Ibanga Sunday Stephen Ibanga & Anor. V. Independent National Electoral & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the Governorship Election Tribunal holden at Uyo, Akwa Ibom State, contained in the ruling delivered on 14th July, 2011 wherein the tribunal dismissed the petition of the appellants on the ground that the petition has been abandoned pursuant to Paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as amended).

The appellants were dissatisfied with the decision and filed their notice of appeal on 18th July, 2011 containing three grounds of appeal. The appellants as 1st and 2nd petitioners filed Election Petition No. EPT/AKS/GOV/08/2011 at the Governorship Election Tribunal, Uyo, Akwa Ibom State on 4th May, 2011 in respect of the election for the office of the Governor of Akwa Ibom State conducted by the 1st respondent and held on 26th April, 2011 and at the end of which the 1st respondent declared the 2nd respondent as the elected Governor.

The record of appeal shows that upon service of the petition on them, the 1st respondent, filed his reply on 23rd May, 2011, the 2nd respondent’s reply was filed on 2nd June, 2011; 3rd respondent filed its reply on 31st May, 2011. The 4th to the 15th respondents did not respond to the petition.

The petitioners (hereinafter called the appellants) filed answer to the reply of 1st, 2nd and 3rd respondents on 3rd June, 2011 and 8th June, 2011 respectively whereby pleadings closed on 15th June, 2011.

By the letter dated 15th June, 2011 signed by Livinus Udofia Esq., (Solicitor) as learned counsel for the appellants and addressed to the Secretary, Election Petition Tribunal, Uyo, the appellants applied that pre-trial forms be issued and the petition be set down for pre-trial and subsequent hearing. See page 210 of the record of appeal. “Hearing Notice for Pre-Hearing Session” dated 16th June, 2011 were issued for service on the petitioners, as the 1st, the 2nd and the 3rd Respondents by which they were required to attend the tribunal on 5th July, 2011 at 9.0’clock in the forenoon for a pre-hearing session and for the purposes set out therein.

However, the 2nd respondent filed a motion on notice at the tribunal on 30th June, 2011 for an order dismissing the petition in its entirely on the grounds that:

“1. The Petitioners are required to apply for the issuance of pre-hearing notice in Form TF007 within 7 days after the filling and service of the close of pleadings.

2. Paragraph 47(2) of the Electoral Act 2010, as amended makes it mandatory for all applications authorized to be made to the Tribunal to be made by motion supported by an affidavit.
3. The time within which an application (as known to the Electoral Act) 2010 (as amended) can be made for issuance of form TF 007 in this petition has lapsed.”

By the motion on notice dated 4th July, 2011 and filed same day, the appellants prayed the tribunal for the following orders:

“i. AN ORDER extending the time within which the petitioners/applicants may apply to the Tribunal for pre-hearing notice to issue.

2. AN ORDER deeming the pre-hearing notice (Form TF 007) already issued by the Secretary of the Honourable Tribunal as having been properly issued.
3. AN ORDER deeming the pre-hearing information sheet (FORM TF 008) already filed by petitioner’s solicitor as having been properly filed and served.”

The two motions stated above came up for hearing on Tuesday, 5th July, 2011 and at the proceedings, the learned counsel for the appellants applied and withdrew the motion filed on 4th July, 2011 and same was accordingly struck out while hearing in respect of the 2nd respondent’s motion was adjourned to 7th July, 2011. Meanwhile on 6th July, 2011 the appellants filed a counter-affidavit to the affidavit in support of 2nd respondent’s motion. The tribunal took arguments of the parties on 7th July, 2011 and delivered its ruling thereupon on 14th July, 2011. The tribunal found merit in the 2nd respondent’s application and dismissed the petition as having been abandoned.

In respect of this appeal the appellants’ brief of argument was settled by Livinus Udofia Esq., as their learned counsel. It was filed on 2nd August, 2011. The 1st respondent brief which was filed on 9th August, 2011 was prepared by Dr.Onyechi Ikpeazu, SAN, CON, The 2nd respondent’s brief of argument settled by Chief Bayo Ojo, SAN was filed on 19th August, 2011 while the 3rd respondent’s brief of argument was settled by Adekunle Oyesanya Esq., and filed on 12th August, 2011. At the hearing of this appeal on 6th September, 2011, the learned counsel for the appellants, K.A. Oluigbo Esq., adopted and relied on the appellant’s brief of argument and the reply brief filed in response to the briefs of the 1st, 2nd and 3rd respondents.

Ben Osaka Esq, who appeared with Jacob Akpong for the 1st respondent also adopted the 1st respondent’s brief and relied thereon. He referred to the preliminary objection to grounds 1 and 2 of the grounds of appeal which he urged this court to discountenance as being incompetent. Chief Bayo Ojo, SAN, learned counsel for the 2nd respondent led a team of counsel including Adebayo Adenipekun, SAN and Chief Duro Adeyele, SAN. The learned Senior Advocate adopted the 2nd respondent’s brief of argument and argued the objection contained therein as well as the alternative argument in respect of the substantive appeal. For the 3rd respondent, Kunle Oyesanya, Esq. appeared with Dominic Okon, Edet Bassey Esq., and Emanuel O. Akpan, Esq. The learned counsel adopted the 3rd respondent’s brief and referred this Court to the preliminary objection therein as well as the argument on the appeal. The learned counsel for the appellants argued that this Court should allow the appeal white the learned counsel for the respondents respectively urged the Court to dismiss the appeal.

From the three grounds of appeal, the appellants formulated the following three issues for determination in this appeal: