Olusegun Adebayo Oni V. Dr. John Olukayode Fayemi (2007)

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JUMMAI HANNATU SANKEY, J.C.A.

The Appellant herein is the 1st Respondent in an Election Petition pending before the Governorship and Legislative Houses Election Tribunal holding at Ado-Ekiti. In the election conducted into the office of Governor of Ekiti State on the 14th April, 2007, he contested for the seat along with several other candidates including the 1st Respondent to this application, Dr. John Olukayode Fayemi. The Appellant was the Peoples Democratic Party candidate in the said election while the 1st Respondent was the Action Congress candidate. At the end of the election, the 2nd Respondent declared the Appellant duly elected as the Governor of Ekiti State. The 1st Respondent, being dissatisfied with this declaration, filed an Election Petition at the trial Tribunal, (hereinafter called the Tribunal), on the 11th May, 2007, wherein he sought certain reliefs on diverse grounds as set out exhaustively at pages 1-205 of the Record of Appeal. The Appellant duly entered an appearance and filed his Reply to the Petition. Thereafter, the 1st Respondent equally filed his Reply to the Reply of the 1st Respondent/Appellant herein. On the 18th June, 2007, the Appellant filed an

application seeking the leave of the Tribunal to file certain documents referred to in the Repiy to the Petition, enlarging time within which to do this and deeming the said documents as having been duly filed and served. The motion was supported by an 11 paragraph affidavit giving reasons for his tardiness. No counter affidavit was filed to controvert the averments in the Applicant’s affidavit by any of the Respondents. However, the 1st Respondent objected to the application on point of law. Written submissions by Counsel were filed in respect of the application. The Tribunal took arguments on the motion on the 3rd July, 2007, and on the 9th July, 2007, delivered its Ruling dismissing the application mainly on the ground that the Appellant failed to disclose any exceptional circumstance to entitle him to the orders sought. Dissatisfied with this Ruling, the Appellant has appealed to this Court on eight Grounds. The Grounds of Appeal, shorn of their particulars, are as follows:

GROUND ONE

The learned Chairman and members of the Tribunal erred in law and breached the Appellant’s right to fair hearing by dismissing his application to enable him bring in documents that would enable him defend the petition.

GROUND TWO

The Learned Honourable Chairman and members of the Tribunal erred in law when they held as follows:

“By the provisions of paragraph 4(8) supra this court has jurisdiction to file some documents. However, there is a condition attached to paragraph 4(8) Directions supra. The conditions attached to paragraph 4(8) Directions supra are that an applicant must show “exceptional circumstances”. The Electoral Act 2006 is silent about what “special circumstances” is. “special circumstance therefore is something that is beyond the ordinary. It is a question of fact which can not be tied to any particular case. It is not a question of law, being a question of fact what amount to special circumstances will be determined upon the facts presented before a court”

GROUND THREE

The Learned Chairman and members of the Election Tribunal erred in law when they failed to consider the provisions of paragraph 43 to the 1st schedule of the Electoral Act 2006 in the determination of the Appellants application for extension of time to file his documents.

GROUND FOUR

The Learned Chairman and members of the Election Tribunal erred in Law and thereby misconceived the nature of the Appellant’s application before them when they held that the Appellant ought to establish exceptional circumstance before the Appellant’s application for extension of time to file documents would be granted.

GROUND FIVE

The Learned Chairman and members of the Tribunal erred in law and misconceived the nature of the Appellant’s application before them when they held thus;