SHITTU A. OLAWOLE V. I.N.E.C & ORS
(2010)LCN/4004(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 23rd day of November, 2010
CA/I/EPT/14/07
RATIO
PRE-HEARING SESSION: PURPOSE OF A PRE-HEARING SESSION
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 dispatch. PER MODUPE FASANMI, J.C.A
PRE-HEARING SESSION: WHETHER THE COURT OF APPEAL HAS JURISDICTION TO ENTERTAIN PRELIMINARY OBJECTIONS TO THE HEARING OF THE PETITION WHERE THE PARTIES HAD NOT COMPLIED WITH THE PROVISIONS OF PARAGRAPH 3(1) AND (A) OF THE PRACTICE DIRECTION AS REGARDS PPLICATION FORTHE ISSUANCE OF PRE-HEARING NOTICE
I have considered the authority of OKEREKE VS. ADUA (Supra) relied upon by learned Counsel for the 3rd and 20th 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 (a) 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 context 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. PER MODUPE FASANMI, J.C.A
CONFLICT OF LAWS: WHICH LAW MUST PREVAIL IN THE EVENT OF A CONFLICT BETWEEN THE PROVISIONS OF THE PARAGRAPH 43 OF THE FIRST SCHEDULE TO THE ELECTORAL ACT 2006 AND PARAGRAPH 3(4) OF THE PRACTICE DIRECTION
I am therefore inclined to agree with learned Counsel for the Appellant 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 authorities of 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, G. A. OGUNLANA VS. INEC IN CA/I/EPT/33/2007 unreported OKEREKE VS. YAR’ADUA (supra) at 135 paras. D-E and ABUBAKAR VS. YAR’ADUA (2008) 4 N.W.L.R. Part 1078 page 405 at 515 paras. E-G where the Supreme Court postulated that paragraph 5 of the First Schedule to the Electoral Act 2006 was 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 must be given to parties in election petitions. I am of the view and also 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 circumstance, 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. PER MODUPE FASANMI, J.C.A
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
SHITTU A. OLAWOLE Appellant(s)
AND
I.N.E.C & ORS Respondent(s)
MODUPE FASANMI, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of the Governorship and Legislative Houses Election Tribunal, sitting in Abeokuta, Ogun State delivered on the 14th of August, 2007 wherein the Hon. Tribunal dismissed the petition as having been abandoned pursuant to paragraph 3(4) of the Election Tribunal and Court Practice Directions 2007.
Briefly, Appellant was the candidate of the A.N.P.P under whose sponsorship he participated as a candidate in the election into the Ogun state House of Assembly seeking to represent the Odogbolu constituency at the said Assembly. Elections were conducted into the said House of Assembly on the 14th of April 2007 and the 3rd Respondent (Remmy M. Hazzan) being the candidate of the 20th Respondent (Peoples Democratic Party) was declared the winner by the 1st, 2nd, 4th – 19th Respondents (I.N.E.C.) Appellant being dissatisfied with the conduct of the Election and the declaration of the 3rd Respondent filed a petition dated 11/5/07 seeking to be returned as the winner of the Election or in the alternative seeking the nullification of the Election for reason of substantial non-compliance with the provisions of the Electoral Act. Proceedings were on-going in the matter, the Petitioner had applied for and was granted leave to inspect I.N.E.C polling documents (which process had commenced) and also applied for issuance of pre-hearing forms TF007 and TF008 which all parties involved had duly completed and filed in the Tribunal Registry. Upon realizing that the application for issuance of pre-hearing forms was initially made out of time, the Petitioner by an application filed on 13th July, 2007, sought for enlargement of time within which to apply for 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, The said application gave rise to a plethora of preliminary objections, counter affidavits and written addresses by the Respondents. The Honourable Tribunal in a considered ruling delivered on 4/8/07 discountenanced the Petitioners 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 29/8/07 wherein three grounds of appeal were raised, In the light of the grounds of appeal, Appellant formulated two issues for determination thus:
(i) Whether there is a conflict between the provisions of paragraph 3 subparagraph 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
(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 Tribunal and Court Practice Directions 2007 as the basis for dismissing the Appellant’s petition.
The 1st, 2nd and 4th – 19th Respondents in their joint brief of argument formulated a lone issue for determination as follows:
Whether in the circumstance the Election Petition Tribunal was right to have discountenanced the Applicant’s motion for extension of time within which to comply with paragraph 3(i) of the Practice Directions and to have dismissed the petition as abandoned pursuant to paragraph 3(a) of the said Practice Directions.
3rd & 20th Respondents formulated a lone issue for determination as follows:-
Whether or not the lower Tribunal can entertain an application for extension of time to apply for the issuance of the pre-hearing notice.
I have considered the issues raised by the parties and I am of the view that the lone issue formulated by the 1st, 2nd and 4th – 19th Respondents is all encompassing and i will adopt same for the determination of this appeal.
Learned counsel for the Appellant counsel submitted that Section 151 of the Electoral Act 2006 provides for the rules of procedure to be adopted for election petitions and appeals arising there from shall be those set out in the First Schedule to this Act i.e Electoral Act, 2006. Paragraph 43(1) of the First Schedule to the Electoral Act provides that:
“Tribunal or Court shall have power subject to the 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.”
Learned counsel for the Appellant contended that by the provisions of paragraph 3(a) of the Practice Directions 2007.
“… no application for extension of time to” comply with the provisions of paragraph 3(i) of the Practice Directions, “shall be filed or entertained,”
Learned counsel for the Appellant submitted that there is a clear conflict between the provisions of paragraph 43(1) of the First Schedule to the Electoral Act, 2006 and the provisions of paragraph 3(a) of the Practice Directions 2007 in respect of the validity of an application to enlarge time to file Form TF007. Submitting to substantiate his argument he contended that the lower Tribunal read into paragraph 43(1) of the First Schedule to the Electoral Act, 2006 what is not contained therein to achieve a desired end, The provision of paragraph 43(1) of First schedule is not made subject to any of the provisions of the Election Petition and court Practice Directions, 2007. He submitted that the provisions of the First Schedule to the Electoral Act are therefore the rules of procedure which the lower tribunal was bound to follow in proceedings in election petitions before it. Reliance was placed on the cases of BONI HARUNA VS. MODIBBO N.S.C.C 745 at pages 755-756; ABUBAKAR VS. YAR’ADUA (2008) 4 N.W.L.R. (PART 1078) page 465 at 515 paragraph F-G and OKEREKE VS. YAR’ADUA (2008) 8 M.J.S.C. page 182 at 218 paras A-B.
Learned counsel contended that since there is a conflict between the provisions of paragraph 43(1) of the First schedule (which are the rules of Practice before the lower Tribunal and the provisions of paragraph 3 (4) of the Practice Directions, 2007 the provisions of paragraph 43(1) of the First Schedule shall prevail. The lower Tribunal ought to have applied the provisions of paragraph 43(1) of the First schedule to consider and grant the Appellant’s application for extension of time to apply for the issuance of form TF007.
Learned Counsel however was of the view that this would have been the end of the matter but for the portion of the Supreme Court decision in OKEREKE VS. YAR’ADUA (Supra) at page 1999 (F-G) of the report’ to the effect that the provisions of paragraph 3(a) of the Practice Directions was mandatory, that the Court or Tribunal was under a duty to dismiss a petition as abandoned add that no application for extension of time to apply for form TF007 shall be filed or entertained. He submitted that the issue before the Supreme Court in OKEREKE VS. YAR’ADUA was whether or not, this court had jurisdiction to determine the preliminary objection of the 1st & 2nd Respondents at the stage of the proceedings that it did. The apex Court was called upon to interpret the application of paragraph 6(1) of the Practice Directions. He submitted that there is a distinction between the case of OKEREKE VS. YAR’ADUA and the appeal at hand. The appeal which went before the Supreme Court in OKEREKE VS. YAR’ADUA was a situation where the motion for extension of time was heard and determined by the Court of Appeal while the motion brought before’ the lower Tribunal in the petition leading to the present appeal was discountenanced. Learned Counsel urged this Court to confirm the decision of DR. MRS. ALLI & ANOR VS. SEN OSAKWE unreported decision of the Benin Division of this Honourable Court dated 28/5/2008 in appeal no, CA/B/EPT/261/08 in this appeal.
He concluded by saying that the courts have moved away from deciding cases on technicalities as against hearing cases on their merits. Learned Counsel for the Appellant urged the Court to allow the appeal.
In response to the Appellant’s Counsel submissions, learned Counsel for the 1st, 2nd and 4th – 19th Respondents submitted that there is absolutely no conflict between the provisions of the respective rules’ He contended that the Appellant’s Counsel submission that there is a conflict between the Rules and the Practice Directions relative to the abridgement or enlargement of time for a party to do an act is misconceived. The provisions of paragraph 3(4) of the Practice Directions are clear and do not admit of any ambiguity as to what the tribunal or Court shall do in the circumstances. The petition shall be dismissed as abandoned. He referred to the case of JIMOH OJUGBELE VS. MUSEMLIU O. LAMIDI AND OTHERS (1999) 10 N.W.L.R Part 621 page 167 at 177 where Okunola J.C.A had this to say:
“The Practice Directions of this Court as a rule of Court must be complied with and not circumvented and no favour should be shown for not obeying same. Thus the failure of the Appellant herein to file the Appellant’s brief within the five days stipulated in the Practice Directions vitiates this appeal.”
He reiterated that the Election Tribunal had a duty in the circumstances of this case to invoke and apply the provisions of paragraph 3(4) of the Election Tribunal and court Practice Direction 2007. It had no discretion in the matter. Consequently, the petition was rightly dismissed as an abandoned petition. Learned Counsel for the 1st, 2nd and 4th -19th Respondents urged this court to affirm the decision of the Ogun State Governorship and Legislative Houses Election Petition Tribunal and dismiss the appeal.
The 3rd and 20th Respondents in their response to the arguments of learned counsel for the Appellant submitted that compliance with paragraph 3 of the Practice Directions is a condition precedent to the presentation and maintenance of an election petition. He placed reliance on the case of BUHARI VS. I.N.E.C (2008) ALL F.W.L.R Part 437 Part 438 page 355 at 371 paras A-E. He submitted that under Section 6(1) of the Practice Directions, motions can only come outside the pre-hearing session with the leave of the Tribunal or Court if extreme circumstance is shown. The mere filing of a petition pursuant to paragraph 1 of the Practice Directions does not confer jurisdiction on the Tribunal over the petition or anything incidental to it. He contended that the power to extend time to grant by the tribunal in paragraph 43 of the schedule can only be exercised in respect of a petition over which the Tribunal has assumed jurisdiction. That is after due compliance with paragraph 3(1) of the Practice Directions. There is therefore no conflict between the two paragraphs i.e paragraphs 43(1) of the Schedule (which can only be invoked in a petition over which the Tribunal has validly assumed jurisdiction) and paragraph 3(4) of the Practice Directions (which operates after the mandatory steps required to assume jurisdiction have been denied it). The use of the word “shall” in the provisions of paragraph 3(4) of the Practice Direction is a word of mandate and it is binding. It excluded discretion and imposes obligation. Learned Counsel referred to the case of ACHINEKU VS. ISAGBA (1988) 4 N.W.L.R Part 89 page 411 at 420 paragraph B-C. Learned Counsel reiterated further that Appellant’s default in complying with paragraph 3(1) of the Practice Directions has denied the tribunal of the requisite jurisdiction to exercise in the matter. Election petition being “SUI GENERIS” are peculiar and as such are not open to the indulgence that civil cases enjoy. This being so, the provisions of the law must be adhered to in the strictest sense of it. Learned Counsel buttressed this submission with the decision of this Court in the case of EMEKA VS. EMORDI (2004) 16 N.W.L.R Part 900 page 433 at 450. Learned Counsel further submitted that the entire reasons supplied by the Appellant in the affidavit in support of the application before the lower Tribunal is incompetent. The application for extension of time was rightly considered and dismissed by the lower Tribunal on the merit. He finally urged the Court to hold that the application and the petition were rightly dismissed by the lower Tribunal and respectfully urged the Court to decline the Appellant’s prayer contained in paragraph 5.17 of the further amended Appellants brief in seeking for extension of time on an incompetent affidavit.
The relevant provisions for the determination of the lone issue in this appeal are paragraphs 3(a) of the Election Tribunal and Court Practice Directions 2007 and also paragraph 43(1) of the First Schedule to the Electoral Act, 2006. I will reproduce the two provisions for ease of reference wherein paragraph 3(1), (3) and (4) of the former state as follows:-
‘”3(1) Within 7 days after the filing and service of the Petitioner’s reply to 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 motion as in Form TF007
3(3)
The Respondent may bring the application in accordance with sub-paragraph (1) above where the Petitioner fails to do so or by motion returnable in 3 clear days, apply for an order to dismiss the petition.
3(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”
On the question of enlargement and abridgment of time, paragraph 43(1) of the First Schedule to the Electoral Act, 2006 states as follows:
“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.”
The circumstance that led to the Tribunal’s dismissal of the Appellant’s petition was that Appellant applied for the issuance of pre-hearing form TF007 and TF008 which all parties involved had duly completed and filed in the Tribunal’s registry. Upon realizing that the application for issuance of pre-hearing forms was initially made out of time, Appellant by an application filed on 13th July 2007 sought for 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. The said application gave rise to a plethora of preliminary objections counter affidavits and written addresses by the Respondents.
While learned Appellant’s Counsel submitted that paragraph 3(a) of the Election Tribunal and Court Practice Directions 2007 conflict and therefore call to bear, the Respondents submitted that the general import of the nature of paragraph 43 of the First Schedule to the Electoral Act 2006 is that paragraph 3(1)-(5) of the Practice Direction is specific and mandatory and therefore final.
By virtue of the powers vested in the President of the Court of Appeal under Section 285(3) of the 1999 Constitution of the Federal Republic of Nigeria, Practice Directions have been issued to guide the proceedings before the various Election Tribunals. 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. 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 dispatch.
Section 148 of the Electoral Act also provides for the accelerated hearing of election petitions and appeals arising therefrom emphasize 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.
Learned Counsel for the 3rd & 20th Respondents rightly submitted that the pre-hearing 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 N.W.L.R. Part 288 page 423 at 431-423 and ZARGINA VS. COMM. OF WORKS, BORNO STATE (2001) 9 N.W.L.R. Part 718 at 460.
I have considered the authority of OKEREKE VS. ADUA (Supra) relied upon by learned Counsel for the 3rd and 20th 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 (a) 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(a) of the Practice Direction.
I am therefore inclined to agree with learned Counsel for the Appellant 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 authorities of 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, G. A. OGUNLANA VS. INEC IN CA/I/EPT/33/2007 unreported OKEREKE VS. YAR’ADUA (supra) at 135 paras. D-E and ABUBAKAR VS. YAR’ADUA (2008) 4 N.W.L.R. Part 1078 page 405 at 515 paras. E-G where the Supreme Court postulated that paragraph 5 of the First Schedule to the Electoral Act 2006 was 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 must be given to parties in election petitions. I am of the view and also 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 circumstance, 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 motion on notice was filed on the 14th of July 2007 wherein same was supported by an affidavit of eight paragraphs to which exhibits A, B and C being the photocopies of the said application, the Forms TF007 and TF008 were all attached. These are at pages 70-79 of the record. The written address of the Appellant’s Counsel in support of the motion is at pages 80-82, additional written address in support of the application is at pages 87-91 The written address of the 1st, 2nd and 4th-19th Respondents is at pages 83-86. 3rd-20th Respondents written address is at pages 113-120. Issues were therefore adequately joined by the parties on the application.
The defects alluded to in the affidavit in support of the motion can be cured by virtue of para 84 of the Evidence Act since it has been sworn to before a person duly authorized, I will now consider the merit of the application. The reason for the applicant’s failure to apply for the issuance of form TF007 is stated in paragraph 4(a-b) of the affidavit in support of the motion at page 71 of the record. Learned Counsel for the Appellant averred that the delay in applying for the issuance of Form TF007 was due to omission on counsel’s part and pressure of work of filing briefs to the court of Appeal and Supreme Court. He was unable to file appropriate application for the issuance of pre-hearing notice form TF007 accompanied by a pre-hearing information sheet Form TF008 required by the Tribunal and Court Practice Direction within time. Learned Counsel argued that the error was that of Counsel and that it should not be visited on the litigant.
Where an applicant seeks the exercise of the court’s direction in his favour especially in election petition proceedings, he must show exceptional circumstances to enable the Court exercise its discretion in the applicant’s favour.
In the case of OJUGBELE VS. LAMIDI (1999) 10 NWLR Part 621 at 167 the court stressed the mandatory nature of the provisions of the Practice Direction where the word “shall” is used. In the case of 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, an averment by counsel that delay was due to pressure of work does not constitute exceptional circumstance to warrant the exercise of the court’s discretion in the applicant’s favour. Since time is of essence in election petition proceedings, such a flimsy excuse ought not to be allowed to stultify the process. For this reason, I find no merit in the application. The application is accordingly dismissed.
In the circumstance, the appeal fails and it is hereby dismissed. The ruling of the lower Tribunal delivered on the 14th of August, 2007 in petition no. EPT/OG/HA/20/2007 dismissing the Appellant’s petition is hereby affirmed.
Cost of N30,000,00 is awarded in favour of the 3rd & 20th Respondents.
STANLEY SHENKO ALAGOA, J.C.A: I read before now the Judgment just delivered by my learned brother Fasanmi (JCA) and I am of the view that the appeal lacks merit and should be dismissed. I accordingly dismiss same. I abide by the order contained in the said judgment including the order on costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the benefit of reading in draft the judgment of my learned brother, FASANMI, JCA just delivered. I agree entirely with the reasoning and conclusion that the appeal lacks merit and should be dismissed.
In a recent decision of this court on similar facts I held as follows:
“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 and paragraph 3(4) of the Practice Directions.
I am of the view and I do 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 Electoral Act 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 Directions in dismissing the appellant petition without hearing the application having regard to the provision of paragraph 43 of the First Schedule to the Electoral Act.”
See: Olawoyin vs INEC (2010) 36 W.R.N. 71 at 88 lines 5-10 and 15-25.
In light of the above, the lower Tribunal ought to have heard the application for extension of time on its merits, In the instant case however, exercising our power under section 15 of the court of Appeal Act, a careful perusal of the affidavit in support of the application for extension of time reveals that no cogent reason was given for failure to apply for the issuance of Form TF007 within the time prescribed by the Practice Directions.
In accepting briefs in respect of election petitions, counsel should be wary of biting more than they can chew, as the excuse of pressure of work will not avail them in the event of failure to comply with the time constraints provided by the rules.
For these and the more detailed reasons contained in the lead judgment, I also dismiss the appeal for lacking merit. I also affirm the decision of the lower Tribunal and abide by the order on costs.
Appearances
O. A. Abiose Esquire;
O. Olafuyi Esquire and
A.A. Ojo Esquire)For Appellant
AND
Appellant, 3rd & 20th Respondents not representedFor Respondent
