PEOPLES DEMOCRATIC PARTY V. MR. EYO NSA EKPO & ORS.
(2011)LCN/4748(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of July, 2011
CA/C/NAEA/144/2011
RATIO
ELECTION PETITION: STATUTORY PROVISIONS GOVERNING THE TIME FRAMES IN ELECTION PETITION
There is no doubt that time is of the essence in the handling of election petitions. This probably informed the decision by the National Assembly in deleting Section 134 of the Electoral Act 2010 and amending Section 29 of the First Alteration Act and Section 285 of the Constitution of the Federal Republic of Nigeria 1999. The erstwhile Section 134 of the Electoral Act, 2010 which was deleted by Section 32 of Electoral (Amendment) Act No. 10 of 2010 stipulated as follows: “134 – (1) An election petition shall be filed within 21 days after the date of the declaration of results of the elections. 2. An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition. 3. An appeal from a decision of an election tribunal or court shall be heard and disposed of within 90 days from the date of the delivery of judgment of the tribunal. 4. The court in all appeals from election tribunals may adopt the practice of first giving its decision and reserving the reasons thereto for the decision to a later date.” By deleting this provision and amending Section 285 of the Constitution, whatever lingering doubts anybody had about the importance the National Assembly placed on the prompt disposal of election petitions, was removed, Even the period for the hearing and disposal of appeals was reduced. Section 9 of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act No .2 of 2010 substituted Sections 29 of the First Alteration Act and Section 285 of the Constitution and provides in Subsections (5) – (8) as follows: “(5) An election petition shall be filed within 21 days after the date of the declaration of result of the elections; (6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition; (7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 50 days from the date of the delivery of judgment of the tribunal or Court of Appeal. (8) The court in all final appeals from an election tribunal or court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date.” Since Section 134 of the Electoral Act has been deleted and a specific provision is made under Section 285 of the Constitution (as amended), the enlargement of time envisaged under paragraph 45 of the 1st schedule to the Electoral Act is no longer feasible. The effect of the failure to file the Respondent’s Reply within 14 days of service on him of the Petition as stipulated under paragraph 12(1) of the 1st Schedule to the Electoral Act is tantamount to a breach of Section 285 of the Constitution and cannot be waived or overlooked. PER KUMAI BAYANG AKAAH, J.C.A.
Justice
KUMAI BAYANGAKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKAILU Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
Justice
PEOPLES DEMOCRATIC PARTYAppellant(s)
AND
1. MR. EYO NSA EKPO
2. NKOYO ESU TOYO
3. THE RESIDENT ELECTORAL COMMISSIONER, CROSS RIVER STATE (MR, MIKE IGINI)
4. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)
KUMAI BAYANG AKAAH, J.C.A. (Delivering the Leading Judgment): At the election into the House of Representatives for Calabar Municipality and Odukpani Federal Constituency held on 9th day of April, 2011 the Petitioner (now 1st Respondent\ Eyo Nsa Ekpo stood election with Nkoyo Esu Toyo along with five other candidates, namely Grace Ekpoanwan, Nelson Eyamba Co-co Bassey, Eyo Janet Onofiok, Joseph Bassey Eno and Baron Nsa Eyo. While the Petitioner who was sponsored by the Action Congress of Nigeria scored 7,213 votes, the 1st Respondent (now the 2nd Respondent) to this appeal was sponsored by the 4th Respondent (PDP) and credited with 23,295 votes. He was subsequently declared the winner and returned as the duly elected candidate at the election. The Petitioner felt aggrieved and filed his petition on. 29th April, 2011. In he said petition No. EPT/CR/NA/3/2011, the 1st Respondent was the candidate who was declared winner by the Resident Electoral Commissioner of Cross River State, who was made 2nd Respondent. The Independent National Electoral Commission conducted the election and was joined as 3rd Respondent while the Peoples Democratic Party (PDP) was joined as 4th Respondent. The Petition was served on the 4th Respondent on 3rd May, 2011 who promptly entered appearance through Messrs Lexgiobal Partners on 6th May, 2011. The 4th Respondent had 14 days from 6th May, 2011 to file its Reply but was unable to file the Reply until the time expired on 21st May, 2011. On 8th June, 2011 an application was filed on behalf of the 4th Respondent asking for extension of time to file its Reply. The Tribunal in its Ruling delivered on 9th June, 2011 refused to extend time and allow the 4th Respondent to file its Reply. Aggrieved with this decision the 4th Respondent appealed in its Notice dated 29th June, 2011 containing two grounds of appeal from which the Appellant distilled the following issue for determination:
Whether from the circumstances of this case, the materials before the Tribunal and the need to do substantial Justice and uphold the principle of fair hearing as enshrined in the Constitution the Appellant’s right to fair hearing was not breached by the lower Tribunal’s dismissal of the application for extension of time to file its Reply.
The Petitioner (now 1st Respondent) also formulated the following lone issue for determination:
Whether having regards to the special nature of election petitions and timeliness constitutionally provided, the trial Tribunal was right when it dismissed the Appellant’s Motion for Extension of time dated 8th June, 2011.
The 4th Respondent to the Petition will hereafter referred to as the Appellant while the Petitioner will be the 1st Respondent in the petition will be referred to as the 2nd Respondent in the appeal.
In the Appellant’s brief and oral argument of Mrs. Andem Ewa, SAN, learned Senior Counsel emphasized that the refusal by the Tribunal to allow the Appellant’s application for extension of time to file its Reply to the Petition amounted to denial of the Appellant’s right to fair hearing, moreso since the application was not being opposed by any of the respondents and further that 5 days after the refusal of the Appellant’s application, the Members of the Tribunal granted an application which had the effect of adding to the Petition without affording the Appellant an opportunity of consequential response. She argued forcefully that having filed a motion for extension of time to file its Reply simultaneously with a Reply dated 8th day of June, 2011, even though the Appellant was out of time to file the Reply by 18 days the need to do substantial Justice should have been uppermost in the mind of the Tribunal in exercising its discretion to grant the extension.
In the brief filed on behalf of the 1st Respondent and in oral argument, Mr. Balfantyne, learned counsel argued that petitions are sui generis and consequently the latitude allowed the Tribunal in exercise of its discretion in favour of parties to a petition is greatly curtailed. He analyzed Section 285(6) of the Constitution of the Federal Republic of Nigeria 1999 as amended and submitted that time is of essence in election petitions. He contended that contrary to the contention of the Appellant, the Right of fair hearing of the Appellant was not breached in any manner whatsoever because on its own election, the Appellant failed to avail itself of the 14 days granted by the Electoral Act, 2010 to file the Respondent’s Reply.
The Ruling of the Tribunal dismissing the application for extension of time to file the Reply to the petition is contained at pages 202 – 203 of the Records. At page 203 the Tribunal stated:-
“The proceedings in election petitions are essentially governed by time which ought to be judiciously utilized by the parties and the court. The reason given for failure to file the reply within the prescribed time is that the 4th Respondent was too busy to pay timely attention to the matter before this Tribunal.
This court cannot be seen to be aiding the 4th Respondent in his non-challance towards the petition. And we do not have the time to waste on account of the indolence of any party.”
In the affidavit in support of the motion for extension of time to file the 4th Respondent’s Reply out of time, Mr. Francis Ugochukwu Okoli deposed to the following facts in paragraphs 3, 4, 5 and 6:-
“3. That upon receiving instructions from the 4th Respondent, the firm of Messrs Lexglobal partners entered appearance on the 6th day of May, 2011.
4. That still on the same date, we, counsel for the 4th Respondent filed a motion for inspection of documents in the custody of the 3rd Respondent.
5. That due to the heavy activities in the Secretariat of the 4th Respondent arising from the many petitions filed against it, we could not obtain the documents and facts with which the 4th Respondent could file his Reply.
6. That we have now obtained sufficient facts with which to file the 4th Respondent’s Reply.”
The reasons given for the delay in filing the 4th Respondent’s Reply do not sound quite convincing and as the Tribunal rightly pointed out in its Ruling, the proposed Reply to the Petition was not attached to enable the Tribunal have enough materials upon which to exercise its discretion in favour of granting the extension of time to file the Reply. lf one may ask where did the 1st Respondent (now 2nd respondent) get documents and facts with which he filed his Reply within time or in what way would the Reply by the Appellant differ from that of the 2nd Respondent whose election was sponsored by the Appellant?
There is no doubt that time is of the essence in the handling of election petitions. This probably informed the decision by the National Assembly in deleting Section 134 of the Electoral Act 2010 and amending Section 29 of the First Alteration Act and Section 285 of the Constitution of the Federal Republic of Nigeria 1999. The erstwhile Section 134 of the Electoral Act, 2010 which was deleted by Section 32 of Electoral (Amendment) Act No. 10 of 2010 stipulated as follows:
“134 – (1) An election petition shall be filed within 21 days after the date of the declaration of results of the elections.
2. An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.
3. An appeal from a decision of an election tribunal or court shall be heard and disposed of within 90 days from the date of the delivery of judgment of the tribunal.
4. The court in all appeals from election tribunals may adopt the practice of first giving its decision and reserving the reasons thereto for the decision to a later date.”
By deleting this provision and amending Section 285 of the Constitution, whatever lingering doubts anybody had about the importance the National Assembly placed on the prompt disposal of election petitions, was removed, Even the period for the hearing and disposal of appeals was reduced. Section 9 of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act No .2 of 2010 substituted Sections 29 of the First Alteration Act and Section 285 of the Constitution and provides in Subsections (5) – (8) as follows:
“(5) An election petition shall be filed within 21 days after the date of the declaration of result of the elections;
(6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition;
(7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 50 days from the date of the delivery of judgment of the tribunal or Court of Appeal.
(8) The court in all final appeals from an election tribunal or court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date.”
Since Section 134 of the Electoral Act has been deleted and a specific provision is made under Section 285 of the Constitution (as amended), the enlargement of time envisaged under paragraph 45 of the 1st schedule to the Electoral Act is no longer feasible. The effect of the failure to file the Respondent’s Reply within 14 days of service on him of the Petition as stipulated under paragraph 12(1) of the 1st Schedule to the Electoral Act is tantamount to a breach of Section 285 of the Constitution and cannot be waived or overlooked.
What is discernable from this appeal is the complaint by the appellant that five days after refusing the appellant’s application, leave was granted the 1st and 2nd Respondents to bring additional witnesses to add to a petition which contains allegation against the Appellant who had been denied the opportunity of defending same. The motion to call additional witnesses was filed by the 1st Respondent to the petition who was sponsored by the appellant. The motion was fired on 10/6/2011. The Petitioner opposed the application by deposing to a 8 paragraph counter-affidavit. Despite the opposition, the Tribunal ruled in favour of the 1st Respondent and allowed the Petitioner to call additional witnesses. The appellant cannot be heard to complain because the ruling was in favour of the appellant’s candidate who in any event could not make allegations against the appellant. The purpose why this appeal has been brought is to delay the hearing of the petition and since there is a constitutional provision that judgment of the tribunal must be delivered within 180 days of the filing of the petition, if the petition is not disposed of within the period, it will abate. The tribunal was right in its decision in dismissing the application. It is to be observed that the 2nd and 3rd Respondents in the Petition had also filed an application for extension of time to file their Reply to the petition.
The contention by the learned Senior Counsel that the provision giving the tribunal the discretion to extend time for the fifing of any process not filed within time is to do substantial Justice is well taken. However, it cannot be said that the appellant was denied fair hearing when the Tribunal refused to extend time to enable 4th Respondent file its Reply to the Petition out of time. The Appellant knew it had 14 days to file its Reply. It was out of time for 18 days. Meanwhile the time to determine the petition did not stand still. The cry to do Justice to the appellant must take into consideration the right of the Petitioner to have his petition determined within the stipulated time prescribed in the Constitution. See JOSIAH V. THE STATE (1985) 1 NWLR (Pt.1) 125 at 141.
I find that the appeal is completely devoid of merit and is hereby dismissed. The judgment of the Tribunal dismissing the application is hereby affirmed. Costs is assessed at N20,000.00 in favour of the 1st respondent against the appellant.
JA’AFARU MIKA’ILU, J.C.A: I have the opportunity of reading in draft the lead judgment of my learned brother Hon. Justice Akaahs, JCA. I agree with all the reasons given in it and the conclusion reached thereof. The appeal lacks merit and I dismiss it. The judgment of the Tribunal is hereby affirmed. I award the same amount as costs as in the lead judgment in favour of the 1st Respondent.
ISAIAH OLUFEMI AKEJU, J.C.A: I am in full agreement with the reasoning in the lead judgment of my learned brother, K.B. Akaahs, JCA in this appeal and the conclusion that the appeal is devoid of any merit whatsoever.
I too dismiss the appeal and affirm the decision of the lower tribunal with costs of N20,000.00 in favour of the 1st Respondent.
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Appearances
Mrs. Nella Andem-Ewa, SAN;
Chief O.N. Egodo;
A.E: Alli and
F.U. Okoli;For Appellant
AND
W. Ballantyne;
Ekpedeme Iyoho;For Respondent
PEOPLES DEMOCRATIC PARTY (PDP) V. INDEPENDENT NATIONAL
