Legalpedia Citation: (2023-08) Legalpedia 04417 (CA)

In the Court of Appeal

Holden At Abuja

Thu Aug 10, 2023

Suit Number: CA/ABJ/EP/SHA/RV/12/2023

CORAM

Abdul-Azeez Waziri JCA

Habeeb Adewale Olumuyiwa Abiru JCA

Muhammed Lawal Shuaibu JCA

PARTIES

UBANI KELECHI KENETH

APPELLANTS

1. NWANKWO SYLVANUS ENYINNA
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant who is the petitioner at the Tribunal challenges the 3rd Respondent’s declaration and return of the 1st Respondent as the winner of the Election of the office of the member, Rivers State House of Assembly Representing Omuma State Constituency. That during the pre-trial conference, the tribunal allotted two (2) weeks to the petitioner to prove his case but the hearing was characterized by intermittent adjournments at the instance of the tribunal as a result of which the petitioner’s witnesses could not be accommodated on the 14th, 19th, and 22nd of June, 2023 agreed upon for hearing the petition. Thus, only PW1, PW2 and PW3 testified.

At the resumed hearing on the 7th July, 2023, counsel for the 1st Respondent raised an objection that the Appellant’s counsel can no longer call any witness having exhausted the two (2) weeks provided by paragraph 41 (10) (a) of the First Schedule to the Electoral Act, 2022 to prove his case. The Tribunal upheld the objection of the 1st Respondent’s counsel.

Aggrieved by that decision, the Appellant filed the instant appeal.

HELD

Appeal allowed

ISSUES

Whether the ruling of the Tribunal foreclosing the Appellant deprived the Appellant of his right to fair hearing?

RATIONES DECIDENDI

PETITIONER – TIME FOR A PETITIONER TO PROVE HIS CASE IN CASE OF COUNCIL CHAIRMAN AND STATE HOUSE OF ASSEMBLY

The relevant provisions of Paragraph 41 (10) (a) of the Frist Schedule to the Electoral Act emphatically provides that:-

(10) The petitioner shall in proving his case shall have in case of

(a) Council Chairman and State House of Assembly two weeks”

​Furthermore, the provisions of paragraph 45 (1) and (2) of the said Frist Schedule to the Electoral Act, 2022 empowers the Tribunal to extend time of doing any act or taking any proceedings even where such application is not made until after the expiration of time appointed or allowed. – Per M. L. Shuaibu, JCA

ELECTION PETITIONS – NATURE OF ELECTION PETITIONS AND CONDUCT OF COURTS IN ELECTION PETITIONS

There is no doubting the fact that election matters are time-bound and provisions fixing time for taking any steps, inclusive of time of hearing election petition are strictly construed to emphasize that time is of essence in election matters. – Per M. L. Shuaibu, JCA

ELECTION – THE ESSENCE OF TIME IN ELECTION MATTERS

I have elsewhere in this judgment reproduced the pertinent Paragraph 41 (10) (a) of the First Schedule to the Electoral Act 2022 and also highlighted the sacred nature of election matters, particularly as it relates to the essence of time. Thus, any party that sets out to play off its time at the Tribunal cannot and must not be tolerated. Likewise, it is the duty of the tribunal to ensure and assure justice to all the parties before the Tribunal. See TUESDAY & ANOR V. ADEJIDE & ORS (2029) LPELR – 48058 CA. Also in NYONG V. ETENE & ORS (2011) LPELR – 4264 (CA); it was held that a tribunal can ill afford the luxury of granting extension upon frivolous excuses that are not well-founded or grounded. Thus, a party who has decided to adopt a lackadaisical attitude in election proceedings must have himself to blame for the consequences.– Per M. L. Shuaibu, JCA

FAIR HEARING – MEANING OF FAIR HEARING AND THE DUTY OF COURTS TO UPHOLD THE PRINCIPLE OF FAIR HEARING IN ADJUDICATION

The provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) emphatically states that in the determination of person’s civil rights and obligations, including any question or determination by or against any government or authority, the person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manners as to secure its independence and impartiality. In UKWUYOK V. OGBULU (2019) 15 NWLR (PRT 1015) 305 AT 225-327, the Supreme Court held inter alia that fair hearing consists of the whole hearing and the true test of a fair hearing is the impression of a reasonable man who was present at the trial whether from his observation justice has been done in the case. Furthermore, fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties in the litigation… I repeat, for the umpteenth time that the principle of fairness is sacrosanct in our judicial system and it must as a matter of constitutional obligation be observed by a judicial umpire. – Per M. L. Shuaibu, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022

 

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