Adegbuyi S. Olufemi V. Independent National Electoral Commission & Ors (2008)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A.
This is an appeal against the Ruling of the Governorship and Legislative Houses Election Tribunal, Abeokuta, Ogun State, delivered on 30/07/2007 wherein the Tribunal dismissed the Appellant’s Petition as having been abandoned pursuant to Paragraph 3(4) of the Election Tribunal and Court Practice Direction No.2 of 2007.
The Appellant was the candidate of his political party, ANPP under whose sponsorship he contested as a candidate into the Ogun State House of Assembly representing Ijebu North-East Constituency of the said Assembly. The election was conducted on 14/04/2007 and the 3rd Respondent, Olugbenga, Edwards A. was the candidate of the 15th Respondent Peoples Democratic Party and was declared the winner by the 1st, 2nd, 4th – 14th Respondents.
Being dissatisfied with the conduct and declaration of the result of the election, Appellant filed his Petition dated 11/05/07 before the Tribunal seeking that he be returned as the winner of the election, or in the alternative, seeking the nullification of the election for reasons of substantial non-compliance with the provisions of the Electoral Act, 2006.
During proceedings in the matter, the Petitioner/Appellant had realized that the period for application for issuance of Pre-Hearing Notice Forms had elapsed, and he therefore filed on 14th July, 2007, an application for enlargement of time within which to apply for issuance of the Pre-Hearing Forms pursuant to Paragraph 3(1) of the Practice Direction No.2 of 2007.
The 1st, 2nd, 4th – 14th Respondents filed on 20/07/2007, a Preliminary Objection to the Appellant’s Motion by which they had prayed the Tribunal to declare the Appellant’s application as an abuse of the Court’s processes on the ground that Appellant’s Petition was already abandoned. In the same manner, 3rd and 15th Respondents also filed on 23/07/2007, a similar Notice of Preliminary Objection to the Appellant’s motion filed on 14/07/2007. When the Tribunal was hearing the Appellant’s motion for extension of time along with the Preliminary Objection of the 1st, 2nd, 4th – 14th Respondents, learned Counsel for the Appellant conceded to the dismissal of the application dated 14/07/2007 but not his Petition, as he contended that the relief sought an equitable relief. The parties’ applications were adjourned to a date for Ruling. On 30/07/2007, the Tribunal in a well considered Ruling, dismissed the Appellant’s application along with the Petition. The above Ruling is contained at Pages 162-164 of the Record. Dissatisfied with the Ruling, hence this Appeal dated 17/08/07 but filed on 20/8/2007 on 3 Grounds of Appeal from which he has formulated single issue for determination and it reads as follows:
“Whether in the circumstances the Election Petition Tribunal was right to have discountenanced the Applicant’s motion for extension of time within which to comply with Paragraph 3(1) 0f the Practice Directions and to have dismissed the Petition as abandoned pursuant to Paragraph 3(4) of the said Practice Directions.” (Grounds 1, 2 & 3).
The two sets of Respondents have raised similar issue for determination and there is no need to reproduce them. During hearing of this Appeal, learned Counsel on both sides adopted and relied on their respective Briefs duly filed.
The argument of the learned Counsel for the Appellant is in connection with Sections 151 of the Electoral Act, 2006 where it is stated that:-
“151. The rules of procedure to be adopted for election petitions and appeals arising therefrom shall be those set out in the First Schedule to this Act.”
Appellant then set out in extensio, the provisions of paragraphs 43 and 50 of the 1st Schedule Electoral Act, or Rules of Procedure as well as the provisions in Order 23 Rules 3(1) and (2) of the Federal High Court (Civil Procedure) Rules 2007. Learned Counsel also reproduced in extensio, the provisions of Paragraph 3(1) – (5) of the Election Tribunal and Court Practice Directions 2007 and submitted that the only rules of procedure which the Tribunal should follow in election petitions should be those set out in the 1st Schedule to the Electoral Act, 2006, otherwise referred to as the Rules of Procedure and relied on the authority of the case of BONI HARUNA VS. MODIBBO (2004) 16 N.W.L.R. (PART 900) 487, and further contended that any other rule of procedure, i.e. outside the 1st Schedule of Electoral Act, 2006 should not be allowed, after all, the other rules of procedure, are mere addendum or adjunct to the aforestated 1st Schedule. Appellant referred to and relied on the case of EGOLUM VS. OBASANJO (l2004) 1 WRN 67; REBAINES (1840) 12A & F 227 and ATTORNEY-GENERAL VS. LAMP LOUGH (1978) 3 EX D 214 AT 229. In his further argument, learned Counsel for the Appellant submitted that the power of the
Tribunal to enlarge time for doing any act or taking any proceedings, under Paragraph 43(1) of the 1st Schedule extends to the time fixed or allowed by Paragraphs 3(1), (4) and (5) of the Practice Directions 2007. Counsel still submits that the same paragraph 3(1) of the Directions is meant to activate the adjudicatory process of the Tribunal and that the Tribunal wrongly placed too much reliance on technicality and unfairly dismissed the Petition as having been abandoned. In conclusion, Appellant has urged this Court to hold that the tribunal was in error in discountenancing of the Appellant’s application for extension of time to comply with Paragraph 3(1) of the Practice Direction 2007, when the taking of the said application would have saved the Petition and allowed same to be heard on its merit; and that it was also in error in holding that the provisions of the 1st Schedule to Electoral Act, 2006 and the Federal High Court (Civil Procedure) Rules could not operate to save the Petition in light of Paragraphs 3(1) – (4) of the Practice Directions 2007. Appellant urged this Court to allow the Appeal and remit it back to the Tribunal to hear the Petition on merit.
In response, learned Counsel for 1st, 2nd, 4th – 14th Respondents now simply to be referred to as 1st set of Respondents, have argued that the Appellant’s sole Issue for determination should be discountenanced and dismiss the Appeal because, the three Grounds of Appeal from which he distilled the sole Issue have no bearing on the decision of the Tribunal. The 1st set of Respondents have argued that none of the three Grounds of Appeal relied on by the Appellant ever complained against the Tribunal’s decision in dismissing his Motion for extension of time within which he was to comply with Paragraphs 3(4) of the Practice Direction which was delivered on 14/07/2007, and that rather the Appellant in this Appeal per his sole Issue, complained only against the dismissal of his Petition. Counsel referred to the cases of: IWEKA VS.SCOA (NIG.) LTD. (2000) 7 N.W.L.R. (PT. 664) RATIO 19; BRAWAL SHIPPING LTD. VS. ONWADIKE COMPANY LTD. (2000) 11 N.W.L.R. (PT. 678) 387; AFRICA PETROLEUM LTD. VS. OWODUNNI (1991) 8 N.W.L.R. (PT. 210) 391.
The 1st set of Respondents urged that, in case we disagree with their assertion that, any Issue in an Appeal, which does not relate to or is not, based on any ground of appeal, should be discountenanced, the Appellant’s allegation that the Tribunal discountenanced his application for extension of time is contrary to facts on Record at PAGES 115 E AND 139. Still in support of their assertion, the 1st set of Respondents have contended that, the fate of the Appellant’s application for extension of time, was determined in two instances by the Tribunal. That the first instance was by the Appellant when he conceded through his Counsel to the dismissal of his application. Counsel referred to PAGE 115 E of the Record which says:-
“……………………… Mr. Ogunmodede I wish to concede to the objection for my application of 14/7/07 as presented. I do not concede to the dismissal of the Petition……………………”
Counsel further contended that the second instance was by the Tribunal in the Ruling on 30/7/2007 in Paragraph 2 of Page 139 of the Record where it is stated thus:-
“……….since the Petitioner has conceded to its dismissal it will serve no useful purpose over flogging the issue.
Having this determined, we hereby dismiss the Motion of the Petitioner dated and filed on the 14/7/07 in which he sought for the Order of this Tribunal on enlargement of time for him to file and serve the pre-hearing information sheet,”
Learned Counsel for 1st set of Respondents has further argued that the Appellant had no more any application for extension of time pending before the Tribunal to save his Petition because, he had graciously conceded to the dismissal of his application and as such, he has no right to seek through the back door by stating misleading facts.
On the issue that Appellant has no more a pending application, the 1st set of Respondent has concluded that, Appellant’s argument in Paragraphs 4 to Paragraphs 4.12, is a mere academic exercise, which is not related to the facts in this Appeal and therefore has urged this Court to discountenance Appellant’s Brief. Counsel has urged this Court to hold that the Tribunal was right in dismissing the Appellant’s petition pursuant to Paragraph 3(4) of the Practice Direction of the Election Tribunal, 2007. To support their position, 1st set of Respondents have referred to Paragraphs 3(1), (2), (3), (4) and (5) of the Practice Direction. On the part of the 3rd and 15th Respondents, now to be called 2nd set of Respondents, their Brief of Argument filed on 26/02/2008 but deemed filed on 6/10/2008, has clearly argued in similar manner the 1st set of Respondents had argued. They have contended that the Appellant at the Tribunal, failed to apply for the issuance of the Pre-hearing Notice, and therefore filed on 14/7/2007, a Motion for enlargement of time to file Pre-hearing Information sheet. That on 23/7/07, the 2nd set of Respondents, filed a Notice of Preliminary Objection to the Appellant’s motion and that during proceedings to hear the Appellant’s motions and the Respondents’ preliminary Objections, learned Counsel for the Appellant conceded to the Preliminary Objections and his motion dated and filed on 14/7/2007 was struck out and dismissed. Learned Counsel for the 2nd set of Respondents has urged this Court to dismiss the Appeal. Since the two sets of Respondents have similarly argued in material particular with issue of whether or not the Appellant’s Petition was rightly dismissed for failure to comply with Paragraphs 3(4) of the Practice Directions. I deem it unnecessary to state the similar arguments of the 2nd set of Respondents as contained in Paragraphs 4.1 to Paragraphs 4.24.
In determining the Appeal, the sole Issue formulated by the Appellant, has two edges as ably argued by the two sets of Respondents. The first edge is whether the Tribunal really discountenanced the Appellant’s Motion for extension of time to file Notice of pre-hearing Notice in accordance with Paragraph 3(4)(c) of the Practice Direction. The second edge is whether the Tribunal was right in dismissing the Petition as abandoned pursuant to same Paragraph 3(4) of the Practice Direction.
There is a simple adage that “records do not lie.” In Appeal matters, the Parties and the Appellate Court are bound by Certified True Record of the Appeal. In the instant Appeal, at Pages 87, 141, 142 and 163 of the Record are hereby reproduced as follows:-
“Page 87:
BETWEEN: PETITION NO. EPT/OG/HA/22/07
ADEGBUYI SAMUEL OLUFEMI PETITIONER/APPLICANT
AND
INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC) & 14 ORS. RESPONDENTS/RESPONDENTS
MOTION ON NOTICE BROUGHT PURSUANT TO SECTION 36(1) OF THE CONSTITUTION; ORDER 23 RULE 3(1) AND (2) OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE RULES. 2000; SECTIONS 43(1), (2) (3), (4), (5), 49(1) AND 50 OF FIRST SCHEDULE; RULES OF PROCEDURE FOR ELECTION PETITIONS 2006 SECTION 151 OF THE ELECTORAL ACT. 2006 AND UNDER THE INHERENT JURISDICTION OF THE HONOURABLE TRIBUNAL
TAKE NOTICE that this Honourable Tribunal will be moved on ….. the ………day of………2007 at the hour of Nine (9) O’Clock in the forenoon or so soon thereafter as Counsel on behalf of the Petitioner/Applicant can be heard for an Order of this Honourable Tribunal enlarging time within which to file the Pre-Hearing information sheet and to deem the Pre-Hearing information sheet already filed and served as properly filed and served and for such further Order or other Orders as this Honourable Tribunal may deem fit to make in the circumstances.
Dated at Abeokuta this 14th day of July, 2007.
(SGD.)
BENJAMIN OLUDARE OGUNMODEDE ESQR.,
B. OGUNMODEDE & CO.,
PETITIONER’S/APPLICANT’S SOLICITORS,
22 AKE ROAD, 2ND FLOOR, IJEMO
ABEOKUTA, OGUN STATE.”
“Page 141:
Mr. Ogunmodede:- This petition is on all forms with Petition No. EPT/OG/HA/8/07. I suggest that we adjourn to the 30/7/07 to await the Ruling in the above mentioned Petition.
Mr.Ogoh:- I object to the suggestion of my learned Counsel unless Court agrees that a Ruling on EPT/OG/HA/8/2007 must be
a Ruling on this Petition.
Chief Otayemi:- I agree that this Petition is similar to that of EPT/OG/HA/8/2007. However, there is no order for consolidation and these Petitions cannot be consolidated. I urge that the Petitioner’s Counsel can allow us to adopt all processes filed and submissions in that Petition to be applicable to the present Petition as that a ruling in EPT/OG/HA/8/2007 will be binding in this Petition also.
Mr. Ogunmodede:- 1concede to the suggestions made by Counsel for the Respondents.”
“Page 142:
Mr. Ogoh:- I hereby adopt my Preliminary Objection and written address filed on the 20/7/07 including my submission in Court today. I urge that the Objection be granted as prayed.
Chief Otayemi:- I adopt my Petitions and arguments as transpired in the Tribunal this morning in Petition No. EPT/OG/HA/8/2007.
Mr.Ogunmodede:- I adopt my submissions on point of law In EPT/OG/HA/8/2007 including all authorities cited therein. TRIBUNAL: Petition is adjourned to the 30/7/2007 for Ruling (R).
(Sgd.)
Hon. Justice H. M. Tsammani
Chairman
15/7/2007.”
“PAGE 163: RULING
At the hearing, Mr. B.O. Ogunmodede of Learned Counsel for the Petitioner informed this Tribunal that the issues in this Petition are on all four with that in petition No. EPT/OG/HA/8/07. He then suggested that his application in respect to this Petition which is also seeking for an enlargement of time within which to file and serve the pre-hearing information sheet be adjourned so as to await Ruling in Petition No. EPT/OG/HA/8/2007. ”
Mr. S. O. Ogoh of Learned Counsel for the 1st, 2nd, 4th to 14th Respondents opposed this suggestion of Mr. Ogunmodede of Counsel for the Petitioner, except if the Petitioner’s Counsel would agree that a Ruling in EPT/OG/HA/8/2007 will be a Ruling in this Petition.
Chief O. Otayemi of Learned Counsel for the 3rd and 15th Respondents agreed that the issues now under consideration are similar to that in Petition No. EPT/OG/HA/8/2007. He suggested that the Petitioner’s Counsel should allow them to adopt the processes filed and submissions in support thereof in Petition No. EPT/OG/HA/8/2007 to be applicable to the present Petition so that, a Ruling in EPT/OG/HA/8/2007 will be binding in this Petition.. Mr. Ogunmodede of Learned Counsel for the Petitioner conceded to these suggestions by Counsel for the Respondents. Consequently, Mr. Ogoh and Chief Otayemi of Learned Counsel for the Respondents adopted their respective Briefs of Arguments in support of their position in Petition No. EPT/OG/HA/8/2007, Mr. Ogunmodede also adopted his submissions on points of law in Petition No. EPT/OG/HA/8/2007 including all the authorities cited therein.
Mr. Ogunmodede having conceded to the dismissal of his Motion of 14/7/07 in which he asked for enlargement of time, there is nothing more this Tribunal can do rather than to accede to his wish. Accordingly, the Petitioner’s Motion on Notice seeking for enlargement of time within which to file and serve the Pre-Hearing information sheet is hereby dismissed,” Now, the above quoted record of proceeding has clearly stated that the two sets of Respondents had filed on 20th July, 2007 and 23rd July, of 2007 respectively their Notices of Preliminary Objection to the Appellant’s Motion dated and filed on 14th July, 2007. It is further clear on the passages quoted above that, on 25th July, 2007 when the Appellant’s Motion was set for hearing, Appellant’s Counsel unequivocally, conceded to the adoption of the events and procedure in a similar Petition No. EPT/OG/HA/8/07 which was on all fours with the instant Petition in which also, same sets of Counsel were appearing. It is also clear that Mr. Ogunmodede, Learned Counsel for the Appellant had admitted as follows:-
“I wish to concede to the objection for my application of 14/7/2007 as presented. I do not concede to the dismissal of the Petition.”
I am of the view that by the unambiguous concession of his Motion on Notice for extension of time, the Appellant had, as forcefully submitted by the two sets of Respondents, graciously and unequivocally conceded to the dismissal of his Petition in totality, because at that stage, the Appellant had no other pending application for extension of time to regularize or save his Petition. The facts in this Appeal Matter, is the more clearer that the Appellant failed to comply with Paragraph 3(1) of the Practice Direction, because, he was earlier served on 19/6/2007 with the filed Copies of the entire Respondents’ Reply, but Appellant made lately on 14/07/2007, an extension of time the cases of BUHARI VS. YUSUF (2003) ALL FWLR (PT. 174) 329, 355 that Election Petitions are distinct from the ordinary civil proceedings. In another Supreme Court’s decision in OBIH VS. MBAKWE (1984) 1 SC NLR 192, has also stated that in Election Matters, the slightest default in complying with procedural step which otherwise could either be cured in ordinary Civil Proceeding, could result in fatal consequences to the Petition. It is still further to be noted that in Election Petition, the Apex Court per EDOZIE, J.S.C. (RTD.) in BUHARI VS. OBASANJO (2003) 16 NSCQR 1 AT 44 has powerfully stated that a party who woefully failed or neglected to present his case by withdrawing or abandoned his case cannot lawfully complain of denial of fair hearing.
In the instant Appeal, Appellant on his own will, though based on Preliminary Objection on his Motion filed on 14/7/2007, withdrew his Motion, which was therefore struck out and hence dismissed the Petitioner’s Petition.
There is no doubt, that, the concession made by the Appellant in respect of his Motion for extension of time had matured into the Provisions of Paragraphs 3(4) and (5) of the Practice Direction No.2 of 2007, where it is provided thus:-
“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 and no application for extension of time to take steps shall be filed or entertained” (Underlined is for emphasis).
“3(5) Dismissal of a Petition pursuant to sub-paragraphs (3) and (4) above is final, and accordingly the Tribunal shall be functus officio”: (Underlined is emphasis).
The words “shall”, stated in Paragraphs 3(1), (2), (3), (4) and (5) are mandatory and directive to the tribunal and the Appellate Court as well as Parties. Time is of the essence in complying with Electoral Act, 2006 and Paragraphs 3 (1) – (5) of the Practice Direction and therefore when any such time to comply has expired, the defect to be regularized cannot be allowed. That is its finality. See the decision of this Court in EMEKA VS. EMODI (2004) 16 NWLR (PT. 900) 433, 450.
It is instructive to relate Appellant’s case to the authoritative and solid decision of the Supreme Court in the case of OKEREKE VS. YARADUA (2008) ALL FWLR (PT. 4301 626 AT 646 Paragraphs B – D where it is stated that the proper Order Election Tribunal should make where a Petitioner or Respondent fails to apply for Pre-hearing session and effect of such failure on jurisdictional powers of the Tribunal under Paragraph 3 of the Practice Direction, is that, it is mandatory that where neither the Petitioner nor the Respondent files an application for a Pre-hearing session, the Tribunal or Court is under a duty to dismiss the Petition as abandoned and no application for extension of time to take that step shall be filed or entertained. Such steps are a condition precedent to the hearing of any matter in relation to the Petition pending before the Tribunal or Court. Non-compliance thereof will strip off the Tribunal or Court of jurisdiction as one of the factors which confer jurisdiction on a Court of law is not complied with.
In the instant Appeal, Appellant was four weeks late in non-compliance with Paragraphs 3(1) – (5) of the Practice Direction, the purported Appellant’s application for extension of time to apply for pre-hearing was withdrawn by conceding to the Preliminary Objection. Infact, there was no way for the tribunal to have acceded to the application. By Paragraph 3(5) of the Practice direction, no application for extension of time to take that step shall be filed, let alone to entertain.
In the final analysis, I find no merit in the appeal and I hereby dismiss same. I affirm the decision of the Tribunal dismissing Appellant’s Petition as abandoned in pursuant with Paragraph 3 (5) of Practice Direction NO.2 of 2007.
Costs of N15,000 to each of the two sets of Respondents.
Other Citations: (2008)LCN/2973(CA)
