EZENWO V. FESTUS: On difference between issue of abandonment of election petition and issue of jurisdiction of election tribunal. An insight into the decision of the Supreme Court therein.

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Moruff O. Balogun Esq

EZENWO V. FESTUS: On difference between issue of abandonment of election petition and issue of jurisdiction of election tribunal. An insight into the decision of the Supreme Court therein.

Citation: (2020) 7 NWLR PT. 1750 AT 361.
PARTIES IN FULL:
NYESOM WIKE EZENWO
V.
1. AWARA BIOKPOMABIO FESTUS
2. AFRICAN ACTION CONGRESS [AAC]
3. INDEPENDENT NATIONAL COMMISSION [INEC]
4. PEOPLES DEMOCRATIC PARTY [PDP]

Courtesy: Moruff O. Balogun Esq.

Summary of facts:
The appellant contested in the Rivers State Governorship Election as the candidate of the Peoples Democratic Party (PDP), the 4th respondent. The 1st respondent, as candidate of the African Action Congress (AAC), the 2nd respondent also contested in the election with other candidates. The appellant was declared the winner of the election by the Independent National Electoral Commission (INEC), the 3rd respondent.

The 1st and 2nd respondents filed a joint petition challenging the return of the appellant. Subsequently, pre-hearing application was filed on behalf of the 1st and 2nd respondents.

The tribunal, however, found same invalid. The tribunal went on to dismiss the petition on the ground that the petition had been abandoned because neither the 1st and 2nd respondents (as petitioners) nor the appellant, and the 3rd and 4th respondents (as respondents to the petition) filed any valid application for pre-hearing session as mandatorily required under paragraph 18(1) – (3) of the First Schedule to the Electoral Act.

On appeal, the Court of Appeal held that the dismissal of the petition for abandonment was premature, touched on the competence or jurisdiction of the tribunal to hear the petition, and breached section 285(8) of the 1999 Constitution.

The appellant was dissatisfied with that decision and appealed to the Supreme Court.
In determining the appeal, the Supreme Court considered Paragraph 18(3), (4), and (5) of the First Schedule of the Electoral Act, which provides:

“18(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.

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.

Dismissal of a petition pursuant to subparagraphs (3) and (4) of this paragraph is final, and the tribunal or court shall be functus officio.”

Held: Unanimously allowing the appeal.

The following issues were raised and determined by the Supreme Court:

On difference between issue of abandonment of election petition and issue of jurisdiction of election tribunal-
Abandonment of a petition raises an issue of want of diligent prosecution of the petition, which is purely procedural. On the other hand, jurisdiction of a tribunal to entertain the petition arises from a position outside the court system and prescribes the authority of courts within the system. In this case, the issue arising in the course of the proceedings of the tribunal as to whether the petition was being diligently prosecuted or abandoned is one within the practice and procedure of the tribunal.

On establishment and jurisdiction of Governorship Election Tribunal –
Section 285(2) of the 1999 Constitution (as amended) states that there shall be established for each State of the Federation an election tribunal to be known and called the Governorship Election Tribunal that shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State.

In effect, the section establishes the Governorship Election Tribunal and enables it to exercise jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State. In this case, by their petition, the 1st and 2nd respondents invoked the jurisdiction of the tribunal vested by section 285(2) of the Constitution. No 1ssue of the competence of the petition or whether the tribunal had the jurisdiction to entertain the petition was before either the tribunal or the Court of Appeal.

The issue of the necessary jurisdiction of the tribunal or the competence of the petition is extrinsic to the petition.

On nature of provisions of section 285(8) of 1999 Constitution (as amended) and paragraph 18(4) of First Schedułe of Electoral Act-
The provisions of section 285(8) of the 1999 Constitution (as amended) and paragraph 18(4) of the First Schedule to the Electoral Act are procedural and intrinsic to an election petition. They are, each, quite clear and unambiguous. They provide for powers an election tribunal may exercise in relation to ongoing proceedings in the tribunal in respect of any petition before it. None of the two provisions purports to provide for the substantive jurisdiction the tribunal has to entertain the petition.

On procedural nature of statutes regulating time in court proceedings-
Statutes that prescribe, shorten, or enlarge the time within which proceedings may be taken, or concluded, or both are procedural. In this case, section 285(8) of the 1999 Constitution (as amended) merely prescribes, as paragraph 18 of the First Schedule to the Electoral Act does, the course of the tribunal’s proceedings in the hearing of petitions. That is, it merely regulates the procedure of the tribunal. It does not create any substantive right. In the circumstance, Section 285(8) of the 1999 Constitution (as amended) is procedural.

On purpose of section 285(8) of the 1999 Constitution (as amended) –
The purpose of section 285(8) of the 1999 Constitution (as amended) is to save an election petition from dilatory interlocutory proceedings that would defeat the period of 180 days prescribed by section 285(6) of the Constitution for a tribunal to hear the petition and deliver its final judgment.

Subsection (8) therefore reinforces the public policy, particularly in election dispute, that there must be an end to litigation.

On procedural nature of provisions in section 285(8), 1999 Constitution (as amended) and paragraph 18, First Schedule of Electoral Act-
Paragraph 18 of the First Schedule to the Electoral Act is procedural, and it regulates the internal proceedings of the tribunal. Section 285(8) of the Constitution is also procedural. It is intended to regulate the procedure of the tribunal when an issue arises in the petition as to whether any person has been validly elected to the office of Governor of a State, or any office in respect of which section 285 of the Constitution applies. Subsection (8) commands the tribunal to suspend its ruling and defer it to the stage of final judgment whenever an interlocutory issue arises as to whether the tribunal has jurisdiction to entertain the petition or whether the petition itself is competent.

Neither section 285(8) of the 1999 Constitution nor paragraph 18 of the First Schedule to the Electoral Act enacts the substantive jurisdiction of the tribunal. The jurisdiction of the Governorship Election tribunal is specifically vested by section 285(2) of the
Constitution.

On duty on petitioner to apply for issuance of pre-hearing notice and effect of failure to do so –
Paragraph 18 of the First Schedule of the Electoral Act provides for mandatory procedural requirements that enjoin a petitioner to apply for issuance of pre-hearing notice. The provisions state that after an election petition is filed and after processes are filed, exchanged, and settled as provided by paragraph 18(1), the petitioner shall within 7 days apply for the issuance of pre-hearing notice.

Where the petitioner fails to apply, the respondent shall apply for an order to dismiss
the petition. The tribunal shall dismiss the petition as abandoned petition and no application for extension of time shall be entertained. Dismissal of a petition pursuant to paragraphs 18(3) and (4) of the Schedule is final and the tribunal shall be functus officio. In this case, there was non-compliance with paragraph 18 of the First Schedule to the Electoral Act. The trial tribunal was correct to make that finding and to dismiss the petition as an abandoned petition, and the Court of Appeal erred when it upset the judgment of the tribunal.

On meaning of “abandonment”-
“Abandonment” means the surrender, relinquishment, disclaimer, or cession of property or of rights; voluntary relinquishment of all right, title, claim and possession, with the intention of not reclaiming it; the giving up of a thing absolutely, without reference to any particular person or purpose, etc.; intention to forsake or relinquish the thing by owner with intention of terminating his ownership, but without vesting it in any other person. Abandonment includes both the intention to abandon and the external act by which the intention is carried into effect.

Generally, abandonment can arise from a single act or from a series of acts. Time is not an essential element of abandonment, although the lapse of time may be evidence of an intention to abandon, and here it is accompanied by acts manifesting such an intention, it may be considered in determining whether there has been abandonment.

On what abandonment of a right or an interest connotes-
Abandonment of a right or an interest connotes the relinquishing of the right or interest with the intention of never reclaiming it. In this case, abandonment of the petition connotes the relinquishing of the right or interest in it. Therefore, it served no practical
utilitarian purpose to near the abandoned petition.

Put differently, the hearing of the abandoned petition serves no other practical purpose than a mere academic pursuit. Consequently, paragraph 18(4) of the First Schedule to the Electoral Act empowers the Tribunal to legitimately dismiss the abandoned petition without venturing to hear evidence on it.

On when proceedings in an election petition amount to academic exercise-
Further proceedings in an election petition that has been abandoned are an exercise of futility and an academic exercise, In this case, the tribunal rightly dismissed the petition at the time it did on the ground that the petition had been abandoned because no valid pre-hearing application had been filed.

On importance of elections and rationale for limitation of period for election litigations-
Elections are very important in the life of a nation and time is of the essence therefor, hence it was deemed necessary to regulate the periods for election litigations as in section 285(6) of the Constitution (as amended).

On nature of election petition-
Election petitions are sui generis.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
09121207712 [WHATSAPP]

 

The content of this publication/analysis of this Supreme Court judgment is entirely that of its author

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