Peoples Democratic Party V. Mr. William Ballantyne & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: (Delivering the Leading Judgment)

This is an interlocutory appeal against the ruling of the National and State House of Assembly Election Tribunal, holden at Calabar, Cross River State,(hereinafter called the election tribunal) delivered on 8th June, 2011.

The notice of appeal to this Court contained two grounds of appeal. The reliefs sought by the appellant from this Court are reproduced below:

“(i) An order of this Honourable court setting aside the Ruling of the National and state House of Assembly Election Tribunal delivered on 8th June, 2011 in Petition No. EPT/CRN/NA/2/2011 (Mr. Ballantyne vs Honourable Essien Ekpenyong Ayi & 3 Others)

(ii) An Order of this Honourable court granting the Appellants’ Motion for Extension of time to file its Reply filed on 30th May, 2011, in the Registry of the National And state House of Assembly Election Tribunal, Calabar.

(iii) An order of this Honourable Court directing that Petition No. EPT/CR/NA/2/2011 (Mr. William Ballantyne vs Honourable Essien Ekpenyong Ayi & 3 Others) be heard by a different Election Tribunal to be constituted by the President of the Court of Appeal.”

The brief facts of the case are as follows. On 28th April, 2011, the 1st respondent herein as the petitioner, filed his petition before the election tribunal, whereat he challenged the election and return of the 2nd respondent herein, by the 3rd and 4th respondents herein who conducted the said election. The 2nd respondent was declared as the duly elected member of the Federal House of Representatives, representing Calabar South, Akpabuyo Bakassi Federal Constituency of Cross River State, during the election for the said seat held on 9th April, 2011.

The 1st respondent sought for invalidation and nullification of the election and return of the 2nd respondent, coupled with a declaratory order disqualifying the 2nd respondent and the order that a fresh election be conducted in respect of the contested seat. The 1st respondent also prayed in the alternative for a declaration that he scored the highest number of votes cast in the said election and was thus validly elected, with an order directing the 4th respondent herein to issue a certificate of return to the 1st respondent herein.

The appellant herein, Peoples Democratic Party was the 4th respondent before the election tribunal. Appellant was served with the 1st respondent’s petition on 3rd May, 2011. Appellant caused a memorandum of appearance to be filed on its behalf on 10th May, 2011. The appellant has 14 days, with effect from the date of service within which to file its reply to the petition. Thus, appellant herein has up till 17th May, 2011 within which to file its reply.

On 30th May, 2011, the appellant filed an application by way of motion on notice, with a 10 paragraph affidavit in support, praying the election, tribunal for extension of time within which to file its reply to the petition, with the deeming order in respect of clean copies of the said reply annexed to the motion paper. A written address was equally filed in amplification of the reliefs sought from the election tribunal.

On 8th June, 2011 the learned counsel for the appellant herein, moved/argued the aforedescribed motion for extension of time within which to file their reply to the petition. The election tribunal considered the said motion and dismissed the same in its ruling delivered on the same date. The election tribunal’s short ruling thereon is reproduced below:

“The Electoral Act 2010 gives the Tribunal 180 days from the date of filling of the petition to deliver its judgment. The 4th Respondent has been given 14 days to file his reply by the same Act. He has failed to do so. Extension of time within which to perform an act provided for in the Electoral Act should be based on sound and convincing reasons bearing in mind the time constraints within which the Tribunal operates and the fact that prudent management of time by parties and the Court are the features which give election petition its sui generis nature.

From the averments in the supporting affidavit the petition was served on the 4th Respondent on 3rd May, 2011 and the motion for extension of time was filed on 30th May, 2011; (27) days after service of the petition on the 4th Respondent. (Bracket added).

We expect counsel to take into consideration the limitation of time within which the Tribunal operates in complying with the rules for filing the reply.