THE 2011 General Elections in Nigeria ('The Elections') were conducted pursuant to the 1999 Constitution of the Federal Republic of Nigeria (as amended) ('The Constitution'), The Electoral Act 2010 (as amended) ('The Electoral Act') and The I.N.E.C, Manual ('The Manual').After the elections, aggrieved Persons/Parties filed their Petitions before The Presidential Election Petitions Tribunal, The Governorship election Petitions Tribunal and The Nation/State Houses of Assembly Elections Petitions Tribunals respectively.The Complainant/Petitioner is entitled to file his/her Petition before the appropriate Election Tribunal and the Respondents are to file their replies to the Petition. The Petitioner thereafter has right to respond to the replies filed by the Respondents.The Constitution and The Act makes provisions that for the determination of the Election Petitions, recourse shall be made to the Schedules contained in The Act, The Practice Directions (as issued by the President of The Court of Appeal) and The Rules of the Federal High Court.After pleadings had been exchanged and concluded between the Parties to the Petition, Paragraph 18(1) of the Firs t Schedule to the Electoral Act 2010 (as amended) ('The Paragraph'), provides that ''18(1) ' Within 7 days after the filing and service of the Petitioner's reply on the respondents or 7 days after the filing and service of respondent's reply, whichever is the case, the Petitioner shall apply for the assurance of pre-hearing notice as in Form TF 007.(2)-Upon application by a Petitioner under sub-paragraph (1) of this paragraph the tribunal or court shall issue to the parties or their legal practitioners (if any) a pre-hearing conference notice as in form TF 007 accompanied by a pre-hearing information sheet as in form TF 008 for:-(a) The disposal of all matters which can be dealt with on Interlocutory application;(b) giving such direction 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 petitioners;(c) giving directions and order of witnesses to be called and such document 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 date for hearing of the petition.(3) ' The respondent may bring the application in accordance with sub-paragraph (1) where the Petitioner fails to do so, or by motion which shall be served on the Petitioner and returnable in 3 clear days, apply for an order to dismiss.(4) Where the Petitioner and respondent fail 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 that step shall be filled or entertained.'The question then arose ' What is the mode of application envisaged under Paragraph18(1) of the First schedule to the Electoral Act'In previous elections (especially after the 2003/2007 General Elections), the issue of he true meaning, nature and type of the application envisaged under similar provisions and related issues/arguments were considered, especially in the cases of ' Sarafa O. Hassan & ORS. v. I.N.E.C & 14 ORS. (2008) 4LRECN, 458, Prince P. Ajudua & Or. V. Hon. Olakanwogu & ORS. (N0.) (2004) 16 NWLR, Pt. 898, Pg.56 at Pg.73-77, Ibrahim & ORS. v. Sheriff & ORS. VOL.1, Election Petition Reports (Edited by Funmi Quadri) Pg.215 at Pgs.238 to 2339, Mohammed Dikko Yussuf V. Chief Olusegun Obasanjo. 2 E. P. R; PG. 30 AT PG.69 @ Paragraphs D-F, Garba Ado V. Makera (2009) Nwlr (Pt.1147) Pg.491/(2008) 25WRN, Pg.85, M. Buhari V. Obasanjo (2003)17 NWLR (Pt.850) Pg.423 At 485, P.D.P. V. I.N.E.C. (1999) 11nwlr (Pt.626) Pg.200, Okereke V Yar'adua (2008) 12NWLR (Pt.1100) Pg.95, Nwankwo V. Yar'Adua (2010) 3-5 Sc.(Pt.111) Pg.1, Hope Democratic Party V. INEC&Ors. (Appeal No. Ca/A/Er/2007), Riruwai V. Shekarau (2008) 12NWLR (Pt.1100) Pg.142, Maitsidau V. Chidari (2008) 16 NWLR (Pt. 1114) Pg.553, Olayinka Sogagolu v. INEC & 44 ORS (2009) 32WRN, Pg.105 @ 125, and other plethora of cases, concerning and or related to advancement of argument, one way or the other, with regards to the import, purpose, interpretation and true meaning of the Provision.However, since the Petitions that arose form the conduct of the 2011 General Elections were filed and pleadings exchanged/concluded, several Petitioners have, in compliance or in an attempt to comply, filed the application under The Paragraph by way of a Letter of application, ex-parte motion, motion on notice or even by oral application, in open court.Paragraph 18(1) of the First schedule to the Electoral Act basically provides that- 'within 7days ' the Petitioner shall apply for issuance of the pre-hearing notice''It is important at this stage, to consider the Provisions of Paragraph 47 of First schedule of The Act, which provides that ''1. No motion shall be moved and all motions shall come up at the pre-hearing session, except in extreme circumstances with leave of the 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 sought4. Where the Respondent tothe motion intends to oppose the application, he shall within 7 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.'One will easily be tempted to assume that the application envisaged under-paragraph 18(1) should be by way of a motion on notice supported by affidavit/address, and to which the Respondents are entitled to respond, and of course thereafter, to be argued before the Tribunal or Court.But let's take a trip to Paragraph 18 (2)(supra), which provides basically that The Pre-hearing notice TF007 and Form TF008 SHALL be issued to the Parties or their Legal Practitioners, upon application made by a Petitioner, under paragraph 18(1).Paragraph 18(3) (supra) provides that where the Petitioner fail to apply, the Respondent may bring the application OR by motion, apply for an order to dismiss the petition.To me, it is clear that the type of application envisaged under Paragraph 18(1) is not a motion on notice, otherwise the Law giver would not have used the word OR in Paragraph 18(3).Blacks Law Dictionary, (6th Edition), at Page 1095 define the word 'OR', while The Interpretation Act (Law of the Federation of Nigeria) also define it, as being 'disjunctive.'Also the words 'this Paragraph,' used in Paragraph 18(2) pre-suppose that there can be no resort to any other Paragraph, (not even paragraph 47 of The First Schedule Act or the Federal High Court Rules), as far as the application for issuance of Pre-hearing notice is concerned.Therefore, Paragraphs 18(1) and 18(3) read together, show that the application need not be by motion ex-parts or motion on notice. The issue of Motion comes up IF the Petition OR the Respondent fails to apply AND the Respondent seeks to apply for an order to dismiss the Petition.This is the ordinary and Literal interpretation of the relevant Paragraphs/Sections, which must be read together.From a clear reading and comparison of sub-paragraph (1) or and (3) of Paragraph 18 of the First schedule, it is manifest that the mode of activation and the incident of activation are quite different. The word 'Motion' in Paragraph 18(3) was used deliberately to distinguish between application envisaged under 18(1) from a Motion envisaged under Paragraph 47 (2) of The First Schedule to the Electoral Act 2010 (as amended) or any motion whatsoever.It must also be noted that if the Respondent had taken 'any fresh step' after the Forms had been issued, then the Respondent shall be stopped, as he/she would be presumed to have waived the right to complain, in Law.Also, Paragraph 53 provides for remedies for non-compliance with any provision of the rules, in order to ensure that substantial justice is done and none of the parties is shut out purely on technical ground.
Click here to read full news..
