Chief (Hon.) Bassey Etim Edet V. Dr. Esio Oquong Udo & Ors. (2003)

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OKWUCHUKWU OPENE, J.C.A. 

On

the 12/4/03, there was a National Assembly election and the appellant, Chief Bassey Etim Edet, a candidate of All Nigeria Peoples Party (ANPP) contested the seat for Oron Federal Constituencey, Akwa Ibom State while the 1st respondent a candidate of the Peoples Democratic Party (PDP) and other candidates also contested the election and at the end of the election the 1st respondent was declared elected. It was as a result of this that the appellant filed an election petition at the Election Tribunal holding at Uyo, Akwa Ibom State challenging the election of the 1st respondent.
On 17/6/03, the petition was struck out by the Tribunal. Dissatisfied with the said ruling the appellant has appealed to this court.

The appellant filed two notices of appeal on 30/6/03 and 4/7/03, respectively.
On 8/9/03, the counsel for the 3rd -5th respondents filed a Motion on Notice praying this hon. Court for the following reliefs:
“An order dismissing the appellant’s appeal for want of diligent prosecution on the part of the appellant.
And for such further order or orders as this Hon. Court may deem fit to make in the circumstances.

The motion was supported by a 10 paragraph affidavit and the most relevant paragraphs are:
“3. That the petition was filed on the 9th of May, 2003, and that the Ruling was delivered on the 17th of June, 2003.

4. That the appellant/respondent filed two Notices of Appeal on 30th June, 2003 and 4th July, 2003, respectively.

5. That the appellant has not taken any steps to process a Record of Appeal for this appeal.

6. That the appellant failed to file his brief of argument within the period of five (5) days prescribed by the Rules of Court.

7. That till date, the appellant has not filed is (sic) appellant’s brief.

8. That the appellant is not ready to prosecute this appeal.

9. That it is in the interest of justice to grant this application.

It is most surprising to observe that despite these weighty facts deposed to in the affidavit that the appellant did not deem it necessary to file a counter-affidavit and contradict or challenge those facts.

It is settled law that where facts provable by affidavit evidence are duly deposed to in an affidavit by a party to a suit, his adversary has a duty to controvert those facts in a counter-affidavit if he disputes them otherwise such facts may be regarded as duly established. See: Long John vs. Blakk (1993) 6 NWLR (Pt.555) 524 and Ajomale v. Yaduat (No.2) (1991) 5 NWLR (Pt.191) 266.

At the hearing of this motion, Mr. Abang, the learned counsel for the appellant said that on the issue of not filing a counter-affidavit that he was making his submission on point of law, that the court should take judicial notice that their brief of argument was filed within time, that they were served on 6/8/03 and that they filed their brief of argument within 5 days. He also argued that the Secretary of Tribunal’s inability to compile the records within time should not be visited on his client and that the case of Buhari vs. Yusuf (2003) 14 NWLR (Pt.841) 446 is not applicable to the instant case.
In respect of payment of deposit which is a condition for prosecution of the appeal he said that the money was paid differently for the two appeals and within 10 days and that they have no power over the Registrar who should record the payment. He urged that application be dismissed.