Sunday Asetubode V. Evans Bapakaye Bipi (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A (Delivering the Leading Judgment)

On the 13th of October 2011 I dismissed this appeal and reserved my reasons for doing so.

I now give reasons for my decision today.

The appeal herein is against the decision of the National and State Houses of Assembly Election Tribunal Sitting at Port Harcourt which was delivered on the 18th august 2011, in which the Appellant’s petition was dismissed on the ground that his application pre-hearing notice was made outside the prescribed period.

Being dissatisfied with that decision, the appellant has brought this appeal. His notice of appeal dated 29th August 2011 and field on the 6th September 2011 contains five grounds of appeal.

Parties filed and exchanged briefs of argument. The appellant formulated two issues for determination of this appeal. These issues are reproduced hereunder as follows:

1. Whether the court below had jurisdiction to hear and determine the application of the 1st Respondent outside the pre-hearing session.
2. Whether having regard to the facts and the state of pleadings between the parties, the court below was justified in dismissing the petition in limine.

For the 1st Respondent, a notice of preliminary objection was issued on the 30/09/11 challenging the competence of grounds 3, 4 and 5 of the grounds of appeal Argument is respect of the preliminary objection is incorporated at pages 3 paragraphs 3.00 to 5 paragraphs 3.09. Thereafter the 1st Respondent formulated two issues for determination of the appeal. These issues are also reproduced hereunder as follows:

1. Whether the lower tribunal was right to have entertained and determined the 1st Respondent’s motion on notice to dismiss the petition before the pre-hearing session.
2. Whether the Honourable Tribunal was right to have dismissed the petition and treat same as abandoned when the condition for activating the pre-hearing notice had occurred and the appellant failed to do so within the period stipulated by law.

The 2nd respondent merely adopted the two issues formulated by the Appellant, while the 3rd Respondent formulated the following issues:

1. Whether the court below had jurisdiction to hear and determine the application of the 1st Respondent outside the pre-hearing session.
2. Whether having regard to the facts and the state of pleadings between the parties, the court bellow was justified in dismissing the petition in limine.

The appellant’s reply brief to the issues raised in the preliminary objection is dated and filed on the 7/10/11.

Now, before I consider the argument put forward by parties, it is pertinent to set out in brief the facts of this case which is straight-forward and simple. Elections were held throughout Nigeria on the 26th of April 2011 for the office of members of the States Houses of Assembly in Ogu/Bolo State constituency in Rivers State, the Appellant contested that election under the platform of Action Congress of Nigeria (ACN) white the 1st Respondent contested the same election under the platform of the Peoples Democratic Party, the 2nd respondent herein. The 3rd Respondent, a body responsible for conducting, national elections in Nigeria, conducted the election aforesaid, while the 4th and 5th respondents were responsible for providing security during the elections.

At the conclusion of the elections, the 1st Respondent was declared the winner and returned as the elected member representing Ogu/Bolo State constituency of Rivers State. The appellant is dissatisfied with the result of the erection and therefore filed a petition at the Tribunal on the 17/5/2011 challenging the victory of the 1st Respondent. The petition was served on the 1st Respondent on the 13th of June 2011. The 2nd, 3rd and 4th Respondents were served with the petition on the 31/5/2011, 23/5/2011 and 6/6/2011 respectively. Record shows that the 5th Respondent was served with a copy of the petition by pasting same on the notice board of the tribunal’s registry on the 6/6/2011 the 1st and 3rd Respondents filed their replies on the 30th of June 2011 and 9th June 2011 respectively, while the 2nd, 4th and 5th respondents did not file any reply. However, before the 1st Respondent’s reply which was filed within time and after the 3rd Respondent’s reply, the appellant by a letter dated 23/6/2011, addressed to the secretary of the tribunal applied for pre-hearing notice as in form TF007. Being conscious of the fact that this application was not made after the 1st Respondent’s reply, the Appellant again made another application, this time by a motion on notice for the issuance of pre-hearing notice on the 18/7/11. By a motion on notice dated 19th July 2011 and filed on the 21/7/11 the 1st Respondent asked the Tribunal to dismiss the petition on the ground that the application for issuance of pre-hearing notice by the Appellant were in competent, pre-emptive, premature and or filed out of time. This motion was heard and in a reserved and considered ruling the Tribunal dismissed the petition.

The 1st Respondent issued a notice of preliminary objection to the competence of the 3rd, 4th and 5th grounds of appeal on the ground that the matters raised their from were obiter dictum as such there can be no valid grounds of appeal which do not attack the ratio decidendi and that the grounds have been abandoned since the 2nd issue for determination of the appeal which is alleged to have been distilled from the grounds does not seem to arise from the said grounds. The law is firmly settled that where a preliminary objection to the competence of an appeal is filed, same shall be considered and determined before any further step is taken to dispose of the appeal. This is so because is the objection is upheld, it terminates the appeal.See Odu v. Agbor – Hemesou (200) 1 NWLR (Pt. 802) 624 at 637 paragraph B-C. Since the objection is against the 3rd, 4th and 5th grounds of appeal, it is pertinent to set out the set grounds of appeal for clarity. The grounds are hereby set out without their particular as follows:-

3. The honourable tribunal below misdirected itself on (sic in) law when it held that the failure to serve the 5th Respondent with the petition was due to the fault of the appellant.
4. The honourable tribunal below erred in law when it held that the 5th respondent (the Nigerian Army) is not a juristic person.
5. The honourable tribunal below erred when it failed to take into account or act on the affidavit of non-service deposed to by its bailiff and the application for leave to serve the 5th respondent by substituted means.

The ratio decidendi in the decision of 18th August 2011 is that the petition of the appellant was abandoned because the appellant failed and or neglected to apply for pre-hearing notice as provided for under paragraph 18 of the 1st schedule to the Electoral Act 2010 [as amended].

The 3rd, 4th and 5th grounds of appeal don’t seem to complain against the ratio of the decision.