Action Congress Of Nigeria & Anor V. Peoples Democratic Party & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A (Delivering the Leading Judgment)

The Appellants, as Petitioners, filed their petition challenging the return of the 2nd Respondent by the Independent National Electoral Commission (INEC) as the winner of election conducted by it for the seat of Mkpat Enin State House of Assembly Constituency in the Akwa Ibom State House of Assembly. The election was conducted by INEC, 3rd Respondent, on 26th April, 2011. The Appellants filed their Petition on 19th May, 2011. The petition was originally before the Election Tribunal (Panel) No. 1. It was later moved to Panel No. 2 for hearing and determination to expedite its speedy determination.

The Petition, as earlier mentioned, was filed on 19th May, 2011. The 3rd Respondent was served on 25th May, 2011. The 1st and 2nd Respondents were respectively served on 18th June, 2011 and 20th June, 2011.

The 1st Respondent’s Reply to the petition filed on 1st July, 2011, was served on the petitioners/Appellants on 13th July, 2011. The 2nd Respondent filed his reply to the petition on 2nd July, 2011 and same was served on the Petitioners/Appellants on 7th July, 2011.

The 3rd Respondent filed their reply out of time on 8th June, 2011 and by leave of Panel No. 1 their reply filed on the said 8th June, 2011 was deemed filed and served on 21st June, 2011. They filed application for enlargement of time to file 3rd Respondent’s Reply because they failed to file their Reply within the 21 days allowed by statute. Leave granted to the 3rd Respondent was subsequently set aside by Panel No. 1.

It would appear that the Petitioners/Appellants had not, as at the time panel No. 2 took over their petition, applied for pre-hearing session and that the pre-hearing session had not commenced. It was in this state of affairs that the panel No.2 now seised of the Petition, suo moto raised two issues and asked the parties to address it on the two issues which are as follows:

“1. Whether the Tribunal has jurisdiction to proceed with the hearing of pre-trial session and the petition in view of the provisions of paragraphs 18 and 47 of the First Schedule to Electoral Act, 2010 (as amended).

2. Whether or not the Petition is to be deemed as having been Abandoned Having regard to the Provisions of paragraphs 18 and 47 of the 1st Schedule to the Electoral Act, 2010 (as amended).”

On 23rd July, 2011 the Parties agreed to exchange written address on the two issues. Parties duly exchanged written arguments. On 12th August, 2011, at the hearing on the two issues raised suo motu by the Tribunal, i.e. panel No. 2, the parties adopted their respective addresses and the Ruling was reserved to 19th August, 2011. On 19th August, 2011, the Tribunal (Panel No.2) ruled on the issues it formulated as above. It found that the Appellants/Petitioners were tardy or sloppy in prosecuting their petition; that time being of essence in election petition, it was wrong for the Petitioners or their counsel to await the direction of the Tribunal when the initiative was to be taken by the parties, particularly the petitioners, and that it was unreasonable for the Petitions to await at the pleasure of the 3rd Respondent in filing a reply when it was in the interest of the petitioners to be more diligent. At pages 267 to 269 of the main Record of Appeal the Tribunal observed:

“The factual situation of this petition is that:-

(a) The petition was filed on 19/5/2011

(b) The 1st Respondent was served with the petition on 18/6/2011

(c) The 2rd Respondent was served with the petition on 20/6/2011

(d) The 3rd Respondent was served with the petition on 25/5/2011

(e) The 1st Respondent filed a Reply to the petition on 2/7/2011 which was served on the petitioners on 13/7/2011.