MBORA V IKPEME & ORS

MBORA V IKPEME & ORS


IN THE COURT OF APPEAL
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR

ON FRIDAY, 9TH OCTOBER, 2015


Appeal No: CA/C/NAEA/171/2015

CITATION:

Before Their Lordships:

ABDU ABOKI, JCA

STEPHEN JONAH ADAH, JCA

MISITURA OMODERE BOLAJI-YUSUFF, JCA


BETWEEN

NTUFAM ETTA MBORA
(APPELLANT)

AND

HON. VICTOR IKPEME & ORS
(RESPONDENTS)


PRONOUNCEMENT


A. ELECTION PETITION
1. Extension of Time to Appeal – How brief of argument filed out of time is incompetent
Effect of an appeal filed in breach of the Practice Direction

By virtue of the Paragraph 10 of the Election Tribunal and Court Practice Direction, 2011 an Appellant shall within a period of 10 days after service of the record of proceedings, file in the Court, his written brief of argument for service on the Respondents. Thus the Appellant’s brief of argument was filed outside the period prescribed by the practice direction. The Appellant’s counsel applied orally for an extension of time up and until 28th September, 2015 for the Appellant to file his brief of argument. He referred to Paragraph 55 of the First Schedule to the electoral act 2010 as amended, Order 7 Rule 10 of the Court of Appeal Rules and the case of Abubakar vs INEC (2004) 11 WRN PG 147 AT 162. We do not need to waste our time and energy on the issue of extension of time to file a brief of argument in an election petition appeal. That issue has been considered and settled in a plethora of authorities by this Court and the Supreme Court. In Abubakar vs INEC (SUPRA) relied on by the Appellant’s counsel, this Court clearly held that the rules of this Court governing filing of briefs of argument will apply in an election petition only where the Electoral Act and the Practice Direction made there under do not make provisions in respect of a particular issue relating to briefs of argument.

Paragraphs 6-17 of the Election Tribunal and Court Practice Directions, 2011 specifically provide for the filing of an appeal, filing of brief of argument, the format of the brief and the procedure for the hearing of the appeal. Paragraphs 10, 12 and 13 of the said practice directions stipulate the time limit for filing of the briefs by parties to the appeal.

It is now firmly settled that election petitions are sui generis. They are in a class of their own, hence specific laws and rules were enacted to govern them based on our past experiences in such cases. It is the duty of the legislature to legislate and enact laws. The duty of the judiciary is to interpret the law and give effect to the intention of the legislature. The appellate Courts are ad idem on the sanctity of the time line set by the Electoral Act, 2010 (as amended) and the Practice Directions. The clear pronouncement of the Courts particularly the Supreme Court which is the Apex Court in the land is that the filing, hearing and appeal in an election petition must be conducted strictly in accordance with and within the time line set by the electoral law and the practice directions. See: Omisore vs. Aregbesola SUIT NO. SC.204/2015 (unreported) Judgment delivered by the Supreme Court on 27th May, 2015. The law as it stands today is that this Court has no power to extend the time stipulated by Paragraphs 9, 12 and 13 of the election petition and Court practice directions, 2011 for filing of briefs of argument in an election appeal. The Appellant’s brief of argument having been filed out of time is incompetent. The consequence is that there is no brief of argument in this appeal. The only option open to this Court is to dismiss the appeal. Per ABOKI, JCA. read in context


LEAD JUDGMENT DELIVERED BY ABOKI, JCA


This appeal is against the interlocutory decision of the National Assembly and State Houses of Assembly Election Tribunal of Cross River State sitting in Calabar. Coram: I. W. Jauro J., A.A.G. Onibokun J., and M.E Njoku J., delivered on 19th August, 2015.

The Tribunal in its ruling dismissed the application made by the Appellant who was the 1st Respondent in the petition No. EPT/CR/NA/13/2015.

The Appellant had sought the dismissal of the petition on the grounds of failure of the petitioner to activate the pre-hearing session by applying for issuance of prehearing notice as in form TF007 within the time stipulated in Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended).

The petitioner reacted by filing a counter affidavit in opposition to the motion and accompanied same with a written address. The 3rd Respondent in this appeal who was also the 4th Respondent to the petition also opposed the application for the dismissal of the petition.

The trial Tribunal in its ruling agreed with the opinion of learned counsel to the 3rd Respondent and dismissed the Appellant’s motion stating that it was too late in the day to raise the issue.

Peeved by the said ruling, the Appellant appealed to this Court. The notice of appeal was filed on 7/9/2015 and the record of appeal was compiled and transmitted to this Court on 16/9/2015.

The Appellant’s brief of argument prepared by Kebe Pius Iwara Esq was dated 21/9/2015 and filed on 28/9/2015. In the said brief of argument a lone issue was distilled for determination in this appeal. It reads;

“whether in view of the clear and express provisions of Paragraph 18(1) and (3) of the First Schedule to the Electoral Act, the learned judges of the election Tribunal were right in refusing to dismiss the petition on ground of abandonment because the Appellant participated in the pre-hearing session.”

The 1st Respondent’s brief of argument dated 2/10/2015 was prepared by E.E. Osim Esq and filed on 5/10/2015. The 1st Respondent did not respond to the live issues raised by the Appellant but rather raised and argued three grounds of preliminary objection challenging the competence of the appeal. The three grounds of the preliminary objection were discovered to be incompetent. They were withdrawn by counsel to the 1st Respondent and same were struck out. Since the 1st Respondent has not presented any argument challenging the issue raised in the Appellant’s brief of argument, the brief of argument of the 1st Respondent was also struck out.

The 2nd Respondent did not file any brief of argument and he has been absent and unrepresented throughout the hearing of this appeal.

The 3rd Respondent’s brief of argument dated 4th October, 2015 was filed on 5/10/2015. He also presented a notice of preliminary objection dated and filed on 4/10/2015. The preliminary objection challenged the jurisdiction of the Court to entertain this appeal on four grounds. At the hearing of this appeal grounds 2, 3 and 4 of the preliminary objection were found to be incompetent and same were withdrawn by learned counsel to the 3rd Respondent and same were struck out.

The 3rd Respondent’s brief of argument contains the argument on the preliminary objection. The arguments on the incompetent grounds (2, 3 and 4) of the preliminary objection contained in the 3rd Respondent’s brief of argument were also struck out. The 3rd Respondent distilled a lone issue for the determination of this appeal. The said issue is hereby adumbrated for ease of reference thus;

“Whether having regards to Appellant’s pre-hearing information sheet and answers filed on 22/6/2015 in reaction to the pre-hearing information filed on 19/6/2015 by the 3rd Respondent (on the basis of which the pre-hearing was conducted) and whether the trial Tribunal was right in dismissing Appellant’s motion on notice filed on 13/8/2015.”

On the receipt of the 1st and 3rd Respondents’ brief of argument, the Appellant also filed Appellant’s reply brief prepared by Mba E. Ukweni, dated 6/10/2015 and filed on 7/10/2015.The lone issue distilled by the Appellant from the two grounds of appeal filed on 7/9/2015 is adopted in the determination of this appeal.

Learned counsel for the Appellant submitted that election petitions are sui generis and any defect in procedure is fatal. A defect that will ordinarily be ignored in ordinary civil and criminal matter will have devastating effect in an election petition. He referred the Court to the case of Mkpanam Obo-Bassey Ekpo vs Eyo Egbai 2010 6 EPR 758 AT 767-768.

He maintained that for an application for issuance of pre-hearing to be competent, it must be made within the timeline provided for in Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended), He referred the Court to the said Paragraph 18(1) (supra) and the case of Ikpe vs Elijah (2011) LPELR 4516 (CA).

He argued that the Appellant filed his reply to the petition on 12/5/2015 while those of the 3rd and 5th Respondents were filed on 14/4/2015 and 15/5/2015. He maintained that the 5th Respondent’s reply to the petition was the last regular reply filed and it is the one that would be taken into consideration in calculating the time within which application to kick start the prehearing session was to be made.

He contended that pleadings in the petition closed after filing of the 5th Respondent’s reply to the petition being the last regular pleading. He submitted that the petitioner ought to have filed their application to kick start the pre-hearing session 7 days after being served with the 5th Respondent’s reply that is, on or before 25th May, 2015 which they did not do.

Learned counsel insisted that the application was made out of time and in violation of the provisions of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended). He referred the Court to the case of Nwankwo vs. Abazie 2005 NWLR PT.834 381 AT 421.

He submitted further that the petitioner having violated the provision of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) Sub-Paragraph (4) thereof comes to effect immediately. He referred the Court to Paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended).

He contended that the provision of Paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (as amended) does not place any obligation on Respondent to a petition to be alive to his responsibilities of raising any objection in relation thereto. The duty to remain awake and vigilant is on the petitioners. He maintained that the conclusion of the trial Tribunal that the Appellant has waived his right to invoke the provision of Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) is an incorrect position. He referred the Court to the cases of; Olufemi vs INEC & ORS 2008 LPELR – 4768 CA; Okereke vs Yaradua 2008 12 NWLR PT.1100 95; Olufemi vs INEC (Supra); CAN vs Nomiye 2011 LPELR – 3590 CA; Willie vs Charlie 2011 LPELR-4242 CA. He submitted that the trial Tribunal was wrong in its conclusion and that is why they came to this Court to correct the error. He referred the Court also to the case of; Oyebode vs. Gabriel (2013) ALL FWLR (PT. 669) 1043 AT 1065; CAC vs Governing Council Of Industrial Training Fund (2015) 1 NWLR (PT.1439) 114. Ihiabe vs Zakari (2012) 12 NWLR (PT.1315) 517; Abubakar vs Nasamu (NO.1) (2012) 17 NWLR (PT. 1330) 523. Azudibia vs INEC (2010) ALL FWLR (PT. 505) 1684 AT 1698.

He urged the Court to resolve the lone issue in favor of the Appellant and allow the appeal, set aside the decision of the trial Tribunal and grant the motion by dismissing the petition.

Arguing on ground one of the preliminary objections raised, the 3rd Respondent in his brief of argument submitted that the Appellant’s ground 1 is incompetent in that, it did not arise from the ruling of the trial Tribunal on 19th august, 2015. He referred the Court to the ruling of the Tribunal at pages 435-445 of the record of appeal.

He insisted that ground one in the Appellant’s notice of appeal is not predicated on the said ruling. He referred the Court to the said ground one at pages 445-446 of the record of appeal.

He submitted that it is trite law that a ground of appeal must be an attack on the judgment or ruling appeared against. He referred the Court to the case of Dakolo vs Rewane-Dakolo (2011) 50 WRN 1 AT 26-27.

Learned counsel contended further that particulars (a) to (d) of the said ground one in the notice of appeal has no relationship with the said ground one of appeal or with the ruling of the trial Tribunal. He urged the Court to strike out particulars (a) – (d) of ground one in the notice.

He submitted that where the said particulars (a) – (d) are struck out, the Appellant’s ground one even where it arose from the ruling of the trial Tribunal, becomes incompetent in view of Order 6 Rule 2(2) of the Court of Appeal rules. He urged the Court to hold that ground one is incompetent.

The 3rd Respondent in his reply to the main appeal before the Court submitted that Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) does not determine the jurisdiction of the Tribunal to determine any process or petition filed before it.

He maintained that by virtue of Paragraph 53(2) of the First Schedule to the Electoral Act, 2010 (as amended) any step required to be taken, by a party must be properly taken otherwise, the party may be deemed to have waived his right. This is because there is a mark of distinction between jurisdiction as a matter of procedure and as a matter of substantive law. He referred the Court to the case of Nnonye vs. Anyichie 2005 3 MJSC PG 1 at 134.

He argued that the Appellants were aware that the 1st Respondent filed his pre-hearing information sheet on 19/6/2015 on the basis of which Appellant filed his pre-hearing information sheet and answers to same on 22/6/2015. Appellant proceeded and effectively participated in the pre-hearing session to the conclusion. He referred the Court to the ruling of the trial Tribunal at pages 435-443 of the record of appeal.

He submitted that the implication of this is that, at the time the Appellant’s application was filed counsel also argued, pre-trial had been concluded.

He maintained that it is on the basis of this that the 3rd Respondent submitted at the trial that Appellant slept for too long and relied on Paragraph 53 (2) of the First Schedule to the Electoral Act, 2010 (as amended). He referred the Court to the 3rd Respondent’s argument at the trial at pages 31-32 of the supplementary record.

Learned counsel contended that the Appellant elected not to file an application to dismiss the petition, but elected to file the pre-trial information sheet and answers to the 1st Respondent’s pre-trial information sheet. He referred the Court to the cases of; Adegoke vs Adesanya (1989) 2 NWLR PT.109 PG 250 at 292. Nnonye vs Anyichie (Supra).

He submitted that the Appellant’s argument that pre-hearing information was not filed within time and that the petition becomes incompetent applies only in certain situations not in the instant case. He cited in support the case of NBCI vs Integrated Gas Ltd (2005) 3 MJSC PG 40 at 62.

On the Appellant’s argument that it is the duty of the Tribunal to suo motu dismiss the petition where either petitioner or Respondent failed to bring application. Learned counsel submitted that this applies only where neither the petitioner nor the Respondent fails to bring the application, but in the instant case, the petitioner/1st Respondent filed his pre-hearing information on 19/6/2015, the Appellant also filed his pre-hearing and also answered the question raised by the 1st Respondent. A Court has no vires to make a case for any of the parties.

He insisted that the motion filed by the Appellant on 13/8/2015 after he actively participated in the pre-hearing to conclusion is an afterthought and that the Tribunal was right in dismissing the petition. Also the case of Okereke vs Yaradua (SUPRA) cited by the Appellant does not apply to this case. He urged the Court to dismiss this appeal.

On the Appellant’s submission attacking the ruling of the Tribunal for relying on the submission of counsel at page 442 lines 411 of the record. Learned counsel to the 3rd Respondent submitted that there is no appeal against the Tribunal’s decision. He referred the Court to the case of; Okotie-Eboh vs Manager (2005) 2 MJSC PG. 125 AT 159.

He finally urged the Court to resolve this issue against the Appellant and dismiss the appeal as lacking in merit.

The Appellant in his reply brief to the 3rd Respondent preliminary objection submitted that when this Court examines ground one together with its particulars, it can be seen that in addition to the fact that the point raises a fundamental issue, the provision of Paragraph 18(2) and (4) of the First Schedule to the Electoral Act, 2010 (as amended) requiring this Court’s interpretation have been interpreted by this Court and the Supreme Court to have the effect of terminating the proceeding at any stage. He maintained that no one can dispute the fact that the interpretation and application of any statutory provision as the one raised in that ground one of appeal is an issue of law. He cited in support the case of Krausthompson Organization Ltd vs. University Of Calabar (2004) 9 NWLR (PT.879) 631 at 657-658.

He argued that this appeal has to do with the jurisdiction of the trial Tribunal to continue with the petition, be it procedural jurisdiction or substantive as argued and its effect lead to dismissal of the petition. He contended that it requires no leave to file the notice of appeal.

Learned counsel submitted that since the 3rd Respondent has agreed that ground 2 of the notice of appeal is proper, even if it is only that ground that is left, the 3rd Respondent cannot challenge the Court’s jurisdiction to entertain this appeal. He cited in support the cases of; Mohammed vs. Olawunmi (1990) 2 NWLR (PT.133) PG.458; BWAI vs. UBA Plc; (2002) FWLR (PT.119) AT 1551; Abubakar vs. Yaradua (2008) ALL FWLR (PT.404) at 1436; Alamieyeseigha vs. CJN & Ors (2005) 1 NWLR 9PT.906) at 76; Ogbechie vs. Onochie (1986) 2 NWLR (PT.23) AT 484; Folbod Investment Ltd. vs. Alpha Merchant Bank Ltd. (1996) 10 NWR (PT.478) at 354.

He maintained that a ground of appeal does not need to be a verbatim production, word for word, coma for coma, full stop by full stop etc. he cited in support the case of Kemtas Nig. Ltd vs. Fab Anieh Nig. Ltd (2007) ALL FWLR (Pt.384) at 337.

He insisted that both the ground and particulars comply with the provision of Order 6 Rule 2(2) and (3) of the Court of Appeal Rules 2011 and the form a ground of appeal takes is not a determinant factor but the question it raises. He referred the Court to the case of First Bank Of Nig. Plc vs Abraham (2009) ALL FWLR PT.451 at 873.

He urged the Court on the strength of the above submissions and authorities cited to overrule the objections and permit the appeal to be heard on the merit.

In reply to the response of the 3rd Respondent the Appellant submitted that the sole issue formulated by the 3rd Respondent relating to the pre-hearing information sheet and answers is strange to the grounds of appeal.

He maintained that a Respondent who has no cross appeal has no right to formulate issues independent of the issues formulated by the Appellant and outside the grounds of appeal. He referred the Court to the case of All Nigeria Peoples Party vs Argungu (2009) ALL FWLR (PT.467) PG.94 at 104.

He contended that the 3rd Respondent’s submission that the Appellant submission relating to the adoption of the 3rd Respondent’s submission by the Tribunal in its ruling, is outside the issue and not covered by the grounds, is incorrect.

He maintained also that the 3rd Respondent’s submission that Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended) is within the realm of the rule of law that cannot determine the jurisdiction of the Court is not acceptable proposition of the law. He referred the Court to the case of; Abubakar vs Yaradua (Supra).

He finally urged the Court to allow the appeal and dismiss the petition.

In the course of hearing this appeal, the attention of the Appellants counsel was drawn to the fact that Appellant’s brief of argument is dated 21st September and filed on 28th September, 2015. The record of proceedings was received in this Court on 16th September, 2015. The Appellants counsel confirmed the service of the record on him on 16th September, 2015.

By virtue of the Paragraph 10 of the Election Tribunal and Court Practice Direction, 2011 an Appellant shall within a period of 10 days after service of the record of proceedings, file in the Court, his written brief of argument for service on the Respondents. Thus the Appellant’s brief of argument was filed outside the period prescribed by the practice direction.

The Appellant’s counsel applied orally for an extension of time up and until 28th September, 2015 for the Appellant to file his brief of argument. He referred to Paragraph 55 of the First Schedule to the Electoral Act 2010 as amended, Order 7 Rule 10 of the Court of Appeal Rules and the case of Abubakar vs INEC (2004) 11 WRN PG 147 at 162.

We do not need to waste our time and energy on the issue of extension of time to file a brief of argument in an election petition appeal. That issue has been considered and settled in a plethora of authorities by this Court and the Supreme Court. In Abubakar vs INEC (Supra) relied on by the Appellant’s counsel, this Court clearly held that the rules of this Court governing filing of briefs of argument will apply in an election petition only where the Electoral Act and the Practice Direction made there under do not make provisions in respect of a particular issue relating to briefs of argument.

Paragraphs 6-17 of the Election Tribunal and Court Practice Directions, 2011 specifically provide for the filing of an appeal, filing of brief of argument, the format of the brief and the procedure for the hearing of the appeal.

Paragraphs 10, 12 and 13 of the said practice directions stipulate the time limit for filing of the briefs by parties to the appeal.

It is now firmly settled that election petitions are sui generis. They are in a class of their own, hence specific laws and rules were enacted to govern them based on our past experiences in such cases. It is the duty of the legislature to legislate and enact laws.

The duty of the judiciary is to interpret the law and give effect to the intention of the legislature. The appellate Courts are ad idem on the sanctity of the time line set by the Electoral Act, 2010 (as amended) and the Practice Directions. The clear pronouncement of the Courts particularly the Supreme Court which is the Apex Court in the land is that the filing, hearing and appeal in an election petition must be conducted strictly in accordance with and within the time line set by the electoral law and the practice directions. See: Omisore vs. Aregbesola Suit No. SC.204/2015 (unreported) Judgment delivered by the Supreme Court on 27th May, 2015.

The law as it stands today is that this Court has no power to extend the time stipulated by Paragraphs 9, 12 and 13 of the Election Petition and Court Practice Directions, 2011 for filing of briefs of argument in an election appeal.

The Appellant’s brief of argument having been filed out of time is incompetent. The consequence is that there is no brief of argument in this appeal. The only option open to this Court is to dismiss the appeal. Accordingly this appeal is hereby dismissed.

Parties are to bear their cost of prosecuting this appeal.

ADAH, JCA

I agree.

BOLAJI-YUSUFF, JCA

I agree.