Callistus Udochukwu Azudibia V. Independent National Electoral Commission (INEC) & Ors. (2008)

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SULEIMAN GALADIMA, J.C.A.

This is an appeal against the Ruling of the Governorship and Legislative Houses Election Petition, Imo State of Nigeria holden at Owerri, delivered on 17th day of September, 2007. The lower Tribunal dismissed the petitioner’s (now the Appellant) petition for failure on his part to apply for the issuance of pre-hearing notice in accordance with the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions 2007. The Tribunal held as follows

“The petitioner in this case brought his application on 24/7/2007, exactly 9 days before the 3rd Respondent’s reply was served on him. The application for substituted service was made by the Petitioner, so he ought to have known that the 3rd Respondent was still within time to file her reply by the time he made the application for pre-hearing notice. We are therefore constrained to hold that the application made by the petitioner on 24/7/01 for a pre-hearing notice is incompetent, and it is hereby struck out. There being no other application for a pre-hearing notice duly made within 7 days after the filing and service of the reply of the 3rd Respondent on the Petitioner, before the Tribunal the provisions of paragraph 3(1) of the Practice Directions must be invoked to dismiss the petition.”

Dissatisfied with this Ruling, Appellant filed his Notice of Appeal containing 5 grounds with their particulars. I do not deem it necessary to reproduce the grounds and their particulars before the determination of this appeal. However, the following two issues were formulated for determination of this appeal, as gleaned from paragraphs 3(1) and (2) of the Appellant’s brief of argument filed on 51/12/2007 by his counsel:

“1. Whether the Tribunal below was right in dismissing the Appellant’s petition pursuant to the provisions of the Election Tribunals and Courts Practice Directions, 2007 having regard to the facts and circumstances of this case.

2. Whether dismissing the Appellant’s petition without trial did not constitute an infringement of Appellant’s right to fair hearing.”

On behalf of the 1st, 2nd and 4th Respondents’ their learned counsel, OLACHI NWAUGO Esq., formulated or raised no separate issues for determination of the appeal in their brief of argument dated and filed on 31/1/2008. They simply adopted the two issues distilled for determination by the Appellant. Similarly, the 3rd Respondent as well adopted the said two issues formulated by the Appellant in his brief of argument dated and filed on 23/1/2008.

On the 7th day of April 2008 this appeal came up for hearing. Learned counsel for the Appellant, L.M. ALOZIE Esq., adopted the Appellant’s brief of argument, without further amplification on the issues. He however referred us to unreported decision of this Court delivered on 28/2/2008 in Appeal No. CA/PH/EPT/350/2007 and urged us to allow the appeal. Arguing the first issue from the Appellant’s brief of argument, learned counsel conceded that from the provisions of paragraph 3(1) of the Practice Directions 2007, the time allowed the petitioner to apply for a pre-hearing session is within 7 days of his filing and service of his reply to the Respondent’s reply to his petition, or 7 days after service on him of the Respondents’ reply to the Petition, whichever is the case. It is submitted that there are two circumstances when the Tribunal may dismiss a petition to wit: Firstly where a Respondent brings a motion for the dismissal of the petition for non-compliance with paragraph 3(1) of the Practice Directions. Secondly, where from the circumstances the Tribunal can draw an inference that the petition has been abandoned. It is contended that the Tribunal cannot come to the conclusion that the petition has been abandoned in the absence of laxity on the part of the Petitioner in the prosecution of the petition. In this case, the learned counsel has argued that the Appellant has shown diligence in prosecuting his appeal and he cannot be said to have abandoned his petition. It is argued that where a party is out of time in taking any steps required of him the prosecution of his case, an extension of time can always be granted him, especially in cases of this nature where lapse of time is not inordinate. That paragraph 43(1), (2), (3), (4), (6) and (7) of the first schedule to the Electoral Act, 2006 make provisions for enlargement of time for doing any act or taking any step in the proceedings as the justice of the case may require, except otherwise provided by any other provisions of the Schedule. It is submitted that there is no other provision of the 1st Schedule to the Electoral Act that makes the provision contrary to that contained in paragraph 43. That by virtue of paragraph 50 of the First Schedule to the “Electoral Act, the Practice and procedure of the Tribunal in relation to an election shall be nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of the Act, as if the petitioner and respondent were respectively the plaintiff and the Defendant in an ordinary action. It is submitted that the provisions of paragraph 3 of Practice Directions are similar to the provisions of Order 38 Rules 1, 2, 3, 4, 5 and 6 of the Federal High Court (Civil Procedure) Rules 2000. That there is no reported case of a suit being dismissed for default of a plaintiff in making an application,

It is submitted that the Practice Directions is a subsidiary legislation, a mere rule designed to ensure expeditious, fair and just determination of cases before the Tribunals, its provisions cannot therefore override the provisions of Section 151 of the Electoral Act or paragraphs 43 and 50 of the First schedule to the Electoral Act. Reliance was placed on the cases of BUHARI v. YUSUF (2003) 14 NWLR (PT.841) 446 @ 545 C-D; HARUNA v. MODIBBO (2004) 16 NWLR (PT.900) 487; SOLANKE v. SOMEFUN (1974) ALL NLR (PT. 1) 141; and UNIVERSITY OF LAGOS v. AIGORO (1985) 1 NWLR (PT.1) 143. It is further submitted that paragraphs 3(4)and 3(5) of the Practice Directions are in conflict and inconsistent with paragraphs 43, 49(1) and 50 of the 1st Schedule to the Electoral Act and order 23(3) and also order 38(1), (2), (3), (4) and (5) of the Federal High Court (Civil Procedure) Rules 2000 and section 36 of the 1999 Constitution of the Federal Republic of Nigeria. It is urged on us to declare paragraphs 3(4) and 3(5) of the Practice Directions null and void and of no effect.

It is contended that the records show that the 3rd Respondent was served with the petition on 26/5/2007. She only filed her Reply thereto on 27/7/2007, out of 21 days allowed under the 1st Schedule to the Electoral Act 2006. That the other Respondents never filed anything at all. It is therefore submitted that the Appellant was right in applying for a notice of pre-trial session when he did. It is argued that assuming that the 3rd Respondent was served with the petition on 7/7/2007, the filing of an application for pretrial session prematurely cannot be fatal to a petition that is against the 3rd Respondent only. It is equally submitted that by failing to apply by way of a motion for the dismissal of the petition, the irregularity, if any, has been waived by the Respondents especially the 3rd Respondent. That under section 14(b) of the Interpretation Act, Laws of the Federation of Nigeria 1990, in an enactment, words in singular include the plural and words in plural include the singular. It is therefore submitted that the words “Respondent’s Reply” in paragraph 3(1) of the Election Tribunal and Court Practice Directions 2007 means “Respondents’ Replies.” That the paragraph 3(4) cannot be invoked unless and until all the Respondents have served their replies on the Petitioner and he fails, after 7 days to apply for a pre-trial conference.

It is finally submitted that Practice Directions is in the nature of Rules of Court. In a Rule of Court the word “shall” may be given directory or peremptory connotation. Learned counsel relied on KATTO V.CBN (1991) 9 NWLR (PT.214) 126.

On issue No. 2 learned counsel for the Appellant submitted that tire right to bring his petition before the lower Tribunal is guaranteed under section 285(2) of the 1999 Constitution. That a breach of fair hearing in a trial or adjudication vitiates the proceeding and renders same null and void and of no effect. Any judgment or decision given without due compliance with and in breach of the fundamental right to fair hearing is a nullity and must be set aside. He relied on ZABOLEY INT. LTD v. OMOGBEHIM (2005) 17 NWLR (PT.953) 200 and WAPPAH v. MOURAH (2006) 18 NWLR (PT. 1010) 18 and MAINS VENTURES LTD v. PETSOPLAST IND. LTD (2000) 4 NWLR (Pt.651) 151 @ 164. It is contended that the interpretation and application of paragraph 3(4) of the Election Tribunal and court Practice Directions 2007 was made in such a manner that it infringed on the Appellant’s right to fair hearing and it occasioned a miscarriage of justice.

It is finally submitted that having regard to the facts and circumstances of the dismissal of the Appellant’s petition his fundamental rights was grossly breached and violated. Reliance was placed on the case of MIRCHANDANI v. PINHEIRO (2001) 3 NWLR (PT. 701) 557 @ 573. It is urged that issue No. 2 be resolved in favour of the Appellant

On the 1st issue learned counsel for the 1st, 2nd and 4th Respondents responding on their behalf submitted that the application for the issuance of Form TF 007 filed by the petitioner on 24/7/2007 is not the type contemplated by the provisions of paragraph 3 of Election Tribunal and court Practice Directions, 2007 and is therefore incompetent. That the paragraph provided for the application to be filed by either the petitioner or the Respondent after the close of the pleadings by the parties who are within the time stipulated. Learned counsel does not see any inconsistency of paragraph 3(1) with the provisions of paragraphs 10 and 16 of the 1st schedule to the Electoral Act, 2006 which contain explicit scheduling for filing of Reply to a petition and the Petitioner’s Reply. It is explained that a Respondent required to file his Reply in any event, within 21 days after the service of the petition. The Petitioner is required to, within 5 days, after the receipt of the Respondent’s Reply file a petitioner’s Reply, where the Respondent’s Reply raises some fresh issues.

It is submitted that it is after the close of pleadings that the application for issuance of Form TF 007 can validly be filed within the provisions of paragraph 3 of the Practice Directions. The attention of the Court is invited to the use of the word “SHALL” in the requirement for the filing of Form TF 007 7 days “AFTER” the close of pleadings. That it has been held that the word “SHALL” used in a statute or rule of court makes it mandatory that the rule must be observed. That it is a word of command and denotes an obligation thereby giving no room for discretion. Reliance was placed on the cases of MOKELU v. FEDERAL COMMISSIONER FOR WORKS AND HOUSING (1979) 3 SC 35; AREYEGUN v. ADEBANJI (1976) 11 SC 33; IFEZUE v. MBADUGHA (1984) 1 SCNLR 427; KATTO v. CENTRAL BANK OF NIGERIA (1991) 9 NWLR (PT. 214) and KALLAMU v. GURIN (2003) 16 NWLR (PT.847) 493 @ 517.