Adegbuyi S. Olufemi V. Independent National Electoral Commission & Ors (2008)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

This is an appeal against the Ruling of the Governorship and Legislative Houses Election Tribunal, Abeokuta, Ogun State, delivered on 30/07/2007 wherein the Tribunal dismissed the Appellant’s Petition as having been abandoned pursuant to Paragraph 3(4) of the Election Tribunal and Court Practice Direction No.2 of 2007.

The Appellant was the candidate of his political party, ANPP under whose sponsorship he contested as a candidate into the Ogun State House of Assembly representing Ijebu North-East Constituency of the said Assembly. The election was conducted on 14/04/2007 and the 3rd Respondent, Olugbenga, Edwards A. was the candidate of the 15th Respondent Peoples Democratic Party and was declared the winner by the 1st, 2nd, 4th – 14th Respondents.

Being dissatisfied with the conduct and declaration of the result of the election, Appellant filed his Petition dated 11/05/07 before the Tribunal seeking that he be returned as the winner of the election, or in the alternative, seeking the nullification of the election for reasons of substantial non-compliance with the provisions of the Electoral Act, 2006.

During proceedings in the matter, the Petitioner/Appellant had realized that the period for application for issuance of Pre-Hearing Notice Forms had elapsed, and he therefore filed on 14th July, 2007, an application for enlargement of time within which to apply for issuance of the Pre-Hearing Forms pursuant to Paragraph 3(1) of the Practice Direction No.2 of 2007.

The 1st, 2nd, 4th – 14th Respondents filed on 20/07/2007, a Preliminary Objection to the Appellant’s Motion by which they had prayed the Tribunal to declare the Appellant’s application as an abuse of the Court’s processes on the ground that Appellant’s Petition was already abandoned. In the same manner, 3rd and 15th Respondents also filed on 23/07/2007, a similar Notice of Preliminary Objection to the Appellant’s motion filed on 14/07/2007. When the Tribunal was hearing the Appellant’s motion for extension of time along with the Preliminary Objection of the 1st, 2nd, 4th – 14th Respondents, learned Counsel for the Appellant conceded to the dismissal of the application dated 14/07/2007 but not his Petition, as he contended that the relief sought an equitable relief. The parties’ applications were adjourned to a date for Ruling. On 30/07/2007, the Tribunal in a well considered Ruling, dismissed the Appellant’s application along with the Petition. The above Ruling is contained at Pages 162-164 of the Record. Dissatisfied with the Ruling, hence this Appeal dated 17/08/07 but filed on 20/8/2007 on 3 Grounds of Appeal from which he has formulated single issue for determination and it reads as follows:

“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) 0f the Practice Directions and to have dismissed the Petition as abandoned pursuant to Paragraph 3(4) of the said Practice Directions.” (Grounds 1, 2 & 3).

The two sets of Respondents have raised similar issue for determination and there is no need to reproduce them. During hearing of this Appeal, learned Counsel on both sides adopted and relied on their respective Briefs duly filed.

The argument of the learned Counsel for the Appellant is in connection with Sections 151 of the Electoral Act, 2006 where it is stated that:-

“151. The rules of procedure to be adopted for election petitions and appeals arising therefrom shall be those set out in the First Schedule to this Act.”

Appellant then set out in extensio, the provisions of paragraphs 43 and 50 of the 1st Schedule Electoral Act, or Rules of Procedure as well as the provisions in Order 23 Rules 3(1) and (2) of the Federal High Court (Civil Procedure) Rules 2007. Learned Counsel also reproduced in extensio, the provisions of Paragraph 3(1) – (5) of the Election Tribunal and Court Practice Directions 2007 and submitted that the only rules of procedure which the Tribunal should follow in election petitions should be those set out in the 1st Schedule to the Electoral Act, 2006, otherwise referred to as the Rules of Procedure and relied on the authority of the case of BONI HARUNA VS. MODIBBO (2004) 16 N.W.L.R. (PART 900) 487, and further contended that any other rule of procedure, i.e. outside the 1st Schedule of Electoral Act, 2006 should not be allowed, after all, the other rules of procedure, are mere addendum or adjunct to the aforestated 1st Schedule. Appellant referred to and relied on the case of EGOLUM VS. OBASANJO (l2004) 1 WRN 67; REBAINES (1840) 12A & F 227 and ATTORNEY-GENERAL VS. LAMP LOUGH (1978) 3 EX D 214 AT 229. In his further argument, learned Counsel for the Appellant submitted that the power of the

Tribunal to enlarge time for doing any act or taking any proceedings, under Paragraph 43(1) of the 1st Schedule extends to the time fixed or allowed by Paragraphs 3(1), (4) and (5) of the Practice Directions 2007. Counsel still submits that the same paragraph 3(1) of the Directions is meant to activate the adjudicatory process of the Tribunal and that the Tribunal wrongly placed too much reliance on technicality and unfairly dismissed the Petition as having been abandoned. In conclusion, Appellant has urged this Court to hold that the tribunal was in error in discountenancing of the Appellant’s application for extension of time to comply with Paragraph 3(1) of the Practice Direction 2007, when the taking of the said application would have saved the Petition and allowed same to be heard on its merit; and that it was also in error in holding that the provisions of the 1st Schedule to Electoral Act, 2006 and the Federal High Court (Civil Procedure) Rules could not operate to save the Petition in light of Paragraphs 3(1) – (4) of the Practice Directions 2007. Appellant urged this Court to allow the Appeal and remit it back to the Tribunal to hear the Petition on merit.

In response, learned Counsel for 1st, 2nd, 4th – 14th Respondents now simply to be referred to as 1st set of Respondents, have argued that the Appellant’s sole Issue for determination should be discountenanced and dismiss the Appeal because, the three Grounds of Appeal from which he distilled the sole Issue have no bearing on the decision of the Tribunal. The 1st set of Respondents have argued that none of the three Grounds of Appeal relied on by the Appellant ever complained against the Tribunal’s decision in dismissing his Motion for extension of time within which he was to comply with Paragraphs 3(4) of the Practice Direction which was delivered on 14/07/2007, and that rather the Appellant in this Appeal per his sole Issue, complained only against the dismissal of his Petition. Counsel referred to the cases of: IWEKA VS.SCOA (NIG.) LTD. (2000) 7 N.W.L.R. (PT. 664) RATIO 19; BRAWAL SHIPPING LTD. VS. ONWADIKE COMPANY LTD. (2000) 11 N.W.L.R. (PT. 678) 387; AFRICA PETROLEUM LTD. VS. OWODUNNI (1991) 8 N.W.L.R. (PT. 210) 391.

The 1st set of Respondents urged that, in case we disagree with their assertion that, any Issue in an Appeal, which does not relate to or is not, based on any ground of appeal, should be discountenanced, the Appellant’s allegation that the Tribunal discountenanced his application for extension of time is contrary to facts on Record at PAGES 115 E AND 139. Still in support of their assertion, the 1st set of Respondents have contended that, the fate of the Appellant’s application for extension of time, was determined in two instances by the Tribunal. That the first instance was by the Appellant when he conceded through his Counsel to the dismissal of his application. Counsel referred to PAGE 115 E of the Record which says:-