Otunba A. Asaluola V. Independent National Electoral Commission & Ors (2008)

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CHIDI NWAOMA UWA, J.C.A.

This appeal is against the Ruling of the Governorship and Legislative Houses Election Tribunal, Abeokuta Ogun State (hereafter referred to as the Tribunal) delivered on the 1st day of August, 2007 wherein the Tribunal dismissed the petition as having been abandoned pursuant to paragraph 3 (4) of the Election Tribunal and Court Practice Directions, 2007.

The Appellant was the candidate of the ANPP under whose sponsorship he participated as a candidate in the Election into the Ogun State House of Assembly seeking to represent the Obafemi Owode Constituency at the said Assembly. The Elections were conducted into the said House of Assembly on 14th April, 2007 and the 3rd Respondent (Tunji Egbetokun) being the candidate of the 17th Respondent (peoples Democratic Party) was declared the winner by the 1st, 2nd 4th-16th Respondents (INEC).

The Appellant being dissatisfied with the conduct of the Election and the declaration arising there from filed a petition dated 11/5/07 before the Tribunal seeking to be returned as the winner of the Election or in the alternative seeking the nullification of the Election for the reason of substantial non-compliance with the provisions of the Electoral Act.

In course of the proceedings, the Petitioner applied for issuance of Pre-hearing forms TF007 and TF008 which all parties involved had duly completed and filed in the Tribunal Registry.

On realizing that the application for the issuance of Pre-Hearing forms were made out of time, the Petitioner filed an application dated 13/7/07, filed on 16/7/07 seeking for an enlargement of time within which to apply for the 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 (page 107 of the records).

There was an affidavit in support of the application. (Pages 109-110 of the records). Paragraphs 4-7 of the said affidavit gave the reasons for the lateness in filing the application for the issuance of Pre-hearing Notice as required by the Tribunal and Court Practice Directions.

There was also filed in support of the application, a written address and submissions in support of the relief sought in the Motion on Notice for enlargement of time to apply for Pre-hearing Notice. (Pages 111-113 of the Records). On 19/7/07 the petitioner filed a supplementary written address/brief in respect of the same application.

On the 24/7/07 the 3rd and 17th Respondents filed their written address in response and in opposing the application to the petitioner’s application/motion filed on 16/7/07. On 26/7/07 the 1st, 2nd and 4th-16th Respondents in response to the petitioner’s application filed their written address also opposing the application.

From the printed records, page 137, the matter came up on 1/8/07 for adoption of written addresses and submissions in respect of the petitioner’s application filed on 16/7/07 for extension of time. On the said 1/8/07 Adekunle Sulaiman Esq learned counsel for the Petitioner was absent, the petitioner was also absent. From the proceedings of 1/8/07 the Learned Petitioner’s Counsel was to file a reply on points of law, the application to file a reply was said to have been made on 26/7/07.

The learned counsel to 3rd and 17th Respondents was of the opinion that the learned counsel to the petitioner’s counsel not being in court meant that he had no application to be considered and urged the Tribunal to invoke the provisions of the Practice Directions and strike out the application and specifically paragraph 3 (11) (a) to dismiss the petition.

Learned counsel to the 1st, 2nd 4th-16th Respondents were also in support of the dismissal of the petition and urged the tribunal to dismiss it.

The Tribunal in its considered Ruling discountenanced the petitioner’s application for extension of time to apply for Pre-hearing forms and dismissed the petition as having been abandoned pursuant to paragraph 3 (4) of the Practice Directions.

Being dissatisfied with the said Ruling the Petitioner filed a Notice of Appeal on 22/8/07 wherein three (3) grounds of Appeal were raised. A sole issue was formulated for determination by this court. That is: