Hon. Agboola Alfred Ajayi V. Oloye Raphael Nomiye & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling of the National and State House of Assembly Election Tribunal Akure Ondo State in Petition No.EPT/ODS/HR/03/2011 delivered on the 1st day of August, 2011 in which the Tribunal dismissed the application of the appellants for extension of time within which to apply for the issuance of pre-hearing notice and also dismissed the petition as abandoned for failure to apply for issuance of pre-hearing notice as required by law.

We heard the appeal on the 19th day of September 2011. We delivered judgment that same day dismissing the appeal and indicated that reasons will be given later. We now give the reasons.

The appellant herein was the candidate of Peoples Democratic Party (PDP) at the House of Representatives election held in Ondo State on 9/4/11 for Ilaje/Ese Odo Federal Constituency. The 1st respondent who contested the election under the platform of the 2nd respondent, Labour Party (LP) was declared the winner of the election by the 3rd respondent, INEC. Being dissatisfied with the declaration of the 1st respondent as the winner, the appellant as petitioner on 29/4/2011 presented a petition before the Tribunal challenging the result of the election. Pleadings were duly exchanged. The last pleading was the petitioner’s reply to the 3rd respondent’s reply to the petition and was filed on 1/6/2011. Instead of filing an application for issuance of pre-hearing notice, the petitioner filed a motion for amendment of his petition.

The Tribunal refused to hear the motion holding that the motion could only be heard during the pre-hearing session. The respondents now filed separately at different times applications to dismiss the petition for failure to apply for issuance of pre-hearing notice within the time allowed. The petitioner filed a counter affidavit in opposition and then also filed a motion for extension of time within which to apply for and file the pre-hearing Form TF 007 and a deeming order.

The Tribunal refused the petitioner’s application and granted the application of the respondents dismissing the petition as abandoned, the petitioner having failed to apply for issuance of pre-hearing notice within 7 days of 1/6/2011 when the last pleading was filed. Aggrieved by the ruling of the Tribunal, the appellant approached this court with a notice of appeal containing five grounds of appeal.

The said grounds bereft of their particulars read as follows:

1. The lower Tribunal erred in law and came to a wrong decision when it held “the Tribunal holds the view that paragraph 13 (4) having made provision on the issue of extension of time for application for issuance of pre-hearing notice, it ousts the application of the provisions of paragraph 45 (1) to that issue”
2. The Lower Tribunal erred in law and came to the wrong decision when it held that paragraph 18 (4) of the First Schedule to the Electoral Act, 2010 (as amended) delimits the power of the Tribunal to extend the time to make application for issuance of notice for pre-hearing after the expiration of 7 days period.
3. The lower Tribunal erred in law and came to the wrong decision when it held that “the prayer therefore to deem as properly filed and served Form TF007, the requisite fees having been paid cannot be granted by this Tribunal as the Form is nothing but a nullity as it is void ab initio.”
4. The lower Tribunal erred in law when it dismissed the petitioner’s application for extension of time to apply for the issuance of pre-hearing notice.
5. The lower Tribunal erred in law when it held that the cases of ENWEZOR VS. INEC (2009) 8 NWLR (PART 1143): OKEREKE VS. YAR’ADUA (2008) 12 NWLR (Pt. 1100) 95: OGUNMODEDE vs. FATAI (2010) 7 EPR 355 AND MAITSIDAU VS, CHIDARI (2008) 6 NWLR (Pt.1114) 553 relied on by the respondents were not given per incuriam.

From these grounds of appeal, the appellant formulated four issues:

1. Whether a Statute can legally oust the Jurisdiction conferred on a Court/Tribunal established by the constitution. (Grounds 1 and 2)
2. Whether the decisions in ENWEZOR vs. INEC (2009) NWLR (PART 1143): OKEREKE VS. YAR’ADUA (2008) 12 NWLR (Pt.1100) 95: OGUNMODEDE VS. FATAI (2010) 7 EPR 355 AND MAITSIDAU VS. CHIDARI (2008) 6 NWLR (Pt.1114) 553 are not given per incuriam and if yes whether they are binding on the Lower Tribunal in view of the contrary decision against the aforementioned cases in ALI VS. OSAKWE (2009) 14 NWLR (Pt 1160)75 (Ground 5)
3. Whether the decision of the lower Tribunal that the Form TF 007 filed by the Petitioner is a nullity is not based on technicality and therefore liable to be set aside in view of the overriding judicial policy laid down by the Supreme Court to do substantial justice (Ground 3)
4. Whether paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended) is not unconstitutional and if the answer to this question is in the affirmative, whether the power of the Tribunal to grant extension pursuant to Paragraph 45(I) is not extant. (Grounds 1, 2 and 4).

Learned Counsel for the 1st and 2nd respondents, Chief Adeyeye in his brief of argument identified only one issue as arising for determination:

l. Whether in the circumstances of this case the Learned members of the Election Tribunal were right when they applied the provisions of paragraph 1S(4) of the Rules of Procedure for Election Petition contained in the First Schedule of the Electoral Act to refuse the application of the petitioner/appellant for extension of time and consequently dismissed the petition on the ground that no application for the issuance of notice of pre-hearing session was made by the petitioner. See the grounds of appeal on pages 895- 899.

Chief Oluwole Osaze-Uzzi for the 3rd respondent in his brief raised a preliminary objection to the competence of all the issues formulated by the Appellant and in the alternative formulated two issues for determination;

i.) Can the Tribunal enlarge time for a petitioner to apply for the issuance of a pre-hearing notice? and;

ii.) Was the Tribunal correct in dismissing the Petition for the failure of the petitioner/Appellant to apply for the issuance of a pre-hearing notice?

During the hearing of the appeal on 1919/2011, E. Afolayan, Esq., lead Counsel for the appellant moved a motion praying for an order of the Court for leave and also for an order to compile and serve additional record of Appeal. The additional record of appeal which learned counsel claimed was inadvertently left out in the record of appeal compiled by the Tribunal Secretary was the appellant’s letter to the Secretary dated 20/6/2011 applying for the issuance of Form TF 007. In opposing the application Counsel for the 3’d respondent Mr. Osaze-Uzzi submitted that by paragraph 9 of the Election Tribunal Court Practice Directions 2011, the time for compilation and filing of record of appeal is 10 days ; that the appellant was grossly out of time and did not apply for extension of time.