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Riruwai v. Shekarau

ALHAJI USMAN SULE RIRUWAI & 2 OTHERS

V

MALLAM IBRAHIM SHEKARAU & 47 OTHERS


COURT OF APPEAL

( KADUNA DIVISION )

ZAINAB ADAMU BULKACHUWA JCA ( Presided )

ABDU ABOKI JCA

AHMAD OLAREWAJU BELGORE JCA

ALI ABUBAKAR BABANDI GUMEL JCA

UZO NDUKWE-ANYANWU JCA ( Read the Lead Judgment )

CA/K/EP/GOV/10/2007

THURSDAY, 10 APRIL 2008

COURT - Technicalities - Attitude of court to

COURT - Rules of court - Purport of

ELECTION PETITION - Practice Directions, 2007, - Constitutional basis of - Applicability and objective of - Constitution of the Federal Republic of Nigeria, 1999, section 285(3), Electoral Act, 2006, 1st Schedule to, Practice Directions, paragraph 80 considered

ELECTION PETITION - Pre-hearing session and scheduling - Mode of - Whether provided for by Electoral Act

INTERPRETATION - Application - Legal interpretation of - Practice Directions, 2007, paragraph 6(2) considered

JURISDICTION - Issue of - Form in which is raised - Irrelevance of

JURISDICTION - Issue of - Who may raise - Need to determine firstly JURISDICTION - Lack of - Effect of on court

PRACTICE AND PROCEDURE - Applications before court - Mandatoriness of court determining all

PRACTICE AND PROCEDURE - Rules of court - Purport of

PRACTICE AND PROCEDURE - Statutorily prescribed time to perform an act - Discretionary powers of court to extend - When may exercise

STATUTE - 1999 Constitution, section 285(3), Electoral Act, 2006, of 1st Schedule to, Practice Directions, paragraph 80 Constitutional basis of Practice Directions thereunder Applicability and objective of

STATUTE - Electoral Act - Pre-hearing section and scheduling - Mode of - Whether provided thereunder

STATUTE - Practice Directions, 2007, paragraph 6(2) - Application Legal interpretation of

WORDS AND PHRASES - Application  Legal interpretation of Practice Directions, 2007, paragraph 6(2) considered

Issues:

1.             Whether the Honourable Justices of the Kano State Election Tribunal were right in dismissing the appellants’ petition despite the pendency of appellants’ application dated 26 July 2007 and whether the said application can be dismissed in contravention of the Election Tribunal and Court Practice Directions, 2007 (as amended).

2.             Whether there was conflict between the provisions of the 1st Schedule to the Electoral Act, 2006 and the Practice Directions 2007 , and if there is such conflict which one takes precedence.

3.             Whether the letter of application by appellants’ counsel for pre-trial hearing notice was competent.

Facts:

The petitioner contested the Governorship election in Kano State under the platform of Action Congress. The 1st respondent who was the Peoples’ Democratic Party’s candidate at the election was declared winner and returned by the 3rd respondent. The petitioner being dissatisfied with the result filed a petition at the Governorship and Legislative House Election Petition Tribunal in Kano State. He however failed to apply for the issuance of pre-hearing notice as prescribed by paragraph 3(1) of the Election Tribunal and Court’s Practice Directions, 2007. The respondents did not also apply for it and the tribunal therefore slated the petition for dismissal. The petitioner thereafter filed a motion on notice at the tribunal praying for orders of extension of time for the issuance and service of pre-hearing notice and for the issuance and service of the notice. The respondents filed preliminary objections against the motion. The tribunal dismissed the petition. The petitioner was dissatisfied and appealed to the Court of Appeal while respondents filed preliminary notices challenging the competence of the appeal. In determination of the appeal, the Court of Appeal considered the following statutes:

Practice Directions, 2007, paragraph 3(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.

When an objection to the jurisdiction of the court is raised, it ought to be resolved first one way or the other before the court proceeds to hear the case on the merit. And the court has the jurisdiction to do so”.

Electorial Act, 2006, First Schedule, paragraph 43(1):

“Tribunal or court shall have powers subject to the provisions of Section 141 of this Act and paragraph 14 of this Schedule to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this Schedule.

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 step shall be filed or entertained.

Within seven days after the filing and service of the petitioner’s reply on the respondent, or seven 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.” Practice Directions, 2007, paragraph 6(2):

“Whereby these Directions any application is authorized to be made to tribunal or it, 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.”