Hon. Fabian Okpa V. Chief Alex Irek & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The Independent National Electoral Commission (2nd Respondent) conducted elections into the Cross River State House of Assembly for Obubra One State Constituency on the 26th day of April, 2011. Hon. Fabian Okpa (Petitioner) contested under the platform of the Peoples Democratic Party while Chief Alex Irek (1st Respondent) was fielded by the Action Congress of Nigeria. On 26th day of April, 2011 the 2nd Respondent returned the 1st Respondent as the duly elected member of the Cross River State House of Assembly to represent the constituency.

The 2nd Respondent credited 7198 votes to the 1st Respondent and 6882 votes to the petitioner. George Afara Ofutet of the All Nigeria Peoples Party polled 72 votes while Castro Ezama of the Labour Party had 17 votes. Being aggrieved the petitioner presented his petition before the National and State House of Assembly Election Petition Tribunal holden at Calabar, Cross River State on 19th day of May, 2011, praying for the following reliefs:

“1. A DECLARATION that the petitioner is the person who scored the majority of lawful votes cast in the election conducted for the Obubra 1 State Constituency on the 26th and 28th of April, 2011 and ought to have been returned elected.

2. A DECLARATION that the return of the 1st Respondent by the 2nd Respondent is illegal, unlawful, null and void being contrary to the provisions of the Electoral Act, 2011.
3. A DECLARATION that the election in the polling units as enumerated in paragraph 28 was void because of irregularities and malpractices.
4. A DECLARATION that the election in the Polling units where electoral irregularities took place was void, having been conducted in substantial non-compliance with the Electoral Act, which affected the result of the election.
5. AN ORDER directing the 2nd Respondent to issue Certificate of return to the petitioner in respect of the election into Obubra 1 State constituency held on the 26th and 28th of April, 2011, as he was the winner of the election.”

IN THE ALTERNATIVE:

AN ORDER directing the 2nd Respondent to conduct a rerun election in the polling units where elections were voided by illegalities and irregularities. ”

The 1st Respondent’s Reply was filed on 05-06-2011. The petitioner replied on 10-10-2011. The 2nd Respondent’s Reply was filed on 14-06-2011. Upon exchange of pleadings the petitioner applied to the Tribunal for the issuance of Form TF007 for the commencement of pre-hearing conference by letter. The Tribunal acceded to the application and issued Form TF007 and TF008 which were served on the 1st Respondent. The hearing notice was dated 22nd June, 2011. Before this Court learned Counsel admitted being served the said forms. Nevertheless on 02-07-2011 learned Counsel to the 1st Respondent brought an application praying for an order that the Tribunal should set aside the hearing notice and dismiss the petition for failure of the petitioner to comply with the provisions of paragraph 18(1) and 47(2) of the 1st Schedule to the Electoral Act, 2010 (as amended) the grounds being that the application should have been made by motion on notice.

That the petitioner did not even file any application by way of motion for the issuance of Forms TF007 and TF008 as contemplated by the combined provisions of the said paragraphs. The motion prayed that the issuance of the said Forms by the Secretary of the Tribunal without the express order of the Tribunal be declared null and void and of no effect. The Respondents prayed that the Tribunal should determine that by virtue of the provisions of paragraph 18(4) of the 1st Schedule to the Electoral Act, 2010 as amended the petition had been abandoned.

The petitioner on the other hand filed an application on 7th day of July, 2011 praying for leave of the Tribunal to regularize the application made to the registry by the petitioner for issuance of pre-hearing information sheets to parties and for a deeming order on the grounds that the petitioner had sufficiently complied with the provisions of paragraph 18(1) and (2) of the 1st Schedule to the Electoral Act, 2010 (as amended). Paragraphs 1-9 of the affidavit of Michael Afara, Esq one of the Counsels for the petitioner deposed on 07-07-2011 read as follows:

“1. That I am one of the lawyers in the firm of solicitors for the petitioner in this matter by virtue of which I am conversant with the facts herein deposed to.

2. That the petitioner had applied for and got prehearing notices issued on all the respondents by the registry of this honourable tribunal.
3. That all the parties have filed and served their answers to the questions contained in the pre-hearing information sheet.
4. That it was later discovered that applications for issuance of pre-hearing notices ought to be by motion on notice to other Parties.
5. This application is to regularize the application that was made to the registry of the Tribunal instead of being made in open Court, giving the other side, an opportunity to react.
6. The application, when made in open court is usually granted as a matter of course as no party ever opposes the grant of the order for the issuance of pre-hearing information sheets.
7. That no legal challenges were raised in the answers by the parties on the method of application, but the petitioner desires to regularize the process.
8. The defect in not coming by motion in our application to issue hearing notice is a mere irregularity, which can be regularized by this honourable court in its inherent and equitable jurisdiction.
9. That it is in the interest of justice to grant this application and the respondent will not be prejudiced by the grant of same.”

Paragraphs 1 to 6 of the counter-affidavit of the 1st Respondent deposed to on 15-07-2011 read as follows:

“1. I am the 1st Respondent herein and very conversant with the facts of this case.

2. I have read the affidavit of the applicant in support of his motion to regularize his administrative letter to the registry for the issuance of pre-hearing notice.
3. Paragraph 7 of the affidavits incorrect as it was stated in my pre-hearing answer sheet that I was going to file an application to dismiss the petition on grounds that the pre-hearing application has not been made in accordance with the rules. I have filed the said application.
4. Mathew Ojua, Esq, of Counsel informed me and I verily believe him that contrary to the averments in paragraphs 6 and 8 of the affidavit, the defect in failing to file a motion on notice is fatal to the petition.
5. I am further informed and I believe that the failure to comply with the rules has drained the Tribunal of its jurisdiction to entertain the petition.
6. I swear to this affidavit in good faith believing the contents to be true and correct and in accordance with the Oaths Act, 2004.”

The Tribunal heard argument from Counsel on the 9th day of August, 2011 and held at page 260 lines 17 to page 261 lines 1-8 as follows:

“A combination of paragraphs 18 and 47(2) of the 1st Schedule to the Electoral Act and Okereke v. Yar’adua (2009) NWLR (pt.1100) 95 at 118 is to the effect that within seven days after close of pleadings the Petitioner shall apply by motion to the Tribunal for issuance of prehearing information sheet and where he fails to comply with these requirements the petition shall be dismissed without the opportunity of extending time to file the said process or relistment of the petition.