Election Petition: When Should The Petitioner Apply For Issuance Of Pre – Hearing Notice? By Ekemini Udim

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 1^st or 2^nd 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 25^th 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 16^th 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 25^th 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 1^st and 2^nd 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 2^nd Respondent in its findings. This is a curious omission because as found earlier, the 2^nd 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 7^th of July, 2019 and the registry of the tribunals serves the process on the respondents on the 10^th of July, 2019, the 7 days within which to apply for pre-hearing notice shall begin to count from the 10^th 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