Mr. Dele Taiwo Ololade V. Independent National Electoral Commission & 11 Ors (2008)
LawGlobal-Hub Lead Judgment Report
M. D. MUHAMMAD, J.C. A.
On the 14th April, 2007, the 1st, 2nd, 4th-11th Respondents conducted the House of Assembly elections in Ogun State. Mr. Dele Taiwo Ololade and Mr. Olusola David Kojeku together with other candidates contested the elections in respect of the Egbado North Constituency I. Mr Ololade was sponsored by the All Nigeria Peoples Party (ANPP) while Mr Kojeku contested on the ticket of the Peoples Democratic Party, PDP. At the end of the election, Mr. Olusola David Kojeku was returned as the duly elected member for Egbado North Constituency I. Being dissatisfied with the return of Mr. Kojeku by the electoral body and its officials, Mr Ololade filed a Petition seeking the nullification of the return. Mr Ololade also asked the lower tribunal to declare him the lawfully elected candidate for the Constituency in place of Mr. Kojeku, the 3rd Respondent herein.
Having failed to apply for the issuance of the pre-hearing notice within the time provided for by paragraph 3 (1) of the Election Tribunal and Court Practice Directions 2007, the Petitioner by a motion on notice dated 13-07-07 and filed on 16/7/07 applied for extention of time to enable him comply. On 18-07-07, with Counsel to all the parties in attendance, the tribunal adjourned Petitioner’s application to 25-07-07 for definite hearing.
The record of appeal further shows that Petitioners’ Counsel was in the court hall before proceedings of the day commenced on 25-07-07. Information had been passed to Counsel that Petitioner’s application would be heard even though same had been mistakenly omitted from the cause list. Other counsel waited. When the matter was eventually mentioned, neither the Petitioner nor his counsel was in court. And there was no explanation for their absence, Petitioner’s application for extention of time dated 13-07-07 was struck out for want of diligent prosecution. Further invoking its powers under paragraph 3(4) of the Practice Directions, the tribunal dismissed Appellants abandoned petition.
Being aggrieved by the ruling of the Tribunal dated 25/07/07 striking out his application for extention of time to apply for the issuance of the Pre-hearing notice and dismissing his petition, the Petitioner has appealed to this court on a notice containing four grounds of appeal. Henceforth, parties to this appeal would be referred to as Appellant and Respondents and, the Tribunal from which the appeal emanated, the lower tribunal.
In keeping with the Rules of this court, parties have filed and exchanged briefs of argument, which were adopted and relied upon at the hearing of the Appeal.
Two issues have been distilled in the Appellant’s brief as arising for determination. The issues read:-
“(1) “Whether the Tribunal was right to have dismissed the Petition pursuant to paragraph 3(4) rather than paragraph 3(11) of the Practice Directions upon the failure of the Petitioner/Appellant to appeal and to participate m the pre-hearing proceedings on the date fixed for same thus permanently shutting out the Petitioner/Appellant. (Ground 1).
(ii) “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) of the Practice Directions and to have dismissed the Petition as abandoned pursuant to paragraph 3(4) of the said Practice Directions” (Grounds 2, 3, & 4)”.
The two sets of Respondents have adopted the foregoing issues as calling for determination in the appeal.
Under the 1st issue, Learned Appellant Counsel contended that the lower tribunal was harsh in sanctioning the Petitioner and/or his Counsel’s absence in court on 25-7-07 fixed the hearing of Appellant’s application for extention of time to apply for the issuance of the pre-hearing notice. The tribunal should have invoked its power under paragraph 11 and 12 its Practice Direction rather than those under paragraph 3(4). Whereas the provisions under 3(11) and 12 allow the Petitioner to re-apply for the relisting of his Petition, paragraph 3(4) does not thereby bringing to a permanent end the Petitioner’s right to seek justice from the tribunal. It is urged that this injustice be remedied.
In arguing Appellant’s 2nd issue for determination of the appeal, Learned Counsel submitted that paragraph 3 of the Tribunal’s Practice Directions 2007 stands in clear conflict with the rules of procedure applicable to the tribunal by virtue of Section 151 of the Electoral Act, paragraphs 43 and 50 of the first schedule to the Act as well as Order 23 Rules 3(1) and (2) of the Federal High Court (Civil Procedure) Rules 2000.
Learned Counsel contended that the Practice Direction is a mere addendum or adjunct and applicable only where it is not inconsistent with the Rules of procedure set out in the first schedule to the Electoral Act 2006. Rules of Procedure provided by the first schedule to the Electoral Act prevail over any inconsistent provision of the Practice Direction. It is argued that the tribunal’s power to enlarge time for doing any Act or taking any step as provided by paragraph 43(1) of the Schedule extends to the time fixed or allowed by paragraphs 3(1) (4) and (5) of that Practice Direction. Learned Counsel relied inter alia on VISA v. ORZUA (2006) 1 WRN 164; BONI HARUNA v. MODIBBO (2004) 16 NWLR (Pt 900) 487; EMESIM v. NWACHUKWU (1999) 6 NWLR (Pt. 605) 154 and SALEH v. MONGUNO (2006) 15 NWLR (Pt. 1001) 26 At 62.
Finally, Learned Appellant Counsel submitted that the tribunal’s strict adherence to the Practice Direction, which though inferior but inconsistent with the applicable procedural rules, must be interfered with by this court.
He relied on UNIVERSITY OF LAGOS v. AIGORO (1985) 1 NWLR (Pt. 1) 143; ORJI v. ANYASO (2000) 2 NWLR (Pt. 643) 1; ABUBAKAR v. INEC (2004) 1 NWLR (Pt.854) 207 and SOLANKE v. SOMEFUN (1974) ALL NLR (Pt. 1) 141 and urged us to resolve the two issues in Appellant’s favour and to allow the appeal.
In reply to the foregoing arguments advanced in the Appellant’s brief. Learned Counsel to the 1st, 2nd and 4th – 11th Respondents submitted that Appellant Counsel’s contention that Appellant’s petition was dismissed because of the Petitioner’s’ neglect to attend the pre-hearing session is misleading. The truth is that Appellant never applied within the time provided for under paragraph 3(1) of the Election Tribunal and Court Practice Directions 2007 for a pre-hearing notice. This fact explains why the Appellant applied for extention of time within which to apply for the necessary pre-hearing notice, an application that the Petitioner stayed away from court on- 25/7/07 to move. The tribunal, Learned Counsel argued, appropriately struck out petitioner’s application for extention of time for want of prosecution and invoked its powers under paragraph 3(4) of the Practice Direction to dismiss the petition as being abandoned. Paragraph 3(11) and (12) of the same Practice Direction does not avail the Appellant.
In relation to the 2nd issue for determination. Learned Counsel to the 1st, 2nd and 4th-11th Respondents contended that Appellant had ample opportunity under paragraph 3(1) of the Practice Directions to prosecute his case. He chose not to, Appellant cannot, therefore, complain of his right to fair hearing being breached. Counsel supported his argument with the decision in BUHARI & ORS v. OBASANJO (2003) 16 NSCQR 44.
Concluding, it is submitted that the Election Tribunal and Court Practice Direction 2007 by virtue of which provision Appellant’s petition was dismissed is a rule of practice and does not stand in conflict with the Electoral Act. The Appellants failure to comply with the practice Direction was a fundamental Procedural error, which the tribunal rightly refused to condone. Counsel cited and relied inter alia on FOREMAN v. AJEGBO (2000) 1 NWLR (Pt.641) 498; OZOBIA ANAH (1999) 5 NWLR (Pt.601)3; IAL 61 INC. v. MOBIL OIL (NIG.) PLC. (1999) 5 NWLR 601; OJUGBELA v. LAMIDI (1999) 10 NWLR (Pt. 621) 167; EMASIN v. NWACHUKWU (1999) 6 NWLR (Pt. 605) 154; OGOLO v. LEGG-JACK (1999)8 NWLR (Pt. 613) 134 and WILLIAM v. HOPE RISING FUNDS SOCIETY (1982) SC 145. He urged us to resolve the two issues in the appeal against the Appellant and dismiss the appeal.
The reply by the 3rd and 12th Respondents is similar to the foregoing.
In their brief, their Counsel referred to pages 88-88c of the Record of appeal and submitted that Appellant’s contention that the dismissal of his petition was because of his neglect to attend the pre-hearing session is clearly not borne out by the record. Appellant had, from the record, applied for extention of time within which to apply for a pre-hearing notice per his application dated 13/3/07 and filed on 16/3/07. Appellant’s petition was dismissed pursuant to paragraph 3(4) of the Practice Direction and not under 3(11) and (12) that allowed for dismissal because of Petitioner’s neglect to attend the pre-hearing session. The reality remains that Appellant was not denied fair hearing as he was the person who decided to disobey the rules of court. Counsel also relied on BUHARI & ORS v. OBASANJO (2003) 16 NSCQR 1 At 44.
Learned Counsel finally submitted that the lower tribunal, in the face of the clear provision of paragraph 3(1) and 3(4) of the Practice Direction, could neither have resorted to the 1st schedule of the Electoral Act nor Order 23 Rule 3(1) and (2) of the Federal High Court Rules 2000 to extend time for the Appellant to enable compliance with paragraph 3(1) of the Practice Direction. The tribunal does pot have any discretion under the paragraph.
Now, the facts of the case that brought about the instant appeal are not in dispute. Appellant had, by his application filed on 16th July, 2007 sought for enlargement of time within which to apply for the issuance of pre-hearing notice as in form TOF007. His time for doing so as required by paragraph 3(1) of the Electoral Tribunal and Court Practice Directions 2007 had expired. This fact informed Appellant’s application for extention of time to enable him apply for the issuance of the Pre-Hearing Notice and the deeming of the application as having been properly filed and served. On 18/7/07, Appellant’s pending application was mentioned and adjourned to 25/7/07 for hearing. Even though Appellant’s application was omitted from the tribunal’s list on the 25/7/07, Counsel on both sides had enquired and were informed that the application would be heard as scheduled. In the course of the tribunal’s proceedings on the 25/7/07, Appellant’s application was, without fail, called for same to be heard. Neither the Appellant nor his Counsel was present in court inspite of their being on notice that the matter was to be heard that day. Mr. Bello the tribunal’s Registrar at page 88A of the record of Appeal informed the court thus:-
” Mr. Bello (REGISTRAR) – I did inform Mr. Sulaiman that the matter was omitted from the list by mistake and that the matter would be coming before us today. He however insisted that since the matter is not on the list he was leaving and he left”.
(underling supplied for emphasis).
Mr. Jibodu Esq. who appeared for the 3rd and 12th Respondents at page 88A of the record had also alerted the tribunal in the following words:-
“When I arrived the tribunal this morning, I found that this matter was not listed on the Cause List pasted on the tribunal Notice Board. I also met Mr. Kunle Sulaiman who told me that he did not see the Petition on the Cause List and that he was leaving. I however asked him that he should clarify from the Tribunal Secretary but he insisted on leaving and subsequently left. It was later that the Registrar (Mr. Bello) informed me that he consulted with his boss (sic) who asked him to include the case on the list since it was listed off today and draw the attention of Mr. Sulaiman to it. He told me that he did so but Mr. Sulaiman still said he was leaving and that the Petition should be adjourned”, (underlining supplied for emphasis).
Mr Kunk Sulaiman was Appellant’s Counsel at the tribunal.
Since neither the Petitioner nor his Counsel was present in court inspite of their being aware that the matter was coming up that day, Counsel for the Respondents urged the tribunal to strike out Petitioner’s application for extention of time to apply for the issuance of pre-hearing notice and for the tribunal to invoke its powers under paragraph 3(4) of the Practice. The tribunal acceded to Counsel’s prayers by first striking out Petitioner’s application for extention of time within which to apply for the-issuance of the pre-hearing notice and at pages 88B line 25 to line 19 of page SSC invoked its powers under paragraph 3(4) of the Practice Direction to dismiss Appellant’s abandoned petition in the following words:-
“The records in this petition show clearly that the Petitioner had failed to apply for the Pre-hearing notice as required by paragraph 3(1) of the Practice Directions, 2007. Despite the fact that paragraph 3(4) of the Practice Directions prohibits the filing of any application for enlargement of time within which to file the pre-trial or hearing notice, the Petitioner did file an application within which to apply for the issuance of pre-hearing notice which was accepted and filed for hearing today. Though the matter was not listed on the cause list, Learned Counsel for the Petitioner was in court today, and was duly informed by Me. Bello, the Assistant Secretary of this Tribunal that the petition was omitted from the cause list by mistake, Mr Bello also informed Learned Counsel that the attention of the Tribunal had been drawn to that fact and that the Tribunal had directed that the matter be listed as earlier adjourned.
Despite this information, Learned Counsel decided to leave the Tribunal. It is clear therefore that the Petitioner as represented by his Counsel are not keen in prosecuting this petition diligently as demanded by Section 148 of the Electoral Act and the Election Tribunal Court Practice Directions, 2007.
That being so, this Tribunal has no room for abandoned petitions. In the result therefore, we invoke the powers granted us by paragraph 3(4) of the Election Tribunal and Court Practice Direction 2007.
Consequently, this petition is hereby dismissed”.
The instant appeal on four grounds purports to be against the decision of the tribunal dismissing Appellant’s petition. The grounds of Appeal in Appellant’s notice are hereunder reproduced for case of reference:
“GROUNDS OF APPEAL”
GROUND 1
The Lower Tribunal erred in Law when it dismissed the Petition pursuant to paragraph 3(4) of the ELECTION TRIBUNAL AND COURT PRACTICE DIRECTIONS 2007 whereas the application before the court was for same to be dismissed pursuant to paragraph 3 (11) of the said Directions.
PARTICULARS OF ERROR
(1) The Petition was on the said date 25/7/2000 fixed for commencement of Pre-Hearing and neither the Petitioner nor his Counsel were in Court.
(ii) The Respondents Counsel in reliance on the provisions of paragraph 3 (11) (a) of the Practice Directions applied for same to be dismissed in default.
(iii) By the provisions of paragraph 3(12) of the said Practice Directions the Petitioner would have had the option of applying to set aside the dismissed upon the terms set out therein and an application to that effect was actually filed the very next day (i.e 26/7/2007).
GROUND II
The Lower Tribunal erred in Law when it dismissed the Petition pursuant to PARAGRAPH 3(4) OF THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTIONS 2007 on the ground that the Petitioner was in breach of the paragraph 3(1) of the said Practice Directions.
PARTICULARS OF ERROR
(i) By the provisions of paragraph 43 (2-7) of the First Schedule to the Electoral Act 2006 the Tribunal is empowered to enlarge time for the taking of any steps in the course of an Election Petition.
(ii) The Provisions of paragraph 49 (1) of the said First Schedule operate to save an offending Petition from the final consequences of noncompliance with the Rules or Directives of Court.
GROUND III
The Lower Tribunal erred in Law when it dismissed the Petition pursuant to PARAGRAPH 3(4) OF THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTIONS 2007 when the said paragraph is void or inapplicable for being in conflict with the Statutory Regulations guiding the procedure for hearing and determination of Election Petitions.
PARTICULARS OF ERROR
(i) The procedure for institution, hearing and determination of Election Petition have been amply provided for in (a) the First Schedule to the Electoral Act and (b) the Federal High Court Rules 2000 incorporated pursuant to paragraph 50 of the said schedule.
(ii) The aforesaid statutory provisions cannot be overridden, revoked, repealed or amended by a Practice Direction.
GROUND IV
The Learned Lower Tribunal erred in Law in relying on the provisions of the ELECTION PETITIONS AND COURTS PRACTICE DIRECTIONS 2007 to the detriment of the Petitioner in the first instance as the said practice Directions are at best Administrative Directives lacking in Legal or Statutory authority.
PARTICULARS OF ERROR
(i) The ELECTION TRIBUNAL AND COURT PRACTICE DIRECTIONS 2007 was purportedly made pursuant to:-
“Section 285(3) of the Constitution of the Federal Republic of Nigeria 1999, paragraph 50 of the first schedule to the Electoral Act 2006.”
(ii) Nothing in the recited Sections empowered or authorized the making of the aforesaid Practice Directions for the purpose of regulating the procedure to be adopted for the institution, maintenance, hearing and determination of Election Petitions.
(iii) The said Practice Directions are at best administrative directives lacking the force of Statute or Rules of Court”.
It is my considered view that Appellant’s first ground of appeal is incompetent.
His right of appeal is a creature of Section 246(1)(b)(i) which provide as follows:-
” (i) An Appeal to the Court of Appeal shall lie as of right from –
(b) decisions of the Governorship and Legislative Houses Election Tribunals on any question as to whether-
(i) any person has been validly elected as a member of the of a House of Assembly of a State under this Constitution.
In interpreting the foregoing clear provision, courts have placed emphasis on the word “decision” which by Section 318 of the same Constitution means “in relation’ to a court any determination of that court and includes judgment, decree, order, conviction, Sentence or recommendation”. See AWUSE v. ODILI (2003) 18 NWLR (Pt. 851) 116 and BUHARI v. OBASANJO (2003) 17 NWLR (Pt. 841) 446.
Section 246(1)(b)(i) of the 1999 Constitution which created Appellant’s right of appeal clearly presupposes the existence of some “decisions” of the lower tribunal. The right of appeal thereunder is exercisable only against a point or points in the tribunal’s “decision”. It follows that where Appellant’s complaint, which an appeal is, not targeted at or does not arise from the decision appealed against such a complaint cannot be the basis of an issue for determination by this court. This court’s appellate jurisdiction is for the purpose of reviewing the decisions of trial courts. In the case at hand, the ruling being appealed against clearly shows that Appellant’s petition was dismissed under paragraph 3(4) of the Practice Directions for non-compliance with paragraph 3(1) thereof. Mr. Jibodu who reminded the tribunal of its powers under paragraph 3(4) of the Practice Direction did not allude to sub-paragraphs 11 and 12 of paragraph 3 of the Practice Direction in the course of prompting the tribunal. Furthermore, no where in the tribunal’s ruling is any reference made to sub-paragraphs (11) and 12 of paragraph 3 which form the basis of the complaint in Appellant’s first ground of appeal. Given the nature of Appellant’s right of appeal as created by Section 246(1)(b)(i), Appellant cannot activate the jurisdiction of this court in respect of an issue or matter that had neither arisen in the course of the tribunal’s proceeding nor made a point in the decision being appealed against. Appellant’s complaint as constituted in his first ground of appeal is manifestly incompetent.
In SARAKI v. KOTOYE (1992) 9 NWLR (Pt. 264) 156 At 184, the Supreme Court harped on the necessity of a ground of Appeal flowing from the judgment appealed against in these instructive words:-
” It is a well settled proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision – See EGBE Vs. ALHAJI (1989) 1 NWLR (Pt. 128) 546 At 590.
Grounds of appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. However meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. This is the precondition for the vesting of the Judicial powers of the Constitution in the courts – see SENATOR ADESANYA Vs. PRESIDENT OF NIGRRIA (1981) 1 NCLR 358. Like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment appealed against.
I agree entirely with Mr. Ayanlaja that in the absence of a factual controversy between the parties to which the grounds of appeal are related and tied, there is no live issue in respect of which this court can adjudicate.
In the absence of a competent appeal in respect of which this court can adjudicate, the appeal must be struck out. See A.G. OYO STATE & ANOR. Vs. FAIRLAKES HOTELS LTD. (1988) 5 NWLR (Pt. 92) 1″.
The Apex Court restated the foregoing principle in ATOYEBI Vs. GOVT. OF OYO STATE (1994) 5 NWLR (Pt. 340) 290 At 305 and IKWEKI Vs. EBELE (2005) 11 NWLR (Pt. 936) 397 At 425 to 426.
Law apart, no matter the noble or good intention behind doing so, it has not been part of the functions of Law Court to engage in the determination of academic or hypothetical issues. See FAWEHINMI Vs. AKILU (1987) 4 NWLR (Pt. 67) 797; NWOBOSI Vs. ACB LTD (1995) 6 NWLR (Pt. 404) 658 and AG ANAMBRA STATE Vs. N.I.W.A. (2004) 3 NWLR (Pt. 861) 640. These reasons explain my striking out Appellant’s first ground of appeal as well as the issue distilled from it as being incompetent. The Appeal however endures on the basis of the 2nd, 3rd and 4th grounds of appeal from which Appellant’s 2nd issue for determination is distilled. How well does the Appellant fare by virtue of this surviving issue? His chances appear bleak!
The appeal turns squarely on the legality of the dismissal of Appellant’s petition under paragraph 3(4) of the Practice Direction. The thrust of Appellant Counsel’s contention is that paragraph 3(4) of the Practice Direction which does not allow for extention of time to enable a Petitioner apply for the issuance of a pre-hearing notice as required by paragraph 3(1) of the same Practice Direction, being inconsistent with the provisions of Section 151, paragraphs 43 and by extention Order 23 Rules 3(1) and (2) of the Federal High Court (Civil Procedure) Rules 2000 is null and void and inapplicable to the tribunal’s proceedings. Hereunder supplied for case of reference are paragraphs 3(1) and (4) of the Practice Directions, Section 151 of the Electoral Act, paragraphs 43 and 50 of the 1st schedule to the Electoral Act as well as Order 23 Rules 3(1) and (2) of the Federal High Court Rules 2000.
Paragraph 3(1) and (4) of the Practice Directions provide:
“3-(1) 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, the Petitioner shall apply for the issuance of pre-hearing notice as in form TF007
-(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 extention of time to take that step shall be filed or entertained”.
Section 151 of the Electoral Act:- “- The Rules of Procedure to be adopted for Election Petition and appeals arising therefonn shall be those set out in the first schedule to this Act”
Paragraph 43 of the 1st Schedule provide:-
43(1) The Tribunal or Court shall have power, subject to the provisions of Section 141 of this Act and Paragraph 14 of this Schedule, to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this Schedule.
(2) An enlargement of time may be ordered although the application for the enlargement is not made until after the expiration of the time appointed or allowed.
(3) When the time for delivering a pleading or document or filling any affidavit, answer or document, or doing anything or act is or has been fixed or limited by any of the sections. paragraphs or rules under or in pursuance of this Act or by a direction or an order of the Tribunal
or Court, the cost of an application to extend the time, where allowed or of an order made thereon shall be borne by the party making the application unless the Tribunal or Court otherwise orders.
(4) Every application for enlargement or abridgement of time shall be supported by affidavit.
(5) An application for abridgement of time may be ex parte, but the Tribunal or Court may require notice of the application to be given to the other parties to the election petition.
(6) An application for enlargement of time shall be made by motion after notice to the other party to the election petition but the Tribunal or Court may, for good cause shown by affidavit otherwise, dispense with the notice.
(7) A copy of an order made for enlargement or abridgement of time shall be filled or delivered together with any document filled or delivered by virtue of the order”.
Paragraph 50 of the 1st Schedule to the Act provides:-
” Subject to the express provisions of this Act, the Practice and Procedure of the Tribunal or the court in relation to an election petition shall be as newly 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 this Act as If the Petitioner and the Respondent were respectively the Plaintiff and the Defendant in an ordinary civil action”.
Order 23 Rule 3(1) and (2) of the Federal High Court (Civil Procedure) Rules provide:-
“3(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these provisions, or by any judgment, order or directions, to do any act in any proceedings.
(2)The Court may extend any such period as is referred to in sub-rule (1) of this rule although the application for extension is not made until after the expiration of that period”,
One important provision made by the Electoral Act, which parties to an election petition and the tribunal or the court must not ignore, is Section 148 of the Act and read:-
“without prejudice to the provisions of Section 294 .sub-section (1) of the constitution of the Federal Republic of Nigeria 1999, an election petition and an Appeal arising therefrom under this Act shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or Court”.
Now, a community reading of all the provisions reproduced above clearly shows that whereas under both paragraph 43 of the 1st schedule to the Electoral Act and Order 23 Rule 3(1) and (2) of the Federal High (Civil Procedure) Rules 2000, the tribunal is empowered on such terms as it thinks just 10 extend time within which a party to an election petition is required by the Act, Rules contained in the 1st schedule to the Act and/or the Federal High Court (Civil Procedure) Rules as well as the Practice Direction, to take any step except those steps specified under Section 141 and paragraph 14 to the 1st schedule that have been excluded by virtue of sub paragraph (1) of paragraph 43 of the 1stschedule, The Practice Direction on the other hand disallows such application and the grant of extention of time for the taking of the particular step that had not been taken within the time prescribed under sub paragraph 1 of paragraph 3 of the Practice Direction. In other words, under the Act and the rules of the tribunal pursuant to paragraphs 43 and 50 of the 1st schedule to the Electoral Act, the tribunal has powers to extend time for taking any step including the time prescribed under paragraph 3(1) of the Practice Direction except as to the time specified under Section 141 for the filing of the Petition and amending same as provided for by virtue of paragraph 14 of the 1st schedule to the Act.
I agree with Learned Appellant Counsel that in the event of any conflict between Section 151 of the Electoral Act, paragraphs 43 and 50 of the Acts Schedule and Order 23 Rule 3(1) and (2) which enable extention of time for the taking of necessary steps in all situations except those under Section 141 and paragraph 14 of the Act’s first schedule, and sub paragraph 4 of paragraph 3 of the Practice Direction which does not, the former provisions will prevail over the provision of sub paragraph 4 of paragraph 3 of the Practice Direction to the extent of the inconsistency. In UNILAG Vs. AIGORO (1984) a case cited and relied upon by the Learned Appellant Counsel, the Supreme Court held at page 756 of the law report per Bello JSC (as he then was and now of blessed memory) as follows:-
“- a Practice Direction has no force of law and cannot fetter a rule of court and cannot tie the court in the exercise of its discretion. Where there is a conflict between a rule of court and a Practice Direction, the rule must prevail”.
In ABUBAKAR v. YAR’ ADUA (2008) 1 NWLR (Pt. 1078) 465 At 515, the Supreme Court specifically pronounced on the supremacy of the Electoral Act over the Practice Directions. Implicit from all these decisions however, is the enduring applicability of the Practice Directions in all situations where conflict does not arise between their provisions and those made under the rules of court on the same point, issue or subject matter.
Practice Directions, therefore, remain in force having been made with the intention of guiding the courts and the legal profession on matters of Practice and Procedure. Practice Directions are overridden by the rules of court only where they are in conflict with the rules. But where Practice Directions as issued co-exist harmoniously with the rules of court, a party or counsel who ignores them does so at his peril. See N.A.A. v. OKORO (1995) 6 NWLR (Pt. 403) 510 At 523 SC.
Now, from the facts of the instant case, can it be rightly said that conflict had arisen between the provisions made under the tribunal’s superior procedural rules as enshrined in Section 151 and paragraphs 43 and 50 of the Act’s 1st schedule and Order 23 rule 3(1) and (2) of the Federal High Court (Civil Procedure) Rules against those under paragraph 3(4) of the Practice Directions under which Appellant’s Petition was dismissed as having been abandoned? I think not.
Let me outrightly stress that the tribunal’s order striking out Appellant’s application for extention of time to apply for the issuance of the pre-hearing notice for want of prosecution has not been appealed against. Rightly or wrongly, the order subsists and remains binding. See J.C LTD v. EZENWA (1996) 4 NWLR (Pt. 443) 391 SC; F.I.B. PLC. v. PEGASUS TRADE OFFICE” (2004) 4 NWLR (pt. 863) 369 SC and BABATUNDE v. OLATUNJI (2000) 2 NWLR (Pt. 646) 557 SC. It follows from these facts that at the time Appellant’s Petition was dismissed under paragraph 3(4) not only had lime expired within which parties to the Petition by virtue of sub-paragraphs (1) and (3) of paragraph 3 could apply for the issuance of a pre-hearing notice but that the tribunal had not been prayed by the Appellant, as allowed under paragraph 43 of the 1st Schedule to the Electoral Act and Order 23 Rule 3 (1) and (2) of the Federal High Court (Civil Procedure) Rules, for extention of time to allow Appellant comply with the provision of paragraph 3(1) of the Practice Direction. It is only in cases where a Petitioner prays the tribunal for extention of time to take a necessary step and the tribunal without considering the application on its merit or having found the application meritorious refuses Petitioner’s prayer under the provision of the Practice Direction inspite of the overriding provisions of the superior procedural rules that bind the tribunal that the tribunal’s preference for the inferior Practice Direction will be overturned on appeal as being perverse.
In the instant case where the Appellant had not applied for extention of time as allowed under the Rules of Practice of the tribunal, the tribunal is perfectly right to have given the words which made up paragraph 3(4) of the Practice Direction their literal meaning and applied same to dismiss the petition as having been abandoned. Any other construction in this matter where both the Petitioner and his Counsel were on notice and Petitioner’s Counsel was even in the tribunal premises but chose to depart inspite of all entireties that the matter was to proceed, will be a perverse one. It will be a decision that is unjust to the Respondent, to the court and the larger society.
It will be a decision in violation of the Constitution of the country, which in Section 36(1) and Section 148 of the Electoral Act both of which empower the tribunal to hear and determine Appellant’s Petition within a “reasonable time”. It will be a decision that is unjust even to the Petitioner himself!
Neither the constitution nor the Electoral Act permits a Petitioner to prosecute his petition at his own pace to the utter chagrin of the Respondents, the court and the larger society. The lower Tribunal has acted reasonably and in consonance with Section 36(1) of the 1999 Constitution and Section 148 of the Electoral Act in the case at hand. The tribunal’s decision must prevail.
My lords, the gains so far recorded by the effective use of the Practice Directions in the determination of Election Petitions must be sustained. This explains my resolution of Appellant’s lone issue against him. I find no merit in the Appeal and dismiss same with cost of N30, 000 Naira in favour of the 3rd Respondent.
Other Citations: (2008)LCN/2870(CA)
