HON. SAVIOUR OKON NYONG v. HON. JOSEPH EFFIONG ETENE & ORS
(2011)LCN/4766(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of August, 2011
CA/C/NAEA/160/2011
RATIO
BRIEF OF ARGUMENT: WHETHER THE FAILURE OF THE RESPONDENT TO FILE HIS BRIEF OF ARGUMENT WILL TRANSLATE TO AUTOMATIC SUCCESS OF THE APPEAL THE MERIT OF WHICH DEPENDS ENTIRELY ON THE STRENGTH OR FORCE OF THE SUBMISSION OF THE APPELLANT IN HIS BRIEF OF ARGUMENT
That is noted in this appeal that the 2nd and 3rd Respondents failed to file briefs of argument the implication of which is that they have accepted the correctness of the issue in the briefs filed and they do not challenge the arguments therein’ This failure to file brief however does not translate to automatic success of the appeal the merit of which depends entirely on the strength or force of the submission of the Appellant in his brief of argument based on the issue formulated therein as derived from the grounds of appeal. The failure of the 2nd and 3rd respondents to file their briefs does not fortify the submission of the appellant and the court will still consider the justice of the appeal. See Akpan vs. State (1992) 6 NWLR (pt.249) 439; Echere vs. Ezirike (2006) All FWLR (pt. 323) 1597. PER ISAIAH OLUFEMI AKEJU, J.C.A.
INTERFERENCE WITH THE LOWER COURT’S DISCRETION: CIRCUMSTANCES WHERE THE THE APPELLATE COURT WILL INTERFERE WITH THE LOWER COURT’S DISCRETIONARY EXERCISED
where it is found that the Tribunal has exercised its discretion properly and lawfully in a given situation, the Appellate court will not interfere with the exercise of the discretion even if the court was of the opinion that it would have exercised the discretion differently. The appellate court will only interfere where the lower court exercised its discretion on a wrong principle or mistake of law or under a misapprehension of facts or did not act in good faith but acted arbitrarily. see chief John oyegun vs. chief Arthur Nzeribe (2010) 16 NWLR (Pt. 1220) 568; Oyekanmi vs. NEPA (2005) 15 NWLR (pt. 690) 414; University of Lagos vs. Olaniyan (1985) 1 NWLR (pt. 1) 156; Oyeyemi vs. Irewore Lagos Government (1993) 1 NWLR (pt. 270) 462. PER ISAIAH OLUFEMI AKEJU, J.C.A.
ENLARGEMENT OF TIME: CIRCUMSTANCE WHERE A PARTY WHO HAS FAILED TO OBEY THE RULES OF COURT WITHIN THE ALLOWED TIME WILL BE GRANTED ENLARGEMENT OF TIME TO COMPLY WITH THE RULES
A party in an action who has failed to obey the rules of court can only secure an enlargement of time to comply where he shows cogent and convincing reasons in the supporting affidavit to justify the exercise of court’s discretion in his favour, otherwise he cannot be granted such an indulgence. See Chief Oyegun vs. chief Nzeribe (supra); chief Ikenna vs. chief Bosah (1997) 3 SCNJ 135; F.H.A. vs. Abosede (1998) 1 SCNJ 133; chief victor Ukwu vs. Chief Mark Bunge (1997) 7 SCNJ 262. PER ISAIAH OLUFEMI AKEJU, J.C.A.
AFFIDAVIT EVIDENCE: WHETHER WHERE THERE IS CONFLICT IN THE AFFIDAVIT EVIDENCE IN A MATTER ,THE COURT HAS A DUTY TO RESOLVE THE CONFLICT BY TAKING ORAL EVIDENCE
The learned counsel for the Appellant correctly submitted that where conflict arises from affidavit evidence in a matter, the court has a duty to resolve the conflicts by taking oral evidence. see Falobi vs. Falobi (1976) NSCC 576; Olu-Ibukun vs. Olu-Ibukun (1974) NSCC 91. Atanda vs. Olarewaju (1988) 10-11 SC 1. PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
HON. SAVIOUR OKON NYONG Appellant(s)
AND
1. HON. JOSEPH EFFIONG ETENE
2. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE RESIDENT ELECTORAL COMMISSION, CROSS RIVER STATE Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the National And State Assembly Election Petition Tribunal sitting at Calabar, Cross River State contained in the Ruling delivered on 5th July, 2011.
The appellant, the 1st respondent and other candidates contested the election conducted by 3rd respondent on 26th April, 2011 for the Bakasi State Constituency of Cross River State House of Assembly. While the appellant contested under the banner of the Peoples Democratic part, the 1st respondent was the candidate of Action Congress of Nigeria. The result of the election as declared by the 2nd and 3rd respondents was that the appellant was victorious, and the 1st respondent who felt aggrieved by the result so declared filed a Petition No. EPT/CR/SA/3/2011 at the National And State House of Assembly Election Tribunal Holden at Calabar (hereinafter called the Tribunal) on 16th May, 2011 which petition was indisputably received by the appellant on 20th May, 2011. The appellant fired Memorandum of Appearance on 27th May, 2011 but failed to file a Reply to the petition within the period statutorily allowed for the filing and which prompted the application to the Tribunal for enlargement of time to file the Reply.
After hearing the parties (through their learned counsel) on 29th, June, 20tI, the Tribunal in its ruling delivered on 5th July, 2011 refused the order sought and dismissed the application. Being dissatisfied therewith, the appellant filed Notice And Grounds of Appeal on 9th July, 2011 with two grounds of appeal.
In prosecution of the appeal, the Appellant’s Brief settled by Essien H. Andrew Esq. as appellant’s counsel was filed on 20th July, 2011. The sole issue formulated therein goes thus:
“Whether in the circumstances of this case the” lower tribunal exercised its discretion properly and according, to law in refusing the Appellant’s application for enlargement of time to file his defence to the petition”
That issue was adopted by the 1st respondent in the 1st respondent’s Brief presented by Joe Agi Esq. senior Advocate of Nigeria and filed on 27th July, 2011.
That is noted in this appeal that the 2nd and 3rd Respondents failed to file briefs of argument the implication of which is that they have accepted the correctness of the issue in the briefs filed and they do not challenge the arguments therein’ This failure to file brief however does not translate to automatic success of the appeal the merit of which depends entirely on the strength or force of the submission of the Appellant in his brief of argument based on the issue formulated therein as derived from the grounds of appeal.
The failure of the 2nd and 3rd respondents to file their briefs does not fortify the submission of the appellant and the court will still consider the justice of the appeal. See Akpan vs. State (1992) 6 NWLR (pt.249) 439; Echere vs. Ezirike (2006) All FWLR (pt. 323) 1597.
This appeal will therefore be determined on the sole issue formulated by the appellant and adopted by the 1st respondent.
At the hearing of the appear on 3rd August, 2011, the appellant’s learned counsel, Essien H. Andrew Esq. adopted the Appellant’s Brief and relied on the submissions therein. He urged that the appear be allowed. For the 1st respondent, Joe Agi Esq. senior Advocate of Nigeria adopted the 1st respondent’s Brief and placed reliance thereon to urge that the appeal be dismissed for lacking in merit.
In his argument on the issue in his Brief, the learned counsel appellant for the argued that by Paragraph 12(1) of the First schedule to the Electoral Act 2010 a respondent to an election petition has 14 days to fire a Reply to the petition while paragraph 45 (2) vests the Tribunal with power to enlarge this period which power calls for judicious exercise of its discretion, citing Ugwu vs. Emenogba (2009) All FWLR (pt. 499) 496.
The learned counsel argued that the rower tribunal in the instant case acted on an enurely wrong principle when it refused to take oral evidence to resolve conflict in the affidavit evidence of the parties before it to ascertain the illness and/or hospitalization of the appellant during the period he was expected to fire the reply. He cited Kabiru vs. Ibrahim (2005) All FWLR (pt. 240) 94; PDP vs. Abubakar (No. 2) (2007) All FWLR (pt. 386) 711. He submitted that the resolution of the conflict in the affidavit evidence by the Tribunal was lopsided, arbitrary and was not a judicious and lawful exercise of its discretion in the matter.
The appellant’s learned counsel submitted that by its decision, the Tribunal had sacrificed fair hearing at the alter of haste which was also not judicious’ He submitted that the implication of paragraph 10 (2) of the First schedule of the Electoral Act, 2010 is that bringing a Reply out of time but within 21 days after service of petition is not an unreasonable delay to justify the respondent being shut out from defending the petition. He cited okonji vs. Njokanma (1989) 5 SCNJ 68; Olafemi vs. Ayo (2009) All FWLR (Pt. 452) 1111. He argued that the appellant was out of time for 7 days to file his Reply and his inability to file within time as explained by him was due to ill health which merited the sympathetic consideration by the Tribunal. The learned counsel urged us to allow the appeal and to set aside the decision of the lower tribunal.
Joe Agi Esq. Senior Advocate of Nigeria and learned counsel for the 1st respondent argued that the appellant was totally dishonest to the Tribunal which accordingly rejected his application for enlargement of time. He submitted that the grant of an application for extension of time is purely discretionary as held in Olumegbon vs. Kareem (2002) 5 SC (Pt. 1) 101.
The learned SAN argued that this appeal is against the exercise of the discretion by the Tribunal and submitted that this court will be wary to interfere with the exercise of discretion by the lower court, citing Ikenta Best (Nig) Ltd. vs. Attorney General River State (2008) 6 NWLR (Pt. 1084) 7; Anyah vs. A. N. N. Ltd. (1992) 6 NWLR (Pt. 247) 319.
On the resolution of conflict in affidavit evidence by calling oral evidence, the senior Counsel submitted that where documents exist to confirm some facts, it becomes unnecessary to call oral evidence to resolve conflict, citing Ugbane vs. Hussain (2009) 5 NWLR (Pt. 1135) 530.
The learned SAN argued that Section 285 of the 1999 Constitution. (as amended) has limited time for hearing and disposal of petitions and the luxury of extension of time for an indolent party will not do justice but will create injustice, citing Fayemi vs. oni (2009) All FWLR (pt. 472) 1122; Ratium vs. cumara samy (1964)3 All E. R. 933, and urged this court to refrain from interfering with the exercise of discretion by the Tribunal but instead hold that this appeal is devoid of any merit and dismiss it. A respondent on who an election petition has been served and who intends to file a Reply thereto is expected to do so within the provisions of paragraph 12 (1) of the First Schedule to the Electoral Act 2010 (as amended) as follows:
“(1) The Respondent shall, within 14 days of service of the petition on him file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies in opposition to the election petition.”
The appellant failed to utilize the period of 14 days granted to him by the above provision hence the recourse or resort to a motion for extension of time to file his reply to the election petition, and by that application for enlargement of time, the appellant called upon the Tribunal to exercise its discretion which is to be exercised judicially and judiciously by considering the materials presented by the parties through their evidence usually by way of affidavit.
where it is found that the Tribunal has exercised its discretion properly and lawfully in a given situation, the Appellate court will not interfere with the exercise of the discretion even if the court was of the opinion that it would have exercised the discretion differently. The appellate court will only interfere where the lower court exercised its discretion on a wrong principle or mistake of law or under a misapprehension of facts or did not act in good faith but acted arbitrarily. see chief John oyegun vs. chief Arthur Nzeribe (2010) 16 NWLR (Pt. 1220) 568; Oyekanmi vs. NEPA (2005) 15 NWLR (pt. 690) 414; University of Lagos vs. Olaniyan (1985) 1 NWLR (pt. 1) 156; Oyeyemi vs. Irewore Lagos Government (1993) 1 NWLR (pt. 270) 462.
Now to the merit of the instant appeal.
The application of the Appellant for enlargement of time was . a motion on notice fired on 10th June, 2011 and predicated upon paragraph 45 of First schedule to the Electoral Amendment Act 2010, the material parts of which state as follows:
“(1) The Tribunal or Court shall have power subject to paragraph 16 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 may be ordered application for the enlargement is not made until after the expiration of the time appointed or allowed.
(4) Every application for enlargement or abridgement of time shall be supported by affidavit.”
The provision of section 38 of Electoral Amendment Act, 2010 shows that the power of the Tribunal to extend time under paragraph 45 of First schedule is not absolute; it is subject to paragraph 16 thereof which expressly prevents or forbids the grant of extension of time to the petitioner to file a petitioners reply and allows any order of enlargement of time only as the justice of the case may require’ It therefore becomes a task for a respondent to have time extended for him where the petitioner who originated the action cannot have time extended for him to take steps.
However, by section 32 0f the Electoral (Amendment Act), 2010, section 134 of Electoral Act 2010 was deleted but subsequently incorporated into the of Nigeria, 1999 through section 9 of constitution of the Federal Republic of Nigeria (second Amendment Act) which substituted a new section for section 285 of the constitution by adding the following:
“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 filing of the petition;
7. An appeal from a decision of an election Tribunal to the court of appeal in an Election matter shall be heard and Disposed of within 60 days from the Date of delivery of judgment of the tribunal or court of appeal.”
The constitution of the Federal Republic of Nigeria, 1999 (as amended) is the supreme law of Nigeria. The constitution is the fountain from which all other laws and enactments must draw their validity and to which they must succumb. No Act or Law can be inconsistent with the provision of the constitution and remain valid as such Act or Law or such part thereof will be void to the full extent of that inconsistency, see A.G. Abia state vs. A.G. Federation (2007) 1 CCLR 104; A.G. Lagos state vs. A.G of the Federation (2003) 12 NWLR (pt. 833) 1; INEC & Anor. vs. Musa & ors. (2003) 8 All NLR 322.The removal of the above provision from the Electoral Act and insertion of same into the constitution, in my view is to place emphasis on the period of filing of’ and adjudicating on an election petition matter not only by the Tribunal but by the appellate courts also. The failure of a Tribunal or court to conclude an election petition matter within the stipulated time now amounts to a breach of the Constitution which cannot be done with impunity.
In support of his motion, and in line with sub-paragraph 4 of paragraph 45, the appellant fired affidavit of 13 paragraphs the gist of which is in paragraphs 5, 6 and 7 thereof as follows:
“5. I have been in very poor health for some months now. In fact throughout my electioneering campaign I was often in and out of hospital, but on Saturday, 28th May 2011 to Saturday 4th may, 2011 I fell seriously ill and had to be hospitalized for about 8 days. My medical report from the hospital to that effect is here marked Exhibit A.
6. Due to my hospitalization from Saturday 28th May, 2011 I could not Provide my counsel with the facts, the documents and the witness he needed to prepare my defence to the Petition and as such my counsel could not file my Reply to the Petition within time.
7. I could not delegate the responsibility of briefing my counsel on my defence to any other person because I am the most important witness in my own defence and my state of health was such that I could not go to the Tribunal Registry to depose to a written statement on oath in my defence.”
Exhibit A attached to the appellant’s affidavit is a document titled “RE: HON. SAVIOUR NYONG MEDICAL REPORT”. It was signed by one Dr. Ekpe E. Agbai Cottage Hospital, Akpet Central, Biase L.G.A of Cross River State on 5th June, 2011.
From the foregoing it can be gleaned that the reason given by the appellant for not complying with the provision of paragraph 12 (1) of the First Schedule to the Electoral Act 2010 (as amended) was that he was hospitalized and could not leave the hospital bed from Saturday 28th May, 2011 to “Saturday 4th May, 2011 as a result of which he could not go to the Registry of the Tribunal to depose to written statement on oath.”
The 1st respondent did not leave matters lying low and did not accept the above reason given by the appellant. He deposed to a Counter Affidavit of 12 paragraphs on 20rh June, 2011 which he fired on the same date (pages 87-111 0f the record of appear inclusive of the attached exhibits). paragraph s 4, 5,7, 8, 9, 10 and 11 thereof are quite gemaine and revealing. They are as follows:
“4. That I know that the 1st respondent was hale and hearty, he has not been ill at anytime between 25th May, 2011 to 4th June, 2011 as claimed by him.
5. That I went to Cottage Hospital Akpte Central in Baise to ascertain the veracity of the claim since I see him almost daily in Calabar and Bakassi.
6. That I attach herewith a photocopy of the male/pediatric ward report for the hospital between 26th May 2011 to 6th June, 2011 and the name of the 1st respondent or his ailment is not incidented any where therein. I managed to obtain same even though it is a secret document of people’s medical record. Annexed hereto as Exhibit JA1
7. that I know Dr. Egbai who purportedly signed the medical report as a medical doctor in charge of Ogoja General Hospital not the Cottage Hospital at Akpet central.
8. That the name of the Doctor in charge of the cottage Hospital is Dr. Amah whose wife is a lawyer in calabar.
9. That I also found out that there is no amenity ward in this cottage Hospital as claimed by the 1st Respondent to my petition.
10. That the 1st respondent attended retreat for new House of Assembly member elect for cross River State on the 31st May, 2011 to 3rd June, 2011 held at TINAPA LAKESIDE HOTEL and I have the video clips and photographs of the 1st Respondent attending the retreat and so could not have been on any Hospital admission. Annexed hereto as EXHIBIT JA2 and JA3 are photographs
of the 1st Respondent in a -group photograph of members elect on the 3rd June, 2011 and the 1st Respondent sitting in the chambers of the House of Assembly with Honorable Uduak Akiba representing Calabar Municipality at the Mock Section. Also annexed as Exhibit JA4 is a copy of the back of the video CD indicating the period of the retreat.
11. That the 1st Respondent is bent on frustrating my petition which is regulated by time frame.”
The above facts prompted the appellant to file a Further Affidavit on 23rd June, 2011 wherein he corrected the misnomer as to the date of “4th May 2011” mentioned in his affidavit, that he meant 4th June, 2011, He did not deny attending the induction activities for new legislators. He merely did a volte face that his doctor allowed him to attend the retreat “towards the end of my eight days hospitalization”.
A party in an action who has failed to obey the rules of court can only secure an enlargement of time to comply where he shows cogent and convincing reasons in the supporting affidavit to justify the exercise of court’s discretion in his favour, otherwise he cannot be granted such an indulgence. See Chief Oyegun vs. chief Nzeribe (supra); chief Ikenna vs. chief Bosah (1997) 3 SCNJ 135; F.H.A. vs. Abosede (1998) 1 SCNJ 133; chief victor Ukwu vs. Chief Mark Bunge (1997) 7 SCNJ 262
The learned counsel for the Appellant correctly submitted that where conflict arises from affidavit evidence in a matter, the court has a duty to resolve the conflicts by taking oral evidence. see Falobi vs. Falobi (1976) NSCC 576; Olu-Ibukun vs. Olu-Ibukun (1974) NSCC 91. Atanda vs. Olarewaju (1988) 10-11 SC 1.
In the instant case however, rather than conflict existing between the affidavit evidence of the parties, what is on ground is mere inconsistency by the appellant and contradiction in his own affidavit evidence, The appellant did not disclose that he attended any retreat until his affidavit in support of his motion was deflated’ The 1st respondent’s documents as exhibits to his counter Affidavit are revealing enough as photographs and video CD cannot tell lies. The Tribunal could not be expected to line up witnesses to hear oral evidence on the inconsistent facts in the appellant’s Affidavit and Further Affidavit. Election petition proceeding is sui generis and by the provisions of section 285 of the constitution of the Federal Republic of Nigeria, 1999 (as amended), time has now become of its essence more than ever before. A Tribunal can ill afford the luxury of granting extension of time upon frivolous excuses or excuses that are not will founded or grounded. A party who has decided to adopt a lackadaisical or lethargic attitude in election petition proceedings under the current dispensation must have no one else but only himself to blame for the consequences. All parties to a dispute as well as the court (or Tribunal) are entitled to justice, it is not for the appellant alone. The 1st respondent is entitled to have his petition disposed of within the 180 days prescribed by the Constitution which the Tribunal must comply with.
The Tribunal gave the parties full hearing on the application and found that the reason adduced by the 1st respondent was not cogent enough to warrant the exercise of its discretion in favour of granting the application as a result of which it dismissed same.
I do not find any cause to interfere with the discretion exercised by the Tribunal. I rather find and hold that this appeal is lacking in substance and merit in consequence of which the lone issue therein is resolved against the appellant and the appeal is dismissed accordingly with costs of N20,000.00 against the appellant and in favour of the 1st respondent only.
JA’AFARU MIKA’ILU, J.C.A.: I am opportuned to have read the lead judgment of my learned
brother Isaiah Olufemi Akeju, JCA. I agree that there is no reason to interfere with the exercise of discretion of the Tribunal. The appeal is lacking in merit and it is dismissed.
I award the same costs as in the leading judgment.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the opportunity of reading before now, the concise but indepth lead judgment of my learned brother, Isaiah Olufemi Akeju, JCA. He has incisively dealt with the sole issue raised in this appeal. I will only add a few words in agreement, emphasis and support.
As ably demonstrated by his Lordship in the said lead judgment, election petitions being sui generis are expected to be conducted and disposed of expeditiously. Election petition cases are not identical with other civil proceedings. Election petitions being special proceedings, time is so much of the essence. Indeed, being an election matter, anything that would cause delay and impede speedy disposal of the petition and expeditious hearing of the matter must be avoided and deprecated.
Thus, where it has been amply shown that the reason or occurrence in respect of which an applicant for extension of time premised his application, turns out to be false, untrue, unreasonable or deployed as a strategy to gain undue advantage, such an application should not be granted. See A. N. P. P. v. Albishir (2010) 9 NWLR (Pt.1198) 118.
In the instant case, the reason given by the appellant for the delay in filing his reply to the petition filed by the 1st respondent herein, does not have the ring of truth around it. It portrays subterfuge and playing hide and seek with a serious issue, with the seemingly intended objective of gaining undue and undeserving advantage and by the same token pulling the wool over the head of the election tribunal and leading it up the garden’s path.
It should be noted that the rationale and pristine objective of the law, include the dire need for winners and losers of elections to know their resultant positions, with dispatch and promptitude. Such a laudable objective will be defeated if the relevant and applicable constitutional and statutory provisions which pertained to time or stipulated durational periods are allowed to be treated with disdain and levity, to the extent that they ended up being compromised and eventually frustrated without a semblance of opportunity towards enabling them achieve the desired and targeted goals. In this regard, all parties to election petitions need a wake up call and to consciously realize that it is no more, business as usual.
In the instant case, the election tribunal was in the right and did light when it refused to grant the application for extension of time brought by the appellant. The exercise of discretion by a court or tribunal must be judicial and judicious. It was so exercised in the peculiar facts and given circumstances of this case. I find no earthly reason or legal justification to interfere with the decision of the election tribunal in this regard. Accordingly, I am not inclined or prepared to disturb such a valid exercise of discretion by the election tribunal.
For the foregoing reasons and the fuller ones proficiently enunciated in the decisive lead judgment of my learned brother, Akeju, JCA, I too find no merit in this appeal and accordingly dismiss the same. I endorse the order as to costs made therein.
Appearances
Essien H. Andrew Esq.For Appellant
AND
Joe Agi, Esq. SANFor Respondent
