Dr. Friday Asukwo Etuk V. Hon. Samuel Okon Ikon & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A (Delivering the Leading Judgment)

Dr. Friday Asukwo Etuk of the Action Congress of Nigeria and Hon. Samuel Okon Ikon of the People’s Democratic Party and other candidates contested election into the Etinan State Constituency of the House of Assembly in Akwa Ibom State on 26th April, 2011. Dr. Friday A. Etuk polled 7,126 votes while the Hon. Samuel Okon Ikon had 16,744 votes. The 3rd Respondent (INEC) declared and returned the 1st Respondent as duly elected to represent the Constituency into the House of Assembly. Being aggrieved Dr. Friday Asukwo Etuk (petitioner) presented a petition to the state House of Assembly Election petition Tribunal, Uyo, Akwa Ibom State before Tribunal Number One on 16-05 -2011 seeking the following reliefs:

“(a) That it be determined that the 1st Respondent was not duly elected and that no erection took place in the affected wards and units in Etinan state Constituency on the 26th April, 2011.

(b) That it be determined that the purported election of the 1st Respondent on 26th April, 2011 was invalid by reason of corrupt practices and substantial non-compliance with the provisions of the Electoral Act, 2010 as amended and the said election was null and void.

(c) That it be ordered that a fresh election be conducted in Etinan State Constituency in accordance with the Electoral Act, 2010 (as amended). ”

Pleadings were filed and exchanged. Due to congestion, a second Tribunal was established and the petition was remitted to it for determination. Being seised of the petition the second Tribunal requested learned Counsel appearing for the parties to address the Tribunal on two issues namely:

“1. Whether the Tribunal has jurisdiction to proceed with the hearing of the pre-trial session of the petition and/or the petition in view of the provisions of paragraphs 18 and 47 of the 1st Schedule to the Electoral Act, 2010 (as amended).

2. Whether the Tribunal can hear and determine the motion on notice filed on 16-07-2011 by Counsel to the petitioner in view of the provisions of paragraphs 18 and 47 of the 1st Schedule to the Electoral Act, 2010 (as amended). ”

Having heard addresses from learned Counsel the Tribunal held at page 1075 to 1076 of the printed record as follows:

“It is our view that with the state of things, this petition is deemed abandoned. This Tribunal does not have jurisdiction to hear and determine the motions filed by the petitioner on 16-07-2011 and 19-06-2011. The fact that the former panel of this Tribunal took steps in this petition is of no moment. Proceedings before it was null and void. ”

The Tribunal declined jurisdiction; treated the Petition as abandoned and dismissed same on the16-08-2011. This appeal was filed by the petitioner on 01-09-2011 with three grounds.

Parties filed their respective briefs of argument and adopted same when the appeal came up for hearing on the 05-10-2011.

In the appellant’s brief filed on 14-09-2011 the following issues were set down for determination by this court to wit:

“1. whether the Tribunal was right when it held that the Petitioner’s Reply to the 1st Respondent’s

Reply filed on 04-07-2011 was one day outside the five day period required under paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 as amended which led to a wrong conclusion that the petition was abandoned and dismissed it.