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LAWRENCE IBANGA UBEH & ANOR
KUFRE BASSEY ETUK & ORS
IN THE COURT OF APPEAL OF NIGERIA
ON THURSDAY, THE 13TH DAY OF OCTOBER, 2011
BEFORE THEIR LORDSHIPS
UZO I. NDUKWE-ANYANWU, JCA
JOSEPH TINE TUR, JCA
ISAIAH OLUFEMI AKEJU, JCA
LAWRENCE IBANGA UBEH
Etim E. Okon Esq.
Obot F. Johnson Esq. – For Respondent
ELECTION PETITIONS – ELECTION TRIBUNAL:- Application for an equitable remedy that called for exercise of discretion by the tribunal, and which discretion must be exercised both judicially and judiciously based on the facts presented to the tribunal and the law applicable thereto – Where the discretion touches on the interpretation of the provision of a statute- Duty of court to exercise the discretion in accordance with the provisions of the statute
ELECTION PETITIONS – ELECTION PETITION PROCEEDING:- Nature of as sui generis and quite distinct and separate from civil proceedings – Legal implications
PRACTICE AND PROCEDURE – APPEAL – EXERCISE OF DISCRETION:- Role of an appellate court – Rule that it is not at liberty to substitute its own discretion for that exercised by the lower court except where it is clear that the lower court had wrongly exercised the discretion by giving consideration to irrelevant factors or by not considering relevant matters – Proepr treatment of
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – CASE LAW – RATIO DECIDENDI:- Rule that cases are decided on the facts before the court and in the light of the enabling law – Ratio decidendi of a case – Need for to be determined on the basis of the facts of the case
PRACTICE AND PROCEDURE – COURT – JUDGMENT AND ORDER – CASE LAW – STARE DECISIS:- Doctrine of stare decisis – Meaning of – Justification – Law that precedent or stare decisis is applicable in a situation where there is similarity between the facts of the case being considered and the case earlier decided – Duty of court theretp
PRACTICE AND PROCEDURE – COURT – JUDGMENT AND ORDER – CASE LAW – STARE DECISIS:- Doctrine of stare decisis – judgments of the courts in like or similar case – Need for the facts of two cases to be either the same or at least similar before the decision in one can be used – Whether what the former decision establishes in only a principle and not a rule
WORDS AND PHRASES – “STARE DECISIS”: Meaning of “stare decisis”
ISAIAH OLUFEMI AKEJU, JCA (Delivering the leading Judgment):
At the election conducted by the 3rd respondent on 26th April, 2011 into the Uruan State Constituency seat of Akwa Ibom State House of Assembly, the 1st appellant and 1st respondent were the candidates sponsored by the 2nd appellant and 2nd respondent respectively. Other candidates who are not parties to this appeal also contested the election. At the end of the election, the 3rd respondent declared the 1st respondent as the candidate that won the election and who was duly returned. The appellants were dissatisfied with the declaration and return of the 1st respondent and they filed Election Petition No. EPT/AKS/HA/21/2011 before the National and State House of Assembly Election Petition Tribunal (hereinafter called the Tribunal) sitting at Uyo. The appellants as petitioners filed their petition on 17th May, 2011 and served same on all the respondents. The respondents did not file their reply within the time allowed by the Electoral Act, 2010 (as amended). The 1st and 2nd respondents however filed their reply on 8th July, 2011 with the leave of the Tribunal and the reply was served on the parties thereto. Being out of time also, the 3rd respondent applied by way of motion on notice filed on 2nd July, 2011 for an order enlarging the time within which to file the reply and an order deeming the reply filed out of time as properly filed and served.
It was with this state of the pleadings that the Election petition of the appellants was transferred from the Tribunal to a newly established Tribunal called Tribunal No. 2.
The Tribunal No. 2 suo motu raised two issues upon which counsel were invited to address the Tribunal as to the competence of the Tribunal to proceed with the hearing of the petition.
Having failed to file any application for pre-hearing notice earlier, the appellants filed a motion on notice on 21st July, 2011 for the following:
“1. Leave of this Honorable extension Tribunal to apply for extension of time for the issuance of pre-hearing notice to the parties in this petition.
The motion on notice came up for hearing on 12th August, 2011 at pages 300-301 of the record of appeal. The record shows that the 3rd respondent was represented by its learned counsel, Obot F. Johnson who not only did not respond to the appellants’ motion but also did not apply to move his motion on notice earlier filed on 2nd July, 2011. After hearing arguments in respect of the appellants’ motion, the Tribunal adjourned for ruling which was delivered on 17th August, 2011.
The Tribunal held as follows at pages 317-318 of the record of appeal:
“It is our view that this Tribunal does not have jurisdiction to grant the application argued. The application is refused and consequently dismissed. This Tribunal has only one duty in the circumstance and it is to dismiss this petition,
Petition No. EPT/AKS/HA/21/2011 is hereby deemed abandoned. It is hereby dismissed by the force of paragraph 18 (4) of the 1st Schedule to the Electoral Act, 2010 (as amended)”.
The appellants felt aggrieved by the decision of the Tribunal. They filed their Notice and Grounds of Appeal on 5th September, 2011 with three grounds of appeal and in prosecution of the appeal; the Appellant’s Brief of Argument signed by M. U. Peters Esq. of counsel was filed on 20th September, 2011. Two issues were formulated by the learned counsel as follows at page 3 of the brief-
4.01 Whether the Tribunal was right to have dismissed the petition on the ground that it has been abandon (sic) when there was a pending motion by the 3rd Respondent to be let in.
4.02 Whether the Tribunal is not bound by the Court of Appeal decision in F.B.N. Plc v. Tsokwa (2004) NWLR (Pt. 866) 271st.
The 1st and 2nd Respondents’ Brief of Argument signed by Etim E. Okon, of counsel was filed on 27th September, 2011 and the lone issue distilled therein is:
“Whether the Tribunal was right in dismissing the petitioners/appellants’ application, for an order extending the time within which to apply for the issuance of Forms TF 007 and TF 008 for the commencement of pre-hearing session as required by paragraph 18 (1) & (2) of the 1st Schedule of the Electoral Act 2010 (as amended) and the Dismissal of the petition.”
The 3rd Respondent also filed a Brief of Argument on 26th September, 2011. It was signed by S. S. Ufort Esq., learned counsel who formulated the following as the issues for determination:
“3.1. Whether the Learned Tribunal was right in holding that Election Petition No.EPT/AKS/HA/21/2011 was abandoned on the ground that the parties had failed to apply for the issuance of Form TF 007 in accordance with the provisions of paragraph 18 (1), (3) and (4) of the First Schedule to the Electoral Act 2010 as amended.
3.2 Whether the Petitioners/Appellants’ solicitor’s application of 29/6/2011 filed in the Tribunal seeking for an Extension of Time for the issuance of pre-hearing notices satisfies the requirement of paragraph 18 (1) of the First Schedule to the Electoral Act (2010) as amended in the face of paragraph 47 (2) thereof.
The argument of the learned counsel for the appellants on his issue No. 1 is that the Tribunal reasoned that the petition lapsed after 7 days from the last date of service of the replies of the respondents, but the Tribunal failed to resolve the issue as to whether or not pleadings had closed as between all the respondents and the petitioner sufficient to activate a pre-hearing session. He opined that pleadings had not closed and so it was premature for the petitioners’ counsel to have applied for issuance of pre-hearing notice. The learned counsel argued that pleadings do not close until all the parties have exhausted their opportunity to file a reply and in the instant case it would be after the application of the 3rd respondent for extension of time to file a reply had been heard and determined one way or the other. The learned counsel submitted that the court is bound to take cognizance of all documents filed in the matter before it and acknowledge them in coming to its decision, citing Onwuka v. Omolewa (2001) 7 NWLR (Pt. 713) 695.
The learned counsel cited the cases of Bello v. Yakubu (2003) All FWLR (Pt. 42g) 429; Segun Oni v. Kayode Fayemi (2008 S NWLR (Pt. 1089) 400; Ogar v. James (2000) 10 NWLR (Pt. 722) 62; Gbolahan v. Balogun (1990) 2 NWLR (Pt. 134) 576 to submit that when a court fails to take important facts and pending application before it into consideration in the exercise’ of its discretion, an appeal court is in order to interfere with, question, and overturn the decision reached. According to learned counsel, the implication of paragraphs 45 (1) and 42 (2) of the 1st Schedule to the Electoral Act 2010 (as amended) is that before a Tribunal proceeds to dismiss a petition for abandonment, it must first expand the time for any party who has not filed his papers to do so.
The learned counsel then submitted that the Tribunal hastily and erroneously dismissed the petition on ground of abandonment for failure to comply with paragraph 18 (1) when the time was not ripe for pre-hearing session since the 3rd Respondent had a motion for enlargement of time to file its reply.
On the second issue, the learned counsel submitted that the Tribunal was bound by the decision in FBN Plc V. Tsokwa (2004) 5 N-WLR (Pt. 366) 271 and Danish Car Carriers V. Ferikson Sura & Co. (Nig) Ltd. (2011) 15 ERN 166 that when a part-heard case is taken over by another judge, such a case should be heard de novo by the new judge, and in such circumstance any action done or proceedings taken by or before the former Judge becomes abated and irrelevant. He submitted that the Tribunal No. 2 ought to have commenced de novo and it was wrong to have dismissed the Petition.
On the lone issue formulated in the 1st and 2nd respondents’ Brief, the learned counsel argued that since the 1st and 2nd respondents had filed their reply on 8th July 2011 and served same on the petitioners on 13th July, 2011, the pleadings as between the petitioners and the 1st and 2nd respondents were deemed closed, on receipt of the 1st and 2nd respondents’ reply by the petitioners. He argued further that the period allowed the 3rd respondent to file a reply ended on 12th June, 2011 and that was the day the pleadings between the petitioners and the 3rd respondent closed which was a long time before the 3rd respondent filed a motion for extension of time to file reply to the petition.
The learned counsel submitted that the petitioners ought to have applied for issuance of pre-hearing notice on the expiration of the period provided by the rules for exchange of pleadings without necessarily waiting for the 3rd respondent. He relied on Ikoro V. Izunaso (2009) 4 NWLR (pt. 1130) 45.
The learned counsel argued further that the petitioners realized, that they were out of time for filing their application for issuance of pre-hearing notices and they brought an application for extension of time which was heard and rightly dismissed by the Tribunal as a result of which the petitioners filed the instant appeal. He contended that election disputes are of special kind requiring expeditious hearing and determination, and the procedure thereof must be strictly followed without any party allowed to indolently disregard the procedure by filing processes outside the time prescribed by the rules.
According to the learned counsel, paragraph 45 (1) of 1st Schedule to the Electoral Act 2010 (as amended) does not avail the appellants in their motion for extension of time in that it applies except as otherwise provided by any other provision of the Schedule, and paragraph 18 (a) of the Schedule has left no room for discretion to extend the time to apply for pre-hearing session in an election petition and has denied to the Tribunal the jurisdiction to entertain the appellants’ motion for extension of time to apply for prehearing notice.
The applicable principle, according to counsel is the maxim generalia specialibus non derogant, that any specific provision excludes the general provision in that the specific enactment in paragraph 18 (4) of the 1st Schedule to the Electoral Act 2010 (as amended) is not affected by the general enactment in paragraph 45 (1) of the same schedule.
The learned counsel submitted that where the provision of a statute is clear the court should interpret such a statute by giving its plain words their ordinary meaning, citing Kraus Thompson V. NIPSS (2004) vol. 121 LRCN 5011.
The learned counsel argued that it is paragraph 18 (1) of 1st Schedule to the Electoral Act 2010 (as amended) that endows the Tribunal with jurisdiction to hear and determine an election petition and failure to comply therewith is fatal to the petitioners’ case. He cited Okereke V. Yar’adua & ors (2008) 12 NWLR (Pt. 1100) 95; Riruwai V. Shekarau (2008) 12 NWLR (Pt. 1100) 159; Madukolu V. Nkemdilim (1962) 1 All NLR 589 and submitted that the petition of the appellants was rightly dismissed by the Tribunal.
The learned counsel for the 3rd respondent also argued the two issues raised in his brief of argument.
On the first issue the learned counsel submitted that pleadings are deemed closed when 7 days elapse after the petitioner had received the respondents’ reply whether or not the petitioner’s reply is filed. He cited Ikoro V. Izunaso (2009) 4 NWLR (Pt. 1130) 45 and referred to paragraph 16 (1) of the 1st Schedule to the Electoral Act 2010 (as amended) and John O. Kennedy V. INEC (2009) 1 NWLR (Pt. 1123) 614.
He submitted that the provision of the Electoral Act 2010 (as amended) is that where the petitioner and the respondent have neglected to apply for issuance of pre-hearing notice, or the respondent has failed to apply for dismissal of the petition, the tribunal is empowered by paragraph 18 (4) of the 1st Schedule to suo motu dismiss the petition as abandoned. He cited Okereke V. Yar’Adua (2008) 12 NWLR (pt. 1100) 95 and submitted that the Tribunal was right in dismissing the appellant’s petition by treating it as having been abandoned.
On the second issue the learned counsel argued that the recognized mode of applying for pre-hearing notice is a motion and not a mere letter to the Secretary of the Tribunal.
The learned counsel submitted that time is of essence in an election petition and once time prescribed for the doing of an act has lapsed, the effect is fatally incurable, citing Israel Olu Olaniyonu V. professor Awa & Ors. (1989) 5 NWLR (pt. 122) 493; Hon. Prince Chinedu Emeka V. Chief (Mrs) Joy Emordi & ors (2004) 16 NWLR (pt. 900) 433. He submitted on the authority of Riruwai V. Shekarau (2008) 12 NWLR (Pt. 1100) 142 that the Tribunal could not allow an extension of time to file pre-hearing notice.
The learned counsel submitted that the appellants, motion filed on 21st July 2011 was incurably defective and did not satisfy the requirement of the law. He urged this court to dismiss this appeal.
The appellants filed a reply brief in reaction to the 3rd respondent’s brief. The learned counsel argued that issue no. 2 in the 3rd respondent’s brief does not arise from any of the grounds of appeal. He made reference to the “Solicitor’s application”, and “The petitioners appellants, Solicitor’s letter dated 29/6/2011 to the secretary of the Tribunal”… stated by the 3rd respondent’s counsel. He submitted that an issue not formulated from any ground of appeal has no part to play in an appeal and the court has to discountenance it, relying on Nwankwo V. Ecumenical Development cooperative society (EDCS) U.A. (2007)29 NSCQR 73.
He argued further that the case of John Akpan Udoedehe & ors V. Godswill Obot Akpabio & Ors. in Appeal No. CA/C/Gov./173/2011 referred to in the 3rd respondent’s brief is not relevant to this case where the petitioner did not transmit a letter for pre-hearing but filed a motion for extension of time to apply for pre-hearing session which the Tribunal ought to have granted.
I accept the argument of the learned counsel for the appellants that upon the facts, there is no nexus between the instant appeal and the case of appeal No. CA/C/GOV/173/2011 John Akpan Udoedehe & Ors V. Godswill Obot Akpabio & Ors. That aspect of the 3rd respondent’s submission is accordingly discountenanced.
Let me deal first with the second issue in the appellants, brief which is whether the Tribunal (No. 2) was not bound by the decision of the court of Appeal in FBN V. Isokwa (2004) 5 NWLR (pt. 866) 271.
This issue has once more brought to the fore the rule that requires courts to adhere to judicial precedent by following earlier judicial decisions. This has found expression in the doctrine of stare decisis which means to stay by the decision or abiding by a former precedent.
The doctrine of stare decisis is simply that when an issue or point or principle of law has been decided by a court that is higher in the judicial hierarchy, a court that is lower in the same hierarchy must stand by, or abide by that decision when confronted with the same or similar facts or issues or points with those upon which the principle, issues or points had been established. In otherwords the law on those points, issues or principle having been decided in an earlier case, subordinate courts are bound by such decision and are not expected to deviate therefrom or change such a decision. This ensures steadiness of decisions of court and settlement of issues which in turn makes way for case law.
It is however, the law that precedent or stare decisis is applicable in a situation where there is similarity between the facts of the case being, considered and the case earlier decided. See Osakue V. FCET (2010) 42 (2) NSCQR 981. In Babatunde V. P.A.S. & T. A. Ltd. (2007) 13 NWLR (pt.1050) 113, Niki Tobi JSC stated the position thus at page 157:
“It is good law that a case is decided on the facts before the court and they should also be cited in the light of the facts on which they are decided. Our principles of stare decisis will make no meaning if they are removed from their factual milieu. Such a situation will be like a fish not embedded, soaked or surrounded in or by water. Such fish will die. So too the principles of share decisis outside the facts of the case”.
Also in Fawehinmi V. NBA (No. 2) (2008) All FWLR (Pt.448) 205, the Supreme Court again, per Oputa JSC stated it as follows at page 3 10:
“Our case law is the law of the practitioners rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the courts in like or similar case. The facts of two cases must be either the same or at least similar before the decision in one can be used and even there as a guide to the decision in another case. What the former decision establishes in only a principle and not a rule. Rules operate in an all or nothing dimension. Principles do not. They merely form a principium or starting point. Where one ultimately lands will then depend on the peculiar facts and circumstances of the case in hand.”
The case of FBN V. Isokwa is also reported in (2003) FWLR (Pt. 153) 205. That is the decision relied upon by the learned counsel for the appellants in his submission that the Tribunal (No. 2) to which the instant case was transferred or assigned should have started de novo. The clear facts of the case cited and relied upon are that it was instituted in the High Court of the defunct Gongola State where it was heard almost to completion but in the course of which Gogola State was split into Adamawa and Taraba States as a result of which Bamsi J. who hitherto heard the case was appointed chief Judge of Adamawa State and the trial had to be taken over by another judge in the newly created State.
I do not see any replication of, or even similarly of the facts of that case with the instant appeal so as to make it constitute a precedent here.
It is the law that cases are decided on the facts before the court and in the light of the enabling law. The ratio decidendi of a case is thus determined on the basis of the facts of the case. See Idoniboye Obu V. NNPC (2003) 4 MJSC 131; Inakoju V. Adeleke (2007) 4 NWLR (pt. 1025) 423.
Unlike the situation in FBN V. Tsokwa (supra) relied upon by learned counsel, the law, by virtue of section 285 (1) of the constitution of the Federal Republic of Nigeria, 1999 (as amended) recognizes the establishment of one or more election tribunals for each State of the Federation which shall have original jurisdiction to hear and determine petitions. The petition in the instant case was filed and served and some other processes had also been exchanged before the establishment of tribunal No. 2 which took over the processes, but there was no trial by the tribunal (No. 1) that would have been commenced de novo by tribunal No. 2.
In my humble view, the learned counsel for the appellants has misapplied the case of FBN V. Tsokwa (supra) to the instant appeal and I accordingly resolve issue no.2 against the appellants.
The first issue is whether the Tribunal was right to have dismissed the petition on the ground that it was abandoned.
The facts that are not in dispute are that the petition in this case that was filed on 17th May, 2011 was served on the respondents none of who filed a reply within the statutory period allowed for doing so. The 1st and 2nd respondents however filed their reply out of time on 8th July, 2011 with leave of the tribunal and same was served on the petitioner on 13th July, 2011.
Also, the 3rd respondent applied for extension of time on 2nd July, 2011 to file reply, but the learned counsel, who was present at the proceedings of 12th August, 2011 did not refer the tribunal to his said motion. The appellants failed to file any application for pre-hearing notice up to 21st July, 2011 when they filed a motion on notice for leave of the tribunal for extension of time to do so. It was this motion of the appellants that the tribunal heard on 12th August 2011 and delivered a ruling on 17th August, 2011 which ruling is the subject of this appeal of the appellants lodged on 5th September, 2011. The appellants’ motion which I had reproduced and the supporting affidavit are on pages 278-281 of the record of appeal. By their said affidavit, the appellants listed the facts that caused delay in applying for the issuance of pre-hearing information sheet, and indeed the lone issue placed before the tribunal on page 283 is, “whether this Honourable Tribunal can extend time for the petitioners as prayed for in this application.”
It must be stated here again that an election petition matter is sui generis and so is quite distinct and separate from civil proceedings. The proceedings in an election petition are governed by the provisions of the law specially made therefore. See Awuse V. Odili (2004) All FWLR (Pt. 213) 1611; Ajadi V. Ajibola (2004) 31 WRN 134, (2004) 16 NWLR (Pt. 898) 91.The provision of the Electoral Act 2010 (as amended) that is apposite to applications for pre-hearing session and Scheduling is paragraph 18 thereof. Paragraph 18 (1) provides as follows:
“(1) Within 7 days after the filing and service of the petitioner’s reply on the respondent, or 7 days after the, filing and service of the respondents’ reply, as the case may be, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.”
The appellants as petitioners did not file any application for prehearing notice even when the respondents’ statutory period had expired. They waited for respondents who were not forthcoming and even when the 1st and 2nd respondents served their reply on them on 13th July, 2011 they (appellants) took no step up till 21st July, 2011 i.e. days thereafter before applying, not for pre-hearing notice but for extension of time to do so.
I find the argument by the 1st and 2nd respondents that the appellants knew and acknowledged the fact that they were out of time within which to apply for the issuance of pre-hearing notice not only to be sensible, but also to be deducible from the facts presented by the appellants in support of their motion for enlargement of time.
The application was for an equitable remedy that called for exercise of discretion by the tribunal, and which discretion must be exercised both judicially and judiciously based on the facts presented to the tribunal and the law applicable thereto. Where the discretion touches on the interpretation of the provision of a statute, the discretion must be exercised in accordance with the provisions of the statute. See: Union Bank of Nig. Plc V. Astra Builders (W/A) Ltd. (2010) All FWLR (pt. 518) 865.
The Tribunal in the instant case was to be bound by the provision of paragraph 18 (4) of the 1st schedule to the Electoral Act, 2010 (as amended) which provides that:
“(4) Where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained”.
The Tribunal gave thorough consideration to the appellants, application from pages 311-318 of the record of appeal and arrived at a reasonable conclusion by dismissing the application, and a fortiori the election petition since there was no application for pre-hearing notice. An appellate court is not at liberty to substitute its own discretion for that exercised by the lower court except where it is clear that the lower court had wrongly exercised the discretion by giving consideration to irrelevant factors or by not considering relevant matters. See Enekebe V. Enekebe (1964) 1 All NLR 102; Solanke V. Ajibola (1968) All NLR 46.The Tribunal refused to grant the application of the appellant, and this in my view is the correct approach in the light of the provision of paragraph, 18 (4) of the 1st Schedule to the Electoral Act. There is no reason to disturb the findings and decision of the Tribunal.
Having not applied for pre-hearing notice as required by law, the Tribunal was correct to have treated the appellants’ petition as abandoned and dismiss the same. See: Okereke V. Yar’Adua (2008) 12 NWLR (pt. 1100) 95.
I resolve the first issue also against the appellants.
Having resolved the two issues against the appellants, the appeal is left bare, lacking in substance or merit and it is accordingly dismissed.
I make no order as to costs.
UZO I. NDUKWE-ANYANWU, JCA:
I had the privilege of reading in draft form the judgment just delivered by my learned brother I. O. Akeju, JCA. The appeal is lacking in merit. It is therefore dismissed. No orders as to costs.
JOSEPH TINE TUR, J.C.A.:
I have read judgment delivered by my Lord I.O. Akeju, JCA and I, am in agreement that this appeal lacks merit and is dismissed.