INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR v. UWAJUMOGU BENJAMIN & ANOR
(2019)LCN/13756(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of August, 2019
CA/OW/EPT/SEN/19/2019
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
1. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC).
2. THE RETURNING OFFICER FOR ELECTION
TO SEAT OF SENATOR REPRESENTING
IMO NORTH SENATORIAL DISTRICT Appellant(s)
AND
1. UWAJUMOGU BENJAMIN
2. NDUBUEZE PATRICK C. Respondent(s)
RATIO
WHETHER OR NOT ELECTION MATTERS ARE TIME BOUND
Giving time limit to take steps in Election Petition Proceedings allows for speedy hearing of Election Petitions which in turn is in line with the constitutional provision of right to fair hearing within reasonable time.”?
The Supreme Court, in giving its stamp of imprimatur to the settled position of the law as espoused by this Court in the above mentioned decisions, with respect to the principle that election petitions are sui generis and that neither the Election Petition Tribunals nor this Court has any discretion to exercise, pertaining to the mandatory provisions in the First Schedule to the Electoral Act, 2010 (as amended), where parties to an election matter are required to take steps and do somethings within the time lines, specified therein, had this to say in Prince Abubakar Audu & Anor v . Captain Idris Wada &Ors [2012] LPELR-19641 (SC), per His Lordship, Sylvester Ngwuta, J. S.C.,@ page 12 thereof, that:
“Election matters are time bound. There is no provision for the extension of the time stipulated in the Practice Direction. It is in the Public interest that such matters be disposed off timeously and any extension of time will defeat the purpose of the Practice Direction.” PER YAKUBU, J.C.A.
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): This appeal is sequel to the decisions of the National and State Houses of Assembly Election Petition Tribunal, holden at Owerri, rendered on 18th June, 2019 and 26th June, 2019; wherein the Tribunal refused the Appellants’ application for extension of time to file their reply to the Respondents’ petition and to deem the same as having been properly filed and served. Furthermore, the Tribunal, on 26th June, 2019, issued its Pre- Trial Report and held that the 2nd and 3rd respondents, ceased to be parties to the Respondents’ petition, premised on its decision which refused the Appellants’ application for extension of time to file their reply to the aforesaid petition. The Appellants, piqued by the decisions against them, appealed on four grounds of appeal to this Court.
?The 2nd Respondent who was the Petitioner at the Tribunal, had filed his petition on 29th March, 2019 against the return of the 1st Respondent, to the office of the Senator, representing Imo North Senatorial District, of Imo State, Nigeria. The petition was served on the Appellants on 8th April, 2019. The Appellants
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briefed a law firm to represent them on 26th April, 2019 and by the 29th April, 2019, when a copy of the petition was handed over to the Appellants’ counsel, the time limited for them to file their reply to the petition, had lapsed. The above notwithstanding, the Appellants, on 30th April, 2019, filed a motion on notice, praying for an extension of time, by the Tribunal, to enable them file their reply. However, on realizing that neither the 1st Respondent nor any of the candidates who participated in the election to the office of the Senator, representing Imo North Senatorial District, in question, was declared the winner of the election, the Appellants had applied to withdraw their motion on notice for extension of time to file their reply to the petition. The aforesaid motion on notice was on 7th May, 2019, struck out by the Tribunal. Thereafter, the Appellants, on 6th May 2019, filed another motion on notice, praying for extension of time within which to file their reply to the petition. The application was argued by the Appellants and opposed by the 1st Respondent on 11th May, 2019. The Tribunal, in its ruling on the application on 18th June 2019,
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dismissed the Appellants’ application. Thereafter, the Tribunal on 24th June, 2019, commenced the pre- trial conference on the petition and all the parties adopted their respective answers and the issues suggested for the determination of the petition. In its Report on the pre – trial conference, rendered on 26th June, 2019, the Tribunal struck out the answers and issues for determination adopted by the Appellants who were the 2nd and 3rd Respondents at the Tribunal and that they were no longer parties to the petition because their application for extension of time to file their reply to the petition had been dismissed on 18th June, 2019. In order to activate the prosecution of appeal, the Appellants’ brief of argument, was dated and filed on 16th July, 2019. On his own part, the 1st Respondent’s brief of argument, dated 18th July, 2019, was filed on 19th July, 2019. Thereafter, the Appellants’ reply brief dated 24th July, 2019, was filed on 25th July, 2019. It is to be noted that at the hearing of the appeal on 14th August, 2019, the learned counsel to the 2nd Respondent’s application for an extension of time to enable him file the 2nd Respondent’s
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brief of argument, was withdrawn and consequently struck out.
In the Appellants’ brief of argument, settled by John Ochogwu, Esq, a sole issue was nominated therein, for the determination of the appeal, thus:
?Whether the Learned Justices of the Tribunal were right when they refused to hold themselves bound by their own decision in EPT/NASS/SHA/IM/65/2019 between Prince Lemachi v. INEC & Ors and the various decisions of this court to the effect that time can be extended for the Appellants but instead dismissed Appellants’ motion for extension of time and whether the Appellants cease to be parties to the petition because the tribunal rejected their application for extension of time. [Distilled from Grounds 1, 2, 3 and 4].
W.A. Olajide, Esq., who prepared the 1st Respondent’s brief of argument, adopted the sole issue, nominated by the Appellants for the resolution of the appeal.
In my consideration and determination of the appeal, I too, adopt the sole issue formulated by the Appellants’ learned counsel for the resolution of the appeal.
?
A rsum of the contentions of the Appellants’ learned counsel, are
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to the effect that in an application for extension of time to file a process in Court in a matter before it, the Court is usually guided by the reasons proffered by the applicant in his affidavit in support of the application in order to determine whether the reasons so proffered are substantial and satisfactory. He placed reliance on Ifelodun Local Govt. v. Bello [2012] 4 NWLR (pt?) 17 @ pp. 32-33. And that in the instant case, the reasons given by the Appellants at paragraphs 5, 6, 7 and 8 of the affidavit in support of the application, were substantial and good reasons upon which the Tribunal ought to have exercised its discretion in favour of the Appellants, by granting the application, instead of refusing it. He also submitted to the effect that the tribunal ought to have granted the Appellants’ application, just as it had granted a similar application with respect to the petition in EPT/NASS/SHA/IM/65/2019. Furthermore, it was the contention of the Appellants’ learned counsel to the effect that the fact that the Tribunal rejected the Appellants’ application for extension of time to file their reply to the petition, did not disentitle them from
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being parties to the petition and that where a party failed to file its pleadings in a matter, does not disentitle it from being a party to the action. He placed reliance on Onigha Onah v. Chief Linus E. Okom [2012] 8 NWLR [pt.1301] 169; Faladu v. Kwoi (2003) 9 NWLR [pt.826] 643. He concluded that the decision by the Tribunal to the effect that the Appellants were no longer parties to the petition because their application for extension of time to file their reply to the petition was refused by it, was tantamount to a denial of the Appellants’ rights to fair hearing.
Arguing per contra, the learned counsel to 1st Respondent, submitted to the effect that since election petitions are sui generis and the rules of procedure guiding the conduct of the proceedings thereon are of strict liability, where a respondent to a petition, failed to file its reply to it within the time frame statutorily provided for it to do so, an order of extension of time for it to do so, is not available to it. Therefore, according to him, the Tribunal was justified in refusing the Appellants’ application for extension of time for them to file their reply to the petition. He referred
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to paragraphs 10(2), (12(1), 14 (2) (a) (i) and (ii) and 45 (1) of the First Schedule to the Electoral Act, 2010, as amended, to the effect that the Tribunal had no power to extend the time for the Appellants to file their reply to the petition and placed reliance on the decisions of this Court in Odubu v. Akporehe [ 1999] LPELR- 13096 (CA) @ pp. 10-11, paras D- C; Olakunle Okunola V Falake [2015] LPELR- 26030 ( CA ) @ pp.11-15 paras B-A; Olajide Adedeji Stanley v. Hon. Saheed Akinade & Ors Unrported Appeal NO. CA/IB/EPT/OY/HR/02/2019 delivered on 5th May, 2019 and the Supreme Court decision in Audu v. Wada [2012] LPELR- 19641( SC ). With respect to the Appellants’ contention to the effect that the Tribunal ought not to have disentitled as parties to the petition because of the rejection of their application for extension of time for filing their reply, the 1st Respondent’s learned counsel submitted that since the Appellants had filed no defence to the petition, they would have no right to call any witness, against the petition. And that in the circumstances of the instant case, since the Appellants lost the opportunity of filing their reply to the
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petition, which was self- inflicted, they cannot complain of a denial of fair hearing.
Resolution:
Paragraphs 10(2) and 12(1) of the First Schedule to the Electoral Act, 2010, as amended are germane to the resolution of the sole issue in this appeal. They each provide, inter alia:
“10(2) The non-filing of a memorandum of appearance shall not bar Respondent from defending the election Petition if the Respondent files his reply to the election Petition in the Registry within a reasonable time, but in any case,not later than twenty – one (21) days from the receipt of election Petition.”
“12 (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 allege 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.”
Unarguably, the Appellants had failed to comply with the above stated provisions of the Electoral Act, 2010, as amended, upon their receipt of the election petition on 8th April, 2019. That was why they strenuously applied for an extension of time to enable them file
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their reply to the election petition. The application was dismissed by the Tribunal. The reasons proffered by the Tribunal are contained at pages 505 to 506 of the record of appeal thus:
“This Tribunal has duly considered the application and the submission of Counsel. We have examined the relevant authorities and the cited provisions of the Electoral Act, 2010 (as amended) including paragraphs 9, 10, 12 (1) and 45 of the 1st Schedule to the Electoral Act. This Tribunal observes that paragraph 9,10 and 12(1) of the 1st Schedule to the Electoral Act (2010) as amended, if read together entitle the Respondent to file a reply in response to a petition within twenty one (21) days of service of the petition on him.?
Election petitions being time bound as clearly indicated by Section 285(5) and (6) of the CFRN 1999 (as amended) is clear that the use of the word “Shall” in paragraph 12(1) above mentioned gives the Respondent no opportunity to extend the time (he) is expected to file his reply.
Furthermore, paragraph 45(1) and (2) of the 1st Schedule to the Electoral Act 2010 ( as amended) cited by the 2nd and 3rd Respondents/Applicant’s Counsel is
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of little assistance considering the fact that it included the word “except as otherwise provided by any other provision of this Schedule. In the case of RUFAI ADEYEMI & ANOR VS AKANDE& ANOR [2015] LPELR- 40881 (CA) the Court of Appeal after referring to paragraph 12 (1) and 10 (2) of the 1st Schedule to the Electoral Act, 2010 (as amended) as follows:-
“It is apparent from the cumulative reading of the above provision of the Act that a Respondent to an election petition has twenty one (21) (days) to file its reply to petition that was served on him. The provisions are mandatory and leave no room for the exercise of any discretion. This is in view of the fact that election related matter is sui generis wherein time is of essence so that any provision under the Act requiring that something must be done within a particular time, such thing must be done. Noncompliance may be fatal to the party defaulting.
After a review of the relevant provisions of the Electoral Act and related cases, this Tribunal is of the firm view that it lacks power to enlarge time within which the 2nd and 3rd Respondents/Applicants can file their processes. In effect,
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the prayers in the Motion on Notice as filed by the 2nd and 3rd Respondents/Applicants dated and filed on 6/5/2019 is hereby refused and accordingly dismissed.”
The above position of this Court was reiterated in Olakunle Okunola & Anor v. James Abiodun Falake & Ors [2015] LPELR-26030 (CA) @ pp.11-15,paras B-A, per His Lordship Byenchit Yargata Nimpar, J.C.A., to the effect that a “failure to abide by the timelines set in the rules and practice directions for the determination of election petitions is fatal to the party required to have taken such a step,——.?
The same position was re-echoed more recently in Stanley v. Akinade [2019] LPELR- 48052 (CA) @ pp. 28-29, paras C -A per my Lord, Folashade Ayodeji Ojo, J.C.A., to the effect that: “Election Petition Proceedings are sui generis. They have their own set of rules to aid the quick dispensing of justice. They are distinct from Civil Proceedings. By their nature, the rules must be followed strictly. Parties must also be reminded that election matters are time bound and time sensitive and as such where the relevant statute provide time within which to take certain steps, they must comply.
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Giving time limit to take steps in Election Petition Proceedings allows for speedy hearing of Election Petitions which in turn is in line with the constitutional provision of right to fair hearing within reasonable time.”?
The Supreme Court, in giving its stamp of imprimatur to the settled position of the law as espoused by this Court in the above mentioned decisions, with respect to the principle that election petitions are sui generis and that neither the Election Petition Tribunals nor this Court has any discretion to exercise, pertaining to the mandatory provisions in the First Schedule to the Electoral Act, 2010 (as amended), where parties to an election matter are required to take steps and do somethings within the time lines, specified therein, had this to say in Prince Abubakar Audu & Anor v . Captain Idris Wada &Ors [2012] LPELR-19641 (SC), per His Lordship, Sylvester Ngwuta, J. S.C.,@ page 12 thereof, that:
“Election matters are time bound. There is no provision for the extension of the time stipulated in the Practice Direction. It is in the Public interest that such matters be disposed off timeously and any extension of
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time will defeat the purpose of the Practice Direction.”
My Lords, against the backdrop of the decisions of the Apex Court and this Court, highlighted above, I do not think that it is expedient to still flog a dead horse, in respect of this matter. The decision of the Tribunal in refusing the Appellants’ prayer for an extension of time for them to file their reply to the petition and the reasons proffered by it for the dismissal of the Appellants’ application, are unassailable. I endorse those well thought out reasons. Perhaps, the parties to election petition matters, whether at the Election Petition Tribunals or in this Court, be reminded that the essence of the timeliness in disposing off such matters, is that those who are entitled to judgments are allowed to hit the ground running in the governance of the Country or States in their executive or legislative offices, without undue delays in the prosecution of such matters at the Tribunals and in this Court, which could be diversionary and counter-productive. For all the foregoing, I resolve the first part of the sole issue in the appeal, against the Appellants.
?
With respect to the Appellants’
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grouse against the Tribunal’s decision made on 26th June, 2019 while turning in its report on the Pre- Trial Conference on the petition, whereby the Appellants, being the 2nd and 3rd Respondents, to the petition were said not to be parties to the petition any longer, because their application for extension of time to enable them file their reply to the election petition, was refused and dismissed earlier by the Tribunal on 18th June, 2019; I must say that I am amazed by the Tribunal’s decision. It is glaringly a faux pas, which was not anchored on any known principle of law. Of course, the 1st Respondent’s learned counsel, could not effectively respond to the Appellants’ contentions, against the decision of the Tribunal, in question. The decisions of this Court in Faladu v. Kwoi [2003] 9 NWLR (pt.826) 643 and Onigha Onah v. Chief Linus E. Okom[2012] 8 NWLR (pt.1301) 169, relied upon by the Appellants’ learned counsel, are to the effect that where a defendant failed to file his pleadings in any matter, he is still entitled to a hearing. He may even elect to rest its case on the plaintiff’s case and address the Court on the issues raised in the plaintiff’s case. He
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cannot be shut out of the case because he failed to file his pleadings. That is the position of the law. Therefore, I have no difficulty in agreeing with the contentions of the Appellants, against the decision of the Tribunal, which shut them out of proceedings at the Tribunal, because their application for extension of time to enable them file their reply to the petition, was refused and dismissed. Hence, I resolve that part of the sole issue in this appeal in favour of the Appellants.
In sum, although the decision of the Tribunal, whereby the Appellants’ application for extension of time to enable them file their reply to the petition, is affirmed the decision of the same Tribunal of 26th June, 2019 which was rendered to the effect that the Appellants, being the 2nd and 3rd Respondents to the petition are no longer parties to the petition, is hereby set aside.
In effect, they are still parties to the petition. It is so ordered. Each side shall bear its costs of the appeal.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree.
YARGATA BYENCHIT NIMPAR, J.C.A.: I agree.
?
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Appearances:
John Ochogwu, Esq,For Appellant(s)
Uche W. Durueke, Esq. with him Chief Okey Ehieze, W.A. Olajide, Esq., Emma Nwosu, Esq, C.O. Iwunna, Esq, A. G. Duru- Osege, Esq, Chima Ejike, Esq, Nnaemeka Okafor, Esq, and C.J. Ahunibe, Esq, for 1st Respondent.
Williams Opara, Esq. with him F.I. Mbachu, Esq. for 2nd Respondent.
For Respondent(s)
Appearances
John Ochogwu, Esq,For Appellant
AND
Uche W. Durueke, Esq. with him Chief Okey Ehieze, W.A. Olajide, Esq., Emma Nwosu, Esq, C.O. Iwunna, Esq, A. G. Duru- Osege, Esq, Chima Ejike, Esq, Nnaemeka Okafor, Esq, and C.J. Ahunibe, Esq, for 1st Respondent.
Williams Opara, Esq. with him F.I. Mbachu, Esq. for 2nd Respondent.For Respondent