Ogunmodede Olayemi V. Adams A. Fatai & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A,

This is an appeal against the decision of the Governorship/Legislative Houses Election Tribunal established Ondo State in Petition No.EPT/OND/SH/16/2007. In a ruling dated 24th September, 2007, the lower Tribunal dismissed the petition of the petitioner/Appellant for failure to comply with the provisions of the Election Tribunals and Court Practice Directions 2007, (Practice Directions 2007) on application for instance of pre-hearing notice. The Petitioner as Appellant herein was dissatisfied with the decision leading to the dismissal of the petition and appealed the decision. The appeal is predicated on a notice of appeal dated 15th day of October, 2007 containing 5 grounds of appeal with very copious particulars.

The Appellant, as the Petitioner in petition No.EPT/OND/SH/16/2007, challenged the return of the 1st Respondent as the duly elected candidate for the Akoko North- West Constituency II in the Ondo State House of Assembly sequel tot he election held on 14th April, 2007. The challenge against the declaration and return of the 1st Respondent was on the grounds of electoral malpractices and/or non-conduct of elections at all.

The 1st Respondent entered conditional appearance in a memorandum dated 30th May, 2007 but filed on 31st May 2007. Further to this, the 1st Respondent filed a paragraph reply to the petition. The reply was filed on 14th June, 2007. By a memorandum dated and filed on 24th May, 2007, the 5th and 6th Respondent entered their appearance and filed a 22 paragraph joint reply dated 10th June, 2007 but filed on 16th June, 2007. The 2nd to 4th and 7th Respondents did not enter appearance and did not file replies to the petition.

The Petitioner/Appellant filed his application for issuance of pre-hearing notice on 7th August, 2007. Before this application, however, the Secretary to the lower Tribunal had issued and served pre-hearing notices on all the parties on 6th August, 2007. On 30th July, 2007, the 1st Respondent/Respondent applied for an order of the lower Tribunal for leave to adduce further evidence in the form of sworn witnesses statements and a deeming order that the sworn witnesses statements attached to the application were properly file and served. Earlier in a ruling dated 18th July, 2007, the lower Tribunal had dismissed the application of the 2nd – 4th Respondents to file their replies out of time.

Sequel to the pre-hearing notice of 6th August, 2007, the Petitioner filed a response on 13th August, 2007, while the 2nd- 4th Respondents filed a reply on 9th August, 2007, and the 16th Respondent filed a reply on 18th August, 2007. This matter remained so until 10th September, 2007, when learned counsel to the Petitioner/Appellant Dr. O.F. Ayeni sought to set the records straight when he drew the attention of the lower Tribunal to the fact that the Appellant did not apply for issuance of pre-hearing notice until 7/8/07 and after it was gratuitously issued and served by the Secretary of the Tribunal on 6/8/07. After setting the facts straight and bare learned counsel Dr. Ayeni made an oral application for extension of time to file the application for issuance of pre-hearing notice and for a deeming order that the application filed on 7/8/07 was properly filed and served as well as an order for leave to rely on paragraph 49(1) and (2) in Schedule one to the Electoral Act 2006 to invite the lower Tribunal to discountenance any argument tending to nullify either the petition or the proceedings therein. This latter prayer of learned counsel was predicated on the fact that all parties had taken some steps pursuant to the pre-hearing notice issued by the Secretary of the Tribunal on 6th August, 2007.

Respective learned counsel to the Respondents argued against these prayers and the oral application for them. In the course of its ruling on 24th September, the lower Tribunal considered this oral application alongside the arguments and submissions of learned counsel to the respective Respondents and decided that the issuance of pre-hearing notice before an application therefore, rendered it void because a condition precedent to its issuance had not been fulfilled. This appeal is against that ruling.

To argue this appeal, learned counsel Dr. Ayeni on behalf of the Appellant, filed a brief of argument pursuant to Order 17 Rules 1 and 2 of the Court of Appeal Rules 2007. It is dated 11th December, 2007, but was deemed properly, filed and served on 9th January, 2008. The 1st Respondent filed a notice of preliminary objection dated 9th January, 2008, on 11th January, 2008 challenging the appropriateness and competence of some of the grounds of appeal and the issue(s) formulated therefrom as well as a brief of argument. This brief of argument incorporated arguments on the notice of objection. A brief of argument was also filed on behalf of the 2nd – 4th Respondents. The 5th to 7th Respondents did not file any brief. In a bid to respond to the notice of preliminary objection as argued in the brief of the 1st Respondent, learned counsel to the Appellant filed a reply brief dated 4th February, 2008 pursuant to Order 17 Rule 5 of the Court of Appeal Rules 2007.

The preliminary objection of the 1st Respondent was brought on the following grounds:-

1. Ground 3 is deemed abandoned as issue No. 1 formulated thereunder contain arguments that do not relate to or covered by the ground;
2. Ground 3 relates to the application for extension of time whilst issue No.1 treats the issue of the abandonment of the petition and the attendant dismissal by the lower Tribunal;
3. Ground 4 attacks the exercise of discretion by the lower Tribunal;
4. Ground 4 does not properly challenge the exercise of discretion;
5. Grounds 4 and 5 are the same and constitute a duplication;
6. Particulars of ground 5 do not have relationship with the ground;
7. Ground 5 will be deemed not to have been raised in the Notice of appeal as the particulars raised do not relate to the ground;
8. Ground 5 talks about the issuance of form TF007 by the Secretary of the Tribunal whilst for particulars talk about late application of the appellant for issuance of form TF007;
9. Form TF007 issued by the Secretary of the lower Tribunal without an application by the Appellant is different from the application of the Appellant for the issuance of same dated 7/8107.
10. Particulars (i) and (iv) of ground 1 are not only argumentative? (sic) and
11. Issue 1 is incompetent for no (sic) hanging on a ground of appeal.

I wish to observe that some of these grounds are so inelegantly drafted and also the choice of phrases for them by learned counsel leaves so much to be desired.

In deciding the oral application of learned counsel Dr. Ayeni on 10th of September, 2007, the lower Tribunal in its ruling leading to this appeal held as follows:-

“We agree with the submissions of the 1st Respondent’s counsel that the issuance of form TF007 before the application for notice of pre-hearing session was filed renders the form TF007 void. This is so because the condition precedent to the issuance of the said form which is the filing of the application had not been fulfilled.”

I have considered this portion of the ruling of the lower Tribunal along side the arguments and submissions of learned counsel Dr. Olatoke, for the 1st Respondent, on the preliminary objection and also the reply of learned counsel Dr. Ayeni for the Appellant. I have also closely considered all the grounds of appeal together with the issues distilled therefrom. I wish to observe that Nigerian case law has remained consistent that the whole purpose of grounds of appeal is to give notice to the other side of the appeal what they have to meet in the appellate court and these must be stated with specificity and precision. The appellate courts do not allow vague and general grounds which disclose no reasonable grounds of appeal, excepting the general ground that the judgment is against the weight of evidence. See N.I. P. C. VS. THOMPSON ORGANISATION (1969) 1 ALL NLR 138 and IDIKA & ORS. VS. ERISI & ORS. (1988) 2 NWLR (PT.78) 563.

Further to this, grounds of appeal must relate to and should also constitute a challenge to the ratio of the decision of the lower court as well as constitute in aggregate the reasons why the decision being appealed is considered wrong by the appellant and fulcrum upon which an appellate court is called upon or urged to set it aside. See SARAKI VS. KOTOYE (1992) 9 NWLR (PT.264) 156. Also, grounds of appeal allege the complaints against the judgment appealed against. The issues for determination accentuated the issue in the grounds of appeal relevant to the determination of the appeal in the light of the grounds of error alleged. There is therefore a clear and direct relationship between the grounds of appeal and the issues for determination in an appeal. See OLOWOSAGO VS. ADEBANJO (1988) 4 NWLR (PT. 88) 275 as per Karibi-Whyte, JSC at 283.

I have looked at both grounds 3, 4 and 5 in the notice of appeal herein and it appears to me that the complaints of the appellant therein emanate and sufficiently flow from the decision of the lower Tribunal in the instant appeal. In the instant appeal issue No.2 is clearly related to and could be formulated from ground 5 and therefore competent and relevant. Also, issue No.1 can be formulated in aggregate from grounds 1 to 4. I therefore, do not see any substance in the objection of learned counsel Dr. Olatoke against the appropriateness of grounds 3, 4 and 5 of the grounds of appeal. This preliminary objection lacks merit and it is accordingly dismissed in favour of deciding this appeal on the merit.

From the 5 grounds of appeal learned counsel to the appellant formulated and argued the following 2 issues. They are:-

1. Whether the Governorship/Legislative Houses Election Tribunal exercised its discretion judiciously and judicially by dismissing the Election Petition of the Appellant after deeming same abandoned in the circumstance before it.
2. Whether the Governorship/Legislative Houses Election Tribunal was correct in finding that the issuance of pre-hearing notice in form TF007 before the appellant (as petitioner) applied for same renders the form TF007 void.

In opening arguments on the 1st issue he formulated, learned counsel to the Appellant, Dr. Ayeni pointed out that it was formulated out of grounds 1 to 4 of the grounds of appeal and urged this court to answer the question posed therein and find in favour of the appellant. He went further to refer to the portion of the ruling of the lower Tribunal that held and found against the appropriateness of the pre-hearing notice issued, by the Secretary of the lower Tribunal without a prior application by the Petitioner/Appellant, in consequence of which finding the lower Tribunal dismissed the petition of the appellant. Against this background learned counsel maintained that the judges of the lower Tribunal did not exercise their discretion judicially and judiciously in dismissing the petition. It was at this stage that learned counsel underscored and pointed out the reasons why the lower Tribunal decided against his oral application and indeed the entire petition among which was the reliance of the lower Tribunal on its earlier decision on EPT/OND/SH/07/2007 where it held that the doctrine of waiver does not apply to acts done in pursuance of an electoral law or statute relying on the decision of this court in UZODINMA VS. UDENWA (2004) 1 NWLR (PT.854) 303 at 333. As an additional background Dr. Ayeni, of counsel, cited and reproduced the provisions of paragraph 49(2) of the 1st Schedule to the Electoral Act, 2006 and submitted that in placing reliance on the case of UZODINMA (Supra) the lower Tribunal shut its eyes to the provisions of paragraph 49(2) (Supra). Learned counsel submitted further that by virtue of S.151 of the Electoral Act, 2006, the provisions of paragraph 49(2) represents the statutory doctrine of waiver and makes it applicable to all election petitions and appeals arising therefrom. In consequence of this submission learned counsel argued that neither the reliance placed on UZODINMA, nor the principle that the case purports to advance can be good law in the face of specific statutory provision which makes the doctrine applicable in certain circumstances. He also argued and maintained that the doctrine of waiver as provided in paragraph 49(2) was applicable to the circumstances of the instant petition.

Learned counsel went further to accentuate the basic facts in this appeal and argued that the case of LADIPO VS. ODUYOYE (2004) 1 EPR 705 at 708 upon which the lower Tribunal relied to hold that it was incumbent on it to adhere to the Practice Direction was a wrong exercise of discretion. He added that reliance on ODUYOYE was also perverse in view of the decision of the Supreme Court in UNIVERSITY OF LAGOS VS. AIGORO (1984) NSCC 745 and ELEBANJO & ORS. VS. DAWODU (2006) 15 NWLR (PT.1001) 76 etc. It was also the view of learned counsel that the provisions of Rule 3(4) of the Practice Direction 2007 upon which the lower Tribunal relied in dismissing the petition before it is subject to the combined express provisions of S.151 of the Electoral Act 2006 and paragraph 49(1) in the 1st Schedule thereto. It was at this stage that learned counsel made bold to suggest that the lower Tribunal determined the issues before it on wrong principles of law and also took cognizance of irrelevant and extraneous matters thereby falling into error and arriving at a perverse decision.

Upon the forgoing, learned counsel reiterated the settled principle, of law laid down by the Supreme Court in EFETIROROJE & 2 ORS. VS. H.R.H. OKPALEFE II & 20 ORS. (1991) 5 NWLR (PT. 193) 517 at 587-588 when an appellate court can rightly interfere with the exercise of a discretion by a lower court. Learned counsel went on to highlight the settled principles of law to be considered by an appellate court if it sees good reasons to interfere with the exercise of a discretion by a lower court. He identified them as when the discretion had been exercised in an arbitrary or illegal manner or without due regard to all necessary considerations or with regard to unnecessary factors. He then urged this Court to intervene to interfere with the discretion so exercised by the lower Tribunal in the instant appeal.

In arguing the 2nd issue he formulated learned counsel to the appellant adopted paragraphs 3.1.2 and 3.10 respectively at page 5 and page 9 of his brief and urged this court to resolve this issue in favour of the appellant. Finally he also urged this Court to allow this appeal and set aside the order of the lower Tribunal dismissing the petition of the appellant. Respective learned counsel to the Respondents in their respective briefs of arguments each formulated 2 similar issues for determination in this appeal. These issues are different from the issues formulated by the appellant. It is significant to note however that the respective briefs of the respondents in one way or another had managed to respond to the various arguments and submissions in the appellants’ brief. I would therefore decide this appeal based on the issues argued by the appellant and the submissions of the respective Respondents in response.

On the issue of waiver under paragraph 49(1) and (2), learned counsel to the 1st Respondent maintained that Dr. Ayeni of counsel had grossly misconceived the application of the doctrine of waiver to the facts and circumstances of this case. Learned counsel to the 1st Respondent Dr. Olatoke dwelt on this issue of waiver and the circumstances in which it applies at a great length. He expended so much energy trying to distance the instant appeal from the perspectives learned counsel to the appellant situated it. According to learned counsel compliance with Rule 3(1) of the Practice Direction 2007 is not a question of technicality that may be treated like a breach of any rule of Court that could be cured or waived. He referred to the opinion of the Supreme Court in BUHARI VS. YUSUF & ANOR. (2004) 1 EPR 1 at 24 and submitted that UZODINMA VS. UDENWA (2004) 1 NWLR (PT.854) 303 did not contradict the decision in BUHARI VS. YUSUF but rather it re-inforced it.

While referring to the case of LADIPO VS. ODUYOYE (Supra), learned counsel Dr. Olatoke urged this court to hold that the case of UNIVERSITY OF LAGOS VS. AIGORO (Supra) does not apply to this case to the extent that it is an election matter. He argued further that paragraph 49(2) (Supra) is not intended to provide an avenue for an indolent petitioner or other parties in an election petition. He urged this Court to decide the 1st issue against the appellant and in favour of the 1st Respondent.

On whether the lower Tribunal rightly dismissed the petition of the appellant for failure to apply for the issuance of pre-hearing notice within the statutorily prescribed period, learned counsel to the 1st Respondent explained that by the provisions of Rule 3(1) of the Practice Direction 2007, a petitioner in an election petition has an obligation to apply for a pre-hearing notice within 7 days after the conclusion of pleadings. He explained further that if the petitioner fails to comply with this requirement, any of the Respondents has 2 options i.e either to apply for the issuance of the pre-hearing notice in form TF007 or apply for the petition to be dismissed. According to Dr. Olatoke, where both the petitioner and the Respondents failed to comply with this requirement, the Tribunal has only one duty and that is to deem the petition as having been abandoned and to proceed to dismiss same under Rule 3(4) of the Practice Direction. While referring to the pages 207 to 208 of the record of appeal and other undisputed facts in this appeal, learned counsel to the 1st Respondent maintained that since there was no valid application for pre-hearing notice in the form of form TF007 before the Tribunal on 10/09/07, the lower Tribunal rightly and, correctly dismissed the appellants petition under Rule 3(4) of the Practice Direction and he urged this Court to so hold.

The arguments and submissions of learned counsel tot he 2nd to 4th Respondents Mr. Bamidele Abina are substantially the same with those of learned counsel Dr. Olatoke. I do not think it is worthwhile to repeat them.

After arguing against the preliminary objections, the appellants’ reply brief touched on the applicability of the provisions of the Practice Direction against the backdrop of the provisions of section 151 of the Electoral Act 2006 vis-a-vis paragraph 49(1) and (2) (Supra). Learned counsel went as far as arguing that paragraph 49(2) is not only applicable in the circumstances of this appeal but it must operate to override Rule 3(1) of the Practice Direction. He went further to give about 5 reasons in support of this sweeping and far reaching submission and urged this Court to allow this appeal and set aside the order of the lower court dismissing the petition.

At the hearing of this appeal both Dr. Ayeni for the appellant and Dr. Olatoke for the 1st Respondent drew our attention to the list of additional authorities they filed. While learned counsel Dr. Ayeni relied on the additional authority of ABUBAKAR & 2 ORS. VS. YAR’ADUA & 5 ORS. (unreported) SC/288/2007 judgment of 25th January, 2008, Dr. Olatoke of counsel relied on OKEREKE VS. YAR’ADUA (2008) 12 NWLR (PT. 1100) 95 at 116 F – G, 118 B – E and 128 – 129 H-C, A.N.P.P. VS. REC (2008) 8 NWLR (PT. 1090) 453 at 544 etc. In his adumbration of his main brief and the reply brief learned counsel Dr. Ayeni tried very hard to distinguish the case of OKEREKE VS. ‘YAR ADUA (Supra) against the facts and circumstances of this appeal and urged this court to hold that to the extent of the distinguishing features OKEREKE (Supra) does not apply to this case. In his own argument learned counsel Dr. Olatoke urge this court to discountenance the misconceived and misplaced efforts of Dr. Ayeni in trying to show any distinguishing features between the facts and circumstances of this appeal and those in OKEREKE (Supra). He also urged this court to hold that the decision in OKEREKE VS. ‘YAR ADUA (Supra) is fully applicable to the facts and circumstances of this appeal. Learned counsel Mr. Abina, for the 2nd – 4th Respondents and Mr. Idachaba for the 5th and 6th Respondents associated themselves with the arguments of Dr. Olatoke.

Earlier in this judgment, while dealing with the preliminary objection filed by the 1st Respondent, I reproduced a portion of the ruling of the lower court that gave rise to this appeal. At the risk of being repetitive, I wish to do so again. In concluding its ruling of 24th September, 2007, the lower Tribunal held that:-

“We agree with the submissions of the 1st Respondent’s counsel that the issuance of form TF007 before the application for notice of pre-hearing session was filed renders the form TF007 void. This is so because the condition precedent to the issuance of the said form which is the filing of the application had not been satisfied. We therefore adopt our ruling in EPT/OND/SH/07/2007 delivered today the 18th day of November, 2008 and order that the petition be dismissed.”

I have had the opportunity to read the reasons for the decision of the lower Tribunal in its ruling in FAJOLU ABIMBOLA OLUTOPE VS. AKINSOROJU H. ADE & 6 ORS. NO.EPT/OND/SH/07/2007 ruling of 24/9/07. Indeed the facts and circumstances in this case are similar with those in FAJOLU (Supra). Learned counsel Dr. Ayeni had made a number of far reaching and wide ranging arguments and submissions on the extent of applicability of paragraph 49(2) (Supra) to the facts in this appeal. The lower Tribunal was not unmindful of this provision but yet went ahead to decide as it did in the circumstance. The basis for the decision and the answer of the lower Tribunal to the provisions of paragraph 49(2) are the decisions of this court in LADIPO VS. ODUYE (Supra) and UZODINMA VS. UDENWA (Supra).

In trying to resolve the issues herein it is important to reiterate the fact that there is no substantial dispute as to the factual basis of this case as set out earlier with regard to the novel procedure of pre-hearing conference and scheduling of same in election matters; the Practice Direction 2007 provides in Rule 3(1) that:-

“Within 7 days after the filing and service of the Petitioners Reply on the Respondent, or 7 days after the filing and service of the Respondents Reply, whichever is the case, the Petitioner shall apply for the issuance of pre-hearing notice as in form TF007” (Underlining mine for emphasis)

According to this Rule 3(1) it is the Petitioner in an election petition that must kickstart the pre-hearing process after the conclusion of pleading.

And for purposes of Rule 3(1) pleadings close either after the service of the Respondents’ replies to the petition or the filing of a reply by the Petitioner to the Respondents’ reply to his or their petition. Both the petition and the respective replies of the Respondents and the Petitioner, where he decides to file a reply to the replies of Respondents, must strictly comply with the time stipulations in the Electoral Act 2006 and the Practice Direction 2007.

Where a Petitioner fails to seize the initiative to kickstart the pre-hearing process, a Respondent is vested with a right, or I believe an obligation, under Rule 3(3) to take steps to gain advantage of dictating the phase of the petition by applying that the prescribed pre-hearing notice be issued by the Secretary of the Tribunal or the petition be dismissed. The application to dismiss must be by way of a motion on notice. If neither the petitioner or any of the Respondents fail to put the machinery of the pre-hearing process in motion this default in my view vests the Tribunal or court with no other option than to treat the petition as having been abandoned. The consequence of abandoning a petition in this circumstance renders it liable to being dismissed pursuant to Rule 3(4) with an added penalty that no application for extension of time to take that step shall be filed or entertained. It is therefore vexatious and an abuse to make any attempt to revive a petition deemed abandoned under Rule 3(4).

Paragraph 49(2), provides in part:-

“An application to set aside an election petition or a proceeding ………for irregularity or being a nullity shall not be allowed unless made within a reasonable time when the party making the application has not taken any fresh steps in the proceedings after knowledge of the defect.”

I dare say here that where Rules 3(3) and 3(4) are applicable and appropriately invoked, paragraph 49(2) cannot apply because at the expiration of the relevant time stipulations within Rules 3(1) and 3(3), the petition is deemed abandoned. In my view the Tribunal or court, strictly speaking, totally lacks jurisdiction to do otherwise than to merely fall back on and apply Rule 3(4) despite all the hype made by Dr. Ayeni, it does not matter. Even if any party either as a Petitioner or Respondent, as the case may be, takes any steps outside the rules to override or overreach the time stipulations therein any such action is void and of no effect. Such a step or steps are not capable of constituting a waiver of any sort whatsoever. The provision of Rule 3(4) has been identified as harsh and drastic but that it must nonetheless be applied strictly. See OKEREKE VS. ‘YAR ADUA (Supra). If the decision in UZODINMA VS. UDENWA (Supra) is a precursor to the provisions of Rule 3(4), and I believe it is, it would then be a re-inforcement to that provision and not in any way a contradiction of the provisions of paragraph 49(2).

Now coming to the facts and circumstances of this appeal, pleadings closed or were deemed to have at least closed on 18th July 2007 when the lower Tribunal ruled in favour of the Petitioner shutting out the 2nd-4th Respondents from filing a reply to the petition for being unduly out of time. In my view it is from that date, at least, time would begin to run for the Petitioner for the purpose of Rule 3(1). As at 7/8/07 when the Appellant filed the application for issuance of pre-hearing notice there was no valid and competent petition before the Tribunal as the petition of the Appellant ought to have been dismissed as abandoned within 10 days after 18th July, 2007 i.e, on or about at most 28th July, 2007. In the circumstance of Rule 3(4) extension of time is not capable of being contemplated or granted. Lately the relationship between the Practice Direction, 2007, Rules of the Federal High Court, Rules of the Court of Appeal as they apply in the process of determining election matters and appeals, as well as certain paragraphs of Schedule I to the Electoral Act 2006 has been a matter of great uncertainty, the law was in a state of flux characterized by doubts and random controversial pronouncements. However, since the decision of the Supreme Court in OKEREKE VS. ‘YAR ADUA, there is no longer any doubts about the status of the Practice Direction 2007 vis-a-vis the rules of court and the provisions of the Electoral Act 2006.

With respect to issue one as argued by the Appellant, I wish to point out and strongly emphasise that this appeal is not about the exercise of any discretionary power as erroneously believed by respective learned counsel. In refusing to accede to the oral application of the Petitioner/Appellant for extension of time and deeming order, the lower Tribunal did not convey any impression that it was exercising any discretion inherent or statutory, My understanding is that the power or extent of any discretion of an Election Tribunal with respect to time stipulations for purposes of applying for pre-hearing notice and the consequences of any default are essentially governed by very strict provisions that apparently do not allow for any flexibility at all. This is understandable because election matters are sui generis and the public policy need for them to be heard and determined expeditiously had been emphasized and re-inforced by the Practice Direction 2007 and a plethora of decided cases, See Rule 3(7) (i) and Rule 3(2)(i) of the Practice Direction 2007 and BUHARI VS. DIKKO YUSUF (Supra),

According to the decision of the Supreme Court in OKEREKE VS. YAR ADUA (Supra) justice delivery in election matters before the Election Tribunal or the Appellate Courts, as the case may be, must be done by strict adherence to the Practice Direction 2007, even where the provisions appear to be too harsh or drastic.

The arguments of learned counsel Dr, Ayeni in the reply brief berating the Practice Direction 2007, vis-it-vis the provision of Electoral Act, 2006, more particularly paragraph 49(2) in the schedule thereto, are grossly off the mark and generally misleading, In deciding OKEREKE VS. YAR ADUA (Supra) the Supreme Court did not leave anyone in doubt at all. In specifically referring to Rule 3(1) and Rule 3(3) of the Practice Direction 2007 the court held that:-

“It is clear from paragraphs 3(1) and (3) supra that the Tribunal or court does not, suo motu, conduct or cause a pr-hearing session to be held. Such a session can only be held upon an application by either the Petitioner or the Respondent to the petition……………… However, paragraph 3(4) gives power to the lower court, where the Petitioner and Respondent fail to bring an application for pre-hearing session as in the instant case, to dismiss the petition as abandoned petition and no application for extension of time to take that step ie, apply for pre-hearing session, shall be filed or entertained.” Per Onnoghen JSC at 128 – 129 H-B.

Despite the feeble attempt of learned counsel Dr. Ayeni, the facts in OKEREKE VS. ‘YAR ADUA (Supra) and the decision made therein are similar enough to make the principles laid therein by the Supreme Court to be fully applicable to the facts and circumstances of this appeal. Suffice it to say, here that the case of UNIVERSITY OF LAGOS VS. AIGORO (Supra) and paragraph 49(2) were referred to in OKEREKE VS. ‘YAR ADUA but yet the Supreme Court decided as it did. See OKEREKE VS. ‘YAR ADUA (Supra) as per Tabai JSC at pages 135 – 136 F-A.

I wish to add that Rule 6(2) of the Practice Direction 2007 cannot be applicable where Rule 3(4) has been or is deemed to have been appropriately invoked. This is because under Rule 3(4) after the default of the parties to act within the time stipulations no application to take any steps shall be filed or entertained. In the instant appeal, it is my considered view that the responses of the parties to the pre-hearing notice issued by Secretary of the Tribunal without any prior application Respondents was an exercise in futility. Without a prior application, the issuance of the notice was of no effect whatsoever. Any response thereto amounted to putting something on nothing. It is a cliche to add: it would not stand. See SAVAGE VS. MCFOY.

Upon the foregoing reasons, this appeal lacks merit and it is accordingly dismissed. The decision of the lower Tribunal refusing the oral application for extension of time to apply or pre-hearing notice and deeming order that the application filed on 7/8/07 was properly filed as well as the order deeming the petition as abandon and dismissed are hereby affirmed. I order for =N=30,000 costs in favour of the 1st Respondent only.

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Other Citations: (2008)LCN/2954(CA)