Chief Ukwadinamor Clement Uchechukwu V. Joan Onyemachi Bielonwu & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.
This is an appeal against the decision/Ruling of the Governorship/Legislative Houses Election Petitions tribunal, holden at Asaba, Delta State of Nigeria delivered on Wednesday, the 11th day of July, 2007.
The Appellant herein was the Petitioner in the Tribunal below. By a petition dated and filed on the 14th May, 2007 the Petitioner challenged the election of the 1st Respondent as the candidate representing the Aniocha South Constituency in the election to the Delta State House of Assembly held on 14th April, 2007.
On 4th June, 2007 the 1st Respondent filed her 1st Respondent’s Reply to the Petitioner’s petition.
On 4th June, 2007, the 2nd – 11th Respondents also filed their 2nd- 11th Respondents’ Reply to the Petitioner’s petition.
On 11th June, 2007 the petitioner in turn filed his Petitioner’s Reply to the 1st Respondent’s Reply and served same on the 1st Respondent on the 14th June 2007.
On the 11th June, 2007 the Petitioner also filed his Petitioner’s Reply to the 2nd – 11th Respondents’ Reply and served same on the Respondents on the 14th June 2007.
And the pleadings were considered to have been closed at this stage on the 14th June 2007.
Between 14th June 2007 and 24th June 2007, neither the Petitioner nor the respective Respondents applied for the issuance of Pre-hearing notice as in Form TF 007.
On 25th June, 2007 the Petitioner filed a Motion on Notice praying the Tribunal for the following orders:
1. EXTENSION OF TIME within which the Petitioner/Applicant may apply for the issuance of pre-hearing notice as in FORM TF 007.
2. AN ORDER for issuance of pre-hearing notice as in FORM TF 007.
3. And for such further order or orders as this Honourable Tribunal may deem fit to make in the circumstances.
There was an affidavit and a written address in support of the petitioner/Applicant’s Motion on Notice dated 25th June 2007.
On 26th June, the 1st Respondent filed a seven (7) paragraph counter affidavit to the Petitioner/Applicant’s Motion. The counter affidavit was also accompanied by a written address in opposition to the Petitioner/Applicant’s Motion for extension of time to apply for the issuance of a pre-hearing notice as in Form TF 007.
On the same 26th June 2007, the 2nd – 11th Respondents also filed a five (5) paragraph counter affidavit against the Petitioner’s motion on notice for extension of time to apply for pre-hearing notice. The said counter affidavit was also accompanied by a written address.
On 28th June, 2007 parties adopted their respective written addresses in respect of the motion on notice for extension of time to apply for a pre-hearing notice. And the lower Tribunal fixed the ruling for 11th July, 2007.
However, it is noteworthy that while the Petitioner/Applicant’s motion on notice for extension of time to apply for the issuance of pre-hearing notice was pending, the 1st Respondent and the 2nd – 11th Respondents filed their respective applications to dismiss the petition same having been abandoned by the petitioner. The two applications by the respective Respondents were dated 25th June, 2007 but filed on 26th June, 2007.
After considering the argument of all the parties in respect of the Petitioner/Applicant’s motion for extension of time to apply for the issuance of pre-hearing notice, the Honourable lower Tribunal in its decision held inter alia as follows:
“In conclusion the Tribunal hereby formally dismiss the instant petition as an “abandoned petition”, (the said petition having always been deemed by the Practice Directions 2007 as an abandoned one) since the parties therein failed to apply for issuance of pre-hearing notice in compliance with the provision of sub-paragraph (1) of paragraph (3)”.
Dissatisfied with the above ruling of the lower Tribunal, the Petitioner/Applicant appealed to this Court by a Notice of Appeal dated 13th July, 2007, but filed on 16th July, 2007, praying this Court for four reliefs to wit:
(a) An Order setting aside the ruling/Judgment of the lower court.
(b) An Order granting extension of time within which to apply for the issuance of pre-hearing notice.
(c) An Order restoring the substantive petition of the Appellant which was earlier dismissed.
(d) For such further order or orders as this Court may deem fit to make in the circumstances of this Case.
Both parties filed their briefs of argument. The Appellant raised one issue for determination that is:
“Having regards to the main provision of the Electoral Act 2006 and the provisions of the Election Tribunal and Court Practice Directions 2007, whether the lower court was right when it treated the Petition of the Appellant as an abandoned Petition thereby overruling the application for extension of time within which to apply for the issuance of Pre-hearing notice”.
Before arguing the merits of the appeal, the 1st Respondent raised a notice of Preliminary objection to the competence of the appeal under order 7 rule 1 and Section 15 of the Court of Appeal Rules, 2007.
The 1st Respondent had argued in the preliminary objection that the notice of Appeal filed by the Appellant on the 16th day of July 2007 was incompetent on the Ground that the appellant did not seek leave of either the lower Court, or this Court to do so. Also that the decision appealed against was not a decision on the merit, not being a decision or Ruling as envisaged under Section 246 of the 1999 Constitution of the Federal Republic of Nigeria.
In his argument in support of the preliminary objection, learned Counsel for the 1st Respondent referred to the said Ruling of the lower Tribunal delivered on the 11th of July 2007, and also Section 246 of the 1999 Constitution and Contended that for there to be an Appeal as of right, the Election Petition must be determined on the merits. That where a decision is made in the course of the proceedings, such decision is one made in an election petition and is not covered by the said Constitutional provision.
For ease of reference, I hereby reproduce the said Section 246 of the 1999 Constitution.
SECTION 246 (1)
An appeal to the Court of Appeal shall lie as of right from:
(b) Decision by the National Assembly Election Tribunal and Governorship and Legislative Houses Election Tribunals on any question as to whether;
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution.
(ii) any person has been validly elected to the office of Governor or Deputy Governor or
(iii) the term of office of any person has ceased or the seat of any such person has become vacant.
Counsel submitted that the Tribunal did not determine whether the 1st Respondent was validly elected as a member of the Delta State House of Assembly, and therefore the decision does not fall under Section 246 of the 1999 Constitution. He Contended that while the decision was a final decision, being an election petition, it was a decision made in the Course of an election petition Proceedings and the Constitution does not confer any right of appeal on the Appellant. He cited ONITIRI V. BENSON (1960) 5 FSC 150 at 153.
OKON V. BOB (2005) All FWLR (PT.243) PG. 674. ORUBU V. NEC (1988) 5 NWLR (PT.94) 323 among others, and urged this court to strike out the appeal, since the Constitution does not confer any right of appeal on the Appellant.
In his reply on the objection, learned Counsel for the appellant contended that Section 246 (1) (b) of the 1999 Constitution which the 1st Respondent relied upon for the objection does not distinguish between when an appellant shall appeal as of right in a final decision or in an interlocutory decision. He argued that the word “decision” as used in Section 246 (I) (b) of the 1999 Constitution has been defined in section 318 of the same 1999 Constitution to include a ruling in any proceedings. He Cited the ease of AWUSE V. ODILI (2003) 18 NWLR (PT.851) Page 116 at 154.
Counsel submitted that decisions on “any question” used under Section 241 (1) (b) of the 1999 Constitution is therefore not restricted to when the appeal has been heard on the merit.
On the attitude of Court to the forfeiture of a right of appeal such as the 1st Respondent is suggesting in his objection, Counsel cited the case of BENDEL ENGINEERING CORP. V. EFFICIENT PETROLEUM LTD. (2001) FWLR (PT.47) AT 1188 R. 4.
Appellant’s Counsel further submitted that the case of ORUBU V. NEC and other authorities cited by the learned Senior Advocate of Nigeria are inapplicable to appeals made under Section 246 (1) of the 1999 Constitution as the case of ORUBU V. NEC and other decisions cited were decided principally under Decree N037 of 1987 which provided Succinctly that appeals on interlocutory matters shall not lie to the Court of Appeal.
To determine this preliminary objection, it is necessary to State that the case of ORUBU V. NEC and other cases cited by learned counsel for the 1st Respondent were decisions made before the 1999 Constitution with Decree No. 37 of 1987 in mind:
It is my humble view that the law as of today is that post 1999 Constitution appeals lie from any decision of an election petition Tribunal to the Court of Appeal. Any doubt as to this has been laid to rest by the Supreme court in Awuse V. Odili supra. The case of AWUSE V. ODILI was detailed on this very issue as to whether or not interlocutory decisions in election petition could be appealed against in the Court of appeal.
In Awuse V. Odili, the Supreme Court Confirmed their earlier stand in BUHARI V. OBASANJO (2003) 17 NWLR PT. 841 pg 446 that Section 246 must be read with Section 315 of the 1999 Constitution to the effect that whether it was a decision ON an election Petition or IN an election petition, there is a right of appeal from the election petition tribunal to the court of appeal.
This distinction between a decision IN an election Petition (during the course of Proceedings) or ON an election petition (after conclusion on the merits) was made by the Supreme Court in ORUBU V. NEC. supra
I am aware of the Judgment of this Court in Appeal NO.CA/PH/EPT/9/2008 HOPE DEMOCRACTIC PARTY V. INEC & 3 ORS delivered on the 14th of April 2008, but like I said earlier, the Supreme Court has hit the nail on the head in the Awuse v. Odili case.
In the instant Case, the right of the parties was determined by the dismissal of the petition by the Tribunal. The effect therefore was that there was no more petition by the Appellant against the Respondents before that Tribunal.
It is therefore the effect of the order rather than the nature of the proceedings from which the order emanated that matters.
Forfeiture of a right of appeal has been looked into in the case of BENDEL ENGINEERING CORP. V. EFFICIENT PETROLEUM LTD. (2001) FWLR (PT.47) 1188 R. 4, where this court stated:
“forfeiture of the right of appeal is a Serious matter beyond the mere gambit of a Preliminary objection as a daunting ploy calculated to stun an Opponent, as the right of appeal is a Constitutional matter”.
Since this was a final decision of the tribunal though not on merit, which determined the rights of parties, the Appellant was not obliged to seek leave to appeal as he could appeal as of right.
It is therefore my humble view that the ruling of the lower tribunal appealed against, being a decision which determined the rights of the parties, there was no need for the appellant to seek leave of this court or the lower court or tribunal to bring this appeal. The Preliminary objection is misplaced, and hereby overruled.
On the merits of the substantive appeal, the Appellant by a notice of appeal dated 13th July 2007, and filed on the 16th of July 2007, raised one Ground of appeal i.e.
The trial Tribunal erred in law when it held that the main petition of the Appellant is an abandoned petition for failure to apply for pre-hearing notice within the time prescribed by the Election Tribunal and the Practice Directions 2007″
Both parties filed their briefs of argument The Appellant raised one issue for determination i.e.
“Having regards to the main provision of the Electoral Act 2006 and the provisions of the Election Tribunal and Court Practice Directions 2007, whether the lower court was right when it treated the Petition of the Appellant as an abandoned petition thereby overruling the application for extension of time within which to apply for the issuance of pre-hearing notice”.
For the 1st Respondent’s counsel it read;
“Whether the Honourable Tribunal was right in dismissing the Petitioner’s Petition as an abandoned petition in accordance with paragraph 3 (4) of the Election Tribunal and Court Practice Directions, 2007.
Counsel for the 2nd – 11th Respondents adopted the issue for determination as expressed by the 1st Respondent.
The issues as formulated by both parties are the same both in content and form, in line with the only Ground of appeal.
In his argument on the only issue for determination, learned counsel for Appellant Submitted that Election Tribunals and the Court Practice Direction 2007 were made pursuant to the Electoral Act 2006. This he argued was evident from the Practice Direction itself at Page I were the President of the Court of Appeal in issuing the Practice Direction Stated thus:
“In the exercise of the powers conferred on me by Section 285(3) of the Constitution of the Federal Republic of Nigeria 1999, Paragraph 50 of the First Schedule to the Electoral Act 2006, and by virtue or all other powers enabling me in that behalf, I UMARU ABDULAHI CON, President of the Court of Appeal hereby issue the following Practice Direction”.
He cited the case of BONI HARUNA & 2 ORS V. ADAMU MU’AZU MODIBBO & ANOR. (2004) 16 NWLR (PT.900) 487 at 568.
He Contended that under Section 43 (1) (2) and (3) of the Rules of procedure in the 1st Schedule of the Electoral Act 2006, the lower court has the full powers to extend the time within which the Appellant may apply for the issuance of a pre-hearing notice which the lower court deliberately ignored.
Counsel submitted further that the practice direction 2007 was made pursuant to the Electoral Act 2007 and therefore inferior to it in the hierarchy of legislation. He cited YESUFU V. OBASANJO (2003) 16 NWLR (PT. 847) Page 554, also HARUNA V. MODIBBO supra at page 584 A-F.
He contended that the lower Tribunal hide under undue technicalities in order to defeat the Petition of the Appellant, and had no justification in adhering strictly to technicalities to defeat the end of Justice by dismissing the petition of the Appellant and gave him no opportunity whatsoever to ventilate his grievances.
Counsel for the 2nd – 11th Respondents adopted in its entirety the arguments canvassed by the 1st Respondent in her amended brief of argument, and therefore in dealing with the argument of the 1st Respondent on the only issue for determination, it is deemed to be for all the Respondents.
In his reply on the only issue for determination, Learned Senior Advocate for the 1st Respondent Submitted that the relevant statutory provisions for consideration are set out in Paragraph 3 (I), (3) and (4) of the Election Tribunal and Court Practice Direction 2007.
PARA 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, which ever is the case, the Petitioner shall apply for the issuance of pre-hearing notice as in Form 007.
PARA 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”.
Counsel then argued that from the 14th of June, 2007 when the Petitioner filed his reply to the 1st Respondent’s reply and the 25th of June 2007, when he applied for an extension of time to apply for the issuance of pre-hearing notice, was more than the statutory period of 7 days within which the petitioner/Appellant was to apply for the issuance of pre-hearing notice, and therefore his petition could indisputably be labeled abandoned.
He referred to CHIEF SARO MANSON & ORS V. HALLIBURTON ENERGY SERVICES NIGERIA LTD & ANOR. (2007) 2 NWLR (PT.1018) 211 at 234 Paragraph B – C where this Court gave a definition of the word “abandon” as;
“To abandon means to desert, surrender, forsake or cede. To relinquish or give up with the intent of never again resuming one’s right or interest. To give up absolutely, or forsake entirely”.
Counsel argued that the only option open to the lower tribunal was to dismiss the petition, which the Tribunal rightly did by its ruling on the 11th day of July 2007, as the tribunal couldn’t breath life into a dead petition. He contended that the argument of Appellant that the Practice Direction 2007, was subject to the provisions of the Electoral Act, 2006 with regard to the issue of extension of time was untenable. He cited the Case of LADIPO V. ODULOYE & ORS (2004) E.P.T. (VOL.I) Page 705 at 708.
He contended that the wordings of paragraph 3(4) are clear and unambiguous on the Sanction for disobeying the s aid paragraph 3(1), and that the Tribunal had a duty to give effect to that Sanction by dismissing the petition, and that the issue of substantial justice does not, and should not arise.
He Cited DADA V. DOSUNMU (2006) 18 NWLR (PT.1010) 134.
In resolving the only issue for determination as formulated by both parties, which as I observed earlier are the same, it must be borne in mind that Practice Directions must be obeyed to the peril of a party who ignores them. They are tools in enhancing compliance with the rules of Court not only to ensure speedy trial within a reasonable time, they must also be utilized by the courts to promote Substantial justice.
There is no doubt that between the 14th of June 2007, when the petitioner filed his reply to the 1st Respondent’s reply and the 25th of June 2007 when he applied for an extension of time to apply for the issuance of pre-hearing notice was more than 7 days as provided by paragraph 3(1) of the said Election Tribunal and Court Practice Direction 2007, it is my humble view that the Practice Direction is not Sacro Sant or independent, but an integral part of the Electoral Act 2006. It therefore follows that when ever a rule of law authorizes the President of the Court of Appeal of Nigeria to declare a Practice Direction, such Practice Direction shall be viewed, regarded or seen as part of the rules of court and are jointly applicable to the proceedings of court, and not seen as an Island on its own.
Practice Directions are therefore meant for attaining justice and where the fundamental objective of attaining justice will be defeated, the Court should lean on the side of doing justice. See UNIVERSITY OF LAGOS & ANOR. V. AIGORO (1984) 1 NWLR (PT.143) per OPUTA JSC.
“Rules of Court and Practice Direction are rules touching on the administration of justice, they are rules established for attaining justice with ease, certainty and dispatch, and as such, they must be understood as made Consistent with that fundamental Principal of Justice of deciding cases and appeals on their merit.
Consequently, in all Cases where a strict adherence to the rules would Clash with that fundamental principle, the Courts have invariably leaned heavily on the Side of doing justice.”
I therefore agree with the submission of learned Counsel for the Appellant that the Practice Direction 2007 was made pursuant to the Electoral Act 2006, and therefore comes after it in the hierarchy of legislation.
See HARUNA V. MODIBBO supra pages 487 – 584 A – F where this Court stated;
“The Power of the court of appeal to extend time for the filing of briefs in an election petition appeal is provided for by the Electoral Act 2002 and the court of appeal rules, 2002. If the Practice direction No.2 of 2003, an integral part of the court of appeal rules, 2002 is adjudged conflicting in the Sense that it disallows time to be extended for the filing of the briefs in such an appeal, the Provisions of the Electoral Act 2002 on the same issue would prevail over the rules of the Court by the doctrine of Convening the field, or hierarchy of legislation.”
It is true that the Practice Direction as argued by learned Senior Advocate for the 1st Respondent stated in very clear terms in paragraph 4 of the Practice Direction that when a petition is declared abandoned, that no application for extension of time shall be filed or entertained. If the lower tribunal had taken more pains in the search for justice, it would have leaned on the provisions of paragraph 43 of the 1st Schedule of the Electoral Act 2006.
PARA 43
(1) “The Tribunal or Court shall have power, subject to the provisions of Section 141 of this Act and Paragraph 14 of this schedule, to enlarge time for doing any act or taking any proceedings on such terms (if any) as the Justice of the Case may require, except otherwise provided by any other provision of this Schedule.
(2) An enlargement of time may be ordered although the application for the enlargement is not made until after the expiration of the time appointed or allowed … ”
The application of the above provisions of the Electoral Act 2006 is, in my humble view justice, and not just a reflection of justice, considering the pain, anguish, injustice, loss of life and finances occasioned by the level of electoral blunder we experience in our Society and Country.
In AJUDUA V. NWOGU (NO I) (2004) 16 NWLR (PT. 898) 56 at 75 IKONGHEH JCA Stated as follows:
“Unhappily one Cannot pretend to be unaware of the growing tendency in recent times among Judges who are Called upon to hear and determine Election matters to shy away from this sacred duty by hiding behind technicalities. The Nigerian Society is a very delicate one. There is, nobody can honestly dispute this, widespread discontent. In my view, the best panacea for Creating a peaceful and conducive atmosphere is to keep all avenues of ventilating grievances as wide open as possible. While we must work according to and within the provisions of the law and the rules, we must do all we can to avoid enthroning technicality above every thing else, especially, in Election Petition matters”.
Consequent upon the above, I am of the view that excessive weight was given to the provisions of paragraphs 3 (I), (3) and (4) of the Practice Direction 2007, and that substantial justice was sacrificed while technicality was enthroned and that the Appellant was not given the opportunity to ventilate his grievances. Accordingly I resolve the only issue for determination in favour of the appellant.
In the final result, and in view of the reasons given above, this appeal succeeds, and is hereby allowed. The Ruling of the lower Tribunal dismissing the Petition is hereby set aside. This appeal having succeeded, by the inherent Powers of this Court, and Powers Conferred by Order 4 Rule 4 of the Court of Appeal Rules, and Section 16 of the Court of Appeal Act 2002, it is hereby ordered that the appellant’s motion dated 25/6/07 for extension of time within which to apply for the issuance of pre-hearing notice is hereby Granted.
The Substantive Petition of the Appellant which was earlier dismissed is hereby restored. It is further ordered that the application dated 25th of June 2007 be deemed properly filed and Served.
This Petition is hereby Sent back to the lower Tribunal to comply with the above orders, and to commence Pre-hearing and hearing of the said petition.
I award Fifty Thousand Naira Costs to the Appellant.
Other Citations: (2008)LCN/2910(CA)
