SUNKANMI OLAWOYIN v. I.N.E.C. & ORS.
(2010)LCN/3575(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of February, 2010
CA/I/EPT/HA/15/2007
RATIO
ELECTION MATTERS: PURPOSE OF PRE-HEARING SESSIONS
It is not in dispute that the Practice Direction 2007 makes provision for the regulation of some aspects of election petition proceedings not provided for in the Electoral Act or the First Schedule thereto, such as the pre-hearing procedure. The pre-hearing sessions are designed to ensure that all preliminary and interlocutory matters are disposed of within a specified time so that once the matter is set down for hearing, the trial may proceed from day to day with despatch. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
COURT: DUTY OF AN APPLICANT SEEKING THE EXERCISE OF THE COURT’S DISCRETION IN ELECTION PETITION PROCEEDINGS
Where an applicant seeks the exercise of the court’s discretion in his favour, especially in election petition proceedings, he must go the extra mile by placing credible materials before the court upon which the exercise of discretion could be based. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
SUNKANMI OLAWOYIN Appellant(s)
AND
I.N.E.C. & 12 ORS Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling of the Governorship and Legislative Houses Election Tribunal, Abeokuta, Ogun State (hereinafter referred to as the Tribunal) delivered on 4th August, 2007 dismissing the appellant’s petition as having been abandoned pursuant to paragraph 3 (4) of the Election Tribunal and Court Practice Directions 2007.
Elections were conducted into the Ogun State House of Assembly on 14th April 2007. The appellant, a member of the All Nigeria Peoples Party (ANPP) contested the seat for the Ado-Odo Ota Constituency. At the conclusion of the election the 1st, 2nd and 4th – 12th respondents declared the 3rd respondent who was the candidate of the Peoples Democratic Party (PDP) as the winner. The appellant was dissatisfied with the outcome of the election and filed a petition dated 11th May, 2007 before the Tribunal seeking to be returned as the winner of the election or alternatively seeking the nullification of the said election for substantial non-compliance with the provisions of the Electoral Act.
On 16th July 2007, the appellant filed an application before the Tribunal dated 13th July 2007 for the following relief:
‘An order of the Honourable Tribunal granting the Petitioner/Applicant LEAVE for AN ENLARGEMENT OF TIME within which to apply for the issuance of a PRE-HEARING NOTICE (Form TF007) accompanied by a PRE-HEARING INFORMATION SHEET (Form TF008) for the hearing purposes highlighted in Prg 3 (1) and (2) in the Election Tribunal And Court Practice Directions, 2007 AND to deem as properly filed and served the said application already filed and served.
And for such Orders or further Orders as the Honourable Tribunal may deem fit to make in the circumstances.’
The respondents opposed the application. In a considered ruling delivered on 4th August, 2007 the Tribunal refused to entertain the application and dismissed the petition as abandoned pursuant to paragraph 3 (4) of the Practice Directions 2007.
The appellant was dissatisfied with the decision and filed a notice of appeal dated 20th August 2007 containing three grounds of appeal.
In his amended brief of argument dated 16/12/08 and deemed filed on 30/9/08 two issues were formulated for determination from the three grounds of appeal as follows:
1. Whether there is a conflict between the provisions of paragraph 3 (4) of the Election Tribunal and Court Practice Directions 2007 and the provisions of paragraph 43 (1) of the First Schedule to the Electoral Act 2006 (Grounds 1 & 3) and
2. If the answer to issue (1) is in the affirmative, whether the Lower Tribunal was right when it invoked and applied the provisions of paragraph 3 (4) of the Election Tribunal and Court Practice Directions 2007 as the basis for dismissing the appellant’s petition.
(Ground 2).
The 3rd and 13th respondents filed an amended brief of argument dated 14/10/09 and filed the same day. Therein a single issue was formulated for determination as follows:
‘Whether or not the tribunal rightfully dismissed the petition of the appellant for his failure to comply with paragraph 3 (1) of the Practice Direction.’
The Appellant also filed a reply brief dated and filed on 22/10/09. This appeal was heard on 14/01/2010. Mr. A. A. Yesufa with F. O. Akerele for the Appellant adopted and relied on the Appellant’s briefs. He cited as an additional authority a judgment of this court dated 30/11/09 in Appeal No. CA/I/EPT/HA/33/07: G. A. OGUNLANA V. INEC & 10 Ors. (unreported) wherein he contended that the two issues formulated for determination in this appeal have been resolved in favour of the Appellant. He urged the court to allow the appeal and order a retrial of the petition.
Mr. Ayodele Delano leading Miss. E. S. Ichiefetano and Miss. A. F. Ogunlesi adopted and relied on the 3rd and 13th Respondent’s amended brief of argument. He submitted that the Supreme Court resolved the issue for determination in this appeal in the case of Okereke Vs. Yar’adua (2008) 12 NWLR (1100) 95. He argued that the Practice Directions are valid and applicable to Election Tribunal proceedings. He contended that the Practice Directions contain specific provisions that deal with pre-hearing proceedings before the Tribunal. He argued that there is no conflict between the provisions of the First Schedule to the Electoral Act and the Practice Directions. He urged the court to dismiss the appeal with costs.
The 1st, 2nd, 4th – 12th Respondents although duly served with the processes in this appeal did not file any process. We are satisfied from the court’s record that on 07/01/2010 they were duly served with hearing notice against 14/01/2010. They were absent and unrepresented by counsel throughout the proceedings.
Having carefully examined the two issues formulated by the appellant and the single issue formulated by the 3rd and 13th respondents, I am of the view that issue 2 formulated by the appellant (with slight modification) is sufficient to resolve all the issues in contention in this appeal. The appellant’s issue 1 may be conveniently considered under issue 2. The sole issue for determination in this appeal is therefore the appellant’s issue 2 slightly modified as follows:
‘Whether the Lower Tribunal was right when it invoked and applied the provisions of paragraph 3 (4) of the Election Tribunal and Court Practice Directions 2007 in dismissing the appellant’s petition.’
Arguing in support of the appeal, learned counsel for the appellant submitted that by the provisions of paragraph 43 (1) of the First Schedule to the Electoral Act 2006, the Lower Tribunal has the power to grant extension of time in respect of all aspects, processes and proceedings in the petition, which are time bound. He submitted that the words ‘any proceedings’ and ‘any act’ used in paragraph 43 (1) of the First Schedule covers every aspect of the proceeding in the petition before the lower Tribunal, including the pre-hearing session. He referred to: Zarigina Vs Comm. Of Works, Borno State (2001) 9 NWLR (460) @ 481 B – C; Mairo Vs Laushi (1993) 4 NWLR (288) 423 @ 431 – 432. He referred to paragraph 3 (4) of the Practice Directions, which provides that no application for extension of time to comply with the provisions of paragraph 3 (1) shall be filed or entertained by the Tribunal, and submitted that by the doctrine of ‘covering the field’, paragraph 43 (1) of the First Schedule having already covered the field of application for enlargement of time within which to take any step in the petition, the provisions of paragraph 3 (4) of the Practice Direction are in conflict with the provisions of paragraph 43 (1) of the First Schedule in respect of the validity of an application to enlarge time to file Form TF007. On the doctrine of covering the field he relied on: A.G. Abia State Vs A.G. Federation (2002) 3 SCNJ 16 @ 189.
Learned counsel submitted that by virtue of Section 151 of the Electoral Act 2006, the rules of practice and procedure to be adopted for election petitions shall be those set out in the First Schedule to the Act. He submitted that the Tribunal was bound to follow the provisions of the said First Schedule in the proceedings before it. He referred to: Boni Haruna Vs Modibo (2004) 16 NWLR 487. He referred to the decision of the Supreme Court in the case of: University of Lagos Vs Aigoro (1984) NSCC 745 @ 755 – 756 wherein it was held that Practice Directions are inferior to rules of procedure and that in the event of a conflict with the rules of procedure the rules of procedure would prevail. He also relied on: Abubakar V. Yar’Adua (2008) 4 NWLR (1078) 465 @ 515 F – G; Okereke V. Yar’Adua (2008) 8 MJSC 182 @ 218 A-B. He argued that in the instant case, the Tribunal ought to have found that there was a conflict between paragraph 3 (4) of the Practice Directions and paragraph 43 (1) of the First Schedule and applied the provisions of paragraph 43 (1) in granting the application.
He noted that in Okereke Vs Yar’Adua (supra) at 1999 F – G, the Supreme Court held that paragraph 3 (4) of the Practice Directions was mandatory. He however sought to distinguish the facts of the case from the facts of the instant case on the ground that in Okereke’s case the only issue before the Supreme Court was whether, having regard to the provisions of paragraph 6 (1) of the Practice Directions, the motion and objection not taken during the pre-hearing session were competent proceedings. He argued that in Okereke’s case the issue of conflict between the provisions of the First Schedule and the Practice Directions did not arise. He argued further that what was in contention before the Supreme Court in Okereke’s case was the construction and application of paragraph 6 (1) of the Practice Directions and submitted that the statements based on the application of the provisions of paragraph 3 (4) of the Practice Directions were therefore made obiter and not binding on this court. He urged the court to follow its earlier decision delivered on 28/5/08 in Appeal No. CA/B/EPT/261/2008: Dr. Mrs. Alli & Anor. Vs Sen. Osakwe (unreported). He urged the court to allow the appeal and grant the reliefs sought.
In reply to the submissions of learned counsel for the appellant, learned counsel for the respondent submitted that election petitions are special proceedings for which special statutory provisions are made wherein in certain circumstances the slightest default in complying with a procedural step could result in fatal consequences to the petition. He relied on: Buhari Vs Obasanjo (2003) 14 NWLR (841) 446; Abubakar Vs INEC, (2004) 1 NWLR (854) 218. He submitted that time is of the essence in an election petition, as exemplified by Section 148 of the Electoral Act, which provides for accelerated hearing of election petitions and their precedence over all other causes or matters before the tribunal or court.
He argued that the general provisions of the First Schedule to the Electoral Act are subject to other specific provisions contained in the Practice Directions. He referred to paragraph 50 of the First Schedule to the Electoral Act and submitted that having regard to the fact that the Practice Direction has its origin in the aforesaid paragraph 50, the Practice Direction and paragraph 3 (4) thereof is the only rule applicable. He submitted that as the Practice Direction specifically provides for the way and manner the pre-hearing sessions are to be conducted, no other provision or rule could be imported into it. He submitted further that a general provision in a statute cannot override a specific provision such as paragraph 3 (4) of the Practice Direction. He relied on: A.G. Ogun State Vs A.G. Federation (2003) FWLR (143) 206; Federal Mortgage Bank of Nigeria Vs Olloh (2002) FWLR (107)1244.
Learned counsel for the 3rd and 13th respondents submitted that rather than being in conflict with paragraph 43 of the First Schedule to the Electoral Act, paragraph 3 (4) of the Practice Direction circumscribes the discretion of the Tribunal on enlargement of time to do an act during the course of the proceedings. He relied on the case of: Enwezor Vs INEC (2009) 8 NWLR (1143) 223 wherein this Court held that there was no conflict between the two provisions. He submitted further that in Okereke Vs Yar’Adua (supra) the Supreme Court upheld the efficacy and validity of paragraph 3 (4) of the Practice Direction. He referred to paragraph 3 (1) of the Practice Direction and submitted that the provisions are couched in mandatory terms. He argued that once the time prescribed for the petitioner to apply for the issuance of Form TF007 has lapsed, the defect becomes fatally incurable and the tribunal has no discretion in the matter and must dismiss the petition. He referred to: Folaranmi Vs Abraham (2004) NWLR (881) 434; Ojugbele Vs Lamidi (1999) 10 NWLR (621) 167; and Ikweki Vs Ebele (2005) 21 NSCQR 450 @ 481 on the mandatory nature of the provisions of the Practice Direction where the word ‘shall’ is used.
On the importance of time in election petitions he referred to the case of: Emeka Vs Emodi (2004) 16 NWLR (900) 433. He submitted that paragraph 43 of the First Schedule to the Electoral Act does not enure to the benefit of the appellant. He urged the court to dismiss the appeal and uphold the decision of the Tribunal.
In the appellant’s reply brief, learned counsel for the appellant cited additional unreported decisions of this court in support of the contention that there is a conflict between paragraph 43 of the First Schedule to the Electoral Act and paragraph 3 (4) of the Practice Direction: Appeal No. CA/I/EPT/HA/24/2007: Otunba Asalolu Vs INEC & Ors. delivered on 917/08; and Appeal No. CA/I/EPT/HA/23/2007: Ogunnubi Moses Olufunso Vs INEC & Ors. delivered on 23/6/09. He urged the court to follow the Supreme Court decision in Okereke Vs Yar’Adua (supra) and hold that the conflict must be resolved in favour of the provisions of the First Schedule. He submitted that the decision of the Enugu Division of this court in Enwezor Vs INEC (supra), to the effect that the Practice Directions have equal effect as rules of court, relied on by the 3rd and 13th respondents, was reached per incuriam and is therefore not binding on the court. He submitted that the said decision is contrary to the decisions of the Supreme Court in: University of Lagos Vs Aigoro (supra), Abubakar Vs Yar’Adua (supra), and Okereke Vs Yar’Adua (supra). He observed that in Enwezor’s case (supra) the court declined to undertake a comparison of the provisions of paragraph 43 of the First Schedule and paragraph 3 (4) of the Practice Direction on the ground that it would be an academic exercise in the circumstances of that case. He contended that had the comparison been made, the court would no doubt have found that a conflict exists between the two provisions. He urged the court not to follow the decision in Enwezor’s case. He urged us to allow the appeal and apply the provisions of Section 15 of the Court of Appeal Act to grant the application dated 13/7/2007.
For the purposes of this appeal, a consideration of Section 151 of the Electoral Act 2006 (hereinafter referred to as the Act) and paragraph 50 of the First Schedule thereto (hereinafter referred to as the First Schedule) is a convenient place to begin.
They provide as follows:
Section 151 of the Act:
151. ‘The rule of procedure to be adopted for election petitions and appeals arising therefrom shall be those set out in the First Schedule to this Act.’
Paragraph 50 of the First Schedule:
50. ‘Subject to the provisions of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.’
In addition to the above provisions, by virtue of the powers vested in the President of the Court of Appeal under Section 285 (3) of the Constitution, Practice Directions have been issued to guide the proceedings before the various election tribunals both at first instance and at the appellate level. For the purpose of this appeal, the relevant provisions are contained in Section 43 of the Act and paragraph 3 (4) of the Election Tribunal and Court Practice Direction 2007 (hereinafter referred to as the Practice Direction). The issue in contention in this appeal is the status of the Practice Direction vis a vis the provisions of the Electoral Act and the First Schedule thereto and which provisions should prevail in the event of a conflict.
It is pertinent to observe that the Practice Direction is a complement to the Electoral Act 2006. Its purpose is to guide and regulate compliance with and observance of the provisions of the First Schedule to the Act and the Federal High Court Rules, where appropriate. See: Adams Vs Umar (2009) NWLR (1133) 41 @ 107 – 108 E -C. In the case of Yusuf Vs Obasanjo (2003) 9 – 10 SC 53 @ 70 lines 5 – 20, the Supreme Court stated thus:
‘Paragraph 50 [of the First Schedule} has placed restriction on the application of the Civil Procedure Rules of the Federal High Court. The Rules shall be applied with such modifications as may be necessary to render them applicable in the light of the provisions of the Act… From the provisions of paragraph 50, it is clear to me that if any of the provisions of the Civil Procedure Rules of the Federal High Court are inconsistent or in conflict with the Electoral Act, 2002, the inconsistency or conflict will be resolved in favour of the 2002 Act.’
The provisions of paragraph 50 of the First Schedule to the 2002 Act are in pari materia with the provisions of paragraph 50 of the First Schedule to the 2006 Act. See also: Bounwe Vs REC Delta State (2006) 1 NWLR (961) 286 @ 307 E – F; Obi-Odu Vs Duke (2006) 1 NWLR (961) 375 @ 413 A-D. In Yusuf Vs Obasanjo (supra) at page 69 lines 15 – 34 the Supreme Court considered the meaning of the words ‘subject to’ in paragraph 50 of the First Schedule to the 2002 Act. Reference was made to its earlier decision in: Alhaji Tukur Vs Government of Gongola State (1989) 9 SC 1; (1989) 4 NWLR, (117)517 to the effect that:
‘the expression – subject to subordinates the provisions of the subject section to the section referred to which is intended not to be .affected by the provisions of the latter.’
The Court went on to hold that from the provision of paragraph 50 of the First Schedule to the Act, the civil procedure rules of the Federal High Court could only be applied to the extent that the Electoral Act permits. A fortiori, the Practice Direction made pursuant to paragraph 50 of the First Schedule to the 2006 Act would also only apply to the extent that the Electoral Act 2006 permits.
It is not in dispute that the Practice Direction 2007 makes provision for the regulation of some aspects of election petition proceedings not provided for in the Electoral Act or the First Schedule thereto, such as the pre-hearing procedure. The pre-hearing sessions are designed to ensure that all preliminary and interlocutory matters are disposed of within a specified time so that once the matter is set down for hearing, the trial may proceed from day to day with despatch.
Paragraph 3 (1), (3) & (4) of the First Schedule provides:
3 (1) Within 7 days after the filing and service of the Petitioner’s Reply on the Respondent, or 7 days after the filing and service of the Respondent’s Reply, whichever is the case, the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.
(3) The Respondent may bring the application in accordance with subparagraph (1) above where the Petitioner fails to do so, or by motion on notice which shall be served on the Petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.
(4) Where the Petitioner and the Respondent fail to bring an application under this paragraph, the Tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.’
Paragraph 43 of the First Schedule however provides thus:
43. (1) ‘The Tribunal or Court shall have power, subject to the provisions of Section 141 of this Act and paragraph 14 of this Schedule 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 provision of this Schedule.
(2) An enlargement of time may be ordered although the application for the enlargement is not made until after the expiration of the time appointed or allowed.’
Section 148 of the Act, which provides for the accelerated hearing of election petitions and appeals arising therefrom emphasises the need for expeditious hearing. The provision of paragraph 43 of the First Schedule however clearly shows that subject to the provisions of Section 141 of the Act and paragraph 14 of the First Schedule, fair hearing must not be sacrificed on the altar of speed.
While it is correct, as submitted by learned counsel for the 3rd and 13th respondents that the prehearing procedure is a unique procedure specifically provided for only in the Practice Direction, the procedure does not exist in a vacuum. It is a step in the election petition proceedings. See: Mairo Vs Laushi (1993) 4 NWLR (288) 423 @ 431 – 432; Zangina V Comm. of Works, Borno State (2001) 9 NWLR (718) 460.
In the recent decision of the Supreme Court in Abubakar Vs Yar-Adua (2008) 4 NWLR (1078) 405 @ 515 E – G; (2008) 1 SC (Part II) 77 @ 127 lines 8 – 18, paragraph 5 of the First Schedule to the Electoral Act 2006 was held to be superior to the Practice Direction issued by the President of the Court of Appeal. The Court further held that anything contained in the Practice Direction which conflicts with paragraph 5 of the First Schedule must be discountenanced on the ground that the clear intendment of paragraph 5 of the First Schedule is that justice and fair hearing be given to parties in Election petitions.
I have considered the authority of Okereke Vs Yar’Adua (supra) relied upon by learned counsel for the 3rd and 13th respondents. In that case, the issue before the Supreme Court was whether the Court of Appeal sitting as the Presidential Election Tribunal had jurisdiction to entertain preliminary objections to the hearing of the petition and an application by the petitioner for an order to furnish further and better particulars where the parties had not complied with the provisions of paragraph 3 (1) and (4) of the Practice Direction. The Court held that having regard to paragraph 6 of the Practice Direction, which provides that all motions shall come up at the pre-hearing session except in extreme circumstances with leave of the Tribunal or Court, the Court of Appeal had no jurisdiction to entertain the applications where the parties had not complied with the mandatory provisions of paragraph 3 (1) and (4) of the Practice Direction. It was in this con that the Supreme Court reiterated the provision of paragraph 3 (4) to the effect that in the event of the parties’ failure to apply for the issuance of pre-hearing notice, the Tribunal or Court is under a duty to dismiss the petition as abandoned, and that no application for extension of time to take that step should be filed or entertained. In that case there was no pending application for extension of time to apply for the issuance of pre-hearing notice. Furthermore, the Court was not invited to consider the effect of the provisions of paragraph 43 of the First Schedule on paragraph 3 (4) of the Practice Direction. In Enwezor Vs. INEC (supra) at page 238 E-F, it is correct that the court stated generally that there is no conflict between the provisions of section 285(2) of the 1999 Constitution, paragraph 3(4) of the Practice Direction and paragraph 43(1) of the First Schedule. His Lordship Omage, JCA however specifically declined to engage in a comparison of the said provisions on the ground that in the con of that case it would amount to an academic exercise. In that case, neither of the parties applied for the issuance of pre-hearing notice within the time stipulated in paragraph 3(1) of the Practice Direction. There was no application for extension of time within which to comply therewith. In the circumstances, the case is not on all fours with the instance case.
I am inclined to agree with learned counsel for the Appellants that there is indeed a conflict between paragraph 43 of the First Schedule to the Electoral Act 2006 and paragraph 3 (4) of the Practice Direction.
On the authority of Abubakar Vs. Yar’Adua (supra), Okereke Vs. Yar’Adua (supra) at 135 D – E; Otunba A. Asalaolu Vs. INEC & Ors. in CA/I/EPT/HA/24/2007 (unreported), Olufunso Vs. INEC & Ors. In CA/I/EPT /HA/23/2007 (unreported) and G. A. Ogunlana Vs. INEC in CA/I/EPT /33/2007 (unreported) I am of the view and I hold that in the event of a conflict between the provisions of the First Schedule to the Electoral Act and the Practice Directions issued by the President of the Court of Appeal, the provisions of the First Schedule must prevail. In the circumstances, I hold that the lower Tribunal erred when it invoked and applied the provisions of paragraph 3 (4) of the Practice Direction in dismissing the appellant’s petition without hearing the application having regard to the provisions of paragraph 43 of the First Schedule to the Electoral Act.
The appellant has urged this Court to exercise its powers under Section 15 of the Court of Appeal Act to consider and grant the application for extension of time. All the processes necessary for the exercise of this power are contained in the record. The appellant’s/applicant’s motion on notice with supporting affidavit and accompanying written address dated 13/7/07 are at pages 107 – 113 of the record. A supplementary address dated 18/7/07 is at pages 114 – 119 of the record. The is 1st, 2nd, 4th – 12th respondents’ address in opposition is at page 121 – 126 of the record, while the address of the 3rd and 13th respondents, also in opposition, is at pages 127 – 134 of the record. The appellant/applicant filed a reply address at pages 135 – 140 of the record.
The reason for the applicant’s failure to apply for the issuance of Form TF007 is stated in paragraph 4 (a) – (d) of the affidavit in support. It is averred that Adekunle Sulaiman, of counsel suffered a terminal illness for which he was hospitalized for 21 days and this made him unable to attend to his cases until 5th July 2007. It was therefore argued that the error was that of counsel and that it should not be visited on the litigant. I have carefully read all the paragraphs of the affidavit in support and observe that no medical report is annexed thereto to substantiate the averment in paragraph 4 (a) thereof. As observed earlier in this judgment, the provisions of section 148 of the Electoral Act and paragraph 3 (1) and (4) of the Practice Direction underscore the fact that time is of the essence in election petition proceedings. Where an applicant seeks the exercise of the court’s discretion in his favour, especially in election petition proceedings, he must go the extra mile by placing credible materials before the court upon which the exercise of discretion could be based. In the case of Folaranmi Vs Abraham (supra) at 488 H – 489 B, this Court considered the provisions of Practice Direction No. 5 of 2003, which provided that an appellant shall file his brief within 5 days of being served with the record of proceedings alongside Section 139 of the Electoral Act, which made provision for extension of time. The Court held the view that having regard to the word ‘shall’ used in the provisions of the Practice Direction the discretion to grant extension of time must be based on exceptional circumstances. In that case, the applicant’s counsel averred that his inability to comply with the provisions of the Practice Direction was due to a whitlow on his right hand. The court held that it did not constitute compelling and exceptional circumstances to warrant the grant of the application.
In the instant case, I am of the view that an averment that counsel was hospitalised for 21 days without any document or medical report to support it amounts to a mere averment and no more. Since time is of the essence in election petition proceedings, such a flimsy excuse ought to be allowed to stultify the process.
For this reason, I find no merit in the application. I dismiss it accordingly.
In the circumstances, the appeal fails and it is hereby dismissed. The ruling of the lower tribunal delivered on 4th August 2007 in petition No. EPT/OG/HA/21/2007 dismissing the appellant’s petition is hereby affirmed.
Costs of N50,000.00 are awarded in favour of the 3rd and 13th Respondents.
STANLEY SHENKO ALAGOA. (J.C.A.) : I read before now the lead Judgment just delivered by my learned brother Kekere-Ekun, J.C.A. and I agree with the conclusion reached and the orders made. However, the aspect I will like to lend my voice to is this- As between the Practice Direction issued by the President of the Court of Appeal and the Electoral Act 2006 and the 1st Schedule thereto which is superior? In other words, in the event of a conflict between the two, which should prevail? To be more specific as between paragraph 43 of the First Schedule to the Electoral Act 2006 and paragraph 3(4) of the Practice Direction which are clearly in conflict, which one should prevail? The Electoral Act, 2006 is a creation of statute having been enacted by the National Assembly of the Federal Republic of Nigeria. It is in exercise of the powers conferred on the President of the Court of Appeal by inter alia the Electoral Act, 2006 that the Practice Direction is issued. The Practice Direction therefore is designed to facilitate compliance with the provisions of the Electoral Act and the First Schedule and not to rival or displace it. See ABUBAKAR V. YAR’ADUA (2008) 4 NWLR (PART 1078) PAGE 405 at 515. Any preference therefore and reliance on paragraph 3(4) of the Practice Direction instead of paragraph 43 of the 1st Schedule to the Electoral Act cannot be correct.
SIDI DAUDA SAGE. J.C.A.: I sincerely agree with the lead judgment just delivered by my learned brother, K. M. O. Kekere-Ekun, J.C.A.
I abide with consequential orders made in the lead judgment including Costs.
Appearances
A. A. YESUFA with F. O. AKERELEFor Appellant
AND
OLAYODE DELANO with Miss. E. S. ICHIEFETANO and Miss A. F. OGUNLESIFor Respondent
