Effect of Improper Filing of Application for Pre-Hearing Notice in Election Petition
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 19th day of January, 2024
Before Their Lordships
Kudirat Motonmori Olatokunbo Kekere-Ekun
Uwani Musa Abba Aji
Mohammed Lawal Garba
Ibrahim Mohammed Musa Saulawa
Tijjani Abubakar
Justices, Supreme Court
SC/CV/1240/2023
Between
1. MOHAMMED ASHIRU ISA
2. PEOPLES DEMOCRATIC PARTY APPELLANTS
And
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2 SANI UBA RESPONDENTS
3. ALL PROGRESSIVES CONGRESS (APC)
(Lead Judgement delivered by Honourable Tijjani Abubakar, JSC)
Facts
The 2nd Respondent was declared the winner of the Governorship election conducted in Kaduna State on 18th March, 2023 by the 1st Respondent, having scored majority of the votes cast. The Appellants, being aggrieved by the declaration and return of the 2nd Respondent as the Governor-Elect of Kaduna State, filed a petition at the Kaduna State Governorship Election Tribunal challenging the result of the election. Upon being served with the petition, the Respondents filed their respective replies. Following the filing and service of the 3rd Respondent’s reply on 16th May, 2023, the Appellants filed an application for issuance of pre-hearing notice on the same day. However, after the 2nd Respondent filed his reply on 26th May, 2023, the Appellant filed another application for issuance of pre-hearing notice on the same date, following which a pre-hearing information sheet was issued by the Secretary of the Tribunal.
Thereafter, the 2nd and 3rd Respondent filed similar applications praying the Tribunal to dismiss the petition for being abandoned on the premise that the Appellants’ application for pre-hearing notice was made and served prematurely before the close of pleadings, contrary to paragraph 18(1) of the First Schedule to the Electoral Act, 2022.
The Tribunal heard the applications, and reserved its decision on same until final judgement. In its judgement, the Tribunal by a majority decision ordered supplementary elections in 22 polling units in Kaduna State. The Tribunal in the same breath, granted the 2nd and 3rd Respondent’s applications and dismissed the Appellants’ petition, on the ground that the Appellants’ application for issuance of pre-hearing notice was premature as pleadings closed on 30th May, 2023 when the 2nd Respondent was served with the Appellants’ reply to the 2nd Respondent’s reply and the Appellants must be deemed as having abandoned the petition. The Tribunal also found that the Appellants’ failure to first withdraw their previous application for issuance of pre-hearing notice filed on 16th May, 2023 before filing the subsequent application on 27th May, 2023 rendered the latter application incompetent.
Aggrieved by the dismissal of the petition, the Appellants appealed to the Court of Appeal. The Respondents also filed a cross-appeal, challenging the order made by the Tribunal directing supplementary elections in 22 polling units. After hearing arguments of parties on the main appeal and the cross-appeal, the Court of Appeal dismissed the Appellants’ appeal; however, it allowed the Respondents’ cross-appeal against the Tribunal’s order for supplementary elections. The order was consequently set aside. Dissatisfied, the Appellants appealed to the Supreme Court.
The parties filed their briefs of argument in which they raised their respective issues for determination. The 1st Respondent also filed a Notice of Preliminary Objection in which it challenged the competence of ground one of the Appellants’ Notice of Appeal. The 2nd leg of the 1st Respondent’s objection, was premised on the ground that the appeal had become academic on account of the Appellants’ failure to appeal against the concurrent findings of the Tribunal and the Court of Appeal, that the Appellants failed to comply with the mandatory provision of paragraph 18(1) and (3) of the First Schedule to the Electoral Act.
The 3rd Respondent also filed a Notice of Preliminary Objection challenging the entire appeal. Whilst the Supreme Court found that the 3rd Respondent’s preliminary objection was incompetent; the Court struck out the first leg of the 1st Respondent’s preliminary objection for lack of merit. The Apex Court however, decided that it would be prudent to determine the question raised in the second leg of the 1st Respondent’s objection in the substantive appeal, since the same issue was an integral part of the issue for determination in the appeal.
Issue for Determination
The Apex Court considered the following issue raised as issue 1 in the Appellants’ issues for determination:
Whether the lower Court was right, when it affirmed the decision of the trial tribunal which invalidated the subsequent application for the issuance of pre-hearing Notice filed by the Appellants which was not the subject of the application filed by the 2nd Respondent and consequently, affirmed on that ground, that the petition was abandoned.
Arguments
Counsel for the Appellants argued that the 2nd and 3rd Respondent’s applications in which they prayed for an order of the Tribunal dismissing the petition was predicated upon the Appellants’ application for the issuance of pre-hearing notice filed on 16th May 2023. Counsel contended that by the subsequent filing of a fresh application for issuance of pre-hearing notice on 26th May 2023 by the Appellants, the earlier application filed on 16th May 2023 was abandoned and devoid of any legal efficacy. He relied on COLLINS v DHL INTERNATIONAL NIGERIA LIMITED (2021) LPELR -58369 (SC).
Counsel for the Appellants submitted that the Court of Appeal erred when it affirmed the decision of the Tribunal granting the 2nd and 3rd Respondents’ applications for dismissal of the Appellants’ petition and dismissed the said petition on the basis of the Appellants’ application for pre-hearing notice filed on 26th May 2023, rather than on the basis of the Appellants’ application filed on 16th May 2023 the same being the actual process challenged in the 2nd and 3rd Respondents’ applications.
Responding, counsel for the 1st Respondent contended that the Appellants’ argument that pleadings closed on 26th May 2023, the same date the Appellants filed their reply to the 2nd Respondents’ reply but had not served the same, did not represent the state of the law. Counsel argued that pleadings are deemed closed at the filing and service of either the Respondent’s reply or the petitioner’s reply and it is the filing and service of either of these processes as the case may be, that triggers the necessity for an application for issuance of pre-hearing notice. Relying on DIMEGWU v OGUNEWE (2008) 17 NWLR (Pt. 1116) 358 at 393, PARAS E- F, counsel submitted that the Court of Appeal was right when it held that the Appellants’ application for issuance of pre-hearing notice filed on 26th May 2023 was incompetent.
Counsel for the 2nd Respondent made arguments similar to that of counsel for the 1st Respondent and further contended that the filing of two applications for issuance of pre-hearing notice by the Appellant without withdrawing one of them, constituted gross abuse of judicial process. Counsel for the 3rd Respondent also made similar arguments and ultimately urged the Court to resolve the issue against the Appellants.
Court’s Judgement and Rationale
In deciding the issue, the Apex Court noted that the Appellants did not appeal the decision of the Tribunal declaring the Appellants’ second application of 26th May, 2023 as being incompetent, due to the Appellants’ failure to withdraw the application of 16th May, 2023. The Court held that where a party fails to appeal against a holding of a lower court, that decision remains binding and conclusive between the parties; hence, the implication of the Appellants’ failure to appeal the said decision is that the Appellants were satisfied with the decision and are therefore, bound by it.
The Court also noted that the Appellants had not disputed the fact that their application of 16th May, 2023 for issuance of pre-hearing notice was filed before pleadings closed, contrary to Paragraph 18(1) of the First Schedule to the Electoral Act, 2022 and was thus, incompetent. The Apex Court held that, it cannot therefore, activate its appellate jurisdiction in respect of an issue/decision for which there was no appeal. The Court referred to its decision in OPARA v DOWEL SCHLUMBERGER (NIG) LTD & ANOR. (2006) LPELR-2746 (SC).
Regardless of the above finding, the Supreme Court however, deemed it necessary to give clarity on the effect of the provisions of Paragraph 18(1) of the First Schedule to the Electoral Act. The Court noted that the said provisions make it mandatory that an application for the issuance of pre-hearing notice, as in Form TFOO7, must be made within seven days after pleadings have closed. The Apex Court held that for the purpose of the said provision, pleadings are deemed closed upon the service of the Petitioner’s reply on the Respondent or the last Respondent to be served, where there is more than one Respondent OR service of the Respondent’s reply on the Petitioner, where the Petitioner decides not to file any Reply to the Respondent(s) reply. The Court held further that by the letters of Paragraph 18(1), no application can be made for issuance of pre-hearing notice before pleadings are closed, and after the seven days of the close of pleadings, placing reliance on its decision in MAKU & ANOR. v SULE & ORS (2019) LPELR-58513 (SC). The Court held that therefore, when, in this case, the Appellants as Petitioners made their application for the issuance of pre-hearing notice on 16th May, 2023, (or even the second application on the 26th May, 2023) whereas, the Appellants’ Reply was served later on the 2nd Respondent on 30th May, 2023; there was no doubt that the two applications were filed prematurely without giving consideration to the fact that some of the Respondents had not been served with the Appellants’ reply, and the seven days after the filing and service of said reply had not lapsed.
The Court found that the Appellants’ applications of 16th May, 2023 and 26th May, 2023 for pre-hearing notice thus, had no validity, were both null and void and of no effect whatsoever. The Court held that the consequence of the Appellants’ failure to bring a valid application for issuance of pre-hearing notice in compliance with the provision in Paragraph 18(1) of the First Schedule to the Electoral Act, 2022, is that the Tribunal must dismiss the petition as abandoned, as provided under subsection 4 thereunder.
Appeal Dismissed.
Representation
Kenneth E. Mozia, SAN; Ahmed Raji, SAN; Agbola Olaniyi Adeleke, SAN; Samuel Atung, SAN with K. J. Atung for the Appellants.
Abdullahi M. Aliyu, SAN; T. M. Inuwa, SAN; Alhassan Umar, SAN; Prof Nasiru A. Aliyu, SAN with Emmanuel A. Osayomi for the 1st Respondent.
Chief Bayo Ojo, SAN; Chief Duro Adeyele, SAN; Sunusi Musa, SAN; M. J. Numa, SAN with Theophilus Okwute for the 2nd Respondent.
Mohammed Sani Katu, SAN; Oladipo Tolani, SAN; Oluwole Aladedoye, SAN with Kabir Momoh and Aliyu Alhassan for the 3rd Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)
