Peoples Democratic Party V. Mr. Eyo Nsa Ekpo & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAH, J.C.A. (Delivering the Leading Judgment)

At the election into the House of Representatives for Calabar Municipality and Odukpani Federal Constituency held on 9th day of April, 2011 the Petitioner (now 1st Respondent\ Eyo Nsa Ekpo stood election with Nkoyo Esu Toyo along with five other candidates, namely Grace Ekpoanwan, Nelson Eyamba Co-co Bassey, Eyo Janet Onofiok, Joseph Bassey Eno and Baron Nsa Eyo. While the Petitioner who was sponsored by the Action Congress of Nigeria scored 7,213 votes, the 1st Respondent (now the 2nd Respondent) to this appeal was sponsored by the 4th Respondent (PDP) and credited with 23,295 votes.

He was subsequently declared the winner and returned as the duly elected candidate at the election. The Petitioner felt aggrieved and filed his petition on. 29th April, 2011. In he said petition No. EPT/CR/NA/3/2011, the 1st Respondent was the candidate who was declared winner by the Resident Electoral Commissioner of Cross River State, who was made 2nd Respondent. The Independent National Electoral Commission conducted the election and was joined as 3rd Respondent while the Peoples Democratic Party (PDP) was joined as 4th Respondent. The Petition was served on the 4th Respondent on 3rd May, 2011 who promptly entered appearance through Messrs Lexgiobal Partners on 6th May, 2011.

The 4th Respondent had 14 days from 6th May, 2011 to file its Reply but was unable to file the Reply until the time expired on 21st May, 2011. On 8th June, 2011 an application was filed on behalf of the 4th Respondent asking for extension of time to file its Reply. The Tribunal in its Ruling delivered on 9th June, 2011 refused to extend time and allow the 4th Respondent to file its Reply. Aggrieved with this decision the 4th Respondent appealed in its Notice dated 29th June, 2011 containing two grounds of appeal from which the Appellant distilled the following issue for determination:

Whether from the circumstances of this case, the materials before the Tribunal and the need to do substantial Justice and uphold the principle of fair hearing as enshrined in the Constitution the Appellant’s right to fair hearing was not breached by the lower Tribunal’s dismissal of the application for extension of time to file its Reply.

The Petitioner (now 1st Respondent) also formulated the following lone issue for determination:

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 8th June, 2011.

The 4th Respondent to the Petition will hereafter referred to as the Appellant while the Petitioner will be the 1st Respondent in the petition will be referred to as the 2nd Respondent in the appeal.

In the Appellant’s brief and oral argument of Mrs. Andem Ewa, SAN, learned Senior Counsel emphasized that the refusal by the Tribunal to allow the Appellant’s application for extension of time to file its Reply to the Petition amounted to denial of the Appellant’s right to fair hearing, moreso since the application was not being opposed by any of the respondents and further that 5 days after the refusal of the Appellant’s application, the Members of the Tribunal granted an application which had the effect of adding to the Petition without affording the Appellant an opportunity of consequential response. She argued forcefully that having filed a motion for extension of time to file its Reply simultaneously with a Reply dated 8th day of June, 2011, even though the Appellant was out of time to file the Reply by 18 days the need to do substantial Justice should have been uppermost in the mind of the Tribunal in exercising its discretion to grant the extension.

In the brief filed on behalf of the 1st Respondent and in oral argument, Mr. Balfantyne, learned counsel argued that petitions are sui generis and consequently the latitude allowed the Tribunal in exercise of its discretion in favour of parties to a petition is greatly curtailed. He analyzed Section 285(6) of the Constitution of the Federal Republic of Nigeria 1999 as amended and submitted that time is of essence in election petitions. He contended that contrary to the contention of the Appellant, the Right of fair hearing of the Appellant was not breached in any manner whatsoever because on its own election, the Appellant failed to avail itself of the 14 days granted by the Electoral Act, 2010 to file the Respondent’s Reply.

The Ruling of the Tribunal dismissing the application for extension of time to file the Reply to the petition is contained at pages 202 – 203 of the Records. At page 203 the Tribunal stated:-

“The proceedings in election petitions are essentially governed by time which ought to be judiciously utilized by the parties and the court. The reason given for failure to file the reply within the prescribed time is that the 4th Respondent was too busy to pay timely attention to the matter before this Tribunal.

This court cannot be seen to be aiding the 4th Respondent in his non-challance towards the petition. And we do not have the time to waste on account of the indolence of any party.”

In the affidavit in support of the motion for extension of time to file the 4th Respondent’s Reply out of time, Mr. Francis Ugochukwu Okoli deposed to the following facts in paragraphs 3, 4, 5 and 6:-