Mr. Dele Taiwo Ololade V. Independent National Electoral Commission & 11 Ors (2008)

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M. D. MUHAMMAD, J.C. A.

On the 14th April, 2007, the 1st, 2nd, 4th-11th Respondents conducted the House of Assembly elections in Ogun State. Mr. Dele Taiwo Ololade and Mr. Olusola David Kojeku together with other candidates contested the elections in respect of the Egbado North Constituency I. Mr Ololade was sponsored by the All Nigeria Peoples Party (ANPP) while Mr Kojeku contested on the ticket of the Peoples Democratic Party, PDP. At the end of the election, Mr. Olusola David Kojeku was returned as the duly elected member for Egbado North Constituency I. Being dissatisfied with the return of Mr. Kojeku by the electoral body and its officials, Mr Ololade filed a Petition seeking the nullification of the return. Mr Ololade also asked the lower tribunal to declare him the lawfully elected candidate for the Constituency in place of Mr. Kojeku, the 3rd Respondent herein.

Having failed to apply for the issuance of the pre-hearing notice within the time provided for by paragraph 3 (1) of the Election Tribunal and Court Practice Directions 2007, the Petitioner by a motion on notice dated 13-07-07 and filed on 16/7/07 applied for extention of time to enable him comply. On 18-07-07, with Counsel to all the parties in attendance, the tribunal adjourned Petitioner’s application to 25-07-07 for definite hearing.

The record of appeal further shows that Petitioners’ Counsel was in the court hall before proceedings of the day commenced on 25-07-07. Information had been passed to Counsel that Petitioner’s application would be heard even though same had been mistakenly omitted from the cause list. Other counsel waited. When the matter was eventually mentioned, neither the Petitioner nor his counsel was in court. And there was no explanation for their absence, Petitioner’s application for extention of time dated 13-07-07 was struck out for want of diligent prosecution. Further invoking its powers under paragraph 3(4) of the Practice Directions, the tribunal dismissed Appellants abandoned petition.

Being aggrieved by the ruling of the Tribunal dated 25/07/07 striking out his application for extention of time to apply for the issuance of the Pre-hearing notice and dismissing his petition, the Petitioner has appealed to this court on a notice containing four grounds of appeal. Henceforth, parties to this appeal would be referred to as Appellant and Respondents and, the Tribunal from which the appeal emanated, the lower tribunal.

In keeping with the Rules of this court, parties have filed and exchanged briefs of argument, which were adopted and relied upon at the hearing of the Appeal.

Two issues have been distilled in the Appellant’s brief as arising for determination. The issues read:-

“(1) “Whether the Tribunal was right to have dismissed the Petition pursuant to paragraph 3(4) rather than paragraph 3(11) of the Practice Directions upon the failure of the Petitioner/Appellant to appeal and to participate m the pre-hearing proceedings on the date fixed for same thus permanently shutting out the Petitioner/Appellant. (Ground 1).

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

The two sets of Respondents have adopted the foregoing issues as calling for determination in the appeal.

Under the 1st issue, Learned Appellant Counsel contended that the lower tribunal was harsh in sanctioning the Petitioner and/or his Counsel’s absence in court on 25-7-07 fixed the hearing of Appellant’s application for extention of time to apply for the issuance of the pre-hearing notice. The tribunal should have invoked its power under paragraph 11 and 12 its Practice Direction rather than those under paragraph 3(4). Whereas the provisions under 3(11) and 12 allow the Petitioner to re-apply for the relisting of his Petition, paragraph 3(4) does not thereby bringing to a permanent end the Petitioner’s right to seek justice from the tribunal. It is urged that this injustice be remedied.

In arguing Appellant’s 2nd issue for determination of the appeal, Learned Counsel submitted that paragraph 3 of the Tribunal’s Practice Directions 2007 stands in clear conflict with the rules of procedure applicable to the tribunal by virtue of Section 151 of the Electoral Act, paragraphs 43 and 50 of the first schedule to the Act as well as Order 23 Rules 3(1) and (2) of the Federal High Court (Civil Procedure) Rules 2000.

Learned Counsel contended that the Practice Direction is a mere addendum or adjunct and applicable only where it is not inconsistent with the Rules of procedure set out in the first schedule to the Electoral Act 2006. Rules of Procedure provided by the first schedule to the Electoral Act prevail over any inconsistent provision of the Practice Direction. It is argued that the tribunal’s power to enlarge time for doing any Act or taking any step as provided by paragraph 43(1) of the Schedule extends to the time fixed or allowed by paragraphs 3(1) (4) and (5) of that Practice Direction. Learned Counsel relied inter alia on VISA v. ORZUA (2006) 1 WRN 164; BONI HARUNA v. MODIBBO (2004) 16 NWLR (Pt 900) 487; EMESIM v. NWACHUKWU (1999) 6 NWLR (Pt. 605) 154 and SALEH v. MONGUNO (2006) 15 NWLR (Pt. 1001) 26 At 62.

Finally, Learned Appellant Counsel submitted that the tribunal’s strict adherence to the Practice Direction, which though inferior but inconsistent with the applicable procedural rules, must be interfered with by this court.