Shittu A. Olawole V. I.N.E.C & Ors (2010) LLJR-CA

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A (Delivering the Leading Judgment)

This is an appeal against the Ruling of the Governorship and Legislative Houses Election Tribunal, sitting in Abeokuta, Ogun State delivered on the 14th of August, 2007 wherein the Hon. Tribunal dismissed the petition as having been abandoned pursuant to paragraph 3(4) of the Election Tribunal and Court Practice Directions 2007.

Briefly, Appellant was the candidate of the A.N.P.P under whose sponsorship he participated as a candidate in the election into the Ogun state House of Assembly seeking to represent the Odogbolu constituency at the said Assembly. Elections were conducted into the said House of Assembly on the 14th of April 2007 and the 3rd Respondent (Remmy M. Hazzan) being the candidate of the 20th Respondent (Peoples Democratic Party) was declared the winner by the 1st, 2nd, 4th – 19th Respondents (I.N.E.C.) Appellant being dissatisfied with the conduct of the Election and the declaration of the 3rd Respondent filed a petition dated 11/5/07 seeking to be returned as the winner of the Election or in the alternative seeking the nullification of the Election for reason of substantial non-compliance with the provisions of the Electoral Act. Proceedings were on-going in the matter, the Petitioner had applied for and was granted leave to inspect I.N.E.C polling documents (which process had commenced) and also applied for issuance of pre-hearing forms TF007 and TF008 which all parties involved had duly completed and filed in the Tribunal Registry. Upon realizing that the application for issuance of pre-hearing forms was initially made out of time, the Petitioner by an application filed on 13th July, 2007, sought for enlargement of time within which to apply for issuance of pre-hearing forms (pursuant to paragraph 3(1) of the Practice Directions) and for an order deeming the pre-hearing notice already filed processed and fixed for hearing by the Tribunal as having been properly filed and served, The said application gave rise to a plethora of preliminary objections, counter affidavits and written addresses by the Respondents. The Honourable Tribunal in a considered ruling delivered on 4/8/07 discountenanced the Petitioners application for extension of time to apply for pre-hearing forms and dismissed the petition as having been abandoned pursuant to paragraph 3 (4) of the practice Directions.

Being dissatisfied with the said ruling the Petitioner filed a notice of appeal on 29/8/07 wherein three grounds of appeal were raised, In the light of the grounds of appeal, Appellant formulated two issues for determination thus:

(i) Whether there is a conflict between the provisions of paragraph 3 subparagraph 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

(ii) If the answer to issue (i) 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.

The 1st, 2nd and 4th – 19th Respondents in their joint brief of argument formulated a lone issue for determination as follows:

Whether in the circumstance the Election Petition Tribunal was right to have discountenanced the Applicant’s motion for extension of time within which to comply with paragraph 3(i) of the Practice Directions and to have dismissed the petition as abandoned pursuant to paragraph 3(a) of the said Practice Directions.

3rd & 20th Respondents formulated a lone issue for determination as follows:-

Whether or not the lower Tribunal can entertain an application for extension of time to apply for the issuance of the pre-hearing notice.

I have considered the issues raised by the parties and I am of the view that the lone issue formulated by the 1st, 2nd and 4th – 19th Respondents is all encompassing and i will adopt same for the determination of this appeal.

Learned counsel for the Appellant counsel submitted that Section 151 of the Electoral Act 2006 provides for the rules of procedure to be adopted for election petitions and appeals arising there from shall be those set out in the First Schedule to this Act i.e Electoral Act, 2006. Paragraph 43(1) of the First Schedule to the Electoral Act provides that:

“Tribunal or Court shall have power subject to the schedule 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 Provision of this schedule.”

Learned counsel for the Appellant contended that by the provisions of paragraph 3(a) of the Practice Directions 2007.