Chief Okey Ikoro V. Hon. Osita Izunaso & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
MOHAMMED LAWAL GARBA, J.C.A.
The Governorship and Legislative Houses Election Tribunal, Imo state (henceforth) lower Tribunal) in a ruling delivered on the 25th of September, 2007, summarily dismissed the petition filed by the Appellant challenging the return of the 1st Respondent as the winner of the election for the Orlu senatorial seat on the ground that the Appellant did not apply for the issuance of pre-hearing notice within the time provided in paragraph 3(1) of the Practice Directions. This appeal is a result of the dissatisfaction by the Appellant with that ruling and is based on a single ground of error in law as follows:-
‘The learned Judges of the Governorship and Legislative Houses Election Petition Tribunal Imo State of Nigeria erred in law when they dismissed this petition.”
Fifteen (15) paragraphs of what were called “particulars of error” were set out on the Notice of Appeal from which the learned counsel for the Appellant distilled the following issue for determination at p. 40 of the Appellant’s brief of argument filed on 20th November, 2007:-
“Whether the petition was rightly dismissed for non-compliance with paragraph 3(1) of the Practice direction?”
In paragraph 3.01 at page 2 of the 1st and 2nd Respondents’ brief of argument filed on 7th December, 2007 and issue similar in substance to the above issue was formulated for determination in the appeal.
On their part, the 3rd – 1693rd Respondents at paragraph 2.01 of their brief of argument filed on the 11th of December, 2007 adopted the issue as formulated by the Appellant.
In addition, they also raised a preliminary objection on the competence of the Notice of Appeal, the notice of which was filed on lame date with their brief of arguments that is 11th December, 2007.
At the hearing of the appeal on the 28th of January, 2008, the briefs of argument filed were adopted and relied on as submissions of learned counsel in support of their respective positions. In his oral submissions on the objection raised in the 3rd – 1693rd Respondents’ brief learned counsel for the Appellant said it was mistaken because the Notice of Appeal did not leave any doubt about the proceedings to which it relates and that the objection is only as to the forms of the Notice of Appeal. We were urged by him to discountenance the objection as it is only technical.
Without much ado and to avoid wastage of verbiage, after a leading of the Notice of Appeal contained at pp. 581-3 of the record of appeal in particular, and the submissions on the preliminary objection at pp. 1-3; paragraphs 3.02 -3.06 of the 3rd- 1693rd Respondents’ brief of argument, the objection is undoubtedly in the realm of crass technicalities which have long ago been excised from our judicial practice. The trend practice for sometime now particularly in election matters which are of a different and special nature is to do justice, even if only substantial, in matters that come before the courts regardless of the harmless deficiencies in form that may exist in the processes used to have access to the seat of justice where every citizen has the constitutional right to. See ONALO V. AGUDA (1997) 10 NWLR (526) 540, MIL. GOV. OF IMO STATE V. NWAUWA (1997) 2 NWLR (490) 675, ILOABACHIE V. ILOABACHIE (2000) 5 NWLR (656) 178, IWU V. NWUGO (2004) 9 NWLR (877) 54, OGBORU V. IBORI (2006) 17 NWLR (1009) 542.
Looking at the Notice of Appeal. I agree with the learned ‘ counsel for the Appellant that it leaves no doubt about the decision to which it relates or the complaint of the Appellant against that decision.
Let me remind learned counsel that the essence of a Notice of Appeal is to give adequate notice in the ground/s’ of what the complaint is against the decision appealed from to both the Respondents and the court to which the appeal was made. See ADEROUNMU V. OLOWU (2000) 4 NWLR (652) 253, IBRAHIM V. OSUNDE (2003) 2 NWLR (804) 2, OGBEBOR V. DANJUMA (2003) 15 NWLR (843) 403.Appellant’s Notice of Appeal in addition to meeting the above criteria has also satisfied the other requirements for what a Notice of Appeal should contain under Order 6 Rule 2(1) and (2) of the Court of Appeal Rules, 2007. The particulars to the ground may be said to be verbose and prolix, but not vague since the real complaint can easily b6 discerned from them. For the above reasons I find the objection to the Notice of Appeal lacking in merit because it only attacks the form but not the substance of the notice. It fails and is accordingly dismissed.
I now turn to the submissions of learned counsel on the lone issue in the appeal.
After making reference to the findings of the lower Tribunal at pp. 539-540 of the record of appeal, learned counsel for the Appellant had submitted that the most fundamental canon of interpretation of statutes is that the words of the Statute be constructed purposively and wholistically. He cited the cases of P.D.P. VS. INEC (1999) 11 NWLR (626) 200 @ 241 and AQUA LTD V. ONDO STATE SPORTS COUNCIL (1998) 4 NWLR (91) 622 @ 654-5 on the point and said where no reply was served at all and the time for filing a reply has expired then, Time may run under paragraph 3(1) of the Practice Direction though not expressly provided. It was his contention that the words of the paragraph contemplates that a reply shall be filed for it to come into operation and that due provisions had been made in paragraphs 10 and 12(1) of the 1st Schedule to the Electoral Act for failure to file a reply within the time allowed’ That paragraph 3(1) did not provide for a penalty either for failure to file a reply in relation to pre-trial session or failure to serve such reply and that the lower Tribunal could not ignore the decision in IJBA V. NWORA (1978) 11 – 12 SC 1 and BUHARI V. OBASNJO (2003) 15 NWLR (843) 236 @ 256-7 on compliance with the paragraph. According to learned counsel, since the Respondents’ reply had been filed’ the end of justice would have been served if the parties were given a fair hearing on their dispute in the absence of compelling reasons not to hear the parties on the merit’ Further that the lower Tribunal had already set the matter down for pre-trial session and none of the parties complained but turned later and held that the Appellant had not complied with paragraph 3(1) by failure to apply for issuance of pre hearing notice within 7 days from 27th September, 2007. He argued that by the later decision, the lower Tribunal had re-written paragraph 3(1) into what was not enacted and punish the Appellant for late filing and service on him of the Respondents’ replies’ Pages 541 of the record of appeal was referred to by learned counsel who said the Practice Directions were enacted as handmaid of justice relying on the authorities of S.B.N. PLC V. KYENTIJ (1998) 2 NWLR (536) 41 @ 59 and HARUNA V. MODIBBO (2004) 16 NWLR (900) 487 @ 559 – 60. That the Appellant was served with Respondents’ replies on 14th August, 2007 after which he filed his own reply and so was well within seven days to reapply for notice of pre-hearing by the 15th of August, 2008 when the petition was first fixed for pre-hearing session. It was submitted that an application for pre-hearing notice to issue only serves the purpose of igniting and activating the issuance of the notice by the lower Tribunal but that the petition had already been fixed or set down for preliminary session by the lower Tribunal without any complaint at all from any of the parties. We were urged to allow the appeal, set aside the decision of the lower Tribunal and order that the Appellant’s petition be relisted for trial on the merit. For the 1st and 2nd Respondents’ it was submitted that pleadings in the petition before the lower Tribunal were deemed closed on the 7th of July, 2007, when the time for the 3rd – 1693rd Respondents were supposed to have filed their replies expired since they did not enter an appearance from the 18th of June, 2007 when they were served with the petition. Paragraphs 7(2) and 12(1) of the 1st Schedule to the Electoral Act were set out and it was argued that the lower tribunal was therefore right when it held that it is the tine provided in the First Schedule to the Electoral Act that should be reckoned with in the computation of time for the purposes of paragraph 3(1) of the Practice Direction’ This latter paragraph was set out by learned counsel who contended that time was of the essence indisposing of election petitions that why the Practice Directions were couched in mandatory terms, He said to hold that the time for an application under paragraph 3(1) shall start to run from the date of filing the Petitioners’ reply would not be in the spirit of the Practice Directions because it would mean that where any Respondent failed to file a reply in this the time allowed by the Directions but did so long after the expiration of the time, the time will start running that day. It was submitted that it be absurd for that interpretation and that the lower Tribunal used the golden rule of interpretation in the computation of time. The cases of PDP V. INEC (1999) 11 NWLR (626) 200 @ 261 and NAFIU RABIU V. KANO STATE (1981) 2 NCLR 293 were relied on by learned counsel. Furthermore, it was said that a vigilant and diligent petitioner would go ahead to apply for a pre-trial notice as soon as the time for filing the Respondents’ reply had elapsed. That Appellant was bound to prosecute his petition diligently and if he fails to do so he cannot blame the lower tribunal for invoking applicable and relevant provisions of the law in determining it. In addition it was submitted that the Practice Direction have the force of law and the use of the word “shall” in paragraph 3(1) means “must” be obeyed as they do not admit any circumvention, but are mandatory in election petitions. The cases of FOLARANMI V. ABRAHAM (2004) 10 NWLR (881) 431 @ 454-55 and ABUBAKAR V. INEC (2004) 1 NWLR (854) 207 among others were cited to support the submission. That the Appellant’s non-fulfilment of the condition precedent the exercise of the Tribunal’s jurisdiction can be raised at any stage of the proceeding as was done by it on the authority of NALSA & TEAM ASSOCIATES v. NNDC (1996) 3 NWLR (439) 621 and BOYI HASSAN (2001) 18 NWLR (744) 41.
We were finally urged by the learned counsel for the 1st and 2nd Respondents to resolve the issue against the Appellant and affirm the decision of the lower tribunal.
I have observed that all the arguments and submissions contained in the 3rd -1693rd Respondents’ brief of argument seem to be on attack on the ground of appeal and the issue formulated for determination. They are to the effect that the ground of appeal did not arise from the decision of the lower tribunal and so no issue was submitted to this court for determination in the appeal.
I have before now, observed and held that all the challenges and attacks on the Appellant’s ground of appeal in the preliminary objection by learned counsel are purely technical in nature and nothing more All that the learned counsel did in his arguments was to continue such a merely academic exercise completely missing the substance of the complaint in the ground of appeal.
It is unserious for counsel to say that the ground of appeal does not relate to the decision of the lower tribunal with which the Appellant was dissatisfied and aggrieved. The submissions in paragraph 4.01 – 4.05 of the 3rd – 1693rd Respondents brief did not add any real value to their position in the appeal as they are only a persistent continuation of the objection to the ground of appeal which has been overruled and dismissed earlier in this judgment.
Now the pith of the Appellant’s complaint and the real issue to be determined in the appeal is, at what point would time start to run for the purposes of the provisions of paragraph 3(1) of the Practice Directions? Put another way; when is a Petitioner required by the provisions of paragraph 3(1) to file an application for the issuance of a pre-hearing notice?
All the parties appear to be one; ad idem on the fact that the time for the application would start to run at the close of pleadings. In other words, a petitioner is expected under paragraph 3(1) to apply as soon as all the replies to the petition (if any) were filed and served as provided for under the 1st schedule to the Electoral Act; to apply for the issuance of a pre-hearing notice.
Where the parties differ is as to when, for the purposes of paragraph 3(1), did pleadings in the petition close. The Appellant says when he was actually served with the 3rd – 1693rd Respondents’ replies to his petition on the 14th of August, 2007. The Respondents on their part say that the pleadings closed when the time within which the replies to the petition were to be filed as provided in schedule to the Act elapsed. This was the position and finding of the lower tribunal too.
A perusal of the relevant provisions of the 1st Schedule to the Electoral Act would bring or reveal the correct position on the issue.Paragraphs 9(1) (a), (b), 10(2), 12(1) and 16(1) of the 1st Schedule for the Electoral Act 2006 are germane. It is expedient to set them out for ease of reference. They are:
“9. (1) Where the respondent intends to oppose the election Petition, he shall:
(a) within such time after being served or deemed to have been served with the election petition; or
(b) where the Secretary has stated. a time under subparagraph (2) of paragraphs 7 of this schedule, within such time as is stated by the Secretary, enter an appearance by filing in the Registry a memorandum of appearance stating that he intends to oppose the election petition and giving the name and address of the Solicitor, if any, representing him or stating that he acts for himself, as the case may be, and, in either case, giving an address for service at which documents intended for him may be left or served.
- (2) The non-filing of a memorandum of appearance shall, not bar the respondent from defending the election petition if the respondent files his reply to the election petition in the Registry within a reasonable time, but, in any case, not later than twenty-one (21) days from the receipt of the election petition.
- (1) The respondent shall, within fourteen (14) days of entering an appearance file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he replies in opposition to the election Petition.
- (1) lf a person in his reply to the election petition raises new issues of facts in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the Registry, within five(5) days from the receipt of the respondent’s reply, a petitioners reply in answer to the new issues of fact, so however that:
(a) the petitioner shall not at this stage entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him; and
(b) the petitioner’s reply does not run counter to the provisions of subparagraph (1) of paragraph 14 of this Schedule.”
The above provisions are in simple and plain language that their meanings and purport can easily be understood’ Clearly
paragraphs 9 (1) (a) and (b) say that where a Respondent to an election petition, after service thereof on him, intends to oppose it shall enter an appearance by filing a memorandum of appearance stating that he intends to oppose the petition within not less than five (5) days but not more than seven (7) days. So a Respondent under these provisions was required to enter an appearance not later than seven (7) days of service of the petition on him if he intends to oppose it.
A time limit of seven (7) days was therefore set and imposed by the provisions for filing of a memorandum of appearance where a Respondent intends to oppose the petition’ Then come the provisions of paragraph 10(2) which provides for a situation where a Respondent failed, neglected or refused to comply with the preceding requirement in paragraph 9(1)(a) & (b). Paragraph 10(2) allows a Respondent to defend a petition inspite of the non-compliance with paragraph 9(1) (a) & (b) if he filed his reply to the petition not later than twenty-one (21) days from the receipt of the petition. This simply means that even if or however a Respondent did riot file a memorandum of appearance to a petition as required under paragraphg (1)(a) & (b), he will still be able to defend it if he filed a reply thereto within 21 days of the receipt thereof. Once again a time limit or dateline was set or imposed on such Respondent if he was to take and enjoy the benefit provided in the paragraph; that he had to file a reply within and not later than 21 days after he was served with the petition. Indisputably, if the reply of a Respondent was not filed within 21 days of receipt of the petition’ such a reply would and cannot be said to have met or satisfied the requirement of the paragraph. Put another way, the reply of a Respondent who did not file a memorandum of appearance, that was filed later than or outside the 21 days time limit provided would be in breach of the provisions of the paragraph. Such a reply, ipso facto’ would not enable a Respondent to defend a petition against him under the provisions. By three provisions, after 21 days of receipt of the petition by a Respondent no reply can validly and properly be filed without an order from the Tribunal or Court as the case may be.
Paragraph 12(1) on its part makes provisions for a situation where a Respondent complied with 9(1) (a) & (b) by filing a memorandum of appearance within the time permitted by or set out therein. Under the paragraph a Respondent was required to file his reply to the petition within 14 days after entering appearance or filing a memorandum of appearance. It is clear that the 14 days time limit in the paragraph would start to run from the date the memorandum of appearance was filed. The computation of the 14 days in the paragraph would therefore commence from the date of filing the memorandum of appearance. So for instance if a Respondent was served with a petition on a date and he filed the memorandum of appearance that day or the next, then the 14 days within which he was required to file a reply to the petition would start to run from the date of service or next as the case may be. Any reply filed after or outside the 14 days of entering appearance would not be in accordance with the paragraph because it was filed out of the time provided therein. The effect or failure to file within the 14 days prescribed is that no valid reply would be deemed to have been filed under the Paragraph.
The salient difference that may be observed between the provision pf paragraph 10(2) and those in 12(1) that under the latter, depending on when appearance was entered’ a Respondent may not have up to the 21 days provided in the former within which to file a reply to the petition. What is however common to both paragraphs is that after the expiration of the periods days set out therein for the filing of a reply, a Respondent would be deemed not to have any reply to the petition. The last paragraph germane to the appeal is paragraph 16(1) which provides for a 5 days time limit within which a Petitioner who receives a Respondent’s reply, to file the petitioners’ reply, if any. The paragraph is meant for situations in which paragraphs 10(2) and/or 12(1) were complied with and a Respondent’s reply was duly filed and served. What is to be noted here is that everywhere a Respondent’s reply was filed within the time provided in paragraphs 10(2) and 12(1), until it was served on and received by the Petitioners, the 5 clays would not start to run for the filing of the Petitioners’ reply. Time can and would only start to run from the date of receipt of the Respondents’ reply by the Petitioner as clearly stated in the paragraph.
From the above provisions of all the paragraphs, which appear to be mandatory by the constant, consistent and persistent use of the word “shall” in all of them; pleadings would come to an end and deem closed after 5 days of the receipt of the Respondents’ reply by the Petitioner whether or not the Petitioner’s reply was filed. Being mandatory, the paragraph do not contemplate any non-compliance or breach of their provisions and unless otherwise ordered by the lower Tribunal the consequences of such non-compliance or breach thereof may be serious and fatal to the case of the party in breach. Looking at the records of appeal and the submissions of counsel the following are not disputed in the appeal:-
(1) That the Appellant’s petition was filed on the 22nd May, 2007
(2) That the 1st and 2nd Respondents were served with the petition on the 9th of June, 2007
(3) That the 3rd – 1693r Respondents were served with the petition on 18th of June, 2007.
(4) That the 1st and 2nd Respondents filed a memorandum of appearance on the 13th of June, 2007.
(5) That the 3rd – 1693rd Respondents entered a conditional appearance on 10th of August, 2007.
(6) That the 1st and 2nd Respondents’ reply to the petition was filed on 28th of June, 2007,
(7) That the 3rd – 1693rd Respondents’ reply to the petition was filed on 11th of August, 2007.
(8) That the replies of the two sets of Respondents to the petition in (4) & (5) above were served on the Appellant on the 14th of August, 2007
(9) That the Appellant had filed an application for pre-hearing notice on the 1st of August, 2007.
Going by the provisions of the paragraphs set out earlier and the above settled facts, it is clear that:-
(a) That the appearance entered by 7th & 2nd Respondents was within the time provided under paragraph 9(1) (a) & (b) and so the 14 days for the filing of their reply to the petition as provided in paragraph 12 (1) stated to run from the 13th of June, 2007 when they entered appearance.
(b)That the 14 days within which the 1st & 2nd Respondents were filing their reply to the petition from the 14th of June, 2007, ended and elapsed on the 27th June, 2007 (both dates inclusive).
(c) That the reply filed by the 1st & 2nd Respondents on the 28th of June, 2007 was outside the time allowed by paragraph 12(1).
(d) The 3rd – 1693rd Respondents who were served with the petition on the 18th of June, 2007 were required by paragraph 10(2) to have filed their reply to the petition within 21 days from that day since they did not enter an appearance as required by paragraph 9(1) (a) & (b) 21 days from the 18th of June, 2007 ended or elapsed on the 9th of July, 2007.
(e) The entry of appearance on the 10th of August, 2007 and the reply filed by the 3rd – 1693rd Respondents on 11th August, 2007 were all outside the time provided for so doing in the relevant paragraphs.
From the state of the facts about which there is no dispute and by the provisions of the paragraphs, pleadings were supposed to and were deemed closed on the 9th of July, 2007 when the time for filing the last reply to the petition expired. That was the reasoning and finding of the lower Tribunal when in its ruling at page 540 of the record of appeal it said:-
We have in a number of decisions interpreted paragraph 3 of the Practice directions, 2007 to mean that time for filing of an application for issuance of a pre-hearing session must be reckoned based on the times provided in the Electoral Act and the 1st Schedule thereto for filing processes, and not when actual filing of the process took place.”
However in its computation of when the Appellant was supposed to have made the application for the issuance of a pre-hearing notice, the lower Tribunal used the time the 1st and 2nd Respondents were supposed to have filed their reply to the petition having entered an appearance, as seen earlier on the 13th of June, 2007. This is what the Tribunal said at p.541 of the record of appeal:
“Petitioner is therefore expected to apply for the issuance of a pre-hearing session within 7 days of 27th June, 2007 whether or not the 1st and 2nd Respondents filed a reply”.
That position is clearly an error on the part of the Tribunal since the 1st and 2nd Respondents were not the only Respondents to the Appellant’s petition and they were not served with the petition on the same date/day with the other sets of Respondents to the petition. At least from the record set above, the 3rd – 1693rd Respondents were served with the Appellant’s petition on the 18th of June, 2007 when the time within which they were required to have entered an appearance or filed their reply to the petition started to run.
Consequently, as pointed out before now, the 3rd – 1693rd Respondents had 21 days from the 18th of June, 2007 within which to have filed their reply since they did not enter an appearance. That period ended or expired by the 9th of July, 2007. So contrary to the finding of the lower Tribunal, the Appellant was expected to have applied for the issuance of a pre-hearing notice within 7 days of 9th July, 2007 whether or not the 3rd – 1693rd Respondents filed their reply to the petition. The 7 days expired on the 16th of July, 2007.
I am unable to find any record to show that the Appellant did apply before or by the 16th of July, 2007 for the issuance of pre-hearing notice as required by paragraph 3(1). Admittedly, the appellant filed such an application on the 1st of August, 2007, 15 days after the expiration of the time permitted by the paragraph. Let me at this stage say that I agree with the lower Tribunal that in the computation of time for the filing of pleadings or other processes in election petitions, it is the time stipulated or set out in the 1st Schedule to the Electoral Act that should be applied or used and not when such processes were actually filed by the parties. This is because it is the paragraphs of the 1st Schedule that provided for the filing of such pleadings and imposed time limits for so doing. The paragraph did not leave the filing of the pleadings to the whims of the parties and so the actual filing does not count in the computation of when time started to run for the purpose of determining the time limit provided therein.
In the present appeal, as was demonstrated, not comply with the provisions of paragraph 3(1) since he did not apply for the issuance of a pre-hearing notice within 7 days of 9th July, 2007. Learned counsel for the appellant however argued that the lower Tribunal had already fixed the petition for the pre-trial session suo motu and without complaint from the parties. The record of appeal does not bear that submission because I have not seen any record of the proceedings where the lower Tribunal fixed the Appellant’s petition for pre-trial conference or hearing. From the record, all that happened on the 15th of August, 2007 was a continuation of proceedings at which motions filed by the parties were considered by the lower Tribunal. It was on that day that the Tribunal invited learned counsel to address it on the application of paragraph 3(1) in view of the fact that the Appellant’s application for the issuance of a pie-hearing notice was filed on 1st August, 2008. The lower Tribunal did not fix the petition of the Appellant for pre-hearing session on the 15th of August, 2007 as claimed by the learned counsel for the Appellant in his brief of argument.
Perhaps I should emphasize here that the provisions provided in the paragraphs of the 1st Schedule to the Electoral Act in respect of election petitions are not made for fun but are made to be and must be obeyed by the parties. There would be no order in the procedure for election petitions where the provisions are not obeyed or completed with by the parties or where the parties are free to indolently disregard them by filing processes when they like outside the time prescribed and limited by the provisions. The reason is that being different and special kind of disputes that require expeditious disposal or determination, election petitions were excised from the usual or normal rules of procedure and practice applicable to other civil disputes. Specific rules of procedure and practices couched in mandatory and imperative terms were provided for application in the determination of such disputes arising particularly from elections to which time is of the very essence. The provisions of the rules by their tenor do to admit or contemplate non-compliance by the parties especially as regards to time limits presented for the taking of any step in the presentation, and prosecution of election petitions.
The sincere intention of the rules is that they be strictly complied with and applied in the determination of election petitions otherwise their very “raison d’etre” or primary objective would be compromised and eventually frustrated or defeated. I am of the firm view that to equate the rules with the ordinary rules of procedure in other usual civil matters in a wholesale manner in whatever guise would be to import what is manifestly outside their purview.
The rules have adequately provided sufficient time and opportunity to all serious and diligent parties in an election petition based on the need for such matters to be determined promptly and not be allowed to be dragged by the usual clogs in other civil matters. Accordingly “the interest of justice” “justice of the case”, “hearing on the merits” et cetr:ra, have been taken into account and included in the provisions of the rules and so should not be clung to by any unserious and indolent party to justify non-compliance with or breach of the rules to side track the provisions of the paragraphs in the name of the rather sentimental use of the phrase above to permit parties to conduct the petitions as they like would do real violence to the intention of the provisions and result in the unnecessary and irksome delays that characterize the usual civil matters. The express provisions of the Electoral Act and the 1st Schedule thereto on the need for the expeditious disposal of election petitions would unjustifiably be defeated by such an approach and attitude.
Underscoring the distinct nature of election petitions and the rules of procedure provided therefore by the Electoral Laws UWAIFO JSC in the case of BUHARI V. YUSUF (2003) 14 NWLR (84) 446 @ 498 proficiently stated thus:-
The jurisdiction of an Election Tribunal to deal with election petitions is of a very special nature different from that in ordinary civil cases. See OMTIRI V. BENSON (1960) SCNLR 314 @ 317, it is plain that the proceedings are special for which special provisions are made under the Constitution: See OYEKAN V. AKINJIDE (1965) NMLR 381 @ 383, a decision of this court. Election petition are distinct from ordinary civil proceedings” See OBIH V. MBAKWE (supra) @ p.200 per BELLO JSC; at p.211 per ESO and ANIAGOLU JJSC. It is such that in certain circumstances the lightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the Petition.”
I have demonstrated earlier that the Appellant did not comply with the provisions of paragraph 3(1) and did not offer any plausible and acceptable reason for that non-compliance. Rather the state of the facts show that the Appellant after filing the petition was not vigilant and so forgot about the requirements of the paragraphs in respect of filing of pleadings and the application for the issuance of a pre-hearing notice. Well, he can only blame himself for failure to meet the requirements of the paragraphs to enable the petition be heard on the merits.
That default to apply for the issuance of the pre-hearing notice as required and stipulated in the paragraph is fatal to the petition of the Appellant as provided under paragraph 3(4), which emphatically says that no application for extension of time to comply with paragraph 3(1) shall be made or entertained.
Consequently, the lower Tribunal was right when it held that for non-compliance with paragraph 3(1), the Appellant was deemed under paragraph 3(4) to have abandoned the petition and to have dismissed same.
In the result, I resolve the sole issue in the appeal against the Appellant and find the appeal lacking in merits. It is dismissed with costs assessed N30,000.00 in favour of the two sets of Respondents.
Other Citations: (2008)LCN/2717(CA)
