Dr. Anny T. Asikpo & Anor V. Sen. Aloysius Etuk & Ors (2011)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)
The 1st Appellant of the Congress for Progressive Change (2nd appellant) lost election conducted by the 3rd Respondent on 9th day of April, 2011 into the Akwa Ibom North West Senatorial District to the 1st Respondent of the Peoples Democratic Party (2nd Respondent).
The 1st Petitioner polled 91, 172 votes while the 1st Respondent had 383, 607 votes and was declared by the 3rd Respondent as duly elected into the Senate. Other contestants were Joseph J. Ukpong of the ACN – 11, 827 votes; Corinth Emmanuel of the ANPP – 407 votes; Godwin Udo Young of the APGA – 336 votes and Alex Ubem Ekere of the LP -1,437 votes. Being aggrieved the Petitioners filed a petition before the National/State House of Assembly Election Tribunal, Uyo, Akwa Ibom State on 30/4/2011 predicated on various grounds challenging the declaration and calling for fresh election.
The 1st Respondent filed a Reply to the petition on 23/5/2011. The petitioner responded to that Reply on 04-06- 2011. The 3rd Respondent filed a Reply on 17/5/2011. The 2nd Respondent, being out time had applied and was granted leave by the Tribunal to file a reply. The Reply was filed on 25/5/2011. The petitioner filed a Reply in response to the 2nd Respondent’s Reply on 16/6/2011.
FACTS
The petition was initially being heard by the 1st Tribunal. The petitioners made an application on the 9th day of June, 2011 for the issuance of pre-hearing session. Forms TF007 and TF008 were issued and pre-hearing session commenced. However, due to over-congestion second Tribunal was established. This petition was transferred to the 2nd Tribunal on 11-07-2011. The second tribunal requested learned counsel to address on whether she could continue with the pre-hearing session since the application for the issuance of Forms TF007 and TF008 was founded on a letter dated 09-06-2011 and addressed to the Secretary of the Tribunal in view of the provisions of paragraphs 18 and 41 of the 1st schedule to the Electoral Act No.6 of 2010 as amended. Having heard argument from learned counsel the second tribunal held at page 1650 of the record of proceedings as follows:
“It is in the second circumstance that we find ourselves bound to dismiss this petition because it is deemed to have been abandoned as neither of the parties have applied or validly applied for the issuance of Form 007 as demanded by paragraph 18(1) of the 1st Schedule more than seven days after pleadings are deemed closed on or about 04-06-2011 and this tribunal is robbed of jurisdiction thereby. This petition is consequently dismissed for being abandoned under paragraph 18(4) of the 1st Schedule to the Electoral Act, 2010 (as amended). See Emesin V. Nwachukwu (1999) 3 NWLR (Pt.596) 590.”
When the Appeal came up for hearing on 5/10/2011, counsel adopted their client’s respective briefs of argument. The learned Counsel to the 3rd Respondent admitted being served the appellants’ brief on 19-09-2011. But the 3rd Respondent’s brief was filed on 30-09-2011 out of the five days stipulated by paragraph 12 of the Election Tribunal and Court practice Directions, 2011. Accordingly the 3rd Respondent’s brief is struck out.
ISSUES FOR DETERMINATION: APPELLANTS
The learned counsel to the Appellant identified five issues for determination couched in the appellant’s brief as follows:
“1. Whether the Tribunal was correct to have held that paragraph 18 of the First Schedule to the Electoral Act is constitutional and not inconsistent with the tenor and the spirit of Section 36 of the Constitution 1999 as to render the said paragraph 18 of the said schedule void. Please see grounds 15 and 17 of the Notice of Appeal.
- Whether the Tribunal was right to have struck out the Petitioners’/Appellants’ Affidavit filed on the 2/8/2011 without affording the Petitioners’/Appellants’ opportunity to be heard before striking out the said affidavit which was filed to bring to the notice of the Tribunal THE FACT that Form TF 007 was erroneously dated as 8/6/2011 instead of 9/6/2011 as the appellants’ application for the pretrial session was dated 9/6/2011 and it was upon the said application of the petitioner/Appellants dated 9/6/2011 that Form TF 007 was issued and served on self same 9/6/2011. Please see grounds 1, 2, 3 and 6 of the Notice of Appeal.
- Whether the Tribunal in the circumstances of this Appeal was correct to have dismissed the Appellants’/petitioners, petition on the ground that the pre-hearing session of the petition was irregularly commenced when there was no objection to any irregularity to the commencement of the pre-hearing session and the previous panel of the Tribunal and parties to the petition had taken several steps since the commencement of the pre-hearing session. Please see grounds 4, 8, 16 and 18 of the Notice of Appeal.
- Whether the Tribunal was correct in the circumstances of this case to have reviewed the entire proceedings of the previous panel of the Tribunal and set aside and declare as nullity, all the decisions of the said previous panel of the Tribunal on the ground that there was procedural defects in the proceedings of the previous panel of the Tribunal. Please see grounds 7, 9 and 13.
- Whether the Tribunal was correct to have held that a motion on notice (and not a letter) as contemplated by paragraph 47 is what is required under paragraph 18 (1) of the 1st schedule to initiate a pre-hearing session when the said paragraph 18 is a specific provision dealing with pre-hearing session while paragraph 47 is a general provision dealing with motions and Application generally. Please see grounds 10, 11, 12 and 14 of the Notice of Appeal.”
1ST AND 2ND RESPONDENTS’ ISSUES FOR DETERMINATION
The 1st Respondent reproduced verbatim the issues formulated by the appellants for determination. The 2nd Respondent distilled the following issues for determination:
“1. Whether on the state of facts in this case, the Honourable Tribunal was not right to have dismissed the petition as abandoned petition pursuant to paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended).
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