Action Congress Of Nigeria & Anor V. Raphael Nomiye & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling of the National and State House of Assembly Election Tribunal Akure Ondo State delivered on the 14th day of July, 2011 in which the Tribunal dismissed the petition of the appellants as abandoned for failure to apply for pre-hearing session as required by law. We heard the appeal on the 25th day of August 2011. We delivered judgment that same day dismissing the appeal and indicated that reasons will be given later. We now give the reasons.

The 2nd appellant, Rawa Felix Emiloju was sponsored by the 1st appellant Action Congress of Nigeria (ACN) in the election conducted by the 3rd respondent, INEC for the Ilaje/Ese-Odo Federal Constituency in the House of Representatives held on 9/4/2011. The 1st respondent, Raphael Nomiye sponsored by the 2nd respondent, Labour Party (LP) was declared the winner of the election with 29,905 votes. The 2nd appellant scored 3,394 votes. There were other candidates sponsored by other political parties including PDP whose candidate scored 22,945 votes.

Being dissatisfied with the declaration of the 1st respondent as the winner of the election, the appellants as petitioners on 29/4/2011 presented a petition before the Tribunal challenging the result of the election. The petition was wrongly headed “Senate/House of Representatives Tribunal”. The respondents filed their respective replies and therein raised objection to the competence of the Petition on the ground that it was presented before a Tribunal unknown to Law. The appellants filed their reply to the 2nd respondent’s reply on 23/5/2011 and to the 1st and 3rd respondents’ replies on 31/5/2011.

Then instead of applying for the issuance of pre-hearing notice as required by the Rules of Procedure of the Tribunal, the appellants proceeded to file a series of motions including one for the amendment of the heading of the petition. The Tribunal granted the amendment despite the objection of Counsel to the 3rd respondent that the hearing of the motion for amendment was premature as it should be dealt with during the pre-hearing session.

On 9/6/11, the 3rd respondent filed a motion to dismiss the Petition for failure of the petitioners to apply for issuance of pre-hearing notice, the time provided by the rules having lapsed. On that same 9/6/11 the appellants filed their amended petition and Forms TF007 and TF008. The two forms were apparently filed without any formal application or motion to the Tribunal and after the time allowed by the Rules had lapsed. The appellants claimed an oral application was made.

On 20/6/11, the 1st and 2nd respondents also filed a motion for the dismissal of the Petition on the ground that no application for issuance of pre-hearing notice was filed and that the hearing notice was issued after the time limited for so doing had lapsed.

The appellants filed a preliminary objection to the hearing of the respondents’ applications. All the applications were consolidated and heard by the Tribunal on 4/7/11. In its ruling delivered on 4/7/11, the Tribunal overruled the appellants’ preliminary objection, set aside the pre-hearing notice TF007 and dismissed the petition as abandoned.

Dissatisfied and aggrieved by this ruling, the appellants on 28/7/11 filed a notice of appeal with 12 grounds of appeal. It is pertinent to mention that the 1st respondent was not listed as a person directly affected by the appeal in the Notice of appeal. Another name appeared in place of the 1st respondent’s name. From the 12 grounds of appeal, the appellants formulated the following six issues for determination:

1. Whether the Tribunal erred in consolidating notice of preliminary objection of the Appellant dated 24/6/2011 and 1/7/2011 with the 1st and 2nd respondents’ application dated 20/6/2011 and 3rd respondent’s application dated 9th June 2011.
2. Whether the Tribunal has jurisdiction to entertain the application of the 1st and 2nd respondents dated 20/6/2011 and the 3rd respondent’s application dated 9th of June 2011
3. What is the exact interpretation of the application contained in paragraph 18 (1) of the Rules of Election Petition and whether the alleged failure to apply for pre-hearing session by motion is not an irregularity as to procedure and form and can the trial Tribunal under the rules of Procedure of Election Petition exclude the rules of Federal High Court 2009 and decisions of the Appeal Court and Supreme Court given pursuant to its civil jurisdiction from being applicable to the application before the Tribunal.
4. Whether the Tribunal can raise abandonment of the petition as a ground of dismissal of petition suo motu in its ruling on application of parties without hearing from any party in the petition on the said issue of law.
5. Whether the Tribunal can disregard the amended petition which it ordered in computation of time in respect of close of pleadings before the Tribunal.
6. Whether the ruling of the Tribunal dated 14/7/2011 which was not signed by the three judges of the Tribunal is valid and regular.

The 1st and 2nd respondents in their brief gave notice of a preliminary objection to the effect that the honourable court has no jurisdiction to hear and determine the appeal on the ground that the 1st respondent was not listed as a person directly affected by the appeal in the notice of appeal and no address for service was indicated for the 1st respondent. In the alternative, Counsel for the 1st and 2nd respondents identified just the following single issue for determination in this appeal:

1. Whether in the circumstances of this case the learned members of the Election Tribunal were right when they dismissed the petition on the ground that no application for the issuance of Notice of pre-hearing session was made by the petitioner.

Learned Counsel for the 3rd respondent in his brief formulated the following three issues for determination:

1. Whether the Tribunal was right in considering/hearing the respondents’ ‘application’.
2. Whether the amendment of a petition reopens pleadings for the purpose of computation of time within which a petitioner should apply for a pre-hearing session under paragraph 18 of the rules of procedure for Election Petitions.
3. Whether the failure of the Petitioner to formally apply for the issuance of a pre-hearing notice is fatal to the Petition.

Learned Counsel in his brief also contended by way of preliminary objection that the appeal is incompetent and should be struck out on the ground that there is no valid notice of appeal as all the grounds of appeal are incompetent, argumentative and replete with legal conclusions. Further, that the issues formulated from the grounds are incompetent for various reasons.

When the appeal came up for hearing, the court on the application of the appellants. Counsel and in the absence of opposition from the respondents granted leave to the appellants to amend paragraph 5 of their notice of appeal by deleting Arowele Samuel Ayodeji from the list of persons directly affected by the appeal and adding Raphael Nomiye the 1st respondent in this appeal. This then rendered otiose the preliminary objection of the 1st and 2nd respondents which they consequently abandoned. Learned Counsel for the 3rd respondent allowed the appellant’s counsel to argue his brief without moving his own preliminary objection and thereby is deemed to have abandoned same. In spite of the criticism of the issues formulated by the appellants, the 3rd respondent’s counsel in discussing his lone issue dealt with nearly all the issues raised by appellants’ counsel. I shall consequently adopt the issues formulated by the appellants in the determination of this appeal notwithstanding that some of the issues could have been more elegantly and concisely framed.

Issue 1: