Non-adherence to strict timelines in election matters deprives tribunals of jurisdictional powers in Nigeria
OKUNLOLA & ANOR v. SHOYINKA & ANOR (2019) LPELR-48362 (CA)
In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos
ON WEDNESDAY, 21ST AUGUST, 2019
Suit No: CA/L/EPT/REP/854/2019
Before Their Lordships:
TIJJANI ABUBAKAR, JCA
UGOCHUKWU ANTHONY OGAKWU, JCA
JAMILU YAMMAMA TUKUR, JCA
1. LANRE OKUNLOLA
2. ALL PROGRESSIVES CONGRESS -Appellant(s)
1. OLATUNJI ABIOLA SHOYINKA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION -Respondent(s) LEAD JUDGMENT DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, J.C.A.
FACTS OF THE CASE
At the election for the membership of the House of Representatives for the Surulere II Federal Constituency, the 1st Respondent was returned as the duly elected candidate. The Appellants challenged the said return by filing an election petition before the National and State Houses of Assembly Election Petition Tribunal, Lagos State (Tribunal) in petition NO. EPT/LAG/REP/8/2019: LANRE OKUNLOLA & ANOR. vs. OLATUNJI ABIOLA SHOYINKA & ANOR.
The election petition having been served on the Respondents, the 1st Respondent filed a Reply and the 2nd Respondent equally filed an answer to the Petition, which it titled “Statement of Defence”. The Appellants filed a Reply to the Reply of the 1st Respondent but did not file any Reply to the “Statement of Defence” of the 2nd Respondent. Thereafter, parties filed a rash of applications. The Appellants filed four applications. Two of the applications were filed on 24th April 2019; one prayed for an order striking out the “Statement of Defence” of the 2nd Respondent, while the other prayed for the issuance of pre-hearing notice.
The other two applications filed by the Appellants were filed on 10th May, 2019 and the one sought an order to amend the Motion of 24th April 2019, wherein the Appellants applied for issuance of pre-hearing notice and for the said Amended Motion to be deemed as properly filed; while the other was the said Amended Motion, which inter alia, was for enlargement of time to file their Reply to the 1st Respondent’s Reply and enlargement of time to apply for pre-hearing notice.
The Court observed that the Appellants’ application of 10th May 2019 was a tacit concession that they did not apply for pre-hearing notice in a timely manner and also that they did not file their Reply to the 1st Respondent’s Reply within the stipulated time. In fact, in a show of creditable advocacy, the learned senior counsel for the Appellants conceded at the hearing of the appeal that the Appellants did not apply for pre-hearing notice within the stipulated time.
The application of the 1st Respondent was filed on 3rd May, 2019 and it sought for orders striking out the Appellants’ Reply to the Reply of the 1st Respondent and also for the Petition to be dismissed on the ground that the said Reply and the application for issuance of pre-hearing notice were filed out of time. The 2nd Respondent’s application, which was filed on 14th May 2019 prayed for an order of the Tribunal striking out the Appellants’ application for issuance of pre-hearing notice and dismissal of the Petition since the application for issuance of pre-hearing notice was not filed within the stipulated time.
With the consent of the parties, three of the applications were heard together and the Tribunal handed down three separate rulings. The applications are the Appellants’ Motion of 10th May 2019 for amendment, the 1st Respondent’s Motion of 3rd May 2019 and the 2nd Respondent’s Motion of 14th May 2019. The three separate rulings of the Tribunal on the applications were all delivered on 24th June 2019 and appeals were lodged against the said Rulings. The instant appeal is in respect of the Ruling on the 1st Respondent’s Motion of 3rd May 2019.
ISSUES FOR DETERMINATION
The Court determined the appeal on the sole issue as follows: “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 Appellants’ Petition pursuant to the provisions of Paragraph 18 (3) & (4) of the First Schedule to the Electoral Act, 2010 (as amended).”
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
It is the contention of the Appellants that the 1st Respondent’s application for the dismissal of their Petition upon the ground that they did not apply for pre-hearing notice in a timely manner was an interlocutory issue touching on the jurisdiction of the Tribunal or the competence of the Petition itself; and that by Section 285 (8) of the 1999 Constitution as amended, the Tribunal was to suspend its ruling on the application and deliver it at the stage of final judgment. The application to dismiss the Petition for late application for pre-hearing notice, it was asserted, relates to the jurisdiction of the Tribunal vide YAKI vs. BAGUDU (2015) 18 NWLR (PT 1491) 288 at 313-314 and 334; (2015) LPELR-25721 (SC) and was an interlocutory application based on the nature of the application.
It was further submitted that the application before the Tribunal was for dismissal of the Petition pursuant to Paragraph 18 (3) of the First Schedule to the Electoral Act as amended, but that the Tribunal proceeded to dismiss the Petition pursuant to Paragraph 18 (4), which the Tribunal can only resort to, suo motu, to dismiss a Petition after having heard the parties on it. The reliance by the Tribunal on Paragraph 18 (4), it was posited was a denial of fair hearing since the matter did not come up under Paragraph 18 (4). It was opined that Section 285 (8) of the 1999 Constitution as amended had the effect of amending the fatal consequences of the provisions of Paragraphs 18 (3), (4) & (5) of the First Schedule to the Electoral Act as amended in promotion of the current trend of the Courts to hear election related matters on the merits without resort to technicality.
SUBMISSION OF THE 1ST RESPONDENTS’ COUNSEL
It is the submission of the 1st Respondent that the Appellants’ application for pre-hearing notice was not filed within the time limited by Paragraph 18 (1) of the First Schedule to the Electoral Act as amended and that the Petition was therefore abandoned and was rightly dismissed by the Tribunal. The time for applying for a pre-hearing notice was stated to be provided for by statute and that a procedural irregularity, which involves the violation of a statutory or constitutional provision cannot be waived. The timelines in Paragraph 18 (1) of the First Schedule to the Electoral Act as amended, it was opined, were mandatory and cannot be circumvented vide EMEJE vs. POSITIVE (2010) 1 NWLR (PT 1174) 48 at 76; (2010) LPELR-8986 (CA).It was maintained that the Tribunal was correct to dismiss the Petition under Paragraph 18 (4) of the First Schedule to the Electoral Act as amended for having been abandoned, as it could not extend the time for filing the application for pre-hearing notice.
SUBMISSION OF THE 2ND RESPONDENTS’ COUNSEL
The 2nd Respondent submitted that the Appellants having failed to apply for pre-hearing notice within the stipulated time, the Petition became abandoned and all the steps thereafter taken by the Appellants were inconsequential. With respect to the stipulations of Section 285 (8) of the 1999 Constitution as amended by the Fourth Alteration, the 2nd Respondent posited that it cannot be the intendment of the legislature to compromise time factor in election petitions which are time bound. The cases of IKORO vs. IZUNASO (2009) 4 NWLR (PT 1130) 35; (2008) LPELR-4302 (CA) and OMISORE vs. AREGBESOLA (2015) ALL FWLR (PT 813) 1673 at 1738; (2015) LPELR-24803 (SC) were cited in support. The Appellants having failed to apply for pre-hearing notice within the stipulated time, it was maintained, must suffer the consequence of dismissal of the Petition as properly held by the Tribunal.
RESOLUTION OF ISSUE
In resolving the issue, the Court considered the stipulations of Section 285 (8) of the 1999 Constitution as amended by the Fourth Alteration and Paragraphs 18 (1), (3) & (4) of the First Schedule to the Electoral Act. The Court held that it is hornbook law that time is of the essence in election matters and that the timelines stipulated are sacrosanct and strict adherence must therefore be paid to the deadlines. See GWEDE vs. INEC (2014) LPELR-23763 (SC) at 47-48, and OMISORE vs. AREGBESOLA (2015) LPELR-24803 (SC) at 78-79. The Court further held that the effect of non-adherence to the strict timelines, which the Appellants conceded that they did not keep with respect to their application for issuance of pre-hearing notice, is that the Petition will be dismissed. The Court noted that Section 285 (8) of the 1999 Constitution as amended by the Fourth Alteration was aimed at removing the clog in the expeditious resolution of election matters. The Court also noted that the stipulation did not set out any time protocol nor did it remove any already existing timelines within which parties were to take steps in election matters. It only stipulated when the Court or Tribunal is to deliver its ruling where there has been any issue raised with regard to any non-compliance affecting the proceedings. Consequently, the Court was unable to agree with the Appellants that the provision amended the fatal consequences of non-compliance with Paragraph 18 of the First Schedule to the Electoral Act.
Contrary to the contention of the Respondents, the Court held that their application before the Tribunal came within the purview of the stipulations of the said provision and the Tribunal was bound to comply with the same by suspending its Ruling and delivering it at the stage of final judgment. The Court found that the Tribunal was therefore wrong when it contravened the said stipulations of Section 285 (8) of the 1999 Constitution as amended by the Fourth Alteration, by not suspending its Ruling and delivering the same at the stage of final judgment. The Court stated further that even though, the Tribunal was in error when it failed to follow the mandatory provisions of Section 285 (8), it is not an error that would result in the decision being set aside. The Court held that the mistake or error of the Tribunal in not complying with Section 285 (8) did not influence or affect its decision. The resultant effect of the failure of the Appellants to apply for the issuance of pre-hearing notice within the stipulated time is that the jurisdiction of the Tribunal to hear the Petition on the merits was not activated. The Petition was abandoned and was only fitting for the order of dismissal made by the Tribunal.
Conclusively, the Court anchored and berthed the judgment with the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520; (1988) LPELR-2583 (SC): “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 the law, the Court and to the parties to do so.”
On the whole, the appeal was found to be devoid of merit and it was thereby dismissed.
B.A.M. Fashanu, SAN with him,
E.O. Ashade, Esq., C.O. Erhieyovwe, Esq., -For Appellant
O.A. Safiu, Esq. and O.O. Ikuforiji, Esq.
A. M. Kotoye, Esq. with him, A. S. Abdul, Esq. – For 1st Respondent
A. Adeyemo, Esq. – For 2nd Respondent
Compiled by LawPavilion