INTRODUCTION:
There are two schools of thought on this issue. There is a
school that says that the petitioner must apply for issuance of the
pre – hearing notice every time he files a reply to the reply of
each and every of the respondents.
That is to say, in a petition where there are four respondents,
the application for pre-hearing should be done four times. There is
another school of thought that says that the application for
issuance of the pre-hearing notice should be made at the close of
pleadings. That is to say, upon the petitioner’s filing of his
reply to the reply of the last respondent. Incidentally, these
parallel positions have had the backing of the appellate courts,
especially the Court of Appeal for many years since the coming into
force of the Electoral Act, 2010.
The result is that there is confusion in the land about which of
the positions should be followed by the election petition tribunals
when the issue is raised, mostly by the respondents, that the
petitioner did not apply for pre – hearing notice within the
stipulated seven-days period. In other words, if the argument or
objection is made by a respondent that the petition should be
dismissed for failure of the petitioner to apply for pre – hearing
within seven days, when should the court begin to count the seven
days for purpose of resolving the objection raised by such
respondent?
WHAT SAYS THE LAW ON WHEN A PARTY SHOULD MAKE
APPLICATION FOR ISSUANCE OF PRE – HEARING NOTICE?
The answer to this is found in Paragraph 18 (1) of the First
Schedule to the Electoral Act, 2010 which provides as follows:
‘’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, as the case may be, the
Petitioner shall apply for the issuance of pre-hearing notice as in
Form TF 009.’’
By Paragraph 18 (4) of the same First Schedule, the consequence
of failure to apply for pre-hearing within the stipulated 7 days,
is the dismissal of the petition. The law is very strict on this
issue to the extent that the tribunal shall not entertain any
application for extension of time to apply for pre-hearing after
the expiration of the 7-day period.
As noted earlier, the germane question here is, when does time
begin to run for purpose of computation of the seven days within
which an application should be made for issuance of the pre-hearing
notice?
BEFORE WE PROCEED:
Before we proceed, there is need to clear some points as regards
the repeated use of the word ‘reply’ in election petition generally
and in this article. A complaint against the outcome of an election
commences with the filing of a process known as
‘petition’. When served with a petition, the respondent is
expected to file what is known as ‘reply to the petition’.
If the petitioner wishes to respond to the reply of the respondent,
he is expected to file what is known as ‘the petitioner’s reply
to the reply of the 1st or 2nd
Respondent’ as the case may be. I do hope this will assist the
reader in understanding the repeated use of the word
‘reply’ in this article.
CASES IN SUPPORT OF THE POSITION THAT THE APPLICATION
FOR PRE – HEARING MUST BE MADE WITHIN 7 DAYS AFTER THE PETITIONER
HAD FILED AND SERVED THE PETITIONER’S REPLY TO EACH OF THE
RESPONDENT’S REPLY:
As stated earlier, this is the positon of a school of thought on
the subject matter. For this school, though there may be more than
one respondent to a petition, the petition should be taken as being
a complaint against each and every of the respondents and
therefore, each respondent must be treated separately. There are
cases in support of this position.
In Preye Oseke v. Independent National Electoral
Commission (2011) LPLR – CA/PH/EPT/25/2011
(delivered on Tuesday, the 25th day of October,
2011), the Court of Appeal, per Awotoye, JCA
held thus:
‘’I have carefully considered the submissions of the
learned counsel on both sides. This is a situation in which there
are more than one respondent and having regards to the wordings of
Paragraph 18 of the First Schedule to the Electoral Act, problems
of interpretation have arisen. For clarity’s sake, I shall quote
the provisions of Paragraph 18 (1), (3) and (4) of the First
Schedule of the Electoral Act (as amended)
hereunder:
18 (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.
(3) The Respondent may bring the application in
accordance with sub paragraph (1) where the Petitioner fails to do
so, or may by motion which shall be served on the Petitioner and
returnable in 3 clear days, for an order to dismiss the
petition.
(4)
Where the Petitioner and the Respondent fails 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 step to file shall be filed or
entertained.
Interpreting Paragraph 18 of the First Schedule, the
entire provision of the Electoral Act must be considered. See:
Chime v. Ude (1996) 3 NWLR (Pt. 46) at 376; Nwule v. Inwanyanwu
(2004) 15 NWLR 61 at 85. I am of the respectful view that Paragraph
18 should be read with Paragraph 49 of the First Schedule. It
reads: ‘’Two or more candidates may be respondent to the same
petition and their case may, for the sake of convenience be heard
at the same time but for all purposes (including the taking of
security) the election petition shall be deemed to be a separate
petition against each of the Respondents…’’
The implication of reading Paragraph 18 with
Paragraph 49 is that, when there are more than one Respondent, the
election petition against each of the Respondents shall be deemed
to be a separate petition. In other words, where the Petitioner is
to apply for issuance of pre-hearing notice as in Form TF007 under
the said Paragraph 18, he is to do so within 7 days after each
Respondent files and serves his reply or after the Petitioner had
filed and served Petitioner’s reply to each of the Respondent’s
reply. If he fails to do so in respect of one of the Respondents,
that Respondent is empowered to suo moto dismiss the petition
against such Respondent. The Petitioner is not to wait for all the
Respondents to file and serve their respective replies before
applying for pre-hearing notice. See: Okoro v. Izunaso (supra).
Though the respondents are jointly sued before the Tribunal, the
election against each of the respondents is deemed under Paragraph
49 of the Electoral Act to be separate
petition.’’
Before I move on to quote another decision of the Court of
Appeal on this position, I consider it important to observe here
that in making the above decision, My Lord Justice Awotoye,
JCA relied heavily on the provision of Paragraph
49 of the First Schedule to the Electoral Act and read the
said paragraph side by side with Paragraph 18 of the same Act to
hold that where there are more than one respondent, the election
petition against each of the respondents must be treated as a
separate petition.
This position, with the greatest respect to My Lord, is in
conflict with the exact language used in Paragraph 49 of the First
Schedule. The language used therein is ‘’two or more
candidates’’, not ‘’two or more
respondents’’. The Electoral Act has not defined
‘’candidate’’ to include ‘’political parties’’, ‘’INEC’’ etc; the
other usual respondents in an election petition. We shall return to
this point in the course of this discussion.
The other decision of the Court of Appeal on the positon on the
separate respondent’s argument is the case of Action
Congress of Nigeria v. Amaewhule CA/PH/EPT/6/2011,
delivered by the Port Harcourt Division of the Court of Appeal on
Wednesday, the 16th day of November, 2011, per
Muhammed, JCA:
‘’Finally, be it reiterated that, had learned
appellants’ counsel read Paragraph 18 along with Paragraph 49 of
the First Schedule, the error in his submission that Paragraph 18
is only activated at the conclusion of pleadings between all the
parties to the petition would have been avoided. Paragraph 49
provides: ‘Two or more candidates may be made respondents to the
same petition and their case may, for the sake of convenience be
heard at the same time but for all purposes (including the taking
of security) the election petition shall be deemed to be a separate
petition against each of the Respondents.’’
As can been seen in this decision, the Court of Appeal relied
heavily on the provision of Paragraph 49 of the First Schedule to
the Electoral Act in reaching its decision that respondents to
election petition must be treated separately for which reason
application for pre-hearing must also be done separately. I wish to
state again that, the language of Paragraph 49 is, ‘’two or
more candidates’’ not ‘’two or more
respondents’’. For purpose of election petition, can we
truly say that ‘two or more candidates’ is the same thing as ‘two
or more respondents’?
In most election petitions, what we see is that after stating
the name of the person (candidate) that was declared the winner of
an election, what follows is the name of his political party, the
Independent National Electoral Commission, the Resident Electoral
Commissioner, etc. Can we truly say that INEC and such political
party sued as co-respondents to the petition are also candidates in
the eyes of the law? I do not think so.
I rather hold the opinion that there is a difference between a
candidate (the man who was declared winner and whose election is
being challenged) and the other respondents who are joined in the
petition. I hold the view that INEC and political parties are not
candidates in any election petition; they are co-respondents. This
is where My Lords, the Justices of the Court of Appeal, may have
(with due respect to them) fallen into error in relying on the
provision of Paragraph 49 of the First Schedule to the Electoral
Act in their interpretation of Paragraph 18(1) of the First
Schedule to the same Act (the provision on pre-hearing
application).
Let us look at yet another decision of the Court of Appeal which
also supports the position that the application for pre-hearing
must be done separately in reaction to the replies of each and
every of the respondents to election petition. I am referring to
the case of Koko (JP) v. Inimgba
(CA/PH/EPT/2011 delivered by the Court of Appeal
Port Harcourt Division on 25th October, 2011). In this
case, Awotoye, JCA also held thus:
‘’I am of the respectful view that Paragraph 18
should be read with Paragraph 49 of the First Schedule to the
Electoral Act. It reads: Two or more candidates may be made
respondent to the same petition and their case may, for the sake of
convenience be heard at the same time but for all purposes
(including the taking of security) the election petition shall be
deemed as a separate petition against each of the respondents. The
implication of reading Paragraph 18 with Paragraph 49 is that when
there are more than one respondent, the election petition against
each of the respondent shall be deemed to be a separate petition.
In other words, where the petitioner is to apply for issuance of
pre-hearing notice as in Form TF07 under the said Paragraph 18, he
is to do so within 7 days after each respondent files and serves
his reply or after the petitioner has filed and served the
petitioner’s reply to each of the respondent’s reply. If he fails
to do so in respect of one of the respondents, that respondent is
empowered to invoke the provision of Paragraph 18(3) or as the case
may be, the Tribunal is empowered to suo motu dismiss the petition
against such respondent. The petitioner is not to wait for all the
respondents to file and serve their respective replies before
applying for the pre-hearing notice. See: Okoro v. Izunaso (supra).
Though the respondents are jointly sued before the tribunal, the
election petition against each of the respondents is deemed under
paragraph 49 of the Electoral Act to be a separate
petition.’’
Again, the Court of Appeal in the above decided case, relied
heavily on the provision of Paragraph 49 of the First Schedule in
reaching its decision that there must be separate applications for
pre-hearing if there are more than one respondent to the petition.
As noted earlier, Paragraph 49 uses the word ‘’candidate’’ while
the judgments above use the word ‘’respondents’’.
DECIDED CASES IN SUPPORT OF THE SECOND SCHOOL OF
THOUGHT:
This is the school of thought which says that the application
for pre-hearing should be done at the close of pleadings. That is,
after the petitioner has filed his reply to the reply of the last
respondent. The cases in support of this position are:
Chukwu v. Ude-Okoye (2017) All FWLR (Pt. 892)
1025 where the Court of Appeal, per
(Ogunwumiju JCA) held thus at page 1047
paras. D – E as follows:
‘’The current popular position of this court which seems to
have been affirmed by the Supreme Court is that the petitioner is
obliged to apply for pre-hearing session only at the close
of pleadings. This is to say seven days after all
parties ought to have filed a reply to petition or reply to
respondents’ reply as the case may be. That constitutes
when “pleadings closed”.
At page 1048 paragraph F, his Lordship went
further to hold as follows:
“Close of pleadings” in election matters can only
mean
the time when all parties are by law or rules of court
expected to have filed all necessary processes.’’
In Azubuike Ikenna v. Ben Nwankwo (2011) LPELR – 9257 at
17, the Court of Appeal per Jauro, JCA
held thus: ‘’…the Petitioner is mandatorily expected to apply for
pre-hearing within seven days on settlement of
pleadings.’’ See also: Tony Nwonye v. Ameke
Ikechukwu (2011) LPELR – 9195 (CA)
Very recently too, the Court of Appeal in Aregbesola v.
Adesanya Adenike (2015) LPELR – 25594 (CA) at 24 – 26 per Owoade,
JCA held thus on the issue of computation of time to apply
for pre-hearing. It was held thus:
“…the Learned Trial Tribunal concluded: “We are in agreement
with Learned Counsel for each of Respondents in their submission
that the application of Petitioners for pre-hearing notice filed
before issues were completely joined and exchanged in this petition
was premature and not in compliance with Paragraph 18(1) of the
First Schedule to the Electoral Act. “For ease of reference, the
said paragraph reads thus: “18(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, as the case
may be, the Petitioner shall apply for the issuance of pre-hearing
notice as in Form TF 008. “The simple interpretation that one can
give to the above provision is that the Petitioner is obliged
at the latest period of 7 days after the filing
and service of the Petitioner’s reply on the Respondent” OR at the
earliest period file the application for pre-hearing session “7
days after the filing and service of the Respondent’s reply”. This
to my mind is the appropriate implication of the disjunctive word
‘OR’ in between the first and second phrases of Paragraph 18(1) of
the First Schedule to the Electoral Act and the follow up of the
use of “as the case may be” thereafter. By the above, it is not
wrong for the Courts to refer to the situation depicted in either
of the phrases of Paragraph 18(1) of the Schedule to the Electoral
Act 2010 (as amended) as “close of pleadings” or
“when issues have been joined” and to borrow the
expression used by the Learned Trial Tribunal at pages 326 to 327
“—–the bottom line is that the prescribed time must be complied
with”. The term “close of pleadings” has
become a recognized expression to capture the two different time
limits intended by the draftsman of Paragraph 18(1) of the First
Schedule to the Electoral Act 2010 (as amended) and as was
rightly pointed out by the Learned Trial Tribunal has been used in
numerous cases including the decision of the Court of Appeal in
Aliyu Ibrahim Gebi v Alhaji Garba Dahiru (2012) 1 NWLR (Pt 1282)
560 and the more recent unreported decision of the Supreme Court in
Senator Iyiola Omisore & Anor v Ogbeni Rauf Aregbesola &
Ors SC.204/2015 (unreported).” Per OWOADE, J.C.A. (Pp.
24-26, Paras. C-B’’
I also refer to the case of Dr. Arthur Arguncha
Nwankwo & Ors v. Alhaji Umaru Musa Yar’Adua & Ors (2011)
LPELR-19739 (CA) Page 51-52, Paras D-G, where the
court held thus:
“By the provisions and requirement of the paragraph,
the petitioners had the mandatory and therefore binding duty to
apply for the issuance of the pre-hearing notice within seven days
after they had filed their Replies to the respective Replies by the
Respondents to the petition. As shown earlier, the petitioners’
last Reply was the one filed on the 27/8/07 in respect of the
1st and 2nd Respondents’ Reply. So by virtue
of the provisions of Paragraph 3(1) above (which is in pari
material with Paragraph 18 (1) of the First Schedule to the
Electoral Act, 2010 As Amended), the petitioners had the duty to
apply for the issuance of pre-hearing notice within seven (7) days
from the 27/8/07.’’
In Nunghe v. Swa (2012) LPELR-7929
(CA) pages 36-37 Paras G- C, the court held as
follows:
“…. Secondly, no notice and no reference was made by
the tribunal in its judgment to the Reply filed by the
2nd Respondent in its findings. This is a curious
omission because as found earlier, the 2nd Respondent’s
Reply to the petition filed on the 09-12-12, (sic; 09-12-11) and
served on 12-12-11, was the only Reply properly filed within time
and was also the latest or last reply served on the petitioners
from whence time should begin to run for the purposes of applying
for the issuance of pre-hearing notice.’’\
In the case of Senator Iyiola Omisore v. Ogbeni Rauf
Aregbesola (2015) LPELR – 24803 (SC) at 88 – 89 the
Supreme Court, per Nweze, JSC defined the time for
application for pre – hearing to mean the period commencing from
the ‘close of pleadings’. Though the appeal in
this case was dismissed against the appellant, His Lordship cleared
the air on the issue of computation of time for issuance of the
pre-hearing notice when he held thus:
”I find sufficient merit in the contention of the
respondents here. I endorse the unanswerable submission that the
Tribunal, having found that the said pre-hearing notice application
was not filed within the time stipulated after close of
pleadings pursuant to paragraph 18(1) (supra), ought to
have dismissed the petition under paragraph 18(4)
(supra).’’
The recent decided authorities of our appellate courts are in
full agreement that the benchmark for computation of time within
which the Petitioners must apply for issuance of the pre-hearing
notice is ‘’upon the close of pleadings’’
which is further defined to mean ‘’upon the filing of
the petitioner’s reply to the last of the replies filed by the
respondents’’.
TWO CONFLICTING POSITIONS FROM ONE COURT; THE COURT OF
APPEAL: WHAT SAYS THE LAW IN THE CIRCUMSTANCE?
In the last couple of years, the Nigerian legal system has
witnessed a flurry of conflicting decisions, particularly, from the
various divisions of the Court of Appeal. It can be said that this
cuts across various aspects of our jurisprudence, from garnishee
proceedings to customary law to constitutional law, election
petition law, etc. The question about when time begins to run for
purpose of application for issuance of pre-hearing notice is one of
such instances where the same court has made conflicting decisions
on a very sensitive issue in our electoral jurisprudence.
The law is however trite that where there are two or more
conflicting decisions of the same court, the latest in time should
be taken as representing the current position of the law on the
subject matter. In the case of Hon. Jeffrey Moses Owor v.
Hon. Bereware Christopher (2008) LPELR – 4813 at 25 to 26
paras. G – A, the Court of Appeal per Suleiman Galadima,
JCA held thus on the position of the law on conflicting
judgments of the same court:
‘’It is settled law that where a lower court is
faced with conflicting decisions of a higher court on a particular
issue, the rule is that the decision that is later in time operates
as a bar and represents the correct position of the law; See: Ansa
v. R.T.P.C.N (2008) All FWLR (Pt. 405) 1681 at 1686; Mkpedem v. Udo
(2000) 9 NWLR (Pt. 673) 63; and Nwangwu v. Ukachukwu (2006) 6 NWLR
(Pt. 662) 674.’’
The cases cited above in support of the first school of thought
on the subject matter are cases which were decided by the Court of
Appeal, years before the cases in support of the second school of
thought were decided. The above cited cases of Preye
Oseke, Action Congress v. Amaewhule, Koko v.
Inimgba (cases in support of the first school of thought)
were decided in 2011. On the other hand, the cases of
Chukwu v. Ude-Okoye, Aregbesola
v. Adesanya Adenike, Nunghe v.
Swa (some of the cases in support of the second
position) were decided between 2012 and 2017.
Applying the above principle of law in Moses Owor v.
Hon. Christopher (supra) and a host of other decisions of
the Court of Appeal and Supreme Court, the decisions that are later
in time represent the position of the law on the subject matter of
when the petitioner should apply for the issuance of the
pre-hearing notice in an election petition, namely, at the
close of pleadings.
There is the argument from some quarters that where a trial
court is faced with conflicting decisions of a superior court, the
trial court is at liberty to pick and choose which one to follow.
With due respect to the proponents of this school, the Supreme
Court has settled this issue in a litany of its decisions on the
subject matter one of which is quoted verbatim in the case of
Central Bank of Nigeria v. Musa Zakari (2018) LPELR –
44751 at pages 33 – 34 paras. E – E where the court,
per Bdliya, JCA held and also quoted the apex
court as follows:
‘’The law is trite that where there are conflicting
judgments of courts of equal jurisdiction, the rule is that the
decision that is later in time prevails. See the cases of Alao v.
V.V.C Unilorin (2008) 1 NWLR (Pt. 1069) 421 at 450 paragraphs F –
H; and Adigun v. Ayinde (1993) 8 NWLR (Pt. 315) 534. The trite
position of the law has been restated by the apex court in the case
of Osakwe v. Federal College of Education (2010) 3 SCNJ page 529 at
546 where Ogbuagu, JSC had this to say: ‘’Those who think they are
very knowledgeable than this court, if they have listening ears,
let them hear and take care. I have gone this far, because the
leaned Justices of the Court of Appeal in the University of Ilorin
v. Adeniran (supra), who claim or assert to be ‘torn between the
two judgments of this court’ should please take note and come to
terms with the principles or doctrines of stare decisis, precedents
and hierarchy of the courts which are clear and unambiguous. They
are an indispensable foundation. For the umpteenth time, where
there appear to be conflicting judgments of this court, the later
or latest will or should apply and must be followed if the
circumstance are the same.’’
Moreso, there is a recent decision of the Supreme Court on the
subject matter of when to apply for the pre-hearing notice; the
case of Senator Iyiola Omisore v. Ogbeni Rauf
Aregbesola (supra) where the Court, per Nweze, JSC
employed the phrase ‘after close of
pleadings’. It can therefore be rightly said
that this issue has been settled by both the Court of Appeal and
the Supreme Court with the attendant implication that there no need
for controversy anymore on the question of when time begins to run
for purpose of application for issuance of the pre-hearing
notice.
What is important is to ask the question whether the respondents
have filed their replies within the time required of them by law.
If the answer is in the affirmative, namely that they all filed
their replies within time for which reason their replies are deemed
to be properly filed and competent, then the next question is
whether the petitioner responded to the said replies within the
time required of him by law.
By law, when the replies are served on the petitioner, he has, 5
days to file a reply to each of the replies of the respondents. The
petitioner must ensure that he files his reply to each of
respondent’s replies within time, that is, within 5 days. Within 7
days from the date of filing of the petitioner’s reply to the last
of the respondent’s reply, the petitioner should file an
application for issuance of the pre – hearing notice and such
filing is (by the above cited recent or later decisions of the
Court of Appeal and of the Supreme Court), properly filed and
therefore competent, having been filed at the close of
pleadings.
In the circumstance, an election petition dismissed by the
tribunal for failure to apply for pre – hearing notice within 7
days after the filing of the petitioner’s reply to each and every
respondent to the petition is, with utmost respect, a decision
taken within consideration of the current position of the law on
the subject matter.
ANOTHER LOOK AT PARAGRAPH 18 (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, as the case may be, the
Petitioner shall apply for the issuance of pre-hearing notice as in
Form TF 009.’’
The Tribunals have over time failed to consider the word
‘service’ in their interpretation of the above paragraph 18(1).
Most tribunals only consider the word ‘filing’. I hold the view
that where a tribunal relies on the word ‘filing’ alone (that is,
filing of the petitioner’s reply to the respondent’s reply) to
dismiss a petition, injustice may have been occasioned to the
affected party. This is because, by the language of Paragraph 18(1)
the lawmaker intended that the court should reckon with both
‘filing’ and ‘service’ in the calculation of time to apply for
pre-hearing. These words are used conjunctively with the word ‘and’
as against the other word ‘or’. This means that the lawmaker
intended that the two words be read and applied together, namely, 7
days after the filing and service of the
petitioner’s reply.
Thus, if the petitioner filed his reply to the last respondent’s
reply on the 7th of July, 2019 and the registry of the
tribunals serves the process on the respondents on the
10th of July, 2019, the 7 days within which to apply for
pre-hearing notice shall begin to count from the 10th
which is the date service was effected. Recall that the direct
language of Paragraph 18(1) is ‘’within 7 days after
the filing and service …’’.
I dare say that if most tribunals had taken note of these
conjunctive words ‘filing and service’,
several petitions would not have been dismissed. There is however
the need for today’s tribunals to take cognizance of these words as
they sit in judgment to decide the fate of petitions brought before
them.
BETWEEN THE FIRST SCHOOL AND THE SECOND
SCHOOL:
I hold the view (with due respect to the divergent opinions of
others) that the position of the second school of thought on this
matter, makes better legal sense than the first school. Recall that
the first school of thought says that if there are four
respondents, the petitioner must make four applications for
pre-hearing notice, while the second school of thought says that
one application made at the close of pleadings is sufficient and
proper.
When an issue is seemingly intractable in law, the courts can
resort to a discovery of the intendment of the lawmaker in the
provision of the law in issue. I hold the view that it could not
have been the intendment of the lawmaker that four applications be
made for one pre-hearing session. The law does not intend that
pre-hearing sessions be held separately for each and every
respondent to a petition; it rather intends that all parties be
invited together for one pre-hearing session. One then would wonder
why the insistence should be made in some quarters that a
petitioner must apply separately for pre-hearing notice in respect
of each and every of the respondents to an election petition. I say
with due respect that there is need to jettison the school of
thought on multiple applications for pre-hearing sessions in
election petition matters.
CONCLUSION:
Many petitions have fallen by the way side as a result of the
varied interpretation of Paragraph 18 of the First Paragraph to the
Electoral Act. This is mostly done when the Tribunal takes the
decision for read Paragraph 18 together with Paragraph 49 of the
First Schedule to the Electoral Act.
It is my humble submission that a grave error is occasioned
whenever these two provisions are read together. In paragraph 18,
the denominator is ‘respondent’ while the
denominator in Paragraph 49 is
‘candidates’. There is nothing in the
Electoral Act to suggest that the word
‘respondent’ is the same with the word
‘candidate’ to justify the supplanting of
one for the other.
While ‘candidate’ only means the
persons who contested election,
‘respondent’ includes the candidate whose
election is challenged, the political party that sponsored him and
in most cases, the electoral body that conducted the election. It
is therefore clear and beyond peradventure that when these words
are used in separate sections or paragraphs of the Electoral Act
they mean exactly what they represent and nothing more. Reading
Paragraph 18 together with Paragraph 49 can only breed injustice.
They both provide for different subjects and their boundaries
should not be overlooked nor lumped or blurred together to dismiss
an election petition.
In Chukwu v. Ude-Okoye (supra) the
Court per Ogunwumiju, JCA cleared the air on the
meaning of these words (candidate and respondent) in election
matters when he held thus:
‘’In Buhari v. Yusuf
(2003) FWLR (Pt. 174) 329, (2003) 14 NWLR (Pt. 241)
446, the Supreme Court explained the purport of paragraph 45 of the
First Schedule to the then Electoral Act, 2002 which is now
Paragraph 49 of the 2010 Electoral Act. Gen. Buhari had challenged
the election of Chief Obasanjo and joined all other presidential
candidates who were not returned, as candidates. The Supreme Court
held unanimously that only the winner of an election or one whose
return is being questioned could be made a respondent and can
qualify to be a “candidate” within the meaning of paragraph 45 now
49 of First Schedule to the Electoral Act, 2010 and not other
contestants who were not declared winner of the
election.
The purport of paragraph 49 is directed at
“candidates” respondents. The general interpretation has always
been that Paragraph 49 means “other respondents” rather than “other
candidates” have been shot down by the decision of the Supreme
Court in Buhari v. Yusuf. The
current popular position of this court which seems to have been
affirmed by the Supreme Court is that the petitioner is obliged to
apply for prehearing session only at the close of pleadings. This
is to say seven days after all parties ought to have filed a reply
to petition or reply to respondents’ reply as the case may be. That
constitutes when “pleadings closed”. The interpretation
in Oseke v. I.N.E.C. does not
appear to be the generally accepted one by the Court of Appeal or
find favour at the Supreme Court. See A.C.N.
& 1 Or. v. Nomiye & 2 Ors. (2012) 7 NWLR
(Pt. 1300) 568 at 581;
Etuk v. Ikon & 2 Ors. (2012) 5 WRN
55 at 67; Gebi v.
Dahiru (2012) 1 NWLR (Pt.1282) 560. I am more
persuaded to take the liberal view that
pre-hearing notice may be filed at the
close of pleadings – that is the last date
when a party who has been served process
or intends to file process is obliged to
reply process. …
‘Close of pleadings’ in election matters
can only mean the time when all parties
are by law or rules of court expected to
have filed all necessary processes.’ [see pages 1046 paras. F – H;
1047 paras. A – E; 1048 para. F of the Law
Report].
As seen in the dates of the judgment of the Court of Appeal in
the earlier decisions of the court on the subject matter, these
decisions were made in the wake of the amendment of the Electoral
Act, 2010. Perhaps the Court of Appeal at the time was, with due
respect, still struggling to navigate the interpretation of the new
provisions of the Act at the time. However, as seen in the
subsequent cases, the Court of Appeal has departed from its earlier
position on the same subject matter and is now of the position that
the application for pre-hearing notice should be made at the close
of pleadings. Moreso, the above cited case of the Supreme Court on
the subject matter which is to the effect that the application
should be made at the close of pleadings,
has settled the matter and the trial courts and the Court of Appeal
can only abide by the current state of the law.
Ekemini Udim is a legal
practitioner with experience in various aspects of law including
election petition. Email: ekeminiudimforjustice@gmail.com