Independent National Electoral Commission (INEC) & Ors V. Muri Edet Etim Asuquo & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court Calabar delivered on 23rd February, 2012. The Respondents here as Plaintiffs in the lower court had in their originating summons prayed the court for the determination of the following issues.

1. Whether the conduct of February, 2012 Elections in Bakassi and subsequent ones should be based on ward delineation based on the current Bakassi Local Government Area created pursuant to Law No. 7 or should be based on ward delineation based on Bakassi Local Government Area, as existed before the ceding of Bakassi to the Cameroun.
2. Whether given the decision of this Honourable Court in Suit No. FHC/CA/CS/41/2011 delivered on the 8th July, 2011 INEC can de-recognize the three wards of Ikang as Bakassi Local Government Area or do anything contrary to the Orders of the said Judgment.

Upon the determination of the above questions, the Plaintiffs now seek the following declarations or reliefs.

i. A Declaration that the Defendants conduct the upcoming February 25, 2012 Elections in Bakassi Local Government Area of Cross River State and subsequent ones in accordance with ward delineation based on the current Bakassi Local Government Area created pursuant to Law No. 7 of Cross River State House of Assembly and not based on the ward delineation as existed before the ceding of Bakassi to the Cameroun.

ii. A Declaration that given the decision of this Honourable Court in Suit No. FHC/CA/CS41/2011 delivered on the 8th July, 2011, the Defendants cannot disregard the three wards of Ikang as the current Bakassi Local Government Area or do anything contrary to the Orders of the said judgment.

The Respondent had filed a 26 paragraphs affidavit and a written address.

The Appellant as defendant filed a Counter Affidavit of 18 paragraphs together with their written address. Both counsel adopted their written address and the learned trial Judge delivered his considered judgment on 23rd February, 2012.

Being dissatisfied, the Appellant filed a notice and five grounds of appeal. Two other grounds were later filed.

The Appellants’ brief was filed on 5th July, 2013. In it the Appellants articulated four issues for determination. They are as follows:

1. WHETHER OR NOT law No. 7 of 2007 which the lower court based its judgment was enforceable, lifeless, in-abeyance and or inchoate, requiring the passing of a consequential act by the 2 Houses of the National Assembly for it to crystallize into an enforceable/operative law in view of sections 3 part I of the 1st schedule and 8(3), (5) & (6) of the 1999 constitution (as amended)?
2. WHETHER OR NOT the lower court was right when it entertained in suit No FHC/C/CA/21/2012 for the 2nd time the same issues it conclusively resolved in the earlier suit No FHC/C/CA/41/2011; Hon. JOE ETENE VS. INEC & ORS?
3. WHETHER OR NOT the creation and delineation and adjustment of the boundaries of the two local government in law No. 7 from where the 3 Ikang wards were created into 10 wards of Bakassi Local Government Area wherein the lower court ordered the appellant to conduct the February 23, 2012 governorship election was legal, proper, and constitutional, in view of section 112 and 115 of the constitution.
4. WHETHER OR NOT the judgment/order of the lower court in which the appellants were ordered to conduct the governorship election in the 10 new wards of Bakassi Local Area created from the old 3 Ikang wards in Akpabuyo Local government Area was not illegal and also incapable of execution having regard to the fact that, the law upon which it was based as at the date judgment on FHC/C/CA/21/2012 was entered was lifeless, inchoate and unenforceable having regards to sections 8(5) and (6) and section 3(6) of the 1999 constitution (as amended).

The Respondents filed their Respondents’ brief on 8th August, 2012 and adopted the issues formulated by the Appellants for determination.

It appears from the arguments on the issues, that the Appellants have abandoned issues 3 and 4. Both issues are therefore struck out. See Agbo Vs. State 2006 All FWLR Pt 309 page 1380 where the Supreme Court held that:

“Any issue on which no argument has been preferred is deemed abandoned, in the instant case, no arguments were canvassed in the appellant brief in respect of issue 2, it is therefore deemed abandoned, accordingly struck out and dismissed”

ISSUE 1

Learned Counsel to the Appellant Chief Utum Eteng submitted that: