GRACE AYAKPO EKIOTENNE VS INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

CORAM

PARTIES

GRACE AYAKPO EKIOTENNE APPELLANTS

INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

On the 29th day of March 2019, the 1st Respondent conducted an election into the Bayelsa State House of Assembly for Ekeremor Constituency 2. At the end of the election, the 3rd Respondent was returned as the winner of the election. Aggrieved by this, the Appellants filed an election petition against the result of the election on 29th March 2019 before the lower Tribunal, which was served on all the Respondents separately. The 2nd and 3rd Respondents in response filed a joint Respondents’ reply which, the Appellants filed a reply to. The record of appeal showed that applications for issuance of pre-hearing notices were made to the Secretary after the exchange of pleadings. Pre-hearing notices and pre-hearing information sheets were served on the parties. All the parties reacted by filing their answers to the said pre-hearing information sheets. After the conclusion of the pre-hearing session the 2nd and 3rd Respondents filed a Motion seeking to dismiss the petition as having been abandoned on the ground that the application for the issuance of pre-hearing notice was allegedly back dated and further that payment for same was not made on the stated date. The lower tribunal heard the motion on notice and dismissed the petition hence this appeal.

HELD

Appeal Allowed

ISSUES

Whether, in the peculiar circumstances of this case, the lower Court was right in dismissing the Petition as an abandoned Petition? Whether the lower Court was right in dismissing the Petition, when the 2nd &3rd Respondents participated in the pre-hearing session and thus waived their right to object to the proceedings?

RATIONES DECIDENDI

LEAVE OF COURT – REQUIREMENT FOR THE GRANT OF THE LEAVE OF A TRIBUNAL TO HEAR A MOTION OUTSIDE THE PRE-HEARING SESSION

“Leave of the tribunal to hear a motion outside the pre-hearing session is therefore not given as a matter of course. It must only be given where there are proven extreme circumstances. Where the law makes it categorical that leave is conditioned on the prevalent of circumstances which are extreme, nothing less than those circumstances will satisfy the demands of the law.

COMPETENCE OF COURT – DETERMINANTS OF THE COMPETENCE OF COURT

“It has been well established that a court can only be competent when the case or application comes before it initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal for proceedings conducted without jurisdiction, are a nullity howsoever well conducted and decided because the defect is extrinsic to the adjudication. See Madukolu V. Nkemdilim (1962) 2 SCNLR 341 –

ISSUE OF JURISDICTION – WHEN CAN THE ISSUE OF JURISDICTION BE RAISED?

“This issue was not raised in any of the grounds but being an issue of jurisdiction and the fact that it was raised before the lower tribunal, this court can pronounce on it. See the cases of Akeredolu V. Abraham (2018) LPELR-44067 (SC), Angadi V, PDP & Ors (2018) LPELR-44375 (SC)”. –

LEGAL PRACTITIONER COUNSEL – DUTY OF A COUNSEL

“In FBN V. Maiwada (2013) 5 NWLR (PL1348) 444, The Supreme Court held that a counsel should not:
(a) Be careless in signing and filing court processes
(b) Be negligent in signing and filing court processes
(c) Be tardy in filing court processes.
See (P.509, paras C-D) of the Report.
A counsel therefore, must take his responsibility to be diligent seriously”. –

JUDGE – FUNCTION OF A JUDGE

“FABIYI, JSC in the case of FBN V. Maiwada (Supra) considered two previous decision of the Supreme Court and said as follows:
In Trans Bridge Co. Ltd. V. Survey International Ltd, this Court per Eso, JSC pronounced as follows:
“I believe, it is the function of Judges to keep the law alive, in motion, and to make it progressive for the purpose of arriving at the end of justice, without being inhibited by technicalities, to find every conceivable, but accepted way of avoiding narrowness that would spell injustice. Short of a Judge being a legislator, a Judge to my mind, must possess an aggressive stance in interpreting the law.”
And in Okotie Eboh V. Manager (Supra) Pats-Acholonu, JSC of blessed memory) pronounced as follows:
“An interpretation that seeks to emasculate should be avoided as it would do disservice to the citizenry and confine everyone into a legal container or labyrinth from which this court may not easily extricate itself … I believed that though justice is blind, it is nevertheless rooted in the nature of society and therefore the court should avoid constructions that could cause chaos and disenchantment. Justice must be applied in a way that it embraces and optimizes social engineering that is for the welfare of the society. Enlightened society should expect a highly refined and civilized justice that reflects the tune of the time.”
–

JUDGE – DUTY OF A JUDGE IN THE INTERPRETATION OF THE LAW

“I agree that a judge should be firm and pungent in the interpretation of the law but such should be ‘short of a judge being a legislator. This is because it is the duty of the legislature to make the law and it is the assigned duty of the judge to interpret the law as it is ; not as it ought to be”. –

WAIVER – DEFINITION AND THE IMPLICATION OF ‘WAIVER’ IN LAW

“Waiver in law is defined as the intentional and voluntary surrender or relinquishment of a known privilege and or right. It therefore implies a dispensation or abandonment by the party waiving of a right or privilege which, at his option he could have insisted upon. See the cases of Ariori V Elemo & Ors (1983) I SCNLRI Adeniyi V Gov. Council of Ya’ba College of Technology (1983) LPELR- 128 (SC)”. –