Sunkanmi Olawoyin V. I.N.E.C. & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment)

This is an appeal against the ruling of the Governorship and Legislative Houses Election Tribunal, Abeokuta, Ogun State (hereinafter referred to as the Tribunal) delivered on 4th August, 2007 dismissing the appellant’s petition as having been abandoned pursuant to paragraph 3 (4) of the Election Tribunal and Court Practice Directions 2007.

Elections were conducted into the Ogun State House of Assembly on 14th April 2007. The appellant, a member of the All Nigeria Peoples Party (ANPP) contested the seat for the Ado-Odo Ota Constituency. At the conclusion of the election the 1st, 2nd and 4th – 12th respondents declared the 3rd respondent who was the candidate of the Peoples Democratic Party (PDP) as the winner. The appellant was dissatisfied with the outcome of the election and filed a petition dated 11th May, 2007 before the Tribunal seeking to be returned as the winner of the election or alternatively seeking the nullification of the said election for substantial non-compliance with the provisions of the Electoral Act.

On 16th July 2007, the appellant filed an application before the Tribunal dated 13th July 2007 for the following relief:

‘An order of the Honourable Tribunal granting the Petitioner/Applicant LEAVE for AN ENLARGEMENT OF TIME within which to apply for the issuance of a PRE-HEARING NOTICE (Form TF007) accompanied by a PRE-HEARING INFORMATION SHEET (Form TF008) for the hearing purposes highlighted in Prg 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 as the Honourable Tribunal may deem fit to make in the circumstances.’

The respondents opposed the application. In a considered ruling delivered on 4th August, 2007 the Tribunal refused to entertain the application and dismissed the petition as abandoned pursuant to paragraph 3 (4) of the Practice Directions 2007.

The appellant was dissatisfied with the decision and filed a notice of appeal dated 20th August 2007 containing three grounds of appeal.

In his amended brief of argument dated 16/12/08 and deemed filed on 30/9/08 two issues were formulated for determination from the three grounds of appeal as follows:

1. Whether there is a conflict between the provisions of paragraph 3 (4) of the Election Tribunal and Court Practice Directions 2007 and the provisions of paragraph 43 (1) of the First Schedule to the Electoral Act 2006 (Grounds 1 & 3) and
2. If the answer to issue (1) is in the affirmative, whether the Lower Tribunal was right when it invoked and applied the provisions of paragraph 3 (4) of the Election Tribunal and Court Practice Directions 2007 as the basis for dismissing the appellant’s petition.

(Ground 2).

The 3rd and 13th respondents filed an amended brief of argument dated 14/10/09 and filed the same day. Therein a single issue was formulated for determination as follows:

‘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.’

The Appellant also filed a reply brief dated and filed on 22/10/09. This appeal was heard on 14/01/2010. Mr. A. A. Yesufa with F. O. Akerele for the Appellant adopted and relied on the Appellant’s briefs. He cited as an additional authority a judgment of this court dated 30/11/09 in Appeal No. CA/I/EPT/HA/33/07: G. A. OGUNLANA V. INEC & 10 Ors. (unreported) wherein he contended that the two issues formulated for determination in this appeal have been resolved in favour of the Appellant. He urged the court to allow the appeal and order a retrial of the petition.

Mr. Ayodele Delano leading Miss. E. S. Ichiefetano and Miss. A. F. Ogunlesi adopted and relied on the 3rd and 13th Respondent’s amended brief of argument. He submitted that the Supreme Court resolved the issue for determination in this appeal in the case of Okereke Vs. Yar’adua (2008) 12 NWLR (1100) 95. He argued that the Practice Directions are valid and applicable to Election Tribunal proceedings. He contended that the Practice Directions contain specific provisions that deal with pre-hearing proceedings before the Tribunal. He argued that there is no conflict between the provisions of the First Schedule to the Electoral Act and the Practice Directions. He urged the court to dismiss the appeal with costs.