Senator Bello Sarakin Yaki (Rtd) & Anor V. Senator Atiku Abubakar Bagudu & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

This appeal involves the consequence of failure to comply with the provisions of Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 as amended. It provides:

“Para. 18(1):

Within 7 days after the filing and service of the petitioner’s reply as the respondent or 7 days after the filing and service of the respondent’s reply, as the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 008.”

It is not in dispute that the last date for the appellants as petitioners to apply for the issuance of the pre-hearing notice was the 7th day of June, 2015 nor is it in doubt that the appellants actually filed the application for the issuance of the pre-hearing notice on 8/6/2015. Paragraph 18(3) gives the respondent a choice jn case of failure by the petitioner to comply with Paragraph 18(1), between bringing the application for the issuance of pre hearing notice or a motion on notice for an order dismissing the petition.

Where both the petitioner and the respondent fail to bring the application, the court or tribunal shall dismiss the

petition as abandoned. See Paragraph 18(4) which also provides that no application of extension of time to make the application shall be entertained. Paragraph 18(5) forecloses the reopening of the petition once dismissed. It provides:

“18(5) Dismissal of a petition pursuant to sub-paragraphs 3 and 4 is final and the tribunal or court shall be functus officio.”

Election matters are time-bound and provisions fixing time for taking any steps are strictly construed to emphasize that time is of the essence in election petitions. Without the strict compliance with Paragraph 18(1) reproduced above, any application for the issuance of pre-hearing notice or conduct of pre-hearing session will be exercise in futility for failure to comply with the pre-condition for same. See Okolo v. Union Bank (2004) 1 SC (Pt.1) for effect of failure to comply with condition precedent provided by law or rule.

Whether or not the motion to dismiss the petition was brought timely js a non-issue. The matter relates to the jurisdiction of the tribunal to hear the petition and a challenge to jurisdiction can be brought at any stage of the proceedings. See Bronik Motors v. Wema Bank (1983) 6 SC

158.

Even if the motion to dismiss the petition was not filed the Tribunal could have dismissed the petition by virtue of sub Paragraph 4 of Paragraph 18 of the 1st Schedule to the Act.

In a purely civil matter, the filing of a process a day after the period prescribed for the filing can be regularized on the application of the defaulting party. But in election matters, even a slight infraction of the rules, particularly those relating to time, can be fatal to the process filed. See Benson v. Allison (1955-56) WRNLR 58, Emerue v. Nkerenwen (1966) 1 All NLR 63, Ige v. Olunloyo (1984) 1 SCNLR 158. An election petition is a proceeding sui generis. See Buhari v. Yusuf (2003) 6 SC (Pt.11) 156.

In the circumstances, appellants could not have filed a motion for extension of time and if one had been filed it could not have been entertained by the tribunal. See Paragraph 18(5) of the 1st Schedule to the Act (supra).