Otunba A. Asaluola V. Independent National Electoral Commission & Ors (2008)
LawGlobal-Hub Lead Judgment Report
CHIDI NWAOMA UWA, J.C.A.
This appeal is against the Ruling of the Governorship and Legislative Houses Election Tribunal, Abeokuta Ogun State (hereafter referred to as the Tribunal) delivered on the 1st day of August, 2007 wherein the Tribunal dismissed the petition as having been abandoned pursuant to paragraph 3 (4) of the Election Tribunal and Court Practice Directions, 2007.
The Appellant was the candidate of the ANPP under whose sponsorship he participated as a candidate in the Election into the Ogun State House of Assembly seeking to represent the Obafemi Owode Constituency at the said Assembly. The Elections were conducted into the said House of Assembly on 14th April, 2007 and the 3rd Respondent (Tunji Egbetokun) being the candidate of the 17th Respondent (peoples Democratic Party) was declared the winner by the 1st, 2nd 4th-16th Respondents (INEC).
The Appellant being dissatisfied with the conduct of the Election and the declaration arising there from filed a petition dated 11/5/07 before the Tribunal seeking to be returned as the winner of the Election or in the alternative seeking the nullification of the Election for the reason of substantial non-compliance with the provisions of the Electoral Act.
In course of the proceedings, the Petitioner applied for issuance of Pre-hearing forms TF007 and TF008 which all parties involved had duly completed and filed in the Tribunal Registry.
On realizing that the application for the issuance of Pre-Hearing forms were made out of time, the Petitioner filed an application dated 13/7/07, filed on 16/7/07 seeking for an enlargement of time within which to apply for the issuance of Pre-hearing forms (pursuant to paragraph 3 (1) of the Practice Directions) and for an order deeming the Pre-hearing notice already filed, processed and fixed for hearing by the Tribunal as having been properly filed and served (page 107 of the records).
There was an affidavit in support of the application. (Pages 109-110 of the records). Paragraphs 4-7 of the said affidavit gave the reasons for the lateness in filing the application for the issuance of Pre-hearing Notice as required by the Tribunal and Court Practice Directions.
There was also filed in support of the application, a written address and submissions in support of the relief sought in the Motion on Notice for enlargement of time to apply for Pre-hearing Notice. (Pages 111-113 of the Records). On 19/7/07 the petitioner filed a supplementary written address/brief in respect of the same application.
On the 24/7/07 the 3rd and 17th Respondents filed their written address in response and in opposing the application to the petitioner’s application/motion filed on 16/7/07. On 26/7/07 the 1st, 2nd and 4th-16th Respondents in response to the petitioner’s application filed their written address also opposing the application.
From the printed records, page 137, the matter came up on 1/8/07 for adoption of written addresses and submissions in respect of the petitioner’s application filed on 16/7/07 for extension of time. On the said 1/8/07 Adekunle Sulaiman Esq learned counsel for the Petitioner was absent, the petitioner was also absent. From the proceedings of 1/8/07 the Learned Petitioner’s Counsel was to file a reply on points of law, the application to file a reply was said to have been made on 26/7/07.
The learned counsel to 3rd and 17th Respondents was of the opinion that the learned counsel to the petitioner’s counsel not being in court meant that he had no application to be considered and urged the Tribunal to invoke the provisions of the Practice Directions and strike out the application and specifically paragraph 3 (11) (a) to dismiss the petition.
Learned counsel to the 1st, 2nd 4th-16th Respondents were also in support of the dismissal of the petition and urged the tribunal to dismiss it.
The Tribunal in its considered Ruling discountenanced the petitioner’s application for extension of time to apply for Pre-hearing forms and dismissed the petition as having been abandoned pursuant to paragraph 3 (4) of the Practice Directions.
Being dissatisfied with the said Ruling the Petitioner filed a Notice of Appeal on 22/8/07 wherein three (3) grounds of Appeal were raised. A sole issue was formulated for determination by this court. That is:
“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’:
In response to the sole issue above, the learned counsel for the 1st, 2nd, 4th -16th Respondents Ehizogie Esezobor Esq filed a Notice of their intention to rely upon preliminary objection, filed on 1/2/08. On the same date learned counsel filed the Brief of Argument on behalf of the 1st, 2nd, 4th-16th Respondents in which he incorporated his argument in support of the preliminary objection.
The learned counsel for the 3rd and 17th Respondents Olayode O. Delano Esq in response filed their brief of argument on 4/2/08.
The objection as contained in the Notice of Preliminary objection is that the appellant’s brief of argument was filed out of time and that same was not regularized. In the brief of argument of the 1st, 2nd 4th-16th Respondents in which the particulars were given and objection argued, the learned counsel applied that this appeal be dismissed in limine for want of jurisdiction and incompetence in that the appellant’s brief of argument was filed out of time and that same was not regularized.
It was submitted that the Appellant was served the Record of Appeal on or before the 21/12/07 and that the appellant’s brief although dated 22/1/08 was filed on 24/1/07, 30 days after the date of the service of the records, contrary to paragraph 5 of the Practice Directions, 2007 which allows 10 days within which to file his brief of argument. Finally that the Appellant’s brief having been filed out of time is incompetent, and liable to be struck out which strips this court of jurisdiction to entertain this appeal.
The appellant’s reaction to the preliminary objection raised is contained in his reply brief dated 23/5/08 deemed filed on 27/5/08. The learned counsel for the appellant argued that the objection is speculative and uncertain, as it is alleged that:
“The Record of Appeal was served on the Appellant on or before the 21st of December, 2007…”
He urged that the objection be dismissed, and relied on the case of Agbi v. Ogbeh (2006) 11 NWLR pt 990 page 65, at page 99, Ogbuagu JSC stated thus:
“It is not the function of a Court of Law to speculate on possibilities which are not supported by any evidence. Courts are not concerned with sentiments, speculations and/or conjectures but with hard facts.”
The objecting Respondents by the tone of their objection that the Record of Appeal was served on the appellant “on or before the 21 of December, 2007” clearly shows that the date the record of appeal was served on the appellant is not known to them otherwise the actual date would have been specified. In line with the above authority cited and relied upon by the learned appellant’s counsel it is not part of the duty of this court or any court to comb through the court’s records to discover, confirm or otherwise an allegation that is general, uncertain and speculative. There is nothing to support the Respondent’s objection, “on or before” is too wide. I agree with the learned appellant’s counsel that the objection is speculative, the preliminary objection is overruled. Same is hereby dismissed.
The learned counsel for the 1st, 2nd, 4th-16th Respondents also formulated a sole issue for determination as set out below:
“Whether in the circumstances the Election Petition Tribunal was right in striking out the Petitioners application for extension of time and consequently striking out the Petition as deemed abandoned pursuant to paragraph 3 (4) of The Election Tribunal and Court Practice directions, 2007. ”
Learned counsel to the 3rd and 17th Respondents also formulated a sole issue, which is:
“Whether or not the Tribunal rightfully dismissed the petition of the appellant for his failure to comply with paragraph 3 (1) of the Practice Direction.”
In respect of the substantive appeal in support of his sole issue the learned counsel for the appellant set out the provisions of section 151 of the Electoral Act, 2006, paragraph 43 of the first Schedule or Rules of Procedure for Election Petitions, 2006, paragraph 50 of the first Schedule or Rules of Procedure for Election Petitions, 2006, Order 23 Rule 3 (1) and (2) of the Federal High Court (Civil Procedure Rules) 2000 and Paragraphs 3 (1) to (5) of the Election Tribunal and Court Practice Directions.
I will come to the above provisions in detail, later in this judgment. Learned counsel submitted that the Rules of Procedure which the Tribunal should follow in Election Petitions before it shall be the Rules of Procedure set out in the First Schedule to the Electoral Act, 2006, referred to as the Rules of Procedure for Election Petitions 2006. He relied on the case of Bani Haruna v. Madibba (2004) 16 NWLR (pt 900) 487 where section 139 of the Electoral Act, 2002 which is in pari materia with section 151 of the Electoral Act, 2006 was interpreted. Further that any other rule is an addendum to those set out in the First Schedule and are to be applied to the extent that they are not inconsistent with the rules of Procedure set out in the First Schedule to the Electoral Act, 2006. Learned counsel cited and relied on the case of Egolum v. Obasanjo (2004) 1 WRN 67. RE-Baines (840) 12 A & E 227 and A-G Lamplaigh (1978) 3.Ex. D. 214 at 229. Learned counsel highlighted the provisions of paragraph 43 of the First Schedule to the Electoral Act, 2006 and argued that the power of the Tribunal to enlarge time for doing any act or taking any proceedings under paragraph 3 (1) of the First Schedule extends to the time fixed or allowed by paragraph 3 (1) (4) and 5 of the Practice Directions 2007. He argued that paragraph 3 (4) is applicable where there has been no application for issuance of pre-hearing Notice and the petitioner has not taken any steps at all that would show diligence in the prosecution of the petition, he submitted that such a situation would justify the use of paragraph 3 (4) of the Practice Directions and the use of the word ‘abandon’ would be justified. Learned counsel went further to give different definitions of the word abandon.
Further that the Tribunal took a narrow interpretation of paragraph 3 (4) in placing technical reliance on the provision of the above paragraph without having in mind or considering the provisions of the relevant statutes and Rules of Court guiding the special nature of Election Petition Proceedings. He relied on the case of Emesim v. Nwachukwu (1999) 6 NWLR (pt.60) 154, and Saleh v. Manguno (2006) 15 NWLR (pt.1001) 26, where the courts emphasized the need for the courts to do justice to the case before it to avoid punishing a litigant for a fault that is not his. He argued that the Tribunal ought not to have dismissed the Appellant’s Petition which was properly instituted for the mere reason of noncompliance with paragraph 3 (1) of the Practice Directions, 2007 within the 7 days period limited for same. He argued that in the present case, there was an application for extension of time to regularize the petition which the Tribunal discountenanced. The learned counsel highlighted the status of rules of court, schedules, practice directions and statutes, the distinctions and when and how each should apply on reliance on Haruna v. Modibbo (supra), University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143; also Solanke v. Somefun (1974) All NLR (pt.1) 141.
In conclusion, the learned appellant’s counsel argued that the Tribunal was in error to have discountenanced the Petitioner/Appellant’s application for extension of time to comply with paragraph 3 (1) of the Practice Directions.
That the Tribunal was wrong to have held that the Provisions of the first schedule to the Electoral Act 2006 and the Federal High Court (Civil Procedure) Rules could not operate to save the Petition in the light of paragraphs 3 (1)-(4) of the Practice Directions.
Learned counsel urged this court to set aside the decision of the tribunal and remit the petition back to the Tribunal for a hearing on the merits and referred to the case of Yusuf v. Obasanjo (2003) 16 NWLR (pt 847) SC as per Acholonu JSC.
The learned counsel for the 1st, 2nd, 4th-16th Respondents formulated a sole issue for the determination of this appeal; the issue is more or less the same as that of the appellant but differently couched. The learned counsel to the respondents highlighted the provisions of paragraph 3 (1) and (4) of the Practice Directions 2007. He argued that the powers of the Tribunal in paragraph 3 (4) is inherent.
That the word shall is mandatory and not permissive and cited the cases of Adewumi v. AG Ondo State (1996) 8 NWLR part 464 page 73, Oyeyipo v. Oyinloye (1987) 1 NWLR part 50 page 356.
He argued that in Election Petitions time is of the essence, therefore that there is need to determine petitions expeditiously, and that on the date fixed for hearing of the application to regularize the appellant’s petition, that the petitioner and counsel were absent from court without any explanation. Learned counsel argued that since the appellant as applicant was absent on the date fixed for hearing his application, being absent his application was liable to be struck out by the court for want of diligent prosecution or as being abandoned, he said the Tribunal was right to have held that the motion was abandoned.
Further, that since the application for extension of time was struck out, the petition also went with it. He submitted that the tribunal was right to have invoked its powers under paragraph 3 (4) of the Practice Directions in holding that the petition is deemed abandoned as the petitioner had failed to apply for the issuance of the requisite Pre-hearing forms. He argued that the application for extension of time was not moved, heard or determined before the Tribunal reached its decision, and that all the arguments proffered by the appellant in respect of the provisions of the first schedule as against the provisions of the Practice Directions are irrelevant as they do not relate to the issue to be determined.
Learned counsel urged this court to uphold the decision of the lower court and dismiss this appeal with substantial costs.
On the part of the 3rd and 17th respondents, the learned counsel on their behalf in his brief of argument formulated a sole issue which is captured in that formulated by the appellant. He disagreed with the submissions of the learned appellant’s counsel to the effect that the applicable rule of procedure at the tribunal should be the first schedule to the Electoral Act, 2006 pursuant to section 1st, and that paragraph 43 of the first schedule allows for extension of time and that the Tribunal should have utilized same to allow the application for enlargement of time to apply for issuance of the pre hearing notice, learned counsel termed the argument as misconceived.
Learned counsel stressed on the special nature of election petitions, the need for speedy disposal of petitions and relied on the case of Buhari v. Obasanjo (2003) 14 NWLR part 841 page 446 and Section 148 of the Electoral Act. He argued that there is no conflict between paragraph 43 of the First Schedule to the Electoral Act and Paragraph 3 (4) of the Practice Directions. He submitted that it is the Practice Direction that is applicable in respect of application for issuance of ‘pre-trial notice. He also argued that the provisions of paragraph 3 of the Practice Direction is mandatory and that the Tribunal has no discretion to exercise once the time prescribed for the application has lapsed and relied on the cases of Ekwesi v. Ebele (2005) 21 NSCQR 450, Folaranmi v. Abraham(2004) 10 NWLR part 881, Ojugbele v. Lamidi (1999) 10 NWLR (part 621) 167 and Emeka Emordi (2004) 16 NWLR Part 900. page 433. He argued that paragraph 43 of the first schedule does not enure to the benefit of the appellant and that the Tribunal was right in dismissing the petition as being abandoned. Further that paragraph 3 (4) is a bar to paragraph 43 of the first schedule. Learned counsel for the 3rd and 17th Respondents urged this court to hold that paragraph 43 of the first schedule does not apply to matters stated under paragraph 3 of the Practice Directions. He argued that Haruna v. Modibbo (supra) and Ogu v. Ekweremadu (2006) (supra) do not apply to the present case, and urged us to dismiss the appeal and uphold the decision of the Tribunal.
The sale issue for the determination of this appeal as formulated by the learned counsel for the appellant encompasses the issue as formulated by the learned counsel to 1St, 2nd 4th – 16th Respondents and that of 3rd and 11th respondents respectively. The issue is narrow. The question is: whether in the circumstances of the present case, 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 Practice Directions?
For proper resolution of the sale issue for the determination of this appeal it is necessary to set out and examine closely the relevant statutes and Rules of Procedure relating to extension of time alongside paragraph 3 (4) of the Practice Directions under which the tribunal dismissed the petition as abandoned, the circumstances leading to the application for enlargement of time and where refused the reasons for the refusal. These would be borne in mind to determine its subsequent grant or refusal by this court. Every application must be considered with its surrounding circumstances.
Section 151 of the Electoral Act, 2006 provides:
“The rules of procedure to be adopted for election petitions and appeal arising therefrom shall be those set out in the first schedule to this Act.”
Meanwhile paragraph 50 of the first schedule or Rules of Procedure for Election petitions 2006 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 nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.
In respect of Extension of time, Order 23 Rules 3 (1) and (2) of the Federal High Court (Civil Procedure Rules) 2000 provides:
(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 subrule(1) of this rule although the application for extension of time is not made until after the expiration of that period,”
Also in respect of extension of time, paragraph 43 of the first schedule or Rules of Procedure for Election Petitions 2006 provides as follows:
“43 – Enlargement and Abridgement of time:
“(1) The Tribunal or Court shall have power, subject to the provisions of section 141 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 filing 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 costs 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 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 or otherwise, dispense with the notice.
(7) A copy of an order made for enlargement or abridgement of time shall be filed or delivered together with any document filed or delivered by virtue of the order.” (italics mine for emphasis) The petition before the Tribunal was dismissed under paragraph 3 (4) of the Practice Directions, 2007 for non compliance with paragraph 3 (1). Paragraph 3 (1) and (4) provide thus:
“3. Pre-Hearing Session and Scheduling:
(1) 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.
(2) ………………
(3) ………………
(4) Where the petitioner and the respondent fail to bring an application under this paragraph, -the Tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.”
Section 151 of the Electoral Act made it clear that the Rules of Procedure for the Tribunal in Election Petitions are the Rules and Procedure as set out in the First Schedule to the Electoral Act, 2006, earlier reproduced in this judgment. See Boni Haruna v. Modibbo (supra), where Section 139 of the Electoral Act, 2002 was interpreted, which is in pari materia with section 151 of the Electoral Act, 2006. I am in agreement with the learned counsel to the appellant that any other rule of procedure in an election petition is an addendum to those set out in the first schedule. Therefore any other Rule of Procedure which is inconsistent with the rule of procedure provided by the First Schedule to the Electoral Act, 2006 on the same subject matter will give way to that contained in the first schedule to the Electoral Act, 2006. See Egolum v. Obasanjo (supra).
What are the provisions of the first schedule in respect of enlargement of time?
Section 43 of the First Schedule which is made only subject to Section 41 of the Electoral Act, 2006 and paragraph 14 of the First Schedule, sub-paragraph (1) gave power to the Tribunal 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 the schedule.”
The above paragraph made provision for extension of time by the Tribunal or Court in respect of election petitions. On the other hand paragraph 3 (4) of the Practice Directions prohibits extension of time. Part of the sub-paragraph provides:
“…the Tribunal or court shall dismiss the petition as abandoned petition and no application for extension of time to take step shall be filed or entertained.”
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. Section 151 of the Electoral Act 2006, made it clear that the Rules of Procedure the Tribunal should follow shall be the Rules of Procedure as set out in the First Schedule of the Electoral Act, 2006. The Electoral Act provides for extension of time, contrary to the Practice Directions.
Further, paragraph 43 (2) provides that “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.”
Therefore, it is immaterial that an applicant does not bring the application for extension of time to comply with paragraph 3 (1) of the Practice Directions until after the expiration of time allowed, as occurred in the present case.
In the present case, the petitioner/appellant filed an application for extension of time on 16/7/07 supported by an affidavit in line with paragraph 43 (4) of the First Schedule, he also filed his written addresses/briefs in support of his application, In compliance with paragraph 43 (5) and (b) the respondents were on notice and filed their respective counter affidavit in opposition and each filed their written addresses.
Details of the dates and record of the affidavit, counter affidavits written addresses/briefs were earlier given in this judgment.
On 1/8/07 the date the application for extension of time was to be moved “learned counsel for the petitioner Mr. Sulaiman was absent and had not filed the reply he earlier indicated he would file. It is necessary to highlight the proceedings of the Tribunal on 1/8/07 when the petitioner’s petition was dismissed under paragraph 3 (4) of the Practice Directions, 2007 (page 137 of the printed records.)
“Mr. Ajayi – This matter was adjourned to today for us to adopt our motion address (sic) with respect to the application of the Petitioner filed on the 16/7/07. We are ready to adopt our motion addresses. All the respondents have filed our motion addresses in opposition to the petitioner’s Motion on Notice. On the 26/7/07 when this matter came up, Mr. Sulaiman of learned counsel for the petitioner informed the Tribunal that he has been duly served with our written addresses and that he would like to file a reply on points of law.
His not being like (sic) today means that he has no application to be considered. The matter was then adjourned to today in the presence of counsel.
I apply that the Tribunal apply paragraph 3 (11) of the Election Tribunal and Court Practice Directions and strike out the petitioner’s application filed on 16/7/07. It is clear that the petitioner is unprepared to participate in the session herein and I urge the court to invoke the provisions of 3 (11) (a) of the Practice Directions aforesaid and to dismiss this petition.” (underlined portion mine for emphasis)
On page 137A of the records the Tribunal as a result of the non filing of the reply by the petitioner to the Respondents’ written addresses/briefs opposing the application, the petitioner and his counsel’s absence, and following the respondents’ application to strike out the petitioner’s application and dismissal of the petition, as urged by Mr. Ajayi Above, the learned Tribunal then held:
“On the 26/07/2007- when the motion for enlargement of time came up for hearing, Mr. Adekunle Sulaiman of learned counsel for the petitioner informed this Tribunal that he had been served with the address of the respondents, but asked for his maximum 3 days as granted him under paragraph 6 (5) of the Practice Direction to file a reply on points of law.
The matter was then adjourned to today, to hear the motion of 16/7/07 for enlargement of time.
Mr. Sulaiman has not filed such reply on points of law. He has also not put up any appearance and no explanation has been given for his absence. In that respect, the only reasonable conclusion is that he has-abandoned his application for enlargement of time filed on the 16/7/07. It is accordingly struck out.
It therefore means that this petitioner has not complied with paragraph 3 (1) of the Practice Directions. His petition has been left barre (sic) and is accordingly deemed as an abandoned petition.
We however wish to state that this Tribunal has not concluded the Pretrial in this petition. The commencement of the pre-trial was subject to the success of the petitioners’ motion for enlargement of time”
Even though the Tribunal declined to invoke paragraph 3 (11) of the Practice Direction since pre-trial had not commenced, it further held:
“…this Tribunal is left with no option than to apply paragraph 3 (4) of the said Practice Directions. This is because in the failure of the petitioner to comply with paragraph 3 (11) (sic) of the Practice Directions, and as the petitioners motion for enlargement of time has been struck out this petition is deemed abandoned. Accordingly we hereby dismiss this petition pursuant to paragraph 3 (4) of the Election Tribunal and Court Practice Directions, 2007.”
From the proceedings preceding the Ruling of the Tribunal it is clear that the matter was adjourned to 1/8/07 for the adoption of written addresses/briefs’ filed in respect of the appellant’s application for extension of time filed on 16/7/07. The learned counsel to the 3rd and 17th Respondents Mr. Ajayi did indicate that the Respondents were ready to adopt their addresses in opposition to the application, the petitioner having also filed his written address. No doubt from the records of court, the learned petitioner’s counsel had earlier applied to be given time to file a reply to the respondent’s addresses/briefs. All the arguments in support and against the application were contained in the affidavit, counter affidavits and written ‘addresses/briefs of the parties.
In respect of the non filing of the reply, a reply is not always necessary to determine an application or matter. It is only a response to new points arising from the respondent’s brief/address. It is not mandatory or always necessary that the applicant must file one, therefore if he decides not to respond on points of law to the written address/briefs of argument of the respondents that should not deter the Tribunal or court from hearing and determining the application one way or the other, as the Tribunal did in the present case.
The petitioner on realizing that the issuance of pre-hearing forms was made out of time filed his application for extension of time within which to apply for the issuance of pre-hearing forms, pursuant to paragraph 3 (1) of the Practice Directions, in the application he prayed for an order deeming the already filed prehearing notice, (which had been processed and fixed for hearing by the Tribunal) as having been properly filed and served. In other words, the petitioner had done all he could to regularize the pre-hearing notice already filed and fixed for hearing by the Tribunal, the respondents had been served. All that the Tribunal should have done since all the documents in respect of the application were in, and the learned respondents’ counsel were ready to adopt their addresses, was to have taken the application for extension of time, since it is empowered to do so under paragraph 43 of the first schedule to the Electoral Act, 2006.
In absence of the petitioner’s counsel the application should have been deemed as argued. Its grant or refusal would then be left to the discretion of the Tribunal, depending on the reasons adduced in the affidavit in support and the written address of the petitioner/applicant’s.
I am of the humble opinion that the learned Tribunal was in error when it failed to consider the applicant’s motion for extension of time to comply with paragraph 3 (1) of the Practice Directions and dismissing same under paragraph 3 (4) as having been abandoned, for the mere reason that the petitioner/applicant’s counsel failed to file a reply to the respondents’ written addresses and was absent from the Tribunal when the parties were to adopt their respective addresses.
The next question is: do the facts that brought about the application such that would work positively on the mind of this court to grant the application? It is important to look at the circumstances that gave rise to the application for extension of time as contained in the motion paper, supporting affidavit and addresses of counsel to the then petitioner/applicant.
The Reliefs sought were:
“AN ORDER of the Honourable Tribunal granting the Petitioner/Applicant LEAVE for AN ENLARGEMENT OF TIME within which to apply for the ISSUANCE OF PRE-HEARING NOTICE (form TF. 007) accompanied by a PRE-HEARING SHEET (form T. 008) for the hearing purposes highlighted in Paragraph 3 (1) and (2) in the Election Tribunal and Court Practice Directions, 2007 AND to deem as properly filed and served the said Application already filed and served.
AND for such Orders, or further Orders the Honourable Tribunal may deem fit to make in the circumstances” (underlining mine for emphasis) ,
In the affidavit in support, the reasons for the lateness in applying for the issuance of pre-hearing notice within time were given and highlighted in the address and supplementary address of the learned counsel to the appellant. Paragraph 4 (a)-(d) of the affidavit deposed by one David Idowu, a litigation officer in the chambers of Adekunle Sulaiman & Co reads:
“4. That I was informed by the Petitioner/Applicant’s counsel and I verily believed the following:
(a) Due to the terminal illness of Adekunle Sulaiman of Counsel, he was admitted into the hospital for about 21 days and this incapacitated his being able to attend to his cases in the office and the Court including the present matter until the 5th of July, 2007.
(b) Sequel to the above, he was unable to file appropriate Application for the ISSUANCE OF PRE-HEARING NOTICE (Form TF. 007) accompanied by a PRE-HEARING INFORMATION SHEET (Form TF.008) required by the Tribunal and Court Practice Direction within time.
(c) After the service of the Replies by the Respondents, which do not require Petitioner’s Reply, the seven days allowed by the Practice Direction within which to apply for the Issuance of Pre-Hearing Notice had since expired.
(d) The non-filing of the Application for the issuance of Pre-Hearing Notice within the stipulated period was not the fault of the Petitioner/Applicant himself, but solely that of our chambers.”
Paragraphs 5-7 of the same affidavit deposed to the fact that the petitioner was ready and willing to prosecute his petition to conclusion, that the addresses of counsel were filed with the application, further that the Respondents would not be prejudiced if the extension of time was granted and the petition heard on the merit. Pursuant to paragraph 43 (1) to (7) of the Rules of Procedure for Election Petitions of the First Schedule to the Electoral Act, 2006, Paragraph 50 of the Election Petition Rule, 2006, and Order 23 Rule 3 (1) and 2 of the Federal High Court (Civil Procedure) Rules, 2000 the Tribunal had the power to grant the application sought and I so hold.
From the facts deposed in the affidavit in support of the application, the failure to apply for the issuance of the pre-hearing notice was due to the ill health of the learned counsel to the petitioner/applicant. There is nothing to show that the petitioner/applicant dragged his feet in prosecuting his petition. Ill health of learned counsel that caused the delay is acceptable to this court in granting the application sought. Decided legal authorities have constantly held that the litigant should not be made to suffer or be punished as a result of a mistake or fault of his counsel, this should not deter a litigant from obtaining justice. See Ogundimu v. Kasunmu (2006) 6 SCNJ 142, CBN v. Ahmed (2001) 5 SCNJ 307, Tunji Bowaje v. Adediwura (1976) 6 SC 143 and Nneji v. Chukwu (1988) 3 NWLR part 81 at 184.
Considering the circumstance of this case and the reasons for the delay, I am satisfied that the petitioner/applicant had a genuine reason for the delay in applying for the issuance of pre-hearing notice.
The respondents in opposing the application relied totally on paragraph 3 (4) of the Practice Directions, 2007 which prohibits extension of time and did not consider the provisions of the Electoral Act under paragraph 43 of the first schedule that permits extension of time “for doing any act or taking any proceedings”.
Paragraph 43 (3) of the First Schedule specifically mentions situations where time has been fixed or limited by “a direction” that the court or tribunal would resort to paragraph 43.
The Practice Directions, 2007 is a product of the Electoral Act, 2006, Paragraph 50 of the First Schedule to the Electoral Act, 2006 was made “subject to the express provisions of this Act”, therefore regarding extension of time, paragraph 43 (2) which has made specific provisions, would apply.
A Practice Direction cannot remove the Powers or discretion granted to the Courts or Tribunal by statute. It is to be applied subject to the provisions of the Electoral Act in situations where there seems to be a conflict as in the present case, being inferior to the Electoral Act, would give way to the applicable rules in the Act which includes the provisions of the Schedules. The dismissal of the petition under paragraph 3 (4) of the Practice Directions denied the petition opportunity of his petition being heard on its merit. I do know that Section 148 of the Electoral Act requires accelerated hearing of Election Petitions and appeals arising there from -but, the need for speedy trial should never be used to do an apparent injustice. It is the duty of the court to see that justice is done to both parties and this can only be done if both parties are given a chance for the matter to be heard on its merit.
Lord Bowen aptly observed in Cropper v. Smith (1884) Ch. D 700 at page 710:
“The principal object of courts is to decide the rights of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights.”
Similarly in Unilag v. Aigoro (1984) NSCC 755 Oputa, JSC had this to say in this regard:
“Rules of court and practice directions are rules touching the administration of justice: they are rules established for attaining justice with ease, certainty and dispatch and as such they must be understood and made consistent with the fundamental principle of justice deciding cases and appeal on their merits. Consequently in all cases where a strict adherence to the rules would clash with the fundamental principles, the courts have invariably leaned heavily on the side of doing justice”
In the same case above, Bello JSC held 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.”
I am bound by with the above holdings of the learned Justices. The courts and tribunals are now enjoined to do substantial justice not technical justice. The tribunal erroneously relied on paragraph 3 (4) of the Practice Directions, 2007 and dismissed the petition. The proceedings would have been saved had the applicable rules been utilized.
In the final analysis, having stated the applicable rules, I would and do hereby allow the appeal. The ruling of the Tribunal of 1/8/07 striking out the application for extension of time for the issuance of Pre-Hearing Notice and dismissing the petition under paragraph 3 (4) of the Practice Directions, 2007 is hereby set aside.
I am duty bound and empowered by Section 16 of the Court of Appeal Act, 2002 to do that which the Tribunal failed to do. I would and do hereby grant the appellant (Petitioner/Applicant) leave for enlargement of time within which to apply for the issuance of pre-hearing notice (form TF 007) accompanied by a pre-hearing information sheet (Form TF 008) for hearing purposes in compliance with paragraph 3(1) and (2) of the Practice Directions, 2007.
The already filed and served application is hereby deemed as properly filed and served as prayed in the motion paper.
It is hereby ordered that the Petition be set down for pre-hearing session. The petition is remitted back to the Tribunal to be heard on its merit.
I award costs of N10,000.00 to the Appellant against the 3rd Respondent.
Other Citations: (2008)LCN/2862(CA)
