Prince Matthew Orusede V. Reginald Dombraye & Ors (2008)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEINDE SHOREMI, J.C.A:
This is an appeal by the petitioner (hereinafter referred to as the appellant) against the ruling of the Governorship and the Legislative Houses Election Tribunal sitting at Asaba Delta State delivered on the 19th of July 2007 dismissing the petition of the appellant on the ground that he failed to apply for the issuance of pre-hearing notice as stipulated in paragraph 3(1), (3) & (4) of the Election Tribunal and Court Practice Directions 2007.
All parties filed their respective replies. The reply of the 1st respondent is at pages 34-133 of the record. The reply of the appellant to the 1st respondent reply is at pages 134-152 of the record. The petition of the petitioner is at page 1-21 of the record.
The motion which stemmed the controversy upon which the appellants have been predicated upon is dated 26th of June 2007. In the motion the appellant prayed the tribunal for an extension of time to apply for the setting down of the petition for pre-hearing session and an order setting down the petition for a pre-hearing session. The motion, with its supporting affidavit is at pages 153-156 of the record. The appellant’s written address in support of the motion is at pages 162-164.
The Tribunal heard the motion on the 6th of July 2007 and delivered its ruling on the 19th of July 2007 dismissing the petition as an abandoned petition. It is against this ruling that the appellant has appealed on 3 grounds. The notice of appeal is at page 180-182.
The grounds of appeal as stated at pages 180-182 are stated hereunder without the particulars I quote –
“Grounds of Appeal
(1) The learned Judges of the Tribunal erred in law in holding that they had no power to grant the application for extension of time because of the provisions of the Election Tribunal and Court Practice Direction 2007.
(2) The learned trial judges of the tribunal erred in law in dismissing the petition as abandoned having regard to the application before it to extend time for complying with the provisions of the Practice Direction and
(3) The learned trial judge (sic) acted in breach of the petitioner’s right to fair hearing by refusing to extend time for the petitioner to comply with the guideline.
In line with the Practice in this court the appellant filed an Appellant’s brief dated 3/10/07 and in response the 1st Respondent filed an amended brief dated 10/3/08 filed on 20/3/08 but deemed properly filed and served on 8/4/08 vide an application dated 10/3/08.
The 2nd -5th Respondents also filed 2nd – 5th Respondents brief of argument dated 11/10/07 but properly deemed filed and served on 17/10/07 vide an application dated 15/10/07.
In response to the 1st Respondent’s brief of argument the appellant filed a Reply brief dated 17/6/08 but deemed properly filed and served on 9/10/08.
In the appellant’s brief 3 issues were formulated by the Appellant.
These 3 issues which were adopted by the 1st Respondent reads and I quote-
(1) Whether the provisions of paragraph 3(1) (3) and 4 of the Election Tribunal and Court Practice Direction 2007 preclude the Tribunal from extending the time within which the petitioner could apply for setting down of the petition for a pre-hearing session when an order has not been made declaring the petition as an abandoned petition?
(2) Whether the learned judges of the Tribunal were justified in declaring the petition as an abandoned petition in view of the appellant application for extension of time.
(3) Whether the dismissal of the petition did not amount to a denial of the appellant’s right to fair hearing.
These issues formulated by the Appellant at page 3 of his brief were adopted by the 2nd-5th Respondents
The 1st Respondent in his brief raised a preliminary objection challenging the competence of the appeal filed by the appellant. The Notice of the preliminary objection is dated 27/2/08 saying that the appeal is incompetent and liable to be struck out on the ground that-
(1) The order of the tribunal striking out the petition is not a decision on the Election Petition but in the petition proceedings and therefore same does not fall within the provisions of section 246(1) (B) of the Constitution of the Federal Republic of Nigeria 1999.
(2) The Appellant can only appeal after leave has been sought and obtained but can not appeal as of right.
(3) The Appellant did not seek or obtain leave of either the Trial Tribunal or of this Honourable court before filing the notice of appeal.
On 5/2/09 when the appeal came up for hearing All learned counsel adopted their briefs of argument and relied on them as their respective arguments in aid of the appeal and responses. The learned counsel for the 1st Respondent argued his preliminary objection as stated above and the Appellant replied in the same vein. The 1st respondent’s argument in the preliminary objection is as contained on pages 2-5 of the 1st Respondent’s brief of argument. It is the argument of the learned counsel to the 1st Respondent. That S. 246(1) of the Constitution of the Federal Republic of Nigeria is the section that regulates the right of appeal to the Court of Appeal from the Election Tribunal and from that quoted section appeal will only lie as of right to the Court of Appeal where a decision has been reached by the Election Tribunal whether any person has been validly elected as a member of the National Assembly or the State Assembly, the office of the Governor or the Deputy Governor as the case may be. There must be a determination on the merits but where a decision is made in the course of the proceedings such decision is one made in an election petition and is not covered by the section.
On the question of the right of appeal in an election petition the counsel in aid of his argument cited ONITIRI V BENSON (1960) 5 FSC 150 at 153; OKOKHUE V. OBADAN (1989) 5 NWLR (PT 120) P. 185; OKON V. BOB 2005 All FWLR Pt 243 674 and he urged the court to strike out the appeal. The Appellant in his reply brief also relied on section 246(1) (b) of the Constitution and argued that the appeal is competent relying on the following authorities. OMATSOLA V. OMOVIE (2005) All FWLR Pt 263 at 633 CA; CHIEF SERGEANT AWUSE V. DR. PETER ODILI & 3 ORS (2004) FWLR (Pt 193) 325 at 335; CHIEF EVARIST UBA V. DR OKEY ENEMUO & 5 ORS (2006) All FWLR (Part 311) 1953 at 1960-1961 B-F and also the cases of AJIDE V. KELANI (1988) 3 NWLR Part 12, 248 at 269 paras C-D and IGBINIGIE V. YUSUF (1993) 2 NWLR (Part 274) 206 at 219 D-E.
He finally urged this court to dismisses the preliminary objection.
For ease of reference let me quote section 246(1) a-b of the Constitution which reads:
“246(1) An appeal to the Court of Appeal shall lie as of right from-
(a) decisions of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution;
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative House Election Tribunals on any question as to whether –
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution,
(ii) any person has been validly elected to the office of Governor or Deputy Governor, or
(iii) the term of office of any person has ceased or the seat of any such person has become vacant.
(2) The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other court of law or tribunal established by the National Assembly.
(4)The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.
Without any unnecessary voyage of whether the appellant had a right of appeal without leave of the Tribunal on the Court of Appeal. The 1st Respondent misconceived the order of the tribunal when in his ground (1) of his objection he stated thus-
“(1) The order of the tribunal striking out the petition is not a decision on the Election Petition but in the petition proceedings.”
The tribunal did not strike out the petition but dismissed the petition applying the words of the enabling rules under which it exercised its jurisdiction. The decision of the tribunal is a final decision and therefore the Appellant has a right of appeal. See AWUSE V. ODILI 2004 FWLR Pt 193 325 at page 335 SC. I have no hesitation in arriving at the conclusion that the preliminary objection lacks merit and it is dismissed.
Now to the main appeal. As stated above all parties agree to the issue as formulated by the Appellant but I seem to believe that Issue 2 which reads thus-
“2 whether the learned judges of the Tribunal were justified in declaring the petition as an abandoned petition in view of the appellant applying for extension of time will cover the issues involved in this appeal”.
The answer to this issue will dispose of the 1st issue. I shall therefore treat this issue with consideration of Issue 1.
The tribunal in dismissing the petition has this to say in its ruling I quote from pages 177-178 of the record of proceedings.
“From all that has been stated the answer to the question which the Tribunal earlier posed and which is “whether or not the Tribunal under its relevant Rules of procedure has the power to grant the indulgence being sought by the applicant, to wit, an order extending the time within which he can apply for the setting down of this petition for a pre-hearing session” is therefore in the negative. Therefore there is actually no need to consider the application on the merit. The instant application therefore fails in so far as the answer to the question posed by the Tribunal is in the negative.
What then is to happen to the instant petition? It is glaring from the very order being sought in the instant application that the time within which the parties (at least the petitioner who it is in the instant petition) should apply for pre-hearing notice under the Practice Direction had failed to do so. The instant petition therefore by force of the Practice Direction became an abandoned petition thereafter waiting for a “formal dismissal” by the Tribunal. The Tribunal in this regard could act on information supplied to it by the secretary, or respondent where the respondent cares to make the requisite application. This was not done before the petitioner applied for the extension of time within which to apply for pre-hearing notice and thereby disclosing to the Tribunal himself that he has committed an infraction of the Practice Directions. As the Tribunal has concluded that the lapse committed by the petitioner cannot be cured, it would definitely amount to the Tribunal abdicating its responsibility if it allows the instant petition which has been deemed to be an abandoned petition to continue to feature on the list of cases the Tribunal has to contend with.
The situation herein is therefore one in which the Tribunal can conveniently and legally make a consequential order formally disposing of this petition.
In conclusion the Tribunal hereby formally dismiss the instant petition as an “abandoned petition”, (the said petition having always been deemed by the Practice Directions as an abandoned one since the parties therein failed to apply for issuance of pre-hearing notice in compliance with the provisions of sub paragraph (1) of Paragraph (3).”
In support of issues 1 and 2. The Appellant who relied on paragraph 43( 1) of the Schedule to the Electoral Act 2006 submitted that this section does not discriminate between extending the time to do an act under the rules of court strictly speaking, time to do an act under the rules, regulation, practice and procedure like practice direction. It comprehends both he asserted. He relied on the case of YISA V. ORZUA (2006) All FWLR (Part 311) 1942 at 1948-1949. He argued that the combined effect of the rules of Practice tilts in favour of granting an extension of time to a party to comply with anything left undone due to effluxion of time. He again argued that the provision of sub paragraph 4 of paragraph 3 of the Practice Directions merely stipulate a condition for the exercise of the statutory power of the tribunal to extend time. It is that the tribunal shall dismiss the petition and no application for extension of time to take that step shall be filed or entertained. He said therefore the precursor to the prohibition of exercise by the tribunal of its power to extend time is the making of the order of dismissal of the petition as an abandoned petition in other words, it is after an order has been made dismissing the petition that no application can be made for extension of time to apply for the issuance of pre-hearing notice. He submits that this accords with common sense.
He further submitted that as the tribunal had not made the order of dismissal of the petition as an abandoned petition the tribunal would then be functus officio. After all the provisions of the 1st Schedule of the Electoral Act dealing with the powers to extend time are clearly directed at pending petitions. He submitted that with two applications, one seeking to dismiss the petition and another seeking to regularize it the court would in line with decisions take that course which would save the petition from being dismissed without a hearing. He relied on the following cases NALSA TEAMS & ASSOCIATES V NNPC (1999) 11 SCNJ 51-56 at 61; UNITED SPINNERS LTD V. CHARTERED BANK LTD (2001) FWLR Pt. 66 640 and ORJIEKWE V ORJIEKWE (2001) FWLR (Pt.38) 1181 at 1201 Para D-F. He further submitted that the reference to the petition as abandoned petition is misconceived. He said words in statute must be given their grammatical meaning citing the case of OKUMAGBA V. EGBE (1965) All NLR 64 at 67. He urged this court to resolve the issue in his favour.
In the 1st Respondent amended brief of argument counsel argued vehemently against the submission of the Appellant. Let me say at this juncture that the 1st Respondent did not oppose the application in the lower tribunal and one is surprised at the way the 1st Respondent now somersaulted to vehemently oppose the appeal. In his argument he quoted the Rulings of the Tribunal and came to the conclusion that the argument of the Appellant on the effect and interpretation given to the provisions of para (1) (3) & (4) by the Tribunal at paragraph 5.02-5.06 are current and he submitted that he entirely disagree with the submissions of the learned counsel to the Appellant. He submitted that the case of YISA V. ORZUA (2006) All FWLR Pt 311, 1942 cited by the Appellant is inapplicable to the instant appeal.
He submitted that there is no conflict between Paragraph 43(1) of the 1st Schedule and paragraph 3(1) (3) & (4) which forms part of the 1st Schedule to the Electoral Act 2006 by virtue of paragraph 50 of same. It is wrong for the Appellant to contend that Paragraph 43(1) of the 1st Schedule to the Electoral Act 2006 supercedes Paragraph 3(1) (3) & 4 of the Election Tribunal and Court Practice Direction 2007 and that same must necessarily give way to Para. 43(1) of the 1st Schedule to the Electoral Act 2006. He submitted that the Appellant misconceived the wrong application used in Para. 3(3) & (4) of the Election Tribunal and Court Practice Directions 2007. The application referred to therein is that relating to the pre-hearing notice but not an application for extension of time.
He submitted that all the cases cited by the Appellant are not cases decided on the interpretation of the strict provisions of Para. 3(1) (3) & (4) of the Election Tribunal and Court Practice Direction 2007. He urged the court to resolve issues 1 & 2 in favour of the 1st Respondent.
At the hearing of the appeal the 1st Respondent cited the case of OKEREKE V. YAR’ADUA & 3 ORS (2008) 12 NWLR Pt 1100 Pg 95 at 129 Paras B-H. The 2nd -5th Respondents relied on their joint brief dated 11th day of October 2007 Deemed properly filed and served on 15/10/07. Let me say that the 2nd – 5th Respondents right from the onset opposed the move of the Appellant unlike the 1st Respondent who initially did not oppose the application. The 2nd – 5th Respondents methodically set out the following incontrovertible facts as follows:
(a) The Appellant did not apply for issuance of a pre-hearing notice within the 7 day period prescribed by the Practice Directions.
(b) The Respondents never applied for the issuance of a pre-hearing notice.
(c) All parties failed to apply for issuance of a pre-hearing notice within the prescribed 7 days
(c) The Appellant’s application for extension of time was brought more than the 7 days prescribed.
The learned counsel submitted that, that being the case the Appellant’s petition is an abandoned petition therefore the lower Tribunal was absolutely right in dismissing the petition as an abandoned petition.
He called in aid the case of MANSON & 3 ORS V. HALLIBURTON ENERGY SERVICES NIG LTD. & ANOR (2007) 2 NWLR 211 at 234 Paras B-C where the word “abandon” was defined as follows-
“To abandon means to desert, surrender, forsake or cede. To relinquish or give up with the intent of never again resuming one’s right or interest. To give up absolutely or forsake entirely”.
He further submitted that the provisions of the Practice Direction 2007 outs the jurisdiction of the Tribunal to hear and determine an application for extension of time and that the tardiness of counsel to the Petitioner complying with the applicable procedure does not deserve the sympathy of the tribunal. He argued that the Practice Direction has the force of law on its own and its provisions are not subject to the provision paragraph 43 of the 1st Schedule to the Electoral Act 2006. See LADIPO V. ODULOYE (2004) E.P.T. (Vol. 1) 705 at 708. They submitted that the dismissal of the petition as a result of the indolence of the Appellant does not amount to a denial of the Appellant’s right to fair hearing and they urged the court to dismiss the appeal. The Appellant in his reply brief still urged on this court to allow the appeal.
Having gone so far let me first say that the Practice Directions were made in the exercise of the powers conferred on the Honourable President of the Court of Appeal by the provisions of the Constitution and the electoral Act. The Practice Direction 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 tribunals or the court to dispose of electoral matters with the urgency they deserve. See OKEREKE V. YAR’ ADUA (2008) 12 NWLR Pt 1100 page 95 at 116 F-G.
For the purpose of answering the issue stated above, it is considered appropriate to examine very closely the provisions of Paragraph 43 of the First Schedule to the Electoral Act and Paragraph 3 of the Practice Directions upon which submissions have been based.
The provisions of Paragraph 43 considered relevant by the tribunal 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 the time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this Schedule.
(2) An enlargement of time may be ordered although the application for the enlargement is not made until after the expiration of the time appointed or allowed.”
The relevant provisions of the Practice Directions for consideration read thus:
“Paragraph 3 – Pre-hearing session and scheduling:
(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 inform TF 007.
(2) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
(3) The Respondent may bring the application in accordance with sub-paragraph (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”.
Now what is the interpretation to be given to the provisions of Paragraph 43(1) and (2) of the First Schedule to the Electoral Act and sub-paragraphs (1), (3) and (4) of paragraph 3 of the Practice Directions, reproduced herein before? It is necessary to have recourse to some principles or canons of interpretation in order to be properly guided. It is of no moment that the principles or canons might actually be different ways of saying the same thing. The principles or canons are as follow:-
It is a settled principle of law that in the interpretation and application of the provisions of a statute, other provisions and indeed the entire statute ought to be taken into account in order to have a proper appreciation of the intendment of the lawmaker. See MUHAMMADU BUHARI & ANOR V. CHIEF OLUSEGUN A. OBASANJO & ORS (2005) All FWLR (Pt 273) 1 at pages 143-144 and ALHAJI BUBA MANU MUTUM BIYU & ANOR V. ALHAJI ABDULAZIZ IBRAHIM & ORS (2005) All FWLR (Pt 274) 261 at 303.
It is likewise a canon of interpretation that in construing a statute, the duty of the court is to ascertain the meaning of words used therein by reading them in their ordinary grammatical sense and to give effect to them unless such construction would lead to some absurdity or would be plainly repugnant to the intention to be collected from the other parts of the statute. See MUHAMMADU BUBARI V. OBASANJO (supra) at page 189.
It is equally settled a law, that where the language of a statute is plain, clear and unambiguous the task of interpretation hardly arises. The duty of the courts in such a situation therefore, is to give the words their ordinary, natural and grammatical construction unless such interpretation would lead to absurdity or some repugnancy or inconsistency with the rest of the legislation. See RALPH UWAZURIKI ORS V. ATTORNEY-GENERAL OF THE FEDERATION (2007) All FWLR (Pt.367) 834 at 845.
Again and finally on the principles or canon of interpretation, are the cases of ALHAJI SHEU ABDUL GAFAR V. THE GOVERNMENT OF KWARA STATE & ORS (2007) All FWLR (Pt.360) 1415 at 1444; and ATTORNEY-GENERAL OF KANO STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2007) All FWLR (Pt 364) 238 at page 258: in which the Supreme Court amongst others held to the effect that the duty of the courts is to interpret the words contained in the Constitution and indeed any statute in their ordinary and literal meaning. That it is certainly not the duty of the courts to go outside the words of a statute and import an interpretation which may be convenient to it (i.e. court) or to the parties or to one of the parties.
The court can not misconstrue a statute as to assume jurisdiction in a suit. It is fundamental to the construction of provision of any statute to read the sections as a whole to enable the interpreter to gather the collective sense of the provisions particularly where the subject matter construed concerns other sections of the same statute all related provisions must be considered and construed together as forming a composite whole.
Words used must be interpreted in the con of the enactment so as to bring out the proper connotation. Clear an unambiguous words in a statute should be given their ordinary meaning. See OJOKOLOBA V. AREMU (1987) 2 NSCC Vol. 18 991 (1987) 7 SC 124; PDP V TAIWO (2004) 8 NWLR (Pt 876) 656; AWUSE V. ODILI (2004) 6 WRN 1, and O.R.L. v. N.C. C. (2007) 18 WRN 87, at Pp 126-127.
Paragraph 3 of the Practice Direction under the Pre-hearing session and Scheduling particularly paragraph 4 states as follows-
“(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”.
The operative word is “abandoned” chambers Twentieth century Dictionary defined the word “abandon” thus –
“to give up, to desert to yield oneself without restraint to give up all claims to, to banish, condition of letting oneself go, careless freedom of action”.
The golden rule of interpretation of statutes dictates that clear and unambiguous words in a legislation must be given their ordinary literal meaning. See DAILY TIMES NIG PLC V. AMAIZU (1999) 12 NWLR Pt 631, 419; KRAUS THOMPSON ORG. LTD V. N.I.P.S.S. (2004) 17 NWLR (Pt 901) 44; MAKINDE V. ADEOGUN (2009) 1 NWLR 575.
See also BUHARI V. INEC 36 NSCQR Vol. 36 Pt 1 475, where the Supreme Court held that court of law have no jurisdiction to read into the statute what the Legislators did not provide for.
The Supreme Court in the case of OKEREKE V. YAR’ ADUA (2008) 12 NWLR Pt 1100 95 (2008) Vol 8 M.J. SC 182 had answered the issue canvassed in this appeal and have put paid to similar questions that may arise in a similar situation when it held I quote-
“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 and no application for extension of time to take that step shall be filed or entertained”.
Although the provisions of the Practice Direction appears harsh on the Petitioner by prescribing an order of dismissal of the petition which forecloses any chance for him to represent the petition, it still has to be complied with by the tribunal or court as such steps are a condition precedent to the hearing of any matter in relation to the petition pending before the tribunal or court. Non compliance will estopp the tribunal or court of jurisdiction.
What else can I say, the apex court had spoken.
Before I conclude just let me say that issue 3 does not arise and to consider it will be going on a voyage that leads to nowhere. Election Petition Proceeding are proceedings sui genris and therefore deserve special provision.
In the instant appeal, all issues are resolved against the Appellant and in favour of Respondents as the Appellant had completely deserted the complain. The lower Tribunal was right in dismissing the petition as abandoned.
The appeal is devoid of merit and it is dismissed. No order as to costs.
Other Citations: (2008)LCN/2711(CA)
