Godswill Obot Akpabio & Ors V. Senator John James Akpanudoedehe & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The Independent National Electoral Commission conducted election into the office of Governor of Akwa Ibom State on the 26th day of April, 2011. Godswill Obot Akpabio contested the election to the office on the platform of the Peoples Democratic Party, his Deputy being Mr. Nsima Ekere. Senator John James Akpanudoedehe contested the same with his Deputy Dr. Imeh Sampson Umanah all of the Action Congress of Nigeria. At the close of voting the Independent National Electoral Commission declared Godswill Obot Akpabio and Mr. Nsima Ekere of the Peoples Democratic Party of Nigeria as having scored the highest number of lawful votes cast at the election, namely, 957,585 votes as against 163,449 polled by Senator John James Akpanudoedehe and Dr. Imeh Sampson Umanah of the Action Congress of Nigeria.

The commission returned Godswill Obot Akpabio and Mr. Nsima Ekere as Governor and Deputy Governor respectively of Akwa Ibom State. Irked by this declaration Senator John James Akpanudoedehe, Dr. Imeh Sampson Umanah and the Action Congress of Nigeria (Petitioners) presented a joint petition before the Governorship Election Petition Tribunal holding at Uyo, Akwa Ibom State on the 16-05-2011 seeking the nullification of the election and return of the Governor and his Deputy on diverse grounds. The Respondents filed replies and subsequently brought an application that the petition should be struckout for procedural defects. The Tribunal heard arguments and struckout the petition. The ruling of the Tribunal was affirmed by the Court of Appeal, Calabar Division.

There was a further appeal to the Supreme Court by the petitioners. On 14th November, 2011 the Supreme Court allowed the appeal and remitted the petition to the Tribunal that it may be determined on the merit. When the matter came back to the Tribunal the Respondents brought another preliminary objection on the grounds that the 180 days stipulated for the hearing of petitions under section 285(6) of the constitution of the Federal Republic of Nigeria, 1999 as altered had expired. That the Tribunal had no jurisdiction to continue with the hearing. Arguments were heard from learned counsel to the parties. On the 7th day of February, 2012 the Tribunal dismissed the preliminary objection on the grounds that the panel was bound by the decision of the Supreme Court to hear the petition on the merit.

Aggrieved with the ruling the Respondents lodged an appeal to the Court of Appeal, Calabar Division on 08-02-2012 containing three grounds followed by Appellants’ Brief of Argument filed on 21-02-2012. Only one issue was set down for determination by this court in the Appellants’ Brief of Argument to wit:

“Whether the decision of the Tribunal of the 7th February, 2012, assuming jurisdiction over the petition filed on the 16th April, 2011 was not erroneous regard being had to the clear and unambiguous provisions of Section 286(6) of the constitution of the Federal Republic of Nigeria, 1999 (as Amended)?”

The learned Counsel to Senator John James Akpanudoedehe, Dr. Imeh Sampson Umanah and the Action Congress of Nigeria hereinafter referred to as the “1st-3rd Respondents/Petitioners” filed a Joint Brief on 23-03-2012. With leave of Court it was deemed properly filed and served on 27-03-2012. They set down the following lone issue for determination:

“Whether the Tribunal was right in dismissing the Appellants’ Notice of preliminary objection dated 6th January, 2012 on the ground that section 285 (6) of the Constitution as interpreted in consolidated cases of Shettima V. Goni; and PDP V. CPC Appeal Nos.352/2011; SC-333/2011 delivered on 31-10-2011 did not consider a situation where an appellate Court finds it expedient to send back to the Tribunal a Petition to be heard on the merit. This issue is derived from grounds 1, 2 and 3 of the Notice of Appeal.”

CA/C/NAEA/GOV/30/2012

The learned Counsel to the 1st-3rd Respondents/appellants raised a preliminary objection to the hearing of this appeal at pages 5-7 of their Joint Brief on the grounds that this appeal has become an academic exercise. This prompted the learned Senior Advocate of Nigeria, namely, Chief Bayo Ojo SAN to file Appellants’ Reply Brief on 27-03-2012 in order to respond to the issues raised by learned Counsel to the 1st-3rd Respondents. The peoples Democratic Parry (4th Respondent) and the Independent National Electoral Commission (5th Respondent) differently represented by Counsel, did not file any Brief of Argument. So far are the facts of Appeal No. CA/C/NAEA/GOV/30/2012.

CA/C/NAEA/GOV/30/2012

In Appeal No. CA/C/NAEA/GOV/30/2012 Senator John Akpanudoedehe, Dr. Imeh Sampson Umanah and Action Congress of Nigeria hereinafter referred to as “the Appellants” filed Notice of Appeal on 01 -03 -2012 challenging the ruling of the Tribunal of 20-02-2012 in suo motu striking out the petition on the grounds that in line with the judgment of the Supreme Court in ANPP V. Goni & Alhaji Kashim Shettima & Anor V. Alhaji Mohammed Goni & 3 Ors in Appeals No.SC1/28/2012 and SC/2/20/2012 the Tribunal had no jurisdiction to continue hearing the petition. Ten grounds of appeal accompany the Notice of Appeal. The Appellant filed a brief of argument on 15-03-2012 setting forth six issues for determination. They are couched as follows;

“i. Whether the Tribunal was right when it suo motu, struck out the petition without affording the Appellants any opportunity to be heard on the matter (Distilled from Ground 1 of the Notice of Appeal.)

ii. Whether the Tribunals construction and conclusion that Section 255(6) of the Constitution of Federal Republic of Nigeria (as amended) divests it of jurisdiction is correct and modifies the fair hearing requirement within a reasonable time under section 36(1) of the constitution of Federal Republic of Nigeria (as amended) (Distilled from Ground 5).