Hon. Mkpanam Obo-bassey Ekpo & Anor V. Ngim Okpor Kanu & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The Resident Electoral Commissioner, Cross River State (2nd Respondent) and the Independent National Electoral Commission (3rd Respondent) conducted elections into the Biase State Constituency of the Cross River State House of Assembly on the 26th day of April, 2011. Hon. Mkpanam Obo-Bassey Ekpo (1st Appellant) of the Action Congress of Nigeria (2nd Appellant) polled 5,468 votes while Ngim Okpo Kanu (1st Respondent) of the Peoples Democratic Party (4th Respondent) secured 25,157 votes. Ikenga S. Amang polled 1,393 votes while Ikpe Bassey Ikpe had 3,030 votes.

The 2nd and 3rd Respondents returned the 1st Respondent as duly elected to represent the Biase State Constituency in the State House of Assembly, Cross River State. Being aggrieved the 1st and 2nd petitioners presented a petition before the National and State Houses of Assembly Election Tribunal holden at Calabar, Cross River State on 15-05-2011. Pleadings were filed and exchanged oral and documentary evidence was called by the parties.

Learned Counsel made written submissions before the Tribunal dismissed the petition on the 11th day of November, 2011 holding that the petitioners did not prove their case to be entitled to the relief they sought before the Tribunal. The appellants presented a Joint Notice of Appeal against the judgment of the Tribunal on 29-11-2011 followed by filing appellants’ Joint Brief of Argument on 09-12-2011.

The 1st, 2nd and 3rd Respondents filed their respective Briefs of Argument on 05-01-2012. The 4th Respondent did not file any brief of argument though served with all the processes of this Court. When the appeal came up for hearing on the 05-01-2012 learned Counsel appearing for the appellants and the 1st, 2nd and 3rd Respondents adopted their respective briefs of arguments.

Learned counsel to the 4th Respondent however intimated this court that a Notice of preliminary objection against the hearing of the appeal was fired on 19-12-2011. The ground of objection was trial through the 4th Respondent was served the Notice and Grounds of Appeal and the additional or supplementary records compiled by the Secretary of the Election Tribunal, this was not don within ten days as stipulated under the Electoral Act. That the supplementary records should be discountenanced. Learned Counsel referred to Paragraph 9 of the Election Practice Direction so 2011.

Mr. Ballantyne Esq. of counsel who appeared for the appellants responded that the duty of compiling and transmitting the record of proceedings of the Tribunal to the court of Appeal vested on the secretary of the Tribunal. Let me dispose of this preliminary objection by learned counsel to the 4th Respondent before adverting to arguments adumbrated in the substantive appeal.

Special provisions exist in the Election Tribunal and Court practice Directions, 2011 to be followed by appellants who being aggrieved by a judgment, decision or ruling of the Tribunal, have appealed and seeks that the record of, proceedings be compiled and transmitted to this court for the determination of the appeal. I shall reproduce the relevant provisions which are as follows:

“6. The Appellant shall file in the Registry of the Tribunal his notice and grounds of appeal within 21 days from the date of the decision appealed against.

(a) pay to the Secretary such fees as he may determine having regard to the bulk of therecord of proceedings which he shall compile;

(b) furnish as many copies as there are Respondents in addition to twenty (20) extra copies; and

(c) Pay a fee for service on all the Respondents. ”

Once the appellants have complied with the above provisions the Practice Directions, 2011 casts upon the Secretary of the Tribunal the following duties:

“8. The Secretary shall immediately upon the receipt of the notice of appeal, cause to be served on all the respondents, copies of the notice of appeal.