3PLR – MOHAMMED UMAR IBRAHIM & ANOR V. YAKUBU YUSUF & ORS.

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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MOHAMMED UMAR IBRAHIM & ANOR

V.

YAKUBU YUSUF & ORS.

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 22ND DAY OF SEPTEMBER, 2011

CA/K/EPT/SHA/13/2011

3PLR/2011/62 (CA)

 

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

AMINA ADAMU AUGIE, JCA

ABDU ABOKI, JCA

THERESA NGOLIKA ORJI-ABADUA, JCA

 BETWEEN

1. MOHAMMED UMAR IBRAHIM
2. PEOPLES DEMOCRATIC PARTY [PDP] Appellants

AND

1. YAKUBU YUSUF
2. CONGRESS FOR PROGRESSIVE CHANGE [CPC]
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION [INEC] Respondents

 

MAIN ISSUES

ELECTION PETITION – APPLICATION FOR ISSUANCE OF PRE-HEARING NOTICE:- How properly brought – Paragraph 7 (i) of 1st Schedule of the Electoral Act and Practice Direction made pursuant thereto – Whether a pre-hearing notice should be by notice or by letter – Duty of Court registry to issue Form TF 007 in satisfaction upon a mere request – Attitude of court to failure thereto

ELECTION PETITION :- Application envisaged under paragraph 18 (1) of the First Schedule to the Electoral Act 2010 (as amended) – Where form was issued without evidence of an application by way of motion – Validity of – Judgment in Badamasi Ayuba & 1 Or. v. INEC & 3 Ors. (Unreported) Appeal No. CA/K/EPT/HR/15/09 – Whether mere obita dicta – Effect of subsequent decision of the full court in Appeal No. CA/J/EP/HR/127/2011 Gebi V. Dahiru & 3 ors., per Saulawa, JCA

ELECTION PETITIONS:- Section 285 (7) of the 1999 Constitution (as amended) – Requirement that Court of Appeal deliver its judgment within 60 days in election matters – When time starts to run

CONSTITUTIONAL LAW – JUDICIARY AND ELECTION PETITIONS:- Section 285 (7) of the 1999 Constitution (as amended) – Requirement that Court of Appeal deliver its judgment within 60 days in election matters – When time starts to run

ETHICS – LEGAL PRACTITIONERS:- Legal practitioners as Ministers in the Temple of Justice – Duty of diligence and conscientiousness on part of counsel – When deployed sacrificially in aid of court towards the expeditious resolution of a matter challenged by statutory limitations as to time – Attitude of courts thereto

PRACTICE AND PROCEDURE – ACTION – MOTIONS:- How brought – Whether can be by way of mere letters – Whether requires in every instance to be brought by way of motions

PRACTICE AND PROCEDURE – ACTION – PRE-HEARING NOTICE:- How a Petitioner should apply for the issuance of pre-hearing notice – Whether a simple request suffices

PRACTICE AND PROCEDURE – APPEAL – ISSUES FOR DETERMINATION:- When court/tribunal will resolve the issue(s) raised by respondent(s) first before the appellant – Issue of jurisdiction – Justification for

PRACTICE AND PROCEDURE – APPEAL – NOTICE OF APPEAL:- Requirement for personal service – Failure thereto – Effect – Whether can be deemed waived

PRACTICE AND PROCEDURE – COURTS:- Application of counsel by way of a letter – Attitude of court thereto – Need for applications to be brought by way of motions

PRACTICE AND PROCEDURE – JURISDICTION:- Failure to serve hearing notice/notice of appeal – Implication for jurisdiction of court – How rebutted

PRACTICE AND PROCEDURE – SERVICE OF PROCESS – REQUIREMENT FOR PERSONAL SERVICE:- Importance of for the issue of jurisdiction of court – Basis of in Paragraphs 8 (1), 48 and 7 of the 1st First schedule to the Electoral Act – Effect of Order 2 rule 1 and Order 6 rule 9 of the Court of Appeal Rules – Communication to counsel of person required to be served coupled with appearance and participation in proceedings amounts to a waiver of any irregularities – Legal effect

PRACTICE AND PROCEDURE – SERVICE OF PROCESS – REQUIREMENT FOR PERSONAL SERVICE:- Where party provides an address – When would be deemed served – Where party designates his counsel as persons to receive service on his behalf – Phone call from registry of court/tribunal to lawyers – Whether suffices

 

 

 

MAIN JUDGMENT

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment):

The Kaduna State House on the 28th of April 2011, and dissatisfied with the declaration of the 1st Respondent as the duty elected Member representing Zaria-Kewaye Constituency, the Appellants filed a Petition against the Respondents at the Kaduna State Governorship/Legislative Houses of Assembly Election Tribunal.

Upon receipt of the Petition filed on the 18th of May 2011, the 1st and 2nd Respondents filed their Joint Reply thereto on the 9th June 2011, and the Appellants filed their Reply to same on the 17th of June 2011. The 3rd Respondent filed its Reply out of time, and by a letter dated 20th June 2011, the Appellants applied to the Tribunal’s Secretary as follows –

“APPLICATION FOR ISSUANCE OF PRE-HEARING INFORMATION SHEET IN PETITION NO.: EPT/KD/HA/4/11 BETWEEN MOHAMMED UMAR IBRAHIM & ANOR v. YAKUBU YUSUF & 2 ORS.

We are counsel to the Petitioners in PETITION No: EPT/KD/HA/4/11 BETWEEN MOHAMMED UMAR IBRAHIM & ANOR V. YAKUBU YUSUF & 2 ORS. We wish to apply for the issuance of Pre-Hearing Information Sheet in this petition. We shall pay the necessary fees if required. Thanking you for your usual co-operation.

(Signed J. J. Usman, Esq.

PP: Yunusi Ustaz Usman (SAN) & Co.”

 

The Application was granted and the Appellants filed Forms TF 007 and TF 008, which were issued by the Tribunal, on that same 20th June 2011. The said Forms were served on the 1st and 2nd Respondents, who filed their answers thereto, on the 6th of July 2011. However, by a Motion filed on 8th July 2011, the 1st and 2nd Respondents prayed the Tribunal for –

1. a) An Order setting aside the Pre-Hearing Notice and Information Sheet issued on the 20th of June 2011 and served on the Parties…
2. b) An Order DISMISSING Petition No. EPT/KD/HA/4/2011 for noncompliance with Paragraphs 18 (1) (2) and (3) of the First Schedule to the Electoral Act 2010.
3. c) And for such further Order(s) as the Honourable Court (sic) may deem fit to make in the circumstance(s).

 

The Grounds for the Application are as follows –

1. The Petitioners failed to apply for pre-hearing in accordance with the Electoral Act.
2. By Paragraphs 47 (2) of the First Schedule to the Electoral Act 2010 every application to the Tribunal shall be y way of Motion.

iii.      Where a particular method of doing something is prescribed by statute, parties are obliged to follow the procedure.

1. The time prescribed by the Electoral Act, for the Petitioners to apply by motion for pre-hearing has lapsed.
2. By paragraph 18 (4) the Petitioners have abandoned the Petition.
3. The Petitioners are yet to apply for rehearing in accordance with the Schedule to the Electoral Act 2010.

vii.     The seven (7) days’ time limit for applying for pre-hearing information conference notice lapsed on the 27tn of June 2011.

viii.    The Petitioners are out of time in applying for pre-hearing information conference notice (session), as prescribed by Paragraph 18 of the First Schedule to the Electoral Act 2010.

1. By paragraph 18 (3) and (4) of the First Schedule to the Electoral Act, the Petition having been abandoned is ripe for ORDER OF DISMISSAL.

 

The Application supported by a S-paragraph Affidavit, was opposed by the Appellants, who filed a 12-paragraph Counter-Affidavit to that effect. Both parties filed Written Addresses for and against the said Application. In a Ruling by the Chairman, Hon. Justice Obie Daniel-Kalio, and agreed to by one Member, Hon. Justice Umar Abubakar, the Tribunal observed –

“- – The issues for determination in this Ruling are as follows –

1. Whether the Petitioners can apply for the issuance of a pre-hearing notice as in FORM TF 007 by a letter;
2. Whether by filing a pre-hearing information sheet the 1st and 2nd Respondents have waived their right to complain about the Petitioners’ mode of applying for the issuance of a pre-hearing notice”.

 

The Tribunal then relied on the decision of this Division of the Court of Appeal in the cases of Ado v. Makera (2009) 1 NWLR (Pt.1147) 505 and Riruwai v. Shekarau (2010) 6 EPR P.462 at 477 to hold as follows –

“An application for a prehearing notice as in Form TF 007 through a letter is not a valid Application”

 

The Tribunal further held and concluded as follows –

“Since I have held that the letter of the Petitioners for the issuance is invalid. It follows that the Petitioners have failed to apply for the issuance of a prehearing notice within the time stipulated in Paragraph 18 of the First Schedule to the Electoral Act and consequently the Petition is an abandoned Petition. Having so held, it is proper to set aside the pre-hearing notice and information sheet notice – All said, I am satisfied that the Application before this Tribunal has merit. Accordingly, it is ordered as follows –

1. The pre-hearing notice and information sheet issued on the 10th of June 2011 and served on the parties are hereby set aside.
2. This Petition, that is to say Petition No. EPT/KD/HA/4/2011 is hereby dismissed as an abandoned petition by reason of failure to comply with Paragraph 18 (1) of the First Schedule to the Electoral Act 2010 as amended”.

 

However, the other Member, Hon. Justice Olusola A. Williams, dissented and delivered a 19-page minority Ruling, wherein he concluded thus –

“Having considered the totality of the circumstances of this case, I am of the firm view that to insist that the Petitioners who acted promptly three days after pleadings closed, have abandoned their Petition will amount to a reliance on technicality resulting in injustice particularly in view of the fact that the Applicants received the pre-hearing forms and reacted to them, and also took further steps in the proceedings before applying that they be set aside. I firmly believe that the Petitioners cannot be said to have abandoned their Petition.  Accordingly, I find and hold that in the circumstances of this case, the Application filed by the Petitioner for pre-hearing ought to be allowed and this Application to set aside the Application of the pre-hearing information forms cannot succeed but ought to be dismissed”.

 

Aggrieved by the majority decision, which is the Ruling of the Tribunal, the Appellants filed a Notice of Appeal containing six Grounds of Appeal. The Notice of Appeal was filed at the Tribunal on the 2nd August 2011.However, the record of appeal and Appellants’ Brief of Argument were received by the Registry of this Court on the 21st of September 2011.

At this juncture, I must point out that pursuant to Section 285 (7) of the 1999 Constitution (as amended) this Court has 60 days within which to deliver its Judgment in election matters, and more importantly, time starts to run from the very day Judgment is delivered at the Tribunal.

 

In this case, the Ruling appealed against was delivered on the 25th of July 2011 and the 60 days is due to lapse at midnight of this very day – 22nd September 2011. The Appellants’ brief was also filed yesterday – 21st September 2011, and when the appeal came up for hearing earlier, it was stood down to allow the Respondents file their briefs of argument.

 

I must commend learned counsel for the 1st and 2nd Respondents – B. S. Ngyou, ESq., and B. K. Adam, Esq., who rose up to the challenge, and were able to prepare their brief and file it within just a few hours. They are really and truly Ministers in the Temple of Justice.

 

The 3rd Respondent was not able to its brief, and this appeal will be determined on the Appellants’ and 1st and 2nd Respondents’ briefs only. In the Appellants’ brief that was settled by Mrs S. O. Omoloba, it was submitted that the following issues arise for determination in this appeal –

1 .      Whether the trial Tribunal had jurisdiction to entertain the 1st and 2nd Respondents’ Motion on Notice dated 5/7/11 for setting aside pre-hearing notice and information sheet dismissing Appellants Petition when the Appellant did not seek leave to argue same outside pre-hearing session.

2. Whether the trial Tribunal was right in setting aside the pre-hearing notice and information on the ground that- the Appellants did not fulfill the condition precedent to the issuance of the pre-hearing notice as he did not apply for same vide a motion on notice.
3. Whether the trial Tribunal was right in holding that the Petition was abandoned.
4. Whether the failure to apply for pre-hearing notice via a motion on notice is a nullity or irregularity.

 

The 1st and 2nd Respondents, however, submitted in their brief settled by the aforesaid Ngyou, Esq., and Adam, Esq., that the issues are –

1)      Whether this Hon. Court is not robbed of jurisdiction to entertain the appeal, the 1st respondent having not been served with the Notice and Grounds of Appeal and all other processes connected therewith personally.

2)      Whether the trial Tribunal was right in setting aside the pre-hearing notice and information on the ground of non–fulfillment of condition precedent.

 

In my view, the issue at stake in this appeal is quite simple and very straightforward, and that is – whether the- Appellants can apply for the issuance of a pre-hearing notice and information sheet by a mere letter? However, we have to resolve the 1st and 2nd Respondents’ Issue 1 first.

 

It is their contention that this Court lacks the jurisdiction to entertain the appeal because the 1st Respondent was not served personally, and they submitted that the object of service of court processes – whether personal or by substituted means – is to give notice to the other party so that he may be aware, of the case against him, citing Baladectech Co. Ltd. (sic) (2005) 2 FWLR (pt. 267) 1084 at / 057. They further argued –

“…The 1st Respondent stated that he got to know about the appeal when he received a phone call from the staff of Election Tribunal who told him that the appeal is coming up today. On the other hand, the Appellants informed the court that they served the 1st Respondent through his address provided for service within jurisdiction – The address for service was provided by counsel to the 1st and 2nd Respondents, who represented them at the Tribunal. The counsel is based in Jos outside jurisdiction… we submit that it is an established principle of law that service of originating process must be a personal service and since notice and grounds of appeal is an originating process, service of same on the Respondent must be personal…”

 

At the hearing itself, Mr. B. K. Adam referred us to Paragraphs 8 (1), 48 and 7 of the 1st First schedule to the Electoral Act, and submitted that the cumulative effect is that originating processes is served personally.

 

Mrs. S. O. Omoloba, however, referred us to Order 2 rule 1 and order 6 rule 9 of the court of Appeal Rules, and submitted that the address on the record and the said Respondents’ address are the same; and that their counsel informed the court that he received a call from the 1st Respondent last night, so, his presence and the fact that he wrote and filed his brief under three hours has taken care of any irregularities. Obviously, she is right; order 2 rule 1 of the Rules of this court says –

“Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; Provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.

 

Order 6 rule 9 of the same Court of Appeal Rules further provided that –

“Notwithstanding anything in Order 2, where in any proceeding in the court below a party has given an address for service, notice of appeal from any decision made under such proceeding may be served on such party at such address for service, and notice of any application preparatory or incidental to any such appeal, may be served in like manner at any time before the date on which the respondent gives notice of his address for service in accordance with the immediately following Rule”

 

In this case, the Record shows that the address for service on all the processes filed by the 1st and 2nd Respondents at the Tribunal is – “C/o of their Counsel, Mamman Nasir & Co. No. 36, Ali Akilu Road, 1st Floor Suite 3, Kaduna.”, and it is clear on the face of their brief filed earlier in this Court that it was – “Settled by B. S. Ngyou Esq., with B. K. Adam Esq., Counsel to the 1st and 2nd Respondents, C/o of Mamman Nasir & Co. No. 36, Ali Akilu Road, 1st Floor suite 3, Kaduna.” what is more, they clearly stated in their brief that the 1st Respondent – “got to know about the appeal when he received a phone call from the staff of Election Tribunal who told him that the appeal is coming up today”. Yes, every notice of appeal must be served personally, but there is a proviso – if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that it was not served personally. The 1st Respondent may not have been served personally, but it is quite clear to us that he was in fact communicated with the notice of appeal.

 

Besides, this is an election matter in which time is of the essence, and more importantly, one in which we are enjoined to eschew all forms of technicality, and endeavor to follow the dictates of substantial justice. Thus, we are not and cannot be precluded from entertaining the appeal. Coming to the crux of the appeal, the Appellants submitted that the application for issuance of pre-hearing notice can be by way of letter, citing Sarafa Hassan V. INEC & 14 ors (no citation); and that even if a letter was not written the fact that the Forms were filed and issued on the parties satisfied the requirements of Paragraph 18 (1) (2) and (3) of the First Schedule to the Electoral Act 2010 (as amended), which reads –

(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 Respondent’s reply, whichever is the case, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.

(2)     Upon application by a Petitioner under sub-paragraph (1) of this Paragraph the Tribunal or Court shall issue to the parties or their legal practitioners (if any) pre-hearing conference notice as in Form TF 007 accompanied by a pre-hearing Information sheet as in Form TF 008 for –

(a)     The disposal of all matters which can be dealt with on interlocutory application.

(b)     Giving such directions as to the future course of the Petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions.

(c)     Giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need for the expeditious disposal of the Petition; and

(d)     Fixing clear dates for hearing of the petition.

(3)     The Respondent may bring the application in accordance with subparagraph (1) where the Petitioner fails to do so, or by motion which shall be served on the Petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.

 

They further submitted that the key words “as in Form TF 007” means that the format has been provided in those Forms; that the Paragraph does not say that the application should be by motion, and if that was the intention of the lawmakers, it would have been expressly provided; that Paragraph 18 (3)makes it clear that the application has to be by motion; and that since Paragraph 47 (1) of the said First Schedule states that all motion shall come up for pre-hearing – “how then can the process of commencing pre-hearing session be by motion? In addition to the authorities cited in the Appellants’ brief, we were also referred to recent decisions of this Court in – Unreported Appeal No CA/MK/EPT/10/2011 – PDP v. Tokuma Ugba & Ors, delivered on 16/9/11; Unreported Appeal No.CA/J/EPT/HR/2/2011 – Aliyu Ibrahim Gebi v. Alhaji Garba Dahiru & 3 ors. delivered by a full Court on 22/8/11; and Unreported Appeal No.CA/YL/EPT/ADS/HA/1/11 – Jarengol v. Aguwa, delivered on 24/8/11.

 

The 1st and 2nd Respondents submitted that filing the application by way of motion is a condition precedent to the hearing of the Petition, which goes to the jurisdiction of the Tribunal, citing Okonkwo V. INEC (2006) 2 EPR 94; and that the procedure adopted by the Appellants cannot, therefore, be said to have been initiated by due process of law.

 

Both parties canvassed other arguments that are of no relevance to the issue before us, which is simply whether the application envisaged in paragraph 18 (1) of the First Schedule to the Electoral Act 2010 (as amended) should be by letter or by motion. The standpoint of this Court under the 2006 Act was that the application must be by motion, which is what I said in my contribution to the Judgment in Badamasi Ayuba & 1 Or. v. INEC & 3 Ors. (Unreported) Appeal No. CA/K/EPT/HR/15/09.

 

However, a full Court of five Justices has over-ruled that decision, and other decisions of this Court to same effect. In the recent Judgment delivered on 22nd August 2011 in Appeal No. CA/J/EP/HR/127/2011 – Gebi V. Dahiru & 3 ors., this Court per Saulawa, JCA, clearly stated –

“..I am not unmindful of the view expressed by my learned brother – Augie, JCA in the contribution to the to the lead Judgment, to the following effect –

“Thus, the application envisaged by the Practice Directions cannot be by way of a mere letter. Courts of law do not deal with or act on letters but with applications brought by way of motions. If the Practice Directions intended the application to be made by a letter, it would have expressly stated so”.

In essence, the opinion: regarding the letter, as expressed by Augie, JCA’s contribution could at best, be described as an Obita dicta…”.

 

In effect, the prevailing decision of this Court with regard to the issue is that a mere letter will suffice. This was clearly spelt out by Dongbam-Memsem, JCA, in his contribution to the above Judgment, as follows –

“Paragraph 18 (1) is clear, unambiguous and indeed simple, the Petitioner shall apply for the issuance of pre-hearing notice. In fact, the description of what the Petitioner shall apply for clearly shows that a simple request suffices. A written application puts the facts of the request on record as evidence of compliance. The application/request to issue activates the process of issuing Form TF 007, which is done by the Secretary to the Tribunal (Paragraph 7 (i) of 1st Schedule of the Electoral Act). It befuddles me that so much ado is made about this very unambiguous provision and it is even more curious to expect that a Petitioner can be shut out at infancy upon an alleged failure to make this application by way of motion. No doubt, a failure to put in the application at all, could be fatal to the Petitioner (Refer: Okereke v. Yar-Adua (2008) 4 FWLR (pt.430) 626 @ 646). An application for an application, as in a simple request, is a simple application; a ‘please, issue Form TF 007″ should be sufficient, all other details actually repose with the Court Registry before which all the processes are filed. To terminate an election petition for the simple reason of the form and not the substance of an enactment appears to be frivolously fallacious”. (Highlight mine)

 

Obviously, there is nothing I can add or subtract from the above decision and without much ado; I will quickly say that this appeal must be, and is, hereby resolved in favour of the Appellants. However, before I round-up, I must once again commend learned counsel for the 1st and 2nd Respondents, particularly Mr. B. K. Adam, who argued this appeal.

 

The constitutional provision, which stipulates a deadline of 60 days within which to deliver Judgments in election matters, poses a challenge to both Court and parties alike, and without their ability and readiness to rise up to the challenge and prepare the 1st and 2nd Respondent’s brief within three hours, this appeal would have lapsed without being heard.

 

I doff my hat to them; but even so, the appeal is hereby allowed. The decision of the Tribunal in its Ruling delivered on 25/7/11 is set aside and the Petition is remitted to the Tribunal for trial on the merits.

 

There will be no order as to costs.

 

 

ABDU ABOKI, J.C.A.:

I agree

T.N. ORJI-ABADUA, J.C.A.:

I agree.