Alhaji Badamasi Ayuba & Anor V. Independent National Electoral Commission (INEC) & Ors (2009)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

The appellants in this appeal, by their joint petition No. EPT/KNS/HR/3/2007 dated and filed on the 11th day of May, 2007, challenged the declaration and the return of the 4th respondent on the ground that the 1st appellant, was the validly nominated candidate of the 2nd appellant who ought to be returned as the elected member of the Federal House of Representatives, representing Dambatta/Makoda Federal Constituency at the election held on the 21st day of April, 2007 conducted by the 1st – 3rd respondents. The 4th respondent, filed his reply to the petition dated 18th May, 2007 and filed on the 19th day of May, 2007 and same was served on counsel to the petitioners on the 28th day of June, 2007, while the 1st – 3rd respondents filed their joint reply dated 4th June, 2007 and filed on the 5th day of June 2007 and same was served on the 1st appellant/petitioner’s counsel on the 11th day of June, 2007. On the 23rd day of July, 2007, the appellants filed their Motion on Notice before the Tribunal praying for the issuance of pre-hearing session as in Form TF 007 as required by the Tribunal and Court Practice Directions 2007. The motion is contained at pages 183 – 184 of the printed record and it reads as follows:

“TAKE NOTICE that this Honourable Tribunal shall be moved on the day of 2007 at the hour of 9′ O’clock in the forenoon or soon thereafter as counsel may be heard on behalf of the applicant for:

1. AN ORDER ISSUING THE FORM TF007 AND OTHER PRE-HEARING SESSION DOCUMENTS AND TO SCHEDULE THE PRE-HEARING SESSIONS.
2. FURTHER OR OTHER ORDERS as the Honourable Tribunal may deem expedient in the circumstances.”

The said motion was supported by a, seven (paragraphs affidavit deposed to by one Mathew Jubille Aigbe, Male, a Legal Practitioner with the Chambers of Mohammed Shuaib counsel to the petitioners/appellants. Paragraphs 2, 3, 4, 5 and 6 of the affidavit are as follows:-

“2. That I have the consent of the petitioners/applicants as well as the authority of my employers to depose to the facts herein contained.

3. That facts to which I depose to this affidavit are facts within my personal knowledge as well as from documents at my disposal.
4. That I know as facts vide a letter dated the day of 2007, we applied on behalf of the applicants for the issuance of the Form TF007 and the other pre-hearing documents.
5. That upon enquiry as to why up to this moment the said documents had not been issued, we were made to understand by the staff of this Tribunal that there is a new directive from the Chairman that all such applications should come by was of motion.
6. That it will be in the interest of justice to grant this application.”

The motion was opposed by all the respondents on the ground that the motion asking for the issuance of pre-hearing session as in Form TF007 was filed outside the time stipulated by the said Practice Directions 2007. The Tribunal having heard all the parties, delivered its ruling on the 9th day of August, 2007 and held that the application requesting for pre-trial session as in Form TF007 was brought outside the time required by the said Practice. Directions, 2007 and struck out the petition. The Tribunal at page 237 of the record held:

“It is our view that the petitioners are wrong in their contention. It is totally unacceptable that the petitioners will keep on waiting for the 1st – 3rd respondents to regularize their irregularity filed joint reply to the petition. Contrary to the submission of learned counsel to the 1st respondent as to the import of paragraph 3(1) of the Practice Directions 2007, our understanding of that paragraph is that where more than one respondent files reply to the petition within time the last in time to be served on the petitioners among those replies filed would serve as basis to the computation of seven (7) days within which the petitioners ought to have applied for pre-hearing notice as in Form TF007 accompanied by Form TF008. However, where only one respondent files a reply the petitioner can still apply for pre-hearing notice provided the time for other respondents to file reply has lapsed.

From all that has been said above the inescapable conclusion we have come to is that the present application for pre-hearing filed by the petitioners on 23rd July, 2007 was filed out of time in breach of the provisions of paragraph 3(1) of the Practice Directions, 2007, having been filed out of time, it is hereby refused. The implication of the foregoing is that there is no application for the issuance of pre-hearing notice within the contemplation of paragraph 3(1) of the Practice Directions. In the circumstance, we hereby invoke the provisions of paragraph 3(4) of the Practice Directions, 2007 to dismiss the petition as an abandoned petition.”

The appellants were not satisfied with the ruling dated the 9th day of August, 2007 as a result, the appellants filed a notice of appeal against the said ruling dated the 27th day of August, 2007, containing five grounds of appeal at pages 239 – 242 of the record.

In accordance with the Rules of Practice and Procedure of the court, briefs of argument were filed and exchanged between the parties to this appeal.

At the hearing of the appeal which came up on the 3rd day of March, 2009, counsel to the parties adopted their respective briefs without advancing any oral argument.

The appellants in their joint brief of argument dated the 31st day of March, 2008 and deemed filed 14/4/08 formulated five issues for determination in this appeal at page 6 of the amended appellants’ brief of argument as follows:

“a. Whether or not the entire ruling of the Honourable Justices of the Kano State Election Tribunal dated 9th August 2007 in respect of this case is A NULLITY.

b. Whether the refusal of the learned Justices of the Kano State Election Tribunal to allow the appellants to address them on the issue they raised suo moto before their ruling which dismissed the petition amounts to denial of fair hearing.