Festus Oladapo Aregbesola & Anor V. Adesanya Kemisola Adenike & Ors (2005)

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MOJEED ADEKUNLE OWOADE, J.C.A.

This is an appeal against the Ruling of the National and State House of Assembly Tribunal sitting in Akure delivered on the 8th of July, 2015. The Appellants as Petitioners filed Petition No. EPT/AK/HA/5/2015 on 30th April, 2015. The first and second Respondents filed their reply on the 18th of May, 2015 together with their Notice of Preliminary Objections.

The 3rd Respondent relying on the saving provision (in Paragraph 10(2)) dealing with non-filing of memorandum of appearance which allow it to defend the petition if she filed her defence within 21 days, filed her reply to the petition on 26th of May, 2015 after the issuance of pre-hearing notice (Form TF 007) and information sheet for pre-hearing session (Form TF 008) was issued by the Tribunal.

The 3rd Respondent complied with the hearing notice of pre-hearing session (Form TF 007) by appearing in the pre-hearing session on 9th of June, 2015. The 3rd Respondent also filed a pre-hearing information sheet (Form TF 008) and on 7th of June 2015, 3rd Respondent filed an application to regularize her Form TF 008 filed out of the prescribed time in order

to participate in the pre-hearing session.

On the 9th of June 2015, the Tribunal found merit in the application of the 3rd Respondent (INEC) to file their pre-hearing information sheet out of time and consequently granted the 3rd Respondent extension of time to file and serve her Pre-Hearing Information Sheet. Some other applications moved by parties during the pre-hearing session include:
(a) Petitioner’s Application for Inspection of Electoral Documents in Custody of 3rd Respondent.
(b) Application for Amendment of replies of the 1st and 2nd Respondents. The reply of the 3rd Respondent dated 22nd of May, 2015 was filed on 26th May, 2015.

On the 29th of June 2015, the Tribunal suo motu raised the issue that no application for pre-hearing session was filed after the 3rd Respondent filed its reply. The Tribunal ordered parties to file written addresses on the effect of non-filing of application after the 3rd Respondent’s reply on the pre-hearing session and the petition as a whole.

All parties filed their written addresses and on the 8th July 2015, the Tribunal dismissed the petition on the grounds of non-compliance with Paragraph 18(1) of the 1st Schedule to the

Electoral Act 2010 (as amended) and ruled the Appellants’ petition as deemed abandoned under Paragraph 18(4) of the First Schedule to the Electoral Act.

Dissatisfied with this ruling, the Appellants at first, filed a Notice of Appeal containing four (4) grounds of appeal in this Court on 13th July, 2015 and later filed an additional ground of appeal on 24-7-2015.

The relevant briefs of argument for this appeal are as follows:
1. Appellants brief of argument dated 24-7-2015 and filed on the same day.
2. 1st Respondent’s brief of argument dated and filed on 28th July, 2015.
3. 2nd Respondent’s brief of argument dated and filed on 28th July, 2015.
4. 3rd Respondent’s brief of argument dated and filed on 28th July, 2015.

Learned Counsel for the Appellants nominated four (4) issues for determination. They are:
1. Whether the Tribunal was right to have ruled that the Petitioners ought to file a pre-hearing application for each and every Respondent in the petition.
2. Whether close of pleadings or joinder of issue in a petition is a condition precedent for applying for pre-hearing session under the Electoral Act.
3. Whether this petition can be deemed to have been abandoned under

Paragraph 18(4) of the First Schedule to the Electoral Act.
4. Whether in the circumstances of this petition, the rules of waiver contained in Paragraph 53(2) of the First Schedule is not applicable and whether the Tribunal was right to have relied on Paragraph 53(1) of the First Schedule to the Electoral Act 2010 not canvassed by parties before it to dismiss the petition.

Learned Counsel for the 1st Respondent argued his preliminary objection and alternatively formulated the following two (2) issues for determination:
1. Whether the National and State Houses of Assembly Election Petition Tribunal was not right in dismissing the Appellants petition for failure to comply with the mandatory provision of Paragraph 18(1) of the First Schedule to the Electoral?Act 2010 (as amended).
2. Whether the trial National and State Houses of Assembly Election Petition Tribunal was not right in resorting to Paragraph 53(1) instead of Paragraph 53(2) of the First Schedule to the Electoral Act, 2010 (as amended) in holding that doctrine of waiver is not applicable in the circumstance of this case thereby dismissing the Appellant’s petition.