Hon. Barrister Joseph Effiong Etene V. Hon. Saviour Okon Nyong & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the National and State Houses of Assembly Elections Tribunal sitting at Calabar, (hereinafter to be called Lower Tribunal) delivered on the 11-11-2011 in election petition No.EPT/CR/SA/3/2011 presented by the Appellant before it. The Appellant had questioned the election conducted by the 2nd Respondent for the Bakasi State constituency, on the 26th April, 2011 and for which it declared and returned the 1st Respondent as the winner of the election.

At the trial of the petition the statements on oath of the Appellant’s witnesses were adopted by them but on the objection by the Respondent on ground of non-compliance with the provisions of Section 13 of the oath’s Act, the statements on oath were rejected by the Lower Tribunal and marked accordingly. Thereafter, the Lower Tribunal dismissed the Appellant’s petition for want of evidence and the Appellant successfully challenged that decision in this court which in consequence, ordered that the petition be retried on the merit. This appeal is from the decision of Lower Tribunal after the retrial with which the Appellant was dissatisfied.

Two Notices of Appeal were filed by the Appellant on the 28-11-2011 and 29-11-2011, each containing Seven (7) grounds which are materially the same and from which three (3) issues were distilled in the Appellant’s brief filed on the 02-12-2011. The issues are thus:

“1. Whether the Tribunal has the jurisdiction to delve into matters of pre-election and use some to decide the petition? (Ground 1, 3, 5, & 6 of the Grounds of Appeal).

2. Whether the Tribunal was right in rejecting the evidence of the appellant and his witnesses on the ground that the written statement on oath did not comply with Section 13 of the Oaths Act? (Ground 2)
3. Whether if the answer to issue 2 is in the negative, the pleadings and evidence not being challenged or controverted, the Appellant was not entitled to judgment from the Tribunal, failing which the Court of Appeal by virtue of Section 15 of the Court of Appeal Act, is empowered to so do (Ground 7, 4). ”

Being also dissatisfied with a part of the decision by the Lower tribunal, the 1st Respondent filed a notice of cross appeal on the 28-1 1-201 I containing a lone ground.

The 1st Respondent’s brief was filed on the 06-12-2011 in which three (3) issues were set out on page 3 thereof as issues for determination in the appeal and cross appeal.

The 2nd and 3rd Respondents also filed their brief of argument on the 07-12-2011 in which they put out the three (3) issues formulated in the Appellant’s brief of argument as the issues for determination. The brief of argument has no paging or pagination.

In reaction to the Respondents’ briefs of argument, the Appellant filed the Appellant’s Reply brief to 1st Cross Respondent brief on the 09-12-2011 and the Appellant’s Reply brief to the 2nd and 3rd Respondents’ brief on the same date.

At the oral hearing of the appeal on the 05-01-2012, the aforenamed briefs of argument were adopted by the learned Counsel for the parties as their respective submissions in support of their positions in the appeal. The learned SAN for the Appellant Mr. Joe Agi had applied to withdraw the Notice of Appeal filed on the 28-11-2011 and in the absence of any objection from any of the learned counsel for the Respondents; the said Notice of Appeal is hereby struck out for being withdrawn. Since all the issues raised by the learned counsel for the Respondents to the appeal are substantially the same with those submitted by the learned Senior Counsel for the Appellant, I intend to decide the appeal on the issues as set out in the Appellant’s brief and then deal with the 1st Respondent’s issue on the Cross appeal.

I had on the 07-01-2012 summarily given my decision dismissing this appeal for lacking in merit and reserved the reasons for so doing for a later date which is today. I intend to review briefly, the submissions of counsel for the parties on the issues submitted for determination in the appeal and then state the reasons why the appeal is wanting in merit.

The Issue I raised and canvassed by the learned SAN for the Appellant is whether the Lower tribunal has jurisdiction to delve in to matters of pre-election and use same to decide the petition. The submissions on the issue are to the effect that the Lower tribunal had no jurisdiction to determine the issue of boundary adjustment, which was decided by the Federal High court, the court that had the requisite jurisdiction to do so. Reference was made to pages 212-213 of the record of appeal containing portions of judgment appealed against and the case of OBASANJO V. YUSUF (2004) 9 NWLR (877) 144 AT 183 AND 213. It was further argued that the issue of boundary adjustment was not before the Lower tribunal which on the authority of DADA v. BANKOLE (2008) 5 NWLR (1079) 26 AT 47-48 was confined to the issues raised by the parties before it. That the decision on boundary adjustment was perverse and we were urged to so hold. In addition that the decision of the Federal High court on boundary adjustment was binding until set aside by a competent court, relying on the Supreme Court case of AGBOGUNLERI v. DEPO (2008) 3 NWLR (1074) 217 AT 233-234. We were finally urged on the issue to hold that the Lower tribunal proceeded on a path that was uncalled for.

The above issue was argued as the Issue I in the 1st Respondent’s brief and the arguments are that the Lower tribunal did not determine the adjustment of boundaries in its judgment but rather was concerned with the Appellant’s contention that the votes cast in Ikang North, South and Central Wards were votes cast in Bakassi State Constituency and that it had the jurisdiction to determine if that was correct.

Learned counsel had conceded that the constitutionality of the Cross River State Law No.7 of 2007 was not an issue raised before the Lower tribunal and that the law had adjusted the boundary of Bakassi and Akpabuyo Local Government Areas.