Ekereobong Udo Afia & Anor V. Godwin Otn Charlie & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, JCA (Delivering the Leading Judgment)

This is on appeal against the judgment of the Tribunal holding at Uyo Akwa Ibom delivered on the 16th August, 2011. The Appellant was the Petitioner at the Tribunal. The 1st Respondent contested with the 1st Appellant for the Onna State Constituency. The 1st Respondent was returned as the winner of the election held on 26th April, 2011.

Being dissatisfied, the Appellant as petitioner presented his petition on 18th May, 2011 challenging the return of the 1st Respondent.

The learned counsel to the 1st & 2nd Respondents filed a notice of Preliminary objection on 27th July, 2011. The preliminary objection was that

1. ” the petition was incompetent having been filed outside the period stipulated the by S. 134(1) of Electoral of Act 2010 ( as amended).
2. that this Hon. Tribunal lacks jurisdiction to entertain the petition serve having been filed in contravention of S. 84 (1) of the Electoral Act 2010 (as amended).”

In a considered judgment, the Tribunal held as follows that the Petitions filed outside the stipulated period prescribed by the constitution was statute barred. Tribunal declared the petition as incompetent and consequently struck it out. Being dissatisfied, the Petitioner/Appellant filed a notice and 2 Grounds of Appeal. The Appellants’ filed their Appellants brief on the 19th September, 2011 and articulated 2 issues for determination as follows:

(1) Whether the Tribunal below was right in hearing and granting a motion outside of the pre-trial session when the motion was filed and moved without leave of the tribunal? (Distilled from ground 1)

(2) Whether oral evidence is admissible to prove that a document is wrongly doted?

(Distilled from ground 2)

The 1st and 2nd Respondents filed their 1st and 2nd Respondents brief on 5th October, 2011 and deemed properly filed and served on the 11th October, 2011 vide an order of the same day.

In his brief the learned counsel for the 1st and 2nd Respondent articulated one issue f or determination as follows:

“Whether or not the Tribunal below rightly or wrongly struck out this petition in the circumstances of this case having found that same was filed 21 days allowed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2010, (as amended)?”.

The main issue in this appeal is as articulated by the counsel for the 1st & 2nd Respondents. This issue is one based on jurisdiction, “whether the Tribunal had jurisdiction to hear this appeal filed on 18th May, 2011”.

The Appellant counsel failed to come to court but informed the Registrar that he had filed his Appellant’s brief and should be taken as argued.

The learned counsel to the 1st and 2nd respondents submitted as in his notice of preliminary objection that the petition filed on 18th May, 2011 was filed outside the period envisaged by S. 134 (1) of the Electoral Act 2010 (as amended). He referred the court to Forms EC 8 E (1) for Onna State Constituency at page 175 of the Record of proceedings.