Garba Ado & Anor V. A. A. Sule Lokon Mekara & Ors (2008)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, J.C.A.
The 1st appellant, Garba Ado, was sponsored as a candidate by his party, the Democratic Peoples’ Party (DPP), the 2nd appellant, for the National Assembly Election, the Federal House of Representatives for the Gwale Federal Constituency, Kano State, conducted by the 3rd – 6th respondents on Saturday, the 21st day of April, 2007. At the conclusion of the said election, the 3rd – 6th respondents, declared and returned the 1st respondent as the successful candidate, the winner of the said election.
Aggrieved with the declaration and return of the 1st respondent, the 1st and 2nd appellants filed a petition No. EPT/KNS/HR/26/07 dated and filed on 19/5/07, containing eleven paragraphs contained at pages 2 – 8 of the record.
The main complaint of the appellants in their joint petition is that the 1st appellant/petitioner was validly nominated by the 2nd petitioner/appellant but was unlawfully excluded from the election. That the election was invalid by reason of non-compliance with the provisions of the Electoral Act. See paragraphs 6(a) and (b) of the petition. The appellants in effect by their joint petition challenged the declaration and return of the 1st respondent, as the winner of the said election.
On being served with the petition, the 1st respondent, entered a conditional appearance and filed his reply, but the 3rd – 6th respondents who were also served with the petition did not file their reply.
The appellants filed a reply to the 1st Respondent’s Reply filed and served on 26/6/2007. The appellants as the petitioners wrote a letter through their counsel dated 28/6/2007 to the Secretary of the Election Petition Tribunal, applying for a pre-hearing notice as in Form TF 007 purported to be pursuant to paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007 and subsequently filed a motion on notice dated 29/6/2007, when they did not receive any response to their application for the pre-hearing session. The letter and the motion on notice are contained at pages 116, 117 – 122 of the record of proceedings.
Following an inquiry by the appellants/petitioners’ counsel at the registry of the Tribunal, the secretary of the Tribunal, directed that a motion on notice be filed for the issuance and service of the pre-hearing notice as a result a motion on notice dated 18/7/07 was then filed on 23/7/2007, praying for the following orders:
“1. An order for the issuance and service of pre-hearing notice as in Form TF 007 accompanied by pre-hearing information sheet as in form TF 008 on all the parties to this petition.
- And any other order(s) as this Honourable Tribunal may deem fit to make in the circumstance.”
The said motion was slated for hearing on 3/8/2007. The motion was opposed by the 1st Respondent’s counsel when the said motion was moved by the learned counsel for the appellants/petitioners/applicants. The Tribunal dismissed the motion filed on 23/7/2007 as well as the petition.
The Election Petition Tribunal, Kano State in its ruling dated 8/8/2007 at pages 170 – 173 of its Ruling held at pages 172 – 173 of the record of proceedings as follows:
“We have carefully checked the records of the Tribunal especially the correspondence… It is true that an application was put in the registry of the Tribunal the letter was dated 28th June, 2007. However, we notified that such letter did not carry endorsement or acknowledgement evidencing when it was actually received at the registry of the Tribunal or when was assessment made on it and payment effected. We observed further that counsel go about filing processes with little regard to the dates processes are filed. We are of the view that date of filing process is very important especially for the purposes of computation of time. In the instant case absence of any material evidence suggesting when this letter was filed or received at the registry makes it very difficult for us to act upon it. The counsel is under an obligation to put in clear and unambiguous terms matters of importance of this nature. The affidavit and further affidavit filed all did not help matters as counsel simply stated that such letter was filed without reference to the date of the occurrence of that event. Accordingly we hold that such letter cannot be acted upon for the purpose of satisfying the requirement of the law.
Having held that, we are left with the present application i.e. application filed on 23rd July, 2007 for issuance of pre-hearing notice. It is crystal clear from the record of the tribunal that issues were joined on 26th June, 2007. Clearly the application was brought twenty-seven days 27th after close of pleading. The question now is can the period for filling of application for issuance of pre-hearing notice be extended? In order to determine this issue resort will have to be made to the relevant paragraph of the Practice Directions. The relevant paragraph in the circumstances is paragraph 3(1) and it provided thus:
“3(1) within 7 days after filing and service of Petitioners Reply on the Respondent of 7 days after the filling of the Respondents Reply, which ever is the case, the Petitioner shall apply for the issuance of Pre-Hearing Notice as in Form TF 007.”
Election petition by their very nature are sui generis and time is very much of essence. Even where the Petitioners contended that they were informed to come by motion on notice as regard filling the application on 17th July, 2097, they wasted 7 days before coming up with such an application on 28th June, 2007. We hold that the petitioners were indolent in filling this application.
Consequently upon the foregoing and in exercise of the provisions conferred upon this Tribunal under the Election Tribunal and Court Practice Directions 2007, this petition is hereby dismissed as an abandoned petition.”
Dissatisfied and aggrieved with the Ruling, the petitioners now appellants filed two Notices of appeal dated and filed on 24/8/2007 and the 2nd Notice dated and filed on 27/8/2007 respectively.
From the three grounds of appeal contained in the two notices of appeal, the following issues were formulated for determination in this appeal at page 6 of the appellants’ brief of argument as follows:
“1. Whether mere delivery of the application letter for issuance of Pre-hearing notice dated 28th June 2007 to the Secretary of the Tribunal without endorsement of the date of receipt of the letter is fatal to the petition?
This issue is culled from Ground ii of the Notice of Appeal, filed on 27/8/07 and Ground I of the Notice of Appeal filed on 24/8/07.
- Whether the Petitioners were indolent in filing the Motion on Notice for issuance of pre-hearing Notice?
This issue is culled from Grounds iii and iv of the Notice of Appeal filed on 27/8/07 and Ground 2 of the Notice of Appeal filed on 24/8/07.
- Whether the petition was abandoned and or ought to be dismissed?
This issue is culled from Grounds i and v of the Notice of Appeal dated and filed on 27/8/07.”
On the other hand, the 1st respondent formulated two issues at page 3 of the 1st respondent’s brief as follows:
“(a) Whether the Appellants petition before the lower court was abandoned by them as a result of their being indolent?
(b) Whether the Appellant’s counsel letter of 28th June, 2007 was competent application within the meaning of the practice Directions.”
The 3rd – 6th respondents also in their brief of argument distilled two issues for determination as follows:
“(1) Was the Tribunal wrong in ruling that the appellant’s Petition was abandoned for failure to comply with the provisions of Paragraph 3(1) of the Practice Directions 2007.
(2) Did the Appellant letter to the Tribunal requesting for the issuance of Pre-Hearing Notice satisfied or in compliance with the provisions of the Practice Directions 2007.”
Having examined the issues formulated by the parties in this appeal, I am of the view that some of the issues formulated are either academic or did not arise at all in the ruling appealed against.
It however appears to me that the two issues distilled by the 3rd – 6th respondents are more appropriate and sufficient for the determination of this appeal. I therefore adopt the said issues for the determination of this appeal.
Having adopted the issues distilled by the 3rd – 6th respondents, I intend to confine myself to the submissions of all the counsel relevant to the issues only in the determination of this appeal.
The learned counsel for the appellants, N. Jimoh, Esq, in his argument on the adopted issue referred to paragraph 3(1) – (4) of the Election Tribunal and Court Practice Directions, 2007 which he reproduced in full in the appellants’ brief. He pointed put that paragraph 3(1) provides for the duty and obligation of the Petitioners in respect of the application for the issuance of Pre-hearing Notice while paragraph 3(3) provides for the duty and obligations of the respondent or respondents where the petitioners failed to comply with the provisions of paragraph 3(1) of the practice Directions.
It is submitted that the Tribunal’s duty or right to dismiss the petition is as provided in paragraph 3(4) pf the Practice Directions. According to the learned counsel for the appellants, the appellants as petitioners have brought the right application but the respondent did not bring any application at all. He contended that the petition was neither abandoned nor listed for dismissal, hence the petition was a life and valid.
Furthermore, learned counsel for the appellants contended that the Tribunal was wrong to have treated a life petition abandoned even though the appellants as petitioners showed keen and active interest in the hearing of the petition placing reliance on YUSUF V. OBASANJO 18 NSCQR 477/526 – 527. It is argued that there is no application before the Tribunal to dismiss the petition and no feature exists that renders the petition as abandoned. According to the learned counsel for the appellants there is no basis for the dismissal of the petition when the motion on notice under consideration was only for the issuance of re-hearing notice.
In conclusion, learned counsel for the appellants urged the court to allow the appeal and set aside the order of dismissal of the petition so that the petition can be heard on its merit.
The 1st respondent, commenced his response on the adopted issues by giving the background facts leading to this appeal as follows: The appellants filed their petition on the 19/5/2007 and same Jas served on the 1st respondent on 25/5/2007, the 2nd respondent was served with the petition on 28/5/2007 while the 3rd – 6th respondents were served on 22/5/07. The 1st respondent filed and served his memorandum of appearance on 31/5/07, while the 3rd – 6th respondents filed theirs on 28/5/07. The 1st respondent filed his reply to the petition on 13/6/2007 served on the appellants, same date that is on 13/6/07.
On 20th June, 2007, the appellants’ filed their reply to the 1st respondent’s reply and same was served on the 1st respondent on the 26th day of June, 2007. Other respondents were equally served with the appellant’s reply to the 1st respondent’s reply.
As none of the other respondents other than the 1st respondent filed and served a reply, the appellants have from the 26th of June, 2007 to the 3rd day of July, 2007, to apply for the issuance of the pre-hearing notice as stipulated by the provisions of paragraph 3(1) of the Court Practice Directions, 2007. According to the 1st respondent, the appellants purported through their counsel’s letter dated 28/6/2007 to have applied for the issuance of the pre-hearing notice. It is contended by the learned counsel for the 1st respondent, Salisu Sule, Esq, that the said application as contained in the letter dated 28/6/2007 is incompetent as it did fulfill the requirements of the Provisions of paragraph 6(2) of the Practice Directions and reproduced the said provisions of Rule 6(2) and (3) of the Election Tribunal and Court Practice Directions, 2007 reproduced in the 1st respondent’s brief. He pointed out that it is clear from the record that the appellants did not utilize the period provided to them by the Practice Directions. That the letter dated 28/6/2007, is clearly incompetent and not in compliance with the practice Directions, hence the petition is abandoned.
Relying on the authority of JIMO OJUGBELE V. MUSEMILU LAMIDI & ORS (1999) 10 NWLR (PT.621) 117 at 177 to the effect that the Practice Directions of the Court of Appeal, as a rule of court must be complied with and not to be circumvented and no favour should be shown for not obeying lame. See BARRISTER L.O. LADIPO V. HON. B. ODUYOYE & ORS. (2004) 1 E.P.R. 705 at 708, HON. PRINCE CHINEDU EMEKA V. CHIEF (MRS) JOY EMORDI & ORS. (2004) 16 NWLR (PT.900) 433 at 450.
He placed reliance on the case of UNIVERSITY OF IBADAN V. ADAMOLEKUN (1967) 1 ALL NLR 213, and submitted that the rule of interpretation to be applied to the provisions of paragraphs 3(1) – 3(4) of the Practice Directions should be in accordance with the ordinary or literal rules of construction of the statutes which the Tribunal applied in dismissing the petition and urged the Court to dismiss the appeal and affirm the Ruling of the Election Petition Tribunal.
On the part of the 3rd – 6th respondents, it is submitted in the 3rd – 6th respondents’ brief by the learned counsel for the 3rd – 6th respondents, Basil O. Okafor, Esq that the Tribunal was right in holding that the appellants have abandoned their petition and in dismissing same, because the appellants neither prosecuted their case with due diligence nor treated it as an election petition which needed to be treated seriously and timorously. He also narrated the background facts of the petition leading to this appeal at pages 2 – 3 of the 3rd – 6th respondents’ brief, similar to the facts narrated by the 1st respondent in the 1st respondent’ brief. Learned counsel for the 3rd – 6th respondents contended that the letter dated the 28/6/2607 to the Tribunal, requesting for the issuance of b pre-hearing notice did not satisfy the requirements of the provisions of the Practice Directions as the application contained in the said letter is incompetent and referred to Rule 6(2) of the practice Directions, 2007 which he reproduced in the 3rd – 6th respondents’ brief. Reference was made to the cases of JIMO OJUGBELE V. MUSEMILU LAMIDI & ORS (1999) 10 NWLR (PT.621) 117 at 177 and HON. PRINCE CHINEDU EMEKA V. CHIEF (MRS) JOY EMORDI & ORS. (2004)16 NWLR (PT.900) 433 at 450 by the learned counsel for the 3rd – 6th respondents who submitted that the Tribunal, going by the said provisions of the Practice Directions and the authorities cited, was right in treating the appellants’ petition as abandoned and in dismissing it. He urged the Court to hold that the letter dated 28/6/2007, did not satisfy the requirements of the Practice Directions.
In conclusion, learned counsel for the 3rd – 6th respondents urged the court to dismiss the appeal and affirm the decision of the Tribunal.
In my view, the main issue, in fact, the only issue to be determined in this appeal relates to the interpretation of the provisions of paragraphs 3(1) – (4) or the Practice Directions, 2007 dated 13/7/2007 which provides as follows:
“3(1) Within 7 days after the filing and service of the Petitioner’s Reply on the Respondent, or 7 days after the filling and service of the Respondent’s Reply, whichever is the case, the Petitioner shall apply or the issuance of pre-hearing notice as in Form TF 007.
(2) Upon application by a petitioner under sub-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:
(3) The Respondent may bring the application in accordance with subparagraph (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 entertained.”
It is contended by the learned counsel for the appellants that the letter he wrote to the Secretary of the Tribunal dated the 28th day of June, 2007, an application in respect of the pre-hearing notice has substantially complied with the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007, while the two sets of the respondents hold a contrary view and argued that the letter is incompetent and not in compliance with provisions of Paragraph 3(1) of the Election Tribunal and Court Practice Directions 2007.
Assuming, for the sake of argument that the said letter is in compliance with the Election Tribunal and Court Practice Directions 2007, how can the period of the filing of the said letter to be computed as it does not carry any endorsement, assessment and payment of filing fees? I am in full agreement with both the two sets of the respondents as well as the Tribunal that the said letter which bears no endorsement and evidence of payment of filing fees cannot be regarded to be an application for pre-hearing notice as in Form TF 007 specified in paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007.
It is trite that a court is entitled to look at its own record and proceedings on any matter and take notice of their contents although they may not be formally brought before the court by the parties. See ONWUKA V. OWOLEWA (2001) 7 NWLR (PT.713) 695 at 714. Relying on the just cited authority the Tribunal has the right and is entitled to proceed and determine the petition by its ruling dated 8/8/07.
It was held in N. A. WILLIAMS & ORS. V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 S.C. 145 at 152 – 153 that Rules of court are meant prima facie to be obeyed and no favours should be shown for not obeying same. It is clear from the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007 that the provisions of paragraph 3(1) must be complied with and cannot be circumvented. See TEJUOSO V. OMOJOWOGBE (1998)7 NWLR (PT.559) 628 at 634. It is no doubt patent that the decision of the Election Tribunal contained in its ruling dated the 8/8/07 and its rejection of the letter dated 28/6/07 is an exercise of the discretionary power of the Tribunal and that it settled law that it is a jurisdiction which is vested in the Election Tribunal. It must be borne in mind that in this regard, care must be taken not to attempt to substitute any discretion for the discretion of the Election Petition Tribunal.
The true principle is that, for an appellate court to interfere with the exercise of the discretionary power vested in the court below, it must be shown how that power was wrongly exercised to justify the intervention of the appellate court. See ALSTHON S. A. V. SARKI (2005) 3 1WLR (Pt.911) 208 at 224 – 225, CEEKAY TRADERS LTD V. GEN. MOTORS CO. LTD (1992) 2 NWLR (PT.222) 132 and RASAKI A. SALU V. MADAM TOWURO EGEIBON (1994) 6 NWLR (PT.348) 23.
In my opinion, it is crystal clear that the appellants in this appeal for reasons best known to them failed or neglected to comply with the provisions of paragraph 3(1) of the Election Petition Tribunal and Court Practice Directions, 2007 and since the application of the said provisions cannot be circumvented, there is nothing left as the Tribunal has no other option than to dismiss the petition in accordance with the provisions of paragraph 3(4) of the Election Tribunal and Court Practice Directions 2007.
In the result, I hold that the appeal lacks merit and is hereby dismissed. The ruling of the Kano State Election Petition Tribunal in petition No. EPT/KNS/HR/26/2007 delivered on the 8/8/2007 is hereby affirmed by me.
I award costs assessed at N10, 000.00 to the 1st respondent.
Other Citations: (2008)LCN/2706(CA)
