Dr. Asogu Ohaka V. Mr. Chukwudi Mayor Eze & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
EJEMBI EKO, J.C.A.
This appeal is against the ruling on the 25th day of September, 2007 by the National Assembly Election Tribunal, Imo State (hereinafter called the Tribunal) holden at Owerri, Imo State. By the said ruling the Tribunal dismissed the petition filed before it by the Appellant.
The Appellant, as the petitioner, filed the said petition challenging the return of the 1st Respondent as the person duly elected to represent Orlu, Oru East and Orsu Federal Constituency in the Federal House of Representatives of the National Assembly during the election conducted by the 3rd -11th Respondents on 21st April, 2007. The 2nd Respondent is the political party that sponsored the 1st Respondent in the said election.
On the 21st May 2007 the Appellant, as the petitioner, filed his petition at the Tribunal. The 3rd – 11th Respondents were served the petition on 18th June, 2007. The petition was served on the 2nd Respondent on 2nd July, 2007 while the 1st Respondent was served on 10th July, 2007. By paragraph 12(1) of the 1st schedule to the Electoral Act, 2006.
The Respondent shall, within fourteen (14) days of entering appearance file in the Registry his reply-
The Respondent who does not enter appearance however, is given “not later than twenty one (21) days from the receipt of the election petition” to file his reply by dint of paragraph 10(2) of the 1st Schedule to the Electoral Act. Since it does appear that the 2nd Respondent did not file memorandum of appearance he, therefore, had 21 days from the receipt of the election petition to file his reply. By this computation the 2nd Respondent would have up to 23/7/2007 to file his reply.
The 3rd-11th Respondents filed their joint reply to the petition on 9/7/2007. The reply was served on the Petitioner/Appellant on 27/7/2007. Paragraph 16 (1) of the 1st schedule to the Electoral Act gives the Petitioner 5 days to file reply to the Respondent’s reply from the receipt of the Respondent’s reply.
The reply of the 1st Respondent was filed on 27/7/2007 was served on the Petitioner/Appellant on 14/8/2007. The 2nd Respondent as at 23/7/2007 the last date limited to him to file his reply, did not file any reply.
By virtue of paragraph 50 of the 1st Schedule to the Electoral Act the practice and procedure of the Tribunal, in relation to the election petition, shall be, as nearly as possible, similar to the practice and procedure of the Federal High court in its civil jurisdiction subject to such necessary modifications necessary to render them applicable. Pursuant to paragraph 50 of the 1st Schedule to the Electoral Act, 2006 and Section 285(3) of the 1999 Constitution the President of the Court of Appeal issued Election Tribunal and court Practice Directions, 2007 for use of Tribunals in election petitions. The Petitioner/Appellant in compliance with these Practice Directions, particularly paragraph 3 thereof, filed his application for issuance of hearing Notice for pre-hearing session on 27/7/2007. Shortly thereafter the 1st Respondent filed his reply to the petition on the same 27/7/2007.
In the meantime, pursuant to the Petitioner/Appellant’s application for issuance of pre-hearing notice the Tribunal issued the pre-hearing Notice on 7/8/2007 and the petition was set down for commencement of pre-hearing sessions on 15/8/2007. At the pre-hearing session the Tribunal suo motu raised the issue as to whether the petition was still competent having regard to paragraph 3 of the Election Tribunal and court Practice Directions, 2007. The parties, except the 2nd Respondent, through their respective Counsel submitted written addresses to articulate their positions on the matter. The Tribunal, in a considered ruling on 24th September, 2007 dismissed the petition for non-compliance with paragraph 3(1) of the Practice Directions holding that the non-compliance was an incurable fundamental vice. On 10th October, 2007 the Petitioner/Appellant, aggrieved by the ruling lodged this appeal. The Appellant canvassed 5 grounds of appeal; which are herein below reproduced without their particulars of error-
GROUND ONE
The learned trial Tribunal erred in law when they held that the Petitioner has abandoned his petition by reason of filing the application for issuance of hearing Notice for pre-hearing session even before he was served with the 1st Respondent’s reply.
GROUND TWO
The learned trial Tribunal erred in law when they held that the Tribunal was functus officio to enlarge or abridge the 7 days time limit for filing of the application for the issuance of hearing Notice for pre-hearing session of the petition.
GROUND THREE
The learned trial Tribunal erred in law when they suo motu raised the issue of competence of the application of the Petitioner for issuance of hearing Notice for pre-hearing session of the petition thereby descending into the arena of dispute by conducting the case of the Respondent particularly that of the 1st Respondent.
GROUND FOUR
The learned trial Tribunal erred in law when they held dismissing the entire petition for being incompetent by reason of failure of the Petitioner to comply with paragraph 3 of the Practice Directions, 2007.
GROUND FIVE
Ruling/Judgment is against the weight of evidence.
From these five grounds of appeal the Petitioner/Appeal distilled a single issue for determination in the Appellant’s Brief of Argument. That is:
Whether from the available documentary evidence the learned Justices of the Tribunal were right to have dismissed the petition of the Appellant holding that the Appellant abandoned his petition, hence the Tribunal was functus-officio, for filing his application for issuance of hearing Notice for pre-hearing session before the prescribed time, whereas it was actually filed the same day (27/7/2007) when the 1st Respondent filed his Respondent’s Reply to petition by virtue of the provisions of paragraph 3 of the Election Tribunal Practice Directions, 2007.
The 1st Respondent, on his part, contends that the lone issue calling for determination in this appeal is:-
Whether an application for the issuance of pre-hearing Notice made before the close of pleadings is competent?
The 3rd – 11th Respondents, on the other hand, posit that the lone issue for determination put more lucidly is:-
Whether the Honourable chairman and members of the National Assembly Election Tribunal, Imo State were justified when they dismissed the petition of the Appellant as an abandoned petition for non-compliance with the provisions of paragraph 3 of the Election Tribunal and Court Practice Directions, 2007.
E.O. Onyema Esq. of Counsel for the 3rd-11th Respondents had in the brief of 3rd-11th Respondents submitted, rightly in my view, that the sole issue for determination identified by the Appellant covers only the complaints raised in grounds 1, 4 and 5 of the Notice of Appeal and not the complaints in grounds 2 and 3 of the Notice of Appeal. I agree, as submitted by counsel for 3rd – 11th Respondents that it is trite that since no issues are formulated in respect of grounds 2 and 3 of the grounds of appeal the said grounds of appeal are deemed to have been abandoned: See NDIWE v. OKOCHA (1992) 7 NWLR (pt. 252) 129, ATOYEBI v. GOVERNOR OYO STATE (1994) 5 NWLR (pt. 344) 290. Grounds 2 and 3 of the grounds of appeal consequently deserve to be, and they are hereby, struck out.
The real issue in this appeal is the proper construction of paragraph 3 of the Election Tribunal and Court Practice Directions, 2007 against the background of the manner the Petitioner/Appellant filed the application for pre-hearing session Notice, Paragraph 3(1) of the Practice Directions provides:-
Within 7 days after 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.
It is not in dispute that the Petitioner/Appellant filed the application for pre-hearing session Notice on 27/7/2007. It is also not in dispute that this application was filed on the same day but just some moments before the 1st Respondent filed his Reply. The reply was not served on the Petitioner/Appellant until 1/8/2007. The reply of the 3rd-11th Respondents filed on 9/7/2007 was also served on the Petitioner/Appellant on 1/8/2007.
For the Petitioner/Appellant it was submitted that where Respondents are more than one the date of “filing and service” of the Reply law in time is the commencement point in time to reckon with in the computation of the 7 days period allowed by the Practice Directions, and that the two catchwords filing and service should be used and applied together and given holistic or community reading, interpretation and application. The cases of MAGAJI v. BALAT (2004) 8 NWLR (pt. 876) 449 at pp. 58 – 459 and NWOLE v. IWUAGU (2004) 15 NWLR (pt.895) 61 at 69 were cited. It was further submitted that the 1st Respondent’s Reply filed on 27/7/2007 was the last in time hence the computation of time runs from thence and that the Petitioner/Appellant’s session Notice filed on the pre-hearing was filed within time. Since the provisions of paragraph 3 (1) of the Practice Directions are plain, clear and unambiguous, it was further submitted for the Appellant that only a literal interpretation with resort to or importation of other extraneous provisions of the Electoral Act, such as paragraph 10 (1) of the 1st Schedule to the Electoral Act, applies. For this UNEGBU v. UNEGBU (2004) 11 NWLR (pt.884) 332 at pp 345 and 347 was cited. Finally, it was submitted for the Appellant that the law aids the vigilant, not chose who sleep.
The parties are in agreement that the Petitioner/Appellant filed his application for pre-hearing session Notice on 27/7/2007 before the 1st Respondent filed his Reply later that same day, and before the time permitted the 1st Respondent by paragraph 10 (2) of the 1st schedule to the Electoral Act, 2006, to file his reply. As I earlier pointed out the crux of the dispute is the interpretation of paragraph 3 (1) of the Practice Direction. Counsel for the Appellant and 1st Respondent are in agreement on the authority of NWOLE v. IWUAGWU (supra) that the operative words in paragraph 3 (1) of the Practice Directions are “filing and service”. It was further submitted for the 1st Respondent on authority of BULLEN AND LEAKE AND JACOB’S PRECEDENTS OF PLEADINGS, 12th Ed. at page 32 that pleadings are deemed closed after the filing of statement of defence or a reply and issues joined on the pleadings if no further reply is filed by the Petitioner. It was also further submitted for the 1st Respondent that the pre-hearing Notice made before the close of pleadings was incompetent, and that as at 15/8/2007 or 24/9/2007 there was no valid application before the Tribunal for issuance of pre – hearing notice. The effect of applying for pre-hearing notice before the close of pleadings, according to the 1st Respondent’s counsel is to shut out the 1st Respondent.
Concurring on this Counsel to 3rd – 11th Respondents submitted that no rule of Court procedure should be interpreted in a manner that will result in denying a party the constitutional right to fair hearing.
The point emphasized in the brief of 3rd-11th Respondents is that the power vested on the Tribunal by the Rules of Practice and Procedure to abridge or enlarge time within which to do an act can only be exercised by the Tribunal upon proper application made to the Tribunal by a party and not by a party himself, and that the process filed by a party which abridged the time of other parties is fundamentally defective and invalid. The point is well made. I agree entirely. See Order 23 Rule 2 of the Federal High Court civil Procedure Rules, 2005 read together with paragraph 43 of the 1st Schedule to the Electoral Act, 2006.
For the 2nd Respondent, C.U. Ekomaru, Esq. of Counsel, submitted that a party is not permitted in election petition to abridge or extend the time for doing an act; and that paragraph 3 (1) of the Practice Directions envisages that application for pre-hearing session Notice should be made within 7 days after close of pleadings and that such an application made before close of pleadings would cause hardship on the Respondents. Counsel filed list of additional authorities namely: OKEREKE v. YAR ADUA (2008) 12 NWLR (pt. 1100) 95 at pp. 95,118 and 129 and CALISTUS AZUDIBI v. INEC (unreported Appeal No. CA/PH/EPT/507/2007 of 14TH May, 2007) to buttress his contention that a pre-hearing session Notice filed pre-maturely is invalid in law.
The Tribunal at page 288 of the record of appeal found as a fact that the proof of service in its file shows that 1st Respondent’s as well as 3rd-11th Respondents’ replies were served on the Petitioner same day i.e. 14/8/2007″ The petitioner did not file reply to the Replies of the 1st and 3rd-11th Respondents served on him on 14/8/2007. The 2nd Respondent filed no reply. Since the Petitioner filed no reply to the Replies of the Respondents served on him on 14/8/2007 pleadings in the petition are deemed closed after the filing of the replies of the Respondents. See BULLEN AND LEAKE AND JACOB’S PRECEDENTS OF PLEADINGS, 12 Ed (supra). I agree, as submitted by Appellant’s Counsel, that where Respondents are more than one, as in the instant case, the date of “filing and service” of the last reply is the commencement point in time to reckon with in the computation of the 7 days period allowed by paragraph 3 (1) of the Practice Directions, for filing application for pre-hearing session Notice. I, however, part ways with the Counsel when he submitted that the date to reckon with is 27/7/2007 when the last reply was filed. The operative words or phrase in paragraph 3(1) of the Practice Directions are “filing and service”. Counsel wished away in this submission the words “and service”. The words “filing” and “service” are conjunctively linked. It is a settled principle of construction of statutory provisions that a statute must be read as a whole to get the correct meaning of a particular expression. See NWOLE v. IWUAGWU (supra) at page 85 D. accordingly, upon the holistic construction of paragraph 3 (1) of the Practice Direction the words “filing and service” must be read conjunctively. Accepting this approach as I do, the operative date from which the words “within – 7 days after the filing and service of the Respondent’s Reply” will be computed is the date the Replies of the 1st Respondent, and the 3rd – 11th Respondents were served on the Petitioner/Appellant. That is 1/8/2007 when the Reply of the 1st Respondent filed on 9/7/2007, and the Reply of 3rd-11th Respondents filed on 27/7/2007 were served on the Petitioner/Appellant. The 7 days the petitioner had within which to apply for pre-heating session notice began to run from after that date and not earlier. Filing the pre-hearing session Notice on 27/7/2007, earlier than is provided for by the Practice Directions before the close of pleadings not only abridged the time the Respondents had under the Practice Directions, it was prejudicial to their rights. Order 23 Rule 2 of the Federal High Court (Civil Procedure) Rules, 2000 applicable to the petition at the Tribunal clearly prohibits enlargement or abridgement of time by consent of the parties. The power to abridge or enlarge time for doing any act including filing of a process is vested exclusively on the Tribunal by paragraph 43 of the 1st Schedule to the Electoral Act.
I agree as submitted for the Respondents that the effect of applying for pre-hearing session Notice before the close of pleadings is to shut out the Respondents whose time was yet to effluxes. It is clearly that the duty of every court to protect the rights of the parties before it. That is why rules of courts must not be construed or interpreted in a manner that will result in denying a party the constitutional right to fair hearing. The process or application filed on 27/7/2007 by the Petitioner/Appellant for pre-hearing section notice was premature. It vested no legal right or obligation on the parties. It is incompetent. The Tribunal, in my view, was right in so holding and striking it out. This Court in AZUDIBIA v. INEC (unreported No. CA/PH/EPT/507 of 14/5/2008) had held that:-
A process filed prematurely is a mere piece of paper without any legal consequence. A condition precedent to the filing of an application for issuance of a pre-hearing Notice is that pleadings must have closed or are deemed to have closed. Until the happening of the condition precedent there can be no competent application for pre-hearing notice before the Tribunal.
Per K.M.O. Kekere-Ekun, JCA, agreeing with the lead judgment of Galadima, JCA.
The effect of an incompetent or invalid application for pre-hearing notice is that there is no application for pre-hearing notice in law. The further implication of this is that by virtue of paragraph 3 (4) of the Practice Directions the petition would be deemed to have been abandoned and liable to be dismissed. See AZUDIBIA v. INEC (supra) and OKEREKE v. YAR’ADUA (2008) 12 NWLR (pt. 1100) 95 at p.118 B-E where it was held by the Supreme court 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. The Appellant’s Counsel had submitted in the Appellants Reply Brief that the judgment of the Tribunal which dismissed the Appellant’s petition was on shere technicalities and that these days the Courts are no longer swayed by mere technicalities but lean towards striving to do substantial justice, and that the vogue these days is to hear election petition on their merit where such petition can be saved. The cases of BUHARI v. OBASANJO (2003) 13 NWLR (pt. 843) 236 at 246 and OBI-ODU v. DUKE (2005) All FWLR (pt. 250) 171 at 173 were cited.
The issue here goes beyond mere technicalities. It is a question of condition precedent for the Tribunal to exercise its jurisdiction. The statement of Muhammad JSC in OKEREKE v. YAR’ADUA (supra) at page 118 C – F provides answer for this. That is:-
Secondly, sub-paragraph 4 of paragraph 3 – makes it mandatory where neither the Petitioner nor the Respondent files an application for pre-hearing session, the Tribunal or Court is under a duty to dismiss the petition as abandoned. Tribunal or Court as such steps are 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 MADUKOLU 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:
- If it is properly constituted with respect to the number and qualification of its membership;
- The subject matter of the action is within its Jurisdiction;
- The action is initiated by due process of the law and:
- Any action (condition precedent) to the exercise of its Jurisdiction has been fulfilled.
Sentiments command no place in judicial deliberations. The rules of court are meant to be obeyed or observed by the parties coming before it for judicial deliberations. This is not a question of shere technicality. Rather, it is an issue of applying legal sanctions for an abandoned petition against the Petitioner in proceedings where time is of essence.
Paragraph 3 (4) and (5) of the Practice Directions contain very clear sanction Provisions. They state:-
- (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 and entertained.
(5) Dismissal of a petition pursuant to sub-paragraphs (3) and (4) above is final, and accordingly the Tribunal or Court shall be functus officio.
The appeal argued on the lone issue distilled from the grounds of appeal lacks substance, and it is hereby dismissed. The decision of the Tribunal dismissing the petition of the Appellant is hereby affirmed.
Costs assessed at N30, 000.00 are hereby awarded to each set of Respondents against the Appellant.
Other Citations: (2008)LCN/2986(CA)
