Court name
Court of Appeal
Case number
NAEA 225 of 2011

Dr. Anny T. Asikpo & Anor   v.   Sen. Aloysius Etuk & 2 Ors (NAEA 225 of 2011) [2011] NGCA 5 (13 October 2011);

Law report citations
Media neutral citation
[2011] NGCA 5
Coram
Uzo I. Ndukwe-anyanwu, JCA
Joseph Tine Tur, JCA
Isaiah Olufemi Akeju, JCA

In The Court of Appeal

(Calabar Judicial Division)

On Thursday, the 13th day of October, 2011

Suit No: CA/C/NAEA/225/2011

 

Before Their Lordships

 

  

UZO I. NDUKWE-ANYANWU

....... Justice, Court of Appeal

JOSEPH TINE TUR

....... Justice, Court of Appeal

ISAIAH OLUFEMI AKEJU

....... Justice, Court of Appeal

 

 

 

 Between

1. DR. ANNY T. ASIKPO 
2. CONGRESS FOR PROGRESS CHANGE (CPC)

Appellants

 

 

 

 And

    

1. SEN. ALOYSIUS ETUK 
2. PEOPLE'S DEMOCRATIC PARTY (PDP) 
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

WORDS AND PHRASES - "APPLY" AND "ISSUE": The meaning of the words "apply" and "issue"

 

 

"In legal parlance to "apply" and to "issue" connotes two different concepts. To "apply" is "to make a formal request or motion, etc. An "application" is a request or petition. An "applicant" is one who requests something; a petitioner, such as a person who applies for letters of administration. On the other hand to "issue" is "to be put forth officially" or "to send out or distribute officially" example to issue process to parties or litigants. See Black's Law Dictionary, 8th edition, pages 109 and 850. In normal English grammar the word "apply" is "to make a formal request, usually in writing, for something such ns a job, a place at college, university, etc, to use something or make something work in a particular situation." The word "issue" means inter alia "a number or set of things that are supplied and made available at the same time... the act of supplying or making available things for people to buy or use ...to give something to somebody, especially officially..." See Oxford Advanced Learner's Dictionary, 8th edition pages 59 and 797. Paragraph 18(1) the 1st Schedule mentions "apply, and "application" but "motion", "motion on notice" or "motion exparte". " Per TUR J.C.A. (P. 27, Paras. B-G)

 

 

 

 

2

ELECTION PETITIONS - DISMISSAL OF PETITION: Whether an application is to be made by motion when a respondent applies for the dismissal of the petition

 

 

"An application is to be made by motion when a respondent applies for the dismissal of the petition under paragraph 18(3) of the 1st Schedule. The motion has to be served on the petitioner(s) and the other respondents for their responses. There is no provision requiring the application for pre-hearing session made by the petitioner under paragraph 18(1) of the 1st Schedule to be served on the Respondents. Neither is it a requirement that the application be supported by an affidavit and a brief of argument as contemplated by the provisions of paragraph 47 (2)-(5) of the 1st Schedule. " Per TUR J.C.A. (P. 30, Paras. B-E)  

 

 

 

 

3

APPEAL - GROUND OF APPEAL: Whether ground of appeal upon which no issue is formulated will be struck out

 

 

"However, if there is a ground of appeal upon which no issue is formulated it is usually struck out. Issues and not grounds are to be argued on appeal. See SAPO V. Sunmonu (2010) 42 NSCQR 910 at 921 and Emespo J. Ltd. v. Corona Schitffah & Co. (2006) NSCQR (Pt.2) 1144 at 1159. Accordingly, ground 5 in the Notice of Appeal is hereby struck out. " Per TUR J.C.A. (P. 20, Paras. B-D)

 

 

 

 

4

COURT - JURISDICTION: Whether a Tribunal or court is competent to sit in judgment over the ruling or decision made by another Tribunal or court of co-ordinate jurisdiction

 

 

"This is because no Tribunal or court is competent to sit in judgment over the ruling or decision made by another Tribunal or court of co-ordinate jurisdiction except where the order made was a nullity. See section 53 of the Evidence Act, 2004; Obimonure v. Erinosho (1965) 1 All NLR 250; Okoli V. Ojiako (1962) 1 All NLR 58; Nwosu v. Udeaja (1990) 1 SCNJ 152 at 167; Akinbobola v. Plisson Fisko (1991) 1 NWLR (Pt.167) 270 at 299; Orewere v. Abiegbe (1973) 9 & 10 SC 1 at 261; Akporue v. Ohwoka (1973) 1 All NLR (pt. 2) 255 at 261; Okafor v. Attorney-General (1991) 7 SCNJ 345 at 361" Per TUR J.C.A. (Pp. 29-30, Paras. D-A)

 

 

 

 

5

INTERPRETATION OF STATUTE - PARAGRAPH 18(1)-(2) 1ST SCHEDULE TO THE ELECTORAL ACT, 2010: Interpretation of 18(1)-(2) of the 1st Schedule to the Electoral Act No.6 of 2010

 

 

"Upon filing and service of the petition on the respondents paragraph 18(1) of the 1st Schedule prescribes the role of the Petitioner to be as follows: "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." The legislature has not stated in paragraph 18(1) of the 1st Schedule in clear terms in what manner the application for prehearing session is to be made and to whom, namely, the Secretary or the Tribunal. But the petitioner's role is to apply for the issuance of pre-hearing notice as in Form TF007. The issuance of Form TF007 accompanied by Form TF008 is however the pre-rogative of the Tribunal. This is made clear by the provisions of paragraph 18(2) of the 1st schedule which reads as follows: "(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) it pre-hearing conference notice as in Form 007 accompanied by a prehearing 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." Per TUR J.C.A. (Pp. 26-27, Paras. A-A

 

 

 

 

6

INTERPRETATION OF STATUTE - PARAGRAPHS 18(1)-(13) 1ST SCHEDULE TO THE ELECTORAL ACT, 2010: Interpretation of paragraphs 18(1)-(13) of the 1st Schedule to the Electoral Act No.6 of 2010

 

 

"To determine the object and legislative intention of paragraphs 18(1)-(13) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended one has to examine the entire provisions of the paragraphs. See Mobil Nig. Plc V. IAL 36 Inc. (2000) FWLR (Pt, 10) 1632 at 1650; Oyeyemi v. Commissioner for Local Government Kwara State (1992) 2 SCNJ (Pt.2) 266; Orubu v. NEC (1938) 5 NWLR (Pt.94) 323 and NEC v. Zuogu (1993) 2 NWLR (Pt.275) 270. Section 140(4) of the Electoral Act No.6 of 2010 reads as follows: "140(4) Subject to the provision of paragraph 53(2) of the First Schedule to this Act, on the motion of a respondent in an election petition, the Election Tribunal or the Court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this part of this Act, or the provisions of First Schedule of this Act." The striking out of an election petition is "subject to the provisions of paragraph 53(2) of the 1st Schedule to this Act." The subparagraph reads as follows: "53 (2) An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect." Thus the striking out of a petition is restricted to acts that are irregular or constitute nullities. Even then where the application is not made timeously or after the party has taken fresh steps in the proceedings after knowledge of the defect, the Tribunal is enjoined not to strike out the petition. " Per TUR J.C.A. (Pp. 20-22, Paras. G-A)

 

 

 

 

7

INTERPRETATION OF STATUTE - PARAGRAPHS 47(1)-(5) FIRST SCHEDULE TO THE ELECTORAL ACT, 2010: Interpretation of paragraphs 47 (1) to (5) of the 1st Schedule to the Electoral Act No.6 of 2010

 

 

"Paragraphs 18(1)-(5) of the 1st Schedule is a special provision that governs the commencement and conduct of pre-hearing conference in election matters while paragraphs 47 (1) to (5) of the same Schedule is of general application. The provisions read as follows: "47(1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court. (2) Where by these Rules any application is authorized to be made to the Tribunal or court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the respondent. (3) Every such application shall be accompanied by a written address in support of the reliefs sought. (4) Where the respondent to the motion intends to oppose the application, he shall within seven days of the service on him of such application file his written address and may accompany it with a counter affidavit. (5) The applicant may, on being served with the written address of the respondent file and serve an address in reply on points of law within 3 days of being served and where a counter affidavit is served on the applicant he may file further affidavit with his reply." My humble view is to apply the canons of construction of statutes adumbrated by Fatayi-Williams C.J.N in Government of Kaduna State v. Kagoma (1932) 6 SC 87 at 107-108 where his Lordship held that: "It is now trite that where there are two enactments one making specific provisions, the specific provisions are by implication excluded from the general provisions." Per TUR J.C.A. (Pp. 22-23, Paras. A-B)

 

 

 

 

8

INTERPRETATION OF STATUTE - PARRAGRAPH 4(5)-(6) 1ST SCHEDULE TO THE ELECTORAL ACT, 2010: Interpretation of paragraphs 4 (5) to (6) and 7(1)-(3) (a)-(b) of the 1st Schedule to the Electoral Act No.6 of 2010

 

 

"A close examination of the Electoral Act No.6 of 2010 as amended and the 1st Schedule thereto will reveal that there are certain acts or things that are to be done before and by the Secretary of the Tribunal. But others are within the exclusive preserve of the Tribunal. Example is paragraph 4(5) (a) (c) and (6) of the 1st Schedule which provides as follows: "(5) The election petition shall be accompanied by: (a) a list of the witnesses that the petitioner intends to call in proof of the petition; (c) copies or list of every document to be relied on at the hearing of the petition. (6) A petition which fails to comply with sub paragraph (5) of this paragraph shall not be accepted for filing by the Secretary." Also is paragraph 7(1)-(3)(a) and (b) of the 1st Schedule supra: "7(1) On the presentation of an election petition and payment of the requisite fees, the Secretary shall forthwith:- (a) cause notice of the presentation of the election petition, to be served on each of the respondents; (b) post on the tribunal notice board a certified copy of the election petition; and (c) set aside a certified copy for onward transmission to the person or persons required by law to adjudicate and determine the election petition. (2) In the notice of presentation of the election petition, the secretary shall state a time, not being less than five days but not more than seven days after the date of service of the notice, within which each of the respondents shall enter an appearance in respect of the election petition. (3) In fixing the time within which the respondents are to enter appearance, the secretary shall have regard to: (a) the necessity for securing a speedy hearing of the election petition; and (b) the distance from the Registry or the place of hearing to the address furnished under paragraph 4(4) of this Schedule. " Per TUR J.C.A. (Pp. 24-26, Paras. E-A)

 

 

 

 

9

ELECTION PETITIONS - PRE-HEARING CONFERENCE: The purpose of pre-hearing conference

 

 

"The purpose of the pre-hearing conference is to ensure that the petitioner and the Respondent treat or regard an election petition as a matter of urgency and the need for their expeditious disposal. " Per TUR J.C.A. (P. 20, Paras. F-G)

 

 

 

 

10

ELECTION PETITIONS - PROCEDURAL IRREGULARITIES: Whether procedural irregularities can be waived by any of the parties in an election petition

 

 

"Procedural irregularities can be waived by any of the parties in an election petition. What cannot be waived is if the violation involves a statutory or constitutional provision. See Kossen (Nig.) Ltd. V. savannah Bank (Nig.) Ltd. (1995) 9 NWLR (pt.42) 439 at 451; Adebayo v. Johnson (1969) 1 All NLR (pt.1) 176 at 190-191 and Eboh v. Akpotu (1968) 1 All NLR 220 at 221. The Supreme Court has enjoined Court or Tribunals to distinguish between acts that oust their jurisdiction from that may be regarded as mere irregularities and may be waived by any of the parties. See Madukolu V. Nkemdilim (1962) 1 All NLR 587 at 595; Adeigbe v. Kusimo (1965) NWLR 284 at 287-288 and Laniyan v. Dedeowo & Ors (1971) All NLR 169 at 172 - 173." Per TUR J.C.A. (Pp. 30-31, Paras. F-B

 

 

 

 

11

INTERPRETATION OF STATUTE - RULES OF INTERPREATATION: Whether where a special provision is made to govern a particular subject matter it is excluded from the operation of any general provision

 

 

"This principle of interpretation may be extended to a situation where there is a specific and a general provision within the same enactment. Thus in Attorney-General of the Federation & Ors V. Alhaji Atiku Abubakar (2007) NWLR (Pt.1041) 1 at 148 paragraph "H" to page 149 paragraph 4 "A" to "B" Tabai, JSC, held that: "...The principle simply is that where a special provision is made to govern a particular subject matter it is excluded from the operation of any general provision. Section 143 of the Constitution provides for the removal of the President or Vice President from office. And Section 144, 146 and 306 provides for when the office of the President or Vice President can become vacant. Each of a special provision written in a plain language and for the purpose of the removal or vacation of the office of the President or Vice President each is excluded from any other general provision of the Constitution. " Per TUR J.C.A. (P. 23, Paras. C-G)

 

 

 

 

12

INTERPRETATION OF STATUTE - RULES OF INTERPRETATION: The rules governing interpretation of statutes

 

 

"This being the state of affairs, I shall refer to Maxwell on Interpretation of statutes, 12th edition, pages 245 where learned author put the matter as follows: "Similarly, statutes dealing with jurisdiction and procedure are, if they relate to the infliction of penalties, strictly construed; compliance with procedural provisions will be stringently exacted from those proceeding against the person liable to be penalized, and if there is any ambiguity or doubt it will, as usual, be resolved in his favour. This is so, even though it may enable him to escape upon a technicality." See R v. Clarkson (1961) 1 WLR 347. Furthermore, at page 246 of Maxwell the learned author has stated that: "The effect of the rule of strict construction might be summed up by saying that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of adoubt should be given to the subject and against the legislature which has failed to explain itself. If there is no ambiguity, and the act or omission in question falls clearly within the mischief of the statute, the construction of a penal statute differs little, if at all, from that of any other. This is well illustrated by the case of Bower V. Gloucester Corporation." See (1965) 1 Q.B. 881." Per TUR J.C.A. (Pp. 27-28, Paras. G-F)

 

 

 

 

13

INTERPRETATION OF STATUTE - RULES OF INTERPRETATION: Whether the express mention of one thing in a statutory provision automatically excludes the other

 

 

"The express mention of one thing in a statutory provision automatically excludes the other. See Udoh V. Orthopaedic Hospitals Management Board (1993) 7 SCNJ (Pt.2) 436 at 447; Attorney-General of Bendel State V. Aideyan (1989) 4 NWLR (Pt.118) 646; Military Governor of Ondo State V. Adewunmi (1988) 3 NWLR (pt.8) 280." Per TUR J.C.A. (P. 30, Paras. E-F)

 

 

 

 

 

 

 

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The 1st Appellant of the Congress for Progressive Change (2nd appellant) lost election conducted by the 3rd Respondent on 9th day of April, 2011 into the Akwa Ibom North West Senatorial District to the 1st Respondent of the Peoples Democratic Party (2nd Respondent). 

The 1st Petitioner polled 91, 172 votes while the 1st Respondent had 383, 607 votes and was declared by the 3rd Respondent as duly elected into the Senate. Other contestants were Joseph J. Ukpong of the ACN - 11, 827 votes; Corinth Emmanuel of the ANPP - 407 votes; Godwin Udo Young of the APGA - 336 votes and Alex Ubem Ekere of the LP -1,437 votes. Being aggrieved the Petitioners filed a petition before the National/State House of Assembly Election Tribunal, Uyo, Akwa Ibom State on 30/4/2011 predicated on various grounds challenging the declaration and calling for fresh election. The 1st Respondent filed a Reply to the petition on 23/5/2011. The petitioner responded to that Reply on 04-06- 2011. The 3rd Respondent filed a Reply on 17/5/2011. The 2nd Respondent, being out time had applied and was granted leave by the Tribunal to file a reply. The Reply was filed on 25/5/2011. The petitioner filed a Reply in response to the 2nd Respondent's Reply on 16/6/2011.

FACTS

The petition was initially being heard by the 1st Tribunal. The petitioners made an application on the 9th day of June, 2011 for the issuance of pre-hearing session. Forms TF007 and TF008 were issued and pre-hearing session commenced. However, due to over-congestion second Tribunal was established. This petition was transferred to the 2nd Tribunal on 11-07-2011. The second tribunal requested learned counsel to address on whether she could continue with the pre-hearing session since the application for the issuance of Forms TF007 and TF008 was founded on a letter dated 09-06-2011 and addressed to the Secretary of the Tribunal in view of the provisions of paragraphs 18 and 41 of the 1st schedule to the Electoral Act No.6 of 2010 as amended. Having heard argument from learned counsel the second tribunal held at page 1650 of the record of proceedings as follows:

"It is in the second circumstance that we find ourselves bound to dismiss this petition because it is deemed to have been abandoned as neither of the parties have applied or validly applied for the issuance of Form 007 as demanded by paragraph 18(1) of the 1st Schedule more than seven days after pleadings are deemed closed on or about 04-06-2011 and this tribunal is robbed of jurisdiction thereby. This petition is consequently dismissed for being abandoned under paragraph 18(4) of the 1st Schedule to the Electoral Act, 2010 (as amended). See Emesin V. Nwachukwu (1999) 3 NWLR (Pt.596) 590."

When the Appeal came up for hearing on 5/10/2011, counsel adopted their client's respective briefs of argument. The learned Counsel to the 3rd Respondent admitted being served the appellants' brief on 19-09-2011. But the 3rd Respondent's brief was filed on 30-09-2011 out of the five days stipulated by paragraph 12 of the Election Tribunal and Court practice Directions, 2011. Accordingly the 3rd Respondent's brief is struck out.

ISSUES FOR DETERMINATION: APPELLANTS

The learned counsel to the Appellant identified five issues for determination couched in the appellant's brief as follows:

"1. Whether the Tribunal was correct to have held that paragraph 18 of the First Schedule to the Electoral Act is constitutional and not inconsistent with the tenor and the spirit of Section 36 of the Constitution 1999 as to render the said paragraph 18 of the said schedule void. Please see grounds 15 and 17 of the Notice of Appeal.

2. Whether the Tribunal was right to have struck out the Petitioners'/Appellants' Affidavit filed on the 2/8/2011 without affording the Petitioners'/Appellants' opportunity to be heard before striking out the said affidavit which was filed to bring to the notice of the Tribunal THE FACT that Form TF 007 was erroneously dated as 8/6/2011 instead of 9/6/2011 as the appellants' application for the pretrial session was dated 9/6/2011 and it was upon the said application of the petitioner/Appellants dated 9/6/2011 that Form TF 007 was issued and served on self same 9/6/2011. Please see grounds 1, 2, 3 and 6 of the Notice of Appeal.

3. Whether the Tribunal in the circumstances of this Appeal was correct to have dismissed the Appellants'/petitioners, petition on the ground that the pre-hearing session of the petition was irregularly commenced when there was no objection to any irregularity to the commencement of the pre-hearing session and the previous panel of the Tribunal and parties to the petition had taken several steps since the commencement of the pre-hearing session. Please see grounds 4, 8, 16 and 18 of the Notice of Appeal.

4. Whether the Tribunal was correct in the circumstances of this case to have reviewed the entire proceedings of the previous panel of the Tribunal and set aside and declare as nullity, all the decisions of the said previous panel of the Tribunal on the ground that there was procedural defects in the proceedings of the previous panel of the Tribunal. Please see grounds 7, 9 and 13.

5. Whether the Tribunal was correct to have held that a motion on notice (and not a letter) as contemplated by paragraph 47 is what is required under paragraph 18 (1) of the 1st schedule to initiate a pre-hearing session when the said paragraph 18 is a specific provision dealing with pre-hearing session while paragraph 47 is a general provision dealing with motions and Application generally. Please see grounds 10, 11, 12 and 14 of the Notice of Appeal."

1ST AND 2ND RESPONDENTS' ISSUES FOR DETERMINATION

The 1st Respondent reproduced verbatim the issues formulated by the appellants for determination. The 2nd Respondent distilled the following issues for determination:

"1. Whether on the state of facts in this case, the Honourable Tribunal was not right to have dismissed the petition as abandoned petition pursuant to paragraph 18(4) of the First Schedule to the Electoral  Act, 2010 (as amended). 

2. Whether the appellants, letter dated 09/06/2011 met the requirements of an application within the contemplation of paragraph 47(2) of the First schedule to the Electoral Act, 2010 (as amended)."

PRELIMINARY OBJECTION

The 1st Respondent raised a preliminary objection at page 1 to page 2 paragraph 3.1 to page 7 paragraph B.11 that grounds 15 and 17 and the lone issue distilled therefrom do not come within the jurisdiction of the Tribunal but of regular Courts to determine and should be shuck out, citing Obasanjo Yusuf (2004) 9 NWLR (Pt.877) 144 and section 285 (1) of the Constitution of the Federal Republic of Nigeria 1999 as altered. This is because Tribunals are created by statutes and their jurisdiction cannot extend to the determination of whether paragraph 18 (1) of the 1st Schedule to the Electoral Act No.6 of 2011 as amended is unconstitutional or is in breach of the provisions of section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999. Counsel further urged that ground 5 in the Notice of Appeal should also be struck out because learned counsel did not formulate any issue in respect of the said ground of appeal.

Learned counsel to the appellants responded that Order 10 rule 1 of the court of Appeal Rules, 2011 had not been complied with in that the 1st and 2nd Respondents did not file and serve a motion on the appellants of their intention to raise and argue the preliminary objection three days to the hearing of the appear hence the preliminary objection was incompetent. There was no answer to this objection by learned counsel to the 1st and 2nd Respondents. 

Accordingly, the preliminary objection fails and is struck out as being incompetent. 

However, if there is a ground of appeal upon which no issue is formulated it is usually struck out. Issues and not grounds are to be argued on appeal. See SAPO V. Sunmonu (2010) 42 NSCQR 910 at 921 and Emespo J. Ltd. v. Corona Schitffah & Co. (2006) NSCQR (Pt.2) 1144 at 1159. Accordingly, ground 5 in the Notice of Appeal is hereby struck out.

From the facts presented before the first and second Tribunal, considering the issues argued in the briefs of argument, I am of the humble opinion that the issue to be determined by this Court is whether the second Tribunal had the jurisdiction to review the decisions of the first Tribunal, set them aside and dismiss the petition for the reasons that firstly the application for pre-hearing session was filed out of time and secondly it should not have been brought by an application made to the Secretary of the Tribunal.

The purpose of the pre-hearing conference is to ensure that the petitioner and the Respondent treat or regard an election petition as a matter of urgency and the need for their expeditious disposal. 

To determine the object and legislative intention of paragraphs 18(1)-(13) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended one has to examine the entire provisions of the paragraphs. See Mobil Nig. Plc V. IAL 36 Inc. (2000) FWLR (Pt, 10) 1632 at 1650; Oyeyemi v. Commissioner for Local Government Kwara State (1992) 2 SCNJ (Pt.2) 266; Orubu v. NEC (1938) 5 NWLR (Pt.94) 323 and NEC v. Zuogu (1993) 2 NWLR (Pt.275) 270.

Section 140(4) of the Electoral Act No.6 of 2010 reads as follows:

"140(4) Subject to the provision of paragraph 53(2) of the First Schedule to this Act, on the motion of a respondent in an election petition, the Election Tribunal or the Court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this part of this Act, or the provisions of First Schedule of this Act."

The striking out of an election petition is "subject to the provisions of paragraph 53(2) of the 1st Schedule to this Act." The subparagraph reads as follows:

"53 (2) An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect."

Thus the striking out of a petition is restricted to acts that are irregular or constitute nullities. Even then where the application is not made timeously or after the party has taken fresh steps in the proceedings after knowledge of the defect, the Tribunal is enjoined not to strike out the petition. 

Paragraphs 18(1)-(5) of the 1st Schedule is a special provision that governs the commencement and conduct of pre-hearing conference in election matters while paragraphs 47 (1) to (5) of the same Schedule is of general application. The provisions read as follows:

"47(1) No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court.

(2) Where by these Rules any application is authorized to be made to the Tribunal or court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the respondent.

(3) Every such application shall be accompanied by a written address in support of the reliefs sought.

(4) Where the respondent to the motion intends to oppose the application, he shall within seven days of the service on him of such application file his written address and may accompany it with a counter affidavit.

(5) The applicant may, on being served with the written address of the respondent file and serve an address in reply on points of law within 3 days of being served and where a counter affidavit is served on the applicant he may file further affidavit with his reply."

My humble view is to apply the canons of construction of statutes adumbrated by Fatayi-Williams C.J.N in Government of Kaduna State v. Kagoma (1932) 6 SC 87 at 107-108 where his Lordship held that:

"It is now trite that where there are two enactments one making specific provisions, the specific provisions are by implication excluded from the general provisions."

This principle of interpretation may be extended to a situation where there is a specific and a general provision within the same enactment. Thus in Attorney-General of the Federation & Ors V. Alhaji Atiku Abubakar (2007) NWLR (Pt.1041) 1 at 148 paragraph "H" to page 149 paragraph 4 "A" to "B" Tabai, JSC, held that:

"...The principle simply is that where a special provision is made to govern a particular subject matter it is excluded from the operation of any general provision. Section 143 of the Constitution provides for the removal of the President or Vice President from office. And Section 144, 146 and 306 provides for when the office of the President or Vice President can become vacant. Each of a special provision written in a plain language and for the purpose of the removal or vacation of the office of the President or Vice President each is excluded from any other general provision of the Constitution."

I am of the opinion that the provisions of paragraph 18(1)-(5) that govern application for pre-hearing conference are excluded from the general provisions of paragraph 47(1)-(5) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended.

The petitioner responded by filing a Reply to the 1st Respondent's Reply on 04-06-2011. On 16-06-2011 the Petitioners also filed a Reply to the 2nd Respondent's Reply. 16-06-2011 is the day pleadings closed not 04-06-2011 as found by the Tribunal.

Computation of the days within which to apply for pre-hearing session will commence from 17-06-2011 and expire on 23-06-2011. Applying for pre-hearing notice on 09-06-2011 was before but not out of time as erroneously held by the Tribunal. This issue is resolved in favour of the appellants. Accordingly the proceedings of the 1st Tribunal were not a nullity under paragraph 18(1) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended to enable the second Tribunal declare same a nullity.

ISSUE TWO:

A close examination of the Electoral Act No.6 of 2010 as amended and the 1st Schedule thereto will reveal that there are certain acts or things that are to be done before and by the Secretary of the Tribunal. But others are within the exclusive preserve of the Tribunal. Example is paragraph 4(5) (a) (c) and (6) of the 1st Schedule which provides as follows:

"(5) The election petition shall be accompanied by:

(a) a list of the witnesses that the petitioner intends to call in proof of the petition; 

(c) copies or list of every document to be relied on at the hearing of the petition.

(6) A petition which fails to comply with sub paragraph (5) of this paragraph shall not be accepted for filing by the Secretary."

Also is paragraph 7(1)-(3)(a) and (b) of the 1st Schedule supra:

"7(1) On the presentation of an election petition and payment of the requisite fees, the Secretary shall forthwith:-

(a) cause notice of the presentation of the election petition, to be served on each of the respondents;

(b) post on the tribunal notice board a certified copy of the election petition; and

(c) set aside a certified copy for onward transmission to the person or persons required by law to adjudicate and determine the election petition.

(2) In the notice of presentation of the election petition, the secretary shall state a time, not being less than five days but not more than seven days after the date of service of the notice, within which each of the respondents shall enter an appearance in respect of the election petition.

(3) In fixing the time within which the respondents are to enter appearance, the secretary shall have regard to:

(a) the necessity for securing a speedy hearing of the election petition; and

(b) the distance from the Registry or the place of hearing to the address furnished under paragraph 4(4) of this Schedule."

Upon filing and service of the petition on the respondents paragraph 18(1) of the 1st Schedule prescribes the role of the Petitioner to be as follows:

"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."

The legislature has not stated in paragraph 18(1) of the 1st Schedule in clear terms in what manner the application for prehearing session is to be made and to whom, namely, the Secretary or the Tribunal. But the petitioner's role is to apply for the issuance of pre-hearing notice as in Form TF007. The issuance of Form TF007 accompanied by Form TF008 is however the pre-rogative of the Tribunal. This is made clear by the provisions of paragraph 18(2) of the 1st schedule which reads as follows:

"(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) it pre-hearing conference notice as in Form 007 accompanied by a prehearing 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." 

In legal parlance to "apply" and to "issue" connotes two different concepts. To "apply" is "to make a formal request or motion, etc. An "application" is a request or petition. An "applicant" is one who requests something; a petitioner, such as a person who applies for letters of administration. On the other hand to "issue" is "to be put forth officially" or "to send out or distribute officially" example to issue process to parties or litigants. See Black's Law Dictionary, 8th edition, pages 109 and 850. In normal English grammar the word "apply" is "to make a formal request, usually in writing, for something such ns a job, a place at college, university, etc, to use something or make something work in a particular situation." The word "issue" means inter alia "a number or set of things that are supplied and made available at the same time... the act of supplying or making available things for people to buy or use ...to give something to somebody, especially officially..." See Oxford Advanced Learner's Dictionary, 8th edition pages 59 and 797.

Paragraph 18(1) the 1st Schedule mentions "apply, and "application" but "motion", "motion on notice" or "motion exparte".

This being the state of affairs, I shall refer to Maxwell on Interpretation of statutes, 12th edition, pages 245 where learned author put the matter as follows:

"Similarly, statutes dealing with jurisdiction and procedure are, if they relate to the infliction of penalties, strictly construed; compliance with procedural provisions will be stringently exacted from those proceeding against the person liable to be penalized, and if there is any ambiguity or doubt it will, as usual, be resolved in his favour. This is so, even though it may enable him to escape upon a technicality." See R v. Clarkson (1961) 1 WLR 347.

Furthermore, at page 246 of Maxwell the learned author has stated that:

"The effect of the rule of strict construction might be summed up by saying that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of doubt should be given to the subject and against the legislature which has failed to explain itself. If there is no ambiguity, and the act or omission in question falls clearly within the mischief of the statute, the construction of a penal statute differs little, if at all, from that of any other. This is well illustrated by the case of Bower V. Gloucester Corporation." See (1965) 1 Q.B. 881.

The legislature not having clearly explained the method of making the application for the issuance of pre-hearing conference, the ambiguity should be resolved in favour of the appellants/petitioners whose petition stands to be dismissed for failure to apply by motion exparte or on notice as contended by the Respondents and upheld by the Tribunal.

The effect is that the application for pre-hearing notice if made in writing to the secretary it is for the Tribunal to direct that Forms TF007 and TF008 shall be issued to the parties or their Legal Practitioners' where there is no complaint from any of the parties or their Legal Practitioners and the Tribunal fixed a date for prehearing session as happened in this appeal, that is a judicial act that can only be set aside by an appellate court or Tribunal. The parties or their Legal Practitioners would have been deemed to waive their right to complain in such a circumstance.

The second Tribunal was exercising co-ordinate jurisdiction with the 1st Tribunal. The orders made by the 1st Tribunal for prehearing session to commence on 27-06-2011 were not a nullity. 

The second Tribunal had no jurisdiction to have sat on appeal over the ruling of the 1st Tribunal. This is because no Tribunal or court is competent to sit in judgment over the ruling or decision made by another Tribunal or court of co-ordinate jurisdiction except where the order made was a nullity. See section 53 of the Evidence Act, 2004; Obimonure v. Erinosho (1965) 1 All NLR 250; Okoli V. Ojiako (1962) 1 All NLR 58; Nwosu v. Udeaja (1990) 1 SCNJ 152 at 167; Akinbobola v. Plisson Fisko (1991) 1 NWLR (Pt.167) 270 at 299; Orewere v. Abiegbe (1973) 9 & 10 SC 1 at 261; Akporue v. Ohwoka (1973) 1 All NLR (pt. 2) 255 at 261; Okafor v. Attorney-General (1991) 7 SCNJ 345 at 361. I hold that the application made to the 1st Tribunal for issuance of prehearing session even if irregular, was remedied by the same Tribunal under paragraph 53(2) and (3) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended when a date was fixed for the pre-hearing session to commence on 27-06-2011.

An application is to be made by motion when a respondent applies for the dismissal of the petition under paragraph 18(3) of the 1st Schedule. The motion has to be served on the petitioner(s) and the other respondents for their responses. There is no provision requiring the application for pre-hearing session made by the petitioner under paragraph 18(1) of the 1st Schedule to be served on the Respondents. Neither is it a requirement that the application be supported by an affidavit and a brief of argument as contemplated by the provisions of paragraph 47 (2)-(5) of the 1st Schedule. 

The express mention of one thing in a statutory provision automatically excludes the other. See Udoh V. Orthopaedic Hospitals Management Board (1993) 7 SCNJ (Pt.2) 436 at 447; Attorney-General of Bendel State V. Aideyan (1989) 4 NWLR (Pt.118) 646; Military Governor of Ondo State V. Adewunmi (1988) 3 NWLR (pt.8) 280. Procedural irregularities can be waived by any of the parties in an election petition. What cannot be waived is if the violation involves a statutory or constitutional provision. See Kossen (Nig.) Ltd. V. savannah Bank (Nig.) Ltd. (1995) 9 NWLR (pt.42) 439 at 451; Adebayo v. Johnson (1969) 1 All NLR (pt.1) 176 at 190-191 and Eboh v. Akpotu (1968) 1 All NLR 220 at 221. The Supreme Court has enjoined Court or Tribunals to distinguish between acts that oust their jurisdiction from that may be regarded as mere irregularities and may be waived by any of the parties. See Madukolu V. Nkemdilim (1962) 1 All NLR 587 at 595; Adeigbe v. Kusimo (1965) NWLR 284 at 287-288 and Laniyan v. Dedeowo & Ors (1971) All NLR 169 at 172 - 173.

For these reasons I allow this appeal and remit the petition for hearing on the merit. I make no order as to costs.

UZO I. NDUKWE - ANYANWU, J.C.A: I had the privilege of reading in draft form the judgment just delivered by my learned brother J. T. Tur, JCA.

I agree with his reasoning and final conclusions.

I also allow this appeal and remit the petition no EPT/AKS/SEN/02/2011 to the Tribunal for trial.

I make no order as to cost.

ISAIAH OLUFEMI AKEJU J.C.A:

I had the privilege of reading before now the lead judgment of my learned brother, Joseph Tine Tur, JCA just delivered. I agree with the reasoning therein and the conclusion that the Appeal has merit. I therefore allow the Appeal and I abide by the consequential order in the lead judgment read in draft form the lead judgment.

I make no Order as to costs.

     Appearances       

S.C. PETERS

For the Appelants

       

NWOKO & O.B. AKPAN - for the 1st Respondent 
DAVID OKONKON - for the 2nd Respondent 
MRS. MARY FLORENCE - Holds brief for A. Agbobo - for the 3rd Respondent.

For the Respondents