Barr. Chugbo Enwezor V. Independent National Electoral Commission (INEC) & Anor (2008)
LawGlobal-Hub Lead Judgment Report
VICTOR AIMEPOMO O. OMAGE, J. C. A.
This is an appeal against the decision of the Governorship/Legislative Houses Election Tribunal holden at Awka, Anambra State, per Coram J.S. Abiriyi and other members of the Tribunal.
The decision was made on 13th October 2007, in the main, in the decision, it struck out as abandoned, the petition of the appellant in the appeal on the grounds to be stated hereafter.
In the main Petition the appellant deposed that he contested, the sought to contest elections to the Anambra State House of Assembly Onitsha North 1 Constituency, and concluded all the necessary requirements to do so with INEC, the 1-3 respondents on the platform of All Progressive Grand Alliance who sponsored him. On 14th April 2007 when the election was fixed to take place, he went to the various unit of the polling booth to find that no election took place. Eventually information reached him that the main office of INEC was burnt down by irate and frustration people who gathered the said office. Owing to persistent enquiry the INEC issued a statement declaring that the 4th Respondent of PDP had won the election. Despite repeated demands the INEC refused and or neglected to give him details of the election that he knows never took place. The appellant filed his petition before the Tribunal of the Anambra Governorship/Legislative Houses Election which held at Awka. He filed the election petition on 11th May 2007, He duly filed his petition on the Respondents, who are the person declared a winner, the 4th Respondent, and the INEC who are the 1st – 3rd Respondents. The Petition having been received by the Respondent he filed the Respondent’s brief. The Petitioner also filed a reply to the Reply of the Respondent and did not file the Form TF007 within the period specified until 17th September 2007.
The Respondent also did not file to request for Form TF 007. Instead the Respondent meanwhile the 4th Respondent applied to the court to dismiss the appeal on the ground that the petitioner had abandoned his petition. The Tribunal obliged the prayer of the Respondent, and dismissed the petition for the appellant’s failure to file for the issuance of Form 007. Because the petitioner was dissatisfied with the judgment of the Tribunal below.
In the appeal the appellant formulated the following Issues for determination of the appeal.
(1) Whether upon the facts and circumstances of this case the Tribunal was right in its interpretation of paragraphs 3(1) (2) (3) and (4) of the Election Tribunal and the Court Practice Direction 2007? Grounds 1, 2, and 5 of the Grounds of Appeal.
(2) Whether the Tribunal was right when after acknowledging that both the 1st, 3rd and 4th Respondents had filed Forms TF 008 (per hearing information sheet) still went ahead to dismiss the appellant’s petition on the ground that it has become abandoned for failing to file Form TF007 within time. Ground 3 of the grounds of appeal.
(3) Whether there exists any conflict between the provisions of paragraph 3(4) of the Election Tribunal and Court Practice Directions and Sections 285 (2) 119 (c) of the Constitution and paragraph 43(1) of the First Schedule Rules of Procedure for Election Petition 2007 Ground 4 of grounds of appeal.
(4) Whether the honourable Tribunal was right when it held that there was affidavit evidence showing that the 4th Respondent has complied with the tribunal order of 7th September 2007.
The 4th, 1 and 3rd respondents in their briefs agree and adopt the issues formulated by the appellant.
My lords before I answer the several questions contained in briefs of the parties on issues to be determined, I wish to say in this judgment that the issues of all the parties will be taken together, further it is desirable and I deem it appropriate to commence by Sections 1, 2, and 3(1-4) on which the court below based its judgment. The Sections are of Election Tribunal and court Practice Direction 2007. The Election practice Directions are the rules formulated by the Honourable President of the Court of Appeal for the provisions of the Election Tribunal, under the constitution of Nigeria 1999. The rules have equal effect as the rules of ordinary court. The rules commenced its enforcement on 3rd April 2007, and it states, these Practice Direction shall apply to the Presidential, Governorship National Assembly and States House Assembly election petition. It subscribes 1 (c) All petitions to be presented before the Tribunal or Court shall be accompanied by (a) list of all the witnesses that the petitioner intends to call in proof of his petition (b) Written Statements on Oath of the witnesses, and (c) Copies or list of every document to be relief on at the hearing of the petition.
(2) A petition which fails to comply with sub-paragraph (1) shall not be accepted for filing by the Secretary. The Respondents Reply shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and written statement on oath.
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 TF007. (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 information sheet as in Form TF007 accompanied by a pre hearing conference information sheet in Form TF008 for the purpose set out hereunder (a) disposal of all matters which can be dealt with on interlocutory application (b) giving such directions as to future course of the petition as appear best adapted to secure its just and expeditious and economical disposal in view of the urgency of election petitions. (d) Fixing clear dates for hearing of the petitions.
(3) The Respondent may bring the application in accordance with sub paragraph I 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 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 paragraphs 3 and 4 above is final. The Tribunal or Court shall be functus officio.
In his brief of argument, in his issue l, the appellant has asked whether in view of the fact and circumstances of this case, the Tribunal was right in its interpretation of paragraph 3 (1) (2) (3) and 4. The two classed respondents also asked the question, which I now consider. The provision of the Practice Directions Sub-Section 3(1) under reference requires the Petitioner after receiving a reply from the respondent to file within 7 days a demand for the issuance of Form TF007 if he fails to do so; the respondent also may make such a demand. Meanwhile the Petitioner issued another request which he filed for further and better particulars. He said in his brief that he was awaiting the reply to that and it is clear that he the Petitioner did not file any request for Form TF007 within the time prescribed which was within 7 days, the Petitioner filed his request for Form TF007 on l7th September 2007. Now 17th September 2007 exceeds within 7 days allowed
to be petitioned by the rules, after both Respondent have insured that the services of reply to the Petition were served sometime in August 2007. The obligation to ask for Form TF007 is that of the petition when the language used in sub 3 (1) says the Petitioner shall apply as if on 2nd through the wording contained in the paragraph when subscribes that the Respondent may apply for the said Form TF007. My lord it can not be that the Respondent realizably derive any pleasant from the contribution of the petition which seeks to remove the mandate to be in the House of Assembly from the 4th Respondent, he has no obligation to assist the Petitioner in continuing with the petition. Nonetheless, the respondents respectively filed on 24th September 2007 and 2nd October 2007; but before then the 4th respondent had in consonance with the provisions of Sub-Section 3(4) of the Practice Direction filed an application seeking an order of court to dismiss the Petition, and the court was right to do so under the law. The several other issues being peddled by the appellant do not arise and they are irrelevant. The question which arises is this: Does the date of filing of an application by the appellant of TF007 being 17th September 2007 fall within the clear provision of the provisions of sub section 3 (1) of the rules, which requires the application by respondent in the word shall, when reply of the respondents to the appellant was concluded on 9th August 2007.
The clear answer is that from 9th August 2007 to 17th September 2007 is about 39 days after. The Practice Direction provide for within 7 days, surely the appellant cannot and should not in all honesty quarrel with the decision of the Tribunal when the jurists in the Tribunal wrote “We have carefully read the provisions of paragraph 3 of the Practice Direction of paragraph 3 and there is no doubt that the petitioner filed his Forms TF007 and TF008 out of time. There is also no doubt that the 4th Respondent did not file Form TF007 but only filed TF008. Moreover on a careful going through the affidavit evidence and the submissions of counsel”
In another paragraph, the Tribunal wrote “The phrase within 7 days after the filing and service of the petition reply on the petitioner can only mean within 7 days after the filing and service of the Petition reply.” Consequently I answer without hesitation that the Tribunal gave a proper interpretation to the phrase and properly determined the petition of the Appellant as abandoned nearly 39 days after the petitioner was required to file the petition. The response to issue 1 above is adequate to answer to the issue 2, contained in the appellants and respondents issue 2; which reads whether the Tribunal was right when they acknowledged, but both and 4th respondent filed Form TF008.
A proper reading of the provisions of the practice direction would have shown the appellant that he has the obligation to file Form TF007 so that Form TF008 can be issued, while the statute imposed the word “shall” on the Petitioner to apply for Form TF007 in subsection 3(1), it says in subsection 3, the respondent may bring the application, where the petitioner failed to do so. Why should the respondent apply? I have answered the issue in some detail above. The word shall in the event is a command; not optional. The word shall in the circumstance of the statute Section 3(1) the petitioner shall is directory, See Ishola v. Ajiboye (1994) 7-8 SCNJ 1. The provisions in the Practice Direction includes (3) the respondent may bring the application in accordance with sub paragraph (1) above where the petitioner fails to do so or by action 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 paragraph (4) above shall be final, and accordingly the Tribunal or Court shall be functus officio. It is noticeable in sub paragraph 4; the court suo motu may dismiss the petition as abandoned, where both the petitioner and the Respondent fail to apply for the issuance of Form TF007. In the further provision of sub sections (4) and (5) particularly in sub (5), which follows the provision in sub section 4 of the Practice Direction once the Tribunal has dismissed the petition, a court which subsequently hears the appeal is a functus officio on the matter of the dismissal of the petition. The duty of court to dismiss the petition once the Petitioner fails to apply within 7 days cannot be put in a stronger language, than when it says no extension of time can be allowed, the petition shall be dismissed, and the Tribunal shall be a functus officio. It is clear when the failure of Petitioner to apply for Form TF007 is considered the practice rule is definite that the matter shall no longer be revived. The court having made the order is divested of jurisdiction. This gives credence to the decision that it is not only at the commencement of a suit that enabling jurisdiction of a court may be raised, if jurisdiction of a court ceases to exist in the case, the suit determines. See Adisa v. Oyewole (2000) 10 NWLR (Pt.674) 1116.
The question posed in issue 4 by the Petitioner is of no moment. The main obligation to ask for T F007 is the main issue, whether or not both parties file their request for the issuance of Form TF007 the provision of subparagraph 4 of the Practice Direction confer power on the Tribunal to dismiss the petition once 7 days have elapsed within which the Appellant/Petitioner or the Respondents should filed the application for the issuance of Form TF007. It will therefore remain unimportant to deliver the issue of no contest whether the 4th Respondent has complied with the Tribunals order of 7th September 2007. However because the Petitioner/Appellant has asked whether the 4th Respondent has filed a response to an order to supply further and better particulars. I would say he did and was right to file notice to dismiss the petition since 7 days allowed by the practice direction have elapsed. It seems to me that the petitioner had not read to appreciable understanding the provision in the Practice direction, para.3, Sub rule 4. If he did he would have realized that within the 7 days prescribed in the rule nothing should stand in the way of the application for the issuance of Form TF007 because if one of the parties applied for the issuance, the Court or Tribunal is enabled to read through and dismiss suo motu the petition as abandoned; because on the expiration of the seven days and the motion having been struck out, no application for extension of time will be entertained. The above deal with issues 1, 2 and 4 of the appellant’s brief which are all resolved against the appellant. Issue 3 asks whether there exists conflict in the application of sub paragraph 3(4) of the practice direction and sections 285 (2) 119 of the Constitution, para.43 (1) of 1st Schedule to the Electoral Act 2006. I am in a position to say my lords that having read each of the above quoted laws, that there exists no conflict in any of them with the provisions of the Sections. It is the appellant who failed to comply with the rules of practice of the court; it is purely academic and unnecessary to engage in the comparison of the laws referred to. The overriding issue is whether or not the appellant applied as directed for Form TF007 within 7 days. By his tacit admission the appellant did not. The petitioner has written for the Form after the 7 days prescribed. Clearly this is in the breach of the practice direction, and reading into it what is not contained within it. It is well here to reiterate the established rules, that rules of court are to be used as they are recorded and not interpreted by counsel as he imagines that the rules my be. The rules are to be obeyed as they are. See Buhari v. INEC (2008) 4 NWLR (Pt. 1078) p.547 at 604.
In sum I resolve all the issues in the appeal against the appellant and dismiss the appeal.
There will be no order as to costs.
Other Citations: (2008)LCN/3068(CA)
