Idongesit Godwin Akpan Udokpo V. Kenneth Edet Archibong & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A.: (Delivering the Leading Judgment)

This appeal is against the ruling delivered by the National State House of Assembly Election Tribunal Holden at Uyo (hereinafter called the Tribunal) on 19th July, 2011.

The Appellant herein was a Contestant at the election conducted by the 3rd Respondent on 9th April, 2011 into the House of Representative Seat for Itu Federal Constituency, and at the end of which election the 3rd Respondent declared the 1st Respondent as winner and the duly returned candidate. The appellant who felt dissatisfied with the declaration filed Election Petition No: EPT/KKS/HR/07/2011 at the Tribunal on 30th April, 2011.

By a motion on notice filed on 11th July, 2011, the 1st Respondent sought the order setting aside the hearing notice for pretrial session as well as the pre-trial information sheet attached thereto as issued by the Tribunal’s Secretary and another order for dismissal of the petition for failure by the Appellant to comply with provisions of paragraphs 18 (1) and 47 (2) of the 1st schedule to the Electoral Act 2010 (as amended).

The ruling on the 1st Respondent’s motion was delivered by the Tribunal on 14th July, 2011. The Tribunal granted the first relief and set aside the processes as sought by the 1st Respondent, but refused the prayer for dismissal of the petition for the reason that pleadings in the petition closed on 8th July, 2011 when the petitioner’s Reply to the 2nd Respondent’s Reply was filed.

By another motion on notice filed on 16th July, 2011 the 1st Respondent sought the dismissal of the petition for failure to comply with paragraph 18 (1) and (3) of the 1st Schedule to the Electoral Act, 2010 (as amended). Meanwhile the Appellant had on 14th July, 2011 applied for an order directing the issuance of pre-trial notices. The two applications were heard on 19th July, 2011, and the Tribunal allowed the 1st Respondent’s motion and dismissed the petition for non-compliance with paragraph 18 (1) and (3) of the 1st Schedule to the Electoral Act, 2010 (as amended).

Aggrieved by the decision of the Tribunal in the said ruling of 19th July, 2011, the Appellant filed a Notice of Appeal on 3rd August, 2011 containing three grounds of appeal, following which the Appellant’s Brief of Argument was filed on 15th August, 2011. The following issues were formulated for determination:

“1. Whether the Tribunal rightly assumed jurisdiction to entertain the 1st Respondent’s motion of 16th July, 2011 touching and concerning compliance with paragraph 18 (1) of the 1st Schedule to the Electoral Act when it had earlier ruled on the same issue on 14th July, 2011. (Ground 1)

2. Whether the Tribunal was right in dismissing the petition when the orders of the Tribunal made on 14th July, 2011 and 19th July, 2011 were still valid and subsisting. (Ground 2)

3. Whether the Tribunal was right in holding that application for issuance of pre-hearing Notice should be issued to each Respondent individually.”

The 1st Respondent’s brief of Argument, settled by David Olande Rsq. was filed on 19th August, 2011 and the lone issue there is:

“Whether the Tribunal was right in dismissing the Petition for failure to comply with the mandatory provisions of paragraph 18 (1) of the 1st Schedule to the Electoral Act.”

The 2nd Respondent in the brief filed also on 19th August, 2011 and settled by Joseph M. Uduk Esq. adopted the three issues of the Appellant which had been reproduced earlier. Each learned counsel argued the issues raised in the brief of argument.

Learned counsel for the Appellant, Samuel Ikpo Esq, filed Reply Brief separately for the Briefs of the 1st and 2nd Respondents on 2nd September, 2011.