Gabriel Torwua Suswam V. Prof. Steven Torkuma Ugba & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment)

REASONS FOR THE JUDGMENT DELIVERED BY ALI ABUBAKAR BABANDI GUMEL, J.C.A. ON FRIDAY 16TH DAY OF SEPTEMBER, 2011

On the 15th-09-2011, this court heard this appeal. In my judgment of 16th-09-2011, I dismissed the appeal for being unmeritorious and indicated then that I would give my full reasons later. I now do so today 22nd -09-2011.

In arguing his single issue for the determination of this appeal, Learned Counsel to the Appellant referred to and reproduced paragraphs 18(1) and 47(2) of the 1st schedule to the Electoral Act 2011, as amended (hereinafter referred to simply as paragraphs 18(1) and 47(2).) Further to this, learned counsel emphasized and underscored the expressions “Shall Apply” in paragraph 18(1) and “Shall be served on the Respondents” in paragraph 47(2). Upon this exercise Learned Counsel then explained that a proper interpretation of these provisions, if read together, will show that all applications contemplated therein to be made to the Lower Court must be by way of a motion on notice and which must be served on the opposing parties. According to Learned Counsel, the Procedure of bringing on application by motion Ex-parte, as in the instant matter, is unknown to the Electoral Act 2010, as amended (hereinafter referred to simply as Electoral Act, 2010).

Upon this foundation Learned Counsel went on further to submit that the service of the application for issuance of pre-hearing notice on the respondents is mandatory and where a Court made an order Ex-parte, for the same purpose, as in the instant case, it was bound to set it aside upon a proper application made to it in that behalf . He relied on the Supreme Court decisions in OKOYE V. CENTRE POINT MERCHANT BANK LTD (2008) 7- 12SC I and MARK V. EKE (2004) 1 SC (Pt.2) 1. Learned counsel went on further to quote copiously from the judgment of MUSDAPHER JCA in MARK V. EKE (Supra) and OGUNTADE, JSC in OKOYE V. CENTRE POINT MERCHANT BANK LTD (Supra).

Learned Counsel to the Appellant continued his arguments by emphasizing that the issuance of a Pre-hearing notice upon an Ex-parte application did not Proceed from a valid application within the meaning of paragraph 18(1) and urged this Court to so hold.

According to Learned Counsel to the appellant , the word “application” in paragraph 18(1) must meet the requirements of paragraph 47(2) which provides for all applications to the Lower Court to be made by way of a motion and which must be served on the Respondents to it. In support of this, Learned counsel referred to and quoted very generously from the decisions of the Supreme Court in OKEREKE V. ‘YAR ADUA (2008) 12 NWLR (pt.1100) 95 and NWANKWO & ORS. v. ‘YAR ADUA (2010) 12 NWLR (Pt.1209) 518. In highlighting the crux of the matter in this appeal, Learned Counsel began by underscoring the fact that the Supreme Court was concerned with the construction, interpretation and application of pari-materia provisions in OKEREKE (Supra) with paragraph 18(1), 18(2), 18(3) and 18(4). In addition to this, Learned Counsel pointed out that these are mandatory provisions and must be complied with. In addition to the supreme Court decision in NWANKWO V. ‘YAR ADUA (Supra) that all the provisions of the Practice Direction are mandatory and require full compliance Learned Counsel referred to the un-reported decision of this Court in ALHAJI BADAMASI AYUBA V. INEC & OTHERS. IN APPEAL NO.CA/K/EP/NA/15/2007 delivered on 14/5/2009 on the mandatory nature and the need to strictly comply with the provisions of the Practice Direction, where it was further held that the application envisaged to be made under a similar provision to paragraph 18(1) must necessarily be made by way of a motion. Learned Counsel went a step further to maintain that the only application envisaged under paragraph 18(1) is on application in a motion on notice duly served on the Respondents.

Though the facts and circumstances of the cases of AYUBA V. INEC (Supra) and GARBA ADO V. MAKERA (2009) 9 NWLR (pt.1147) 391 and HOPE DEMOCRATIC PARTY V. INEC & OTHERS. Appeal No. CA/A/EP/5/2007 are not the same as in the instant appeal, Learned Counsel referred to them to underscore the auxiliary argument that the provisions of the Practice Direction must be read holistically in order to achieve a proper meaning and effect to their declared objective of expeditious and speedy adjudication in Electoral matters.

According to Learned Counsel the application for issuance of a pre-hearing notice by the 1st and 2nd Respondents in an Ex-parte motion was an attempt to circumvent the provisions of the Electoral Act and the Practice Direction. Learned Counsel referred to OHAKA V. EZE and urged this Court to so hold and set aside the orders made pursuant thereto. Learned Counsel then referred to and highlighted the case of RIRUWAI V. SHEKARAU (2009) ALL FWLR (pt.461) 975. Because the Lower Court placed substantial reliance on it in arriving its decision, now sought to be set aside, Learned Counsel distinguished its facts and circumstances and submitted that it is totally inapplicable in the instant appeal. He urged this court to allow this appeal and hold that the Exparte application made to the Lower Court by the 1st and 2nd Respondents was incompetent and to also set aside the order pursuant thereto. He also urged the court to hold that the said application was incompetent and as such no application for a pre-hearing notice was made within the 7 days required by Law.

In his response learned counsel to the 1st and 2nd Respondents explained that the actual mode by which application for the issuance of a pre-hearing notice was to be made has not been defined under the Electoral Act and the Practice Direction made pursuant thereto. Learned counsel consoled himself with the fact that any attempt at a definition of the mode for the application can only be made upon a consideration of FORMS TF 007 and TF 008. With this explanation as a background, Learned Counsel referred to the recent decision of this court in the Un-reported case of ALIYU IBRAHIM GEBI V. ALHAJI GARBA DAHIRU & ORS. Appeal No. CA/EP/HR/127/2011 delivered on 22/08/2011 where it was specifically held that for the purpose of compliance with paragraph 18(1) any method of application either by letter, or motion Ex-parte or on notice is acceptable. He also relied on the decision of this court in RIRUWAI V. SHEKARAU (2008) 12 NWLR (Pt.1100) 142 at 149 where an Ex-parte motion was suggested as sufficient to satisfy the requirements of a provision pari material to paragraph 18(1).

Because of the substantial reliance by the Appellant on the case of OKEREKE V. ‘YAR ADUA (Supra) Learned Counsel to the 1st and 2nd Respondents did on Yeomon’s job of distinguishing the facts and circumstances of that matter. His conclusion is that OKEREKE (Supra) is not applicable to the facts and circumstances herein. And while relying on the case of ADEGOKE MOTORS LTD V. ADESANYA (1989) 3 NWLR (pt.109) 250, Learned Counsel explained that to determine the binding nature of the decision of a Superior Court on a Lower Court it must be shown that the facts; the provisions of the applicable Law and the issues distilled for hearing were either similar or the same with those in consideration in an instant matter.

According to Learned counsel the issue as to the mode of application for the issuance of pre-hearing notice did not arise in the case of OKEREKE V. YAR ADUA (Supra). Also, Learned Counsel argued that no similar provisions to paragraphs 18 and 47 were called for interpretation and application OKEREKE (supra). He urged this Court to hold that the applicable Law in OKEREKE’S case was neither similar nor the same with the case under consideration in the instant appeal. He added further that the case of OKEREKE v. ‘YAR ADUA (supra) has no binding force on the facts and circumstances of this appeal. He urged this to hold that the Ex-parte motion filed by the within named 1st and 2nd Respondents for the issuance of a pre-hearing notice at the Lower Court in the nature of FORM TF 007 was in order, recognized and known to Law.

The arguments and submissions of Learned counsel on fair hearing and service of court processes of Pages 8 to 13 of his brief of argument, as far as this appeal is concerned are of no moment. This is because we are concerned here solely with on application made in a motion Ex-parte.

It is trite that where a Court is seised of the necessary jurisdiction and competence to hear and determine a motion Ex-parte, it does not in doing so violate the constitutionally guaranteed right to fair hearing of the Respondent(s) to that motion. Also by its very nature, wherever by Law it was allowed to be made or brought, an Ex-parte motion is never envisaged to be served on any Respondent to it, unless of course, where the Court dealing with same for good reasons deemed it fit to order for it to be served on the other party or parties to show cause why it ought not be granted and thereby using its discretionary power of converting same into a motion on notice.