Callistus Udochukwu Azudibia V. Independent National Electoral Commission (INEC) & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
This is an appeal against the Ruling of the Governorship and Legislative Houses Election Petition, Imo State of Nigeria holden at Owerri, delivered on 17th day of September, 2007. The lower Tribunal dismissed the petitioner’s (now the Appellant) petition for failure on his part to apply for the issuance of pre-hearing notice in accordance with the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions 2007. The Tribunal held as follows
“The petitioner in this case brought his application on 24/7/2007, exactly 9 days before the 3rd Respondent’s reply was served on him. The application for substituted service was made by the Petitioner, so he ought to have known that the 3rd Respondent was still within time to file her reply by the time he made the application for pre-hearing notice. We are therefore constrained to hold that the application made by the petitioner on 24/7/01 for a pre-hearing notice is incompetent, and it is hereby struck out. There being no other application for a pre-hearing notice duly made within 7 days after the filing and service of the reply of the 3rd Respondent on the Petitioner, before the Tribunal the provisions of paragraph 3(1) of the Practice Directions must be invoked to dismiss the petition.”
Dissatisfied with this Ruling, Appellant filed his Notice of Appeal containing 5 grounds with their particulars. I do not deem it necessary to reproduce the grounds and their particulars before the determination of this appeal. However, the following two issues were formulated for determination of this appeal, as gleaned from paragraphs 3(1) and (2) of the Appellant’s brief of argument filed on 51/12/2007 by his counsel:
“1. Whether the Tribunal below was right in dismissing the Appellant’s petition pursuant to the provisions of the Election Tribunals and Courts Practice Directions, 2007 having regard to the facts and circumstances of this case.
- Whether dismissing the Appellant’s petition without trial did not constitute an infringement of Appellant’s right to fair hearing.”
On behalf of the 1st, 2nd and 4th Respondents’ their learned counsel, OLACHI NWAUGO Esq., formulated or raised no separate issues for determination of the appeal in their brief of argument dated and filed on 31/1/2008. They simply adopted the two issues distilled for determination by the Appellant. Similarly, the 3rd Respondent as well adopted the said two issues formulated by the Appellant in his brief of argument dated and filed on 23/1/2008.
On the 7th day of April 2008 this appeal came up for hearing. Learned counsel for the Appellant, L.M. ALOZIE Esq., adopted the Appellant’s brief of argument, without further amplification on the issues. He however referred us to unreported decision of this Court delivered on 28/2/2008 in Appeal No. CA/PH/EPT/350/2007 and urged us to allow the appeal. Arguing the first issue from the Appellant’s brief of argument, learned counsel conceded that from the provisions of paragraph 3(1) of the Practice Directions 2007, the time allowed the petitioner to apply for a pre-hearing session is within 7 days of his filing and service of his reply to the Respondent’s reply to his petition, or 7 days after service on him of the Respondents’ reply to the Petition, whichever is the case. It is submitted that there are two circumstances when the Tribunal may dismiss a petition to wit: Firstly where a Respondent brings a motion for the dismissal of the petition for non-compliance with paragraph 3(1) of the Practice Directions. Secondly, where from the circumstances the Tribunal can draw an inference that the petition has been abandoned. It is contended that the Tribunal cannot come to the conclusion that the petition has been abandoned in the absence of laxity on the part of the Petitioner in the prosecution of the petition. In this case, the learned counsel has argued that the Appellant has shown diligence in prosecuting his appeal and he cannot be said to have abandoned his petition. It is argued that where a party is out of time in taking any steps required of him the prosecution of his case, an extension of time can always be granted him, especially in cases of this nature where lapse of time is not inordinate. That paragraph 43(1), (2), (3), (4), (6) and (7) of the first schedule to the Electoral Act, 2006 make provisions for enlargement of time for doing any act or taking any step in the proceedings as the justice of the case may require, except otherwise provided by any other provisions of the Schedule. It is submitted that there is no other provision of the 1st Schedule to the Electoral Act that makes the provision contrary to that contained in paragraph 43. That by virtue of paragraph 50 of the First Schedule to the “Electoral Act, the Practice and procedure of the Tribunal in relation to an election shall be nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of the Act, as if the petitioner and respondent were respectively the plaintiff and the Defendant in an ordinary action. It is submitted that the provisions of paragraph 3 of Practice Directions are similar to the provisions of Order 38 Rules 1, 2, 3, 4, 5 and 6 of the Federal High Court (Civil Procedure) Rules 2000. That there is no reported case of a suit being dismissed for default of a plaintiff in making an application,
It is submitted that the Practice Directions is a subsidiary legislation, a mere rule designed to ensure expeditious, fair and just determination of cases before the Tribunals, its provisions cannot therefore override the provisions of Section 151 of the Electoral Act or paragraphs 43 and 50 of the First schedule to the Electoral Act. Reliance was placed on the cases of BUHARI v. YUSUF (2003) 14 NWLR (PT.841) 446 @ 545 C-D; HARUNA v. MODIBBO (2004) 16 NWLR (PT.900) 487; SOLANKE v. SOMEFUN (1974) ALL NLR (PT. 1) 141; and UNIVERSITY OF LAGOS v. AIGORO (1985) 1 NWLR (PT.1) 143. It is further submitted that paragraphs 3(4)and 3(5) of the Practice Directions are in conflict and inconsistent with paragraphs 43, 49(1) and 50 of the 1st Schedule to the Electoral Act and order 23(3) and also order 38(1), (2), (3), (4) and (5) of the Federal High Court (Civil Procedure) Rules 2000 and section 36 of the 1999 Constitution of the Federal Republic of Nigeria. It is urged on us to declare paragraphs 3(4) and 3(5) of the Practice Directions null and void and of no effect.
It is contended that the records show that the 3rd Respondent was served with the petition on 26/5/2007. She only filed her Reply thereto on 27/7/2007, out of 21 days allowed under the 1st Schedule to the Electoral Act 2006. That the other Respondents never filed anything at all. It is therefore submitted that the Appellant was right in applying for a notice of pre-trial session when he did. It is argued that assuming that the 3rd Respondent was served with the petition on 7/7/2007, the filing of an application for pretrial session prematurely cannot be fatal to a petition that is against the 3rd Respondent only. It is equally submitted that by failing to apply by way of a motion for the dismissal of the petition, the irregularity, if any, has been waived by the Respondents especially the 3rd Respondent. That under section 14(b) of the Interpretation Act, Laws of the Federation of Nigeria 1990, in an enactment, words in singular include the plural and words in plural include the singular. It is therefore submitted that the words “Respondent’s Reply” in paragraph 3(1) of the Election Tribunal and Court Practice Directions 2007 means “Respondents’ Replies.” That the paragraph 3(4) cannot be invoked unless and until all the Respondents have served their replies on the Petitioner and he fails, after 7 days to apply for a pre-trial conference.
It is finally submitted that Practice Directions is in the nature of Rules of Court. In a Rule of Court the word “shall” may be given directory or peremptory connotation. Learned counsel relied on KATTO V.CBN (1991) 9 NWLR (PT.214) 126.
On issue No. 2 learned counsel for the Appellant submitted that tire right to bring his petition before the lower Tribunal is guaranteed under section 285(2) of the 1999 Constitution. That a breach of fair hearing in a trial or adjudication vitiates the proceeding and renders same null and void and of no effect. Any judgment or decision given without due compliance with and in breach of the fundamental right to fair hearing is a nullity and must be set aside. He relied on ZABOLEY INT. LTD v. OMOGBEHIM (2005) 17 NWLR (PT.953) 200 and WAPPAH v. MOURAH (2006) 18 NWLR (PT. 1010) 18 and MAINS VENTURES LTD v. PETSOPLAST IND. LTD (2000) 4 NWLR (Pt.651) 151 @ 164. It is contended that the interpretation and application of paragraph 3(4) of the Election Tribunal and court Practice Directions 2007 was made in such a manner that it infringed on the Appellant’s right to fair hearing and it occasioned a miscarriage of justice.
It is finally submitted that having regard to the facts and circumstances of the dismissal of the Appellant’s petition his fundamental rights was grossly breached and violated. Reliance was placed on the case of MIRCHANDANI v. PINHEIRO (2001) 3 NWLR (PT. 701) 557 @ 573. It is urged that issue No. 2 be resolved in favour of the Appellant
On the 1st issue learned counsel for the 1st, 2nd and 4th Respondents responding on their behalf submitted that the application for the issuance of Form TF 007 filed by the petitioner on 24/7/2007 is not the type contemplated by the provisions of paragraph 3 of Election Tribunal and court Practice Directions, 2007 and is therefore incompetent. That the paragraph provided for the application to be filed by either the petitioner or the Respondent after the close of the pleadings by the parties who are within the time stipulated. Learned counsel does not see any inconsistency of paragraph 3(1) with the provisions of paragraphs 10 and 16 of the 1st schedule to the Electoral Act, 2006 which contain explicit scheduling for filing of Reply to a petition and the Petitioner’s Reply. It is explained that a Respondent required to file his Reply in any event, within 21 days after the service of the petition. The Petitioner is required to, within 5 days, after the receipt of the Respondent’s Reply file a petitioner’s Reply, where the Respondent’s Reply raises some fresh issues.
It is submitted that it is after the close of pleadings that the application for issuance of Form TF 007 can validly be filed within the provisions of paragraph 3 of the Practice Directions. The attention of the Court is invited to the use of the word “SHALL” in the requirement for the filing of Form TF 007 7 days “AFTER” the close of pleadings. That it has been held that the word “SHALL” used in a statute or rule of court makes it mandatory that the rule must be observed. That it is a word of command and denotes an obligation thereby giving no room for discretion. Reliance was placed on the cases of MOKELU v. FEDERAL COMMISSIONER FOR WORKS AND HOUSING (1979) 3 SC 35; AREYEGUN v. ADEBANJI (1976) 11 SC 33; IFEZUE v. MBADUGHA (1984) 1 SCNLR 427; KATTO v. CENTRAL BANK OF NIGERIA (1991) 9 NWLR (PT. 214) and KALLAMU v. GURIN (2003) 16 NWLR (PT.847) 493 @ 517.
It is submitted that election petition cases are sui generis and failure to adhere to the rules stipulated for the proceedings unlike in ordinary civil proceedings always invariably results in fatal consequences. That this will not only render the process concerned incomplete, but will also deprive the Tribunal the jurisdiction to hear and determine such petition: KALLAMU v. GURIN (supra).
It is finally submitted that the step taken by the petitioner in applying for issuance of Form TF 007 before the close of pleadings by parties who were within time is competent and the Tribunal for that reason lacked the jurisdiction to proceed to the trial of the substantive petition and was right to dismiss the Appellant’s petition therefore.
On issue No. 2, bordering on fair hearing, learned counsel, OLACHI NWANGO (MRS) has in the brief conceded to the principles of law relating to fair hearing as contained in paragraphs 5.01, 5.02, 5.03 and 5.04 of the Appellant’s brief of argument. He however submitted that the dismissal of the petition by the Tribunal without trial based on failure on the part of the Appellant to apply for issuance of the pre-hearing notice in compliance with the provisions of paragraphs 3(1) – 3(5) of Election and practice and Court Directions 2007 does not constitute an infringement of the Appellant’s right to fair hearing. He relied on the case of ORUGBO & ANOR v. UNA & ORS (2002) 16 NWLR (PT. 792) 175 @ 212. It is submitted that issuance of pre-hearing notice was a condition precedent to trial of the petition since the Appellant did not satisfy the condition he cannot be heard to complain that he was not given the opportunity of being heard. Besides, the Tribunal ordered for written addresses from counsel to the parties including the Appellant. That the addresses were duly filed and adopted before the Tribunal gave a considered ruling dismissing the petition. The court is therefore urged to resolve issue No. 2 in the negative.
On issue No. 1 learned counsel for the 3rd Respondent, EMEKA O. NWAGWU Esq, submitted that the Election Petition Tribunal was right in dismissing the Appellant’s Petition for failure to comply with the provision of paragraph 3(1) of the Election and Court Practice Directions. It is submitted that a petitioner has an obligation for the issuance of pre-hearing Notice in Form TF 007 within 7 days, after filing and service of the petitioner’s Reply on the Respondent, or 7 days after the filing and service of the Respondent’s Reply, whichever is the case. It is submitted that the use of the word “SHALL” means that it is mandatory that the petitioner brings the application within the time prescribed. He relied on the cases of OPEOLA v. OPADIRAN (1994) 5 NWLR (PT. 344) 368 @ 381 B-D; OJUKWU v. ONYEADOR (1991) 7 NWLR (PT. 203) 286 @ 317 D – F. That it is a word of command with a compulsory connotation. Failure to bring the application within the prescribed 7 days period, the petitioner will be taken to have abandoned his petition. It is further submitted that there was no application to extend the time to apply for the issuance of pre-hearing notice or to regularize the one filed prematurely. The Tribunal was therefore not competent to hear the petition that was abandoned. He placed reliance on the case of MADUKOLU v. NKEMDILIM (1962) ANLR 581, 589-590.This Court is therefore urged to resolve ISSUE NO. 1 in the affirmative.
On the second issue, learned counsel for the 3rd Respondent submitted that the dismissal of the Appellant’s petition without trial on the ground of his failure to apply for the issuance of the pre-hearing Notice under the Election Tribunal and court Practice Directions, 2007 does not constitute an infringement of the Appellant’s right to fair hearing. That whether a trial or proceeding had been fair or not, depends on the facts and circumstance of each case. He relied on BILL CONST. CO. LTD v. IMANI & SONS LTD (2007) CHR 28 @ 35G. It is submitted that facts and circumstances of this case is such that the Appellant cannot complain that he was not given fair hearing. It is urged that this issue be resolved in the negative and to dismiss the appeal.
I have taken the arguments and submissions of counsel for their respective parties I shall now consider the two issues nominated for the resolution of this appeal. The first issue has to do with the compliance with the provisions of paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007.
That Paragraph stipulates that:
“3(1) Within 7 days after the filing and service of the Petitioner’s Reply on the Respondent, or 7 days after filing and service of the Respondent’s Reply, whichever is the case, the Petitioner shall apply for issuance of pre-hearing Notice as in Form TF 0007.
(2) …………………………………….
(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 the step shall be filed or entertained.” ‘
The application for the issuance of Form TF 007 filed by the Petitioner on 24th July, 2007 is not the type contemplated by the provisions of paragraph 3 reproduced above. The application for the issuance of Form TF 007 is one required to be filed by either the petitioner or the Respondent after the close of pleadings by parties who are within time. Paragraph 3.01 hereof is made consistent with the provisions of paragraphs 10 and 16 of the First Schedule to the Electoral Act 2006, which contains explicit scheduling for the filing of Reply to a petition and the petitioner’s Reply.
A Respondent is required to file his Reply in any event within 21 days after service of the petition. The petitioner is required to, within 5 days after the receipt of the Respondent’s Reply, file a petitioner’s Reply, where the Respondent’s Reply raises some fresh issues. From the foregoing, therefore, it would be seen that in election petition cases pleadings will be deemed closed in either of the following two circumstances, viz:
(a) After the service of the Respondent’s Reply on the petitioner, where the Respondent’s Reply does not raise a fresh issue, or at any event, after expiration of 5 days after the receipt of the Respondent’s Reply by the petitioner who has not filed a petitioner’s Reply.
(b) After the filing of the petitioner’s Reply pursuant to paragraph 16 of the First schedule to the Electoral Act 2006.
It is after the close of pleadings in the foregoing terms that application for the issuance of Form TF 007 can validly be filed within the provision of paragraph 3 of the Practice Directions. The use of the word “SHALL” Is the requirement for the filing of Form TF 007 in this paragraph, 7 days after the close of pleadings makes it mandatory that the rule must be strictly adhered to. It is a word of command and it denotes an obligation thereby giving no room for discretion. See AREYEWUN v. ADEBANJI (supra); IFEZUE v. MBADUGHA (supra); KATTO v. CBN (supra); OPEOLA v. OPADIRAN (1994) 5 NWLR (Pt.344) 368 @ 381 and OJUKWU v. ONYEADOR (supra).
If the petitioner fails to bring the application within the prescribed 7 days period he will be taken to have abandoned the petition.
In the instant case, the 3rd Respondent’s Reply (see pages 70 – 332 of the records) was served on the petitioner and the other Respondents on 3/8/2007. The petitioner did not file any Reply to the 3rd Respondent’s Reply. Consequently, the time the petitioner had to apply for issuance of pre-hearing notice based on the service of the 3rd Respondent’s Reply expired on 10/8/2007. The petitioner did make premature application on 24/7/2007. Failure on the part of the petitioner to apply for the pre-hearing notice as in Form TF 007 within the time prescribed is that the petition has been abandoned pursuant to paragraph 3(4) hereof. Where the rule of Court makes a mandatory provision, it is expected of a litigant to ensure that such a provision is complied with. It cannot be brushed aside even if advertently. Equity aids the vigilant not indolent. See AJEWOLE v. ADEJIMO (1994) 3 NWLR (PT. 335) 739 @ 757, and OJUKWU v. ONYEADOR (supra).
In paragraph 4.02 of the Appellant’s brief, it was argued that the time for making of the application for pre-hearing session only starts to run after the service on the petitioner of the Respondent’s reply to the petition. That unless and until the Replies of the Respondents are served on the petitioner, he cannot be held to be in default of making the application for a pre-hearing session. The provision of paragraph 3 is clear and unambiguous. The time to make application for the issuance of pre-hearing notice by a petitioner is within 7 days of his filing and service of his reply to the Respondent’s Reply to his petition or 7 days after service on him of the Respondent’s Reply to his petition whichever is the case. The “Reply of the Respondent ” envisaged under paragraph 3(1) (supra) is that of the Respondent who is within time and who intends to oppose the election petition., In this case, 1st, 2nd, and 4th Respondents neither filed their Memorandum of Appearance indicating that they intended to oppose the election portion as required by paragraph 9(1) of the First Schedule to the Electoral Act, 2006 nor reply within 21 days from 30/5/2007 when they were served with the petition as provided by paragraph 10(2) of the said Schedules indicating their readiness to defend the petition.
The Appellant was therefore not justified in waiting for the replies of parties who had by their conduct and operation of law not indicated their diligence to oppose or defend the petition consequently, the Appellant will be held to be in default in making the application for a pre-hearing session because he did not bring the application within 7 days after the 3rd day of August 2007 when the reply of the 3rd Respondent (the only Respondent who indicated readiness to oppose or defend the petition) was served on her.
Learned counsel for the Appellant was correct when he submitted that there are two circumstances in which the Tribunal shall exercise its power to dismiss a petition under the Practice Directions.
These are:
(a) where a Respondent brings a motion to dismiss the petition for failure of the petitioner to apply for the issuance of a pre-hearing notice within the prescribed time – See paragraph 3(3) of the Election Tribunal and Court Practice Directions, 2007
(b) where the petitioner and the Respondent fails to bring the application for the issuance of the pre-hearing notice within time and there is no application by the Respondent to dismiss the petition on that ground – See paragraph 3(4) of the Practice Directions, 2007.
In the instant case the petitioner and the 3rd Respondent failed to make the appropriate applications for the issuance of the pre-hearing notice. The 3rd Respondent also failed to bring an application to dismiss the petition for the failure of the petitioner to bring the application for the issuance of pre-hearing notice. The lower Tribunal was therefore right in invoking the provisions of paragraph 3(4) of the Practice Directions to dismiss the petition after hearing the written addresses of counsel to all the parties. On the argument of learned counsel for the appellant on extension of time, it is observed that no attempt was made by the appellant for extension of time to apply for the issuance of the pre-hearing notice was made by any of the parties to the petition; even if at all it was made the lower tribunal was likely to decline jurisdiction to entertain same under sub-paragraph 5 in view of the provision of sub-paragraph 4 of the Practice Directions.
Paragraph 3 of the Directions 2007 is sacrosanct to the extent that it deals with a special procedure in a special matter that is the election petition, which is regarded as sui generis. The proceedings are special for such provisions are made under the constitution. It is such that in certain, circumstances, the slightest default in complying with a procedural step which otherwise either would be cured or waived in ordinary Election Tribunal and Court Practice civil proceedings could result in fatal consequences to the petition. See KALLAMU V. GURIN (2003)16 NWLR (Pt. 847) 493 @ 524 – 525. The Rules of Court are made to be obeyed and complied with. In the instant case where there is non-compliance with the rules, this Court cannot remain passive and helpless. There must be sanction as provided by the rules of Court.
Appellant has argued in paragraph 4.27 of his brief on the constitutionality of the Election Tribunal and Court practice Directions, 2007. The lower Tribunal had held that the President of this Court had power to make Practice Directions for the Tribunal and this Court in respect of the petition in the election that was held under the Electoral Act, 2006. It rejected to uphold the Appellant’s counsel submission that the Practice Directions was unconstitutional, null and void. A cursory look at the Notice and grounds of appeal at pages 418 – 424 of the record reveal that there was no appeal against these findings of the lower Tribunal. Where a finding or a decision of a trial court is not challenged in an appeal, such a decision rightly or a wrongly, cannot be disturbed by the appellate court. The rationale for that principle is that no court has jurisdiction to decide a point not subsumed as a ground of appeal for in no sense is an appellate court a knight-errant looking for skirmishes all over the record of appeal. See OSHODI v. EYIFUNMI (2000) 13 NWLR (PT. 684) 298; EBBA v. OGODO (1984) 1 SCNLR 372; OKONKWO V. INEC (2004) 1 NWLR (Pt.854) 1 @ 282. The facts and circumstances in the un-reported decision of this Court in Appeal No. CA/PH/EPT/350/2007 delivered on 28/2/2007, relied on by the learned counsel for the appellant, are not on all fours with the instant case. It does not support the Appellant’s case. It is for the foregoing reason that I must resolve this issue in the affirmative in favour of the Respondents.
On issue No. 2 learned counsel for the Appellant has stated the principles of law relating to fair hearing in the Appellant’s brief of argument. No doubt the Appellant’s right to bring his petition before the lower Tribunal, where fair hearing is expected, is guaranteed under sections 285(2) and 36(1) of the constitution of the Federal Republic of Nigeria, 1999. Appellant has complained that dismissal of his petition without trial constituted an infringement of his right to fair-hearing. I do not think so. The dismissal on the grounds of his failure to apply for issuance of the pre-hearing notice under paragraph 3 of the Election and Court Practice Directions, 2007. This does not constitute an infringement of the Appellant’s right to fair hearing. Whether a trial or proceeding of a Tribunal or Court had been fair or not, depends on the facts and circumstances of each case. It is settled law that where a party is given ample opportunity to present his case within the confines of the law, but he chooses not to utilize same, he cannot later be heard to complain that his right to fair hearing has thereby been breached. What are the facts and circumstances of this case? From the records of appeal the Appellant filed his petition on 21/5/2007 and served the 1st, 2nd and 4th Respondents on 31/5/2007 who did not indicate their readiness to oppose the petition either by filing a Memorandum of appearance under paragraph 9(1)(a)(b) of the First Schedule to the Electoral Act 2006 or by filing a Reply under paragraph 10(2) of the said Schedule. As at 22/6/2007 the 1st, 2nd, and 4th Respondents’ time to respond to the petition had expired and still they did not file any Memorandum of appearance or reply. The 3rd Respondent was served with the petition on 7/7/2007 by substitution pursuant to the Tribunal Order of 16/6/2007. On 13/7/2007 the 3rd Respondent filed her Memorandum of appearance. But the petitioner had on 24/7/2007 applied for issuance of pre-hearing notice when the time for filing of the 3rd Respondent’s Reply had not expired. On 27/7/2007, the 3rd Respondent filed her reply to the petition and served the Appellant and other Respondents. It is instructive to note that the time the Appellant had to apply for the instance of pre-hearing notice based on the service of the 3rd Respondent’s reply had expired on 10/8/2007. Based on the foregoing facts and circumstances the lower Tribunal on 16/8/2007 suo motu raised the issue of competence of the petition having regard to the premature filing of the application for pre-trial session. It directed the counsel to file their written addresses. Appellant did not raise objection but filed his on 18/8/2008. The 3rd Respondent filed hers on 24/8/2007 and the 1st, 2nd and 4th Respondents on 1/9/2007. The Appellant filed another written address on points of law in response to the address of 3rd Respondent on 3/9/2007. Appellant and his counsel were in court. All the counsel in the petition adopted their respective written addresses. Thereafter the petition was adjourned to 17/9/2007 for ruling on which date the said petition was dismissed for failure to comply with paragraph 3 of the Election Tribunal and Court Directions, 2007.
From the foregoing, it is brittle clear that the Appellant was given a fair hearing on the issue of competence of the petition raised suo motu by the Tribunal. The Appellant filed and adopted his two written addresses. He cannot now complain that he was not given fair hearing on the issue. The lower Tribunal dismissed the petition pursuant to the powers conferred on it by paragraph 3(4) of the Practice Directions as neither the petitioner nor the 3rd Respondent applied for the issuance of pre-hearing notice within the time prescribed by paragraph 3(1). It is in view of this I must hold that the Appellant was not denied of any fair hearing. For this reason Issue No. 2 is resolved in the negative.
In the final analysis, this appeal fails and is dismissed. The Ruling of the lower Tribunal made therein is hereby affirmed. There will be costs of N30,000.00 against the Appellant in favour of all the Respondents.
Other Citations: (2008)LCN/2764(CA)
