Mr. Wabilly Nyiam V. Dr. (Mrs.) Rose Oko & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

The Petitioner of the All Nigeria Peoples Party contested but lost election to the House of Representatives Ogoja/Yala Federal Constituency held on the 9th day of April, 2011, in favour of the 1st Respondent who polled 36,365 votes; the petitioner polled 7,611 votes. The Action Congress of Nigeria’s candidate had 3,076 votes as against 1,827 polled by the candidate of the Congress for Progressive Change. The candidate of DFPF Party had 17 votes.

The 2nd Respondent returned the 1st Respondent as the duly elected member of the House of Representatives in the constituency, on 10th day of April, 2011.

The Petitioner presented a petition before the Governorship and Legislative Houses of Election Petition Tribunal holden at Calabar, Cross-River State of Nigeria on 29-04-2011 praying in paragraph 22 of the petition that the 1st Respondent be disqualified; that the result of the election should be voided and cancelled by reason of substantial irregularities/corrupt practices, non-compliance with the guidelines and the provisions of the Electoral Act, 2010. The petitioner sought for an order for fresh election.

Upon service of the petition the 1st Respondent entered appearance on 12-05-2011 followed by a Reply on 19-05- 2011. The 2nd Respondent presented a memo of appearance on 03-06- 2011 without a reply; the 3rd Respondent did so on 10-05-2011 but also without a Reply. The petitioner filed a Reply in respect to the 1st Respondent’s Reply on 28-05- 2011. 2nd and 3rd Respondents’ separate applications for extension of time to file Replies were dismissed on 12-07-2011.

On 24th day of June, 2011 Mr. Osim, Esq, of counsel filed a motion for pre-hearing notice praying for the issuance of Form TF007 and TF008. The motion was moved on 29th day of June, 2011 without objection from Mr. Ujong, Ese, of learned Counsel to the 1st Respondent; Mr. Sanni, Esq, of Counsel to the 2nd Respondent and Izato, Esq, of Counsel to the 3rd Respondent. The application was granted. The Tribunal ruled and the pre-hearing session commenced that same day.

On the 26-07-2011 1st Respondent’s Solicitors brought an application supported by affidavit praying that paragraphs 5, 6, and 7 of the petition and paragraphs 1-4 of the petitioner’s answers to the 1st Respondent’s Reply be struck out since they related to pre-election issues that had been determined by the Federal High Court, Calabar in suit No. FHC/CA/CS/17/2011 viz Liyel Imoke & 37 Ors V.s INEC (unreported) namely the qualification of the 1st Respondent’s to contest the election of 9th April, 2011 into the Ogoja/Yala Federal Constituency, Cross-River State. Secondly, that the petition was headed in a non-existent Tribunal. On the 10th day of August, 2011 the Tribunal granted prayer one by holding at page 425 lines 6-16 of the printed record thus:

“1st Respondent is a successor to the right to contest the April 9th, 2011 Election on the platform of the 3rd Respondent. It is in view of that we hold that the issue of failure of the 3rd Respondent to conduct party primaries to elect delegates that will nominate 3rd Respondent’s candidates for the election had been decided by the Federal High Court, Calabar in suit No.FHC/CA/CS/17/2011 between Liyel Imoke V. INEC. 1st Respondent’s name appears in the case as the 12th respondent. The six reliefs sought in that suit are contained on pages 2 and 3 of the copy of that judgment annexed to the affidavit in support (paragraph 6 thereof) as Exhibit RO1.”

In granting the prayers the Tribunal cited Section 285(1) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 as altered and Odedo V. INEC (2008) 17 NWLR (Pt.11170) 554 at 602 per Niki Tobi, JSC.

On the 3rd August, 2011 the 3rd Respondent’s learned Counsel applied that the Tribunal should set aside the pre-hearing session order made on 29th day of June, 2011 including Forms TF007 and TF008 already issued to the parties upon which the pre-hearing had commenced. The 3rd Respondent argued that the petition should be dismissed under paragraph 18(4) of the 1st Schedule to the Electoral Act, 2010 as amended on the grounds that it had been abandoned. Having heard argument from learned Counsel to the respective parties the Tribunal held at page 437 lines 13-26 and page 438 lines 1-7 of the printed record as follows:

“Having been satisfied that the order this Tribunal made for issuance of pre-hearing notice in this petition on 29th June, 2011, ought not to have been made for failure of the petitioner to file it within the time limited by paragraph 18(1) of the 1st schedule to the Electoral Act (supra) we are convinced and we hold the order was made without jurisdiction. Since the circumstances in the present application do not appear to prohibit the Tribunal from setting aside the said order, as its order to set aside was applied for timeously and before the 3rd Respondent/applicant took any further steps goading the Tribunal to proceed with hearing of the petition to a stage that would deprive the Tribunal of the vires to entertain it, we set aside the said order of 29th June, 2011 for the issuance of pre-trial notice.

The provision of paragraph 18(1) of the 1st schedule mandatory. As it stands now, the petitioner’s petition fundamentally defective and incompetent for failure of the petitioner or any of the respondents to apply for pretrial in respect thereof. It is not just a breach of procedure or a mere irregularity as, without valid pretrial further proceedings no matter how well conducted shall be a nullity. See Okereke v. Yar’Adua (2008) 12 NWLR (Pt.110) 557 at 583 paragraphs “A-B”. In view of this we deem the petition as abandoned and dismiss same under the combined effect of paragraph 18(1), (3) and (4) of the 1st Schedule to the Electoral Act, 2010 (as amended)”.

On 31-08-2011 learned Counsel to the petitioner filed a single Notice of Appeal challenging the decisions of the Tribunal delivered on 10th and 16th August, 2011 respectively. On the whole seven (7) grounds accompanied the single Notice of Appeal. Ground six (6) has no particulars. This much was conceded by Osim, Esq, when the appeal came up for hearing on 05-10-2011. Accordingly, it is struck out. The surviving grounds of appeal are 3, 4, 5 and 7. They read as follows:

“3. The learned justices of the lower Tribunal erred in law when they failed, refused and or neglected to pronounce on the propriety or other-wise of the competence of the said application by virtue of the 53(2) of the 1st schedule to the said Electoral Act.