Chief Emmanuel Osita Okereke V. Alhaji Umaru Musa Yar’adua & Ors (2008)
LAWGLOBAL HUB Lead Judgment Report
I.T. MUHAMMAD, J.S.C.
The relevant facts in this appeal are that the appellant as petitioner at the lower court, filed his election petition containing four grounds challenging that the 1st and 2nd respondents were not qualified to contest election into the offices of the President and Vice President of the Federal Republic of Nigeria in that both were at the time of the election disqualified by their respective indictments by an Administrative Panel of Inquiry set-up by Abia State Government.
He prayed for an order canceling or nullifying the return or election of the 1st and 2nd respondents as aforesaid and prayed further, that the 35th respondent, (INEC) be ordered to conduct fresh and/or bye election into the two highest offices of the land.
The 1st and 2nd respondents filed a memorandum of conditional appearance, a notice of preliminary objection, etc, on 23/7/07. The 3rd – 35th respondents filed a notice of preliminary objection on 2/8/07. On 8/8/07, the petitioner/appellant filed a motion on notice, seeking the lower court’s order for him to furnish better and further particulars to his petition, among others. The lower court took together the petitioner’s motion on notice of 8/8/07; 1st and 2nd respondents’ notice of preliminary objection of 23/7/07 and the 3rd – 35th respondents’ notice of preliminary objection of 8/8/07.
After taking submissions by learned counsel for the respective parties, the lower court sustained the notices of preliminary objection and struck out the petition for being incompetent. Aggrieved with the lower court’s decision, the petitioner (now appellant before this court) filed his appeal to this court. All the parties filed and exchanged briefs of argument including reply briefs (where necessary) as required by this court’s rules. The appellant distilled four issues for determination. They are as follows:
“[i] Whether having regard to the provision of paragraph 6(1) of the Election Tribunal- Court Practice Direction 2007 (No.1), the determination of the Motion on Notice and the Preliminary Objection by the Tribunal was not without jurisdiction (Distilled from Ground One).
[ii] Whether on the state of affidavit evidence by the petitioner the Tribunal reached a correct conclusion of law in its application of Section 14 of the Electoral Act, 2006 that all the amendments sought were statute and time-barred. (Distilled from Grounds 2 and 4).
[iii] Whether the Tribunal’s conclusion that the petition did not comply with provision of paragraph 4(1)(d) of the 1st schedule to the Electoral Act, 2006 and paragraph 1(1)(a)(b)(c) and (2) of the Election Tribunal and Court Practice Directions 2007 is not in total disregard of the documents filed before the Tribunal and the contents of the petition as filed (Distilled from Ground 5).
[iv] Whether the Tribunal below properly directed itself as to cause of action in the petition having regard to paragraph 4(1) of the petition before it (Distilled from Ground six).”
1st and 2nd respondents formulated three issues. They are as follows:
[1] Whether the Presidential election Petition Tribunal lacked the jurisdiction to hear and determine the Notice of Preliminary Objection filed by the 1st and 2nd respondents
[2] Whether the appellant’s petition is not incompetent for failure to comply with the mandatory provisions of paragraphs 4(1) (d) of the 1st schedule to the Electoral Act, 2006 and paragraph 1(b) of the Election Tribunals and Courts Practice Directions 2007 and whether such fundamental breach can be aimed by way of amendment outside the period stipulated in section 141 of the Electoral Act, 2006
[3] Whether by not averring to facts in support of the grounds of the election petition, the petition did not fail to disclose a cause of action”
3rd – 35th respondents formulated three issues. They are as follows:
“[1} Whether the lower court had the jurisdiction to determine the preliminary objection of the 1st and 2nd Respondents dated 2nd July, 2007 at the stage, and at the time it did. (based on Ground 1 of the Grounds of Appeal)
[2] Whether the Lower Court was right to refuse the petitioner/appellant’s motion which sought to effect a substantial alteration of the grounds and prayers of the petition, (based on Grounds 2 and 4 of the Grounds of Appeal).
[3] Whether the lower court was right in dismissing the petition for noncompliance with mandatory provisions of paragraph 4(1) (d) of the 1st schedule to the Electoral Act, and paragraph 1(1) (a) (b) (c) and 2 of the Election Tribunal and Court Practice Directions (2007) (based of (sic) Grounds 5 and 6 of the Grounds of Appeal).”
All the parties to this appeal agree in their respective briefs of argument that issue one from each of the briefs is premised on jurisdiction of the lower court to determine the preliminary objection of the 1st and 2nd respondents dated 23rd July, 2007 at the stage and time it did.
From the arguments marshalled by learned counsel for the appellant, Prince Orji Nwafor Orizu, Esq., of the briefs, the bone of contention and upon which pungent submissions were made by him is that:
{a} the issue is a challenge to the jurisdiction of the lower court which it lacked to determine the
Preliminary Objection
{b} The issue did not raise the question of competence of the petition before that court
[c] The main grouse of the appellant under the issue is as summarized below:
[i] the proceedings in relation to the Preliminary Objection was that the tribunal was sitting as the Presidential Election Petition Tribunal and NOT a Pre-Hearing Session
[ii] Paragraphs 6(1) & (4) of the Election Tribunal and Court Practice Directions provide that no motion shall be moved. All motions shall come up at the Pre-Hearing session except in extreme circumstances with leave of the tribunal or court.
[iii] the determination by the tribunal below, sitting as a tribunal instead of the pretrial session is without jurisdiction and therefore null and void. ”
Both learned senior counsel for the 1st and 2nd respondents Chief Olanipekun, SAN, and that for the 3rd – 35th respondents Kanu Agabi, Esq. SAN, each on his part argued that:
[i] the tribunal below rightly assumed jurisdiction when it heard the objection of the respondents, determined same and consequently dismissed the petition of the appellant.
[ii] the provision of paragraph 4(1) (d) of the 1st schedule to the Electoral Act, 2006 (as amended) and paragraph 1(1) (b) of the Election Tribunal and Court Practice Directions, 2007 were not complied with/violated by the appellant which rendered his petition incompetent and robbed the said tribunal of jurisdiction to hear and determine the petition.
[iii] Objection to the competence of a petition must be raised as Soon as the defect is discovered (the 1st and 2nd respondents raised the objection before the tribunal timeously Issue of competence of the petition borders on jurisdiction and it can be raised at any stage of the proceedings and once raised it must be heard and determined first by the tribunal. Cases in Support were cited such as Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506 at pp. 578 – 579- H-A; 7UP Bottling Co. v. Abiola & Sons (2001) 13 NWLR (Pt.730) 469 at 513-514.
[iv) The distinction between sitting of the court below as a tribunal and it’s sitting at a pre-hearing session is like asking the difference between six and half a dozen. What is paramount is that the court at the time it determined that objection was properly constituted as a court or tribunal as required by the law establishing it and the tribunal below was properly constituted in law and fact when it heard and determined the objection.
[v] The issue of competence of a petition being jurisdictional can be raised at any stage of the proceedings whether at pre-hearing or outside pre-hearing. Referred to Ishola v. Ajiboye (supra).
Learned SAN for the 3rd – 35th respondents toed the same line of argument. He however made the following additions:
[i] Definition of “pre-trial”
[ii] that the ordinary grammatical meaning of that expression should be applied in determining whether the “session” in which the preliminary objection was argued and determined in the con of paragraph 6(1) of the Practice Direction 2007, was pre-trial or post-trial or at trial. It was submitted that the processes were taken when actual trial was yet to commence, thus, it was pre-trial.
[iii] A Preliminary Objection connotes an objection taken prior to commencement of trial proceedings in the instant case, it was an objection taken during the pre-trial or pre-hearing session and in full compliance with the provisions of the Election Tribunal and Court Practice Directions, 2007.
As it has been seen from the facts which gave rise to this appeal, the whole matter had to do with the election of the President and Commander-in-Chief of the Federal Republic of Nigeria and his Vice during the election conducted on 21st April, 2007. Pursuant to the powers conferred upon him by Section 285(3) of the Constitution of the Federal Republic of Nigeria, 1999 and paragraph 50 of the First Schedule to the Electoral Act, 2006 and by virtue of other powers enable him in that behalf, the Hon. President of the Court of Appeal issued out on the 29th day of March, 2007 “Election Tribunal and Court Practice Directions, 2007”. The Practice Directions shall apply to the Presidential, Governorship, National Assembly and States Assembly Election Petitions. The conferment of powers on the Court of Appeal to assume Original Jurisdiction to hear and determine election petition in respect of elections to the offices of the President of the Federation and his Vice, is provided by Section 239 of the Constitution of the Federal Republic of Nigeria. The section states:
“239(1) subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other Court of law in Nigeria, have Original Jurisdiction to hear and determined any question as to whether-
[a] any person has been validly elected to the office of President or Vice President under this Constitution; or
[b] the term of office of the President has become vacant.
(2)in the hearing and determination of an election petition under paragraph (a) of Subsection (1) of this section, the Court of Appeal shall be duly constituted if it consists of at least three Justices of the Court of Appeal.
In reference to the Electoral Act, 2006, a ‘Tribunal’ is defined as “an Election Tribunal established under this Act or the Court of Appeal.” On rules of procedure for the tribunal or court, section 151 of the Electoral Act, (hereinafter referred to as “the Act”) provides that the rules of procedure to be adopted for election petitions and appeals arising therefrom shall be those set out in First Schedule to the Act. An Election petition means any election petition under the Act including petition which challenges the validity of election of persons into the office of the President and Vice President of the Federal Republic of Nigeria.
Paragraphs 50 and 51 of First Schedule to the Act provide as follows:
“50. Subject to the express provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be 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 petitioner and respondent were respectively the plaintiff and the defendant in an ordinary civil action.
- Subject to the provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with practice and procedure relating to appeals in the Court of Appeal or of the Supreme Court, as the case may be, regard being had to the need for urgency on electoral matters. ”
Thus, according to the preamble of the Election Tribunal and Court Practice Directions, 2007, (referred to hereinafter as “the Practice Directions”) which apply to election petitions for Presidential, Governorship, National and State Assemblies election, the Practice Directors were made in exercise of the powers conferred on the Hon. President of the Court of Appeal by those provisions of the Constitution and by the Act set out earlier. The Practice Directions must, from all intents and purposes be taken to form part and parcel of powers conferred on the Hon. President of the Court of Appeal by all the powers exercisable by him in that behalf, with a view to facilitating the tribunals or the Court to dispose of electoral matters with the urgency they require.
It is the requirement of paragraph 6(1) and (4) of the Practice Directions, that:
“6(1) No motion shall be moved. All motions shall come up at the PRE-HEARING session except in extreme circumstances with leave of the Tribunal or Court.
(4) Where the respondent to a motion intends to oppose the application he shall within 7 days of the service on him of such application, file his written address and may accompany it with a counter-affidavit”
As for the Pre-Hearing session and its requirements, the Practice Directions has provided the following:
“3. Pre-Hearing Session and Scheduling:
(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) Upon application by a petitioner under-paragraph (1) above, the Tribunal or Court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in Form TF 008 for the purposes set out hereunder:
a) Disposal of all matters which can be dealt with on interlocutory application;
b) Giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions
c) Giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need to expeditious disposal of the petition;
d) Fixing clear dates for hearing of the petition.
(3) 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 entertainment. ”
It has not been clear for me to decipher from the Record of Appeal, nor from the counsel’s submissions whether all the steps stipulated above were followed by the parties, especially the petitioner/appellant. Secondly, sub-paragraph 4 of paragraph 3 as quoted above, makes it mandatory that where neither the petitioner nor the respondent files an application for a Pre-Hearing session, the tribunal or court is under a duty to dismiss the petition as abandoned and no application for extension of time to take that step shall be filed or entertained. Now, although the stipulation under subparagraph (4) of paragraph 3 of the Practice Direction, appears to me to be harsh on the petitioner by making an order for dismissal of the petition which forecloses any chance for him to re-present the petition, it still had to be complied with by the tribunal or court as such steps are a condition precedent to the hearing of any matter in relation to the petition pending before the tribunal or court. Non compliance thereof will strip off the tribunal or court of jurisdiction as one of the factors which confer jurisdiction on a court of law is not complied with. In the case of Modukolu v. Nkemdilim (1962) 1 All NLR, 589, (1962) 2 SCNLR 341, a court is said to be competent to determine a matter before it when the following are present:
1) If it is properly constituted with respect to the number and qualification of its membership;.
2) The subject matter of the action is within its jurisdiction;
3) The action is initiated by due process of law and;
4) Any action (condition precedent) to the exercise of its jurisdiction has been fulfilled.
See further: A-G Federation v. Guardian Newspaper Ltd. (1999) 9 NWLR (Pt.618) 187; Ajao v. Alao (1986) 5 NWLR (Pt.45) 802.
Condition No. 4 above will be the determining factor as to the competence of the court below. Thus, it was wrong in my view, of the court below to go ahead to hear the motion and the Preliminary Objections as filed by the parties.
Further, it is pertinent as well to look at paragraph 7 of the Directions 2007, which provide:
“(7) At the pre-hearing session, the Tribunal or court shall consider and take appropriate action in respect of the following as may be necessary or desirable:
(a) amendment and further and better particulars
(d) hearing and determination of objections on point of law
(i) such other matters as may facilitate the just and speedy disposal of the petition bearing in mind the urgency of the election petitions. ”
These steps, although they provide for treating of amendment and further and better particulars; objections on point of law and such other matters which may facilitate the just and speedy disposal of the petition, were not followed by the court below. The motion and the preliminary objections were simultaneously taken by the court below sitting as a court entertaining the petition filed by the petitioner. This too, I think, is wrong.
Now, turning to the motion filed by the petitioner. It is true that it was moved before the court below. The Preliminary Objection filed by the 1st and 2nd respondents was moved before the lower court on 9/8/07.
Below is what transpired in the court below on 9/8/2007.
“Petitioner in Court.
Chief T. Ike for petitioner/applicant.
Chief W Olanipekun with Y. Ali, SAN and 20 others for the 1st and 2nd respondents.
Chief K. Agabi, SAN for 3rd – 35th respondents with O. O. Uzzi and 8 others.
Chief Ike: we have a motion filed on 8/08/07.”
Chief Olanipekun: We filed a motion of preliminary objection which has been fixed for today. My learned friend has replied to it. It should take precedence by virtue par 49 (5) of 1st schedule of Electoral Act, 2006.
Chief Agabi: we have an identical application. If the petitioner survives the objection, he can move his motion.
Chief Ike: there is a conflict of law. The motion is to save the petition and it should be given priority over motion to strike out the petition. See par 49(4) of 1st schedule which allow for amendment.
Court: The motion fixed for hearing is the preliminary objection. The petitioner filed a motion yesterday to be allowed to provide better particulars to his petition. We shall take both applications together.
Chief Olanipekun: I will reply on points of law.
Chief Agabi: I will reply on points of law.
Chief Ike: The motion filed yesterday is for order to allow petitioner to furnish better and further particulars, and leave to allow the petitioner to advance and rely on proposed documents. I rely on the supporting affidavit and exhibit attached. I filed a written address filed on 8/08/07. I adopt it. I urge the Court to allow the application.
Chief Olanipekun: I oppose the application on following grounds of law.
Chief Agabi: I associate myself with submission of my learned brother, Olanipekun”
What else can I say The motion and the objections were moved. The court below delivered its ruling on 20/8/2007 striking out the petition. At the risk of repetition, I need to quote once more, paragraph 6 of the Practice Directions:
“6. Motions and Applications:
[i} No motion shall be moved. All motions shall come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court.”
The paragraph above has made an outright prohibition of moving motions before the tribunal or court except if it is at the pre-hearing sessions or where extreme circumstances are shown and leave of the tribunal or court was sought and obtained. From the Record of Appeal, I fail to trace where such extreme circumstances were shown or where the court’s leave was sought and obtained. I then wonder what was the basis upon which the court below relied to entertain the motion and the Preliminary Objection of the 1st and 2nd respondents in utter disregard to the provisions of the Practice Directions as contained in paragraph 6(1) above. Whatever was the basis, I think the law as set out earlier is that where any of the factors which entitle a court to assume jurisdiction is missing, that court lacks competence to adjudicate over the parties and the subject matter before it. See the locus classicus case of Modukolu v. Nkemdilim (supra).
Pre-trial sessions in the present dispensation are a condition precedent before a tribunal or court can proceed to entertain any election petition or matters relating thereto. The position of the law is trite that no matter how well conducted, where a court lacks the competence and jurisdictions to entertain a matter, the proceedings conducted thereon are a nullity. See: Achiakpa & Anor v. Nduka & Ors (2001) 7 SCNJ 585; International Bank for West Africa Ltd. v. Pavex International Co. (Nig.) Ltd. (2000) 4 SCNJ, 200; Adesola v. Abidoye & Anor (1999) 12 SCNJ 61.
I hold that the court below lacked competence and had no jurisdiction to entertain the Motion on Notice filed on 08/08/07 by the petitioner and the Preliminary Objection filed by the 1st and 2nd respondents. The proceedings, including the ruling delivered on the 20th of March, 2007, are a nullity. They are hereby set aside.
My Lords, in view of my holding above, and in view of the consequential orders I shall make herein below, I do not consider the necessity of treating the remaining formulated by the appellant.
In the final result, I find no merit in this appeal and it is hereby dismissed. Accordingly, I make an order striking out the motion and the Preliminary objections filed on 8th of August, 2007, and on the 25th of July, 2007 and 2nd August, 2007 as incompetent. By the provision of section 22 of the Supreme Court Act (Cap. S.15, the Laws of the Federation, 2004), which entitles me to exercise all those powers and jurisdiction that are exercisable by the lower Court and as the lower Court is empowered by paragraph 3 (4) of the Practice Directions, to dismiss the petition where the petitioner and the respondent fail to bring an application for such dismissal, I hereby dismiss the appellant/petitioner’s petition pending in the Court below. larder each party to bear its own costs.
SC.246/2007
