Olarotimi Makinde V. Albert Abiodun Adeogun & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A.

This appeal raises a very narrow but important issue on the powers of courts to set-aside their own decisions. The appeal is against the decision of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal in Petition No NA/EPT/OS/9/2007 delivered on 3rd November 2007. I shall provide at once the brief background facts which brought about the appeal. The Appellant herein was the Petitioner at the tribunal. He was the Action Congress candidate at the Ife Central, Ife East/Ife North/Ife South Federal Constituency Election into the Federal House of Representative held on 21st April 2007. At the end of the polls, the 1st Respondent, the People’s Democratic Party (PDP) candidate, was declared the winner by the 3rd Respondent. The Petitioner challenged the result of the Election by filing a petition at the National Assembly/Governorship and Legislative Houses Election Petition Tribunal sitting at Osogbo. The petition is dated 21st May 2007.

In compliance with the Practice Directions, Pre-trial sessions were held and concluded on 17th August 2007 and the petition was adjourned to 21st September 2007 for tentative hearing. The petitioner instructed the Chambers of Bayo Osipitan & Co, on the very 17-8-07, to take over the prosecution of his petition from the chambers of M.A. Banire and Associate who had hitherto represented him. The chambers of Bayo Osipitan & Co filed a formal application for change of counsel on behalf of the Petitioner. This was on 18th September 07, more than a month after counsel had been instructed by the petitioner.

On 21 -9-07 when hearing into the petition was to commence, Mr. Fagbile announced appearance for the Petitioner holding Mr. Osipitan SAN’S brief. He told the tribunal that his instruction was limited to moving the petitioner’s application for change of counsel.

The tribunal considered that formality unnecessary and requested Mr. Fagbile to proceed with petitioner’s case. Mr. Fagbile notified the tribunal that he was not ready to proceed since the case file was with the principal counsel in Lagos and not in his possession. He urged the taqaqribunal to grant him an adjournment. Mr. Fagbile’s prayer for adjournment was opposed by Respondents’ counsel. The application was refused by the Tribunal which consequentially struck out the petition for lack of diligent prosecution.

Arguments on petitioner’s motion dated 27-9-07 praying the tribunal to set aside its order of 21-9-07 and relist the struck-out petition were heard by the tribunal. In a considered ruling dated 3rd November 07, the tribunal held it lacked the competence to set aside its earlier decision and accordingly struck out petitioner’s application. Being dissatisfied with the ruling, the petitioner has appealed against same on a notice containing five grounds.

Parties have filed and exchanged their briefs of arguments including the Appellant’s reply brief. The four issues formulated in the Appellant’s brief as having arisen for the determination of the appeal are:-

“1. Whether the tribunal rightly or wrongly held that it lacked the jurisdiction/power to set-aside its ruling of 21-9-07 to relist the petition.

2. Whether the Appellant who was represented by counsel at the tribunal on 21-9-07 was rightly or wrongly regarded as being absent by the tribunal.
3. Whether the tribunal was right or wrong in holding that the Appellant had not placed necessary materials before it to warrant the exercise of the discretion.
4. Whether the petitioner was given the opportunity to prosecute the petition by the tribunal so as to preclude him from complaining of denial of fair hearing.”

The three issues formulated in the 1st and 200 respondents’ brief for the determination of the appeal are:-

1. “Whether considering the special nature of Election Petitions, the learned members of the tribunal in exercising their discretion to strike out the petition and refusing to relist same acted judicially and judiciously.
2. Whether by the general intendment of the Election Tribunal and Court Practice Direction 2007, the Tribunal can relist a petition struck-out for want of appearance and/or diligence.
3. If issue 2 is answered affirmatively whether the Appellant placed enough materials before the tribunal to warrant exercising its discretion in favour of the Appellant”

In the 3rd – 646th respondents’ brief, a lone issue has been formulated for the determination of the appeal. The issue reads:-

“Whether the Honourable tribunal was right in refusing to relist the Appellants petition struck out on the 21st day of September 07”

The 64th and 648th Respondent’s brief similarly contains a lone issue for the determination of the appeal thus:-

“Whether considering the special nature of Election Petitions and the relevant laws/rules/facts in this case, the tribunal did not act judiciously in refusing to relist the Appellants’ petition struck out on the 21st day of September 2007”

The 2nd and 3rd sets of respondents in this appeal, 3rd – 646th respondents and 647th and 648th respondents, have urged us to strike out the 1st ground of Appeal in the Appellant’s notice. They argued severally that such a ground from which the Appellant did not formulate any issue for the determination of the appeal must be deemed abandoned and struck out. Counsel variously relied on NGIGE v. OBI & ORS (2006) NWLR (pt. 999) 1 AT 23: HOST SOMMER & ORS v. FEDERAL HOUSING AUTHORITY (1992) 1 SCNJ 73 AT 80 and IKWEKI v. EBELE (2005) 7 MJSC 12S AT 162.