Garba Ado & Anor V. A. A. Sule Lokon Mekara & Ors (2008)

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BABA ALKALI BA’ABA, J.C.A.

The 1st appellant, Garba Ado, was sponsored as a candidate by his party, the Democratic Peoples’ Party (DPP), the 2nd appellant, for the National Assembly Election, the Federal House of Representatives for the Gwale Federal Constituency, Kano State, conducted by the 3rd – 6th respondents on Saturday, the 21st day of April, 2007. At the conclusion of the said election, the 3rd – 6th respondents, declared and returned the 1st respondent as the successful candidate, the winner of the said election.

Aggrieved with the declaration and return of the 1st respondent, the 1st and 2nd appellants filed a petition No. EPT/KNS/HR/26/07 dated and filed on 19/5/07, containing eleven paragraphs contained at pages 2 – 8 of the record.

The main complaint of the appellants in their joint petition is that the 1st appellant/petitioner was validly nominated by the 2nd petitioner/appellant but was unlawfully excluded from the election. That the election was invalid by reason of non-compliance with the provisions of the Electoral Act. See paragraphs 6(a) and (b) of the petition. The appellants in effect by their joint petition challenged the declaration and return of the 1st respondent, as the winner of the said election.

On being served with the petition, the 1st respondent, entered a conditional appearance and filed his reply, but the 3rd – 6th respondents who were also served with the petition did not file their reply.

The appellants filed a reply to the 1st Respondent’s Reply filed and served on 26/6/2007. The appellants as the petitioners wrote a letter through their counsel dated 28/6/2007 to the Secretary of the Election Petition Tribunal, applying for a pre-hearing notice as in Form TF 007 purported to be pursuant to paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007 and subsequently filed a motion on notice dated 29/6/2007, when they did not receive any response to their application for the pre-hearing session. The letter and the motion on notice are contained at pages 116, 117 – 122 of the record of proceedings.

Following an inquiry by the appellants/petitioners’ counsel at the registry of the Tribunal, the secretary of the Tribunal, directed that a motion on notice be filed for the issuance and service of the pre-hearing notice as a result a motion on notice dated 18/7/07 was then filed on 23/7/2007, praying for the following orders:

“1. An order for the issuance and service of pre-hearing notice as in Form TF 007 accompanied by pre-hearing information sheet as in form TF 008 on all the parties to this petition.

2. And any other order(s) as this Honourable Tribunal may deem fit to make in the circumstance.”

The said motion was slated for hearing on 3/8/2007. The motion was opposed by the 1st Respondent’s counsel when the said motion was moved by the learned counsel for the appellants/petitioners/applicants. The Tribunal dismissed the motion filed on 23/7/2007 as well as the petition.

The Election Petition Tribunal, Kano State in its ruling dated 8/8/2007 at pages 170 – 173 of its Ruling held at pages 172 – 173 of the record of proceedings as follows:

“We have carefully checked the records of the Tribunal especially the correspondence… It is true that an application was put in the registry of the Tribunal the letter was dated 28th June, 2007. However, we notified that such letter did not carry endorsement or acknowledgement evidencing when it was actually received at the registry of the Tribunal or when was assessment made on it and payment effected. We observed further that counsel go about filing processes with little regard to the dates processes are filed. We are of the view that date of filing process is very important especially for the purposes of computation of time. In the instant case absence of any material evidence suggesting when this letter was filed or received at the registry makes it very difficult for us to act upon it. The counsel is under an obligation to put in clear and unambiguous terms matters of importance of this nature. The affidavit and further affidavit filed all did not help matters as counsel simply stated that such letter was filed without reference to the date of the occurrence of that event. Accordingly we hold that such letter cannot be acted upon for the purpose of satisfying the requirement of the law.

Having held that, we are left with the present application i.e. application filed on 23rd July, 2007 for issuance of pre-hearing notice. It is crystal clear from the record of the tribunal that issues were joined on 26th June, 2007. Clearly the application was brought twenty-seven days 27th after close of pleading. The question now is can the period for filling of application for issuance of pre-hearing notice be extended? In order to determine this issue resort will have to be made to the relevant paragraph of the Practice Directions. The relevant paragraph in the circumstances is paragraph 3(1) and it provided thus:

“3(1) within 7 days after filing and service of Petitioners Reply on the Respondent of 7 days after the filling of the Respondents Reply, which ever is the case, the Petitioner shall apply for the issuance of Pre-Hearing Notice as in Form TF 007.”

Election petition by their very nature are sui generis and time is very much of essence. Even where the Petitioners contended that they were informed to come by motion on notice as regard filling the application on 17th July, 2097, they wasted 7 days before coming up with such an application on 28th June, 2007. We hold that the petitioners were indolent in filling this application.