has engaged in the discourse of enlargement and abridgment of time to do certain other acts as envisaged by paragraph 43 of the 1st Schedule to the Electoral Act.
The Electoral Act does not provide for the mode of pre-hearing session and scheduling. See paragraph 3 of the Practice Directions of which the Electoral Act has no corresponding sections.
In the case of Long John v. Blakk (supra) the Supreme Court held that when there is an application for an extension of time within which to do certain things or take certain procedural steps prescribed by the rules of court, the court should always bear in mind that rules of court must prima facie be obeyed and that to justify the exercise of its discretion, there must be some concrete material upon which to base such exercise of discretion.
Discretion to extend time to do an act can only be exercised where the law allows it. In the instant case there is no room for discretion. Paragraph 3(4) leaves no room for discretion. It states:
“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.”
In the absence of discretional powers the tribunal was right in obeying strictly paragraph 3(4). See Ojugbele v. Lamidi (1999) 10 NWLR (Pt.62I) 167 where the court held:
“Rules of court which include Practice Directions are made to be obeyed and no favour should be shown for not obeying them. In the instant case the Practice Directions issued by the President Court of Appeal which constitutes the rules of the court in election appeals must be complied with and can not be circumvented.”
Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; Ikeni v. Efamo (1997) 4 NWLR (Pt.499) 318; Tejuosho v. Omojowogbe (1998) 7 NWLR (Pt.559) 628; University of Lagos v Aigoro (1985) 1NWLR (Pt. 1) 143.
In this case the Practice Directions No. 2 of 2003 did not make provision for extension of time so the court in its wisdom resorted to Order 3 rule 4(i) of the court of Appeal Rules. 2002. However, in the Practice Directions of 2007 the provisions for procedure was painstakingly spelt out especially that of pre-hearing session and scheduling (paragraph 3). See Haruna v. Modibbo (supra) where it was held that:
“Rules of court are to regulate matters in court and help parties in the presentation of their case within a
procedure made for the purpose of a fair and quick trial. Strict compliance with the rules make for quicker
administration of justice. But they are no more than an adjunct to the course of justice.”
The Practice Directions, 2007 is not in conflict with the Electoral Act however it is a direction given by an appropriate authority i.e. President of the Court of Appeal stating the way and manner a particular rule of court shall be implied with, observed and obeyed.
Paragraph 3 of the Practice Directions has no alternative in the Electoral Act and as such stands on its own especially where it concerns the pre-hearing session and scheduling which is not found in the Electoral Act.
With the foregoing the appellants’ issue 2 is also resolved against him.
The appellant in his third issue submitted that the letter of 6th July, 2007 addressed to the court applying for issuance of pre-trial hearing notice was in compliance with the law and practice of the court. The appellant submitted that the tribunal had in Petition No.EPT/KNS/HR/1/2007 accepted the same type of application by a letter from the petitioner’s counsel to issue pre-hearing notice.
Learned counsel to the appellant argued further that the provision of rule 3(1) of the Election Tribunal and Court Practice Directions, 2007 states that:
“Within seven days after the filing and service of the petitioner’s reply on the respondent, or seven 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.”
Counsel submitted that the key word is apply and it can be made orally or by any means the applicant wishes.
The letter of 6th July, 2007 which the appellant’s counsel claimed he wrote to the tribunal applying for pre-trial was not exhibited in any of its processes. This letter was also not found in the record or proceedings.
The appellant’s counsel however admitted that the Practice Directions, 2007 prescribed the manner in which some applications can be brought and referred the Court to the case of Emesim v. Nwachukwu (supra).
It must be reiterated again that the Practice Directions, 2007 is there for strict compliance.
Paragraph 6(2) of the Practice Direction 2007 stipulates- Whereby these directions any application is authorized to be made to tribunal or it such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the respondent.”
With the above, one can state categorically that the Practice Directions, 2007 envisages that any application shall be by way of a motion ex parte or by motion on notice.
An application in legal parlance or court procedure does not mean a letter written to the court but an application by motion either ex parte or on notice. See again paragraph 6(2) of the Practice Directions, 2007 and the case of Sincerity and Trust Multipurpose Co-operative Society Ltd. v. Emenue (supra).
The learned appellant’s counsel has not been able to convince the court that application envisaged can be by letter and as such this issue is also resolved against the appellant for the reasons stated above.
From the foregoing, the three issues formulated by the appellant are resolved against him. The appeal lacks merit and it is hereby dismissed. The judgment of the lower tribunal is affirmed.
I make no order as to cost. Parties are to bear their own costs.
Other Citations: (2008)LCN/2721(CA)
