Arc Ezekiel Nya-etok & Ors v. Independent National Electoral Commission & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This appeal is against the decision of Akwa-Ibom State Governorship Election petition Tribunal delivered on 12th day of June, 2023 wherein the tribunal dismissed the petition for being incompetent.

The brief facts of the case is that on the 12th day of June, 2023 when petition No: EPT/AKW/04/2023 came up for hearing, the tribunal asked the appellants’ counsel if the provision of paragraph 2 of the First Schedule to the Electoral Act, 2022 was fully complied with and when counsel could not proffer convincing reason, the secretary to the tribunal was invited to clarify the issue of security for cost.

And after confirming that the petitioners paid only one million naira, the tribunal invited the respective counsel to address it on the issue which they did. In a bench ruling, the tribunal after reproducing the relevant provisions of paragraph 2(4) of the First Schedule of the Electoral Act, 2022 held at pages 546 – 547 of the record as follows:

The provision is with exactitude. In giving the wordings of legislation its ordinary and plain meaning, all what is required at this stage is to take no further proceeding in the petition. The circumstances of this petition is not an irregularity as learned counsel would like the tribunal to hold. In my humble view, it bothers on incompetence. As it is, there is no petition before us to proceed with.

The appellants were dissatisfied and hence filed a notice of appeal on 20/6/2023 containing two grounds of appeal, located at pages 550 – 556 of the record of appeal.

At the hearing of the appeal on 8/8/2023, A. A. Egene, Esq. adopted and relied on the appellants brief of argument filed on 26/6/2023 together with appellants reply briefs to the 2nd and 3rd respondents filed on 10th and 17th July, 2023 respectively in urging the court to allow the appeal. Chief O.E.B. Offiong, SAN leading other counsel adopted and relied on the 1st respondents brief filed on 14th July, 2023 to urge the court to dismiss the appeal.

Paul Usoro, SAN also leading other counsel adopted and relied on the 2nd respondents brief in urging the court to dismiss the appeal. In addition, counsel relied on the argument in support of the preliminary objection filed on 4th July, 2023. Prof. Tayo Oyetibo adopted and relied on the 3rd respondents brief filed on 4th July, 2023, to urge the court to dismiss the appeal.

He also relied on the argument in support of the preliminary objection filed on 14th July, 2023. Finally, E. B. Aigbe, Esq. adopted and relied on the 9th respondents brief filed on 5th July 2023 to urge the Court to dismiss the appeal. Both Messrs. I. S. Utuk and E. C. Okpaga for the 4th & 5th respondents and 6th and 7th respondent filed no brief and both would not be heard on this appeal.

In the appellants brief of argument the following two issues were formulated for determination of this appeal and these are:

1. Whether or not the trial court (Tribunal) was right when it dismissed petition number: EPT/AKW/GIV/04/2023 on the sole ground of inadequate payment of security for cost.
2. Whether the evidence before the trial court (Tribunal) establish a case of total non-payment of fees (security for cost) to warrant an order of dismissal.

On her part, the 1st respondent adopts the appellant issue 1 which was rephrased as follows:

Whether the tribunal was right when it dismissed the petition on the sole ground of inadequate payment of security of cost.

On the part of the 2nd respondent, a sole issue was formulated thus:

Whether the lower tribunal was right to dismiss the petition for failure to comply with mandatory provisions paragraphs 2 and 3(4) of the Electoral Act.