Peter Onyekewen Ikem & Anor V. Patrick Aisowieren & Ors. (2008)

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SAKA ADEYEMI IBIYEYE, OFR, J.C.A.

This is an appeal against the majority ruling of the National Assembly, Governorship and State House of Assembly Election Petition Tribunal-sitting-in-Benin City, delivered on the 14th day of August 2007 in respect of the election into Orhiomwon East Constituency of Edo State House of Assembly wherein the Tribunal struck out the petitioners’ application for extension of time for the issuance of pre- hearing notice.

Brief antecedents of the ruling in point are that the 1st appellant was a candidate sponsored by the 2nd appellant to contest a seat into the Orhionmwon East Constituency of Edo State House of Assembly. The 2nd respondent also sponsored the 1st respondent to contest for the same seat at an election which took place on the 14th day of April, 2007.

At the close of the election the 3rd to the 5th respondents returned the 1st respondent as the candidate who won the election. The 1st and 2nd appellants were aggrieved by that decision and filed a petition to the said Tribunal on 14th May, 2007 challenging the election and return of the 1st respondent. The 1st and 2nd respondents filed their joint reply on 19th June, 2007 while the 3rd to the 5th respondents equally filed their joint reply on 18th June, 2007. The replies filed on behalf of the respondents by their respective counsel were served on the appellants’ counsel on 28th June, 2007.

On the 24th July, 2007 when the petition came up for pre-trial hearing, the learned Chairman of the Tribunal suo motu raised the issue of whether or not the applications for issuance of pre-hearing notices were filed within time and he directed the learned counsel for the parties to file written addresses on the propriety of the learned petitioner’s counsel applying for pre-trial information notice outside the 7 days provided by paragraph 3(1) of the Election Tribunal and Court Practice Directions 2007. The learned counsel for the parties filed their written addresses at the instance of the learned Chairman of the Tribunal. The Tribunal reserved the ruling to 13th August, 2007. Before that date, the appellants filed a motion extension of time to file the appellants/applicants’ application for pre-trial notice. The ruling could not be delivered on 13th August, 2007 but on 14th August, 2007.

The Tribunal, in its majority ruling held, inter alia, at the ultimate paragraph of page 221 and page 222 as follows:

“There has been non-compliance with paragraph 3(1) of the Practice Directions 2007 by the petitioners. The rules made to guide the proceedings in an election petition include the Practice Directions 2007 and they are meant to be obeyed. The consequence of not obeying paragraph 3(1) of the Practice Directions is a dismissal of the petition under paragraph 3(4). The wordings (sic) of paragraph 3(4) are clear and unambiguous on the sanction for disobeying paragraph 3(1) and the Tribunal has a duty to give effect to that sanction. See DADA v. DOSUNMU (2006) 18 NWLR (Pt.1010) 134 for the proposition that a party who fails to comply with the Rules of Court has himself to blame and that where a rule of Court has clearly or unambiguously provided for a particular act or situation, the Courts have a duty to enforce the act or situation and the issue of substantial justice does not and should not arise.

For the above reasons, we discountenance the petitioners’ application for the issuance of pre-hearing notice filed on 13th July, 2007 for having been filed out of time and dismiss the petition.

By this ruling the petitioners’ application for extension of time to apply for pre-hearing notice now pending before the Tribunal is struck out.”

The appellants were particularly vexed by the ruling of the trial Tribunal and filed a Notice of Appeal on three grounds in this Court.

In strict compliance with the Rules of this Court the parties filed and exchanged their briefs of argument. Subsequently, the 1st and 2nd respondents amended their joint brief of argument to which the appellants filed an amended appellants’ reply brief of argument. The appellants equally filed the joint reply brief to the 3rd to 5th respondents’ brief of argument.

In the appellants’ brief of argument dated and filed on 28th September, 2007, the following three issues were identified for the determination of this appeal:

“1. Whether having regard to the provisions of paragraph 43 of the 1st Schedule of the Electoral Act, 2006 (sic) and order 23 rule 3 of the Federal High Court (Civil Procedure) Rules 2000, the Tribunal is not empowered despite the strictures of paragraph 3(4) of the Practice Directions to extend time within which a party may apply for the issuance of pre-hearing notice after the time provided in paragraph 3(1) of the Practice Directions 2007 had expired.

2. Whether the Tribunal was right in striking out the petitioners/appellants’ application for extension of time to apply for issuance of pre-hearing notice which was pending before the Court without hearing the counsel to the parties who were present and in Court.
3. Whether the Tribunal was right in opting to dismiss the petition when faced with an option of allowing for regularization of a lapse.”

The 1st and 2nd respondents in their joint amended brief of argument dated and filed on the 8th October, 2007 but deemed properly filed on the 29th of April, 2008 raised the following two issues for the determination of the instant appeal: