Jolaosho Israel V. Independent National Electoral Commission & Others (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

FASANMI, 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 delivered on 15th day of August, 2007 wherein the Honourable Tribunal dismissed the petition as having been abandoned pursuant to paragraph 3(4) of the Election Tribunal and Court Practice Directions 2007.

The facts of the case are that the 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 Ewekoro Constituency at the said Assembly.

The elections were conducted into the said House of Assembly on the 14th of April, 2007 and the 3rd Respondent Adegboyega Adekunle being the candidate of the 13th Respondent (Peoples Democratic Party) was declared the winner by the 1st, 2nd and 4th- 14th Respondents (I.N.E.C).

The Appellant being dissatisfied with the conduct of the Election and the declaration arising therefrom filed a petition dated 11/5/07 before the Election Petition Tribunal sitting at Abeokuta, Ogun State 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 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 14th 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 Hon. Tribunal in a considered ruling delivered on 15/8/2007 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(a) of the Practice Directions.

Being dissatisfied with the said ruling, the Petitioner filed a notice of appeal on 22/8/07 wherein three grounds of appeal were raised. In compliance with the rules of Court, parties filed their respective briefs of arguments. The Appellant’s amended brief of argument was filed on 17th February 2010 but deemed properly filed on 17th February, 2010 but deemed properly filed on 18/2/2010. 3rd & 15th Respondents brief of argument was filed on 4th of February 2008. 1st, 2nd and 4th – 14th Respondents although duly served with the processes in this appeal did not file any process. We are satisfied from the court’s record that 1st, 2nd and 4th – 14th Respondents were served with the hearing notice against 7th of October, 2010. They were absent and unrepresented by Counsel at the hearing of the appeal.

From the three grounds of appeal raised, Appellant distilled two issues for determination thus:

(1) Whether there is a conflict between the provisions of paragraph 3(4) of the Electron Tribunal and Court Practice Direction, 2007 and the provisions of paragraph 43(1) of the First Schedule to the Electoral Act, 2006.

(2) 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 3rd & 15th Respondents distilled a sole issue for determination thus:

Whether or not the Tribunal rightly dismissed the petition of the Appellant for his failure to comply with paragraph 3(1) of the Practice Direction

I have considered the issues raised by all the parties and have come to the conclusion that issue two formulated by the Appellant (with slight modification) is sufficient to resolve the issues in contention in this appeal. Appellant’s issue 1 may be conveniently considered under issue 2. 3rd & 15th Respondents sole issue is therefore subsumed in Appellant’s issue 2. The sole issue for determination in this appeal is the Appellant’s issue 2 slightly modified as follows: