Best Njoku & Ors V. Chief Mike Iheanatu & Ors (2008)
LawGlobal-Hub Lead Judgment Report
MOHAMMED LAWAL GARBA, J.C.A.
These appeals emanated from two separate rulings of the Governorship and Legislative Houses Election Tribunal, Imo State in election petition No. EPT/LH/IM/03/07 delivered on 24th September 2007 and 11th August 2007 respectively from the records of the two appeals before us, the Notice of Appeal in respect of appeal No. CA/PH/EPT/454/07 was filed on the 10th of October 2007 while in appeal No CA/PH/EPT/387/07, the Notice of Appeal, was filed on the 30th of August 2007. Along the line, the Appellant in the latter appeal who is the 1st Respondent in appeal No. CA/PH/EPT/454/07 applied for and was granted an order for the consolidation of the two appeals for the purposes of hearing and determination.
The consolidated appeals were heard on the 14th of May 2008 with the learned counsel identifying and adopting their respective briefs of argument therein.
The Appellants’ brief in appeal No. CA/PH/EPT/454/07, was filed on 14th November 2007, the 1st Respondent’s brief on the 30th of November 2007, the 2nd Respondent’s brief on the 12th of December 2007, the 3rd – 5th Respondents brief on the 14th of December 2007 and lastly the Appellants’ Reply brief to the 1st Respondents brief on 3rd December 2007.
The Appellants’ brief in appeal No.CA/PH/EPT/487/07 was filed on the 4th of December 2007, the 1st Respondent’s brief filed on 28th March 2008 was deemed filed on the 21st of April 2008, the 9th Respondent’s brief was filed on the 12th of December 2007 and 10th-12th Respondents, brief filed on the 13th of March 2008 was deemed filed on 14th May 2008.
In the course of hearing, learned senior counsel M. I. Ahamba, (SAN) drew the attention of the court to the fact that the names of 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th Respondents were struck out of the appeal and so are no longer parties to the appeal.
We were urged by learned counsel to uphold their respective submissions and allow or dismiss the appeals as the case may be Judgment was reserved for delivery on the 14th of July 2008.
In the course of preparing the judgment, I observed that the Notice of Appeal in appeal No. CA/PH/EPT/487/07 was filed, against or in respect of a ruling by the lower Tribunal in the course of its proceedings in the petition. The decision in the ruling did not fully and finally determine the rights of the parties in the petition but merely overruled a preliminary objection raised by the Appellant. In the circumstances, the decision is an interlocutory one, an appeal against which by the provisions of the Section 24 (2) (a) of the Court of Appeal Act 1976 Cap. 336 2004 had to be filed within fourteen (14) days from the date it was delivered.
As indicated earlier, the ruling of the lower Tribunal was delivered on 11th August 2007 and the Notice of Appeal was filed on the 30th August 2007
Perhaps I should quickly point out here that the provisions of the Practice Directions No. 2 of 2007 do not apply to the appeal because it is not one under Section 149 of the Electoral Act 2006. The preamble to the Directions puts it beyond argument as follows:
“For the purpose of appeals coming to the Court of Appeal under Section 149 of the Electoral Act 2006, No. 2, this Practice Direction shall be strictly observed by all parties.”
It is clear therefore that all other appeals coming to this court are to be governed and regulated by the Court of Appeal Act and Court of Appeal Rules pursuant to paragraph 51 of the 1st Schedule to the Electoral Act, 2006. Since the appeal No. CA/PH/EPT/487/07 was/is not under Section 149 of the Electoral Act 2006, it has to be in accordance with the law and the rules of practice and procedure applicable in this court. I accordingly find it expedient to raise the issue of the competence of the said appeal suo motu and invite learned counsel to address the court on it before the date of judgment. In effect, the appeal is reopened for hearing with address by counsel on the issue raised.
The above invitation notwithstanding and even though appeal No. CA/PH/EPT/454/07 was consolidated with appeal No. CA/PH/EPT/487/07 and heard together, the law is that each of the two appeals retain its separate and distinct identity and issues to be considered and determined accordingly in the consolidated judgment.
In essence each of the appeals should have separate decisions or pronouncement on the issues canvassed therein by the parties. This may amount to an order varying the consolidation of the two appeals earlier made which this court is entitled to make in the circumstances.
See the decision of this court in the case of – KASSA V. ULASI (1991) 2 NWLR (174) 448.
In these premises, I would proceed to consider the appeal No. CA/PH/EPT/454/07 about which there is no need to invite counsel for further address. See ALARIBE V. NWANKPA (1999) 4 NWLR (600) 551, ILLOABUCHI V. EBIGBO (2000) FWLR (17) 78, D.S.C. V. OWNERS OF THE SHIP (1991) 3 NWLR (179) 369.
From the four (4) grounds of appeal contained in the Notice of Appeal, learned counsel for the Appellant in paragraph 3.00 on page 3 of the Appellants’ brief submitted a single issue which he said arises for determination in the appeal. The concise issue is: –
“Whether the dismissal of the petition was proper in law.”
The learned counsel for all the Respondents also raised a single issue for determination in the appeal primarily on the interpretation of paragraph 3 (1) of the Practice Directions 2007 in their respective briefs of argument.
However looking at the grounds of appeal, the issue formulated in the Appellants’ brief is apt and subsumes the ones framed by the Respondents’ counsel. It is better and my preference is for it in the appeal.
The submissions for the Appellants on the issue started with the quotation of a portion of the decision appealed against which is at page 223 of the record of appeal. It was submitted that from the excerpt set out, the following points of reasoning emerged: –
i. “A petitioner’s time to apply for the pre-hearing notice should be calculated from the date such petitioner files his reply to the respondent’s reply and not from the day he served the reply on the respondent.
ii The petitioner (appellant herein) filed the application for pre-hearing session on 25/7/07 more than 7 days after filing reply to the respondents reply which was filed on 20/6/07.
iii. The provisions of the Practice Directions are sacrosanct and time under para 3 (4) is not extendable.
iv. The petition had to be dismissed because it was abandoned.”
Taking these points one after the other and setting out the provisions of paragraph 3(1) learned counsel argued that the lower Tribunal eliminated the requirement of service of the reply before the computation of time in its interpretation of the paragraph it was submitted that, a court or tribunal lacks the competence to amend a statute in the course of interpretation, but to give effect to intention of the legislature as can ‘be discerned from the clear and unambiguous words used by giving them natural and grammatical meaning. The authority of OVIAWE V. IRP (1997) 3 NWLR (492 126 at 139 was relied on and it was further said that by dropping the provision on service of a reply and computing the time based on filing of reply alone, the lower tribunal had acted contrary to that decision and the admonition in the case of OBI V. INEC (2007) 7 SC 268 at 316. That since the paragraph provides that application by a petitioner should be within 7 days of filing and service of the petitioner’s reply, it was erroneous and improper for the lower Tribunal to decide that the date of filing alone was the commencement date for the computation of the 7 days period.
Pages 233 and 230 were referred to where the lower Tribunal had stated that the application for pre-hearing was “filed on 25th July 2007 and 3rd July 2007,” respectively and it was contended that having made a finding from the records that the application was filed on the 3rd of July 2007, the Lower Tribunal lacked the competence to later rely on the 25th of July 2007 which the application did not bear. We were urged to hold that the application was filed on 3rd July 2007 and since it is common ground that the petitioners reply was served on the Respondents on 26th June 2007, it was filed within 7 days and thus competent.
In another vein relying on the statements in the cases of HARUNA V. MODIBBO (2004) 16 NWLR (487) 536, EZEUBU V. FATB (1992) 1 NWLR (220) 699 AT 722 & KATTO V. CBN (1991) 9 NWLR (214) 126 AT 147 it was contended that the provisions of a practice direction are only complimentary too or at best, enjoy the status of the Rules of court not being part of the Electoral or the 1st Schedule thereto, that the Practice Direction in the lower Tribunal is subordinated in the interpretation to be given to paragraph 3(1) and 3(4) and sc Order 23, Rule 3 of the Federal High Court (Civil Procedure) Rules is applicable for the purpose of extending time under it. The case of HARUNA V. MODIBBO (supra) was again relied on for the submission.
In the alternative, learned counsel said the lower Tribunal should have extended the time for filing the application, and deemed what was already filed as having been properly filed on the authority of URA v. NWORA (1978) II SC 1 at 9-10 ERISI v. IDIKA (1987) 4 NWLR (66) 503 at 573. That the paragraphs 3(1) & 3(4) are not sacrosanct and should have been given a directory or permissive interpretation as Rules of court. Also that Order 3 Rules 1 and 2 of the Federal High Court Rules should be applicable to failure to comply with the Practice Directions.
Based on the above submissions we were finally urged to resolve the issue in the negative and allow the appeal.
For the 1st Respondent it was submitted that the attack on the decision of the lower Tribunal to rely on the word “filing” instead of ”filing and service” used in paragraph 3(1) was not borne out by the very special nature of election petitions, which, as a matter of public policy, must be resolved within a short time That the lower Tribunal was right in its interpretation of paragraph 3(1)which regulates the filing of the pre-hearing application on both petitioner and Respondent and that the petitioner had to apply within 7 days of filing his reply. According to learned counsel since it is not disputed that the petitioner filed his reply on the 20th of June 2007, any application for pre-hearing session filed after 27th June 2007 was filed out of the 7 days allowed for so doing. He conceded that the application for pre-hearing session by the Appellant was filed on 3rd July 2007 and not 25th July 2007 which was the date the parties appeared for pre-hearing session. The case of BALOGUN V ODUMOSU (1999) 2 NWLR (592) 590 at 597 was cited on the need for election petitions to be resolved within a short time and it was submitted that in the absence of an application for enlargement of time, the lower Tribunal could not have extended the time for the application to have been made for it was not sought for. The case of EZEONWU V. ONYECHI (1996) 2 SCNJ 250 at 268 was relied on. In addition, that the lower Tribunal had no power to grant extension of the in view of paragraph 314) which is mandatory and not permissive by the use of the word “shall” in paragraph 3, citing NNONYE V. ANYICHIE (2005) 2 NWLR (910) 623 at 649 as authority.
Furthermore, it was argued that the Practice Directions being subsidiary enactment made pursuant to the provisions of Statute, has the same force with the statute or law under which it was made Reliance was placed on the case of OGUNLOWO V. OGUNDARE (1993) 7 NWLR (309) 610 at 626.
The cases of BUHARI v. YUSUF (2003) 14 NWLR (841) 446, EKECHI V. OKAH (1993) 1 NWLR (267) 34 at 47, OPIA V. IBRU (1992) 3 NWLR (230) 658 & AROMOLARAN V. OLADELE (1990) 7 NWLR (162) 359 at 371 on the sacrosanct nature of the Practice Directions in election petition proceedings and the need for parties to comply with rules of court were cited by learned counsel who finally urged us to dismiss the appeal and affirm the decision of the lower Tribunal.
On his part learned counsel for the 2nd Respondent citing Section 15 (2) of the Interpretation Act, argued that the event in the petition was the filing of the Petitioner’s reply which then triggered or activated the time or date to be reckoned with in the computation of the 7 days provided in paragraph 3 (1). That the date of filing and service are to be interpreted conjunctively and to emphasise the date of service and ignore that filing would be to disregard the intention of the paragraph. The cases of NDOMA-EGBA V. CHUKWUOGOR (2004) 6 NWLR (869) 382 at 409 & BALOGUN v. ODUMOSU (supra) were cited by learned counsel who also submitted that the Practice Directions do not permit extension of time to file an application for pre-hearing session. We were urged to dismiss the appeal.
The brief of argument filed for the 3rd – 5th Respondents was extracted word for word from the brief filed by the learned counsel for the 2nd Respondent. There is nothing in the said brief that is worthy of a review since it will amount to a mere repetition of the submissions contained in the brief filed for the 2nd Respondent as a result a consideration and determination of the appeal on the submissions the latter brief of argument would apply and adequately take care the repetition by the counsel to the 3rd – 5th Respondents.
Before leaving the issue, I would like to say that it does not show any sign of responsibility and seriousness on the part of a counsel instructed and retained by a party to an appeal to just copy a brief of argument prepared by another counsel representing different parties to the appeal and append his signature hereto as the brief of argument for the clients. That is unprofessional and unethical. If the clients of such counsel have the same joint or identical interests with some other parties in the appeal then joint brief of argument should be filed for all such parties as required by Order 17 rule 6 of the Court of Appeal Rules, 2007. I should hope counsel would avoid any practice that may put their professional competence on the line or into question.
Learned senior counsel in the Appellants’ Reply submitted that there is no existing statute from which the power to make the Practice Direction for the lower Tribunal enures but the Practice Direction is part of the Court of Appeal Rules which has no efficacy in that Tribunal since the Federal High court Rules apply to those proceedings.
Now the issue for determination in the appeal revolves around the proper, correct and accepted interpretation of paragraph 3 (1) and (3) of the Election, Tribunal and court Practice Direction 2007 applicable to proceedings in the lower Tribunal. They are as follows.-
(1) “Within 7 days after the filing and service of the Petitioner’s Reply on the Respondent’ or 7 days after the filing and service of the Respondent’s Reply, whichever is the case, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007
(2) ……………
(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.”
Though this is not the proper forum for challenging the constitutional and statutory validity of the Practice Directions since they were argued by the learned counsel to be or not to be a subsidiary rule or legislation, which has the same efficacy and force with the statute or law from which it was made or issued, it would not be out of place to determine the point in this appeal.
From the preamble to the Directions which came into force on the 3rd of April 2007 and applicable to Presidential, Governorship, National Assembly and State Assembly election petitions, they were issued pursuant to the powers conferred by Section 285 (3) of the Constitution of Federal Republic of Nigeria 1999, Paragraph 50 of the First Schedule to the Electoral Act 2006 and all other enabling powers in that behalf. Section 285 (3) of the Constitution have the following provisions:-
(3) “The composition of the National Assembly Election Tribunals, Governorship and Legislative Houses Election Tribunals shall be as set out in the Sixth Schedule, to this Constitution.”
Undoubtedly, the above clear and unambiguous provisions of the grand norm do not deal with the conferment of any power, authority, permission or right to issue any directions to be applicable to election petitions either in the Tribunal or court as the case may be we are hereby concerned with the Tribunal whose, composition the section directly provides for and deals with. No power is conferred by and therefore derivable from the above provisions for the issuance of the Practice Directions under consideration. Consequently the Direction cannot rightly be said to have been made from the provisions of section, 285, (3) of the constitution so as to make them a subsidiary legislation to the constitution that would have the same force therewith. A subsidiary legislation or enactment is one that was subsequently made or enacted under and pursuant to the power conferred by the principal legislation or enactment. It derives its force and efficacy from the principal legislation to which it is therefore secondary and complimentary. See DIN V. A.G.F. (1988) 4 NWLR (1987) 147, ISHOLA V. AJIBOYE (1994) 6 NWLR (35552) 506 & OLARENWAJU V. OYEYEMI (2001) 2 NWLR (697) 229.
Next are the provisions of paragraph 50 of the 1st Schedule to the Electoral Act 2006. They are as follows:-
“Application of rules of court
- Subject to the express provision, of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil procedure rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petition and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.”
The heading of the paragraph is “Application of rules of court”. Once again, in their ordinary grammatical meaning, these provisions, to put it briefly, do not in their most liberal interpretation deal with, provide for or confer any power or authority to issue any practice Directions to be applied, or used in electoral petitions, in the lower Tribunal as the heading, precisely indicated they make provisions for the application of the Rules of court, (the Federal High court) mutatis mutandi, as the rules of practice and procedure in relation to election petition in the lower Tribunal. The application of the Rules of the Federal High court in election petitions before the lower Tribunal is only subject to the express provisions of the Electoral Act 2006. See YUSUF V. OBASANJO (2003) 15 NWLR (843) 293, 303-4, OKONKWO V. INEC (2004) 1 NWLR (854)242. Clearly, the practice Directions cannot in the above circumstances be said to have derived or enured from the provisions of paragraph 50 in order to be considered and said to be subsidiary thereto for the purpose of having the same force or efficacy therewith.
For the above reason, I find myself in agreement with the learned senior counsel for the Appellants that the practice Directions and in particular paragraph 3 (1) and (3) thereof are not subsidiary legislation to any of Section 285(3) of the Constitution or paragraph 50 of the 1st Schedule to the Electoral Act 2006. The case of OGUNLOWO V. OGUNDARE (supra) cited by the learned counsel for the 1st Respondent on the point is therefore not applicable and helpful in the appeal.
Let me however quickly point out that the Directions were issued also pursuant to “all other powers enabling in that behalf and so though not subsidiary registration made are issued under 285 (3) of the Constitution and paragraph 50 of the 1st Schedule to the Electoral Act, they remain valid under such powers until successfully challenged at the appropriate and proper forum.
Going back to the status of the Directions, the established view of the courts and so the position of the law, is that they are complimentary to the applicable rules of court in respect of election petitions. The authorities of HARUNA v. MODIBBO, (supra), EZEGBU V. FATB (supra) as well as ABUBAKAR V. INEC (2004) 1 NWLR (854) 207, YUSUF V. OBASANJO (supra), BUHARI v. YUSUF (2003) 14 NWLR (841) 446 settled the position. At best the Directions may be equated with the Rules of court as stated in these authorities. One other common position of the law is that the Rules of court are made for smooth administration of justice and to help the court/tribunal in its primary duty and objective to do Justice to the parties by deciding on the merit of their case. Albeit that generally Rules of courts are meant to be obeyed or complied with in all matters before the court/tribunal, it should always be borne in mind that they are no more than handmaids to justice and so it would be undesirable to adopt an inflexible application of the Rules which allow a party to score a victory, not on the merit but a technical knock-out.
The attitude of the courts/tribunals over the years and especially in election matters, has been that adherence to crass legal encrushments or pure technicalities at the expense of a hearing on the merit should be avoided. See NNEJI v. CHUKWU (1988) 3 NWLR (81) 184, OPARA v. SCHLOMBERGER (1995) 4 NWLR (390) 440, OJAKO v. A.G. ANAMBRA STATE (2000) 1 NWLR (64) 371, IBRAHIM v. SHERIFF (2004) 14 NWLR (892) 43 at 72-3, NWOBODO v. ONOH (1984) 1 SCNLR 1, OGBORU v. IBORI (2006) 17 NWLR (1009) 542 at 574.
In the present appeal, the facts giving rise to the appeal about which the parties are one, are that in the course of pre-hearing conference learned counsel for 1st Respondent raised the issue of the competence of the petition on the ground of non-compliance with paragraph 3(1) of the practice Directions. Written addresses were filed and adopted by learned counsel on the issue after which the lower Tribunal delivered the ruling subject of the appeal, dismissing the petition for non compliance with paragraph 3(1)on the ground that the Appellants did not apply for pre-hearing session within 7 days after filing the Petitioner’s Reply. In its view the lower Tribunal held that the 7 days limited by paragraph 3 (1)was to be computed from the date of filing the Reply and not the date of service thereof on the Respondents.
The words used in paragraph 3 (1)set out earlier, are “Within 7 days after the filing and service of the Petitioner’s Reply on the Respondent…”
Without the need to waste verbiage, the plain requirement in these words is that the petitioner shall apply for the issuance of pre-hearing notice within” seven (7) days after filing and service of petitioner’s reply on the Respondent. The computation of the days would commence not only after filing but also after service of the Reply mentioned therein. This can only be the reasonable intention of the drafters of the provisions because the filing of the Reply is quite different from the service thereof.
The filing was required under paragraph 16(1) of the 1st Schedule to the 2006 Act, to be done by the petitioner while the service of all documents filed in the lower Tribunal in respect of an election petition was required to be undertaken or effected by the secretary (usually through Bailiffs or other officials) under the combined effect of paragraph 7(1) and 8(1) of the 1st Schedule. So whereas the duty to file the Reply was placed on the petitioner, the service of same after filing was the responsibility of the Secretary of the lower Tribunal. I can find no provisions either in the 1st schedule to the 2006 Act or the practice Directions which impose the duty to effect or undertake the service of any document filed with the Secretary of the tribunal but particularly the Petitioner’s Reply, on the, Petitioner. There is no such provision and no such duty on the petitioner.
The provision for filing and service in paragraph 3(1) is therefore deliberate because the Directions recognised that the filing of a document is different from the service thereof. Indeed practically, the two are done at separate and different times, usually on different dates.
The indisputable intention therefore is that both the date of filing of a Reply and the date of service thereof are to be taken into account in the computation of the 7 days time limit within which the application for pre-hearing notice was to be made by the petitioner. In particular, the latter date is the one from which that period of limitation begins to run for the purposes of filing the application mentioned therein.
In the above premises, for the lower Tribunal to have ignored the requirement that the Reply had to be served after filing before the period of limitation commences or begins to run, was to subtract or amend the very clear and straightforward provisions of paragraph 3 (1).
Like rightly pointed out by the learned senior counsel for the appellants, the interpretative power and function of the court under the law do not extend to an amendment of the provisions being interpreted. The only duty of the lower Tribunal was to expound and not expand or expunge some portion of the provisions. It was to interpret the provisions as they are and not as they ought to be ,de lege lata” and not “de lege farenda”. ABIOYE V. YAKUBU (1991) 5 NWLR (190) 130, OVIAWE V. IRP (supra), NATIONAL ASSEMBLY V. PRESIDENT (2003) 9 NWLR (824) 104, ALAMIEYESEIGHA V. FRN (2006) 16 NWLR (1004) 1.
That Tribunal was therefore in error to have held that the 7 days period set out in paragraph 3(1)started to run from the date of filing the Petitioners’ Reply and not from the date of service of the said Reply on the Respondents as clearly provided in the paragraph.
It may be recalled that it is common ground that the Appellants’ Reply was served on the Respondents on the 26th, of June 2007 and the application for pre-hearing notice was filed by them on the 3rd of July 2007. Without ado, the application was filed within 7 days of the date of the service of the Reply and therefore in compliance with the provisions of paragraph 3(1). However proceeding on the assumption that the application for pre-hearing notice was not made within seven (7) days of the filing and service of the Petitioners Reply, was the lower Tribunal right in the peculiar circumstances of the case to have dismissed the petition of the Appellants under paragraph 3(4) as being abandoned? The peculiar circumstances I mentioned above include the fact that, in spite of or despite the fact that no such application was made, the pre-hearing session or conference had started and none of the Respondents challenged or even complained about the start or commencement of such procedural step in the petition. The parties and their respective counsel were present and ready to proceed with the pre-hearing session. That it was in the course of the pre-hearing session that the 1st Respondent’s counsel on the 22nd of August 2007, that is more than two (2) months after the Reply of the Petitioners was filed hereby completing pleadings in the petition, raised the issue of non-compliance with paragraph 3 (1) With the commencement of the pre-hearing session in the petition the requirement that the Petitioners were to have applied for the issuance of a notice thereof was undoubtedly overtaken by that event. None of the Respondents had alleged let alone prove that the non-compliance with the requirement of paragraph 3(1) had any adverse effect or prejudice on their position to defend the petition. The non-compliance, if any, was therefore factually inconsequential and a very neglible irregularity, which it did not go to the competence of the lower Tribunal to entertain the petition.
“The heydays of technicalities are now over because the weight of judicial authorities have shifted from undue reliance on technicalities to doing substantial justice even-handedly to the parties to the case.”
Was the warning by the late ACHIKE, JSC in the case of EGOLUM v. OBASANJO (1999) 7 NWLR (611) 355 at 413.
The purport or aim of the provisions of paragraph 3(4) is to prevent indolent parties;. Petitioners and Respondents from going to sleep after the presentation and service of the notice of a petition.
The provisions are applicable only where after settlement and service of pleadings, neither of the Petitioner nor the Respondent takes any step within the time prescribed by the paragraph for the pre-hearing session to commence or start. However, once pre-hearing session was started without objection from any of the parties, but with their active participation my firm view is that an election petition cannot properly be said or held to have been abandoned using paragraph 3(4).
The overall purpose of the Practice Directions is to ensure, enhance and facilitate, the determination of election petitions on their merit and not in any way, to punish parties for the slightest mistakes in the presentation and prosecution of their cases. Any interpretation of the Directions, which lend to drive away people with genuine and serious complaints arising from the periodical elections we have in this country, from the only avenue available statutorily for ventilating such complaints would be an encouragement for the continuation of the flagrant disregard for our electoral laws and the constitution in the conduct of the elections.
I have stated the position of the law elsewhere in this judgment that the primary duty of the court/tribunal is to do justice to parties in the cases that come before them without adherence to unnecessary technicalities. It is purely and strictly technical to insist on the compliance with the provision of paragraph 3(1) in the circumstances of the Appellants case when the pre-hearing session had already commenced and was in progress at the time the non-compliance was raised. The paragraph and Directions as a whole are not sacrosanct being complimentary to or Rules of court, which are not masters that should be obeyed at all times, but assistants that help the court/tribunal: to do real Justice to parties that appear before it. The lower Tribunal was therefore wrong in law to have dismissed the Appellants’ petition under paragraph 3(4) when taking into account the peculiarities mentioned above, it was given the discretionary power under paragraph 49 (1)of the 1st schedule to the 2006 Act to direct that the pre-hearing session already started should proceed notwithstanding the non-compliance with paragraph 3(1) of the Directions These are the provisions of paragraph 49(1):-
Non-compliance with rules, etc.
- (1) Non-compliance with any of the provisions of this Schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding, void, unless the tribunal or court so directs, but the proceeding may be set aside wholly or partly as irregular, or amended, or otherwise dealt with in such manner and on such terms as the Tribunal or Court may deems fit and just”
In the case of IBRAHIM V. SHERIFF (supra) it was held that the above provisions are aimed at preventing a breach of any of the rules from resulting in unjust and unreasonable result. It was held that an election tribunal does not need an application from a petitioner before it could apply or invoke the provisions of paragraph 49(1) and that it is the duty of the tribunal to fall back on any relevant law in ensuring that justice is done to all parties in the case before it. The paragraph 49(1) referred to in the case is of the 1st Schedule to the Electoral Act, 2002, which was repeated in the 2006 Act.
On the whole for the reasons adumbrated in the judgment I answer the issue for determination in the negative and resolve same in favour of the Appellants I find merit in the appeal and hereby allow same.
Consequently, the decision of the lower Tribunal dismissing the Appellants petition on the ground that it was abandoned is hereby set aside. The petition No.EPT/LH/IM/03/07 is restored on the cause list of that Tribunal and ordered to be heard on its merits by different members thereof.
The costs of N30,000.00 are assessed and awarded in favour of the Appellants.
Other Citations: (2008)LCN/2886(CA)
