SEN. ABARIBE ENYINNAYA H v. CHRIS NKWONTA & ORS (2019)

SEN. ABARIBE ENYINNAYA H v. CHRIS NKWONTA & ORS

(2019)LCN/13939(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of July, 2019

CA/OW/EPT/SEN/8/2019

RATIO

ELECTION PETITION: PERIOD WITHIN WHICH PRELIMINARY OBJECTIONS CAN BE FILED

It is imperative that the Provisions of Paragraph 12 (5) should be read together with Paragraph 53 (2) of the First Schedule to the Electoral Act.
It is apparent that the Preliminary Objection was filed timeously, within the Pre-hearing period. It was subsumed in the Respondents Reply and to say that it was over 10 days is misconceived.
PER RITA NOSAKHARE PEMU, J.C.A.

PRACTICE AND PROCEDURE: DETERMINANT OF REASONABLENESS OF TIME IN FILING APPLICATIONS

The issue of reasonableness of time in my view does not even arise, because the Preliminary Objection having been filed on the 6th of May, 2019 was filed within the time prescribed by law. A fortiori even that filed on the 16th of May, 2019 was filed within time.
This issue is resolved in favour of the Appellant and against the Respondents. PER RITA NOSAKHARE PEMU, J.C.A.

JUDGMENT: WHAT RENDERS A JUDGMENT PERVERSE

The abysmal failure of the lower Tribunal to apply the appropriate Provisions of the law on the Appellant?s Preliminary Objection filed before the commencement of Prehearing session occasioned miscarriage of justice. It rendered the decision perverse. The word Perverse simply connotes Persistent in error, different from what is reasonable or required, against weight of evidence? ATOLAGBE v. SHORUN (1985) LPELR  592 SC.
A decision may be perverse where the trial judge took into account matters which he ought not to have taken into account, or where the judge shuts his eyes to the obvious.
ANSA v. NTUK (2009) 9 NWLR (PT. 1147) Page 557 C.A.; EKEOWA v. NCC PLC. NKALAGU (2009) 4 NWLR (PT. 1131) 285.
PER RITA NOSAKHARE PEMU, J.C.A.

JUSTICES

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria

Between

SEN. ABARIBE ENYINNAYA H Appellant(s)

 

AND

1. CHRIS NKWONTA
2. ALL PROGRESSIVE GRAND ALLIANCE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. PEOPLES DEMOCRATIC PARTY Respondent(s)

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National and State House of Assembly Election Petition Tribunal holden at Umuahia Abia State, delivered on the 27th of May 2019.

Chris Nkwonta (1st Respondent in this appeal), was candidate of the 2nd Respondent (All Progressive Grand Alliance) for the Senatorial election held on the 23rd of February 2019, and the 9th day of March 2019 respectively for the Abia South Constituency Election.

The Appellant SEN. ABARIBE ENYINNAYA H. was declared the winner of the said election, and returned. Dissatisfied with the decision of the 3rd Respondent, the 1st and 2nd Respondents filed an Election Petition against the Appellant in Petition No. EPT/AB/SEN/13/2019, on the 29th of March 2019. The Appellant filed his reply on the 23rd of April 2019, and same was served on the Respondents on the 6th of May 2019.

The 1st and 2nd Respondents then applied for the issuance of the Pre-hearing Notice pursuant to the Provisions of Paragraph 18 (1) of the First Schedule to the Electoral Act 2010 (as amended).

Upon receipt of the application and pursuant to Paragraph 18 (1) of the First Schedule to the Electoral Act 2010, the secretary to the Tribunal duly issued the Hearing Notice Form TF007.

About one month after filing his reply to the Petition, the Appellant allegedly filed a Notice of Preliminary Objection to the Petition in disregard of the Provisions of Paragraphs 12 (5) and 53 (2) of the First Schedule to the Electoral Act 2010 (as amended) on the 22nd of May 2019, (a period of delay of about one month after filing his reply to the Petition).

Preliminaries commenced on the 22nd of May 2019. On the 24th of May 2019, the Appellant sought to move/argue his Notice of Preliminary Objection filed on the 22nd of May 2019, but the solicitor to the 1st and 2nd Respondents informed the Honourable Tribunal that they were yet to file their reply to the Preliminary Objection. Their time was therefore abridged, and were directed by the Honourable Tribunal to file and serve the other parties within twenty four hours.

The 1st and 2nd Respondents? counsel duly filed their reply to the Preliminary Objection on the 24th of May 2019.

On that day, the Honourable Tribunal raised the issue whether the Notice of Preliminary Objection was filed within a reasonable time in view of the Provisions of Paragraph 53 (2) of the First Schedule to the Electoral Act 2010 (as amended) and the Tribunal directed that the parties address it on the issue, which they did on that date.

Learned counsel for the 1st and 2nd Respondents submitted that the period of delay after one month was unreasonable and no reason was given. Moreso that it was made after the Appellant had taken steps, including filing of his Pre-hearing information sheet, and that same was contrary to the provisions of Paragraph 53 (2) of the First Schedule to the Electoral Act 2010 (as amended).

According to the Appellant, on the 22nd of May 2019, the Pre-hearing proceeding commenced. The Appellant?s objection filed on the 16th of May 2019 was to be heard on the 24th of May 2019, in consonance with the Provisions of Paragraphs 47 (1) (2) and (3) and Paragraph 53 (5) of the First Schedule to the Electoral Act, 2010 (as amended).

That on the 24th of May 2019, the Appellant?s counsel was about to move the Preliminary Objection, but the Honourable Tribunal suo motu directed that counsel should address it on:-
Whether, the Appellant, having filed his reply on 6th May 2019, the Appellant?s objection filed on 16th May 2019 is not unreasonably out of time as provided in Paragraph 53 (2) of FSEA 2010 (as amended).?

The Appellant informed the Honourable Tribunal that pleading closed on the 14th of May, 2019, as that was when the 1st and 2nd Respondents responses joined issues, on the objection raised in the Reply of the Appellant, was served on the Appellant.

Nevertheless, the Honourable Tribunal delivered its ruling on the 27th of May, 2019 wherein it dismissed and struck out the Appellant?s Preliminary Objection.
The Appellant is dissatisfied with the Ruling of the Tribunal below.

He filed a Notice of Appeal on the 3rd day of June 2019 encapsulating five Grounds of Appeal, shorn of their particulars.

The Appellant filed his brief of Argument on the 17th of June 2019. It is settled by AFAMEFUNA EKEKWE, ESQ.

The 1st and 2nd Respondents filed their brief of argument on the 21st of June 2019. It is settled by KEN AHIA, SAN.
The Appellant filed his reply on point of law to the 1st and 2nd Respondents brief of argument on the 3rd of July 2019.

On the 10th day of July 2019, the parties adopted their respective briefs of argument.

The Appellants proffered three (3) issues for determination from the Grounds of Appeal which are:-

1. Whether the Hon. Tribunal was right when it raised and held: over 10 days of filing Preliminary Objection is unpardonable (Grounds 1 & 4).
2. Whether the Hon. Tribunal was right when relied on 1st and 2nd Respondent affidavit and written address filed on 22/5/2019 filed in opposition to Appellant?s Objection whereas same never canvassed anything relating to reasonableness of time (Ground 2).
3. Whether the Hon. Tribunal erred in law when it showed a total misunderstanding of the proceedings inherent in Pre-hearing proceedings. (Ground 3 & 5).”

The 1st and 2nd Respondents proffered three (3) Issues for determination which are:-

i. Whether the Honorable Tribunal can raise an issue suo motu Ground one of the Notice of Appeal.
ii. Whether the Honourable Tribunal was right when it held that the Appellants Notice of Preliminary Objection filed on 22/5/2019 was not raised filed within a reasonable time ? Grounds Two & Three of the Notice of Appeal.
iii. Whether the Honourable Tribunal was right when it held struck out the Appellant?s Preliminary Objection during the period of pre-hearing ? Ground Four of the Notice of Appeal.”

I am of the view that the Respondents? issues for determination is an adoption of the Appellant?s issues for determination.

I shall determine this Appeal based on the Appellants issues for determination, which coalesces with issues 1 and 2 of the 1st and 2nd Respondents issues for determination.
I shall endeavour to cover the whole field relating to the respective issues.

ISSUE NO 1
The Appellant contends that the Preliminary Objection was filed two (2) days after the close of pleadings, and before the commencement of the pre-hearing session, and NOT at the close of the Preliminary session.

Therefore the application of Paragraph 53 (2) of the First Schedule to the Electoral Act is not only wrong, but also irrelevant to the Preliminary Objection filed by the Appellant.

That reliance of the Court below on Paragraph 53(2) FSEA was wrong, and that indeed the Appellant had taken no fresh steps in the proceeding after knowledge of the defect.

He submits that the 1st and 2nd Respondents filed their Reply to the Appellant?s Reply on the 11th of May 2019, and served same on the Appellant on the 14th of May 2019. That pleading is deemed closed when Appellant was served. That two days after 16th of May 2019, the Appellant filed his Preliminary Objection. ? six days before the pre-hearing session commenced.

Submits that the Court below failed to consider Paragraph 47 (1) of the First Schedule to the Electoral Act 2010 (as amended) which provides that:-
?No motion shall be moved and all motion shall come up at the pre-hearing session, except in extreme circumstances with the leave of Tribunal or Court.”

Submits that where objection is vide a motion, the objection can be heard and determined during pre-hearing session of an election petition vide Paragraph 47 (1) of First Schedule to the Electoral Act ? citing PDP v. INEC & 3 ORS (2012) 7 NWLR (PT. 1300) 539; AIRHIAVBERE v. OSHIOMHOLE & ORS (2012) LPELR 9824.

ISSUE NO 2
Learned counsel submits that the 1st and 2nd Respondents? counter affidavit and Written address dated 22/05/2019, did not raise at any point in time, or canvass issues relating to the purported late filing of the Appellant?s Preliminary Objection filed on the 16th of May 2019 ? Referring to Pages 2501 ? 2514 of the Record of Appeal.

That the lower Tribunal by raising suo motu the issue of the purported late filing which was never raised in the 1st and 2nd Respondents? Counter Affidavit, amounts to granting the 1st ? 2nd Respondents? Reliefs Sought in the Counter Affidavit.

Submits that Courts ought not to make an award to a party who has not made such claim.

That the 1st and 2nd Respondents never raised issues relating to reasonable time of filing Preliminary Objection, but rather that the Court made a case for the 1st and 2nd Respondents which has occasioned great miscarriage of justice.

That reasonableness of time was invented by the Court below, and not by the 1st and 2nd Respondents.

That the 1st and 2nd Respondents, having filed Counter Affidavit, and Written Address against the Appellant?s Preliminary Objection, has taken fresh steps in the proceeding after knowledge of the defect.

He submits that failure of the lower Tribunal to evaluate the Appellant?s application before it was unconstitutional. That all applications properly brought before a Court of law must be given a hearing and determined one way or the other, before the delivering of judgment. ? citing NALSA AND TEAM ASSOCIATES v. NNPC (1991) 8 NWLR (PT. 212) 652.

Submits that the Court below took over the petition, and invented defence for the 1st and 2nd Respondents which has occasioned miscarriage of justice.

ISSUE NO 3
The Appellant submits that failure of the Honourable Tribunal to pronounce on the impacting effect of the Preliminary Objection filed before the commencement of the pre-hearing session, amounts to pervasiveness, which has occasioned miscarriage of justice against the Appellant.

That the Appellant?s Preliminary Objection dated and filed on the 16th of May, 2019, was a mere embellishment, and a furtherance of the one filed on the 6th of May 2019 which was duly filed.

That the Honourable Tribunal f