Prof. Steve Torkuma Ugba & Ors. V. People Democratic Party (Pdp) & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

DAHIRU MUSDAPHER, C.J.N

On the 23/6/2011, the appellants as petitioners applied before tribunal by motion Ex-parte for the issuance of pre hearing notice under paragraph 18 of the 1st Schedule to Electoral Act as amended. The Tribunal granted the order and caused pre hearing conference notice to be issued to all the respondents. The 1st and 2nd respondents by different motions on notice sought orders to set aside the pre hearing notices already issued. The 1st respondent rightly in my view withdrew his application which was struck out on the 29/6/2011. The Tribunal on the 19/7/2011 dismissed the motion of the 2nd respondent.

On appeal by the 1st respondent, the Court of Appeal on the 16/9/2011 set aside the ruling of the Tribunal and consequently decided that leave under paragraph 47 of the 1st Schedule to Electoral Act is applicable to all applications under paragraph 18 (1) of the same schedule, therefore leave was necessary and it dismissed the petition. Appellant appealed to this court on a number of grounds. At the hearing of this appeal, this court limited the matter to the core issue of whether paragraph 47 is applicable to an application under paragraph 18 (1) and (3) of the same schedule. In view of the decision of this court last week on the 9/11/2011 in the case No. SC.350/2011. Mallam Abubakar Abubakar vs. Saidu Nasamu and others, paragraph 47 does not apply in an application under paragraph 18 of Schedule 1 to the said Electoral Act.

Learned counsel for the respondent could not convince us to depart from our previous decision. Confining my self to the core issue, we allow this appeal and set aside the decision of the Court of Appeal and restore the decision of the tribunal. We order the petition be heard on the merits. We make no order as to costs.

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.: In the Appellant’s brief filed on 20/10/11, and the briefs of all the three Respondents the germain legal question raised is the effect of Section 18 (1) of the first Schedule of the Electoral Act 2010 to the issuance of pre-conference Notice.

The court is being asked to interpret what is proper compliance with Section 18 (1) by way issuance of Pre-conference Notice by the Tribunal.

Another question raised is whether Section 47 of the first Schedule has to be read in conjunction with Section 18 (1) to issue the notice.

The parties have agreed that the appeal in this case be allowed. It is necessary to highlight the mode of seeking the leave to set a petition down for pre- hearing conference. Section 18 (1) of the first Schedule of the Electoral Act 2010 reads as follows:

“Within 7 days after the filing and the service of the petitioner’s reply or the respondent or days after the filing and service of the respondents reply as the case may be, the petitioner shall apply for the issuance of pre-hearing Notice as in Form FF “007”.

Decision of this court last week in the appeal SC No. 350/2011 – Mallam Abubakar vs. Said Uthman, Nasumu & Ors, an unreported decision of this court delivered on the 9th of November, 2011 adequately considered and concluded that leave of the Tribunal for the issuance of Form FF 700 and 800 can be obtained by a letter or ex-parte motion to the Tribunal. This court now adopts this procedure in answering the question raised in this appeal.

Section 47 (1) of the first Schedule is in respect of applications filed in the pre-hearing conference. Section 18 (1) applies to a preliminary issue to be resolved prior to the pre-hearing conference and not during the prehearing session. Appeal is allowed. Parties to bear their costs.

Appearances

Oluwarotimi Akeredolu SAN with 19 person’s appearance with him as contained in the list attached for the applicant. For Appellant

AND

Chief Solo Ahumo S.A.N with him are O. Gberiam, G. E Uka Egbu, P. N. Jouji (Miss) and C.T. Mue for the 1st respondent/cross applicant.

D. C. Denwipwe SAN with him 11 other persons for the 2nd respondent/applicant.

J.S. Okutepa SAN for the 3rd respondent/applicant with 7 others as contained in the list.

SC.360/2011