Prince Ebitimi Amgbare & Anor V. Chief Timippre Sylva & Ors. (2007)

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SULEIMAN GALADIMA, J.C.A.

This is an appeal against the Ruling of the GOVERNORSHIP AND LEGISLATIVE HOUSES ELECTIONS TRIBUNAL sitting at YENAGOA, BAYELSA STATE, delivered on 14/6/2007 granting the 2nd to 7th Respondents enlargement of time to file a reply and refusing an application to bar them from defending the Appellant’s Petition.

The facts leading to this appeal are hereby briefly stated. On 12/5/2007 the Petitioners now the Appellants dissatisfied with the return of the 1st respondent by the 2nd Respondent (INEC) filed their petition which was served on the 2nd – 7th Respondents on 14/5/2001. On 8/6/2007 the Petitioners forwarded an application requesting the issuance of pre-hearing Notice and accordingly the Tribunal issued the said hearing Notice and fixed 14/6/2001. When the 2nd – 7th Respondents had not entered appearance and/or filed a reply as prescribed by law, against the petition served on them on 14/5/2007, based upon this the petitioners filed an application to bar the respondents. By their motion on Notice dated 4/6/2007 and filed on 13/6/2001 copied at pages 172-73 of the Record, the 2nd – 7th respondents sought for an order of the lower Tribunal to file their Reply to the petition and a deeming order.

On the 14/6/2007, the Tribunal entertained the application for enlargement of time to file a Reply and the application to bar the 2nd – 7th Respondents. In its considered Ruling the Tribunal granted the application for enlargement of time and deeming the Reply filed so properly filed and then refused the application to bar the 2nd – 7th Respondents from defending the petition.

Being dissatisfied with the Ruling of the Election Tribunal, the Petitioners filed the instant appeal resting initially on two grounds and one additional ground. The said Petitioners (hereinafter referred to as the Appellants) formulated the following three issues as calling for determination:

1. Whether the Tribunal was right to have enlarged time for tire 2nd – 7th respondents to file their reply out of time and to deem the reply already filed as properly filed. (Arising out of ground 1)
2. Whether the Election Tribunal was right in refusing the Petitioners’ application to bar INEC, the 2nd – 7th Respondents from defending the petition having granted the application enlarging time for the 2nd – 7th respondents. (Arising out of ground 2).
3. Whether from the circumstances of the case the Tribunal acted judicially and judiciously in the exercise of their discretion to grant the enlargement of time to the 2nd – 7th respondents to file their reply to the petition out of time. (Arising out of ground 3).

However on 6/7/2007, the Appellants deemed it necessary to file a Reply Brief of argument essentially in response to the 2nd – 7th Respondents’ Preliminary objection challenging the right of the Appellants to appeal against the decision of the lower Tribunal.

The 1st Respondent in his brief of argument gave Notice of Preliminary objection that the appeal be dismissed on the ground that the Appellants do not have a right of appeal. Having regard to the Preliminary objection and the grounds of appeal the 1st Respondent submitted the following two issues for determination in this appeal:

“1. Whether the Appellants have a right of appeal against the decision of Election Tribunal delivered on 14th June, 2007 in this case.

2. Assuming, but without conceding that the Appellants have a right of appeal, whether the Election Tribunal was not right in granting the 2nd – 7th Respondents and enlargement of time to file their reply to the petition and consequently refusing the Appellants’ application to bar the 2nd – 7th Respondents from defending the petition on the ground that they failed to file their reply within time.”

On the other hand, the 2nd – 7th Respondents similarly filed Notice of preliminary objection that the appeal be struck out on the ground that in view of the provision of section 241 (2)(a) of the 1999 Constitution, the Appellants have no right of appeal against the decision of the lower Tribunal granting an unconditional leave to the 2nd – 7th Respondents to defend the petition. That since the appeal rose from an interlocutory decision which is founded on the exercise of the Lower Tribunal’s discretion, the grounds of appeal constitute grounds of mixed law and fact which cannot be made the subject of an appeal without leave of the lower Tribunal or this Court.

When this appeal came before us for argument on the 11th of July, 2007 MIKE OKOYE ESQ, learned counsel for the Appellants referred to, adopted and relied on the Appellants’ Brief of argument dated and filed on 25/6/2007 and the Reply Brief dated and filed on 6/7/2007. Both were adopted. He submitted that he has argued the three issues together because they are interrelated. Referring to paragraphs 7(2) and 9(1)(a) of the First Schedule to the Electoral Act 2006, learned counsel submitted that where a respondent does not file memorandum of appearance as prescribed under paragraph 9 of the 1st Schedule of the Act, within the time prescribed under paragraph 7(2) of the 1st schedule as prescribed the non-filing of the memorandum of appearance shall not bar the respondent from defending the petition, if the respondent files a reply to the election petition in the registry not later than 21 days from the receipt of the Election petition in the Tribunal registry. But from paragraphs 10(1) and 10(2) of the said Schedule to the Act, it could be seen that a respondent is barred by operation of law for failure to comply with the prescription of the law. It is contended that in so far as a respondent fails to comply with the mandatory provisions of paragraph 9(1)(a) of the Schedule, the operation of paragraph 10(2) of the Schedule should commence by operation of law to bar such a respondent from defending an election petition if his reply is not filed in compliance with the stipulated time prescribed by paragraph 10(2). That the grant of enlargement of time to file a reply would not bring such a reply within the purview of paragraph 10(2) of the 1st Schedule such as to make a reply to be filed not later than 21 days of the receipt of the petition. That it is when the respondents have complied with the provisions of paragraph 9 of the Schedule that the provision of paragraph 12(1) of the said Schedule will come into play for the operation of 14 days.

It is therefore submitted that since 14 days prescribed by paragraph 12(1) shall start to operate from the date of the entry of appearance as prescribed in paragraph 9(1) there would be no time therefore for which a Tribunal can enlarge for the respondents to file a reply because the issue of reply as prescribed by paragraph 12(1) can only come into operation when paragraph 9(1) has been complied with.

It is submitted that the enlargement of time even if at the discretion of the Tribunal ought to be exercised judicially and judiciously based on the facts before a court of law.

TAYO OYETIBO, SAN, learned Senior counsel for the 1st Respondent also adopted and relied on his client’s Brief filed on 3/1/2007. He has drawn our attention to the fact that he has filed a separate motion containing two prayers in the alternative. The motion challenges the competence of the appeal from the lower Tribunal granting an enlargement of time to 2nd – 7th Respondents to file their reply to the petition and right of appeal. It is submitted that the right of appeal to this court from the lower Tribunal is exclusively governed by the provision of Section 246(1)(b) of the 1999 Constitution and that three conditions must be met, namely:

(i) There must have been a decision;