Chief Okey Ikoro V. Hon. Osita Izunaso & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A.

The Governorship and Legislative Houses Election Tribunal, Imo state (henceforth) lower Tribunal) in a ruling delivered on the 25th of September, 2007, summarily dismissed the petition filed by the Appellant challenging the return of the 1st Respondent as the winner of the election for the Orlu senatorial seat on the ground that the Appellant did not apply for the issuance of pre-hearing notice within the time provided in paragraph 3(1) of the Practice Directions. This appeal is a result of the dissatisfaction by the Appellant with that ruling and is based on a single ground of error in law as follows:-

‘The learned Judges of the Governorship and Legislative Houses Election Petition Tribunal Imo State of Nigeria erred in law when they dismissed this petition.”

Fifteen (15) paragraphs of what were called “particulars of error” were set out on the Notice of Appeal from which the learned counsel for the Appellant distilled the following issue for determination at p. 40 of the Appellant’s brief of argument filed on 20th November, 2007:-

“Whether the petition was rightly dismissed for non-compliance with paragraph 3(1) of the Practice direction?”

In paragraph 3.01 at page 2 of the 1st and 2nd Respondents’ brief of argument filed on 7th December, 2007 and issue similar in substance to the above issue was formulated for determination in the appeal.

On their part, the 3rd – 1693rd Respondents at paragraph 2.01 of their brief of argument filed on the 11th of December, 2007 adopted the issue as formulated by the Appellant.

In addition, they also raised a preliminary objection on the competence of the Notice of Appeal, the notice of which was filed on lame date with their brief of arguments that is 11th December, 2007.

At the hearing of the appeal on the 28th of January, 2008, the briefs of argument filed were adopted and relied on as submissions of learned counsel in support of their respective positions. In his oral submissions on the objection raised in the 3rd – 1693rd Respondents’ brief learned counsel for the Appellant said it was mistaken because the Notice of Appeal did not leave any doubt about the proceedings to which it relates and that the objection is only as to the forms of the Notice of Appeal. We were urged by him to discountenance the objection as it is only technical.

Without much ado and to avoid wastage of verbiage, after a leading of the Notice of Appeal contained at pp. 581-3 of the record of appeal in particular, and the submissions on the preliminary objection at pp. 1-3; paragraphs 3.02 -3.06 of the 3rd- 1693rd Respondents’ brief of argument, the objection is undoubtedly in the realm of crass technicalities which have long ago been excised from our judicial practice. The trend practice for sometime now particularly in election matters which are of a different and special nature is to do justice, even if only substantial, in matters that come before the courts regardless of the harmless deficiencies in form that may exist in the processes used to have access to the seat of justice where every citizen has the constitutional right to. See ONALO V. AGUDA (1997) 10 NWLR (526) 540, MIL. GOV. OF IMO STATE V. NWAUWA (1997) 2 NWLR (490) 675, ILOABACHIE V. ILOABACHIE (2000) 5 NWLR (656) 178, IWU V. NWUGO (2004) 9 NWLR (877) 54, OGBORU V. IBORI (2006) 17 NWLR (1009) 542.

Looking at the Notice of Appeal. I agree with the learned ‘ counsel for the Appellant that it leaves no doubt about the decision to which it relates or the complaint of the Appellant against that decision.

Let me remind learned counsel that the essence of a Notice of Appeal is to give adequate notice in the ground/s’ of what the complaint is against the decision appealed from to both the Respondents and the court to which the appeal was made. See ADEROUNMU V. OLOWU (2000) 4 NWLR (652) 253, IBRAHIM V. OSUNDE (2003) 2 NWLR (804) 2, OGBEBOR V. DANJUMA (2003) 15 NWLR (843) 403.Appellant’s Notice of Appeal in addition to meeting the above criteria has also satisfied the other requirements for what a Notice of Appeal should contain under Order 6 Rule 2(1) and (2) of the Court of Appeal Rules, 2007. The particulars to the ground may be said to be verbose and prolix, but not vague since the real complaint can easily b6 discerned from them. For the above reasons I find the objection to the Notice of Appeal lacking in merit because it only attacks the form but not the substance of the notice. It fails and is accordingly dismissed.

I now turn to the submissions of learned counsel on the lone issue in the appeal.

After making reference to the findings of the lower Tribunal at pp. 539-540 of the record of appeal, learned counsel for the Appellant had submitted that the most fundamental canon of interpretation of statutes is that the words of the Statute be constructed purposively and wholistically. He cited the cases of P.D.P. VS. INEC (1999) 11 NWLR (626) 200 @ 241 and AQUA LTD V. ONDO STATE SPORTS COUNCIL (1998) 4 NWLR (91) 622 @ 654-5 on the point and said where no reply was served at all and the time for filing a reply has expired then, Time may run under paragraph 3(1) of the Practice Direction though not expressly provided. It was his contention that the words of the paragraph contemplates that a reply shall be filed for it to come into operation and that due provisions had been made in paragraphs 10 and 12(1) of the 1st Schedule to the Electoral Act for failure to file a reply within the time allowed’ That paragraph 3(1) did not provide for a penalty either for failure to file a reply in relation to pre-trial session or failure to serve such reply and that the lower Tribunal could not ignore the decision in IJBA V. NWORA (1978) 11 – 12 SC 1 and BUHARI V. OBASNJO (2003) 15 NWLR (843) 236 @ 256-7 on compliance with the paragraph. According to learned counsel, since the Respondents’ reply had been filed’ the end of justice would have been served if the parties were given a fair hearing on their dispute in the absence of compelling reasons not to hear the parties on the merit’ Further that the lower Tribunal had already set the matter down for pre-trial session and none of the parties complained but turned later and held that the Appellant had not complied with paragraph 3(1) by failure to apply for issuance of pre hearing notice within 7 days from 27th September, 2007. He argued that by the later decision, the lower Tribunal had re-written paragraph 3(1) into what was not enacted and punish the Appellant for late filing and service on him of the Respondents’ replies’ Pages 541 of the record of appeal was referred to by learned counsel who said the Practice Directions were enacted as handmaid of justice relying on the authorities of S.B.N. PLC V. KYENTIJ (1998) 2 NWLR (536) 41 @ 59 and HARUNA V. MODIBBO (2004) 16 NWLR (900) 487 @ 559 – 60. That the Appellant was served with Respondents’ replies on 14th August, 2007 after which he filed his own reply and so was well within seven days to reapply for notice of pre-hearing by the 15th of August, 2008 when the petition was first fixed for pre-hearing session. It was submitted that an application for pre-hearing notice to issue only serves the purpose of igniting and activating the issuance of the notice by the lower Tribunal but that the petition had already been fixed or set down for preliminary session by the lower Tribunal without any complaint at all from any of the parties. We were urged to allow the appeal, set aside the decision of the lower Tribunal and order that the Appellant’s petition be relisted for trial on the merit. For the 1st and 2nd Respondents’ it was submitted that pleadings in the petition before the lower Tribunal were deemed closed on the 7th of July, 2007, when the time for the 3rd – 1693rd Respondents were supposed to have filed their replies expired since they did not enter an appearance from the 18th of June, 2007 when they were served with the petition. Paragraphs 7(2) and 12(1) of the 1st Schedule to the Electoral Act were set out and it was argued that the lower tribunal was therefore right when it held that it is the tine provided in the First Schedule to the Electoral Act that should be reckoned with in the computation of time for the purposes of paragraph 3(1) of the Practice Direction’ This latter paragraph was set out by learned counsel who contended that time was of the essence indisposing of election petitions that why the Practice Directions were couched in mandatory terms, He said to hold that the time for an application under paragraph 3(1) shall start to run from the date of filing the Petitioners’ reply would not be in the spirit of the Practice Directions because it would mean that where any Respondent failed to file a reply in this the time allowed by the Directions but did so long after the expiration of the time, the time will start running that day. It was submitted that it be absurd for that interpretation and that the lower Tribunal used the golden rule of interpretation in the computation of time. The cases of PDP V. INEC (1999) 11 NWLR (626) 200 @ 261 and NAFIU RABIU V. KANO STATE (1981) 2 NCLR 293 were relied on by learned counsel. Furthermore, it was said that a vigilant and diligent petitioner would go ahead to apply for a pre-trial notice as soon as the time for filing the Respondents’ reply had elapsed. That Appellant was bound to prosecute his petition diligently and if he fails to do so he cannot blame the lower tribunal for invoking applicable and relevant provisions of the law in determining it. In addition it was submitted that the Practice Direction have the force of law and the use of the word “shall” in paragraph 3(1) means “must” be obeyed as they do not admit any circumvention, but are mandatory in election petitions. The cases of FOLARANMI V. ABRAHAM (2004) 10 NWLR (881) 431 @ 454-55 and ABUBAKAR V. INEC (2004) 1 NWLR (854) 207 among others were cited to support the submission. That the Appellant’s non-fulfilment of the condition precedent the exercise of the Tribunal’s jurisdiction can be raised at any stage of the proceeding as was done by it on the authority of NALSA & TEAM ASSOCIATES v. NNDC (1996) 3 NWLR (439) 621 and BOYI HASSAN (2001) 18 NWLR (744) 41.