Mr. Emmanuel Ikpe & Anor V. Sarah Sunday Elijah & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

The 1st Respondent contested on the platform of the 2nd Appellant for a seat in the Akwa Ibom State House of Assembly in the Nsit Atai State Constituency in the general election conducted on the 16th April, 2011. He contested for the seat with the 1st Respondent and others. The 1st Respondent contested on the platform of the 2nd Respondent.

The election was conducted by the 3rd Respondent. At the close of the poll the 1st Respondent was returned by the 3rd Respondent as the person duly elected to the State House of Assembly to represent the said Nsit Atai Constituency. Aggrieved by the return of the 1st Respondent by the 3rd Respondent, the Appellants presented their petition at the Governorship/Legislative Houses Election Tribunal at Uyo on the 17th May, 2011.

The petition was served on each of the Respondents. It is however not clear from the Record of Appeal on which date each of them was served.

The Record of Appeal shows that the 1st Respondent’s Reply to the petition (pages 68-95) filed on 14th June, 2011, was served on the Appellants on 14th June, 2011. See page 104 of the Record. The Appellants, as petitioners, filed their joint reply to the 1st Respondent’s Reply on 18th June, 2011. See pages 98-103 of the Record.

The 2nd and 3rd Respondents were yet to file their respective replies to the petition, as respondents thereto. On 28th June, 2011 the 3rd Respondent filed at the lower Tribunal an application for enlargement of time within which to file his reply to the petition. The 2nd Respondent, also out of time, filed his application for enlargement of time within which to file his reply to the petition on 5th July, 2011.

These two applications were pending at the time the lower Tribunal dismissed the Appellants’ petition on 18th September, 2011 on the ground that the Appellants had not filed a valid application to initiate or commence the pre-hearing session. On 18th July, 2011 the lower Tribunal suo motu caused notice to be served on the parties wherein it raised two issues and invited the parties to address it on the said issues, namely:

“1. Whether the Tribunal has jurisdiction to proceed with the hearing of the pre-trial session and the petition in view of the provisions of paragraphs 18 and 47 of the provisions of paragraphs 18 and 47 of the 1st Schedule to the Electoral Act, 2010 (as amended).

2. Whether the letter dated 27th June, 2011 and addressed to the Secretary National Assembly Election Tribunal, Uyo by counsel to the petitioners wilt suffice as an application for prehearing having regards to paragraphs 18 and 47 of the 1st Schedule to the Electoral Act, 2010 (as amended).”

By the notice, the lower Tribunal invited the parties to address it on the two issues, raised suo motu, on 21st July, 2011. At the resumed hearing the parties agreed to exchange written addresses on these issues. On 11th August, 2011 the issues were duly argued by the adoption of the written addresses variously filed by the parties. Ruling on it was reserved to 18th August, 2011. The Ruling was delivered on the said 18th August, 2011, and the lower Tribunal dismissed the petition of the Appellants on the grounds that the letter filed by the Appellants’ counsel to initiate the pre-hearing session was incompetent and therefore the petition was deemed abandoned.

This petition was originally before a different panel before it was transferred to the second panel. At the first panel effect was given to the letter dated 27th June, 2011 and pre-hearing Form TF007 was issued to each of the Respondents to the petition. The letters at pages 108 and 109 were filed on 27th June, 2011.

At the risk of repetition: the 1st Respondent’s Reply to the petition dated 11th June, 2011 was served on the Petitioners/Appellants on 14th June, 2011. They filed their joint reply thereto on 18th June, 2011. And on 27th June, 2011 their counsel filed the letters at pages 108 and 109, addressed to the Secretary of the Tribunal, requesting him to issue Form TF007 for pre-hearing session to commence.

The only issue of substance really in this appeal is whether there was any valid or competent application filed by the Petitioners/Appellants requesting that Form TF007 be issued.

Parties in the appeal filed and exchanged briefs of argument which they each adopted as their respective arguments in the appeal at the hearing of this appeal on 10th October, 2011. The Appellants want the appeal to be allowed. The Respondents, naturally, urged us to dismiss the appeal. I have painstakingly read all the briefs filed and exchanged.

The 1st Respondent, by leave of this court, filed Respondents’ Notice wherein he raised an issue of the two applications of the Petitioners/Appellants filed at pages 108 and 109 of Record not having been paid for and therefore an incompetent process each. This clearly is a preliminary objection to the countenance of the application for pre-hearing as in Form TF007 to issue. This apart, this is a substantive complaint which can only be properly raised as a ground of appeal in a substantive appeal or cross-appeal. In my considered opinion Orders 9 of the Court of Appeal Rules, 2011, providing for Respondent’s Notice of contention on appeal that the decision of the lower Tribunal should be varied or allowed in part is not another substitute for cross-appeal enabling the respondent to raise substantive complaint which otherwise should have been by way of cross-appeal. The 1st Respondent’s Notice of contention is, therefore, in my considered view, incompetent and it is hereby struck out.