Legalpedia Citation: (2023-07) Legalpedia 96965 (CA)

In the Court of Appeal

Holden at Enugu

Tue Jul 18, 2023

Suit Number: CA/E/EPT/GOV/EN/01/2023

CORAM

UZO IFEYINWA NDUKWE-ANYANWU JUSTICE OF THE COURT OF APPEAL

JOSEPH OLUBUNMI KAYODE OYEWOLE JUSTICE OF THE COURT OF APPEAL

JOSEPH EYO EKANEM JUSTICE OF THE COURT OF APPEAL

PARTIES

1. UCHE GEOFFREY NNAJI
2. ALL PROGRESSIVES CONGRESS (APC)

 

APPELLANTS

1. MBAH PETER NDUBUISI
2. PEOPLES DEMOCRATIC PARTY
3. EDEOGA CHIJIOKE JONATHAN
4. LABOUR PARTY
5. NWEKE FRANK NNAEMEKA (JNR)
6. ALL PROGRESSIVES GRAND ALLIANCE (APGA)
7. INDEPENDENT NATIONAL ELECTORAL COMMISSION

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

Following the declaration of the 1st Respondent sponsored by the 2nd Respondent as the winner of the election conducted by the 7th Respondent to the office of Governor of Enugu State of Nigeria which election was held on the 18th March, 2023 across the 17 Local Government councils of Enugu State, the Appellants filed a Petition at the trial Tribunal on the 10th April, 2023 to challenge the said declaration.

The Respondents filed an application predicated on the contention that the Appellants failed to file an application for the issuance of Pre-hearing Notice within the period stipulated by Paragraph 18 (1) of the First Schedule to the Electoral Act, 2022 and that in the circumstances their Petition was deemed abandoned and should be dismissed. The application was seriously contested by the Appellants on the arguments that their application for Pre-hearing Notice was competent having been filed within seven days of the close of pleadings and that any lapse arising from service of the process involved was that of the trial Tribunal’s Registry which could not be visited on them. In the subsequent ruling, the trial Tribunal found the application filed by the Appellants for theissuance of Pre-hearing Notice premature and therefore incompetent. Consequently, the Petition of the Appellants was dismissed on the basis that it was abandoned. Dissatisfied, the Appellant invoked the appellate jurisdiction of this Court.

HELD

Appeal dismissed

ISSUES

Whether the Appellants failed to apply for the issuance of Prehearing Information Form to warrant the dismissal of the Petition on grounds of abandonment?

RATIONES DECIDENDI

APPEAL – MEANING OF AN APPEAL AND CONDUCT OF PARTIES TO AN APPEAL

An appeal is a continuation of hearing and parties are bound by their cases as conducted by them at the lower Court. They will only be permitted to deviate and add new issues with leave of the appellate Court. See ADEGOKE MOTORS LTD VS ADESANYA (1989) NWLR (PT 109) 250 at 266-267, OJIOGU VS OJIOGU (2010) All FWLR (PT 538) 840, ONYEMAIZU VS OJIAKO (2010) All FWLR (PT 523) 1870 and ORGAN & ORS V N.L.N. G. LTD & ANOR (2013) 16 NWLR (PT 1381) 506. – Per J. O. K. Oyewole, JCA

COURTS – CONDUCT OF COURTS WHEN EXTRANEOUS ISSUES ARE INTRODUCED BY A PARTY

With regards to issue 2, arguments thereon by the Appellants were expanded to include extraneous arguments unconnected with the said Issue 2 and the grounds of appeal from which the said issue was formulated from, the best interest of justice would be served by discountenancing the extraneous points canvassed in line with the earlier position of this Court. See MBAKA VS. NDUBUISI (supra) and ONI & ANOR VS OYEBANJI & ORS (supra). Dismissing the entire appeal would seem too radical in the circumstances as decapitation is never a remedy for headache. – Per J. O. K. Oyewole, JCA

COURTS – CONDUCT OF COURTS WHEN LISTED CASES ARE NOT TIED TO SPECIFIC ARGUMENTS OR PRINCIPLES

The list of additional authorities filed by the learned Senior Counsel is well noted but would have to be discountenanced in this instance. The reason is not far-fetched. A list of additional authorities must have the listed cases tied to specific principles or arguments already canvassed in the brief otherwise, the Court would be left at sea as to the appropriate arguments the listed cases are to support. – Per J. O. K. Oyewole, JCA

PRE-HEARING NOTICE – DUTY OF THE PETITIONER TO APPLY FOR PRE-HEARING NOTICE – WHEN THE PETITIONER SHOULD APPLY FOR PRE-HEARING NOTICE

paragraph 18 (1)-(5) of the Second Schedule. The provisions thereof are hereby reproduced thus:

18 (1) Within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s Reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 008.

(2) Upon application by a petitioner under subparagraph (1), the Tribunal or Court shall issue to the parties or their Legal Practitioners (if any) a pre-hearing conference notice as in Form TF 008 accompanied by a pre-hearing information sheet as in Form TF 009 for

1. a) The disposal of all matters which can be dealt with on interlocutory application.

1. b) Giving such directions as to the future course of the petition as appeared best adopted to secure its just, expeditious, and economical disposal in view of the urgency of election petitions.

1. c) giving directions or order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need for the expeditious disposal of the petition; and

1. d) Fixing clear dates for hearing of the petition.

(3) The respondent may bring the application in accordance with subparagraph (1) where the petitioner fails to do so, or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.

(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 petition and no application for extension of time to take that step shall be filed or entertained.

(5) Dismissal of a petition pursuant to subparagraphs (3) and (4) is final, and the Tribunal or Court shall be functus officio. Pursuant to 18 (1) above, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 008 after the filing and service of the last pleading. The provisions are clear and unambiguous and should be construed without any embellishments. See EZENWO VS FESTUS (No. 2) (supra) at 371. The use of the word and in the circumstance is patently conjunctive in line with its ordinary usage. See DASUKI V. DIRECTOR GENERAL STATE SECURITY & ORS (2019) LPELR-48113(CA). Where an application for the issuance of pre-hearing notice was made prior to the service of the last pleading in the petition, such application would be incompetent. See MAKU VS SULE (supra) and EZENWO VS FESTUS (No. 2) (supra). – Per J. O. K. Oyewole, JCA

ADMISSION – FAILURE TO CONTROVERT FACTS DEPOSED TO IN AN AFFIDAVIT BY THE ADVERSARY IMPLIES AN ADMISSION

…the failure of the Appellants to challenge the facts deposed to by the 2nd Respondent was an admission of those facts and arguments now canvassed before us in this regard are after-thoughts which have no legal basis. The law is trite that failure to controvert the facts deposed in an affidavit by the adversary implies an admission of the facts so deposed. See ATANDA VS. OLANREWAJU (1988) 4 NWLR (PT 89) 394, MILITARY ADMINISTRATOR FHA VS ARO (1991) 1 NWLR (PT 168) 405 and LONG-JOHN & ORS VS BLAKK & ORS (1998) LPELR-1791(SC). – Per J. O. K. Oyewole, JCA

SERVICE OF PROCESSES – DUTY OF PARTIES TO ESTABLISH SERVICE BY EVIDENCE WHERE SUBSTITUTED SERVICE HAS BEEN ORDERED

Service of processes even where an order of substituted service has been made must be established by evidence that the said service had been effected with the date and time of service clearly stated. Such evidence is placed before the Court by whoever effected the service and can depose positively to the facts relating thereto. Where the affidavit of service is unchallenged, the Court is bound to accept it as evidence of service. See AG ANAMBRA STATE & ORS VS OKEKE & ORS (2002) LPELR-604(SC) at Page 9. The Appellants by exercise of some minimal diligence could have easily ascertained when their process in issue was served from the Tribunal’s registry. The lapse of the Appellants to do this cannot be shifted to the hapless staff of the Tribunal’s registry who are not in a position to defend themselves in this appeal.  – Per J. O. K. Oyewole, JCA

PRE-HEARING NOTICE – WHERE A PARTY FAILS TO FILE AN APPLICATION FOR PRE-HEARING NOTICE WITHIN THE STIPULATED TIME

It is beyond contention that the Appellants failed to file any application for the issuance of pre-hearing notice throughout the duration of the said 7 days. Where such a lapse occurs, paragraph 18 (3) of the First Schedule envisages the filing of an application to dismiss the petition but Paragraph 18 (4) even gives the trial Tribunal powers to suo motu dismiss such a petition. This to my mind settled all agitations about whether the application to dismiss the petition could be taken outside pre-hearing proceedings.  – Per J. O. K. Oyewole, JCA

 

ELECTION PETITIONS – NATURE OF ELECTION PETITIONS – DUTY OF PARTIES TO COMPLY WITH THE STIPULATED PROCEDURE OF ELECTION PETITIONS

Election proceedings are sui generis and the stipulated procedure must be scrupulously complied with otherwise a defaulting petitioner or party would only have himself to blame. The moment the Appellants failed to activate the issuance of pre-hearing notice within the stipulated period they had abandoned their petition and there was nothing before the trial Tribunal upon which it could adjudicate any further. This is different from objections contemplated by Paragraph 12 (5) of the First Schedule, Section 132 (7) of the Electoral Act and 285 (8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in respect of which ruling would be delivered along with the final judgment.  – Per J. O. K. Oyewole, JCA

ABANDONED PETITION – CONDUCT OF COURTS/TRIBUNALS TO AN ABANDONED PETITION – WHEN A PROCESS IS FILED PREMATURELY

A Tribunal cannot adjudicate upon an abandoned petition as any such act will be null, void, and of no effect. See OMISORE & ANOR VS AREGBESOLA & ORS (2015) LPELR-24803 (SC) OKEREKE VS YAR’DUA & ORS (2008) LPELR-2446(SC), EZENWO Vs FESTUS (No. 2) (Supra) and MAKU VS SULE (supra) where ODILI, JSC propounded the position of the law at pages 271-272 thus:

The instant case falls squarely within the first segment of the provisions of paragraph 18 of the First Schedule to the Act. The petitioners/appellant’s second application dated and filed on 11th July, 2011 was simultaneously filed with the reply on the 3rd respondent’s Reply.

The application was premature and therefore incompetent having been filed in violation of the provisions of paragraph 18(1) of the First Schedule to the Electoral Act, 2010 as amended.

The consequence of such breach is captured in the case of AZUDIBIA v. INEC (2008) 4 LRECN 705 at 126 where it was held per Kekere-Ekun, JCA:

A process filed prematurely is a mere piece of paper without any legal consequence. A condition precedent to the filing of an application for issuance of prehearing not be is that pleadings must have closed or are deemed to have closed. Until the happening of the condition precedent, there can be no competent application for pre-hearing notice before the tribunal. In the circumstance, I have no doubt in my mind, that the answer to the first issue ought to be in the positive to the effect that the lower Tribunal was right to have dismissed the instant petition (EPT/NS/GOV/04/2019) as an abandoned petition pursuant to paragraph 18 of the First Schedule to the Electoral Act, 2010, as amended.  – Per J. O. K. Oyewole, JCA

 

ELECTION PETITIONS – NATURE OF ELECTION PETITITIONS – CONDUCT OF COURTS IN ELECTION PETITIONS

It must be emphasized categorically that Election Petitions are sui generis. SeeEHUWA VS ONDO STATE INDEPENDENT ELECTORAL COMMISSION (2006) LPELR 1056. Where the Supreme Court held that

“It is not disputed that election petition proceedings are not part and parcel of ordinary civil proceedings of the ordinary Courts but sui generis and are usually specifically and specially provided for in legislations for that purpose. Such provisions include appeals against decisions of the election tribunals.” Per ONNOGHEN, JSC.

See also BUHARI VS YUSUF (2003) LPELR 872 where the Supreme Court held as follows;

“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 374 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 387 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. 277 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 DECTDED 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. ”

Per UWAIFO, JSC.

It is the failure of the Appellant to activate the issuance of pre-hearing notice within the stipulated time frame that is the thrust of this appeal. See OBAZEE VS EKHOSUEHI (2019) LPELR 49389 where it was held that

“This Court in ALL PROGRESSIVES CONGRESS (APC) V. SENATOR KABIRU GARBA MARAFA UNREPORTED DECISION IN 5C, 377/2019 delivered on 24th May, 2019 … held at page 34 per GALUMJE, JSC following OBIH V MBAKWE (1984) LPELR 2172(5C) that election or pre-election matters are in a class of their own and time is of the essence.”Per AKA’AHS, JSC. – Per U. I. Ndukwe-Anyanwu, JCA

COURTS – CONDUCT OF COURTS TO AN ABANDONED PETITION

The Appellants failed to file the application within the stipulated time as the application filed before that period were done prematurely and so are incompetent.

​The result is that petition was abandoned. The tribunal had only one option open to it, viz: to dismiss the petition and that without proceeding to hear it. It would have been absurd for the tribunal to proceed to hear a petition that has been abandoned and was therefore dead. The only proper thing to do was for the same to be given a decent burial by an order of dismissal.

In the case of Ezenwo v. Festus (No. 2) (2020) 6 NWLR (Pt. 1750) 343, 369 the Supreme Court held that Section 285(2) of the Constitution of Nigeria 1999, as amended, does not enact the absurd position of obligating the tribunal to hear an abandoned petition to its conclusion and that the hearing of an abandoned petition serves no purpose than an academic pursuit. It further held that pursuant to paragraph 18(4) of the 1st Schedule to the Electoral Act, the tribunal is empowered to legitimately dismiss an abandoned petition without the need to hear evidence on it.  – Per J. E. Ekanem, JCA

 

CASES CITED

NIL

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022

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