Rt. Hon. Emeka Ihedioha and PDP (Appellants) as Petitioners, filed their petition challenging the return of Owelle Rochas Anayo Okorocha (1st Respondent) by the Independence National Electoral Commission (INEC) (2nd Respondent) as the person duly elected as Governor of Imo State. All Progressive Congress (APC) (37th Respondent), sponsored the candidature of Owelle Rochas Anayo Okorocha (1st Respondent) at the said election contested inter alia by Rt. Hon. Emeka Ihedioha (1st Appellant) on the platform of the Peoples Democratic Party (PDP).
At the close of the pleadings, Rt. Hon. Emeka Ihedioha and PDP (Petitioners) through their counsel submitted a letter dated 22nd June, 2015 to the secretary of the Tribunal hearing their petition requesting the issuance of pre-hearing notice on all the parties in the petition. There was a Hearing Notice for pre-hearing session, signed by the Tribunal Secretary that was not addressed to anybody in particular.
The Respondents in the petition and this appeal filed their Answers to the Questions contained in the pre-hearing Information. The Petitioners had on 3rd July, 2015 paid N300.00 as filing fee for their letter dated 22nd June, 2015 but received by the Tribunal Secretary on 23rd June, 2015. It was this payment that prompted the 1st and 37th Respondents to bring a motion filed on 6th July, 2015 praying the Tribunal below for inter alia an Order dismissing the petition as having been abandoned.
Upon hearing the application, the Tribunal partly granted same by dismissing the petition on the ground that the Petitioners had abandoned their petition for not filing, within time, the application, under paragraph 18(1) of the First Schedule to the Electoral Act, 2010, as amended, for the petition to be set down for pre-hearing session.
On the issue of abuse of the process of Court, the Tribunal below dismissed same, holding that there was no abuse of the Court’s process.
Against this decision, the petitioners as the appellants lodged an appeal to the Court of Appeal. The 1st and 37th Respondents also filed a notice of cross-appeal. In their brief of argument, the 1st and 37th respondents raised, as preliminary objection, to the notice of appeal.
It was submitted for the 1st and 37th respondents that the failure of the appellants to put the named 3rd-36th respondents on notice and serve the appeal processes on them robs the court of the jurisdiction to entertain the suit. For the appellants it was submitted that since the names of the 3rd-36th respondents are clearly reflected on the face of the notice of appeal as respondents to the appeal there has been sufficient compliance with Order 6 Rule 2(1) of the Court of Appeal Rules, 2011.
It was held that Order 2 Rule 3 of the Court of Appeal Rules, 2011 is very clear and unambiguous. It provides that where under the Rules, any notice or other process is required to have an address for service endorsed on it; it shall not be deemed to have been properly filed unless such address has been endorsed on it. It was also stated that there is no ambiguity about the purport of Order 6 Rule 9 which is that “where in any proceeding in the Court below a party has given an address for service; Notice of Appeal from any decision made under such proceeding may be served on such party at such address for address.” That in the instant case, not all of the 3rd-36th respondents gave their addresses for service at the trial Tribunal. Only six (6) of them did in their replies to the Petition thus service could not be effected on others. It was stated that it can be held that Order 6 Rule 9 of the Court of Appeal Rules, 2011 has watered down the effect or consequence of Order 2 Rule 3 as regards the six respondents who gave their address for service. However, same cannot be said of the other Respondents. It was stated that the purport, of Order 2 Rule 3 is audi alteram partem and the fair hearing provisions of Section 36 (1) of the 1999 Constitution, as amended therefore, it is not a privilege, but a right of the respondent, that he must be given an opportunity to be heard on the appeal. He is therefore accordingly entitled to be served the Notice of appeal.
The Court held that from the reading of order 6 Rule 2(1) together with Order 2 Rules 3 it is clear beyond doubt that the notice of appeal which does not have endorsed on it the address for service of the notice of appeal on the each of the 3rd-36th respondents is fundamentally defective. That it was stated that in a long line of cases from NGELIZANA v. HINDI (1965) NNLR 12, ENEBI v. YACHIM (1965) NNLR 26 to KALIEL v. ALIERO (1999) 4 NWLR (Pt. 597); (1999) LPELR-6591(CA) that the provisions of the Rules requiring a plaintiff, petitioner or appellant to provide address for service of an originating process or any other process on the defendant or respondent have always been construed to be mandatory and the effect of non-compliance therewith is that the process “shall not be deemed not to have been filed” and therefore liable to be struck out as an incompetent process. See also MARIAM OBIMONURE v. OJUMOOLA ERINOSHO & ANOR. (1996) 1 All NLR 250; SCOTT-EMUAKPOR v. UKAVBE (1975) 12 SC 31; (1975) LPELR-3024(SC) ODITA v. OKWUDINMA (1969) 1 All NLR 228 A 31-232, SKEN CONSULT LTD v. UKEY (1981) 1 SC 6.
It was held that in the instant case the notice of appeal does not have endorsed thereon address for service of each of the 3rd – 36th respondents. That the filing of the notice of appeal in flagrant disobedience of Order 2 Rule 3 and Order 6 Rule 2(1) and same was struck out.
It was stated that ordinarily, the striking out of the appeal should have been the convenient point to end this decision. However, the Appeal Court is not the final court, but an intermediate court in this matter. In the circumstance it became pertinent to consider the merits of the appeal.
The core issues in the Appellants’ Brief, in the Court’s view are:
Whether the letter to the Tribunal Secretary dated 22nd June, 2015 which was received by the said Secretary on the 23rd June, 2015 and on which said letter the Tribunal Secretary acted to promptly on 23rd June, 2015. Issued Hearing Notice for the Pre-Hearing Session was not sufficient under paragraph 18(1) of the First Schedule to the Electoral Act, 2010, as amended?
Whether the 1st & 37th Respondents, having taken steps in the Pre-Hearing Session by filing Answers to the Questions contained in the Pre-Hearing Information Sheet, are not stopped, by operation of paragraph 53 (2) of the said First Schedule of the Electoral Act, 2010, as amended, from raising the objection resulting in the dismissal of the petition.
Appellant’s counsel relying on ABUBAKAR v. NASAMU (No. 2) (2012) 17 NWLR (Pt. 1330) 523 and MGBA v. P.D.P. (2013) 523 and UGBA v. PDP (2013) All FWLR (Pt. 686) 540 at 548 submitted that Paragraphs 18(1) of the First Schedule to the Electoral Act, 2010, as amended, was sufficiently complied with once the Petitioner issues a letter to the Tribunal Secretary urging the latter to issue Hearing Notice for Pre-Hearing Session. Counsel further submitted that between the Petitioner and the Tribunal the preliminary steps taken by the Petitioner to nudge the Secretary to issue Hearing Notice for the commencement of the Pre-Hearing Session are purely administrative.
On the other hand, the 1st and 37th respondents vehemently posit that such steps, as the application of the Petitioner to the Tribunal Secretary to kick start the Hearing Notice for the Pre-Hearing Session, are not administrative but purely judicial and the petitioner must pay the filing fee for the process by which he applies to the Tribunal Secretary to issue Hearing Notice for the Pre-Hearing Session.
The Court held that there is nothing in Paragraph 18(1) of the First Schedule vesting any adjudicative or quasi-judicial powers on the Tribunal Secretary when he is presented an application by the Petitioner for the Issuance of Hearing Notice for Pre-Hearing Session. The function is purely administrative. That the duty imposed by Paragraph 18 (1) of the First Schedule on the Secretary, when nudged by the Petitioner to issue Hearing Notice at the close of the pleadings for Pre-Hearing Session, is merely to issue the notices.
That Paragraph 18(1) of the First Schedule provides no special mode by which a petitioner “shall apply for the issuance of Pre-Hearing Notice as in Form TF 008” to the Secretary of the Tribunal. In absence of any special mode in Paragraphs 18(1) of the First Schedule to the Electoral Act, 2010 as amended, the Petitioner’s letter to the Tribunal Secretary to issue Pre-Hearing Notice will suffice. Relying on ABUBAKAR v. NASAMU (supra) the Court resolved in favour of the appellants that they complied with Paragraph 18(1) of the 1st schedule to the Electoral Act, 2010, as amended.
The appellants’ counsel, relying on the Supreme Court decision in SA’EED v. YAKOWA (Supra) and Paragraph 53(2) of the said 1st Schedule submits that even if there was non-compliance by the Petitioners/Appellants with Paragraph 18(1) of the 1st Schedule the 1st and 37th Respondents could not be heard to ask for dismissal of the petition since they had waived their right to do so by their participatory activities, and that if they did ask the Tribunal below was enjoined to refuse the application by the operation of Paragraph 53(2) of the 1st Schedule.
In response, it is submitted for the 1st & 37th Respondents that the 1st & 37th Respondents only became aware of the fact that the Petitioners\Appellants did not pay for the filing of their application to the Tribunal Secretary to issue Hearing Notice for the Pre-hearing session until 5th July, 2015.
It was held that the Records show that the Tribunal Secretary issued Hearing Notice for the Pre-Hearing Session on 23rd June, 2015. The filing fee was paid for this process. That the 1st & 37th Respondents took fresh steps to file, on 26th June, 2015, their answers to the Questions contained in the Pre-Hearing Information Sheet. That by their active participatory activities the 1st & 37th Respondents cannot say that they suffered any prejudice or embarrassment. That the purpose of Pre-Hearing Notice has thus being achieved. See SA’EED v. YAKOWA (supra) at page 1686, IPINLAIYE II v. OLUKOTUN (1996) 6 SCNJ 74 at 88; (1996) LPELR-1532(SC) (1996) 6 NWLR (Pt 453) 143; AKHIWU v. PRINCIPAL LOTTERIES OFFICER MIDWEST (1972) 1 All NLR (Pt. 1) 229 at 238; (1972) LPELR-333(SC) OKWECHIME v. PHILIP IGBINADOLOR (1964) NMLR 132.
It was held that reading paragraphs 18(1) and 53(2) of the 1st Schedule of the Electoral Act, 2010 together makes it clear that failure to formally apply for notice of Pre-hearing session to issue is merely procedural. And being procedural the party who has the right to timeously question its non-compliance can waive strict compliance therewith. See ADAMS v. UMAR (2009) 5 NWLR (Pt. 1133) 41. The issue was accordingly, resolved in favour of the appellants.
It was concluded that the decision on the merits in the appeal would have been one setting aside, in its entirety, the decision appealed, if not for the earlier striking out of the appeal for being incompetent.
The issue in the cross-appeal is:
“Whether the trial Tribunal ought to have pronounced a decision, one way or the order, on the Cross-Appellants’ prayer contending that the Petition was an abuse of court process and in consequence hold that the petition was liable or not liable for dismissal in their Ruling delivered on 22nd July, 2015.”
The Court stated that it is trite that a competent ground of appeal must arise from the judgment being challenged. In SARAKI v. KOTOYE (1992) 11-12 SCNJ 26; (1992) NWLR (Pt. 264) 156; (1992) LPELR-3016(SC) EJOWHOMY v. EDOH-ETER LTD (1986) 5 NWLR (Pt. 39) 1; AQUA LTD v. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (Pt. 91) 622; (1988) LPELR-527(SC).
From the above principles it was found, that the complaint that the trial Tribunal omitted to consider and decide the issue of abuse of court process is most frivolous and vexatious. That the Tribunal did extensively consider the issue of abuse of court process, and came to the conclusion that the issue of abuse of court process raised by the 1st& 37th Respondents was clearly unfounded. The issue was dismissed, and there is no appeal against that decision. That the effect of a decision of court not appealed against is that the said decision is deemed accepted and remains forever binding on the parties. See AKERE v. GOVERNOR, OYO STATE (2012) 50.2 NSCQR 345 at 394; (2012) LPELR-7806(SC) See ALAKIJA v. ABDULAI (1998) 8 NWLR (Pt. 552) 1 at 16-17; (1998) LPELR-404(SC) IKEM v. EZIANYA (2002) 4 NWLR (Pt. 757) 245 at 261; SPLINTERS (NIG) LTD v. OASIS FINANCE LTD (2013) 18 NWLR (Pt. 1385) 188 at 213; (2013) LPELR-20691(CA).
Consequently, therefore, the cross-appeal, premised on the incompetent sole ground of appeal from which a sole issue for determination has been formulated being incompetent was struck out.
On the whole both the Appeal and the Cross-Appeal were dismissed.
Edited by LawPavilion
LawPavilion Citation: (2015) LPELR-25645(CA)