Ogunnubi Moses Olufunso V. Independent National Electoral commission & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
SIDI DAUDA BAGE, J.C.A,
This is an appeal by the Appellant who was the Petitioner at the Governorship/National Assembly and Legislative Houses Election Petition Tribunal, Ogun State, sitting at Abeokuta in Petition No. EPT/OG/HA/8/2007, against the Ruling of the Tribunal Coram: Honourable Justices H.M. Tsammani, B.H. Ismail, C.U. Ukpe, U.M. Sadiq and C.O. Onyeabo, delivered on 30th day of July, 2007, wherein the Honourable Tribunal dismissed the Petition as having been abandoned, pursuant to Paragraph 3(4) of the Election Tribunal and Court Practice Direction, 2007. The facts leading up to this appeal are briefly set out as follows:-
“Elections were held throughout the Federal Republic of Nigeria on the 14th of April, 2007 into the State Legislative Houses of Assembly. The Petitioner/Appellant contested the election on the platform of All Nigeria People’s Party (ANPP) into the Ogun State House of Assembly for Ijebu-East Constituency and at the end of the election, the 3rd Respondent was declared winner of the election by the 1st Respondent, the Independent National Electoral Commission (INEC)”.
Aggrieved by the return of the 3rd Respondent at the said election, the Appellant filed a Petition No. EPT/OG/HA/8/2007 on the 11th of May, 2007 against the Respondents on the following grounds (in summary):-
(a) The 3rd Respondent was not duly elected by a majority of lawful votes cast at the election as voting was frustrated.
(b) That the return of the 3rd Respondent at the election (for Ogun State House of Assembly Ijebu-East) was invalid by reasons of corrupt practices and non-compliance with the provisions of the Electoral Act, 2006.
The Appellant then prayed the Tribunal that it be determined as follows:-
(a) That the purported return of the 3rd Respondent for Ijebu-East Constituency of Ogun State Legislative House by the 1st, 2nd, 4th – 15th Respondents on the 14th of April, 2007 election be declared invalid, null and void and of no effect whatsoever, because of corrupt practices and non-compliance with the provisions of Electoral Act, 2006; or the Appellant be declared winner.
(b) Order of the Tribunal that the 1st, 2nd, 4th – 15th Respondents should conduct fresh election in the said Constituency following the due process of the law.
By the provision of Paragraph 3(1) of the Election Petition Tribunal and Court Practice Direction, 2007, the Petitioner is expected to, either within 7 days after filing and service of the Reply on the Respondent, or 7 days after filing and service of the Respondent’s Reply, apply for issuance of Pre-hearing Notice as in Form TF007. The results of failure to comply with Paragraph 3(1) of the Practice Direction, the Appellant (Petitioner) failed to apply for the issuance of Pre-hearing Notice within the time stipulated under Paragraph 3(1) of the Practice Directions, whereof he applied for an enlargement of time within which to file the Pre-hearing Information Sheet and to deem the Pre-hearing Information Sheet already filed as properly filed and served. It is against the said application for enlargement of time the two sets of Respondents to wit: 1st – 2nd, 4th – 15th Respondents and the 3rd and 16th Respondents respectively filed separate Notices of Preliminary Objection. The Preliminary Objection of the 1st, 2nd, 4th – 15th Respondents is dated and filed 20/7/2007 while the 3rd and 16th Respondents is dated and filed 24/7/2007. The Tribunal entered a considered Ruling on these applications on the 30th day of July, 2007 and dismissed the Petition. Dissatisfied with the dismissal of the Petition by the Tribunal, the Appellant filed a Notice of Appeal dated the 19th of August, 2007.
In accordance with the Rules of this Court, the Appellant filed his Amended Brief of Argument dated the 16th of December, 2008, but filed on the 6th of January, 2009. Having regard to the Grounds of Appeal filed, the Appellant contend that the following are Issues arising for determination in this appeal:-
(i) Whether there is a conflict between the provisions of Paragraph 3(4) of the Election Petition Tribunal and Court Practice Direction, 2007 and the provisions of Paragraph 43(1) of the First Schedule to the Electoral Act, 2006 (Grounds 1 and 3) and
(ii) If the answer to Issue (i) is in the affirmative, whether the lower Tribunal was right when it invoked and applied the provisions of Paragraph 3 (4) of the Election Petition Tribunal and Court Practice Direction, 2007 as the basis for dismissing the Appellant’s Petition. (Ground 2).
The 1st, 2nd, 4th – 15th Respondents filed their Brief of Argument dated and filed the 26th of March, 2009. In it, they adopted the Two (2) Issues formulated by the Appellant in his Brief of Argument to wit:-
(1) Whether there is a conflict between the provisions of Paragraph 3(4) of the Election Petition Tribunal and Court Practice Direction, 2007 and the provisions of Paragraph 43(1) of the First Schedule to the Electoral Act, 2006.
(2) If the answer to Issue (1) is in the affirmative, whether the lower Tribunal was right when it invoked and applied the provisions of Paragraph 3(4) of the Election Petition Tribunal and Court Practice Direction, 2007 as the basis for dismissing the Appellant’s Petition.
The 3rd and 16th Respondents in their joint Brief of Argument dated the 1st of January, 2008, but filed on the 4th of February, 2008, submitted that the lone issue for determination is whether or not the Appellant’s Petition was rightly dismissed for failure to comply with Paragraph 3(4) of the Election Petition Tribunal and Court Practice Direction, 2007. The Appellant argued the issues formulated seriatim.
ISSUE 1
The Appellant started his submissions by stating the provisions of Section 151 of the Electoral Act, 2006 and Paragraph 43(1) of the First Schedule to the Electoral Act, 2006. Then proceeded to state Paragraph 3(1), (3) and (4) of the Election Petition Tribunal and Court Practice Direction, 2007. The Appellant submits that the word “any proceedings” and “any act” as used in Paragraph 43(1) of the First Schedule, cover every aspect of the proceedings in the Petition before the lower Tribunal, including the pre-hearing session. See:- Zarigina Vs. Commissioner of Works, Borno State (2001) 9 NWLR 460 at 481 (B-C); also Mairo Vs. Laushi (1993) 4 NWLR (pt. 288) 423 at 431-2. The Appellant submitted that from the provisions of Paragraph 43(1) of the First Schedule to the Electoral Act, 2006, particularly the underlined portion thereof, it is clear that the provisions give the lower Tribunal the power to grant extension of time in respect of all aspects processed and proceedings in the Petition, which are time bound. The Appellant further submitted that by the provisions of Paragraph 3(4) of the Practice Direction, 2007, …………………. no application for extension of time to “comply with the provisions of Paragraph 3(1) of the Practice Direction,” shall be filed or entertained (by the Tribunal), it is submitted that the provisions of Paragraph 3(4) of the Practice Direction is meant to apply to an aspect already covered by the provisions of Paragraph 43(1) of the First Schedule to the Electoral Act, 2006, in respect of application for extension of time to apply for issuance of Form TF007. Application to enlarge time to apply for the issuance of Form TF007 as provided for, under Paragraph 3 of the Practice Direction, fall under “…………… doing any act or taking any proceedings 0000.00” In the Petition as provided for under Paragraph 3(1)(3) and (4) of the First Schedule.
The Appellant further submits that the provisions of Paragraph 43(1) of the First schedule to the Electoral Act, 2006, have covered the field of application for enlargement of time within which to take any step in the Petition. And the doctrine of “covering the field,” the provisions of Paragraph 3(4) of the Practice Direction conflict with the provisions of Paragraph 43(1) of the First Schedule. See:- Attorney General, Abia State Vs. Attorney General of the Federation (2002) 3 SCNJ 16 at 189. The Appellant therefore urge this Court to resolve Issue (i) by an answer in the affirmative.
On Issue NO.2, the Appellant submits that the provisions of Section 1st of the Electoral Act, 2006, make the First Schedule to the Electoral Act, 2006, “the rules of procedure to be adopted for election petitions ………..” The provisions of the First Schedule to the Electoral Act, 2006, are therefore the rules of procedure which the lower Tribunal was bound to follow in proceedings in election petitions before it. See:- Boni Haruna Vs. Modibo (2004} 16 NWLR (Pt. 900) 487. The Appellant submits further that the Supreme Court in Uni-Lag Vs. Aigoro (1984) NSCC 745 at Pages 755-756 held that “Practice Direction are inferior to rules of procedure and must give way in case of a conflict with the provisions of the rules of procedure.” See:- Abubakar Vs. Yar’Adua (2008) 4 NWLR (Pt. 1078) 465, 515 (F-G); Okereke Vs. Yar’Adua (2008) 8 MJSC 182 at 218 (A-B). The Appellant further submits that since there is a conflict between the provisions of Paragraph 43(1) of the First Schedule (which are the Rules of Practice before the lower Tribunal and the provisions of Paragraph 3(4) of the Practice Direction, 2007), the provisions of Paragraph 43(1) of the First Schedule shall prevail. And the lower Tribunal ought to have so held, and ought to have applied the provisions of Paragraph 43(1) of the First Schedule, to consider and grant the Appellant’s application for extension of time to apply for the issuance of Form TF007. See also:- Dr. Mrs. Alli 8r. Another Vs. Senator Osakwe (unreported decision) of the Benin Division of this Court, dated 28/5/2008 in Appeal No. CA/B/EPT/261/2008, which is in all fours with the present Appeal.
The Appellant submits further that this Court should confirm its decision in Alli Vs. Osalewe (Supra) and to hold that the decision of the Supreme Court in Okereke vs. Yar’Adua (Supra) is neither relevant to this case nor applicable to the present appeal. The Appellant submits that this Court should resolve Issue 2 by an answer in the negative form, and to, pursuant to the provisions of Order 4, Rule 4 of the 2007, Rules of this Court, and section 16 of the Court of Appeal Act, 2002, grant the prayer for enlargement of time to file Form TF007 as stated in the Appellant’s motion on notice dated 24th of July, 2007. The Appellant submits in conclusion that this Court has always held that the Courts in Nigeria have moved away from deciding cases on technicalities, as against hearing cases on their merits. Allowing the appeal in this case, will meet the justice of the case, particularly, when it relates to an election matter in which largest Nigerian populace is interested. See:- Yusuf Vs. Obasanio (2003) 16 NWLR (Pt. 847) 544 at 640 (C-E). The learned Counsel to 1st, 2nd, 4th – 15th Respondents in his submission to the Issues raised by the Appellant in his Brief of argument, stated that Issue 1 as raised by the Appellant, is an academic question that has no relevance to the present appeal. This is because, the particulars of error in Grounds One and Three of the Appellant’s Notice of Appeal on which the issue is predicated, are academic. They were not issues before the lower Tribunal. They were never raised, argued or decided on by the Tribunal. The law has always recognized particulars of error in a ground of appeal as complements to and dependent on the ground of appeal. Consequently, once particulars of a ground speak a different language outside the contemplation of the ground of appeal, they are no more particulars of the relevant ground and goes to no issue. See:- (1) Eiowhomu Vs. Edok-Eter Mandiles Ltd. (1986) 5 NWLR (Pt.39) 1; (2) Anamnco Vs. First Marina Trust Ltd. (2000) 1 NWLR (Pt. 640) 309 Paragraphs A-C. Learned Counsel to the 1st Respondent & others submits further that the particulars in respect of Ground One unequivocally complain about the dismissal of the petition, pursuant to the provision of Paragraph 3(4) of the Election Petition Tribunal and Court Practice Direction, 2007. But the particulars in error is founded on the provisions of Paragraphs 43(2) to (7) and 49(1) of the First Schedule to the Electoral Act, 2006 and it seeks to establish that the Tribunal can extend time by virtue of the said Paragraphs. Our contention is that the fallacy of the argument is not whether the Tribunal can extend time or not, as it does not apply to the ground as raised.
Learned Counsel to the 1st Respondent& Others submits further that the question whether the Appellant applied for extension of time pursuant to the provisions of First Schedule to the Electoral Act, 2006 and same was refused by the Tribunal. Our answer is that, there was no such application, which exposes the fact the particulars of error complementing Ground One of the Appellant’s Notice of Appeal goes to no issue. We urge the Court to so hold. Learned Counsel to the 1st Respondent& Others submits further that we contend that the particulars of error in support of Ground Three in the Appellant’s Notice of Appeal, there is no Ground Three in the Appellant’s Notice of Appeal. A ground of appeal must relate to the decision or judgment appealed against. The purpose of a ground of appeal is to give the Respondent notice of the exact complaint the Appellant has against the decision of a Court. See:- (1) Afri-Bank (Nig.) Plc. Vs. Osisanya (2000) 1 NWLR (pt. 642) 598 PPLY at 611 paragraphs A-B; (2) Onifade Vs. Olayiwola (1990) 7 NWLR (Pt. 161) 130; (3) Agua Ltd. Vs. Ondo State Sports Council (1988) 4 NWLR (Pt. 911 622; (4) Anamnco Vs. First Marina Trust Ltd. (Supra) PPLY at 317 Paragraphs A-B.
Learned Counsel to the 1st Respondent & Others argued that it is worthy of note that the decision of the Appellant and his Counsel to consent to the dismissal of the Appellant’s application for extension of time and the Ruling thereon, does not form part of this appeal, rather the Appellant predicated his appeal and argument on the fact that his application of 14/07/2007 was still pending and disregarded when Tribunal struck out his Petition, thereby arguing that the Tribunal ought to have heard and granted his application. This is a misconception of the facts.
On Issue 2, learned Counsel to the 1st Respondent & Others submitted that once Issue 1 is not answered in the affirmative, the Issue 2 is not worthy of consideration. But if the Court considers otherwise, we submit that Appellant’s arguments in his Brief of Argument do not relate to the facts of this case. It is clearly distinguishable because, the Appellant had no application for extension of time pending before the Tribunal to save his Petition. He graciously and unequivocally conceded to the dismissal of his application of 14th July, 2007, which makes his argument in Paragraphs5 to 5.17 of his Brief is a mere academic exercise. In answer to the Appellant’s Issue 2, learned Counsel to the 1st Respondent & Others submits that the Tribunal was right in its decision by applying the provisions of Paragraph 3(4) of the Election Petition Tribunal and Court Practice Direction, 2007. This is because, the President of the Court of Appeal in the exercise of the powers accorded to his office by Section 248 of the 1999 Constitution; Section 30 of the Court of Appeal Act and Order 19, Rule 7 of the Court of Appeal Rules, 2007 made the Election Petition Tribunal and Court Practice Direction, 2007; which applies to the Presidential, Governorship, National Assembly and States Assembly Election Petitions. See:- Buhari Vs. INEC (2008) 12 SCM (Pt. 2) at 234 PPLY at PC 278.
Learned Counsel to the 1st Respondent& Others submits further that the Appellant in this matter, failed to comply with the provision of Paragraph 3(1) of the Practice Direction after he was served with the filed copy of the entire Respondents’ Reply on the 19th June, 2007. His application for extension of time is to enable him file the Pre-hearing Information Sheet (contrary to the provision of Paragraph 3(2) was not made until the 14th July, 2007 (approximately 4 weeks after the receipt of the entire Respondents’ Reply). We submit that the time allowed the Appellant had expired as he went to sleep. Learned Counsel to the 1st Respondent& Others submits further that the Respondents did not apply for the issuance of the Pre-hearing Information Sheet as obliged by Paragraph 3 (3) of the Practice Direction. We submit that the Respondents’ obligation to apply for the issuance of the Pre-hearing Information sheet is optional, unlike the case of the Appellant. Learned Counsel to the 1st Respondent & others further submits that Paragraph 3(4) of the Practice Direction is unambiguous on the consequences of both parties failure to apply for the issuance of Pre-hearing Information Sheet within the stipulated time. The Tribunal was therefore correct in treating the Petitioner’s Petition as abandoned and consequently dismissed his Petition in its entirety. Learned Counsel to the 1st Respondent & Others submits further that the Petitioner’s reliance on the constitution and some provisions in the First Schedule cannot work, this is because, you cannot put something on nothing. See:- UAC Vs. McFoy (1962) AC 52. The Tribunal is urged to resolve this Issue against the Appellant.
Learned Counsel to the 3rd and 16th Respondents in a joint Brief of Argument, submitted in the treatment of the sole issue formulated on their behalf for determination that based on the Ruling of the Tribunal contained at Page 141 of the Records, the Appellant as Petitioner, had no application for extension of time before the Tribunal and cannot complain that the non-existent application was refused. Learned Counsel further submitted that the mere filing of a petition, pursuant to Paragraph 1 of the Practice Direction, does not confer jurisdiction on the Tribunal over the Petition or anything incidental to it. The Election Petition Tribunal (hereinafter called “the Tribunal) has no jurisdiction to exercise on any Petition or anything incidental to it until the Petitioner has crossed all the hurdles contained in Paragraphs 3(1) – (4) of the Practice Direction. Learned Counsel further submits that the use of the word “shall” in the provisions of Paragraph 3 (4) of the Practice Direction, is a word of mandate and it is binding. It has the invaluable significance of excluding the idea of discretion and imposes a duty/obligation. See:- Achineku Vs. Isagba (1988) 4 NWLR ([‘t. 89) 411 at 420 Paragraphs B-C.
Learned Counsel further submits that Paragraphs3 (4) and (5) of the Practice Direction, emphasized the finality and irrevocability of the consequences of failure in such a strong manner, because, the Tribunal has no jurisdiction to exercise without a strict compliance with the requirements. Learned Counsel further submits that the issue is clearly a jurisdictional one and the Court cannot act without where it has none, or it is being challenged. Learned Counsel further submits that mistake of Counsel cannot confer jurisdiction on a Court or tribunal which lacks same. See:- Abegunde Vs. Olukukusi 11 (2003) FWLR (Pt. 155) 683 at 693; Adekanye Vs. FRN (2005) All FWLR (Pt. 252) 514 at 529 Paragraphs B-D. Learned Counsel further submits that the case of Haruna Vs. Modibo (2004) 16 NWLR (pt. 900) 487 relied upon by the Appellant, is inapplicable to the present Appeal. Election Petition being “SUI GENERIS’ are peculiar and are not open to the indulgence that civil litigants enjoy, this being so, the provisions of the law must be adhered to in the strictest sense of it. See:- Buhari Vs. Dikko Yusuf (2003) All FWLR.(pt. 274) 329 at 355; Buhari &. Ors. Vs. Obasanjo &. Ors. (2003) 16 NSCQR 1 at 44; Ogu Vs. Ekweremadu (2005) All FWLR (Pt. 260) 2 at 29. Learned Counsel further submits that where a party had acknowledged of what is to be done, how and when it is to be done and the consequences of any non-compliance, he can hardly complain of the consequences when he fails to comply. See:- Ladipo Vs. Hon. Oduyoye (2004) 1 EPR 705 at 708.
Learned Counsel further submits where time is of the essence in complying with an act in an election petition, as in Paragraphs 3(2) to (5) of the Practice Direction when such time has lapsed, the defect becomes incurable. See:- Emeka Vs. Emodi (2004) 16 NWLR (pt. 900) 433 at 459. Learned Counsel to the 3rd and 16th Respondents further submits that the provision of Paragraph 43(1) of First Schedule to the Act, is general in nature whilst the provisions of Paragraph 3 (1-5) of the Practice Direction are specifically applicable to application for issuance of Pre-hearing Notice which is specifically created as a jurisdictional hurdle for every Petitioner to cross to guarantee him a hearing of his Petition. See:- Attorney General. Ogun State Vs. Attorney General of Federation (2003) FWLR (Pt. 143) 206 at 246 and N.D.I.C. Vs. Sheriff (2003) FWLR (Pt 189) 634 at 656-657. Learned Counsel to the said Respondents further submits that omission of Counsel as in the instant case, is not just another irregularity but a fundamental matter touching the very root of the Petition, because, it is a condition that must be fulfilled before the Petition can be set down for pre-trial which precedes trial and aids in the smooth running of the trial. The Appellant robbed the Tribunal of jurisdiction to adjudicate over its petition. This Court is urged to dismiss the Appeal.
The Appellant filed a Reply to the 1st, 2nd, 4th – 15th Respondents’ submission in their Brief of Argument. The Reply is dated 17th of April, 2009, but filed on the 22nd of April, 2009. It is submitted that, the arguments and conclusions of the learned Counsel to the 1st Respondent and Others amounts to raising a Preliminary Objection to the hearing of the Appellant’s appeal. It ought to have filed a Notice of Preliminary Objection stating the grounds for the objection which will form the basis of the submission of the Respondents’ Counsel in their Brief. Learned Counsel to the Appellant submits in respect that the withdrawal of application for extension of time to apply for Form TF007 dated 14/07/2007 was meant to have same substituted with a similar application dated 23/07/2007; and the motion on notice dated 23/07/2007 which constitutes Pages 103 to 114 of the Records, was clearly still pending when the lower Tribunal dismissed the substantive Petition in its Ruling dated 30/07/2007.
The Appellant further submits that the Respondents’ Counsel failed to show that there is no conflict between the provisions of Paragraph 3(4) of the Election Petition Tribunal and Court Practice Direction, 2007 and the provision of Paragraph 43(1) of the First Schedule to the Electoral Act, 2006, in their application to the circumstances of the Petition before the lower Tribunal. The Appellant submits further in respect of Issue No.2 the same argument proffered with Issue 1.
The Appellant also filed a Reply to the 3rd and 16th Respondents’ arguments in their Brief. The Reply is dated 14/05/2009, but filed on the 20/05/2009. Learned Counsel to the Appellant submits that the motion on notice dated 23/07/2007 which constitutes Pages 103 and 114 of the Records, was clearly still pending when the lower Tribunal dismissed the substantive Petition. The effect of this is that, the Respondents’ Counsel failed to show that there is no conflict between the provisions of Paragraph 3(4) of the Election Petition Tribunal and Court Practice Direction, 2007 and the provisions of Paragraph 43(1) of the First Schedule to the Electoral Act, 2006 in their application to the circumstances of the Petition before the lower Tribunal. On this position, see:- the unreported Case of this Court in Judgment dated 9/7/2008 in Appeal No. CA/I/EPT/HA/24/2007:- Otunba A. Asalaolu Vs. INEC & 16 Others. Also, Sogaolu Vs. INEC in CA/I/EPT/NAHR/3/2007 delivered on 27/10/2008. The Appellant further submits that the authorities relied on by the Respondents in their argument, are clearly distinguishable from this Appeal. The Appellant further submits that, since there is conflict between the provisions of Paragraph 43(1) of the First Schedule and the provisions of Paragraph 3(4) of the Practice Direction, 2007, the only order as confirmed by the Supreme Court in Okereke Vs. Yar’Adua (Supra) is that, the provisions of Paragraph 43(1) of the First Schedule ought to be upheld, and the Appeal ought to be upheld. The Appellant finally submits that this Court should invoke its powers under Section 16 of the Court of Appeal Act and grant the application for extension of time dated 23/07/2007. The application is intact for consideration by this Court.
On the part of this Court, firstly, looking at the Issues formulated for determination by the Parties in this Appeal, they are substantially identical, although the 3rd and 16th Respondents on their part, had considered the Issues for determination to one against the two by the Appellant as adopted by 1st, 2nd, 4th – 15th Respondents. It should be noted that the sole Issue of the 3rd and 16th Respondents’ Brief of Argument has encompassed all the Two Issues formulated by the Appellant as adopted by the other Respondents in their Brief of Argument which become conterminous in all respect they raised the same question of effect of failure to comply with the Practice Direction, 2007. The two sets of Issues emanated from the ground and the judgment in this case. That being the case, I have opted to be guided by the sole issue as raised by the 3rd and 16th Respondents.
In considering the Issues raised in this appeal, I deem it apt to set out the provision of Paragraph 3 (4) of the Election Petition and Court Practice Direction, 2007, which is the fulcrum of this appeal, it reads thus:-
“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 as no application for extension of time to take that step shall be filed or entertained”.
No doubt, there cannot be away to appreciate the import of Paragraph 3(4) without considering (1). (2), (3) of Paragraph 3 of the Practice Direction. Paragraph 3 (1) provides:-
“within 7 days after the 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”.
Paragraph 3 (2) provides:-
“upon application by a Petitioner under subparagraph (1) above, the Tribunal or Court shall issue to the Parties or their Legal Practitioners (if any) a pre-hearing conference notice as in form TF007 accompanied by a pre-hearing information sheet as in Form TF008 for the purposes set out here under:-
(a) ……………………………….
(b) ……………………………….
(c) ……………………………….
(d) ……………………………….
Paragraph3 (3) provides:-
“The Respondent may bring the application in accordance with sub-paragraph (1) above where the Petitioner fails to do so, or by motion which shall be served on the Petitioner and returnable in 3 clear days, apply for an Order to dismiss the Petition”.
The crux of the issue at the lower Tribunal was that, the Appellant then (Petitioner), after being served with all the Respondents, replies to the Petition, did not as required by Paragraph 3(1) of the Practice Direction within 7 days, apply for the issuance of Pre-hearing Notice as in Form TF007. Realizing he was out of time the Appellant (Petitioner) filed a motion seeking for extension of time to apply for the issuance of Pre-hearing Notice the motion was dated the 14/07/2007 3 weeks after the receipt of the Respondents’ Reply. In response to this motion, the Two (2) sets of Respondents to wit: 1st, 2nd, 4th – 15th Respondents, filed a Preliminary Objection dated 20/07/2007 and the 3’d and 16th Respondents filed their Preliminary Objection dated 24/7/2007. The preliminary Objection of the 3rd and 16th Respondents was subsequently withdrawn and struck out. The Appellant (Petitioner) also withdrew his motion on notice dated 14/07/2007 which he sought for enlargement of time to comply with Paragraph 3(1) of the Practice Direction. The withdrawal was objected to by all the Respondents, and the lower tribunal disallowed the Appellant (Petitioner) from withdrawing that motion of 14/07/2007. The Appellant had argued that the aim of withdrawing the motion of the 14/07/2007, was meant to have same substituted with a similar application dated 23/07/2007. The Preliminary Objection of the 1st, 2nd, 4th – 15th Respondents was heard and Replies of both the Appellant and the 3rd and 16th Respondents taken before the Tribunal and ruled on the 30th of July, 2007 at Page 142 of the Records:-
“Having held as above, we are of the view that we are compelled to invoke the provision of Paragraph 3(4) to this Petition. This is because, the issuance of the pre-hearing notice is a condition precedent to hearing of this Petition. Once that condition has not been complied with within the mandatory period stipulated for doing it and no extension of time is allowed to be filed and if filed, shall not be entertained this Petition cannot go further than where it is”.
At Page 143 of the Records, the lower Tribunal stated:-
“This Petition has come to a tragic end. As we are not allowed to show any favour for disobedience, the only solution is to invoke sub-paragraph 4 of Paragraph 3 of the Practice Directions. Consequently, this Petition is hereby dismissed”.
The main contention of the Appellant in this appeal is, even where the Tribunal refused to allow his application for extension of time under Paragraph 3 of the Practice Direction and invoked sub-section (4) to dismiss his Petition, the Tribunal should or ought to have allowed the extension of time sought for, under Paragraph 43(1) of the First Schedule to the Electoral Act, 2006. The Appellant argued that conflict exist between the provisions of Paragraph 43(1) of the Electoral Act, 2006 and Paragraphs 3(1) and (4) of the Practice Direction, 2007. For the resolution of this conflict, the Appellant sought to and relied on the decision of the Supreme Court in Okereke Vs. Yar’Adua (2008) 8 MJSC 182 at 218 (A-B). The Supreme Court stated thus:-
“There is still another aspect of the submission of learned Counsel referred variously to the Practice Direction as statutes or enactments. I think he got it wrong. Practice Direction do not strictly speaking qualify as statutes or Rules of Court. They are ancillary to and therefore subordinate to Rules of Court. Consequently, in the event of a conflict between a Rules of Court and a Practice Direction, the Rule must prevail”.
For the purposes of clarity, this Court will set out the provisions of Paragraph 43(1) of the First Schedule to the Electoral Act, 2006 which deals with enlargement and abridgement of time. Paragraph 43 (1) provides:-
“The Tribunal or Court shall have power subject to the provisions of sub-section (4) 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 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”.
The issue of conflict between the Two (2) statutes has already been settled by the Supreme Court in Okereke Vs. Yar’Adua (Supra). I only need to add that this Court earlier has pronounced on the issue of this conflict between the provisions of the Electoral Act, 2006 and the Practice Direction, 2007.. This Court in the unreported judgment dated 9/7./2008 in Appeal No. CA/I/EPT/HA/24/2007.: Otunba A. Asalaolu Vs. INEC &. 16 Ors., after setting out the provisions of Paragraph 43(1) of the First Schedule to Electoral Act, 2006 and Paragraphs 3(1) and (4) of the Practice Direction, 2007.,held that:-
“Contrary to the arguments proffered by the learned Counsel for the Respondents, there is certainly a conflict between the two provisions regarding extension of time” (Page 14 lines 7.-9) of the Judgment”.
I do not wish to go into the issue of conflict between the two statutes. It is already settled both by the Supreme Court and this Court as stated above. What is left is the prayer of the Appellant that this Court should invoke its powers under Section 16 of the Court of Appeal Act. I believe now Section 15 of the Court of Appeal Act, 2007. to grant the Appellant’s application for extension of time dated 23/07/2007.. Before the invocation or otherwise of Section 15 of the Court of Appeal Act, 2007, it is apposite to examine the peculiarities of the events at the lower Tribunal which led to the application for extension of time, the preliminary objections and the subsequent Ruling by the Tribunal. The scenario of the events at the lower Tribunal was that the Appellant (Petitioner) was served with the entire Respondents’ Reply on the 19/06/2007, but failed to apply for the issuance of Pre-hearing Information Sheet until 12/07/2007, that is, three weeks after the receipt of the entire Respondents’ Reply.
The Appellant (Petitioner) then subsequently filed a motion on notice dated the 14/07/2007, In response to this motion, the Two (2) sets of Respondents filed a preliminary objection. The Preliminary Objection of the 1st, 2nd,4th – 15th Respondents is dated the 20/07/2007 while that of the 3rd and 16th Respondents is dated 24/07/2007. In order to expedite the hearing of the Petition, th e 3’d and 16th Respondents withdrew their Preliminary Objection. The Appellant on the same day, withdrew from the Court, his motion on notice dated the 14/07/2007, According to the Appellant, the withdrawal was aimed at substituting that motion with a similar one. The Tribunal disallowed the withdrawal. It equally allowed the Counsel to the 1st, 2nd, 4th – 15th Respondents to move his Preliminary Objection, which was aimed at determining the competence of the Appellant’s motion of the 14/07/2007 for extension of time, After taking the Preliminary Objection, the Tribunal reserved Ruling to the 30/07/2007. It ruled and dismissed the Appellant’s Petition for lack of compliance with the Paragraph 3(1) of the Practice Direction, The Tribunal ruled it had no jurisdiction by the effect of Paragraph 3 (4) of the Practice Direction to grant the extension of time being sought to by the Appellant, It dismissed the entire Petition for non-compliance with Paragraph 3(1) of the Practice Direction,
By the fact of upholding the Preliminary Objection of the 1st, 2nd,4th – 15th Respondents, the Appellant’s motion of the 14/07/2007 ceases to have life, However before the Tribunal’s Ruling of the 30/07/2007, the Appellant on the 23/07/2007 said he filed another motion asking for extension of time to comply with Paragraph 3(1) of the practice Direction. The motion of the 23/07/2007 was filed after the Tribunal had already reserved for the 30/07/2007 to rule on the Appellant’s motion of the 14/07/2007. The implication of filing the subsequent motion from the view point of this Court may be aimed at arresting the Ruling of the Tribunal of the 30/07/2007. I must be quick to mention here that there is nothing knows to our jurisprudence or law as “arrest of judgment” or “arrest of ruling”. The long and short of it anyway is that, the Appellant’s motion of the 14/07/2007, is dead by the Ruling of the tribunal of the 30/07/2007. The Appellant now wants this Court to use its powers under Section 15 of the Court of Appeal Act, 2007, to grant him the extension of time sought. This time, he intends this Court to grant his application under Paragraph 43(1) of the Electoral Act, 2006. The scope of power of Court of Appeal under Section 16 of the Court of Appeal Act, 2004 now Section 15 Court of Appeal Act, 2007, was examined by this Court in the case of Usman Vs. Kaduna State House of Assembly & Ors. (2007) 11 NWLR (Pt. 1044) 148 at 161 Ratio 12. Also, See:- Balogun Vs. Agboola (1974) 1 All NLR (Pt. 11~ Omoregie Vs. Idugremnwanve (1985) 3 NWLR (Pt. 5) 41; Nzekwu Vs. Nzekwu (1989) 2 NWLR (Pt. 104) 373. The issue militating against the Appellant’s application is that, the said motion filed by him on the 23/07/2007, is not part of the record of Appeal before this Court. At Page 115C, Lines 24-28, only showed the intention of the Appellant to withdraw the application of the 14/07/2007 and substitute same with another. At Page 1150, it only showed the lower Tribunal disallowed the withdrawal of the motion of the 14/07/2007. Now this motion of the 23/07/2007 in which the Appellant wants this Court to invoke the provision of Section 15 of the Court of Appeal Act which is not part of the Record of Appeal is not effectively before this Court. Its existence remains speculative only to the imagination of the Appellant. If the motion was filed since it was made on notice, was it ever served on the Respondents? It is their right to be served to put life to the motion. If served, have the Respondents reacted to the said motion by filing a Counter-Affidavit or not? Any proof of service of the motion on the Respondents all these are not before the Court. There must be sufficient material before this Court to clothe it with jurisdiction to invoke Section 15 of the Court of Appeal Act, 2007. There is therefore nothing in this appeal to consider. This Court has pronounced in Sogaolu Vs. INEC in CA/I/EPT/NAHR/3/2007 delivered on the 27th day of October, 2008:
“Since the time allowed for application of Pre-hearing Notice had elapsed, the Petition was not initiated by due process to clothe the Tribunal its jurisdiction”.
In the final analysis, this Appeal fails for lacking in merit and it is accordingly dismissed. As a result, the Ruling of the lower Tribunal Coram Honourable Justices H. M. Tsammani, B. H. Ismail, C. U. Ukpe, U. M. Sadiq and C. O. Onyeabo, delivered on the 30thday of July, 2007 in petition No. EPT/OG/HA/8/2007 dismissing this Petition, is hereby affirmed by this Court.
No Order as to Costs.
Other Citations: (2009)LCN/3323(CA)
