Sarafa O. Hassan V. INEC & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

The appeal is against the ruling of the Governorships and Legislative Houses Election Tribunal. Abeokuta Ogun State delivered on 8th day of August, 2007 wherein the tribunal dismissed the petition as having been abandoned pursuant to paragraphs 3(4) of the Election Tribunal and Court Practice Directions 2007. It was on the findings that the petitioner now appellant, had failed to apply for the issuance of Pre-hearing Notice as required in Form TF007 within the specified period. The appellant applied by motion to regularize his position which was filed on 14-07-07 as contained at pages 84-90 of the record. The motion was moved and argued by all counsel by filing and exchanged written addresses. The Tribunal considered all parties arguments, and held at pages 162-182 of the record, that the aforesaid paragraphs 3(4) of the Practice Direction, had prohibited the extension of time to set down the petition for pre-hearing and therefore refused the application and held further that, the petition was an abandoned petition, and thus dismissed same.

Dissatisfied with the said ruling, the petitioner now appellant, filed a notice of appeal on 29-8-2007 with 4 grounds of appeal from which he distilled and formulated 2 issues as follows:-

1. “Whether in the letter of application dated 26-6-07 and received by the Tribunal registry on 27-6-2007, the petitioner/appellant could be said to have been out of time on applying for the issuance of Pre-paring forms as required by the provisions of Paragraph 3(1) of the Practice Directions (Ground 1)

ALTERNATIVELY:-

II. Whether in the circumstances, the Election Petition Tribunal was right to have discountenanced the applicant’s motion for extension of time within which to comply with paragraph 3(1) of the Practice Directions and to have dismissed the petition as abandoned pursuant to paragraphs 3(4) of the said Practice Directions” (Grounds 2),3 and 4).

It is to be noted that 1st, 2nd, 4th to 14th respondents failed to file their briefs of arguments within the prescribed period, and on the 18th day of June, 2008 of their purported brief filed on 10-1-2008 was struck out before the appeal was adjourned to 1st July, 2008 for hearing. It therefore means that the 1st, 2nd, 4th-14th respondents have no brief of argument for determination though they will be bound by the decision in this judgment.

On the part of the 3rd and 15th respondents, their joint brief was dully Filed on 14-12-2007 and have raised one issue for determination. It reads as follows:-

“Whether or not the Tribunal was right in dismissing the Petition as an abandoned petition having regard to the law and evidence brought before it while considering the petitioner/appellant’s motion which resulted in the Ruling being appealed against.”

As earlier stated, appellant’s two issues are in the alternative. The appellant briefly argued the first alternative issue as contained in his paragraphs 4.01 to 4.04 in page 5 to 6 of his brief. His submission is that, his lead counsel’s letter of 26-6-2007, was dully filed and acknowledged by the Tribunal on 27-6-2007, had saved the petition from infraction of paragraph 3(1) of the Practice Direction. In other words, letter of appellant’s counsel filed on 26-6-2007 and duly filed in the registry on 27-6-2007, was clearly within seven (7) days of the filing and service of the respective Replies of the totality of the respondents which were filed on 13-6-2007.

Learned counsel then contended that once a litigant has complied with the rules or requirement of the law as in the instant Practice Direction in paragraphs 3(1), the litigant bears no responsibility for any failures, lapses or errors on the part of the registry of the Tribunal or the court’s counsel referred to and relied on the Supreme Court decisions in SAUCE VS. ABDULLAHI (1989) 4 NWLR (PT.116) 387, 424; ALAWODE VS. SEMOH. (1959) 4 FSC 29; FAMTA VS. AH/GEN. FEDERATION (2003) 18 NWLR (PT 852) 452.

In concluding his alternative issue, learned counsel for the appellant has contended that since that letter of 26-6-2007 was brought to the attention of the Tribunal which was to the effect that the appellant had indeed applied within the time prescribed by paragraph 3 (1) of the Practice Directions, it was no longer open to the Tribunal as a court of equity and justice to close its eyes to the true state of affairs and fatally punish the appellant for an offence proven not to have been committed but done by lapses of the registry.

Appellant’s argument in respect to the second alternative issue is that, the Tribunal was apparently acting on appellant’s application under the mistaken belief that he was out of time in applying for the issuance of Pre-Hearing forms TF007 and TF008. That based on the application dated 13-7-2007, and filed on 14-7-2007, which was for enlargement of time and regularization of the forms, was made in error, because the same forms TF007 and TF008 had earlier been issued, filed and answered by the appellant and the respondents respectively. That appellant’s counsel drew the attention of the Tribunal on this fact which is a letter dated 30-7-2007, that the arguments for extension of time and regularization, had become academic exercise. Learned counsel referred to pages 138-140 of the record and also section 151 of the Electoral Act, 2006 as well as paragraph 43 (1), (2), (3), (4), (5), (6) and (7) of the 1st Schedule of the same Electoral Act. Learned Counsel further referred to and relied on paragraphs 3 (1) to (5) of the Election Tribunal and Practice Direction 2007 in extensio, and then submitted that any other Rule of Practice in an election petition is a mere addendum or adjunct to those set out in the 1st schedule, and are to be applied mutatis mutandis to the extent that they are not inconsistent with the Rules of Procedure as set out in the 1st schedule of the Electoral Act, 2006. Counsel still submitted that if any other Rule of Procedure on any subject is inconsistent with the 1st schedule aforesaid on the same subject, that other rule of procedure shall give way because the rules of procedure to be adopted for election petitions and appeals arising there from shall be set out in the first schedule to the Act; and counsel relied on the decisions in EGOLUM VS. OBASANJO (2004) 1 NWR 67.

Appellant’s counsel further contended that paragraphs 43(1), (2) and (3) of the First schedule, 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 provisions of the Schedule; and referred and relied on the case of VISA VS. ORZUA (2006) 1 WRN 164; BONI HARUNA VS. MOOIBO (2004) 16 NWLR (PT.900) 487; YUSUF VS.OBASANJO(2003) 16 NWLR (PT 847) 544. Counsel still submitted that the power of tribunal to

enlarge time for doing any act or taking any proceedings under paragraphs 43 (1) of the First Schedule, extends to the time filed or allowed by paragraphs 3(1), (4) and (5) of the Practice Direction, 2007. Appellant’s counsel finally urged this appellate court to hold that the lower tribunal was in error in failing to hold from the contents of the application dated and made on 27-7-2007 that the appellant had fully complied with the requirement of Paragraphs 3(1) of the Practice Direction 2007 or, in the alternative, that the lower Tribunal erred in discountenancing the appellants application for extension of time to comply with paragraph 3(1) of the aforesaid Practice Direction when the probable granting would have saved the Petition and allowed same to be heard on merit. Counsel urged that the appeal be allowed.

On the part of the 3rd and 15th respondents, their sole single issue of argument is contained in their paragraphs 3.1 to 3.31 which was duly filed on 14-12-07. Respondents’ contention is that the only relevant law that is applicable to the appeal is paragraph 3(1) (5) of the Practice Direction 2007; that it provides for the procedure to adopt in applying for the issuance of pre- hearing notice and the consequential effect of non-compliance of same is the treatment of the petition as an abandoned petition; that no discretion is allowed because the word is “shall” and the decision on it is final. Counsel urged this court to hold that Practice Direction 2007 has the force of law and he urged this court to so hold.

In regard to the appellants’ motion filed on 13-07-07 learned counsel for the respondents has contended that there was no sufficient affidavit evidence on which the tribunal could have granted, moreso, that the motion was clear admission by the appellant, that he had failed to comply with the provisions in paragraph 3 (1) of the Practice Direction; that the appellant and the respondents along with the tribunal, acted and argued, and then ruled on the appellant’s motion; and that therefore, the appellant is estopped from asserting contrary facts as contained in section 151 of the Evidence Act.

Counsel referred to and relied on the decision in BUHARI VS. OBASANJO(2003) 16 NSC QR 1, 44 which is in connection with the purpose of the audi alteram partem principle of justice, which is that a party to a dispute be given the opportunity of presenting his side. But that a party who failed or neglected to present his case by withdrawing or by abandoning it, can not therefore complain of denial of fair hearing. Counsel therefore submitted that in the instant matter, petitioner/appellant was given ample opportunity to state his case, but that he failed to take that advantage inspite of the consequences provided by paragraph 3(4) of the Practice Direction. That in view of his failure to take the chance, the appellant was not shut out but himself. Learned counsel contended that the Federal High Court Rules is not applicable for extension of time which is contrary to paragraph 3(4) of the Practice Direction 2007. Counsel also contended that paragraph 43 (2) – (7) of the 151 schedule can not and should not be read in isolation from the same paragraph 43 (1) ; and that there is no conflict between Rule 43(1) with paragraph 3(4) of the Practice Direction.

In conclusion, respondents counsel urged this court to uphold the decision of lower Tribunal that by virtue of paragraph 3(4) of the Practice Direction, it had no power to extend time for the pre-hearing notice.

Now coming to appellant’s first alternative issue, it is important to see the contents in pages 62 to 70 of the record. In pages 62-63, it contains “Petitioners Answer To Pre-Hearing Information sheet”. It reads as follows:-

“IN THE LEGISLATIVE HOUSE ELECTION PETITION TRIBUNAL HELD AT ABEOKUTA OGUN STATE”

PETITION No: EPT/OG/HA/10/07

BETWEEN

SARAFA O. HASSA …………….. PETITIONER

VS.

I.N.E.C. & 15 ORS ——————– RESPONDENT

PETITIONER ANSWER TO PRE-HEARING INFORMATION SHEET TO PRE-HEARING

1. No, we do not require that this action be consolidated with any other action(s)
2. No, we do no intend to make any amendments to the petition.
3. No, further and better particulars of the petition will be required
4. We do not intend to make any additional admission.
5. Our witnesses will be called at the hearing of the petition.
6. Interpreters might be required for some of our witnesses, the interpreters would be Yoruba Speaking.
7. The petitioner states that this is not a case in which a single or joint expert will be required but rather it is a case in which each party will employ his own expert or experts.
8. The tribunal can only resolve issues raised at the full hearing.
9. No, we have not considered any lawful means of resolving the dispute because of the nature of the issues.
10. We do not admit to any of the paragraphs of the Reply.
11. The petitioner will consent to document or reject same when and only same is seen, for he cannot consent or reject documents that has not been seen.
12. Same as above.
13. The petitioner has no witness(es) he feels may not be necessary for any party to call for now,
14. The applications we wish to make are:

(i) Application for inspection of INEC documents and Electoral material.

(ii) Application for leave to tender all documents, photographs, video cassettes recordings etc.

(iii) Subpoena Ad testifican dum to be served on some key individuals and public officers for the purpose of tendering document and/or give evidence before the tribunal where necessary.

Dated this 9th day of July, 2007.

SULAIMAN ZUBAIR, ESQ. CLARKE, PAIKO & CO.- PETITIONER’S SOLICITOR 6, MOLONEY STREET, ONIKAN, LAGOS.

OR

ADDRESS WITHIN JURISDICTION NO. 26, IYALODE STREET, OPPOSITE AKINOLUGBADE HOSPITAL,OWU, ABEOKUTA, OGUN STATE, NIGERIA.

FOR SERVICE ON:

1. DON UNEALOR ESQ. 1ST, 2ND, 4TH-14TH RESPONDENTS, INEC OGUN STATE HEADQUARTERS, IBB BOULEVARD, ABEOKUTA, OGUN STATE.
2. TOKUNBOH JIBOWU & CO. THE 3RD AND 15TH RESPONDENTS COUNSEL 8, OBA OYEDELE STREET, OFF AIYEPE ROAD,OGUN STATE.”

There is an adage, that records will not lie. The document speaks for itself. It is dated and filed on 09-07-2007 showing the official stamp of the Tribunal sitting at Abeokuta Ogun State. The document is also a clear answer to Form TF007. In effect, it means that a formal request for prehearing notice, was issued to the appellant on which he had filled the requisite answers by filling and filling forms TF008.

From page 63 marked M.2 there is much clearer compliance of the requirement of pre-hearing notice. The whole of pages 63-70 is reproduced below:-

“RULE 21 FIRST SCHEDULE FORM TFOOS ELECTORAL ACT 2005 IN THE GOVERNOSHIP/LEGISLATIVE HOUSE ELECTION PETITION TRIBUNAL HOLDEN AT ABEOKUTA

PETITION NO: EPT/OG/HA/10/07

BETWEEN:

SARAFA O. HASSAN …………. PETITIONER

AND

1. INDEPENDENT NATIONAL ELETORAL COMMISSION (INEC)
2. THE PRESIDENT ELECTORAL COMMISSIONER/RETURNING OFFICER,

OGUN STATE

3. NOSIRU F. ISIAKA
4. THE ELECTORAL OFFICER,

SAGAMU LOCAL GOVERNMENT AREA, OGUN STATE.

5. PRESIDING OFFICERS FOR POLLING UNITS 1-7 WARD I,

OKO/EPE/ITULA I, SAGAMU LOCAL GOVERNMENT AREA

6. PRESIDING OFFICERS FOR POLLING UNITS 1-12 WARD 2,

OKO/EPE/ITULA II, SAGAMU LOCAL GOVERNMENT AREA

7. PRESIDING OFFICERS FOR POLLING UNITS 1-8 WARD 3,

AYEGBAMI/IJOKUN SAGAMU LOCAL GOVERNMENT AREA

8, PRESIDING OFFICERS FOR POLING UNITS 1-16 WARD 4,

SABO 1, SAGAMU LOCAL GOVERNMENT AREA

9. PRESIDING OFFICERS FOR POLLING UNITS 1-16 WARD 5, SABO II,

SAGAMU LOCAL GOVERNMENT AREA – RESPONDENTS

10. PRESIDING OFFICERS FOR POLLING UNITS 1-8 WARD 6,

ISOKUN/OYEBAJO, SAGAMU LOCAL GOVERNMENT AREA

11. PRESIDING OFFICERS FOR POLLING UNITS 1-8 WARD 7,

LATAWA, SAGAMU LOCAL GOVERNMENT AREA

12. PRESIDING OFFICERS FOR POLLING UNITS 1-8 WARD 8, LATAWA,

SAGAMU LOCAL GOVERNMENT AREA

13. PRESIDING OFFICERS FOR POLLING UNITS 1-12 WARD 9,

ODE-EMURE, SAGAMU LOCAL GOVERNMENT AREA,

14. PRESIDING OFFICERS FOR POLLING UNITS 1-19 WARD 10,

OGIJO/SOTUBO, SAGAMU LOCAL GOVERNMENT AREA

15. PEOPLE DEMOCRATIC PARTY

PRE-HEARING INFORMATION SHEET

Pursuant to pre-hearing information sheet served on the Respondents, and pursuant to paragraphs 1-14 of the said prehearing information sheet which are questions to be answered, the 1st 2nd 4th 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th and 14th Respondents hereby answer the said questions in the information sheet served on them.

Question 1. Do you require that this action be consolidated with any other action(s)? If so give particular

Answer. No.

Question 2. Are amendments to a petition, reply to other process required? If so, specify what particulars are required.

Answer: Yes. To effectively reply and traverse all paragraphs of the petition and provide further information.

Question 3: Are further and better particulars of any petition or reply required?

Answer: No

Question 4.: If you intend to make any additional admissions, give details.

Answer: No admissions.

Question 5: Are there witnesses you may now not wish to call?

Answer: No.

Question 6.: Will interpreters be required for any witness? If so, state in what language.

Answer: No.

Question 7: Is this a case in which the use of a single or joint expert might be suitable? If not state reasons.

Answer No. The petitioner has not given or state in the pleading and filed any documents that require expert evidence.

Question 8: Is there any way in which the Tribunal or Court can assist the parties to resolve their dispute or particular issues in it without the need for a hearing or full hearing.

Answer Yes. The petition is incompetent. It is up to the parties to initiate pacific moves to resolve the dispute.

Question 9. Have you considered any lawful means of resolving or narrowing down the dispute or particular issues in it? If yes state the steps that have been taken. If not state reasons.

Answer: The petition is incompetent and does not conform to the laws. Parties have not given their counsel leave to explore peaceful means of resolving the dispute.

Question 10: List the paragraphs of the petition/reply you are admitting.

Answer: Paragraphs 1, 2, 4, 5, 6, 7 and 10 subject to amendments of said Respondents’ reply.

Question 11: List the document you are consenting to.

Answer. Non as at now, because no document has been filed by the petitioner, served and seen to consent to or deny.

Question 12: List the documents you are disputing and the reasons for the dispute.

Answer: Non as at now because no document has been filed and served on Respondents to dispute. The said Respondents ordinarily would dispute all documents tendered by the Petitioner unless it is genuine and truthful and in accordance with the law.

Question 13: List the witnesses you feel may not be necessary for any party to call and state your reasons for the opinion.

Answer: Non.

Question 14: List the application you wish to make at the pre-hearing session.

Answer: (a) Notice of preliminary objection challenging the competency of

this petition.

(b)Motion on notice for amendment.

Date this 3rd day of July, 2007

Adeolu Salako, Esq. Deolu Salako & Associates. 1st, 2nd, 4th-14th Respondents Solicitors Suite 166, Sabobdale Shopping Complex, Plot 526, Obafemi Awolowo Way, Jabi Abuja.

Address for services within Jurisdiction. c/o Legal Department INEC, Ogun State Headquarters IBB Boulevard Abeokuta, Ogun State.

For service on the Petitioner, 3rd and 15th Respondents.

1. Petitioner, c/o His Counsel Chief Robert Clarke, SAN Clarke Paiko & Co. Petitioner’s Solicitor 6, Moloney Street Onikan, Lagos, Nigeria.

OR

Address within jurisdiction No. 26, Iyalode Street, opposite Akin-olugbade Hospital, Owu, Abeokuta, Ogun State, Nigeria.

2. Nosiru F. Isiaka Peoples Democratic Party State Secretariat. Opposite NNPC Megastation, Abeokuta Ogun State.
3. Peoples Democratic Party State Secretariat, Opposite NNPC Megastation, Abeokuta, Ogun State.

The above Form TF 008 is also a clear fact, that not only the appellant, but also the 1st, 2nd, 4th-14th respondents had complied with the requirement of Pre-hearing Notice in compliance with paragraphs 3(1) of the Practice Directions 2007. At this stage, it is to be noted that there is no evidence to prove that 3rd and 15th respondents had complied by filing and filling forms TF 007 and TF 008 as done by the appellant and the 1st, 2nd, 4th-14th respondents . Since records do not lie, it was a complete irrelevance for the appellant’s counsel named Comrade Femi Jolaoso to file a motion on notice dated 13-07-07 and filed on 14-07-07 for an order granting the petitioner/applicant, LEAVE for AN ENLARGEMENT OF TIME with which to apply for the ISSUANCE OF PRE-HEARING NOTICE” which is contained AT PAGES 84-86 OF THE RECORD. There is no doubt, Comrade Femi Jolaoso’s application was so misleading which made the Tribunal to order the parties to file and serve written addresses for and against the motion. It shows that the Tribunal had forgotten that the appellant and the 1st, 2nd, 4th-14th respondents had already filled forms TF 007 and TF 008. It was therefore, completely unnecessary for the Tribunal who went all the hog to proceed and heard the motion on purported merit before it delivered her ruling in which it dismissed the appellant’s petition. The effect of the Tribunals decision is that it is a nullity, See EKE VS. OGBONDO (2006) 18 NWLR (PT 1012) 506; AVS. ISHOLA (2006) 13 NWLR (PT.998) 628.

In civil matters and even in election petitions, where the trial judge or election tribunal as the case may be has made a wrong order or judgment due to the negligence of court official, the party affected has the right to appeal.

The apex court has declared that where an election petition decision was obtained by fraud, the party affected can appeal to the appellate court; See UMANAH VS. ATTAH (2006) 17 NWLR (PT 1009) 503; F.B.N. PLC V5. MAY MED. CLINICS & D.C. LTD (2000) 4 NWLR (PT.971) 442; UKACHUHWU VS. UBA (2005) 18 NWLR (PT.956) 1.

Since the lower Tribunal failed to consider the previous facts of complying with the Practice Direction of paragraphs 3(1) and (2), its decision dismissing the appellant’s petition is null and void and I declare. I am not surprised that the 3rd and 15th respondents brief of argument, is so silent on the appellant’s and 1st, 2nd, 4th-14th respondents’ filling and filings of forms TF 007, and TF 008 as contained at pages 62-70 of the record. Based on the above findings, appellant’s first alternative issue 1 is enough to allow the appeal in favour of the appellant.

Since I had earlier declared that the purported motion on notice for leave to extend time to file pre-hearing notice was unnecessary, it means that, the appellant’s 2nd alternative issue is already resolved in favour of the appellant. It will amount to academic exercise if the Tribunals’ proceedings in respect of the motion is considered. Consideration of a void issue, is a nullity, no matter how brilliantly conducted.

In the final analysis, the appeal being meritorious, is allowed. Pre-hearing is a forgone issue. Parties are to go back to the Tribunal to hear the petition on its merit. Election petition is sui generies and time is of the essence.

I make no order on costs.

---

Other Citations: (2008)LCN/2873(CA)