Olayinka Sogaolu V. INEC & Ors (2008)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A.
The appeal is against the decision of the National Assembly Election Tribunal, Abeokuta Ogun State, delivered on 21st August, 2007 and dismissed the appellant’s petition for non compliance of the Electoral Act 2006.
The brief facts of the petition at the lower Tribunal is that the 1st, 2nd, 4th – 44th respondents filed on 26-07-07 application on notice of an objection challenging the petition on the grounds of lack of jurisdiction and urged that the petition be dismissed or struck out. It was their contention that the petition is fundamentally defective in that it was not in compliance with the Electoral Act 1st schedule and Practice Directions 2007. During hearing of the application, the 3rd respondent verbally aligned himself with the 1st, 2nd, 4th-44th respondents application. In its decision, the Lower Tribunal upheld the said preliminary objection and declared that it had no jurisdiction to entertain the appellant’s petition since he had not applied for the issuance of pre-hearing Notice in Form TF007 within the time stipulated in the Electoral Act and Practice Direction. The Tribunal also found that the petition was not specifically signed personally or by his solicitor.
Dissatisfied with the decision the appellant has appealed to this court on 3 grounds of appeal from which he has formulated three issues for determination. They read as follows:-
ISSUE I
“Whether the Tribunal was right to have treated the petition as abandoned in accordance with paragraph 3 (4) of the Election Tribunal & Court Practice Direction, 2007 in the circumstance of this case. (Ground of Appeal No.3)
ISSUE II
Whether the Tribunal was justified in dismissing the petition for non-compliance with paragraph 4(3)(b) of the first Schedule to the Electoral Act 2006 and placing heavy reliance on Okafor v. Nweke (2007) ALL FWLR (Pt 368) 1066 when the said case differs significantly with the case of the appellant herein. (Ground of Appeal No.2) ,
ISSUE III
Whether haven taken fresh steps in the proceedings by virtue of paragraph 49 of the First Schedule to the Electoral Act, 2006, the 1st, 2nd, 4th-44th Respondents/Applicant are not stopped from raising objections to matter which they have impliedly waived. (Ground of Appeal No.1)”
On the part of the 3rd respondent he formulated similar issues for determination but in different words. They read thus:-
“(i) Whether the Honourable Tribunal was not right to have deemed the petition abandoned pursuant to paragraph 3(4) of the election Tribunal and Court Practice Directions, 2007 and in the face of noncompliance by the parties with the provisions of paragraph 3 (1) and (3) of the said Practice Directions.
(ii) Whether the Tribunal was not justified in dismissing the petition for non-compliance with paragraph 4(3)(b) of the First Schedule to the Electoral Act 2006 and the decision of the Supreme Court in the case of NWEKE (2007) ALL FWLR (PART 368) 1066.
(iii) Whether there was an implied waiver on the part of the Respondents by reason of any fresh steps taken in the proceedings by virtue of paragraph 49 of the 1st Schedule to the Electoral Act 2006 which rendered the application for dismissal belated and incompetent.”
At this stage, I have to point out that the 1st, 2nd, 4th-44th respondents who were the official Independent National Electoral Commission (INEC) officers who, actively participated and conducted the election on 14th April, 2007 were respondents at the Lower Tribunal. They were the applicants who raised the Notice of Preliminary objection and was sustained and hence the appeal. But to my utter surprise, the set of respondents have distanced themselves to this appeal. They deliberately refused to file their briefs of argument. Be that as it may, since INEC and its officers are party to the appeal, they will be bound by the decision in this matter.
When the appeal hearing was on, Learned Senior Advocate, Chief Roberts Clark for the appellant, informed the court that they would like to withdraw the name of 45th respondent (PDP) from the names of parties, Same was granted and struck out as prayed,
Appellant’s issue No.1 is similar to 3rd respondent’s issue No.3. The appellant is arguing that the two sets of respondents had much earlier, filed their respective replies on 21-6-2007 and 2-7- 2007 respectively before the Lower Tribunal adjourned the petition for hearing on 13-7-2007 and further adjourned severally up to 9- 8- 2007, That the 1st, 2nd, 4th-44th respondents filed on 26-07-2007 their motion for dismissal, but that before then, the appellant had moved an application for inspection of electoral materials which was granted by the Tribunal and that both sets of respondents actively participated and did not oppose the application for inspection. It is the contention of the appellant that, the respondent’s application to dismiss the petition was not lawful as it was not made within a reasonable time as stipulated in paragraphs 49 (2) and (5) of the 1st Schedule to Electoral act 2006. Appellant further submitted that having actively participated in the proceedings at the Tribunal, the respondents are deemed to have waived their right to object to the petition. Learned silk referred to the following cases:-
YUSUF v. AKINDIPE (2000) 8 NWLR (Pt.669). 376, 387: YUSUF v. OBASANJO (2003) 15 NWLR (Pt.843) 293, 308: ABUBAKAR v. INEC (2004) II NWLR (Pt.854) 207, 217: NGIGE V. OBI (2006) 14 NWLR (Pt.999) 1, 44; EZEKE v. DEDE (1999) 5 NWLR (Pt.601) 80, 83 and urged this court to hold that the respondents should not have been granted their application to set aside the petition since it was not made within a reasonable time after they had taken active steps in the proceedings and had therefore waived their right to complain. Learned Senior Advocate urged that the Issue be resolved in favour of the appellant.
On the part of the 3rd respondent, which is contained in his issue (iii), argued at pages 12-15 of his brief is that the application for the dismissal of the petition, was based on the incompetence of it by challenging the jurisdiction of the court or Tribunal. Learned counsel for the 3rd respondent submitted that it is trite law, that when an issue burders on jurisdiction of a Court or Tribunal as in the instant appeal, an objection challenging the jurisdiction can be brought at any stage. Counsel referred to the following cases:-
UNILORIN v. ADENIRAN (2007) 6 NWLR (Pt.1031) 521: MANAGEMENT ENTERPRISES LTD V. OTUNSANYA (1987) 2 NWLR (Pt.55) 179 EFFIONG V. IKPEME (1999) 6 NELR {Pt 606} 263, 272: BABA BICHI V. HALDU (2004) 1 EPR 604; NWOKE V. EBEOGU (1999) 6 NWLR (Pt.606) 247; EZEKE V. DEDE (supra)
Learned counsel for the 3rd respondent concluded their argument in this issue by submitting that proper trial was not commenced. Their objection was based on the competence of the petition and the jurisdictional power of the lower Tribunal. Counsel urged the court to resolve issue (iii) in their favour.
I have carefully perused the parties briefs of arguments including relevant court processes filed at the Lower Tribunal. After being served with the petition, both sets of respondents filed their respective replies within time. It is clear at page 139 of the record that the 3rd respondent had stated in his paragraph 1(a) of the reply as follows:-
“1. The 3rd respondent shall at the trial of the petition or on sooner determination thereof contend as follows:-
(a) That the entire petition as presently constituted is incompetent having regard to the provisions of the Electoral Act. 2006…”
The reply of the 1st, 2nd, 4th-44th reply at paragraph 24 page 75 of the record is similar to 3rd respondent’s reply. It reads:-
“24. The respondents shall contend at the trial of the petition or on sooner determination thereof that the petition as presented is incompetent as same has failed to comply with the provisions of the Electoral Act, 2006.”
In my considered view, in the Electoral Act, 2006, along with the Practice Direction, 2007, there are specific two stages in election petition proceedings. The first stage is the pre-trial. It gives the parties whether petitioner or respondent a directive to comply with Tribunal processes effectively before the second stage, which is trial proper see NWOKE V. EBEOGU (1999) 6 NWLR (PT 606) 247, 258.
It is therefore important that paragraphs 49 (2) and (5) are clear to the point. It is stated thus:-
“49 (2) An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”
(3) ……………………..
(4) ……………………..
(5) An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceedings of the objection if brought immediately the defect on the face of the election petition is noticed.”
In appellant’s brief in paragraph 4.6, appellant has conceded that the two sets of respondents had timeously raised an alarm in their reply in paragraphs 24 and 25 that they indicated they shall raise an objection to the petition for non-compliance. It is therefore not in dispute, that, the two sets of respondents, had intimated the appellant at the earliest opportunity, that they would challenge the competence of the petition. My findings in respondents’ replies stated above however, is not that it amounts to proper preliminary objection challenging the competence of the petition. Since the Tribunal was yet to start a proper hearing by taking evidence, it was proper and in accordance with Paragraph 49 (2) of 1st schedule to Electoral Act, 2006, as it was made within a reasonable time and the respondents had not taken any fresh step in the proper-hearing proceedings. Their motion on notice filed on 26-07-07, challenging the competence of the petition was in order to be heard and determined before any further steps in the proceedings. It was brought immediately the defect on the face of the election petition was noticed: EFFIONG VS. IKPEME (supra). It is trite law in civil matters as well as election petition matters that when an issue borders on the jurisdiction of the court or Tribunal as in the instant appeal, any application grounded on same can be brought at any stage, even on appeal: UNILORIN V. ADENIRAN (SUPRA).
The condition required in challenging the competence of an election petition is stated in paragraphs 49 (2) of the 1st Schedule to Electoral Act, 2006. The condition is “made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect”
In the instant appeal, the respondents in my considered view, did not jump the gun before the proper second-stage which is trial proper, when the first set of respondents (1st, 2nd, 4th-44th respondents) filed on 26-07-07 their motion or objection to the petition on grounds of no-compliance with the electoral act. The trial Tribunal therefore had not started proper hearing when the Tribunal heard and ruled on the application dismissing the petition.
I am of the considered view that, it is a misconception for the learned senior counsel for the appellant, who submitted that the respondents had waived their objection because they participated at the proceedings. Participation in inspection of election petition documents can never be regarded as proper hearing proceedings, but merely a pre-trial; moreover mere filing of replies to election petition is not hearing proper.
As submitted by learned counsel for 3rd respondent, once there is non compliance with the mandatory requirements in election petition as in the instant matter, no any party nor the Tribunal or this appellate court can waive or overlook the incompetence of the petition of which time is of the essence. In EFFIONG VS. IKPEME (SUPRA); and ONYEMA VS. OPUTA (1989) 1 NWLR (PT.98) 382 this court and the apex court have stated that the principle of waiver or acquiescence does not apply where there has been a fundamental failure to comply with the requirement of a statute as such is not a mere irregularity. In the instant appeal, there was no waiver raised or granted by the respondents.
I accept the submission of learned counsel for the 3rd respondent, that the application of 1st, 2nd, 4th-44th respondents’ motion filed on 26-07-07, was based on the incompetence of the petition which if sustained, the jurisdictional competence of the Tribunal to hear the petition had stopped. That was exactly what the lower Tribunal lawfully did by declaring that it had no jurisdiction to hear incompetent petition. In conclusion of appellant’s issue No. (1) which is in materia with the 3rd respondent’s third issue, I resolve that there was no waiver by the respondents and same is against the appellant.
In determining appellant’s issues (ii) and (iii) which are similar to 3rd respondents issues (i) and (ii), I deem it appropriate to consider them jointly and make my findings.
Appellant’s gravamen in issues (ii) and (iii) is that their inability in applying early for the issuance of Forms TF 007 and TF 008 in line with paragraphs 3 (1) of Practice Direction 2007 was not fatal to the petition as ruled by the tribunal; and that the Practice Direction is inferior to the Electoral Act, 2006; and that adherence to Practice Direction is crass technicality. Learned Senior Advocate for the appellant has submitted as per their paragraph 4.33 at page 10 of the brief that there is indeed a clash between paragraph 3 (4) of Election Tribunal and court Practice Directions 2007 and the combined provisions of paragraph 43 (1) – (6) of the 1st schedule to the Electoral Act & Order 23 of the Federal High Court (civil procedure) Rules 2000; and that the appellant has a right to take benefit of the provisions of paragraphs 43(1-7) of the same first schedule to the aforesaid Electoral Act and Orders 23 of the Federal High Court which was taken away by paragraphs 3 (4) of the Practice Direction, thus denying him the statutory rights to hear his petition. Another gravamen in issue (iii) is that in construing the provisions of paragraph 4 (3) (b) of 1st Schedule to Electoral Act, 2005, the lower Tribunal heavily relied on the Supreme Court decision in OKAFOR v. NWEKE (supra) which is not on all fours with the instant appeal. Counsel urged that the appellant’s solicitor, namely Adekunle Sulaiman ESQ. was written at the foot of the petition as the person who presented the petition and therefore argued that the appellant’s petition was dully signed by his solicitor. Appellant urged this court to resolve issues (ii} and (iii) in his favour.
The argument of 3rd respondent in his issues (i) and (ii) is that where words of a statute are clear and unambiguous, those words shall be so construed as to give effect to its ordinary or literal meaning as contained in Practice Direction paragraphs 3 (1) and 3 (4) and relied on the case of BERLIET(NIG) LTD VS. KACHALLA (1995) 9 NWLR (Pt.420) 478; EKEOGU VS. ALIRI (1991) 3 NWLR (Pt.179) 258. Counsel then submitted that the word “shall” in paragraphs 3 (i) and (4) is imperative, mandatory and directive, and that the appellant failed to apply for the issuance of Pre-hearing Notice as stipulated in the aforestated Practice Directions. Counsel further relied to OJUGBELE VS. LAMIDI (1999) 10 NWLR {pt 621} 167. 177; YUSUF VS. OBASANJO (2003) 16 NWLR (pt 847) 554. 603. Counsel further adopted their argument in their issue (iii) and the case of EFFIONG VS. IKPEME (supra) and contended that the competence of the Tribunal to adjudicate over the petition became a crucial issue when the due process before it did not conform with laid down due process. Learned Counsel further referred to the provisions in paragraph 4 (3) (b) of the First Schedule to Electoral Act that says election petition shall be signed by the petitioner or all petitioners or by the solicitor if any named at the foot of the election petition and then contended that in the instant petition, same was neither signed by the petitioner or solicitor, that it was rather signed by Adekunle Sulaiman & Co who is not a Legal Practitioner. Counsel urged the court to resolve issues (i) and (ii) in favour of the 3rd respondent.
In resolving appellant’s issue (ii) it is imperative to look at the provisions in Practice Direction No.1, 2007 as contained in paragraphs 3 (1) and (4) respectively. It provide as follows:-
“Paragraph 3 (1)
Within 7 days after the filing and service of the Petitioner’s reply on the respondents 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 in Form TF007.”
Paragraph 3 (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”
(underlined are mine)
Now, by the appellant’s concession that it is true he did not apply for issuance of pre-trial Notice Direction in paragraph 3 (1) (4), it is only necessary to see the consequences. In the first place, it is trite law that Practice Directions shall apply to Presidential, Governorship, National Assembly and States Assembly Election petitions. This position of law is interpreted by the Appeal Court when considering the power given by the Honourable President of the Court of Appeal under Section 185 (3) of the 1999 Constitution and also under paragraph 50 of the 1st Schedule to Electoral Act 2006. The apex Court in a unanimous decision has forcefully stated that “by virtue of the aforesaid constitution and 1st schedule to Electoral Act, Practice Directions were made in exercise of the powers conferred on the Honourable President of the Court of Appeal. The Practice Directions must from all intents and purposes be taken to form part and parcel of powers conferred on the Honourable President of the Court of Appeal by all the powers exercisable by him in that behalf, with a view to facilitating the Tribunal or the Court to dispose of electoral matters with the urgency they require.” See OKEREKE v. YAR’ADUA (2008) ALL FWLR (Pt 430) 626, 644 PARAGAPH G – H.
Now by virtue of the decision of the apex Court in OKEREKE v. YAR’ADUA (SUPRA) there is no clash between the paragraph 3 (4) of Election Tribunal and Court Practice Directions 2007 as argued by the learned Senior Advocate for the appellant. By the consequential orders made in the Election Tribunals and Court Practice Direction 2007, paragraph 3 thereof is mandatory that where neither the petitioner nor the two sets of respondents as in the instant appeal have failed to file for a pre-hearing session, the Tribunal was under a duty to dismiss the petition as abandoned and no application for extension of time to take that step could be filed or entertained. Such steps, that is, applications for Notice of Pre-hearing are conditions precedence to the hearing of any matter in relation to the petition.
In the instant appeal, noncompliance of paragraph 3 of the Practice Direction had ripped off the Lower Tribunal’s jurisdiction to hear the appellant’s petition. see OKEREKE VS. YAR’ADUA (SUPRA) AT PAGE 646 PARAGRAPHS B – D, In the instant appeal, the Lower Tribunal was in perfect order by refusing to have jurisdiction to hear appellant’s petition. It is trite law, that a Tribunal is said to be competent to determine election petition if the four conditions are intact;
- If it is properly constituted with respect to the number and qualification of its members.
- The petition or matter is within its jurisdiction
- The petition is instituted by due process of the law and electoral Act or law as the case maybe
- Any action condition precedence to the exercise of its jurisdiction has been fulfilled. see MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR (pt 4) 587; AJEIGBE VS. KUSIRIO (1965) NMLR 284, 287; SANDE VS. ABDULLAHI (1989) 4 WLR (Pt.116) 387.
Based on the above finding of the competence of the Lower Tribunal, the appellant has woefully failed the acid test in pre-condition (3) and (4) stated above. When the Electoral Act, 2006 is saying the petition was not initiated by due process, it means the conditions of compliance with Practice direction paragraphs 3 was not carried out by the appellant. Since the time allowed for application of Pre-Hearing Notice had elapsed, the petition was not initiated by due process to clothe the Tribunal its jurisdiction; and I so hold.
As to the last issue of initiation by due process,paragraph 4 (3) (b) of the 1st Schedule to Electoral Act is very clear and unambiguous. It states thus:
“4(3). The election petition shall further:
(a) …………………………………..
(b) be signed by the petitioner or all petitioners or by the solicitor, if any named at the foot of the election petition.”
(underlined is mine)
In appellant’s brief at paragraphs 4.46 on page 12 thereof learned Senior Counsel has not been frank when he referred to page 34 of the record where he stated that it was written at the foot of the petition the person who presented the petition as:-
“Adekunle Sulaiman EsQ
Whose address for service
within jurisdiction is;
No. 26, Iyalode Street,
Opposite Akin Olugbode Hospital
Owu Abeokuta, Ogun State.”
A legal practitioner in the Temple of Justice has the duty to tell the truth as the case may be. In the instant appeal at page 35 of the record at the foot of the petition, the person who signed as the solicitor for the petitioner Is clearly the signature of a non-existing petitioner or petitioners, not a legal practitioner or solicitor of the appellant. The so called signature is signed by a
“Adekunle Sulaiman & Co”
47, Abeokuta Express Way Sango Otta,
Ogun State.”
This is contrary to the assertion of the appellant that this petition was presented by “Adekunle Sulaiman Esq.
I am therefore of the considered finding that the appellant’s petition which was not dated, was also not signed by the petitioner/appellant or his solicitor. This is flagrant non-compliance of paragraph 4 (3) (b) of the First Schedule to Electoral Act 2006 which is mandatory and directive. This has rendered the Tribunal no jurisdiction to hear undated and unlawfully signed (sic) by an unknown solicitor. The appellant has woefully failed to satisfy the Tribunal and this court, that “Adekunle Sulaiman & Co” is a name on the Register of Roll of legal practitioners or solicitor. see the Supreme Court decision in OKAFOR VS. NWEKE (2007) ALL FWLR (pt.368) 1066. It is worthy to note that the Court of Appeal and all other Lower Courts are bound to follow and comply with decisions of the apex Court.
In the final analysis, the Tribunal was justified in dismissing the petition for non compliance with paragraph 4(3)(b) of the 1st schedule to Electoral Act, 2006 and It was right that it relied on OKAFOR v. NWEKE, (SUPRA). Appellant’s issue (ii) which is similar to 3rd respondents issue (ii) is hereby resolved in favour of the 3rd respondent.
I further declare that the Tribunal was right in dismissing the petition as abandoned in accordance with paragraph 3 (4) of the Election Tribunals & Court Practice Direction 2007.
The appeal is unmeritorious and is dismissed with costs of N30,000.00 in favour of the 3rd respondent only.
Other Citations: (2008)LCN/2939(CA)
