Legalpedia Citation: (2023-07) Legalpedia 17933 (CA)

In the Court of Appeal

KADUNA JUDICIAL DIVISON

Fri Jul 7, 2023

Suit Number: CA/K/EP/HR/KD/09/2023

CORAM

Hamma Akawu Barka JCA

Balkisu Bello Aliyu JCA

Ebiowei Tobi JCA

PARTIES

1. HON MUHAMMAD GARBA DATTI
2. ALL PROGRESSIVE CONGRESS (APC)

APPELLANTS

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. ABDULLAHI SADIA ANGO

RESPONDENTS

AREA(S) OF LAW

APPEAL, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The brief facts that generated the instant appeal arose when on the 25th of February, 2023, 1st Respondent conducted nationwide elections, including that to the Federal Houses of Assembly. 1st Appellant and 2nd Respondent amongst others contested for the House of Representative into the Sabon Gari Federal Constituency, kaduna state and the 2nd Respondent was declared winner and returned as duly elected for the above named Constituency. The Appellant was dissatisfied with the declaration of the 2nd Respondent, and consequently filed a petition on the 25th day of March, 2023 challenging the said return on the grounds that the election was invalid by reasons of substantial non-compliance with the provisions of the Electoral Act, 2022 and Guidelines for the conduct of the 2023 General Elections and that 2nd Respondent did not score majority of the lawful votes cast at the election. On having been served with the petition on the 20th of March, 2023, the 2nd and 3rd Respondents entered a conditional appearance, and subsequently filed a joint 2nd and 3rd Respondents reply to the petition on the 12th of April, 2023.

On the 6th day of May, 2023, the Appellants sought for order of the Tribunal striking out the 2nd and 3rd Respondents reply to the petition for being incompetent and invalid having been filed beyond the 21 days allowed by Paragraph 12 (1) of the 1st Schedule to the Electoral Act, 2022 because one of the parties (2^nd Respondent) to the joint reply was out of time to file the reply.

This interlocutory appeal seeks to throw a challenge to the ruling of the National and States Houses of Assembly Election Petition Tribunal delivered on the 19th of June, 2023 which was passed in favor of the Respondents.

HELD

Appeal allowed

ISSUES

Ø Whether the trial Tribunal erred in law when he held that the 3rd Respondent was within time to file its reply to the Petition and held further relying on Paragraph 49 of the 1st Schedule to the Electoral Act 2022 that the 3rd Respondent cannot be prevented from relying on the said reply in opposition to the petition?

Ø Whether the trial Tribunal erred in law when it deemed as properly filed and served 3rd Respondent’s reply to the petition dated the 9/4/2023 and filed on the 12/4/2023, when clearly there is/was no such process as 3rd Respondent’s reply to the petition filed at or before the trial Tribunal?

RATIONES DECIDENDI

JOINT REPLY – EFFECT OF A JOINT REPLY WHERE ONE OF THE PARTIES IS OUT OF TIME

The question becomes pertinent in view of the findings by the Tribunal that whereas from the date of service of the petition on the 2nd and on the 3rd Respondents varied with the 2nd Respondent now stated to have filed his reply out of time, and the 2nd and 3^rd Respondents still within time, but filed a joint reply?

Incidentally this same scenario reared its head in our earlier unreported judgment delivered on the 5th of July, 2023, in Appeal with No. CA/K/EP/HR/KT/06/2023. Precisely at page 16 of the said judgment, I took the view that:

“What is the purport of the joint reply filed by the two respondents, perchance, it is held in view of the fact that 2nd Respondent’s gauging from the time of service and reply filed same outside the 21 days stipulated by the rules? I am inclined to accept the view expressed by the learned senior counsel that the joint filing of the reply of the 2nd and 3rd Respondents, cannot be separated, for if one may ask, should it even be taken that the reply by the 3rd Respondent was validly filed, while that of the 2nd respondent was filed out of time. Is it possible to separate the reply with respect to the 2nd Respondent and that which pertains to the third Respondent in view of the fact that even though the two of them are deemed to be defending separate petitions by dint of Paragraph 49 of the 1st Schedule, the filing of a joint reply remains inseparable, and should the filing be defective through the act of one of them, that virus must inescapably affect the reply deemed to be that of the competent party. In other words, the argument of the learned silk to the effect that if the 3rd Respondent had no reason to apply for extension of time, upon the simple reasoning that his reply is covered by the time frame. I wholly agree that where it is adjudged that one of the joint parties has an incompetent reply, that defect violates the entire process, and since by their own showing the 3rd Respondent reply brief was admittedly filed out of time, the aggregate effect is that the entire joint reply brief is that filed out of time. See Chukwu & Ors vs. Ude Okoye & Ors (2015) LPELR – 40711 (CA) per Ogunwumiju JCA as he then was. From the foregoing, I accept the submission of the learned senior counsel, that the act of joinder in the reply brief by the 3rd Respondent joining the 2nd Respondent seriously contaminated the entire joint reply, and I so hold.” – Per H. A. Barka, JCA

CASES CITED

STATUTES REFERRED TO

1.  Electoral Act, 2022
2. INEC Guidelines for the conduct of the 2023 General Elections

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