Legalpedia Citation: (2023-09) Legalpedia 70995 (CA)

In the Court of Appeal

Holden At Abuja

Wed Aug 16, 2023

Suit Number: CA/KN/EP/GOV/JG/04/2023

CORAM

Joseph Shagbaor Ikyegh JCA

Mohammed Baba Idris JCA

Abdul-Azeez Waziri JCA

PARTIES

1. ALH. IBRAHIM SULAIMAN YUSUF
2. ACTION DEMOCRATIC PARTY (ADP)

APPELLANTS

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. ALL PROGRESSIVE CONGRESS (APC)
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. NEW NIGERIA PEOPLE PARTY (NNPP)
5. UMAR NAMADI
6. MUSTAPHA LAMIDO
7. AMINU IBRAHIM

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

This is an appeal against the ruling of the Governorship Election Petition Tribunal holden at Dutse delivered by the presiding Justices dismissing the Appellants’ application.

The Appellants who were the petitioners at the lower Court filed a petition claiming that the election was invalid by reason of corrupt practices or non-compliance with the provisions of Electoral Act 2022 and non-qualification of the 5th and 6th Respondents to contest the governorship election.

The Respondents to the petition filed their respective replies and the Appellants then filed two motions dated the 28th June, 2023 and filed the 3rd of July, 2023 respectively seeking an order of this Tribunal granting leave to the Petitioners/Applicants to file and hear before the pre-hearing session, applications to extend the time within which the Petitioners/Applicants may file and serve replies to the 2nd and 5th Respondents replies to the petition respectively and an order of this Honourable Tribunal extending the time within which the Petitioners/Applicants may file and serve replies to the 2nd and 5th Respondents’ Replies to the Petition together without supporting witness statements on oath.

 

The Tribunal then refused the applications and dismissed same accordingly. Dissatisfied with the Tribunal’s ruling, the Appellants filed the instant appeal.

HELD

Appeal dismissed

ISSUES

• Whether or not the Tribunal was right to refuse and dismiss the Appellant’s Motion on Notice?
• Whether or not the trial Tribunal’s refusal to grant the Appellants’ Motion of Notice did not amount to breach of the Appellants’ right to fair hearing?

 

RATIONES DECIDENDI

ELECTION PETITIONS – THE NATURE OF ELECTION PETITIONS – CONDUCT OF COURTS DEALING WITH ELECTION PETITIONS

In the case of MINJIBIR & ANOR VS. MINJIBIR & ORS (2008) LPELR – 4486 (CA) (PP. 37 PARA. D), this Court held per Okoro, JCA that:

“I need to emphasize that in Election petitions, time is of the essence. Parties must therefore comply with the time allowed for the doing of an act by the applicable rules. Failure of which is fatal to the petition.”

In the case of BUHARI & ANOR VS. YUSUF & ANOR (2003) LPELR – 812 (SC) (PP. 18 – 19 PARA. D), the Supreme Court held per Uwaifo, JSC that:

“The jurisdiction of an election Tribunal to deal with election petitions is of a very special nature different from that in an ordinary civil case. See Onitiri v. Benson (1960) SCNLR 314 at 317. It is plain that the proceedings are special for which special provisions are made under the Constitution. See Oyekan v. Akinjide (1965) NMLR 381 at 383, a decision of this Court.

Election petitions are distinct from the ordinary civil proceedings. See Obih v. Mbakwe (supra) at p.200 per Bello, JSC at p. 211 per Eso and Aniogolu, JSC. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. Examples are: Benson v. Allison (1955-56) WRNLR 58, Eminue v. Nkereuwen (1966) 1 All NLR 63 which were decided on failure to give security before presenting a petition as required by the rules. Ige v. Olunloyo (1984) 1 SCNLR 158, decided on application to amend the prayers sought in a petition, which application was brought after the time allowed for filing the petition. So an election petition is neither seen as a civil proceeding in the ordinary sense nor, of course, a criminal proceeding. It can be regarded as a proceeding sui generis.”

In the case of APC VS. PDP & ORS (2015) LPELR – 24587 (SC) (PP. 120 PARA. B), the Supreme Court held per Ogunbiyi, JSC that:

“Election petition cases are sui generis in nature and hence the reliefs grantable are limited by statute and parties can sue and be sued. See Buhari v. Yusuf (2003) 13 NWLR (Pt. 841) 446 at 508 or (2003) FWLR (Pt. 174) 360 at 372.”

From the above cited cases, it is clear that election petition cases are sui generis and time is of the essence. The statutes and rules guiding and regulating the proceedings are rigidly construed and do not entertain any form of flexibility. The reason for this is easy to assume. There is always a set time for the swearing in or resumption for all winners in an election. Thus, if Courts and tribunals do not quickly dispense with such matters, it will cause chaos and disorganization in the process of government. – Per M. B. Idris, JCA

 

STATUTE – THE RELATIONSHIP BETWEEN GENERL AND SPECIFIC PROVISIONS OF A STATUTE – PARAGRAPH 16 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT

In the case of MADUMERE & ANOR VS. OKWARA & ANOR (2013) LPELR – 20752 (SC) (9 PARA. A), the Supreme Court held per Muhammad, JSC that:

“It is instructive to restate here that this Court has held that where a specific provision of a statute is subsequent to a general provision, the specific provision of the statute will prevail.”

Flowing from the foregoing, it is clear that Paragraph 16(1) and (2) of the First Schedule to the Electoral Act, 2022 is the specific provision as it relates solely and only to the procedure that must be adopted when filing a petitioner’s reply. This is clear from the wordings of the provision. For ease of reference, let me reproduce the portion that supports this assertion:

“… the petitioner shall be entitled to file in the registry, within five days from the receipt of the respondent’s reply, a petitioner’s reply in answer to the new issues of fact.”

 

This portion states the right of the petitioner to file a reply to a Respondents’ reply and also the time within which it must be done. – Per M. B. Idris, JCA

SHALL – THE MEANING AND EFFECT OF THE WORD SHALL

The word “shall” has been defined in a plethora of cases to denote mandatory.

In the case of NWANKWO & ORS VS. YAR’ADUA & ORS (2010) LPELR – 2109 (SC) (PP. 78 PARA. C), the Supreme Court held per Adekeye, JSC that:

“The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation. BAMAIYI V. A. G. FEDERATION (2001) 12 NWLR PT. 722 PG. 468, IFEZUE V. MBADUGHA (1984) 1 SCNLR PG. 427, CHUKWUKA V. EZULIKE (1986) 5 NWLR PT. 45 PG. 892, NGIGE V. OBI (2006) 14 NWLR PT. 991, PG. 1.”

In the case of UGWU VS. ARARUME (2007) 12 NWLR (PT. 1048) 365 AT PAGE 412, the Supreme Court has held:

 

“Generally, when the word ‘shall’ is used in a statute, it is not permissive. It is mandatory. The word “shall” in its ordinary meaning is a word of command, which is normally given a compulsory meaning because it is intended to denote obligation.” – Per M. B. Idris, JCA

ELECTORAL ACT – RELATIONSHIP BETWEEN PARAGRAPH 16 AND 45 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT, 2022

I agree with the arguments of the learned counsel for the 5th Respondent when he argued that the word “shall” is mandatory and also cited subsection (2) which provides that:

“(2) The time limited by subparagraph (1) shall not be extended.”

This is the nail on the coffin. The provisions of Paragraph 16 (1) and (2) of the First Schedule to the Electoral Act, 2022 are specific, clear and unambiguous. The Appellants cannot be heard coming under the provisions of Paragraph 45 of the First Schedule to the Electoral Act 2022 which is general and also has stated in it that “except otherwise provided by any other provision of this Schedule.”

 

This simply means that the Court or Tribunal will have the power to enlarge time within which an act is done except otherwise provided for by any other provision of this schedule. In this case, the provisions of Paragraph 16(1) and (2) of the First Schedule to the Electoral Act, 2022 provide otherwise and is specific as to the act sought to be done. – Per M. B. Idris, JCA

FAIR HEARING – WHAT CONSTITUTES A BREACH OF THE PRINCIPLE OF FAIR HEARING – THE ESSENCE OF THE FAIR HEARING PROVISION

The Apex Court, in the case of EJEKA VS. STATE (2003) LPELR – 1061 (SC) held per Tobi, JSC at page 13 of the E-Report that:

“The principle of fair hearing is breached where parties are not given equal opportunity to be heard in the case before the Court. Where the case presented by one party is not adequately considered, the affected party can complain that he was denied fair hearing. Fair hearing is not an abstract term that a party can dangle in the judicial process but one which is real and which must be considered in the light of and circumstances of the case.

A party who alleges that he was denied fair hearing must prove specific act or acts of such denial and not a mere agglomeration of conducts which are merely cosmetic and vain.

Thus, fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. In so far as the parties have been given equal opportunity to be heard on the matter submitted to the Court for adjudication, they cannot be heard to complain of breach of the fair hearing principles. INEC v Musa (2003) LPELR-24927(SC), Nwora & Ors v. Nwabueze & Ors (2019) LPELR – 46803 (SC), Duke v. Government of Cross River State & Ors (2013) LPELR – 19887 (SC). But, where such opportunity has not been accorded any of the parties, there will be a denial of fair hearing and a miscarriage of justice occasioned.” Per Otisi, JCA in Agba & Ors v. Jubu (2019) LPELR – 47189 (CA) (Pp. 96 – 97 paras. C)

In the case of ADEBAYO VS. A. G. OGUN STATE (2008) LPELR – 80 (SC), the Supreme Court per Tobi, JSC held:

 

“I have seen in recent times that parties who have bad cases embrace and make use of the Constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in litigation. They make so much heavy weather and sing the familiar song that the Constitutional provision is violated or contravened. They do not stop there. They make the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental Constitutional provision available to a party who is really denied a fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing Constitutional provision alone because it is not available to them just for the asking.” – Per M. B. Idris, JCA

FAIR HEARING – WHETHER A COURT IS DUTY BOUND TO GRANT ALL APPLICATIONS UNDER THE PRINCIPLE OF FAIR HEARING

A party that has been duly heard cannot be heard saying that his right to fair hearing has been breached. Are the Appellants saying that a Court must oblige and grant every application filed by them and failure to do so amounts to a breach of their fair hearing? That would be ridiculous!

In the case of ASHIMI & ORS VS. NPA & ORS (2020) LPELR – 50455 (CA) (PP. 29 – 30 PARA. E), this Court held per Kolawole, JCA thus:

“It is wrong for a litigant to couch as a ground of appeal an alleged breach of fair hearing because, a particular application, properly contested and argued before the lower Court was refused. Ingrained in such proposition as a ground of appeal is a supposition that the lower Court was bound to grant the application which was contested by the adverse party. Where the lower Court, in its decision, dismissed a process or application it duly heard, a ground of appeal founded on such a decision and couched as a breach of fair hearing is one which was based on a false hypothesis as the decision could only be challenged on the reasons based on the processes filed by both parties and not that the Court breached the Appellant’s right to fair hearing simply because the application was refused. A ground of appeal that challenges the exercise of the Court’s discretionary powers can hardly be pigeon holed into in the provision of Section 36(1) of the Constitution as the considerations for both legal principles are different.”  – Per M. B. Idris, JCA

 

CASES CITED

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• Electoral Act 2022

• Electoral Act 2010

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