ANPP & Anor V. INEC & Ors (2008)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
This is an appeal against the ruling of the Governorship and Legislative Houses Election Petition Tribunal sitting at Owerri, Imo State of Nigeria delivered on the 20th day of September, 2007 – wherein the Tribunal held thus:
“Petitioner is therefore required by paragraph 3 (1) of the Practice Directions, 2007 to make his application within 21 days. He is expected to wait for the Respondents to file a reply he is expected to be vigilant and desirous for a quiet disposal of his petition. That is the spirit and intendment of the Practice Directions, 2007 and paragraph 3 (1) in Particular.”
The application by the Petitioner on 18/07/2007 is therefore made outside the period permitted by paragraph 3 (1). Since the Tribunal by subparagraph 4 lacks the power to extend time for the Petitioner to make the application. It falls for us to dismiss the petition as abandoned in accordance with sub-paragraph 4. The petition is hereby dismissed.”
Dissatisfied with the said decision (supra) the Petitioners (1st and 2nd) approached this Court by filing a Notice of Appeal consisting of two grounds. Devoid of their particulars the two grounds read thus:
GROUND ONE: ERROR IN LAW
The learned Justices of the Governorship and Legislative Houses Election Tribunal holden in Imo State erred in law in dismissing the Appellants’ petition on the ground that the Appellants did not comply with the provisions of paragraph 3 (1) of the Election Tribunals and Courts Practice Directions 2007.
GROUND TWO: ERROR IN LAW
The learned Justices of the Governorship and Legislative Houses Election Tribunal holden in Imo State erred in law when they dismissed the Appellants’ petition on the technical grounds of non- Compliance with the provisions of the Practice Directions 2007 thereby denying the Appellants of their right of fair hearing in the petition.”
RELIEFS SOUGHT FROM THE COURT OF APPEAL
(a) To allow the appeal
(b) To set aside the decision of the Tribunal dismissing the Appellants’ petition.
(c) To remit the petition back for trial on the merit.
It is instructive to observe at this stage that the ruling of the lower Tribunal did not go down well all the disputants as the 1st and 2nd Respondent sought leave of the court for:
“(1) An order for extension of time within which the 1st and 2nd Respondents will seek leave to cross appeal against the decision of the Governorship and Legislature (sic) Houses Election Tribunal as contained in the ruling of their Lordships delivered on 20/09/07 in petition No. EPT/NA/IM/12/2007 – All Nigeria Peoples Party & anor v Independent National Electoral Commission & 3 Ors.
- Leave to appeal against the said ruling.
- Extension of time within which the Applicant will cross appeal against the said ruling
- Deeming the Notice and Grounds of Appeal Exhibited herewith as Exhibit A as properly filed and served upon Payment of the filing fess.”
Needless to say the said application was granted pursuant to which the Respondents filed their Notice of Cross-Appeal containing two grounds which are produced hereunder bereft of their particulars as follows:
GROUND ONE: ERROR IN LAW
The learned Judges of the Governorship and Legislative Houses Election Tribunal holding in Imo State erred in law in dismissing the said Preliminary Objection of the Cross-Appellants as premature.
GROUND 2: ERROR IN LAW
The learned Judges of the Governorship and Legislative Houses Election Tribunal holding in Imo State erred in law when it held that the 1st and 2nd Respondents/Cross-Appellants having published the name of the Petitioner are estopped from denying that he was a candidate at the questioned election.”
The reliefs sought by the Respondents/Cross-Appellants from this Court are to allow the appeal and dismiss the said petition.
The facts of the case as can be gleaned from the record of proceedings are that: The 2nd Appellant was the candidate of the 1st Appellant (All Nigerian Peoples’ Party) for Okigwe South Federal Constituency in the April, 21 2007 National Assembly Election. At the conclusion of the Election, the 3rd Respondent was said to have won the Election whereupon the 1st and 2nd Respondents returned him as the winner of the said Election.
The Appellant brought a petition before the Governorship and Legislative Houses Election Petition Tribunal holden at Owerri, Imo State, complaining against the conduct of the Election and the return of the 3rd Respondent. The petition, together with the written statements on oath of the Petitioners’ witnesses and the documents to be relied upon by the Petitioners are contained at pages 1 – 32 of the records.
The 1st and 2nd Respondents were said to have been served with the petition on 22/05/07 while the petition was also said to have been served on the 3rd Respondent on 24/05/07.
The 1st and 2nd Respondents filed their joint reply to the petition on 09/07/07 and the 3rd Respondent filed his reply on 05/06/07.
The reply of the 1st and 2nd Respondents was said to have been served on the Petitioners on 12/07/07, while that of the 3rd Respondent was not served on him on 23/07/07 as alleged but on a, date earlier than 09/07/07 owing to the fact that the Petitioners, reply to the 3rd Respondent’s reply was dated and filed on 09/07/07.
The Petitioners’ reply to the reply of the Respondents was filed on 09/07/07 and the Petitioners applied for the issuance of Notice of Pre-Hearing Session on 18/07/07.
On 17/08/07 when the petition came up for Pre-Hearing Session, the Tribunal sought to know from Counsel to the Petitioners when he applied for issuance of Notice of Pre-Hearing Session. Based on Counsel’s reply that he did so on 18/07/07, the Tribunal invited counsel in the petition to file written addresses on the continued competence of the petition vis-a-vis paragraph 3 of the Election Tribunal and Court Practice Directions 2007, hereinafter referred to as Practice Directions, 2007.
On 04/09/07, Counsel to the Petitioners and 3rd Respondent, respectively, adopted their addresses, while the 1st and 2nd Respondents did not file any address.
On 20/09/07, the Tribunal delivered a ruling dismissing the Appellants’ petition, on the ground that the petition had been abandoned for not being in compliance with the spirit and intendment of the Practice Directions, 2007, particularly paragraph 3 (1) thereof.
Counsel for the Appellants distilled two issues for determination from the two grounds of appeal stated (supra) they are as follows:
“(a) Whether the Tribunal below was right in law in dismissing the Appellants’ petition for noncompliance compliance with the provisions of paragraph 3 (1) of the Election Tribunal and Court Practice Directions 2007.
(b) Whether having regard to the facts and circumstance of the dismissal of the Appellants’ petition, the Appellants’ fundamental right to fair hearing was not breached.”
Distilled from the said two grounds of appeal and set out in the Appellants’ brief prepared by L.M. Alozie Esq. are two issues for determination to wit:
“(a) Whether the Tribunal below was right in law in dismissing the Appellants’ petition for non-compliance provisions of paragraph 3 (1) of the Election Tribunal and Court Practice Directions 2007.
(b) Whether having regard to the facts and circumstance of the dismissal of the Appellants’ Petition Appellants’ Fundamental right to fair hearing was not breached.”
For their part, the 1st and 2nd Respondents’ in a brief settled by Ngozi Olehi Esq. also formulated two issues for determination.
The 1st issue is identical to the 1st issue formulated by the Appellants’ Counsel. The issues are:
“3.01 This appeal is a simple one and in proper circumstances the issue that calls for determination is whether the lower Court was right in dismissing the Petitioners’ petition for non-compliance with the provision of paragraph 3 (1) of the Practice Directions 2007.
3.02 The Petitioners have expanded the scope of their argument by bringing in the issue for fair hearing which was not raised at all in the lower Court.
On the other hand, Counsel for the 3rd Respondent, in a brief settled by K. C. Nwufo, Esq. formulated two issues for determination thus:
“(a) Whether the Tribunal was right in law in dismissing the Appellants’ petition for non-compliance with the provisions of paragraph 3 (1) of the Election Tribunal and Court Practice Directions, 2007?
(b) Whether having regard to the facts and circumstances of the dismissal of the Appellants’ petition, the Appellants’ fundamental right to fair hearing was breached?
Again, 1st and 2nd Respondents/Cross-Appellants in a brief settled by K. A. Ojiako Esq. formulated one issue for determination which reads:
“(1) Whether the Appellants had the locus standi to challenge the election/return of the 3rd Respondent?
Petitioners/Cross-Respondents in response to the brief filed by the 1st and 2nd Respondents/Cross-Appellants filed a brief of argument incorporating arguments on Notice of Preliminary Objection and also formulated one issue for determination which reads thus:
“3.01 Whether the Petitioners/Cross-Respondents have the locus standi to maintain the petition.”
3rd Respondent in yet another brief settled by K. C. Nwufo, Esq in response to the Cross-Appellants’ brief of argument filed the said brief and distilled a lone issue for determination to wit:
“Whether the Appellants had the locus standi to challenge the return of the 3rd Respondent having regard to the non-authentication of the 1st Appellant’s Form CC001 by the State Chairman and Secretary of this 1st Appellant as stipulated by the law?”
It is noteworthy to observe that the Appellants filed what they tagged Appellants’ reply to the 1st and 2nd Respondents’ Brief of argument/preliminary objection on the 25th of January, 2008.
Equally of note is the Cross-Appellants’ reply on points of law filed on the 7th May, 2008.
On the 7th day of May, 2008 when the appeal came before us for hearing learned Counsel adopted their briefs of arguments in accordance with the rules of this Court. The Appellants’ brief dated 04/12/07 and filed on the 06/12/07; a reply brief dated 25th January, 2008 filed the same date were adopted by the learned Counsel and he urged us to allow the appeal. He also referred us to the decision of this Court in the case of John Ogelle Kennedy C. v. INEC & 6 Ors, unreported, appeal No. CA/PH/EPT/350/2007 delivered on 28th day of February, 2008 per Galadima, JCA. Mr. Ojiako of Counsel adopted the brief of Counsel for the 1st and 2nd Respondents filed on 11/01/08. He applied to strike out the preliminary objection contained at pages 3 – 9 of his brief. He urged us to dismiss the appeal as lacking in merit.
Mr. Nwufo Counsel for the 3rd Respondent adopted his brief filed on 21/12/07 and urged us to dismiss the appeal as being unmeritorious.
As I have alluded in this judgment, Counsel for the 1st and 2nd Respondents filed cross-appeal after they obtained leave of this court to do so. Pursuant to this, Mr. Ojiako of counsel adopted their brief of argument filed on 15/04/08 as well as the Reply Brief on point of law. Learned counsel relied on the two briefs and urged us to allow the cross-appeal of the Respondents’ Mr. Nwufo adopted his brief filed on 28/04/08 for the 3rd Respondent in response to the Cross-Appellants’ brief and urged us to allow the cross-appeal of the Respondents (1st and 2nd Respondents).
Mr. L. M. Alozie Esq. adopted the Appellants/Cross-Respondents? brief filed on the 29th day of April, 2008 and further submitted that the contents of an election petition is contained in paragraph 4 to the 4th Schedule to the Electoral Act. He urged us to dismiss the cross-appeal as lacking in merit.
On the main appeal, learned Counsel submitted that from the provisions of paragraph 3 (1) of the Practice Directions’ the time allowed the Petitioner to apply for a pre-hearing session is within 7 days of his filing and service of his reply to the Respondents reply to his petition or 7 days after service on him of the Respondents’ reply to the petition, whichever is the case.
Learned Counsel submitted that there are two circumstances when the Tribunal may dismiss a petition to wit:
“(i) Where a Respondent brings a motion for the dismissal of the petition for non-compliance with the paragraph 3 (1) of the Practice Directions; or
(ii) Where from the circumstances, the Tribunal draws an inference that the petition has been abandoned.”
Learned Counsel further submitted that the Tribunal cannot come to the conclusion that the petition has been abandoned in the absence of clear evidence of laxity on the part of the Petitioner in the prosecution of the petition. Learned Counsel contended that as found by the Tribunal below in their ruling, the Appellants applied pre-hearing session on 18/07/07 after they were served with the 1st and 2nd Respondents’ reply on 12/07/07.
It is the contention of the learned Counsel that by the Interpretation Act, time began to run for the Appellants on 13/07/07, which makes 18/07/07 six days after they were served with the Respondents’ replies and so within the time provided by 3 (1)of the Practice Directions. Learned Counsel further contended that the Tribunal was faced with two questions to wit:
“1. The interpretation to be given to the provisions of paragraph 3 (1) of the Practice Directions, 2007.
- Under the Interpretation Act when does time begin to run for the Appellants to comply with the provisions of paragraphs 3 (1) of the Practice Directions, 2007.
Learned Counsel argued that the tribunal failed to give effect to the very clear and unambiguous provisions of paragraph 3 (1) of the Practice Directions despite the fact that it is trite law that where words used in a statute are clear and unambiguous, they must be given their ordinary and clear meaning. See UBA Plc v ACB (Nig) Ltd (2005) 12 NWLR (Pt.939) 232 at 264 Ratio 12; Buhari v Obasanjo (2005) 12 NWLR (Pt.941) 7 at 206 Ratio 36.
On the 2nd question stated (supra), under the Interpretation Act when a statute provides for time within which an act should be done, the time to do that act begins to run upon service. Learned counsel submitted that the misinterpretation and misrepresentation of the provisions of paragraph 3 (1) of the Practice Directions by the trial Tribunal is fatal to their ruling of 20/09/07.
It is the submission of the learned counsel that the right to approach the Tribunal below by an aggrieved person is a constitutional right. That right therefore cannot be taken away by mere Rules of Court, in this case, Practice Directions, he further submitted.
Learned Counsel for the 1st and 2nd Respondents’ on the other hand submitted that by framing issue No.1 for determination, the Appellants Counsel has conceded to non-compliance with the provisions of the said Practice Directions. Election petitions are sui generis and because of their special and unique nature, compliance with enabling statute, Rules of Court and Practice Direction are mandatory, he further submitted. Learned Counsel is of the view that finding of a Tribunal on the issue of noncompliance is conclusive provided that opportunity to address the tribunal on the issue was given to the parties. This learned Counsel further submitted is not in contention in this appeal.
It is the contention of the learned Counsel that the word “shall” used in paragraph 3 (1) of the Election Tribunal and Court Practice Direction, 2007 makes compliance mandatory. He relied on the cases of Bamayi v Attorney-General of the Federation (2001) 12 NWLR (Pt. 717) 648 and Atolegbe v Awani (1997) 9 NWLR (pt. 522) 536. We were urged to resolve the issue against the Appellants.
Learned Counsel for the 3rd Respondents submitted that the Tribunal below was right in law in dismissing the Appellants’ petition for non-compliance with the provisions of paragraph 3 (1) of the Election Tribunals and Court’s Practice Directions, 2007.
This is so, the learned Counsel went on because the said paragraph provides that within seven days of the filing of the Petitioner’s reply, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF.007 and by paragraph 3 (a) of the said Election Tribunals and Court Practice Directions 2007, the Tribunal shall dismiss the petition as an abandoned petition if the Petitioner or the Respondent as the case may be fails to comply with the provisions of the said paragraph (3 (1).
Learned counsel argued that paragraph 3 (4) specifically provides that no application for extension of time shall be entertained by the Tribunal for the issuance of the pre-hearing notice. By the provisions of paragraph 3 (5) of the said Practice Direction, 2007, an order for dismissal of the petition pursuant to paragraphs 3 (3) and (4) of the same paragraph shall be final and the Tribunal shall thereby become functus officio, learned Counsel further argued. We were urged to resolve this issue against the Appellants and dismiss the appeal as lacking in merit.
Now, my first port of call in considering this issue is paragraph 3 of the Practice Directions No. 1 which provides for pre-hearing session of the petition under consideration. It provides thus:
“(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 a the issuance of pre-hearing notice as in Form TF 007.
(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 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) 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.
(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.
(5) Dismissal of a petition pursuant to sub-section (3) and (4) above is final, and accordingly the Tribunal or Court shall be functus officio”‘
It is crystal clear from the provisions of paragraph 3 (1) of the Practice Directions (supra), the time allowed to apply for a pre-hearing session is within seven days of his filing and service of his reply to the Respondents’ reply to his petition or seven days after service on him of the Respondents’ reply to the petition’ which ever is the case.
The question to be asked at this stage is this, can it be said in the light of what transpired at the lower Tribunal as can be gleaned from the proceedings of that Tribunal that the Appellants had complied with provisions of paragraphs 3 (1) of the Practice Directions, 2007. In other words, did the Appellants apply for a pre-hearing session within 7 days as stipulated by Practice Directions?
Counsel for the Appellants strenuously argued that the Appellants applied for pre-hearing session on 18/07/07 after they were served with the 1st and 2nd Respondents’ reply on 12/07/07.
By the Interpretation Act, time began to run for the Appellants on the 13/07/07 which makes 18/07/07 6 days after they were served with the Respondents’ replies and so within the time provided by paragraph 3 (1) of the Practice Directions.
However, learned Counsel for the 3rd Respondent disputed the claim of the Appellants’ Counsel that they applied for a pre-hearing session within the time stipulated by paragraph 3 (1) of the Practice Directions.
The learned Counsel submitted in paragraph 3.06 of his brief thus:
“3.06 It has been contended for the Appellants in the Appellants’ brief of argument that the Petitioner filed their reply to the reply of the 3rd Respondent on the 9th day of July, 2007.
The Petitioners claim that the 3rd Respondent’s reply was served on them on the 2nd day of July, 2007. This is a contradiction in terms, in that the Petitioners’ reply to the 3rd Respondent’s reply (which is contained at pages 43 – 45 of the record of appeal) was dated and filed on the 9th of July, 2007.”
I am inclined to agree with the submission of the learned Counsel stated supra. The lower Tribunal was right when it held as follows:
“7 days from 12/06/07 was 19/06/07 in respect of the reply of the 1st and 2nd Respondents and 21/06/07 in respect of the 3rd Respondent. The application by the Petitioner on 18/07/07 is therefore made outside the period permitted by paragraph 3 (1).”
In the light of the foregoing reasoning, the question posed awhile ago must be answered in the negative. For avoidance of any doubt, the Appellants did not apply for a pre-hearing session within the time stipulated by paragraph 3 (1) of the Practice Directions. 2007.
I then asked, what is the effect of non-compliance with the said paragraph? The answer to the question is provided in paragraph 4 of the Practice Directions which provides thus:
“(4) Where the Petitioner and the Respondent fail to bring an application under this paragraph, the Tribunal or Court shall dismiss the petition as a abandoned petition and no application for extension of time to take that step shall be filed or entertained.”
Learned Counsel for the Appellants submitted quite copiously that the right to approach the Tribunal by an aggrieved person is a constitutional right that cannot be taken away by mere Rules of Court, in this case, Practice Directions. It is in the light of this submission that I examine the decision of the apex Court in the case of Atolegbe v Awani (1997) 9 NWLR (Pt. 522) 536. In that case the issue for determination is:
“Whether the Chiefs (Appointment and Deposition) (Amendment Edict No, 3 of 1988 Kwara State which made the payment of N10,000.00 deposit a condition precedent to institution of action against Government or other appointing authorities by an aggrieved person in chieftaincy matters is not infraction of Section 6 (6) (b) of 1979 Constitution of Federal Republic of Nigeria in that it creates an impediment to free access to Court.”
The apex Court per Mohammed, JSC held thus:
“Section 15 of Edict No. 3 of 1988 does not curtail the right of a person to sue in a chieftaincy matter as enshrined in the provisions of Section 6 (6) (b) of the 1979 Constitution. It is merely a condition precedent which must be fulfilled before an action can be instituted. Condition precedent ordered to be done before a litigant is entitled to sue, by reason of the provisions of some statute, is not an ouster clause and not a device adopted by government to prohibit judicial review. It is an additional formality and unless proved to be enacted with a view to inhibiting citizens from having access to the Courts, it is not contrary to Section 6 (6) (b) of the 1979 Constitution. (Madukolu v Nkemdilim (1962) 2 SCNLR 341 referred to) (pp. 566 – 567, paras F -A).”
In the light of all that have been said, this issue is resolved in favour of the Respondents and against the Appellants the next issue for determination is which ……………………regard to the facts and circumstances of the dismissal of the Appellant’s petition, the Appellants’ fundamental right to fair hearing was not breached.
Learned for the Appellants submitted that the provisions of the Practice Directions cannot override the provisions of Section 151 of the Electoral Act or paragraphs 43 and 50 of the 1st Schedule to the Electoral Act He relied on the case of Buhari v Yusuf (2003) 14 NWLR (Pt. 841) 446 at 545 paras C – D.
It is also the submission of the learned Counsel that the application of the Practice Directions by the tribunal having regard to the facts and circumstances of the instant case amounted to a denial of the Appellants’ fundamental right to fair hearing, guaranteed under Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999.
Learned Counsel further submitted that having regard to the facts and circumstances of the dismissal of the Appellant’s petition, his fundamental right was grossly breached and violated.
He further submitted that a breach of fair hearing in a trial or adjudication vitiates the proceedings and renders same null and void and of no effect. He relied on the cases of Michandani v Pinheiro (2001) 3 NWLR (Pt.701) 557 at 573 and Zabolet International Ltd v Omogbehirn (2005) 17 NWLR (Pt. 953) 200.
Learned Counsel also relied on the case of John Ogelle Kennedy C. v Independent National Electoral Commission & 6 Ors (supra) a decision of this Court (unreported). We were urged to resolve this issue in favour of Appellants.
Learned Counsel for the 1st and 3rd Respondents, though conceding the fact that the right to fair hearing is a fundamental one, especially enshrined in the 1999 Constitution but submitted that misunderstanding of its operation and scope has given rise to intense argument. The right entitles a party to the opportunity to be heard. Pre-eminently, it has no self-propelling mechanism to compel any one to utilize the opportunity. And secondly, it does not operate to the prejudice and detriment of another party in the same case, learned Counsel further submitted. Learned Counsel urged us to resolve this issue in their favour and against the Appellants.
Learned Counsel for the 3rd Respondent submitted that the Appellants’ fundamental right to fair hearing was not breached by the lower Tribunal having regard to the fact and circumstances of the dismissal of the Appellants’ petition for the Appellants did not comply with the provisions of paragraph 3 (1) of the Election Tribunals and Court Practice Directions, 2007 vis-a-vis paragraph 15 of the 1st Schedule to the Electoral Act 2006.
Learned Counsel further submitted that the provisions of the Election Tribunals and Court Practice Directions, 2007 have Constitutional backing and the force of law as was held in the case of Abubakar v INEC (2004) 1 NWLR (Pt. 854) 207 at 277 paras D – E and Seven-up Bottling Co. Nig. Ltd v Abiola & Sons (1995) 3 SCNJ p. 37 at 55. Learned Counsel urged us to resolve this issue against the Appellants and in their favour.
Now, let me begin the consideration of this issue by stating the obvious; Election Petitions are sui generis and must be treated with significant measure of urgency and is not out of place for necessary procedural steps to be put in place to expedite trial. To my mind this is what paragraph 3 of the Practice Directions seeks to achieve. In the case of Inakoju v Adeleke (2007) All FWLR (Pt.373) 708 – 109, the apex Court held that what Section 36 of 1999 Constitution means is that the parties must be given equal opportunity to present their cases to the Court and that no party should be given more opportunity or advantage in the presentation of his case. Strict application of this interpretation means that it does not apply where opportunity given was not utilized or where the other party was not instrumental to the inability of the person seeking to enforce the right. The authorities referred to by the Appellants in their brief do not apply, and we urged to resolve this issue against the Appellants.
Learned Counsel for the Appellants has made heavy weather of the fact that the dismissal of the Appellants’ petition the way it was done, amounted to the denial of the Appellants’ fundamental right to fair hearing. With due respect to the learned counsel this contention is grossly misconceived this is because the lower Tribunal on the 17th day of August, 2007 invited Petitioner/Respondents and the Respondents’ counsel to address the Tribunal on the competence of the petition vis-a-vis paragraph 3 of the Election Tribunal and court Directions 2007 . I am of the considered view that by the said invitation to Counsel, the Tribunal below gave the Petitioners/Appellants their right of fair hearing to address the tribunal on the issues as raised by them on the issue that the Election tribunals and court Practice Directions. 2007 has no statutory flavour and is a dud document without statutory authority, I hasten to say that this court in the case of Haruna v Modibo (2004) 16 NWLR (P.900) 487 at 591 settled the point relating to the powers of the President of the Court of Appeal to issue the Practice Directions wherein the Court held that:
“The power or authority of the President of the Court of Appeal to issue Practice Directions is derived from the Constitution of the Federal Republic of Nigeria.”
Again, learned Counsel for the Appellants referred us to the decision of this Court in the case of John Ogelle Kennedy C. v INEC & 6 Ors (unreported) to buttress his submission on this point. With due respect to the learned Counsel the facts of that case are not apposite with the facts of the case in hand. In that case the issues for determination are that:
“(1) Whether the tribunal below was right in law in summarily dismissing the Appellant’s petition when the Appellant was yet to be served with the Respondents’ replies to his petition.
(Underlining supplied for emphasis).
(2) Whether the tribunal below was right in proceeding to dismiss the petition without first resolving the issue of whether or not the Appellant had been served with the respondents’ replies to his petition.
(3) Whether having regard to the facts and circumstances of the dismissal of the Appellant’s petition the Appellant’s fundamental rights to fair hearing was not breached.”
It is noteworthy to observe that in that case there was an issue of service of the Respondents’ reply on the Petitioner. Needless to say, in the case on hand, all processes had been duly served. In the light of all that I said, this issue like the previous one is resolved against the Appellants and in favour of the Respondents.
In sum, in the light of the foregoing I find no merit in this appeal and same must be and it is hereby dismissed. There shall be costs of N30,000.00 in favour of the Respondents and against the Appellants.
CROSS APPEAL
As I have earlier alluded to in the main appeal, the Respondents in the main appeal filed their Notice of Cross-Appeal with the leave of this Court.
Learned Counsel distilled one issue for determination from the said two grounds of appeal earlier reproduced in this judgment as follows:
“Whether the Appellants had the locus standi to challenge the election/return of the 3rd Respondent.”
Learned Counsel for the Petitioner/Cross Respondent formulated an identical issue to the one formulated by the learned counsel for the cross-Appellant and incorporated a brief in respect of a Notice of Preliminary Objection he filed along with the brief.
Learned Counsel for the 3rd Respondent also formulated a lone issue for determination to wit:
“Whether the Appellants had the locus standi to challenge the return of the 3rd respondent having regard to the non-authentication of the 1st Appellant’s Form CC001 by the State Chairman and Secretary and non-approval thereof of the National Chairman and Secretary of the 1st Appellant as stipulated by the law?”
Learned Counsel for the Cross-Appellants submitted that in view of Section 145 (1) of the Electoral Act and the Appellants lack of requisite locus standi to maintain the petition. The Appellants’ petition has not prima facie clothed them with the locus standi to file the petition. Learned Counsel further submitted that from the forms filed by the 2nd Appellant it is apparent that he had not been validly nominated by his party and that only a validly nominated candidate has the locus standi to institute an action in the Election Tribunal. Learned Counsel submitted that the onus of proving valid nomination and unlawful exclusion lies on the Appellants who must prove valid nomination.
He referred us to the case of Effiong v Ikpeme (1996) 6 NWLR (Pt.606) 260.
Learned Counsel further submitted that the said Preliminary Objection was not premature as held by the Tribunal by virtue of the fact that the petition was accompanied by all the documents to be relied upon at the hearing of the petition. The Tribunal can look at the said petition on its face to determine whether the Appellants have the locus standi or not and need not wait until evidence is adduced. We were urged to resolve the lone issue in favour of the Cross-Appellants.
Learned Counsel for the 3rd Respondent equally submitted that the Appellants had no locus standi to challenge the return of the 3rd Respondent having regard to the non-authentication of the 1st Appellant’ Form CC001 by the State Chairman and Secretary and non-approval thereof by the said officers as stipulated by the law. Learned Counsel urged us to resolve this issue against the Appellants.
Counsel for the Appellants submitted a brief spanning over eleven pages in which they copiously submitted that preliminary objection filed by the Cross-Appellants at the lower Tribunal was an abuse of Court process. They also contended that this Court has no jurisdiction to entertain this interlocutory appeal arising from an interlocutory decision of the Tribunal below. The Cross-Appellants equally have no right of appeal against the interlocutory decision.
Let me quickly answer the learned Counsel with regard to what he has submitted supra. It is settled beyond peradventure that an interlocutory application is a constitutional right of the citizens of this country which cannot be deprived of. See Awuse v Odili (2003) 18 NWLR (851) I 16 at 154, H – G, 164, C – H and 169 – 190 E – B, Obuzor v Hon. Wilson Asinobi Ake CA/PH/EPT/431/2007 delivered on 10/04/2008.
On the issue of validity of the Cross-Respondents nomination, learned Counsel submitted that the validity or otherwise of the Cross-Respondent nomination for the questioned election is one that can only be determined at the conclusion of the trial. It is therefore not a matter for the preliminary objection.
Learned Counsel contended that the lower Tribunal was right in refusing same on the ground that it was premature.
Now, Section 145 of the Electoral Act, 2006 provides that:
“(145) (1) An election may be questioned on any of the following grounds;
(a)………….
(b) ………….
(c) ………….
(d) That the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
It is instructive to state at this point that the Appellants’ petition at the lower tribunal was anchored on Section 145 (1) (d) of the Electoral Act stated supra. This being the case, I hold without any hesitation that the burden of first establishing that the 2nd Appellant was validly nominated before complaining about being unlawfully excluded squarely rests on the Appellants. He who asserts must prove. See 135 of the Evidence Act.
Section 33 (l) of the Electoral Act provides thus:
“A candidate for an election under this part of the Act shall be nominated in writing by such a number of persons as prescribed by the Commission whose names appear on the register of voters in the Constituency.”
A careful look at the ANPP nomination Form of the 2nd Appellant, (Form CC001), attached to the petition reveals that the 2nd Appellant was not validly nominated by the 1st Appellant to contest any election as stipulated by Section 33 (1) of the Electoral Act stated (supra).
That aside, a careful perusal of the said ANPP Nomination Form of the 2nd Appellant (paragraph 8 thereof) reveals that the 2nd Appellant is not a registered voter in the Constituency. He said that he was a registered voter in Shell Primary School, Oyigbo, Rivers State and not for the Federal Constituency in question.
Again, Section 32 (1) of the Electoral Act, 2006 provides that:
“Every political party shall not later than 120 days before the dates appointed for general election
under the provisions of this Act submit to the Commission in the prescribed forms, the list of candidates the party propose to sponsor at the Elections.”
A careful look at the said ANPP Nomination Form of the 2nd Appellant, at pages 19 to 24 of the record, clearly reveals that the declaration was sworn to on the 10th day of January, 2007 outside the 120 days stipulated by the Act. The 1st Appellant did not therefore nominate the 2nd Appellant or any person within the time stipulated by Electoral Act, 2006.
In addition to all these, the said ANPP Form for the particulars of person seeking nomination/sponsorship to electoral offices of the 2nd Appellant attached to his petition was neither authenticated by the Imo State Chairman and Secretary of the 1st Appellant nor approved by the National Secretary and Chairman of the 1st Appellant as prescribed in the said Form. This in effect meant that the 1st Appellant did not sponsor the 2nd Appellant and did not have any candidate for the election in the said Constituency.
May I at this stage pause to say that with all that I have adumbrated above, it beats my imagination hollow for the lower Tribunal to hold that it was premature to rule on the preliminary objection of the Cross-Appellants. After all the Nomination Form filled by the 2nd Appellant was a document before the lower Tribunal which the said Tribunal was entitled to look at and draw appropriate inference/s and conclusions.
In the result, in the light of all that have been said, I hold the view that the Cross-Appeal of the Cross-Appellant/Respondent is pregnant with a lot of merit and same is hereby allowed. The 2nd Appellant not being validly nominated has no locus standi to challenge the return of the 3rd Respondent.
Parties to the Cross appeal shall bear their individual costs.
Other Citations: (2008)LCN/2863(CA)
