Action Congress Of Nigeria & Anor V. Independent National Electoral Commission & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Lead Ruling)

Following the decision by the Supreme Court in the case of Marwa v. Nyako & Ors. consolidated appeals No. SC/141/2011, SC/266/2011, SC/267/2011, SC/282/2011, SC/356/2011 and SC/357/2011, delivered on the 27th day of January, 2012. The 1st Respondent, had conducted election for the office of the Governor of Cross River State on the 25th day of February, 2012. The 1st Appellant had participated in the election by sponsoring the 2nd Appellant who contested for the office of the Governor.

The 4th Respondent had contested the said election on the platform of the 3rd Respondent and at the end of the election; the 1st and 2nd Respondent had declared and returned the 4th Respondent as duly elected to the office of the Governor of Cross River State. Being aggrieved by the said declaration and return, the Appellants presented an election petition before the Governorship Election Petitions Tribunal sitting at Calabar, (to be called the tribunal hereafter) challenging the return.

After trial, the tribunal delivered its judgment on the 17th day of July, 2012 dismissing the Appellants’ petition as lacking in merit.

Dissatisfied with the dismissal of their petition, the Appellants filed a notice and grounds of appeal against the judgment of the tribunal on the 6/8/2012.

The present motion by the 4th Respondent was filed on the 3/10/2012 seeking a sole relief as follows:

“1. An Order Dismissing Appeal No. CA/C/NAEA/181/2012 filed by the 1st and 2nd Appellants for being statute (sic) barred.”

The relief was also premised on the single ground, ” That the appeal has been caught up by the provisions of section 285 (7) of the constitution of the Federal Republic of Nigeria 1999 (as amended), as the time or period allowed the Court of Appeal to hear and dispose of the appeal from the judgment of the tribunal has since lapsed.”

The motion is supported by an initial affidavit of five (5) paragraphs deposed to by a legal practitioner in the chambers of the learned SAN for the 4th Respondent. Annexed to the affidavit was a written address in support of the motion. A further affidavit of six (6) paragraphs deposed to by another legal practitioner in the chambers of Mba E. Ukweni and Associates was filed on the 17/1/13 in support of the motion.

The 1st Appellant’s counter affidavit was filed on the 17/1/13 along with a written address. Other parties to the appeal did not file any affidavit or written addresses in respect of the motion.

At the hearing of the motion on the 18/1/13, Mr. Paul Erokoro, SAN, leading other counsel for the 4th Respondent, adopted and relied on the written address filed along the initial affidavit as his submissions in support of the motion. He also relied on the further affidavit filed and urged us to hold that the appeal is no longer live due to effluxion of time under the provisions of section 285 (7) of the Constitution since it was not determined within the 60 days stipulated therein. He cited the additional authorities of Ogboru v Oduaghan (2012) 11 NWLR (1311) 367; Ikenya v PDP (2012) 12 NWLR (1315) 493; Shettima v Goni (2011) 18 NWLR (1279) 413 and ANPP v GONI (2012) 7 NWLR (1208) 147 on the interpretation and application of the provisions of section 285 (7) of the constitution in support of the motion.

Lazarus A. Izabi-Undie, Esq., learned counsel for the 1st Appellant, adopted and relied on the both the 1st Appellant’s counter affidavit and the written address filed along with it and urged us to dismiss the motion. He said the counter affidavit was not challenged by the 4th Respondent and so the facts deposed therein are deemed to have been admitted by him and established. Learned counsel contended that the authorities cited in support of the motion are in applicable because the facts are not the same as no issue of fraud was alleged in them. He specifically referred to paragraph 6.07 to 6.08 of his written address and urged us to hold that the appeal is not statute barred.

Prof. Tony Ukam, Esq., learned counsel for the 2nd Appellant said although they did not file a counter affidavit in the motion, he aligned himself to the position of the 1st appellant. He then cited Amaechi v Inec (2008) 5 NWLR (1080) 2323 at 254 and Fidelity Bank v Monye (2012) 10 NWLR (1307) 1 at 10 on what he called “Calendar and Regulatory days” in relation to the period of time limited by the provisions of section 285 (7) of the Constitution for the determination of an appeal from the decision of an election tribunal, by this court. Learned counsel argued that the appeal has not expired due to effluxion of time as the Appellants have suffered a legal injury for which they were not responsible and should have a remedy. He urged us to dismiss the motion.

Learned counsel for the 1st and 2nd Respondents; Mr. O. Anumonye, Esq. said he does not oppose the motion and referred to the case of CPC v PDP cited in the 4th Respondent’s written address at page 514, paragraph G on the application of the provisions of Section 285 (7) of the Constitution.