Aregbesola’s Latest Application To Dismiss Omisore’s Petition: Technicality Or Sound Principle Of Law?
 By Ibrahim Lawal

It is no longer news that Otunba Iyiola Omisore headed for the Election Petition Tribunal in Osogbo to challenge the victory of Ogbeni RaufAdesoji Aregbesola at the just concluded Gubernatorial Election held on the 9th day of August, 2014 in the State of Osun. It is also very interesting that efforts of the PDP before, during and after the filling ofthe  petition at the Tribunal Registry, have been of high level drama of absurdity.

There have been ridiculous allegations by the Peoples Democratic Party (PDP) of All Progressives Congress (APC’s) deliberate effort at frustrating their quest to get justice at the tribunal. There have been ridiculous claims by the PDP and their hirelings to give impression that they were rigged out in the just concluded election despite the shenanigans and raw show of force displayed by the “Almighty Federal Government” by unleashing the most wicked terror on innocent citizens of our dear state for belonging to a party other than PDP through which they have been inflicting untold  hardship on hapless Nigerians since 1999.

They went to the extent of shouting at the rooftops about a purported evasion of service of their petition by Aregbesola as if there was no provision for substituted service in law. They gave the impression to the general public that they were a serious party and in a hurry to diligently pursue a petition that would see their emergence as the next government in our dear state. The desperation of the Omisore’s PDP is so much that they result to outright falsehood by concocting fake figures showing that they are well ahead of the legitimate winner of the election. Some of their members even boast on the social media that come 27thNovember, 2014, Iyiola Omisore is going to be sworn in as governor.  It was so bad that the chair of the tribunal had to clear the air on the fabricated figures and warn of dire consequences for a repeat of such shameful act.

With the speed at which Omisore’s PDP had gone about conducting their case on the pages of newspapers and social media, one would have thought that they would be diligent enough to pursue the petition with vigour at the tribunal. Despite the arrays of Senior Advocates of Nigeria paraded by the petitioners, a major damage has been done to the petition which has rendered it null and void. The only good  thingthat can be done to such incurably bad petition is for the tribunal to give it a decent burial by dismissing it in its entirety.

The Electoral Act 2010 (as amended) is the law guiding election-relatedmatters including election petitions. The First Schedule to the Electoral Act provides a guide for filing of and procedure to be followed in electionpetition. By virtue of Paragraph 16 (1) of the First Schedule to the Electoral Act 2010 as amended,  the Petitioners (Omisore and PDP) have 5 days within which to file any Reply to the Replies of the Petitioners. The Reply of Ogbeni Rauf Aregbesola was served on the Petitioners on the 9th day of october, 2014 but the Petitioners purportedly filed a reply with respect thereto on 14 October, 2014 and served same on Aregbesola on 15 October, 2014.

In essence Omisore and PDP ought to have filed their reply to Aregbesola’s defence on the 13 October, 2014 and not 14 October, as he purportedly did. This conclusion found solace in the decision of the Court of Appeal in Aroh v. Odedo (2011) LPELR- 9202 (CA) at pages 15-16 paragraphs E-E.

This mistake of the Petitioners by their refusal to file the reply to the Respondent’s reply within time has rendered the purported reply filed on the 14 October 2014 null and void.  The legal effect is that the pleadings in this petitions are deemed closed on the date of service of the Respondents’ Replies on the Petitioners. For all intent and purposes, the active date when the pleadings closed in this petition is therefore on the 9th of October, 2014.  The Petitioners’  obligation  to apply for the issuance of Pre-hearing Notice in Form TF007 lapsed on that day by the provision of Paragraph 18 (1) of the First Schedule to the Electoral Act, 2010.

By the record of the Tribunal and the Certified True Copy of acknowledgement of service of all process in possession of the Respondents it is clear beyond any iota of doubt that the seven days the Petitioners are expected to apply for the issuance of Form TF007 started on 10/10/2014 when all the Respondents served their respective Replies on the Petitioners. The time to do so ended on 16/10/2014. Consequently, the seven7days’ limit to apply for the issuance of Form TF007 has expired and same cannot be extended.

The implication of the failure to apply for the issuance of the Pre-hearing Session Notice as in Form TF007 therefore renders the Petition abandoned.  This position of the law was established in Okereke v.Yar’adua (2008) 12 NWLR (Pt. 1100) 95 where the Supreme Court, interpreting paragraph 3(1) of the Practice Direction 2007 (which provision is in pari materia with paragraph 18 (1) of the First Schedule to the Electoral Act 2010) held that Petitioner’s failure to comply with such provision relating to issuance of Pre-hearing session is fatal and the Tribunal is empowered to treat the Petition as abandoned. The court further held that a party who has failed to issue a Pre-hearing form would bear the consequence of dismissal of the petition.

I have read on various media, the PDP’s claim that the application sought to be heard by Aregbesola and APC is mere technicality aimed at delaying the hearing  of the petition.  This claim is nothing but an idle talk, as the Supreme Court in Okereke v. Yar Adua emphasised the fundamental nature of the pre-hearing session and the need for its strict compliance. The court summarise the law thus:

“Pre-trial sessions in the present dispensation are a condition precedent before a tribunal or court can proceed to entertain any election petition or matters relating thereto. The position of the law is trite that no matter how well conducted, where a court lacks the competence and jurisdiction to entertain a matter, the proceedings conducted thereon are a nullity.”

To add salt to the injury already suffered by Omisore and the PDP through their lackadaisical attitude, the Court of Appeal in ACN V. NOMIYE (2011) LPELR-3590 (CA) Page 34 paras D-F, having considered the full import of Paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended) held as follows:

“The application for issuance of Pre-hearing notice (in whatever form) must be made within seven days after the filing and service of the Petitioner’s reply on the respondent or seven days after the filing and service of the Respondent’s reply as the case may be. Failure to comply within the time frame is fatal to the petition. Time cannot be extended and the Tribunal has no option but to dismiss the petition.

If with all the noise, the arrays of lawyers and all the lies employed by the PDP they still fail to adhere strictly to time stipulated for filing processes in their own petition, it will be too late in the day to bring in “substantial justice” mantra to save a petition that is dead on arrival. If the tribunal accedes to Omisore’s request for the application to be heard with the main petition, it is just a postponement of the doomsdayas the petition has suffered a self-inflicted fatal blow and no amount judicial surgery can save it from this terminal disease.

Ibrahim Lawal is Senior Special Assistant on Legal and Judicial Sector Reform to the Governor, State of Osun.

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