Ogunnubi Moses Olufunso V. Independent National Electoral commission & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

SIDI DAUDA BAGE, J.C.A,

This is an appeal by the Appellant who was the Petitioner at the Governorship/National Assembly and Legislative Houses Election Petition Tribunal, Ogun State, sitting at Abeokuta in Petition No. EPT/OG/HA/8/2007, against the Ruling of the Tribunal Coram: Honourable Justices H.M. Tsammani, B.H. Ismail, C.U. Ukpe, U.M. Sadiq and C.O. Onyeabo, delivered on 30th day of July, 2007, wherein the Honourable Tribunal dismissed the Petition as having been abandoned, pursuant to Paragraph 3(4) of the Election Tribunal and Court Practice Direction, 2007. The facts leading up to this appeal are briefly set out as follows:-

“Elections were held throughout the Federal Republic of Nigeria on the 14th of April, 2007 into the State Legislative Houses of Assembly. The Petitioner/Appellant contested the election on the platform of All Nigeria People’s Party (ANPP) into the Ogun State House of Assembly for Ijebu-East Constituency and at the end of the election, the 3rd Respondent was declared winner of the election by the 1st Respondent, the Independent National Electoral Commission (INEC)”.

Aggrieved by the return of the 3rd Respondent at the said election, the Appellant filed a Petition No. EPT/OG/HA/8/2007 on the 11th of May, 2007 against the Respondents on the following grounds (in summary):-

(a) The 3rd Respondent was not duly elected by a majority of lawful votes cast at the election as voting was frustrated.

(b) That the return of the 3rd Respondent at the election (for Ogun State House of Assembly Ijebu-East) was invalid by reasons of corrupt practices and non-compliance with the provisions of the Electoral Act, 2006.

The Appellant then prayed the Tribunal that it be determined as follows:-

(a) That the purported return of the 3rd Respondent for Ijebu-East Constituency of Ogun State Legislative House by the 1st, 2nd, 4th – 15th Respondents on the 14th of April, 2007 election be declared invalid, null and void and of no effect whatsoever, because of corrupt practices and non-compliance with the provisions of Electoral Act, 2006; or the Appellant be declared winner.

(b) Order of the Tribunal that the 1st, 2nd, 4th – 15th Respondents should conduct fresh election in the said Constituency following the due process of the law.

By the provision of Paragraph 3(1) of the Election Petition Tribunal and Court Practice Direction, 2007, the Petitioner is expected to, either within 7 days after filing and service of the Reply on the Respondent, or 7 days after filing and service of the Respondent’s Reply, apply for issuance of Pre-hearing Notice as in Form TF007. The results of failure to comply with Paragraph 3(1) of the Practice Direction, the Appellant (Petitioner) failed to apply for the issuance of Pre-hearing Notice within the time stipulated under Paragraph 3(1) of the Practice Directions, whereof he applied for an enlargement of time within which to file the Pre-hearing Information Sheet and to deem the Pre-hearing Information Sheet already filed as properly filed and served. It is against the said application for enlargement of time the two sets of Respondents to wit: 1st – 2nd, 4th – 15th Respondents and the 3rd and 16th Respondents respectively filed separate Notices of Preliminary Objection. The Preliminary Objection of the 1st, 2nd, 4th – 15th Respondents is dated and filed 20/7/2007 while the 3rd and 16th Respondents is dated and filed 24/7/2007. The Tribunal entered a considered Ruling on these applications on the 30th day of July, 2007 and dismissed the Petition. Dissatisfied with the dismissal of the Petition by the Tribunal, the Appellant filed a Notice of Appeal dated the 19th of August, 2007.

In accordance with the Rules of this Court, the Appellant filed his Amended Brief of Argument dated the 16th of December, 2008, but filed on the 6th of January, 2009. Having regard to the Grounds of Appeal filed, the Appellant contend that the following are Issues arising for determination in this appeal:-

(i) Whether there is a conflict between the provisions of Paragraph 3(4) of the Election Petition Tribunal and Court Practice Direction, 2007 and the provisions of Paragraph 43(1) of the First Schedule to the Electoral Act, 2006 (Grounds 1 and 3) and

(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 Petition Tribunal and Court Practice Direction, 2007 as the basis for dismissing the Appellant’s Petition. (Ground 2).

The 1st, 2nd, 4th – 15th Respondents filed their Brief of Argument dated and filed the 26th of March, 2009. In it, they adopted the Two (2) Issues formulated by the Appellant in his Brief of Argument to wit:-