Prince Cletus Kpekon & Anor V. Maurice Pronen & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A (Delivering the Leading Judgment)

On the 29/09/201, I dismissed this appeal and reserved reasons for my decision. I now give reasons for my decision in this appeal.

The 1st Appellant herein was a contestant in the election into the House of Representative for Khana/Gokana Federal constituency seat held on the 9th April 2011 under the platform of the 2nd Appellant, a political party registered in Nigeria. The 1st Respondent also contested the said election under the platform of the 2nd Respondent, also a political party registered in Nigeria.

The 3rd Respondent is the body responsible for conducting National Elections in Nigeria and it conducted the election which gave rise to this appeal.

At the end of the elections aforesaid, the 1st Respondent was declared winner and was accordingly returned as the elected member representing Khana/Gokana Federal Constituency.

The Appellants are dissatisfied with the declaration and return and therefore filed a petition at the National and state House of Assembly Election Tribunal on the 1st May, 2011, challenging the result of the election. The 1st and 2nd Respondents filed their reply within 21 days after they were served with the petition.

The 3rd Respondent did not file a reply within the prescribed period and therefore brought an application on the 7th July 2011 for extension of time to file its reply and to deem its reply which was filed on the 22nd of June 2011 as properly filed and served. While this motion was pending, the 1st Respondent by an application dated and filed on the 13th of July 2011 sought for the following reliefs:

“1. An order granting leave to the 1st Respondent/Applicant to move this motion on notice before the pre-hearing session.

2. An order dismissing this petition as abandoned.

The grounds for the application to dismiss the petition as set out in the 1st Respondent’s application are as follows:

1. The petitioners have failed to comply with the express provisions of paragraph 18(1) of the First schedule 10 the Electoral Act 2010 as amended.
2. The Respondents have also failed to comply with paragraph 18(3) of the First schedule of the Electoral Act 2010 as amended.
3. In the premises of grounds 1 and 2 above this petition is abandoned.
4. Non-compliance with paragraph 18(1) and (3) of the Electoral Act 2010 strips this Honourable Tribunal of the jurisdiction to hear and determine this petition.”

upon hearing learned counsel for parties to the petition in this application, the Tribunal found the application meritorious and therefore dismissed the petition on the ground that the petitioners failed to comply with the relevant provisions of paragraph 18[1] of the 1st schedule to the Electoral Act 2010 as amended. It is against the ruling that the Appellants have brought this appeal. Their notice of appeal dated 18th August 2011 contains one ground of appeal which I reproduce hereunder without its particulars as follows

“The Honourable Tribunal erred in law when it dismissed the petition on the ground that the petitioner failed to file pre-trial application within time.”

Parties filed and exchanged briefs of argument. At paragraph 2.1 of the Appellants’ brief of argument dated and filed on the 2nd September 2011, Mr. N.H. Ajie, learned counsel for the Appellant, who also settled the Appellants, brief of argument formulated three issues for determination of this appeal. These issues read as follows:-

“[a] whether the refusal of the lower Tribunal to hear and determine the motion of the 3rd Respondent for extension of time did not occasioned [sic] a miscarriage of justices in this case?

[b] whether the motion of the respondent for dismissal of petition was competent same having no valid affidavit supporting the motion?