PEOPLES DEMOCRATIC PARTY V. MR. WILLIAM BALLANTYNE & ORS.
(2011)LCN/4746(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of July, 2011
CA/C/NAEA/134/2011
RATIO
PRELIMINARY OBJECTION: DUTY OF THE RESPONDENT WHO HAS FILED A NOTICE OF PRELIMINARY OBJECTION
…the Supreme Court and this Court have stated in quite a number of decided cases, that since the essence of the procedural requirement of Rule 1 of Order 10, is to ensure that the appellant is not taken by surprise as if from an ambush, a notice of preliminary objection could as well be deemed given in the respondent’s brief within the stipulated period. What is needed or required is that, at the oral hearing of the appeal, the party who filed the notice of preliminary objection would bring it up by drawing the attention of the court to it, coupled with an oral application for leave to move for the grant of the relief prayed for therein, before the commencement of hearing in the appeal proper. See Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Tiza v. Begha (2005) 15 NWLR (Pt. 949) 616; Onochie v. Odogun (2006) 6 NWLR (Pt. 975) 65; Umar v. W.G.G. (Nig.) Ltd. (2007) 7 NWLR (Pt. 1032) 117. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A
COURT PROCESS: EFFECT ON COURT PROCESSES FILED BUT NOT PURSUED
It is both legal and logical, that a court process filed and not pursued is deemed abandoned. It follows therefore, that the preliminary objection raised and arguments in the 1st respondent’s brief are deemed waived and thus abandoned. In this regard, the objection and arguments canvassed thereon are hereby discountenanced and accordingly struck out. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A
ELECTION PETITIONS: NATURE OF AN ELECTION PETITION
It needs no gainsaying, that the proceeding of an election tribunal is strict. The established position is that election petition and procedural rules applicable to it are unique Hence the basis for the oft repeated reference to election petitions as sui generic. Indeed, they are different and distinct from other proceedings. They are neither akin to civil nor criminal proceedings. They stand aloof, detached and independent. They are special proceedings and bound by separate rules made under the law. An election petition is heard and determined by an appropriate election tribunal set up for that sole purpose. The jurisdiction of such an election tribunal is pre-determined and well spelt out, both constitutionally and statutorily. Invariably and in this regard, ordinary rules of civil procedure do not apply to election tribunals. Hence, it is such that defaults, defects and irregularities regarding compliance with procedural steps, which could otherwise be cured, discountenanced or waived in other civil proceedings, could as well engender fatal consequences for the petition/petitioner. Availing saving grace is limited to whatever extent to which provisions of the electoral law are relaxed, otherwise a defaulting party will suddenly discover that he is faced with a fait accompli. See Samamo v. Anka (2000) 1 NWLR (Pt. 640) 283; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841), 446. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A
POWER OF ELECTION TRIBUNAL: WHETHER AN ELECTION TRIBUNAL HAS POWER TO ENLARGE OR ABRIDGE THE STIPULATED PERIOD FOR THE DOING OF AN ACT
Let it be restated that the election tribunal in certain statutorily specified circumstances, has power to enlarge or abridge the stipulated period for the doing of an act. Paragraph 45 (1) of the First Schedule to the Electoral Act, 2010 as amended provides thus: “The Tribunal or Court shall have power, subject to paragraphs 15 of this Schedule, to enlarge time for doing any act or taking any proceeding on such terms (if any) as the justice of the case may require except as otherwise provided by any other provision of this Schedules”., Thus, by virtue of Paragraph 45(1) of the First Schedule to the Electoral Act, 2010 as amended and quoted above, the tribunal or court has power, subject however, to Paragraph 16 of the same First Schedule to the Electoral Act, to enlarge time for doing any act or taking any proceeding on such terms as the justice of the case may require, except as otherwise provided by any other provisions by the said First Schedule. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A
Justice
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
PEOPLES DEMOCRATIC PARTY – Appellant(s)
AND
1. MR. WILLIAM BALLANTYNE
2. HON. ESSIEN EKPENYONG AYI
3. THE RESIDENT ELECTORAL COMMISSIONER CROSS RIVER STATE (MR.MIKE IGINI)
4. THE INDEPENDENT NATIONAL COMMISSION – Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the National and State House of Assembly Election Tribunal, holden at Calabar, Cross River State,(hereinafter called the election tribunal) delivered on 8th June, 2011.
The notice of appeal to this Court contained two grounds of appeal. The reliefs sought by the appellant from this Court are reproduced below:
“(i) An order of this Honourable court setting aside the Ruling of the National and state House of Assembly Election Tribunal delivered on 8th June, 2011 in Petition No. EPT/CRN/NA/2/2011 (Mr. Ballantyne vs Honourable Essien Ekpenyong Ayi & 3 Others)
(ii) An Order of this Honourable court granting the Appellants’ Motion for Extension of time to file its Reply filed on 30th May, 2011, in the Registry of the National And state House of Assembly Election Tribunal, Calabar.
(iii) An order of this Honourable Court directing that Petition No. EPT/CR/NA/2/2011 (Mr. William Ballantyne vs Honourable Essien Ekpenyong Ayi & 3 Others) be heard by a different Election Tribunal to be constituted by the President of the Court of Appeal.”
The brief facts of the case are as follows. On 28th April, 2011, the 1st respondent herein as the petitioner, filed his petition before the election tribunal, whereat he challenged the election and return of the 2nd respondent herein, by the 3rd and 4th respondents herein who conducted the said election. The 2nd respondent was declared as the duly elected member of the Federal House of Representatives, representing Calabar South, Akpabuyo Bakassi Federal Constituency of Cross River State, during the election for the said seat held on 9th April, 2011.
The 1st respondent sought for invalidation and nullification of the election and return of the 2nd respondent, coupled with a declaratory order disqualifying the 2nd respondent and the order that a fresh election be conducted in respect of the contested seat. The 1st respondent also prayed in the alternative for a declaration that he scored the highest number of votes cast in the said election and was thus validly elected, with an order directing the 4th respondent herein to issue a certificate of return to the 1st respondent herein.
The appellant herein, Peoples Democratic Party was the 4th respondent before the election tribunal. Appellant was served with the 1st respondent’s petition on 3rd May, 2011. Appellant caused a memorandum of appearance to be filed on its behalf on 10th May, 2011. The appellant has 14 days, with effect from the date of service within which to file its reply to the petition. Thus, appellant herein has up till 17th May, 2011 within which to file its reply.
On 30th May, 2011, the appellant filed an application by way of motion on notice, with a 10 paragraph affidavit in support, praying the election, tribunal for extension of time within which to file its reply to the petition, with the deeming order in respect of clean copies of the said reply annexed to the motion paper. A written address was equally filed in amplification of the reliefs sought from the election tribunal.
On 8th June, 2011 the learned counsel for the appellant herein, moved/argued the aforedescribed motion for extension of time within which to file their reply to the petition. The election tribunal considered the said motion and dismissed the same in its ruling delivered on the same date. The election tribunal’s short ruling thereon is reproduced below:
“The Electoral Act 2010 gives the Tribunal 180 days from the date of filling of the petition to deliver its judgment. The 4th Respondent has been given 14 days to file his reply by the same Act. He has failed to do so. Extension of time within which to perform an act provided for in the Electoral Act should be based on sound and convincing reasons bearing in mind the time constraints within which the Tribunal operates and the fact that prudent management of time by parties and the Court are the features which give election petition its sui generis nature.
From the averments in the supporting affidavit the petition was served on the 4th Respondent on 3rd May, 2011 and the motion for extension of time was filed on 30th May, 2011; (27) days after service of the petition on the 4th Respondent. (Bracket added).
We expect counsel to take into consideration the limitation of time within which the Tribunal operates in complying with the rules for filing the reply.
We believe that adequate time has been given to the 4th Respondent to reply to the petition and the reasons given in the supporting affidavit for the failure do not convince us to exercise our discretion in favour of the applicant.
To grant this application is to submit to indolent management of the time granted in the Electoral Act by the 4th Respondent.
We therefore, dismiss this application.”
The ruling above gave rise to the instant appeal. In the appellant’s brief of argument prepared by E.O.E. Ekong Esq. and filed on 29th June, 2011, a sole issue was proferred for determination in this appeal. It goes thus:
“Whether having regard to the peculiar facts of this case, the Lower Tribunal was right when it dismissed the Appellant’s motion for Extension of Time to file its. Reply to the 1st Respondent’s Petition dated 30th May, 2011?” Similarly, the 1st respondent herein, framed one issue for resolution and or determination in this appeal. It states:
“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 30th May, 2011.”
On 13th July, 2011 when this appeal matter came up for hearing, learned counsel for the 2nd respondent herein, Nta A. Nta Esq. was present, while learned counsel for the other parties were absent. We were satisfied with the proof of service on the absent parties, placed before us by the registry of this Court. Paragraph 17 of the Election Tribunal and Court Practice Directions, 2011 provides that where briefs have been filed and “no party or any Legal Practitioner appears to present oral argument, the appeal will be treated as having been duly argued” on the briefs filed and considered as such. This is more so, when time within which to file briefs of argument by the absent parties has since expired.
On the sole issue formulated in this appeal, learned counsel for the appellant argued in the main in the appellant’s brief, that the decision of the election tribunal, which dismissed its motion dated and filed on 30th May, 2011 for extension of time to file its reply to the petition, “amounts to visiting the sin of the Appellant’s counsel upon the Appellant,” Also, that having regard to the peculiar facts of this case, the tribunal “misapplied the settled principles of law regarding applications of this nature to the settled facts of this case.”
Learned appellant’s counsel made extensive references to and review of what transpired among the parties before the election tribunal. It was pointed out that the motion for extension of time “was filed 13 (thirteen) days” after the stipulated period of 14 days. Also, that the reason for the delay was deposed to in paragraph 4 of appellant’s affidavit in support coupled with the fact of non conclusion of pre-hearing session by the election tribunal at the time the said application was made. Attention was drawn to the filing of a clean copy of the reply sought to be filed if time was extended and the aspect that, “none of the parties to the petition leading to the present appeal opposed the grant” of the said application for extension of time.
Learned counsel posited that the error or default being that of the counsel, the election tribunal ought to have exercised its discretion in favour of the appellant with the grant of the said application. For not doing this, it was the submission of learned appellant’s counsel, that the manner in which the election tribunal “interpreted the provisions of paragraph 45 of the 1st Schedule to the Electoral Act as amended,” in its decision appealed against, “reveals a misunderstanding of the current state of the law.” It was added that the said decision ” is with all due respect unreasonable”, having regard to the length of time of the delay in question, the stage of the proceedings before the election tribunal and the adverse effect of the refusal by the election tribunal to grant the extension of time sought by the appellant herein.
Appellant’s learned counsel, referred to and placed reliance on the decided cases of Alhaji Atiku Abubakar v. Alhaji Umaru Musa Yar’adua (2008) All FWLR (Pt. 404) 1409, (2008) 4 NWLR (Pt. 1078) 465 and Dr. John Olukayode Fayemi v. Olusegun Adebayo Oni & Ors. (2009) All FWLR (Pt. 472) 1122 as authorities for the applicable and settled principles, which the election tribunal, “was as a matter of law bound to follow and apply the principles of law,” enunciated in the cited cases. It was further contended that the refusal by the election tribunal to grant appellant’s application, violated its enshrined constitutional right to fair hearing as guaranteed by S.36(1) of the 1999 Constitution as amended. According to learned appellant’s counsel, the said refusal, effectively forecloses the appellant from proffering any evidence to rebut the allegations made against the appellant and its agents. We were urged in conclusion to allow the appeal.
The 1st respondent brief of argument commenced with a notice of preliminary objection, predicated on the ground that, “the appellant did not seek leave of the trial tribunal before filing the notice of appeal.” It was then argued that the law is, “settled that before a notice of appeal is filed in interlocutory appeals, leave of the trial court, the election tribunal in the instant case or this Court must be sought and obtained.” It was added that, “failure to take this step which is a condition precedent in interlocutory appeals renders the notice of appeal incompetent. “It was contended, that the instant appeal, being an interlocutory and not a final decision, hence by virtue of Section 246 (1) of the Constitution of Federal Republic of Nigeria, 1999, appeals as of right from decisions of election tribunals, “do not include interlocutory appeals.” We were urged to hold, “that the notice of appeal is incompetent for failure of the appellant to obtain leave of the trial tribunal or this Court” and “to dismiss this appeal.”
Responding to the sole issue argued in the appellant’s brief, the learned counsel for the 1st respondent maintained that election petitions being sui generis, the latitude allowed for the election tribunals, “to exercise their discretion in favour of parties” in election petitions, “are greatly curtailed.” Reference was made to Section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria as amended, which provides, “that an election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.” It was emphatically pointed out, that in the instant case, if and when the duration of the delay being 13 days, is computed mathematically with the 14 days allowed by the electoral law for the filing of respondent’s reply, it will be discovered that “it is almost 100%” of the stipulated period for the filing of respondent’s reply.
Learned counsel for the 1st respondent further argued, that the reason for the delay, which was attributed to pressure of work in the Chambers of appellant’s counsel, “is not an infraction that can be cured by alleging that it is the fault of counsel.” He added, that after all, appellant’s counsel “was fully aware of the pressure of work in his Chambers before he accepted the brief to defend the petition,”
Learned counsel for the 1st respondent, then opined that having failed to avail itself of the 14 days period allowed by the electoral law within which to file a respondent’s reply, the appellant should not complain of any breach of fair hearing, since it failed on its own showing to take advantage of the opportunity given. It was added that, “fair hearing applies to all parties to an action.” We were urged in conclusion to dismiss the appeal as it lacks merit.
Let me deal first with the preliminary objection. The 1st respondent herein, urged us to hold, “that the notice of appeal is incompetent for failure of the appellant to obtain leave of the trial tribunal or this Court,” before filing the said notice of appeal. Now, Order 10 Rule 1 of the Court of Appeal Rules, 2011 provides:
“1. A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
In the instant case, the 1st respondent did not file a format notice of preliminary objection in compliance with Order 10 Rule 1. (supra). It is trite, that rules of court are meant to be obeyed and not toyed with. Ordinarily, that would have been the end of the matter since the requirement of the rules for notice is mandatory. Howbeit, both the Supreme Court and this Court have stated in quite a number of decided cases, that since the essence of the procedural requirement of Rule 1 of Order 10, is to ensure that the appellant is not taken by surprise as if from an ambush, a notice of preliminary objection could as well be deemed given in the respondent’s brief within the stipulated period. What is needed or required is that, at the oral hearing of the appeal, the party who filed the notice of preliminary objection would bring it up by drawing the attention of the court to it, coupled with an oral application for leave to move for the grant of the relief prayed for therein, before the commencement of hearing in the appeal proper. See Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Tiza v. Begha (2005) 15 NWLR (Pt. 949) 616; Onochie v. Odogun (2006) 6 NWLR (Pt. 975) 65; Umar v. W.G.G. (Nig.) Ltd. (2007) 7 NWLR (Pt. 1032) 117.
Now in the instant case, the 1st respondent or his counsel did not appear at the oral hearing of the appeal, despite the fact that he was duly notified of the day’s sitting. The 1st respondent therefore, failed to seek leave of this Court with regard to the preliminary objection embedded in his brief of argument, before the commencement of hearing of the appeal.
It is both legal and logical, that a court process filed and not pursued is deemed abandoned. It follows therefore, that the preliminary objection raised and arguments in the 1st respondent’s brief are deemed waived and thus abandoned. In this regard, the objection and arguments canvassed thereon are hereby discountenanced and accordingly struck out. Having dispensed with the preliminary objection, I shall now proceed and consider the appeal on the sole issue argued in the briefs filed by the respective learned counsel for the parties herein.
It needs no gainsaying, that the proceeding of an election tribunal is strict. The established position is that election petition and procedural rules applicable to it are unique Hence the basis for the oft repeated reference to election petitions as sui generic. Indeed, they are different and distinct from other proceedings. They are neither akin to civil nor criminal proceedings. They stand aloof, detached and independent. They are special proceedings and bound by separate rules made under the law. An election petition is heard and determined by an appropriate election tribunal set up for that sole purpose. The jurisdiction of such an election tribunal is pre-determined and well spelt out, both constitutionally and statutorily.
Invariably and in this regard, ordinary rules of civil procedure do not apply to election tribunals. Hence, it is such that defaults, defects and irregularities regarding compliance with procedural steps, which could otherwise be cured, discountenanced or waived in other civil proceedings, could as well engender fatal consequences for the petition/petitioner. Availing saving grace is limited to whatever extent to which provisions of the electoral law are relaxed, otherwise a defaulting party will suddenly discover that he is faced with a fait accompli. See Samamo v. Anka (2000) 1 NWLR (Pt. 640) 283; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841), 446.
In view of the dire need for expeditious disposal of electoral matters and with time being crucial and always of utmost essence, it becomes desirable and as a matter of deliberate policy, in order to emphasize and enhance its attendant nature that election petitions are designed to be devoid of procedural cogs which tend to cause avoidable and unnecessary delay in the course of adjudication thereon. Hence, the relevant and applicable procedural rules are expressed in compelling cum compulsory forms. See Nwankwo v. Attah (1999) 5 NWLR (Pt, 601) 134.
Let it be restated that the election tribunal in certain statutorily specified circumstances, has power to enlarge or abridge the stipulated period for the doing of an act. Paragraph 45 (1) of the First Schedule to the Electoral Act, 2010 as amended provides thus:
“The Tribunal or Court shall have power, subject to paragraphs 15 of this Schedule, to enlarge time for doing any act or taking any proceeding on such terms (if any) as the Justice of the case may require except as otherwise provided by any other provision of this Schedules”.,
Thus, by virtue of Paragraph 45(1) of the First Schedule to the Electoral Act, 2010 as amended and quoted above, the tribunal or court has power, subject however, to Paragraph 16 of the same First Schedule to the Electoral Act, to enlarge time for doing any act or taking any proceeding on such terms as the Justice of the case may require, except as otherwise provided by any other provisions by the said First Schedule.
However, it should be noted, that the procedural requirement that such exercise of power to enlarge time subject to the excepted exceptions, must be “as the Justice of the case may require,” This stipulation connotes and denotes a judicial and judicious exercise of vested discretionary power. The functional guiding principle is that the discretion being judicial, must at all times be exercised judicially, that is according to relevant rules of law, practice and procedure and judiciously based on rules of reason and Justice, coupled with the need to place sufficient materials before the tribunal or court, in order to rationalize why the craved indulgence must be positively considered in favour of the applicant.
Now, in the instant case, the petition in question was served on the appellant herein on 3rd May, 2011. The motion for extension of time within which to file respondent’s reply was filed on 30th May, 2011, that is 27 clear days after the due service of the petition on the appellant. As it is well known, election matters, with particular reference to election petitions are bedeviled by deadlines and a fast pace race against time. This is more so, because of time constraints confronting all parties appearing before the election tribunals. Hence, the dire need for prudent and efficient management of time by all parties concerned and involved. From the deposition contained in the affidavit evidence placed before the election tribunal by the appellant herein, the reason given for the delay in filing appellant’s reply to the petition was, “due to pressure of work in the Chambers arising from previous professional commitments.” This deposition led to the argument canvassed by learned appellant’s counsel, that the sin of the counsel should not be visited on the appellant herein.
To my mind and as found by the election tribunal, the reason given for the failure to file appellant’s reply within time are not convincing and depicts traits of indolent management of time. This is more so, when consideration is given to the limited time within which the election tribunal, is expected to deliver judgment in respect of each petition filed before it,
In recent times, the vogue has been for learned counsel to rely on the seemingly ready made, but over burdened and over worked principle of law, that a party should not suffer or be penalized for the mistake of his counsel. Well, times do change, hence there comes a time or period, when a party must suffer the consequences of mistakes of his counsel. For instance, where it will amount to turning the law on its head or grave in Justice will be done to the adverse party. In such an instance, it will be unfair if mistake of counsel should assist the party whose counsel has formatted the mistake in the first instance and at the expense of the adverse party. This is more so, in a situation where such an avowed mistake of counsel cannot be readily established or ascertained, due to its nebulous or tenuous nature.
The core essence of principle of law or practice is to strike a just balance and ensure that substantial Justice is done to both the party whose counsel committed the mistake and the adverse party. Thus, where in the course of trying to do substantial Justice to the defaulting party, in Justice will be done to the adverse party, then the tribunal or court will have to do a rethink and be more inclined to lean in favour of the adverse party who is not at fault. See Onyemelukwue v. W.A.C.C. (1995) 4 NWLR (Pt. 387) 44. In the instant case, the delay was for a period of 18 days. Well, once there is non compliance of a serious nature with the period set down in a statute, even if the delay is just for one day, late is late without necessarily having to be belated. After all, a miss of an inch is as good as a mile. Additionally, it is to be noted, that both the election tribunal and the 1st respondent herein, are hemmed in and placed in a straitjacket of a sort. Both the constitutional and statutory provisions, gave them little or no room to adjust, manipulate or manouvre, with regard to the issue of extension of time.
Basically and more so, under the new dispensation, election tribunals are circumscribed as they do not have all the time in the world, for the discharge of their onerous duties. The election tribunal has 180 days from the date of the filing of the petition within which to deliver its judgment in writing. Again, it is to be noted that the petitioner does not enjoy the luxury of extension of time, either with regard to the filing of his petition in the first instance or his reply to respondent’s reply in the second instance. Hence all the parties appearing before the election tribunal cannot afford the added benefit of doing things at their own pace and for no just cause, when all others are racing ahead in order to meet set goals and deadlines, they are delaying the proceedings and unduly too. It has been said and well said too, that time waits for no one. It is like a sword, you either use it to cut or it will cut you. It is also noteworthy, that the fact that none of the parties to the petition opposed the grant of the application for extension of time to file appellant’s reply to the petition does not add any or much value to the issue of whether, the election tribunal will either refuse or grant the said application.
In another vein, the appellant complained of breach of right to fair hearing as guaranteed under the 1999 Constitution. I do not think so and more so, in the given circumstances of this case. Firstly, the law is settled that what constitutes fair hearing and its breach depend largely on the peculiar facts and given circumstances of each case, See N.E.P.A. v. Arobieke (2006) 7 NWLR (Pt, 979). Hence, were as in the instant case, a party has been given adequate and reasonable opportunity of being heard, and in the particular manner prescribed under the law, but for no justifiable or satisfactory reason/ basis such a party fails or neglects to seize and utilize the given opportunity, that party cannot be heard to complain about denial or breach of right to fair hearing, See M.M.S. Ltd. v. Oteju (2005) 14 NWLR (Pt. 945) 517.
The law is settled that an appellate court will not readily interfere with an exercise of discretionary power by a lower court or tribunal on the basis that if faced with a similar application, it would have exercised the discretion differently. Therefore, it behoves an appellant, who appeals against the exercise of discretion by a lower court or tribunal, to satisfy the appellate court that the lower court or tribunal did not exercise its discretion and discretion judiciously. See The Minister of Petroleum & Mineral Resources & Anor, V. Expo-Shipping Line (Nig) Ltd. (2010) 42 NSCQR (Pt. 2) 1020. Thus, an appellate court can review, intervene and interfere with the exercise of discretionary power by a tribunal, where such exercise was not judicial and judicious, Put differently, where the exercise was arbitrary, illegal, mala fide, sentimental, whimsical and by giving consideration to extraneous matter and without taking material issues into consideration. In the instant case, the appellant did not proffer plausible and acceptable reason for the delay displayed on the issue of non filing of its reply within time. Thus, the exercise of discretionary power by the election tribunal in this case cannot be faulted by this Court. It was predicated largely on the peculiar facts and given circumstances of the instant case.
In view of all that has been stated above, the sole issue raised in this appeal is resolved against the appellant herein. In the premise, I adjudge the appeal as lacking in merit and it is accordingly dismissed by me. I make no order regarding costs.
JA’AFARU MIKA’ILU, J.C.A.: The learned counsel for the appellant in the main, argues that the decision of the election tribunal, which dismissed its motion, dated and filed on 30th May, 2011 for extension of time to file its reply to the petition amounts to visiting the sin of the appellant’s counsel upon the appellant, Also that having regard to peculiar facts of this case, the tribunal misapplied the settled principles of law regarding application of this nature to the undisputed facts of this case.
The learned appellant’s counsel also maintained that “none of the parties to the petition leading to the present appeal opposed the grant” of the said application for extension of time. He pointed out that the error or default being that of counsel, the tribunal ought to have exercised its discretion in favour of the appellant and grant the said application. He added that the said decision was with all due respect unreasonable.
It is to be noted that an election tribunal has power to enlarge or abridge the stipulated periods for doing of an act by virtue of paragraph 45(1) of the First Schedule to the Electoral Act, 2010 as amended. In this case the reason given for failure to file appellant’s reply to the petition within time is not convincing also in the given circumstances of this case the complaint of breach of right to fair hearing as guaranteed under 1999 Constitution as amended cannot also avail the appellant. A party who has been given the opportunity to be heard as in this case cannot be heard to complain.
In the final conclusion I am of the view that this appeal is lacking in merit and I accordingly dismiss it. I award no costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother Massoud Abdulraham Oredola, JCA gave me the privilege of reading the draft of his lead judgment just delivered in respect of this appeal. It is my firm view that he has shown a clear understanding of the sole issue raised in the appeal and has painstakingly resolved the same. I therefore agree that the appeal lacks merit and I too dismiss it with no order as to costs.
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Appearances
ALL OTHER PARTIES ABSENT AND UNREPRESENTEDFor Appellant
AND
NTA A. NAT ESQ. – 2ND RESPONDENT
ALL OTHER PARTIES ABSENT AND UNREPRESENTEDFor Respondent
