CORAM

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MICHEAL E. OGUNDARE JUSTICE, SUPREME COURT

MICHEAL E. OGUNDARE JUSTICE, SUPREME COURT

MICHEAL E. OGUNDARE JUSTICE, SUPREME COURT

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PARTIES

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ALL PROGRESSIVES CONGRESS (APC) APPELLANTS

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DR. ITI ORUGBANI & ORS RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Petition was commenced at the Bayelsa State National and State House of Assembly Election Tribunal sitting at Abuja on 29-3-2019. The 1st and 2nd Respondents filed their replies to the Petition on 27-4-2019 while the 3rd Respondent filed its reply to the Petition on 21-5-2019. The Petitioners filed their replies to the 1st and 3rd Respondents replies on 24-5-2019. On 28-5-2019, the Petitioners applied to the Secretary of the trial Tribunal for the issuance of a pre-hearing notice in respect of the 1st and 3rd Respondents. The proofs of service on the back of the endorsement and return copies of the application showed that the 1st and 3rd Respondents were served with the application on 18-6-2019 and 19-6¬2019 respectively and that the 2nd Respondent was served the application on 23-6-2019. Hearing notices for pre-hearing session along with pre-hearing information sheets were filed on 1-6-2019 and 20-6-2019 and served on 1st, 2nd and 3rd Respondents to the petition. The proofs of service of the hearing notices and information sheets are contained in the record of this appeal. The Petitioner’s answers to the pre-hearing information were filed on 22-6-2019 and served on all Respondents on 24-6-2019. The 1st, 2nd and 3rd Respondents’ answers to pre-trial information sheet and issues for determination were filed all and served on all parties. By a Motion on Notice filed on 12-6-2019, the 2nd Respondent (Appellant herein) applied to the Tribunal for an Order dismissing the Petition for failure of the Petitioners to apply for the issuance of Pre-Hearing Notice as in Form TF007 within the stipulated time and therefore deemed abandoned. The tribunal dismissed the application of the Appellant, hence this appeal. The 4th Respondent in this appeal filed a Notice of Cross Appeal but he later withdrew same and it was accordingly struck out by this court.

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HELD

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Appeal Dismissed

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ISSUES

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Whether in the circumstances of this case, the Trial Tribunal was wrong in refusing to dismiss the Petition for having been abandoned for non- compliance with paragraph 18(1) of the first schedule to the Electoral Act 2010 (as amended)?”

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RATIONES DECIDENDI

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PRE- HEARING NOTICE – PURPORT OF A PRE- HEARING NOTICE

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“The purpose of the application for issuance of a pre-hearing notice is to start the pre-hearing process. Once the process has started, even though by means of an application for the issuance of a pre-hearing notice in respect of two out of three respondents to a petition as in this case, it will not help the pursuit of the justice of the case, for a respondent to the petition (such as the appellant herein) who has been served all the pre-hearing processes and is already participating in the pre-hearing process to contend that the petition should be declared abandoned because an application for the issuance of a pre hearing notice was not made in respect to him. –

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PRE- HEARING NOTICE – WHETHER THE FAILURE OF A PARTY TO ISSUE PRE- HEARING NOTICE IS RELEVANT IF THE PRE-HEARING PROCESS HAS COMMENCED

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The pre-hearing process having commenced, with all the parties to the petition participating, the notion that the petition has been abandoned because an application for issuance of a pre hearing notice in respect of the 2nd respondent (appellant herein), who has filed answers to the pre hearing questions and formulated issues for determination in the petition, was not made, is fictional. The reality is that the petition is not abandoned as pleadings were completed and the pre-hearing process had commenced. The failure of the petitioners to apply for the issuance of a prehearing notice in respect of the appellant becomes irrelevant and the pre-hearing process that has commenced remains valid. In any case the appellant has not suggested or shown that he suffered any injustice by the failure of the petitioners to indicate its name in the applications they made for the issuance of a pre-hearing notice or to file a separate one in respect to it. As held by the Supreme Court in Saeed & Anor v. Yakowa (2013) 7 NWLR (Pt. 1352) 124 at 164 – 165-
“The purpose of pre-hearing notice is to inform the parties of the impending hearing and to ensure attendance at the hearing. If for any reason or by any means this purpose is achieved without formal application for issuance of pre-hearing notice, a party who had taken part in the proceedings cannot be heard to argue that the rule has not been complied with, more so, when there is no allegation of miscarriage of justice from the non-compliance.
See Ipinlaiye II v. Olukotun (1996) 6 SCNJ 74 at 88; (1996) 6 NWLR (part 453) 148; Akhiwu v. Principal Lotteries Officer Midwest (1972) 1 All NLR (part 1) 229 at 238; Okwechime v. Philip Igbinadolor (1964) NMLR 132”. –

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PRE- HEARING NOTICE – WHETHER A PETITION CAN BE DISMISSED ON GROUND THAT AN APPLICATION FOR THE ISSUANCE OF A PRE HEARING IS DEFECTIVE

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“The Rules as the handmaids of the law cannot constitute obstacles on the paths of substantial justice under the law. “In Udeze & Anor v. Nwaebili & Ors (2011) LPELR – 9191 (CA), this Court held thusly –
“The appellant had on 7/7/2011 applied to the Secretary to lower Tribunal for the issuance of pre-hearing notice as in Form TF 007. His application was duly granted and pursuant thereof, Forms TF 007 and TF 008 were issued on the parties who accordingly reacted to them. Thereafter, the Tribunal issued notices to the parties that pre-hearing session shall commence on 19/7/2011. The pre- hearing session did take off and ran from the said 19/7/2011 to 5/9/2011 during which period all the parties filed and moved one application or the other till the 1st Respondent moved his motion filed on 22/8/11 for an order dismissing the petition for failure of the appellants to apply for the issuance of pre-hearing notice which makes the petition an abandoned petition. The big question is, can such a petition be deemed to have been abandoned when a pre-hearing session had been activated by the appellant’s application (albeit filed prematurely) and the pre-hearing sessions have been held for about Five times with the full participation of the parties under the control and direction of the Chairman and members of the Tribunal? To my mind, to term such a petition as abandoned and proceed to dismiss it as such is totally out of place and inconsistent with the ideals of justice on the merit. I am therefore in agreement with the view of this Court in Gebz V. Dahiru unreported judgment of Jos Division in Appeal No. CA/J/EPT/HR/127/2011 delivered on 23/8/2011 where it held while considering Paragraph 18 of the First Schedule to the Electoral Act 2010 (as amended) as follows:- “I believe the mischief which paragraph 18 of the 1ST Schedule sought to cure was dilatory approach to the prosecution of petitions, not bubby trap to manipulate the frustration of hearing of the petition and give a respondent technical victory and the petitioner technical knockout.”
This court expressed the same view in Njoku v. Iheanatu (supra) thusly-
“With the commencement of the pre-hearing session in the petition the requirement that the Petitioners were to have applied for the issuance of a notice thereof was undoubtedly overtaken by that event. None of the Respondent had alleged let alone prove that the non-compliance with the requirement of Paragraph 3(1) had any adverse effect or prejudice on their position to defend the petition. The non-compliance, if any, was therefore factually inconsequential and a very negligible irregularity, which it did not go to the competence of the lower Tribunal to entertain the petition.”
In similar vein it held in APGA & Anor v. Ameke (2012) LPELR -14438 (CA) thusly
“Therefore calling on the Tribunal to strike out or dismiss the petition on the allegation that the application for issuance of the Pre-hearing Notice was defective after the Tribunal had acted on the application and issued Notice for the Pre-hearing amount to inviting the tribunal to sit on an appeal over its said decision to issue the per-hearing Notice and fix date for the prehearing session.
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DECISION OF COURT – INSTANCES WHEN A COURT CAN DEPART FROM ITS EARLIER DECISION

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“The law is established that this court is bound to follow its earlier decisions and can depart from them only where it is satisfied that they were reached per incuriam or would result in absurdity, injustice or impracticality when followed in the present case and that where two or more of its earlier decisions are in conflict, it must follow the latest of the conflicting decisions. See Osakwe V FCE(2010) 5 SCM 185 @ 193. Therefore, I will follow the decision of this court in Labour Party v. Bello and Uwajimogu v. Nneji (supra). Since I have no reason to depart from it. This Court in that case held thusly-
“Going by the above purport of filing the application for issuance of pre-hearing notice and for the pre-hearing session, namely, to signal close of pleadings and cause the Tribunal (Registry) to issue to the parties invitation to come for pre¬hearing session, for the purpose of disposing of all interlocutory matters, and to give direction as to the future of the course of the petition, with regards to the just, expeditions and economical way of disposing of the petition, order of call of witnesses and tendering of documents, as well as fixing date for hearing of the petition, I cannot understand why such application (for issuance of pre-hearing notice) should be done by a petitioner more than once in a case, such that he is expected to do so (file the application) in respect of each Respondent in the same Petition, the moment each Respondent files a Reply for the petitioner responds to the Reply by each respondent)…..
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ELECTION PETITION – DUTY OF COURTS IN ELECTION PETITION

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“A free and fair election in accordance with the Constitution, the Electoral Act 2010 as amended and other laws is necessary for the general well being of the people, the protection of their sovereignty, the guarantee of the rule of law and good governance. A free and fair election in accordance with law is the only means of ensuring that those who hold elective offices are persons truly elected by the people to hold such offices. Therefore, an election petition or any form of election litigation is a public interest litigation as it invites judicial inquiry into an audit of the electoral process to find out if it was free, fair and in compliance with the relevant laws. The Courts must be conscious of the fact that our judicial decisions in election cases determine, more than anything else, the existence and development of the process of fair and free election in accordance with law. The elevation of procedural irregularities to nullities and the inclination of the courts to dwell so much on the procedure of the election litigation to the detriment or complete neglect of the substance of the disputes about the actual election trivialises the overriding public importance of their duty in election cases and the public importance of the subject matter of each case. The reasons often adduced to justify this approach is that election law is sui generis and that time is of essence in election litigations due to the inelastic time limits imposed by the Constitution and the Electoral Act and other laws, within which such matters must be commenced and determined. Every area or type of law is sui generis because it has peculiar features that differentiate it from others and peculiar principles that drive its application. These peculiar features and principles place it in a class of its own. But such features or principles must be provided for by law. The general principles that guide the application of law, particularly rules of procedure, must be followed in applying each type of law, unless compliance with such general principles is expressly excluded by the Constitution or other statutory law. So a court or tribunal cannot jettison or disregard such general principles or the provisions of any statute or rules of procedure on the ground that the law governing the subject matter of the suit is sui generis unless the power to do so is expressly vested by the relevant statutes or rules. The notion of sui generis requires that existing law which includes rules of court and general principles be applied with regard to the peculiar demands or requirement of the subject matter of the suit. So the power of the court is to apply such rules or general principles to meet the objective of the law relating to that subject matter. Unless a procedural error or omission has or would cause injustice to any of the parties in the case, it should be treated as a mere irregularity that should not defeat any process or proceeding in the election case. As this court held in Busari V Oseni (1992) LPELR- 14981(CA), M The primary function of any court of law is to do justice to the parties and where any procedural rule is antithesis to justice and fair play, manoeuvre that harsh rule of law in pursuit of justice.” –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Electoral Act 2010 (as amended)

 

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