Hon. Ekwueme Uzuamaka Precious & Ors v. Independent National Electoral Commission & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This appeal is against the decision of the Imo State National and State House of Assembly Election Petitions Tribunal delivered on 25/05/2023 dismissing the petition pursuant to paragraph 46(1) and (3) of the First Schedule to the Electoral Act, 2022.

Briefly, the facts of the case are that the tribunal had in its schedule of hearing assigned three days to the petitioner for the presentation of her case. On 25th May, 2023, being the first day fixed for hearing, neither the petitioner nor her witnesses were present in court but counsel for the petitioner who was in court prayed for an adjournment to the next day. However, upon the objections of counsel to the respondents the tribunal in a bench ruling dismissed the petition at page 559 of the record of appeal as follows:

This petition was adjourned till today for hearing after the pre-trial session. The petitioner who has listed 15 witnesses for hearing; Neither the petitioners nor the witnesses of same are in court. No good reason has been advanced for the absence of the petitioners and their witnesses. By paragraph 46(1) and (3) 1st Schedule to the Electoral Act which summarily provides that on a date when the petition is slated for hearing and the petitioner is absent from the scheduled hearing, the petition shall be dismissed.

We are bound as a tribunal by the mandatory wordings in which the provisions of paragraph 45 (sic) (1) and (3) 1st Schedule to the Electoral Act, 2022, is cached (sic) having in mind that Election Petitions by its nature are sui generis and therefore time bound. This petition No. EPT/IM/HR/07/2023 is hereby dismissed.

The appellants were dissatisfied with the tribunals decision and therefore appealed to this court through a notice of appeal, filed on 7th June, 2023. Distilled from the said notice of appeal, appellants formulated a sole issue for determination by this court as follows:

Whether or not the Hon. Tribunal was correct to have dismissed the petition of the appellants.

The 1st and 2nd respondents also formulated a sole issue thus:

Whether the honourable tribunal rightly relied on paragraph 46(1) and (3) of the 1st Schedule to the Electoral Act, 2022, in dismissing the petition.

On the part of the 3rd respondent, two issues were crafted for the determination of this appeal and the issues are:

1. Whether the appellants as petitions were denied their right of fair hearing.
2. Whether the trial tribunal was right in dismissing petition number EPT/IM/HR/07/2023.

I have carefully considered the above formulations vis-a-vis the record of the appeal. While the sole issue of both the appellants and the 1st and 2nd respondents are seemingly the same, the two issues formulated by the 3rd respondent can conveniently be subsumed into any of the sole issue aforesaid. I will in the circumstance determine the appeal using the appellants’ sole issue, being apt and quite apposite to the just determination of the appeal.

Arguing the sole issue on behalf of the appellants, learned counsel submitted that the appearance of counsel in court is the same as the appearance of his client (the party) in court and that the lower Tribunal erred in its interpretation of paragraph 46(1) and (3) of the First Schedule to the Electoral Act, 2022. In aid, counsel relied on the authority in the case of Kehinde v. Ogunbunmi & Ors. (1967) LPELR 25374 (SC) to the effect that the rights of the parties may be exercised on his behalf by a legal practitioner. Thus, appearance by counsel in court is also equivalent to appearance by his client.

Still in argument, counsel submitted that paragraph 46(1) and (3) of the First schedule to the Electoral Act, 2022 does not in its meaning and application empower the court to dismiss a petition on the ground of absence of the petitioner without more, when counsel to the petitioner is present in person as the appearance of counsel equals to the appearance of the petitioner.

In further argument, counsel submitted that paragraph 46(1) and (3) to the Electoral Act , though sounding in mandatory terms with the use of the word shall is nevertheless to be construed as merely directory in the sense that the petitioner was yet to exhaust the opportunity given to her to present her case. He referred to Gitto Construzioni General Nigeria Ltd, Anor. v. Etuk & Anor. (2013) LPELR 20817 (CA) to the effect that the word shall in a statute may be interpreted as may and vice versa depending on the circumstances in order to avoid injustice and to carry out the best intention of the legislature.