Sarafa O. Hassan V. INEC & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

The appeal is against the ruling of the Governorships and Legislative Houses Election Tribunal. Abeokuta Ogun State delivered on 8th day of August, 2007 wherein the tribunal dismissed the petition as having been abandoned pursuant to paragraphs 3(4) of the Election Tribunal and Court Practice Directions 2007. It was on the findings that the petitioner now appellant, had failed to apply for the issuance of Pre-hearing Notice as required in Form TF007 within the specified period. The appellant applied by motion to regularize his position which was filed on 14-07-07 as contained at pages 84-90 of the record. The motion was moved and argued by all counsel by filing and exchanged written addresses. The Tribunal considered all parties arguments, and held at pages 162-182 of the record, that the aforesaid paragraphs 3(4) of the Practice Direction, had prohibited the extension of time to set down the petition for pre-hearing and therefore refused the application and held further that, the petition was an abandoned petition, and thus dismissed same.

Dissatisfied with the said ruling, the petitioner now appellant, filed a notice of appeal on 29-8-2007 with 4 grounds of appeal from which he distilled and formulated 2 issues as follows:-

1. “Whether in the letter of application dated 26-6-07 and received by the Tribunal registry on 27-6-2007, the petitioner/appellant could be said to have been out of time on applying for the issuance of Pre-paring forms as required by the provisions of Paragraph 3(1) of the Practice Directions (Ground 1)

ALTERNATIVELY:-

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 paragraphs 3(4) of the said Practice Directions” (Grounds 2),3 and 4).

It is to be noted that 1st, 2nd, 4th to 14th respondents failed to file their briefs of arguments within the prescribed period, and on the 18th day of June, 2008 of their purported brief filed on 10-1-2008 was struck out before the appeal was adjourned to 1st July, 2008 for hearing. It therefore means that the 1st, 2nd, 4th-14th respondents have no brief of argument for determination though they will be bound by the decision in this judgment.

On the part of the 3rd and 15th respondents, their joint brief was dully Filed on 14-12-2007 and have raised one issue for determination. It reads as follows:-

“Whether or not the Tribunal was right in dismissing the Petition as an abandoned petition having regard to the law and evidence brought before it while considering the petitioner/appellant’s motion which resulted in the Ruling being appealed against.”

As earlier stated, appellant’s two issues are in the alternative. The appellant briefly argued the first alternative issue as contained in his paragraphs 4.01 to 4.04 in page 5 to 6 of his brief. His submission is that, his lead counsel’s letter of 26-6-2007, was dully filed and acknowledged by the Tribunal on 27-6-2007, had saved the petition from infraction of paragraph 3(1) of the Practice Direction. In other words, letter of appellant’s counsel filed on 26-6-2007 and duly filed in the registry on 27-6-2007, was clearly within seven (7) days of the filing and service of the respective Replies of the totality of the respondents which were filed on 13-6-2007.

Learned counsel then contended that once a litigant has complied with the rules or requirement of the law as in the instant Practice Direction in paragraphs 3(1), the litigant bears no responsibility for any failures, lapses or errors on the part of the registry of the Tribunal or the court’s counsel referred to and relied on the Supreme Court decisions in SAUCE VS. ABDULLAHI (1989) 4 NWLR (PT.116) 387, 424; ALAWODE VS. SEMOH. (1959) 4 FSC 29; FAMTA VS. AH/GEN. FEDERATION (2003) 18 NWLR (PT 852) 452.

In concluding his alternative issue, learned counsel for the appellant has contended that since that letter of 26-6-2007 was brought to the attention of the Tribunal which was to the effect that the appellant had indeed applied within the time prescribed by paragraph 3 (1) of the Practice Directions, it was no longer open to the Tribunal as a court of equity and justice to close its eyes to the true state of affairs and fatally punish the appellant for an offence proven not to have been committed but done by lapses of the registry.

Appellant’s argument in respect to the second alternative issue is that, the Tribunal was apparently acting on appellant’s application under the mistaken belief that he was out of time in applying for the issuance of Pre-Hearing forms TF007 and TF008. That based on the application dated 13-7-2007, and filed on 14-7-2007, which was for enlargement of time and regularization of the forms, was made in error, because the same forms TF007 and TF008 had earlier been issued, filed and answered by the appellant and the respondents respectively. That appellant’s counsel drew the attention of the Tribunal on this fact which is a letter dated 30-7-2007, that the arguments for extension of time and regularization, had become academic exercise. Learned counsel referred to pages 138-140 of the record and also section 151 of the Electoral Act, 2006 as well as paragraph 43 (1), (2), (3), (4), (5), (6) and (7) of the 1st Schedule of the same Electoral Act. Learned Counsel further referred to and relied on paragraphs 3 (1) to (5) of the Election Tribunal and Practice Direction 2007 in extensio, and then submitted that any other Rule of Practice in an election petition is a mere addendum or adjunct to those set out in the 1st schedule, and are to be applied mutatis mutandis to the extent that they are not inconsistent with the Rules of Procedure as set out in the 1st schedule of the Electoral Act, 2006. Counsel still submitted that if any other Rule of Procedure on any subject is inconsistent with the 1st schedule aforesaid on the same subject, that other rule of procedure shall give way because the rules of procedure to be adopted for election petitions and appeals arising there from shall be set out in the first schedule to the Act; and counsel relied on the decisions in EGOLUM VS. OBASANJO (2004) 1 NWR 67.

Appellant’s counsel further contended that paragraphs 43(1), (2) and (3) of the First schedule, gave power to the Tribunal to enlarge time for doing any act or taking any proceedings on such terms (if any) as the justice of the case may require except otherwise provided by any other provisions of the Schedule; and referred and relied on the case of VISA VS. ORZUA (2006) 1 WRN 164; BONI HARUNA VS. MOOIBO (2004) 16 NWLR (PT.900) 487; YUSUF VS.OBASANJO(2003) 16 NWLR (PT 847) 544. Counsel still submitted that the power of tribunal to

enlarge time for doing any act or taking any proceedings under paragraphs 43 (1) of the First Schedule, extends to the time filed or allowed by paragraphs 3(1), (4) and (5) of the Practice Direction, 2007. Appellant’s counsel finally urged this appellate court to hold that the lower tribunal was in error in failing to hold from the contents of the application dated and made on 27-7-2007 that the appellant had fully complied with the requirement of Paragraphs 3(1) of the Practice Direction 2007 or, in the alternative, that the lower Tribunal erred in discountenancing the appellants application for extension of time to comply with paragraph 3(1) of the aforesaid Practice Direction when the probable granting would have saved the Petition and allowed same to be heard on merit. Counsel urged that the appeal be allowed.