Usani Uguru Usani V. Donald Duke & Ors. (2005)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE, J.C.A.

I must admit painfully that this matter has suffered a terrible chequered history. The case was twice before the National Assembly/Governorship and Legislative Houses Election Tribunal Calabar. This is also the second time the matter is coming before the Court of Appeal.

It goes like this: There was an election petition in respect of the National Assembly/Governorship and Legislative Houses Election pending. The petition was in respect of the Governorship election of the Cross River State, held on the 19th of April, 2003 at the Election Tribunal, sitting at Calabar hereinafter referred to as the lower tribunal.

That petition was actually filed by one Usani Uguru Usani, who contested the same Governorship election under the platform of New Democrats (N.D.) and lost. He contested together with Mr. Donald Duke, who contested under the platform of the Peoples Democratic Party (P.D.P.) At the close of the Election, the Independent National Electoral Commission (INEC) declared Mr. Donald Duke the winner of the said election. The petitioner in that Tribunal insisted that the respondents were wrong in returning Mr. Donald Duke at the said election, since he, the 1st respondent, was not qualified to even contest the said election. The petitioner, consistently claimed to have a right to be returned or elected at the said election.

It is to be noted that what actually prompted the presentation of this petition was the declaration by the 2nd – 21st and 24th respondents of Mr. Donald Duke as the winner.

The petitioner being dissatisfied with the declaration, filed a petition to the 1st election Tribunal, sitting at Calabar, challenging the return of Mr. Donald Duke, the 1st respondent as elected.

After the rudimentary proceedings appeared to be settled giving way to the hearing in earnest of the petition the petitioner then filed a motion on notice containing two prayers, namely:

(a) Stay of proceedings of the Tribunal; and

(b) Leave to appeal against the earlier ruling of the Tribunal on the 1st of July, 2003.

The 1st respondent’s Counsel objected to the granting of those prayers. The Tribunal upheld the objection and refused to grant the said prayers on 7/7/2003. Consequently, the 1st respondent’s Counsel applied to move its pending motion dated 17/6/2003 for an order striking out the petition on the ground that the petitioner had withdrawn his candidacy even before the election was conducted.

The petitioner, the respondent in that application, who filed no counter affidavit to the application, sought for an adjournment which was turned down. There and then the learned Counsel for the petitioner Dr. Tony Ukam, orally applied to bow out from the Tribunal’s proceedings. This was also refused on account of failure by the petitioner to come by formal application to withdraw his representation of his client and for lack of due notice to his client of that line of action.

The 1st respondent’s application was then moved and granted whilst the petitioner’s counsel left the court un-ceremoniously and later filed an appeal against the ruling of the Tribunal delivered on 7/7/2003 to the Court of Appeal.

The panel of the Court of Appeal came down to Calabar and heard the appeal. Judgment was delivered in which it unanimously agreed with the petitioner’s counsel and allowed the appeal and ordered for hearing de novo by a reconstituted Tribunal. Hon. Justice Amina Augi J.C.A. who delivered the leading judgment on 5/11/2003 held thus:

” … The end result of the foregoing is that the appeal succeeds and is allowed. The decision of the Tribunal striking out the petition in its ruling delivered on the 7th day of July 2003, is declared null and void and it is hereby set aside. The petition is remitted to the Tribunal to be re-constituted by the President of this court for hearing de novo.”