CORAM

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Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

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PARTIES

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1. MOHAMMED ASHIRU ISA

2. PEOPLES DEMOCRATIC PARTY

APPELLANTS 

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1. INDEPENDENT NATIONAL ELECTORAL COMMISSION

2. SANI UBA

3. ALL PROGRESSIVES CONGRESS (APC)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

Governorship elections were conducted in Kaduna State on the 18th day of March, 2023. The 1st Respondent declared the 2nd Respondent as duly elected having scored a majority of votes and satisfied the requirements of the law. The Appellants became aggrieved by the declaration and return of the 2nd Respondent as the elected Governor of Kaduna State, Appellants therefore initiated a petition at the Kaduna State Governorship Election Tribunal seeking several declaratory reliefs. Appellants petition was heard and dismissed, even though the Tribunal by a majority decision ordered supplementary elections in 22 polling units, the trial Tribunal also held that Appellants petition was abandoned and therefore dismissed it.

The Appellants became aggrieved by the decision of the Tribunal and appealed to the lower Court, the lower Court dismissed the appeal and allowed the Respondents cross-respondents appeal against the order for supplementary election, the order for supplementary election was set aside by the lower Court.

Nettled again by the decision of the lower Court, the Appellants further appealed to this Court.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1. Whether the lower Court was right when, it affirmed the decision of the trial Tribunal which invalidated the subsequent application for the issuance of prehearing notice filed by the Appellants which was not the subject of the application filed by the 2nd Respondent on 07/06/2023 and consequently affirmed on that ground that the petition was abandoned?

 

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION – CONDUCT OF A RESPONDENT INTENDING TO RELY ON A PRELIMINARY OBJECTION TO THE HEARING OF AN APPEAL AT THE SUPREME COURT

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By Order 2 Rule 9(1) and (2) of the Rules of this Court, a Respondent intending to rely on a preliminary objection to the hearing of the appeal shall give the Appellant three dear days’ notice before the hearing, setting out the grounds of objection, and shall file such notice together with ten copies thereof with the Registrar within the same time. If the Respondent fails to comply with this rule the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the Respondent or may make such other order as it thinks fit.” – Per Tijjani Abubakar, JSC

 

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PRELIMINARY OBJECTION – CONDUCT OF COURTS WHERE A PRELIMINARY OBJECTION IS RAISED

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…since the preliminary objection filed on behalf of the 1st Respondent does not suffer from any form of infirmity or corruption it will be prudent and this accords with the practice of this Court to consider and determine same before delving into the merit of this appeal. The rationale for so doing being that, where a challenge to the hearing of the appeal succeeds, it will be futile to delve into the substantive appeal or a matter which is already dead. In total obedience to the settled position of the law therefore I will consider the objection.  – Per Tijjani Abubakar, JSC

 

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PRELIMINARY OBJECTION – CONDUCT OF COURTS WHERE PRELIMINARY OBJECTION CANNOT BE DETERMINED WITHOUT DETERMINING AN ISSUE FORMULATED

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In my view, the issue of failure to appeal against part of the decision of the Court below and the consequence thereof thrown up by this leg of objection cannot be adequately determined, until a determination of the complaint of the Appellants’ arising from the issues formulated. In a nutshell therefore, before a decision can be reached on the consequence of the failure of the Appellants to appeal against the decision of the Court below dismissing the Appellants’ Petition for non-compliance with Paragraph 18(1) and (3) of the Electoral Act, 2022, can be made, this Court must have pronounced on the Appellants’ complaint before us, and reached a decision. On this ground therefore, I believe it will be premature to strike out the appeal on the purported ground that the Appellants failed to appeal against the decision of the Court below for non-compliance with Paragraph 18(1) of the First Schedule to the Electoral Act, 2022. It is prudent to determine the substantive issue on pre-hearing notice since the same issue constitutes an integral part of the substantive appeal. I will therefore refrain from determining this leg of the preliminary objection at this stage since the same issue constitutes Appellants issue for determination number one, I will proceed to determine the appeal on the merit. – Per Tijjani Abubakar, JSC

 

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APPEAL – WHERE A PARTY FAILS TO APPEAL AGAINST A HOLDING OF A LOWER COURT

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Where a party fails to appeal against a holding of a lower Court, that decision remains binding and conclusive between the parties. In NDIWE V. OKOCHA (1992) 7 NWLR (Pt. 252) 129 at 139-140, this Court held that where the trial Court makes a finding of fact or decides on a specific issue before it, such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the decision. This Court cannot activate its appellate jurisdiction in respect of an issue/decision for which there was no appeal. See OPARA V. DOWEL SCHLUMBERGER (NIG.) LTD & ANOR (2006) LPELR – 2746 (SC). – Per Tijjani Abubakar, JSC

 

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COURTS – CONDUCT OF THE COURTS IN INTERPRETING STATUTES – CONDUCT OF COURTS IN INTERPRETATING PARAGRAPH 18 OF THE FIRST SCHEDULE OF THE ELECTORAL ACT, 2022 – DUTY OF AN APPELLANT TO WAIT FOR THE TIME FRAME ALLOCATED FOR APPELLANTS TO FILE REPLIES

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Paragraph 18(1), (4) and (5) of the First Schedule to the Electoral Act, 2022…

In AROMOLARAN V. AGORO (2014) LPELR – 24037 (SC) 25, PARAS B- F, this Court held that the duty of the Court is to interpret the words contained in the statute and not to go outside the clear words in search of an interpretation which is convenient to the Court or to the parties in the process of interpretation. The Court will not embark on a voyage of discovery. Where a statute is clear and unambiguous, as in the instant case, this Court will follow the literal rule of interpretation where the provision of the statute is clear and no more. In cases of statutory construction, the Court’s authority is limited. Where the statutory language and legislative intent are clear plain and unambiguous, judicial inquiry terminates there. See ADEWUNMI V. A.G. EKITI STATE (2002) 2 NWLR (Pt. 751) 474 at 512. The above provisions of Paragraph 18(1) of the First Schedule of the Electoral Act, 2022, are very clear and explicit, on the intention of the legislature that it is mandatory that application for the issuance of pre-hearing notice as in Form TF007 be made within seven (7) days AFTER pleadings have closed. For the purpose of this Paragraph, pleadings are deemed closed upon the service of the Petitioner’s Reply on the Respondent or the last Respondent to be served, where there is more than one Respondent OR service of the Respondent(s)’ Reply on the Petitioner, where the Petitioner decides not to file any further Reply to the Respondent(s) Reply. It is noteworthy that by the letters of Paragraph 18(1), no application can be made before pleadings are closed and after the seven (7) of the close of pleadings.

I have given careful consideration to the several decisions of this Court on this issue, and I believe similar issue (as the one at hand) decided in MAKU & ANOR V. SULE & ORS (2019) LPELR – 58513 (SC) is plain, direct, relevant and direct on the issue that has arisen for consideration in this appeal. In that decision, this Court, per my law lord M.D. MUHAMMAD, JSC, held as follows and I quote:

“… in this regard the case of Labour Party v. Yahaya Bello & Ors (2016) LPELR – 40848, (2017) 2 NWLR (Pt. 1548) 145 settled it effectively as follows:- “In effect, an appellant must wait for the timeframe or period of time allocated to the parties to file replies before the appellant can take out Form TF007 within 7 days of the service of the respondent’s reply, filed within time permitted under Paragraphs 12 of the 1st Schedule, on the appellant. Paragraph 16 applies mutatis mutandis to each and every respondent to this petition, will be a breach of Section 36 of otherwise it the 1999 Constitution of Nigeria, as amended.”

The decision of the Supreme Court in Oshodi v. Eyifunmi & Anor (2000) LPELR (SC), (2000) 13 NWLR (Pt. 684) 298 is apt on this point. – Per Tijjani Abubakar, JSC

 

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FILING – SPECIFIC MANNER AND PERIOD FOR FILING AN APPLICATION FOR PRE-HEARING – WHERE A PARTY ERRS IN FILING AN APPLICATION FOR PRE-HEARING

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The provision of Paragraph 18(1) of the first Schedule to the Electoral Act, 2022 has clearly prescribed for the specific manner and period for the filing of an application for pre-hearing, failure to comply with the said provision will be met with the consequence outlined in Paragraph 18(4) of the First Schedule to the Electoral Act, 2022, to wit, the Tribunal or Court shall dismiss the petition as abandoned. It is instructive that no Court has discretion to exercise where the provision of Paragraph 18(1) has not been complied with, as Paragraph 18(4) has stripped the erring litigant of the right to file an application for extension of time to regularise his position and even stripped the Court of the jurisdiction and power to entertain such application. The provisions of Paragraph 18(1) of the First Schedule to the Electoral Act 2022 are meant to be obeyed. They are not made for the fun of it, or designed to serve as cosmetics, they are not fancy provisions. They must be followed strictly, especially as the Court has not been given any discretion in the circumstance.

The provisions bind the parties as well as the Court. Where the procedure prescribed under Paragraph 28(1) of the First Schedule to the Electoral Act, 2022 to the effect that an application for the issuance of pre-hearing notice SHALL only be made within seven (7) days after the close of pleadings is not complied with; the act so performed becomes patently and irretrievably invalid. – Per Tijjani Abubakar, JSC

 

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ELECTION PETITION – THE UNIQUE NATURE OF ELECTION PETITIONS – CONDUCT OF COUNSELS AND PARTIES IN ELECTION PETITION MATTERS

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The situation in which the appellants find themselves in this appeal is a further confirmation of the suigeneris nature of election related matters and the strictness with which the law and regulations relating thereto are interpreted. As I observed in my contribution to the judgment delivered today in SC/CV/1242/2023: Yahaya Mohammed Sani & Anor Vs INEC & Ors:

“… extreme vigilance is required in the prosecution or defence of election related matters. A seemingly minor slip, omission or mistake can prove fatal to a party’s case. This is one of those situations where the mistake of counsel or any other person who has a role to play in the proceedings will surely be visited on the affected party. See Nnaji Vs Ndubuisi & Ors. (2023) LPELR – 61131 (SC) @20-21C-E.” – Per K. M. O. Kekere-Ekun, JSC

 

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PRE-HEARING NOTICE – WHEN THE NECESSITY TO APPLY FOR PRE-HEARING NOTICE ARISES – THE EFFECT OF PREMATURE FILING OF APPLICATION FOR PRE-HEARING NOTICE

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My learned brother in the lead judgment has extensively reviewed and considered the purport of Paragraph 18 of the First Schedule to the Electoral Act, 2022, particularly sub-paragraphs (1), (4) and (5) to the effect that pleadings can only be deemed closed and the necessity to apply for pre-hearing notice (as in form TF007) will only arise after service of the petitioners reply on the respondent or the last respondent to be served; or service of the respondents reply on the petitioner where the petitioner does not intend to file a further reply thereto.

​The premature filing of the application for prehearing notice when some or any of the respondents is yet to be served with the petitioner’s reply or before the seven days after the filing and service of the respondents reply on the petitioner has lapsed, is not an indication of diligence or zeal on behalf of the petitioner. Rather it is an indication of lack of familiarity with the applicable rules of Court and the devastating effect of non-compliance as provided in Paragraph 18(4) and (5) 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 and no application for extension of time to take that step shall be filed or entertained.

(5) Dismissal of a petition under sub-paragraphs (3) and (4) is final and the Tribunal or Court shall be functus officio.” – Per K. M. O. Kekere-Ekun, JSC

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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1.Constitution of the Federal Republic of Nigeria 1999 (as amended)

2.Electoral Act 2022

3.Supreme Court Rules

4.Evidence Act, 2011

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