On 21st August 2019, the Court of Appeal (the Court) in Lanre Okunlola & Anor. v. Olatunji Abiola Shoyinka & Anor.(1) upheld the ruling of the National and State Houses of Assembly Election Petition Tribunal, Lagos State (the Tribunal); the ruling dismissed an election petition for non-compliance with the provision of paragraph 18(1) of the Electoral Act, 2010 (as amended). Despite the Court upholding the decision of the Tribunal, it held that the Tribunal erred in law when it contravened the provisions of Section 285(8) of the 1999 Constitution (as amended)(2), by not suspending its ruling and delivering same at the stage of final judgment.
The jurisdiction of an Election Tribunal to deal with election petitions is unique and quite different from that which a Court possesses in ordinary civil cases. It is such that in certain circumstances, the slightest default in complying with a procedural step (which otherwise either could be cured or waived in ordinary civil proceedings) could result in fatal consequences to the petition. One notable provision that readily comes to mind as regards the fatal consequences of default in complying with procedural steps in election petition cases is Paragraph 18(1), (3), (4) & (5) of the First Schedule to the Electoral Act, 2010 (as amended). The said provision reads 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 008
(3) The Respondent may bring the application in accordance with subparagraph (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 the petition.
(4) Where the Petitioner and the 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 filed or entertained
(5) Dismissal of a petition pursuant to subparagraphs (3) and (4) is final, and the Tribunal or Court shall be functus officio…”
It is hornbook law that time is of essence in election matters; that stipulated timelines are sacrosanct and be adhered to.(3) It is therefore unsurprising that non-compliance with the foregoing provisions of the Electoral Act has led to the ‘premature death’ of a plethora of election petition matters.(4)
In the same vein, in the event that a Petitioner fails to apply for issuance of pre-hearing notice within the stipulated time, a Respondent can bring an application for an order to dismiss the petition. Therefore, where a Petitioner contravenes the provision of paragraph 18(1),the petition is deemed abandoned, thereby robbing the Tribunal of its requisite jurisdiction to hear such petition.(5)
Meanwhile, in order to enable speedy and judicious determination of election petitions, the National Assembly, pursuant to the Constitution of the Federal Republic of Nigeria, 1999 (4th Alteration, No. 21) Act, 2017, altered the provision of Section 285 of the Constitution by inserting a new subsection (8). This alteration was meant to obviate and reduce delays in the hearing of election petitions on one hand, and discourage the penchant of some parties for interlocutory appeals which elongate the time when the Tribunal or Court would conclude an election petition(6). In other words, it was aimed at removing the clog in the expeditious resolution of election petitions. For easy reference and a better understanding of the purport of the provision of that particular subsection,(7) it is apposite to reproduce same, verbatim et literatim. The new Section 285(8) provides thus:
“Where a preliminary objection or any other interlocutory issue touching on the jurisdiction of the Tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the Tribunal or Court shall suspend its ruling and deliver it at the stage of final judgment”
By the foregoing alteration therefore, where a Respondent has filed a preliminary objection or an application bordering on the jurisdiction of the Tribunal or Court or on the competence of the petition itself, the Tribunal or Court is bound to suspend its Ruling on such application to the stage of final judgment.
Facts of the Case.
During the election for membership of the House of Representatives for the Surulere II Federal Constituency, the 1st Respondent (Olatunji Shoyinka) was returned as the duly elected candidate. The Appellants (Lanre Okunlola & All Progressives Congress) challenged the said return by filing an election petition before the Tribunal on 16th March 2019.(8) The election petition having been served on the Respondents, the Respondents filed their respective Replies within the stipulated time. The Appellants on the other hand filed their Reply to the 1st Respondent’s Reply out of time and also failed to file any Reply to the 2nd Respondent’s (INEC) Reply.
On 24th April 2019, the Appellants filed an application for issuance of Pre-Hearing Notice pursuant to Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended). This application was however filed outside the time prescribed by the said Paragraph 18(1). In response, the 1st Respondent filed an application, pursuant to paragraph 18(3), (4) & (5) of the First Schedule to the Electoral Act, 2010 (as amended) for the petition to be dismissed on the ground that the application for issuance of pre-hearing Notice was filed out of time. The Appellants however objected to the hearing of the application on the ground that the application of the 1st Respondent is an objection to the jurisdiction of the Tribunal to entertain the petition, and as a result, falls within the purview of section 285(8) of the 1999 Constitution(9). In essence, the Appellants argued that a decision cannot be rendered on the Respondent’s application until the final stage of judgment in the petition.
The Tribunal declared that the application under consideration does not fall under section 285(8) and therefore can be heard at that stage(10). The Tribunal went further to hold that the provision of paragraph 18 (1) of the First Schedule is a condition precedent to the petition pending before it and that non-compliance thereof stripped the Tribunal of jurisdiction, thereby leaving the Tribunal with no other option than to dismiss the petition.(11)
Dissatisfied with the Tribunal’s Ruling, the Appellants lodged its appeal against the said Ruling at the Court of Appeal, Lagos Division.
Issue before the Court of Appeal
The sole distensible issue upon which the Court of Appeal determined the appeal was:
“Whether in the light of the stipulations of Section 285(8) of the 1999 Constitution (as amended by the Fourth Alteration), the Tribunal was right to have dismissed the Appellant’s Petition pursuant to the provisions of Paragraph 18 (3) & (4) of the First Schedule to the Electoral Act, 2010 (as amended.)”
The Appellants’ Position.
The Appellants argued that the 1st Respondent’s application for dismissal of their petition upon the ground that they (the Appellants) did not apply for Pre-Hearing Notice within the stipulated time was an interlocutory issue touching on the jurisdiction of the Tribunal and that by Section 285(8), the Tribunal was to suspend its Ruling on the application and deliver it at the stage of final judgment.(12)
The Appellants also opined that section 285(8) had(13) the effect of amending the fatal consequences of the provisions of Paragraph 18 (3), (4) & (5) in promotion of the current trend of Courts proceeding to hear election-related matters on the merits, without resort to technicality(14). They further submitted that the stipulations of the Constitution were supreme and superior to the procedural rules of the First Schedule to the Electoral Act.
The 1st Respondent’s Position
It was the position of the 1st Respondent that the Appellant’s application for Pre-Hearing Notice was not filed within the time delimited by Paragraph 18(1) and that the Petition was therefore abandoned and was rightly dismissed by the Tribunal.
The 1st Respondent contended that the time for applying for Pre-Hearing Notice was provided for by statute and that a procedural irregularity which involves the violation of a statutory or constitutional provision cannot be waived.
The 1st Respondent further submitted that section 285(8) only deals with the time to deliver the Ruling and did not preclude the Tribunal from taking his application.(15)
The 1st Respondent finally submitted that the petition was in the face of the law deemed abandoned, irrespective of whether the Ruling was delivered at the end of the trial or not.
The Court held that although it is hornbook law that time is of essence in election matters and that the timelines stipulated are sacrosanct and that strict adherence must therefore be paid to deadlines, section 285(8) is a mandatory provision of the Constitution. The Court stated that the application of the 1st Respondent to dismiss the petition at the Tribunal falls within the purview of the stipulations of the said provision and that the Tribunal was bound to comply with the same by suspending its ruling to delivering same at the stage of final judgment. Hence, the Court held that the Tribunal erred in law when it contravened the said stipulations of section 285(8) by not suspending its Ruling and delivering same at the stage of final judgment.
In a sudden twist of fate, the Court went ahead to affirm the decision of the Tribunal when the Court per Ogakwu, J.C.A. held that:
“Even though, I have held that the Tribunal was in error when it failed to follow the mandatory provisions of section 285(8), I do not think that it is an error, the consequences of which will result in the decision being set aside. The Appellants concede (sic) that they did not apply for pre-hearing notice within time. The consequences of that lapse is fatal; it is dismissal of the petition… So it is the correct decision; the same decision that would have been arrived at if the Tribunal had delivered the Ruling at the stage of final judgment”(16) (underlining mine.)
The foregoing decision of the Court of Appeal raises salient questions. To begin with, in the event that a Petitioner fails to file his application for pre-hearing notice within time and a prudent Respondent brings the attention of the Court to this irredeemable defect by filing an application for dismissal, the Tribunal is mandated to suspend its ruling on the application for dismissal till the stage of final judgment.
A Pre-Hearing Notice is a condition precedent to the commencement of the hearing of a petition. Without a valid pre-hearing notice, there is nothing to set legally the petition of a Petitioner in motion. It therefore appears that where there is an invalid application for pre-hearing notice, hearing of the petition till the conclusion of trial will automatically be jeopardized as there is no foundation upon which the petition can stand. Therefore, one pertinent question that arises from this decision is that where an Election Petition Tribunal’s jurisdiction has not been activated, how will the Tribunal be able to hear a petition on its merit?
Another question that should be asked is that:
“Where it is clear to a Tribunal that it has no jurisdiction over a petition because the petition has not been ‘legally set in motion’, how just or proper is it for the same Tribunal to suspend its ruling on such sensitive matter until the stage of final judgment?”
In a clearer sense:
Should a Tribunal go on with such a petition, through the rigours of trial, to the stage of final judgment just to state that ‘although it has heard the merit of the petition, it has no jurisdiction over the matter’?
It therefore appears that the position of the law in this regard only fosters exercises in futility, and waste of limited judicial resources that can be alternatively channeled into other fruitful judicial endeavours. This manifestation of the afore-cited provisions by the Court cannot be said to portray the intendment of the 8th (National) Assembly when it enacted this provision. Paradoxically, this position was subtly acknowledged by the Court of Appeal per Ogakwu, J.C.A. when it remarked thus:
“The consequences of that lapse is fatal; it is dismissal of the petition…the same decision that would have been arrived at if the Tribunal had delivered the Ruling at the stage of final judgment” (17)(underlining mine)
In the same vein, it is trite law that a Court (or Tribunal) cannot confer on itself jurisdiction where none is conferred on it by Statute(18). Courts (including Tribunals) are creatures of statute and usually, the statute that creates a Court accordingly confers on it, its jurisdiction. Jurisdiction may be extended not by the Courts but only by the legislature.(19) Hence, where it is evident to a Tribunal that it has no jurisdiction based on the processes and facts before it and such Tribunal still goes ahead to hear a petition, that will amount to the Tribunal conferring on itself jurisdiction which the statute (The Electoral Act) has stripped the Tribunal of.
The effect of the provision of section 285(8) of the 1999 Constitution (as amended by the 4th Alteration Act, 2017) on Paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended) therefore leaves many questions unanswered. Until the Supreme Court gives a contrary interpretation of this controversial provision of the Constitution, the whole purport of Paragraph 18 as well as all its good intentions remains endangered.
In conclusion, the submission contained in this critique is anchored and berthed at the remarkable words of Obaseki, J.S.C in Oloba v Akereja :
“If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the Court to embark on hearing and determination of the suit, matter or claim…There is no justice in exercising a jurisdiction where there is none. It is injustice to law, the Court and to the parties to do so.” (underlining mine.)
AYODEJI SAHEED ABDUL.
Ayodeji is a dynamic legal professional and a prolific writer.
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2. By the Fourth Alteration
3. See Gwede v INEC (2014) LPELR (23763) 1 at 47-48, Okechukwu v. INEC (2014) 9 SCNJ 47 at 79 and Omisore v. Aregbesola (2015) LPELR (24803) 1 at 78-79.
4. See Yaki v. Bagudu (2015) 18 NWLR (Pt 1491) 288; Omisore v. Aregbesola (2015) 15 NWLR (Pt 1482) 205; Sa’eed v Yakowa (2013) 7 NWLR (Pt 1352) 124; Kennedy v INEC (2009) 1 NWLR (Pt 1123) 614 at 638; Awojobi v INEC (2012) 8 NWLR (Pt 1303) 528 at 551-552; Preye Oseke & Anor. v INEC & Ors. CA/PH/EPT/25/2011; Gebi v Dahiru (2012) 1 NWLR (Pt. 1282) 560; Chime v Ude (1999) 3 NWLR (Pt. 46) 376; Stowe v Benstowe (2012) 9 NWLR (Pt 1306) 450 at 463.
6. Ogakwu, J.C.A in Okunlola v. Shoyinka (supra)
7. Subsection 8, CFRN 1999 (as amended)
8. Vide Petition No.- EPT/LAG/REP/8/2019: Lanre Okunlola & Anor. V. Olatunji Abiola Shoyinka & Anor.
9. See provision above.
11. See also Yaki v Bagudu (supra)
16. Okunlola & Anor. v. Shoyinka & Anor. (supra) at page 19.
17. Okunlola & Anor. v. Shoyinka & Anor. (supra)
18. Joe Ugagba v. Federal Republic of Nigeria (2009) 15 NWLR (Pt. 1163) 91 S.C.; Okolo & Anor. v. U.B.A. (2004) 1 SCNJ 113; Odua Investment Co. Ltd. V. Talabi (1997) 7 SCNJ 600.
19. See: Afribank (Nig.) Plc v. Akiwasa (2006) 5 NWLR, pt. 974, pg. 619, Okulate v. Awosanya (2000) lSC 107; Onuorah v. KRPC (2005) 6 NWLR, pt. 921, pg. 393, Messers Mr. Scheep v the M. v. S. Araz (2000) 12 SC, pt. 1 pg. 164 and African Newspaper of Nigeria v. Federal republic of Nigeria (1985) 2 NWLR pt. 6, pg. 137.
20. (1988) 3 NWLR (Pt. 84) 508 at 520
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