All Nigerian Peoples Party & Ors. V. The Resident Electoral Commissioner, Akwa Ibom State & Ors. (2008)

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IBRAHIM M. M. SAULAWA, J.C.A.

This is an appeal against the two separate rulings of the Governorship Election Petition Tribunal, Akwa Ibom State, holden at Uyo delivered on 25/10/07 and 07/11/07, respectively. The first ruling relates to the decision where by the lower tribunal dismissed the appellants’ petition, No. EPT/AKS/04/07, on the grounds of “a lack of preparedness” and “un seriousness of counsel to the 2nd and 3rd petitioners.” The second ruling on the other hand, relates to the decision whereby the lower tribunal struck out the 2nd and 3rd petitioners’ application dated 31/10/07, seeking an order to relist the petition hitherto dismissed by the lower tribunal on the said 25/10/07.

It is trite that on the 14/4/2007, the Independent National Electoral Commission (3rd respondent) had conducted gubernatorial elections in all the 36 States of the Federal Republic of Nigeria. In Akwa Ibom State, in particular, the 2nd and 3rd petitioners contested the said election under the platform of the 1st petitioner as Governorship and Deputy Governorship candidates. The 126th, 129th, 131st, 133rd, 135th, 137th and 139th respondents, equally contested the said election along with their deputies under the platform of the 128th, 130th, 132nd, 134th, 138th and 140th respondents, respectively.

At the conclusion of the election in question, the 126th and 127th respondents were declared winners and accordingly returned as duly elected Governor and Deputy Governor of Akwa Ibom State by the 1st, 2nd and 3rd respondents. Not unnaturally, the petitioners were dissatisfied with the results of that election. They accordingly filed their petition (No.EPT/AKS/04/07) on 14/5/07 in the lower tribunal seeking the following reliefs.

The relief sought:

1. A declaration that the 1st – 126th respondents’ failure, refusal and/or negligence to conduct the Governorship Election of April 14, 2007 and allowing genuine registered voters to cast their votes at the polling units in the 31 Local Government Areas of Akwa Ibom State as required by law was a frontal abuse and breach of the Electoral Act 2006 and a fundamental and an innate violation of the Constitution of the Federal Republic of Nigeria.
2. A declaration that the diversion, snatching, seizure and/or hijacking of the materials meant for conduct of the April 14, 2007 Governorship Election by the 18th respondents chieftains, members, supporters and/or agents for voting at private residences was a clear and disturbing violation of the Electoral Act 2006 and the Constitution of the Federal Republic of Nigeria 1999 and therefore illegal, null and void.
3. A declaration that the release of the materials meant for conduct of April 14, 2007 Governorship Election to the Chieftains, members, supporters and/or agents of the 128th respondent by the 1st – 125th respondents was a brazen and blatant violation of the Electoral Act 2006 and the Constitution of the Federal Republic of Nigeria 1999 and therefore illegal, null and void.
4. A declaration that the use of violence by the 128th respondent’s chieftains, members, supporters and/or agents during the election to harass, intimidate and scare away genuine registered voters from exercising their constitutional rights to vote at the election was a fundamental breach of the Electoral Act 2006 and a violation of the Constitution of the Federal Republic of Nigeria, 1999 and therefore illegal, null and void.
5. A declaration that denial of registered voters of their rights to vote at the election was illegal, unlawful, unconstitutional and a provocative violation of the Electoral Act 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
6. A declaration that the Governorship election held on April 14 was not conducted in compliance with the provisions of the Electoral Act 2006 and the Constitution of the Federal Republic of Nigeria, 1999 and is therefore incompetent, null and void and of no consequences whatsoever.
7. A declaration that the 126th respondent was constitutionally and legally not qualified to contest and or stand as a candidate in the Governorship Election of April 14, 2007 having been indicted of fraud, embezzlement and abuse of public trust by an Administrative Panel of enquiry set up by the Abia State Government and the Government White Paper thereon.
8. A declaration that the 3rd respondent as presently constituted in Akwa Ibom State is incapable of conducting and/or guaranteeing the conduct of a free and fair election devoid of bias.
9. An order of the tribunal nullifying the purported election conducted on April 14, 2007 by the 1st and 3rd respondents in Akwa Ibom State.
10. An order of the tribunal nullifying the purported election and/or return of the 126th respondent as the winner in the purported election conducted on April 14, 2007.
11. An order of the tribunal ordering or directing the 3rd respondent to immediately conduct a free and fair Governorship Election in Akwa Ibom State in accordance with the Electoral Act 2006 and the Constitution of the Federal Republic of Nigeria 1999 upon being served with the order of the tribunal.
12. An order of the tribunal ordering or directing the National Chairman of the 3rd respondent to reconstitute the top management of the 3rd respondent’s office in Akwa Ibom State in such a manner that will guarantee the independence, neutrality, impartiality, objectivity and fairness of the 3rd respondent in the conduct of the election and performance of its duties.
13. An order of the tribunal nullifying the candidate of the 126th respondent for the governorship election of April 14,2007 in view of his indictment by the Administrative Panel set up by the Abia State Government and the White Paper issued thereon.

Wherefore the petitioners pray that it may be determined.

(i) That the said Obong Godswill Akpabio (126th respondent) was not duly elected and/or returned at the election and that his purported election is void as per the facts contained herein and ought to be nullified.

It’s axiomatic that in the lower tribunal series of processes, including notices of preliminary objection, were filed by the respondents and accordingly deliberated upon and finally disposed off on 03/8/07. However, on 25/10/07, when the petition later came up for the continuation of the pre-hearing session, a letter endorsed by one J. U. Udom Esq. was received by the tribunal seeking an adjournment of the petition on the ground that the petitioners’ counsel, one Ndeayo Ndeayo had travelled to Abuja. Both Adeyele, SAN, counsel to the 95th and 96th respondents and E. O. Udoh Esq. counsel to the 1st petitioner, were opposed to the application. Instructively, the lower tribunal did not take kindly to the application for adjournment in question and thus held, inter alia, as follow:

On the 23rd October, this Tribunal as a result of an objection by the representative of the 1st petition with the consent of the counsel of both parties adjourned to today for continuation of the preliminary session.

The preliminary session itself commenced on the 21st August, 2007 and we have granted up to two extensions at the instance of the petitioners to conclude the hearing We are surprised that counsel to the petitioners at the last hearing who had consented to today for continuation or report of development and who had indicated the particular counsel that will be in court today has chosen to write to court to stall the pre-hearing session. In the first instance, because of the various adjournment and extension of pre-hearing sessions that had been occasioned by the petitioners, we are not inclined to grant this application. Secondly, we believe that the absence of the said counsel who had consented to today shows a lack of preparedness or failure to participate in good faith, especially as the said counsel knew that the pre-hearing session is due to end tomorrow. In fact, that the letter casually says we should adjourn to the 6th November, 2007 without any application for extension of time of the pre-hearing session before us shows the unseriousness of counsel to the 2nd and 3rd petitioners.

In the circumstance, we have no alternative than to invoke our powers under paragraph 3(11)(a) of the Practice Direction to dismiss this petition. This petition is therefore, hereby dismissed.

It was in consequence of the above ruling that the petitioners filed a motion on notice on 31/10/07, praying the tribunal for the following orders –

1. An order re-listing this petition, which was dismissed by this Honourable Tribunal on Thursday 25th October 2007.
2. An order further extending the pre-hearing session by 30 days from 26th October, 2007 to enable the tribunal hear and determine all applications which had been pending before the order of dismissal was made.

The motion on notice in question was supported by a 22 paragraphed affidavit and various annextures. It was, however, vehemently opposed by the respondents. At the conclusion of the hearing of the motion, the tribunal delivered a ruling thereupon on 07/11/07 and thereby refusing and striking out the petitioners’ application in question.

Thus, having been dissatisfied with the 2 rulings alluded to above, the petitioners have filed this appeal, which is predicated on 6 grounds of appeal and particulars thereof. It’s instructive to allude to the fact that, parties have filed and exchanged their respective briefs of argument. Most particularly, the appellants’ brief of argument was dated and filed on 14/12/07. In response thereto, the 95th and 96th respondents’ brief was dated and filed on 07/01/08. The 97th respondent’s brief dated and filed on 15/01/08 was however struck out for having been filed out of time. The appellants’ reply to 95th and 96th respondents’ brief of argument was dated and filed on 15/01/08. The said briefs were adopted by the respective counsel on 15/01/08, when the appeal came up for hearing.