Lawrence Ibanga Ubeh & Anor V. Kufre Bassey Etuk & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, JCA (Delivering the leading Judgment)

At the election conducted by the 3rd respondent on 26th April, 2011 into the Uruan State Constituency seat of Akwa Ibom State House of Assembly, the 1st appellant and 1st respondent were the candidates sponsored by the 2nd appellant and 2nd respondent respectively. Other candidates who are not parties to this appeal also contested the election. At the end of the election, the 3rd respondent declared the 1st respondent as the candidate that won the election and who was duly returned. The appellants were dissatisfied with the declaration and return of the 1st respondent and they filed Election Petition No. EPT/AKS/HA/21/2011 before the National and State House of Assembly Election Petition Tribunal (hereinafter called the Tribunal) sitting at Uyo.

The appellants as petitioners filed their petition on 17th May, 2011 and served same on all the respondents. The respondents did not file their reply within the time allowed by the Electoral Act, 2010 (as amended). The 1st and 2nd respondents however filed their reply on 8th July, 2011 with the leave of the Tribunal and the reply was served on the parties thereto. Being out of time also, the 3rd respondent applied by way of motion on notice filed on 2nd July, 2011 for an order enlarging the time within which to file the reply and an order deeming the reply filed out of time as properly filed and served.

It was with this state of the pleadings that the Election petition of the appellants was transferred from the Tribunal to a newly established Tribunal called Tribunal No. 2.

The Tribunal No. 2 suo motu raised two issues upon which counsel were invited to address the Tribunal as to the competence of the Tribunal to proceed with the hearing of the petition.

Having failed to file any application for pre-hearing notice earlier, the appellants filed a motion on notice on 21st July, 2011 for the following:

“1. Leave of this Honorable extension Tribunal to apply for extension of time for the issuance of pre-hearing notice to the parties in this petition.

2. Extension of time within which the Petitioner/Applicants may apply for the issuance of pre-hearing information sheet as in Form TF 008.
3. Application for issuance of pre-hearing information sheet as in Form 008.
4. For any order or further order(s) as this Honorable Tribunal may deem fit to make in the circumstance”.

The motion on notice came up for hearing on 12th August, 2011 at pages 300-301 of the record of appeal. The record shows that the 3rd respondent was represented by its learned counsel, Obot F. Johnson who not only did not respond to the appellants’ motion but also did not apply to move his motion on notice earlier filed on 2nd July, 2011. After hearing arguments in respect of the appellants’ motion, the Tribunal adjourned for ruling which was delivered on 17th August, 2011.

The Tribunal held as follows at pages 317-318 of the record of appeal:

“It is our view that this Tribunal does not have jurisdiction to grant the application argued. The application is refused and consequently dismissed. This Tribunal has only one duty in the circumstance and it is to dismiss this petition,

Petition No. EPT/AKS/HA/21/2011 is hereby deemed abandoned. It is hereby dismissed by the force of paragraph 18 (4) of the 1st Schedule to the Electoral Act, 2010 (as amended)”.

The appellants felt aggrieved by the decision of the Tribunal. They filed their Notice and Grounds of Appeal on 5th September, 2011 with three grounds of appeal and in prosecution of the appeal; the Appellant’s Brief of Argument signed by M. U. Peters Esq. of counsel was filed on 20th September, 2011. Two issues were formulated by the learned counsel as follows at page 3 of the brief

4.01 Whether the Tribunal was right to have dismissed the petition on the ground that it has been abandon (sic) when there was a pending motion by the 3rd Respondent to be let in.

4.02 Whether the Tribunal is not bound by the Court of Appeal decision in F.B.N. Plc v. Tsokwa (2004) NWLR (Pt. 866) 271st.