Peter Onyekewen Ikem & Anor V. Patrick Aisowieren & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
SAKA ADEYEMI IBIYEYE, OFR, J.C.A.
This is an appeal against the majority ruling of the National Assembly, Governorship and State House of Assembly Election Petition Tribunal-sitting-in-Benin City, delivered on the 14th day of August 2007 in respect of the election into Orhiomwon East Constituency of Edo State House of Assembly wherein the Tribunal struck out the petitioners’ application for extension of time for the issuance of pre- hearing notice.
Brief antecedents of the ruling in point are that the 1st appellant was a candidate sponsored by the 2nd appellant to contest a seat into the Orhionmwon East Constituency of Edo State House of Assembly. The 2nd respondent also sponsored the 1st respondent to contest for the same seat at an election which took place on the 14th day of April, 2007.
At the close of the election the 3rd to the 5th respondents returned the 1st respondent as the candidate who won the election. The 1st and 2nd appellants were aggrieved by that decision and filed a petition to the said Tribunal on 14th May, 2007 challenging the election and return of the 1st respondent. The 1st and 2nd respondents filed their joint reply on 19th June, 2007 while the 3rd to the 5th respondents equally filed their joint reply on 18th June, 2007. The replies filed on behalf of the respondents by their respective counsel were served on the appellants’ counsel on 28th June, 2007.
On the 24th July, 2007 when the petition came up for pre-trial hearing, the learned Chairman of the Tribunal suo motu raised the issue of whether or not the applications for issuance of pre-hearing notices were filed within time and he directed the learned counsel for the parties to file written addresses on the propriety of the learned petitioner’s counsel applying for pre-trial information notice outside the 7 days provided by paragraph 3(1) of the Election Tribunal and Court Practice Directions 2007. The learned counsel for the parties filed their written addresses at the instance of the learned Chairman of the Tribunal. The Tribunal reserved the ruling to 13th August, 2007. Before that date, the appellants filed a motion extension of time to file the appellants/applicants’ application for pre-trial notice. The ruling could not be delivered on 13th August, 2007 but on 14th August, 2007.
The Tribunal, in its majority ruling held, inter alia, at the ultimate paragraph of page 221 and page 222 as follows:
“There has been non-compliance with paragraph 3(1) of the Practice Directions 2007 by the petitioners. The rules made to guide the proceedings in an election petition include the Practice Directions 2007 and they are meant to be obeyed. The consequence of not obeying paragraph 3(1) of the Practice Directions is a dismissal of the petition under paragraph 3(4). The wordings (sic) of paragraph 3(4) are clear and unambiguous on the sanction for disobeying paragraph 3(1) and the Tribunal has a duty to give effect to that sanction. See DADA v. DOSUNMU (2006) 18 NWLR (Pt.1010) 134 for the proposition that a party who fails to comply with the Rules of Court has himself to blame and that where a rule of Court has clearly or unambiguously provided for a particular act or situation, the Courts have a duty to enforce the act or situation and the issue of substantial justice does not and should not arise.
For the above reasons, we discountenance the petitioners’ application for the issuance of pre-hearing notice filed on 13th July, 2007 for having been filed out of time and dismiss the petition.
By this ruling the petitioners’ application for extension of time to apply for pre-hearing notice now pending before the Tribunal is struck out.”
The appellants were particularly vexed by the ruling of the trial Tribunal and filed a Notice of Appeal on three grounds in this Court.
In strict compliance with the Rules of this Court the parties filed and exchanged their briefs of argument. Subsequently, the 1st and 2nd respondents amended their joint brief of argument to which the appellants filed an amended appellants’ reply brief of argument. The appellants equally filed the joint reply brief to the 3rd to 5th respondents’ brief of argument.
In the appellants’ brief of argument dated and filed on 28th September, 2007, the following three issues were identified for the determination of this appeal:
“1. Whether having regard to the provisions of paragraph 43 of the 1st Schedule of the Electoral Act, 2006 (sic) and order 23 rule 3 of the Federal High Court (Civil Procedure) Rules 2000, the Tribunal is not empowered despite the strictures of paragraph 3(4) of the Practice Directions to extend time within which a party may apply for the issuance of pre-hearing notice after the time provided in paragraph 3(1) of the Practice Directions 2007 had expired.
- Whether the Tribunal was right in striking out the petitioners/appellants’ application for extension of time to apply for issuance of pre-hearing notice which was pending before the Court without hearing the counsel to the parties who were present and in Court.
- Whether the Tribunal was right in opting to dismiss the petition when faced with an option of allowing for regularization of a lapse.”
The 1st and 2nd respondents in their joint amended brief of argument dated and filed on the 8th October, 2007 but deemed properly filed on the 29th of April, 2008 raised the following two issues for the determination of the instant appeal:
“(i) Whether the Tribunal was right in dismissing the appellants’ petition for non-compliance with the Tribunal’s Practice Directions, 2007.
(ii) Whether the motion filed by the appellants for extension of time to take a step in the petition before the Tribunal was competent after argument on the consequences of the failure to take that steps had been adjourned for ruling.”
The 3rd to the 5th respondents in similar mind to the other parties in this appeal adumbrated the following three issues in their joint brief of argument dated and filed on the 8th day of October, 2007:
“1. Whether having regard to the clear and unambiguous provisions of paragraph 3(4) of the Practice Directions2007, the Tribunal can extend time to file application for the issuance of pre-hearing notice.
- Whether in view of the provisions of paragraph 3(4) of the Practice Directions 2007, the Tribunal was not right in striking out the appellants’ application for extension of time to apply for issuance of prehearing notice filed on 8th of August, 2007.
- Whether the Tribunal was not right in dismissing the appellants’ petition in the circumstance.”
I have incisively considered the three sets of issues raised by the three parties in this appeal for the determination of this appeal and I found that they are strikingly similar to each other but for some slant in the wording. In view of this observation, I shall make use of the issues identified in the appellants’ brief of argument.
I also observed at page 4 of the amended brief of argument of the 1st and 2nd respondents, that the said respondents inserted, arguments on a notice of preliminary objection which had earlier on been dated and filed on 22nd April, 2008 in pursuance of Order 10 of the Court of Appeal Rules, 2007.
The said notice, in essence, reads:
” ….. that 1st and 2nd respondents herein named intend at the hearing of this appeal to rely upon the following preliminary objection notice whereof is hereby given to you.
AND TAKE NOTICE that the grounds of the said objection are, inter alia (mine) as follows:
- That the Notice of Appeal and the Grounds of Appeal of the appellants are incompetent.
- That pursuant to section 246(1)(b)(ii) of the Constitution of the Federal Republic of Nigeria, 1999:
An appeal to the Court of Appeal shall lie as of right from decisions whether:
(1) Any person has been validly elected as a member of the National Assembly or a House of Assembly of a State under the Constitution.
- That the decision appealed against did not determine the petition on the merit in that it did not decide one way or the other whether the 1st appellant was validly elected.
- That section 246(1)(b)(i) of the Constitution only provides for a right of appeal as of right when a decision finally disposes of a petition on the merits.
…………………”
A preliminary objection at the hearing of an appeal as the name readily suggests is an opposition to the hearing of an appeal that should be raised timeously and at the beginning of the hearing of the appeal by the learned respondents’ counsel before the learned counsel for the appellants’ opens his oral submissions on behalf of his clients. The purpose of a preliminary objection is, if successful, to terminate the hearing of the appeal in limine either partially or in toto. This purpose will, however, be defeated if the objection is not taken promptly as a preliminary objection. Although the preliminary objection may not be shut out as a result of its belatedness in being moved by the respondent’s learned counsel, its sting to neutralize the entire appeal or part thereof may to that extent be whittled down. The Court may, however, direct that the preliminary objection be taken together with the respondents submissions so that the appellant’s learned counsel would thereafter have the opportunity to respond to the objection in the reply, if any to the respondent’s main submissions. See NDIGWE V. NWUDE (1999) 11 NWLR (PT.626) 314 at 331.
It is instructive to note that an appellate Court, as in the instant case, is duty bound to first consider a preliminary objection raised during an appeal. It is a cardinal principle of administration of justice to let a party know the fate of his application whether properly or improperly brought before the Court. It would amount to unfair hearing to ignore an objection raised by a party or his counsel. It matters less if the objection appears frivolous. See NWANWATA V. ESUMEI (1998) 8 NWLR (PT. 563) 650 at 666; TAMBCO LEATHER WORKS LTD. V. ABBEY (1998) 12 NWLR (PT.579) 548 at 554/555.
It is in keeping with the foregoing-principles-that,-Chief I. E. Imadegbelo, the learned senior counsel for the 1st and 2nd respondents urged this Court and I saw reason with him to allow him to make submissions on the preliminary objection before the hearing of the submissions of the learned counsel for the appellants in respect of the instant appeal.
The learned senior counsel for the 1st and 2nd respondents reiterated the notice and grounds of the preliminary objection and referred to Section 246(1 (b)(i) of the 1999 Constitution on appeal as of right from particularly the decisions of the National Assembly Elections and Governorship and Legislative Houses Election Tribunals as to whether any person has been validly elected as a member of the House of Assembly of a State under the Constitution (that is to say, 1999 Constitution). He submitted that the following two conditions of Section 246(1)(b) of the 1999 Constitution must be satisfied: Thus, (i) there must be a decision and (ii) such decision must be related to any question or questions as to whether any person has been validly elected as a member of the National Assembly or House of Assembly. He contended that the two conditions set out (supra) must co-exist.
He went on to submit that the ruling of the Tribunal dated 14th August, 2007 dismissing the petition of the appellants did not determine whether any person has been validly elected as a member of the Edo State House of Assembly or not. He elaborated that the question of the validity of the election of Mr. Patrick Aisowieren was not resolved in the ruling of 14th August, 2007 as it only determined the issue of non-compliance with the provisions of the Election Tribunal and Court Practice Directions 2007. He referred thus and relied on the case of OKOKHUE V. OBADAN (1989) 5 NWLR (PT.120) at page 185 where Ogundare, JCA (of blessed memory) had the opportunity to interprete and distinguish the phrase “a decision on an election petition” from “a decision in an election petition” when interpreting Section 36 of Decree No. 37 of 1987 which is in pari materia to Section 246(1)(b) of the 1999 Constitution. He argued that the decision of the Tribunal dated 14th August, 2007 was a decision made in the course of the election proceedings in the petition of the appellants. Learned senior counsel for the 1st and 2nd respondents also referred to the case of OKON V. BOB (2004) 1 NWLR (PT. 854) 378 at 396 where it was held, inter alia, that Section 246(1) of the 1999 Constitution regulates the right to appeal to the Court of Appeal from election Tribunal since the decision did not decide whether any person was validly elected or not but merely a decision made within the election petition proceedings which cannot be appealed against without leave of Court and relied on the unreported case of HOPE DEMOCRATIC PARTY V. INDEPENDENT NATIONAL ELECTORAL COMMISSION Appeal No. CA/PH/EPT/9/2008 delivered on 14th April, 2008. The learned counsel for the 1st and 2nd respondents therefore urged the Court to dismiss the appellants’ appeal as being incompetent as it is in breach of section 246(1)(b)(i) of the 1999 Constitution.
In response to the submissions on the preliminary objection raised by the learned senior counsel for the 1st and 2nd respondents, the learned counsel for the appellants, Dr. O. O. Obayuwanor, contended that the preliminary objection of the 1st and 2nd respondents is frivolous and calculated to deny the appellants the right to seek justice before this Court. He submitted that the decision being appealed against by which the Tribunal dismissed the appellants’ petition put an end to the said petition over the question as to whether the 1st respondent was validly elected as a member of Edo State House of Assembly or not. He contended that it was a final decision because the petition dismissed was a challenge to the validity of the election of the 1st respondent of which the dismissal order left nothing else before the Tribunal to decide on and by necessary implication, the election of the 1st respondent was upheld. He argued that this decision would remain in this position in the Tribunal with the effect that it denies the appellants the opportunity of seeking justice.
The learned counsel for the appellants proffered the following reasons for urging the Court to hold that the appellants have a right of appeal;
(a) the appeal is final decision of the trial Tribunal of the petition in issue
(b) the grounds of appeal of the appellants are purely on ground of law.
He submitted that the combination of the two reasons (supra) gives the appellants the opportunity to appeal as of right to this Court and relied on Section 241 (1) (a) and (b) of the 1999 Constitution which relates to civil appeals from the lower superior Courts of record and particularly the Election Tribunal. He argued that this Court is not limited to the provision of Section 246 (1) (b) of the 1999 Constitution to entertain this appeal as recourse can be had to other relevant general provisions of the said Constitution to do justice where it appears that there is no sufficient specific provisions made by the law to aid the administration of justice in specific situations and he specially relied on the Supreme Court case of ENGINEERING ENTERPRISES CONTRACTOR COMPANY OR NIGERIA LTD. V. ATTORNEY GENERAL KADUNA STATE (1987) INSCC 601 at 613 where ESO JSC held, inter alia,
I hold the view that this is a good sign for the administration of justice in this country, it is the clear unadulterated water filled with great concern for the justice of the case. The signs are now clear that the time has arrived that the concern for justice must be the overriding force and actions of the Court.
The learned counsel for the appellants submitted that the provisions of Section 246( 1) (b) of the 1999 Constitution do not preclude this Court from hearing this appeal. The interpretation given to this section which the learned senior counsel for the 1st and 2nd respondents relied upon is sourced from the case of OKOKHUE V. OBADAN (supra). He therefore submitted that the case of OKOKHUE V. OBADAN (supra) is not relevant to the instant case.
In reaction to the contention of the learned senior counsel for the 1st and 2nd respondents that the appeal is interlocutory in nature and as such this Court cannot entertain it without leave having been sought and obtained, the learned counsel for the appellants submitted that Section 246 of the 1999 Constitution does not make any provision for leave to appeal in an election matter and that the only provisions on leave to appeal in any civil appeal is that contained in Section 242 of the said Constitution.
Learned counsel for the appellants contended that the nature of the instant appeal is such that does not require the leave of the Tribunal or this Court before it can be brought because:
(i) the grounds of appeal are all grounds of law and
(ii) the appeal was filed within 14 days of the decision complained about as required by Section 24(2)(a) of the Court of Appeal Act 2004 as well as 21 days of the decision as prescribed by paragraph 1 of the Practice Directions No.2, 2007.
He submitted that when an interlocutory appeal in any civil appeal raises issue of law alone leave is not required to filed such an appeal as the appeal is as of right and that this Court has unfettered power to entertain it.
The learned counsel for the appellants, apparently got solace from the decision of this Court in the case of OSUNBOR V. OSHIOMHOLE (2007) 18 NWLR (PT. 1065) 32 where at page 40, Ibiyeye, J.C.A. in an attempt not to stifle the administration of justice held, inter alia; “Paragraph 10 of the Practice Directions NO.2 of 2007 particularly and pertinently provides:
- An interlocutory appeal shall not operate as a stay of proceedings nor form a ground for stay of proceedings before a Tribunal.
The purport of the above provisions is to engender speed in the consideration of any election matters. It is pertinent to observe that paragraph 10 of the Practice Directions (No.2) 2007 does not in any way prevent the Court of Appeal from dealing with any interlocutory appeal…”
The learned counsel posited whether it will be justice for the appellants to be shut out from approaching this Court to have their cause heard on the ground canvassed that Section 246(1)(b)(i) of the 1999 Constitution does not provide for interlocutory appeal but on the merits of the petition. He went on to submit that the decision of the Tribunal dismissing the appellants’ petition on technical ground cannot be justice. He urged the Court to dismiss the preliminary objection.
The learned counsel for the 3rd to the 5th respondents, K. O. Obamugie Esq., who did not associate the 3rd to the 5th respondents to the notice of preliminary objection did not proffer any submissions at all on it.
I have carefully considered the submissions of the learned counsel for the 1st and 2nd respondents and the appellants and I am of very strong opinion that the learned counsel for the appellants made very pungent submissions to dissuade the Court from granting the preliminary objection raised by the 1st and 2nd respondents.
I shall particularly consider Section 246(1) of the 1999 Constitution vis-a-vis the circumstances of the instant appeal and I hold instead that Section 241 (1)(a) and (b) of the 1999 Constitution are more germane to the ruling of the lower Tribunal appealed against. This is so because the ruling in point dismissed the appellants’ petition thereby shutting that petition out from further consideration. The effect of that dismissal is that it is a final decision which can be a subject of appeal. I have also considered the three grounds of appeal filed by the appellants and I hold the view that each of them portrays an error in law. These two aspects highlighted came within the ambit of Section 241(a) and (b) and not Section 246(1)(a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 which allows any appeal within that frame to be as of right without need for recourse to leave of Court to come within the jurisdiction of this Court. It is, in my view, elucidating to reproduce Section 241(a) and (b) of the 1999 Constitution. Thus, Section 241 (1)(a) and (b) of the 1999 Constitution reads:
“241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings.
………………………………………………..”
(Underlining mine for emphasis)
The purport of the foregoing provisions is that where in a final decision and the grounds of appeal thereon are based on law, the appellant has an unfettered right of appeal to this Court.
Apart from the constitutional provisions of Section 246(1) of 1999 Constitution which were tenaciously relied upon by the 1st and 2nd respondents, albeit wrongly, reliance on the case of OKOKHUE v. OBADAN (supra) by them (the 1st and 2nd respondents) will suffer the same fate. Thus, in that case what was interpreted was Section 36 of the Decree No. 37 of 1987 during which period the 1979 Constitution was ousted. The provision of that section of Decree No. 37 is not in any way similar to that of Section 246( 1) of the 1999 Constitution, while the emphasis in Section 36(1) of the said Decree was on appeal to the Court of Appeal upon a decision “ON” an election petition and not a decision “IN” an election, the emphasis on Section 246(1) (supra) relates to regulation of the right of appeal to the Court of Appeal from the Election Tribunal if there is any decision by the said Tribunal whether any person has been validly elected as a member of the National Assembly or State House of Assembly, the office of the Governor or Deputy Governor as the case may be. I agree with the submission of the learned counsel for the 1st and 2nd appellants that the decision in the case of OKOKHUE v. OBADAN (supra) is not relevant to the instant appeal. In sum, I see no valid reason to sustain the preliminary objection. I accordingly dismiss it.
I shall now go on to hear the substantive appeal. It will be recalled that the issues distilled by the learned counsel for the three parties to this appeal have already been set out (supra).
At the hearing, the respective learned counsel for the three parties adopted and relied on their respective briefs of argument and urged the Court to either allow or dismiss the appeal.
On a global review of all the issues raised for the determination of the instant appeal, I am of the opinion based on the similarity in the ure of the wording that Issues 1 and 2 be considered together although separately reviewed. Thus, on Issue No.1, the learned counsel for the appellants submitted that the Tribunal had ample opportunity to extend time within which the appellants may apply for issuance of pre-hearing notice. He argued that practice directions are only a guide to the Tribunal but do not possess the authority of the rules of the Court and that in the event of an inconsistency between a practice direction and an express rule of Court, the rule of Court prevails and he relied on the case of HARUNA V. MODIBO (2004) 16 NWLR (PT. 900) 487 at pages 535/536. He further submitted that the 1st Schedule to the Electoral Act 2006 and the Federal High Court (Civil Procedure) Rules empower the Tribunal to extend the time within which the petitioner may apply for the issuance of pre-hearing notice and particularly referred to paragraph 43(1) of the 1st Schedule to the Electoral Act 2006. He, however, pointed out that the only limitation to the Tribunal’s power to enlarge time is as contained in Section 141 of the Electoral Act 2006 and paragraph 14 of the 1st Schedule which is in respect of amendment of a petition or reply outside the time limited by the Electoral Act. He argued that limitation not being applicable to the instant case leaves the Tribunal with a freehand to extend time as sought by the petitioners/appellants. He further referred to Order 23 Rule 3(1) of the Federal High Court (Civil Procedure) Rules which is applicable to an election pursuant to paragraph 50 of the 1st Schedule to the Electoral Act and submitted that the word “directions” therein include practice directions and any proceedings includes proceedings before an Election Tribunal. The learned counsel for the appellants equally submitted that the powers to extend time within which to do anything or take any step was affirmed by this Court in the case of HARUNA V. MODIBO (supra) at page 537. He argued that despite the wording of the Practice Directions 2007, the Tribunal has power to extend time for the petitioners/appellants for the issuance of the pre-hearing notice. He urged that, in the light of all the statutory provisions and case law referred to above, the Tribunal had the power and the justice of the case required that that power ought to have been exercised to extend the time for the petitioners/appellants to take procedural steps of applying for the issuance of a pre-hearing notice despite a contrary provision in the Practice Directions 2007. He went on to submit that the Rules of Procedure, as in the 1st Schedule to the Electoral Act 2006 is part of the Electoral Act and it possess equal force as the Electoral Act 2006. He contended that the Practice Directions 2007 are a collection of inferior rules of practice that cannot override the express provisions of the Electoral Act.
On Issue NO.2, the learned counsel for the appellants submitted that a Court or a Tribunal is bound to hear a motion pending before it and relied on the case of OKORO V. OKORO (1998) 3 NWLR (PT. 540) 65 at 74 and MOBIL PRODUCING NIGERIA UNLIMITED V. MONOKPO (2003) 18 NWLR (Pt.852) 346 at 412-414. He submitted that the right to be heard in Court is so fundamental that it constitutes the essence of the concept of natural justice and cited in support the case of GOVERNOR IN COUNCIL V. OSUNLAJA (1961) 1 SCNLR 3003 at 308. He contended that the motion for extension of time filed by the petitioners/appellants which was pending before the lower Tribunal was never heard but was instead struck out on 14th August, 2007 when the Tribunal delivered its ruling dismissing the petition. He submitted that any decision reached in violation of the fundamental principle of fair hearing is a nudity liable to be overturned and he relied on the authorities of MERCANTILE BANK OF NIGERIA PLC. V. NWOBODO (2003) 3 NWLR (PT. 648) 297 at 316 and ADAKWO V. EJIGA (2002) 13 NWLR (PT. 783) 156 at 167. The learned counsel finally submitted on Issue No. 2 that the failure of the Tribunal to hear the petitioners/appellants’ motion for extension of time before striking it out constituted an infringement on the petitioners/applicants’ right to fair hearing and urged the Court to so hold and set aside the decision of the Tribunal on this score.
In response to Issues Nos. 1 and 2, the learned senior counsel for the 1st and 2nd respondents said that the Election Tribunal and Court Practice Directions 2007 (hereinafter referred to as Practice Directions 2007) were made by the President of the Court of Appeal pursuant to Section 285(3) of the Constitution of the Federal Republic of Nigeria, 1999. He argued that by virtue of paragraph 3( 1) of the said Practice Directions 2007, a petitioner is expected to apply for a pre-hearing notice within 7 days of filing his reply to the respondent’s reply or 7 days after the receipt of the respondent’s reply whichever is the case. He went on to set out the antecedents of this case which are, inter alia, that the appellants and respondents admitted filing the notices of issuance of pre-hearing proceedings or session out of the stipulated-time. He referred to paragraph- 3(4)-of- the Practice Directions 2007 and submitted that the Tribunal was not only justified in dismissing the petition, it was also perfectly right to strike out the appellants’ motion for extension of time without hearing the application on its merit. He submitted that it is trite law that where the words of a statute are clear and unambiguous they should be given their ordinary grammatical meaning and he relied on the case of FEDERAL REPUBLIC OF NIGERIA V. BARRISTER OBEGOLU & 3 ORS. (2006) 18 NWLR (PT.1010) 188 at 233. He referred to the recent cases of this Court where it held that it was fatal to the petition of the petitioner and it (the petition) is deem abandoned. See the unreported case of CHIEF OKEY OKORO V. HON. OSITA IZUNASO & 694 ORS., APPEAL NO. CAIPHIEPT/488/2007 delivered on the 9th day of April, 2007 and ABUBAKAR V. INEC 2004 1 NWLR (PT.854) 204 at 240. He further submitted that the Tribunal could not have entertained the application for extension of time when it was expressly forbidden by the Practice Directions which like the rules of Court are meant to be obeyed and cited in support the cases of APARI V. ITOSE & ORS. (1999) 5 NWLR (PT. 604) 541 and WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 2 S.C. 145. The learned senior advocate for the 1st and 2nd respondents went on to submit that by virtue of the provision of paragraph 3(4) of the Practice Directions 2007, the Election Tribunal had no discretion to exercise in the matter once it became clear that the petitioners/appellants did not take the procedural step within the time frame provided in paragraph 3(1) of the Practice Directions 2007. He finally submitted that having not obeyed the provisions of the Practice Directions 2007, the appellants have themselves to blame and he urged the Court to dismiss the Appeal.
The learned counsel for the 3rd to the 5th respondents on his part as regards Issue No.1 submitted that the provisions of paragraph 3(1), (3) and (4) of the Election Tribunal and Court Practice Directions, 2007 are very clear, unambiguous and consequently must be given their plain grammatical meaning as they are mandatory and as rules of Court, they must be obeyed and he relied on the case of DAPIANLONG V. DARIYE (2007) 8 NWLR (PT. 1036) 332 at 571 and AMASIKE V. REGISTRAR GENERAL, C.A.C. (2006) 3 NWLR (PT. 968) 462 at 506.
On Issue No.2, the learned counsel for the 3rd to the 5th respondents contended that paragraph 3(4) of the Practice Directions 2007 forbids the bringing of an application for extension of time to take the steps contemplated by paragraph 3(1) of the Practice Directions 2007 and that to do otherwise would amount to stand the rule on its head and cited in support the case of APARI V. ITOSE (supra) where it was held that failure to comply with practice directions in filing with time a written brief of argument in an election petition/appeal is fatal and cannot be cured by an application for extension of time. He submitted that the consequence of not obeying paragraphs 3(1) of the Practice Directions is a dismissal of the petition under its paragraph 3(4). He further submitted that the appellants’ application for extension to apply for issuance of pre-hearing notice filed on 8th August, 2007 was filed mala fide. He urged the Court to resolve Issue No.2 in favour of the respondents.
What is of particular moment in Issues No. 1 and 2 raised by the parties for the determination of the instant appeal is whether the Electoral Act 2006 with its 15t Schedule made room for flexibility in the interpretation of paragraph 3(1) and (4) of the Practice Directions 2007 as regards application for extension of time for the issuance of pre-hearing notice. It is important at this initial stage to reproduce the provisions in the Practice Directions which fault any steps to remedy failure of the parties and particularly the petitioner to apply for the issuance of pre-hearing notice as in Form TF 007 timeously. Thus sub-paragraphs (1) and (4) of paragraph 3 of the Practice Directions, 2007 read:
“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.
(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 apparent that from the wording of particularly sub-paragraph (4) (supra) that by virtue of its mandatory wording that no application for extension of time to apply for the issuance of pre-hearing notice in the prescribed form shall be entertained. The wording of the direction is mandatory in nature and it requires enforcement. I agree with the submissions of the learned counsel for the respondents that where the language or the words of a statute are clear and unambiguous, they should be given their ordinary grammatical meaning. See FEDERAL REPUBLIC OF NIGERIA V. BARRISTER OBEGOLU & 3 ORS. (supra) at page 233.
It is pertinent, however, to point out that instant Practice Direction are not on their own. They were instead sourced from the Electoral Act 2006 with particular reference to paragraph 50 of the 1st Schedule to the Electoral Act. He said paragraph 50 reads:
“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 nearly 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 the respondent were respectively the plaintiff and the defendant in an ordinary civil action.”
Equally pertinent to the issue of enlargement and abridgement of time, in respect of election proceedings to which paragraph 50 (supra) refers is Order 23 Rule 3(1) of the Federal High Court (Civil Procedure) Rules reads:
“3(1) -The Court may on such terms as it thinks just by order extend or abridge the period within which a person is required or authorized by these provisions or by any judgment, order or directions to do any act in any proceedings.”
Paragraph 43(1) and (2) of the 1st Schedule to the Electoral Act 2006 is also relevant to the issue of enlargement of time to do any act or take any proceedings. It reads:
“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 provided by 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.”
(Underlining mine for emphasis)
There are, however, limitations to the power of the Tribunal to enlarge time and they are set out in Section 141 of the Electoral Act 2006 and paragraph 14 of the 1st Schedule to the Electoral Act. The limitations embedded in those two provisions do not affect the application for leave to enlarge time as it affects the instant case. The powers to enlarge time have been given judicial interpretation in the case of HARUNA V. MODIBO (supra) at pages 535 to 536 that the Tribunals can extend time to do anything or take any steps in election proceedings.
It is important to note that the limitation on the Tribunal or Court to refrain from granting extension of time to apply for the issuance of prehearing notice is provided for in the practice directions. I have stated earlier on that those directions are sourced from paragraph 50 of the 1st Schedule to the Electoral Act 2006. It is settled that a schedule to an Act or Law is as much part of the Act or Law as any other part and may be used in construing the provisions in the body of the Act. See BOARD OF CUSTOMS & EXCISE V. ALHAJI IBRAHIM BARAU (1982) 10 SC 48 at 128; J.S. AFOLAYAN V. DR. BAMIDELE & 4 ORS (1999) 3 NWLR (PT.595) 454 at 463.
The strength of those practice directions can hardly be more than that in paragraph 50 where they took existence. In other words it is an established principle of law that a practice direction cannot remove the exercise of the Court’s discretion granted to them by statute such as the provisions contained in paragraphs 43 and 50 of the 1st Schedule to the Electoral Act granting extension of time in election cases to keep the position alive. The hierarchical position of practice directions vis-a-vis other provisions of an Act or Law was succinctly stated by Oputa JSC in the case of UNILAG v. AIGORO (1984) NSCC 755 with particular reference to the invocation of the discretion of granting extension of time:
“Rules of Court and Practice Directions are rules touching the administration of justice: they are rules established for attaining justice with ease, certainty and dispatch and as such they must be understood and made consistent with the fundamental principle of justice deciding cases and appeals on their merits. Consequently in all cases where strict adherence to the rules would clash with the fundamental principles the Courts have invariably learned heavily on the side of doing justice.”
See the reported case of DR. MRS. MARIAN PATRICK NNEMAKA COMFORT ALI & ANOR. V. SENATOR PATRICK EWEBELI OSAKWE in appeal No. CA/B/EPT/261/2007 delivered on 28th May 2008.
I am no unmindful of the recent decision of the Supreme Court in the case of EMMANUEL OSITA OKEREKE V. ALHAJI UMARU MUSA YAR’ ADUA & ORS., SC/246/07 (unreported) delivered on 9th May, 2008 where it held, inter alia, that practice directions must be obeyed. I am however of the opinion that since Tribunal in point has not gone into the hearing of the petition, it should have leaned, in the interest of justice, to accommodate the application before it in order to hear the petition on the merits and not shut out the petitioners by dismissing the appeal and striking out the application for extension of time to apply for the issuance of a prehearing notice. In view of the foregoing, I resolve Issues Nos. 1 and 2 in favour of the appellants.
On Issue NO.3, the learned counsel for the appellants submitted that where a Court is faced with two options, one which will save an action and the other which will defeat the action, the Court ought to give priority to the hearing of the application which will save the action and cited in support of the cases of MOBIL PRODUCING (NIG) UNLIMITED (2003) 3 NWLR (PT. 648) 297 at 316 and LONG JOHN BLAKK (1998) 6 NWLR (PT.555) 524 at 550.
The learned counsel for the appellants referred to the observation of the Tribunal in its ruling where, its learned Chairman on a point of law suo motu acknowledged the pendency of the motion for extension of time within which to apply for issuance of a pre-hearing notice. Rather than hear same, the Tribunal proceeded to dismiss the petition without hearing the motion for extension of time at all and striking it out. He submitted that the Tribunal ought to have taken the pending motion for extension of time rather than continuing with the proceedings that culminated in the dismissal of the petition. He further submitted that the lateness in the application for the issuance of pre-hearing notice or non compliance with the provisions of Practice Directions 2007 in this regard was an irregularity without injury to the respondents which the Tribunal would have allowed to be cured by the taking of the motion for extension of time and called in aid the case of BROAD BANK OF NIGERIA LTD. V. OLAYIWOLA & SONS LTD. (2005) 3 NWLR (PT. 912) 434 at 450,457 and 458.
The learned counsel for the two sets of respondents did not proffer any pungent submissions that would attract any serious consideration. I agree with the espousal of the relevant law on Issue No.3 and adopt the strong-view’ expressed-by-Pats-Acholonu, JSC (of blessed-memory) wherein he admonished Courts and Tribunal to eschew technicalities in the pursuit of justice in the BROAD BANK OF NIG. LTD. V. OLAYIWOLA & SONS LTD. case thus:
“It is the wisdom of the law that a Court should as much as possible have an active mind to expound the horizon of law and such activism should make the Court focus on the reality of the issues before it and not allow too much technicalities to affect its mind.”
Consequently, I also resolve Issue NO.3 in favour of the appellants. In sum, all the three issues raised by the learned counsel for the determination of the instant appeal are resolved in favour of the appellants. The appeal accordingly succeeds and it is allowed.
The ruling of the Tribunal delivered on 14th August, 2007 striking out the application for extension of time to apply for a pre-hearing notice dated 7th August, 2007 and filed on 8th August, 2007 pending before the Tribunal is set aside. I will instead in this regard invoke the inherent powers conferred on me by Section 15 of the Court of Appeal Act 2004 and Order 4 Rule 1 of the Court of Appeal Rules 2007 and order that the appellants’ motion on notice for the extension of time to file a pre-hearing notice be granted. Order is hereby made that the said motion be deemed properly filed and served today. Order is further made setting down the petition filed on the 14th May, 2007 for pre-hearing session. The said petition is accordingly sent back to the Tribunal to continue from the stage it reached before delivering the ruling on 14th August, 2007.
Costs of N50,000.00 are awarded to the appellants.
Other Citations: (2008)LCN/2923(CA)
