Mr. Hillard Ettagbo Ettah & Anor V. Eyo Uduak Akiba & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The 2nd Appellant, a political party, sponsored the 1st Appellant as a candidate for the election to Cross River House of Assembly for Calabar Municipality State Constituency. The election was conducted on 26th April, 2011. The 2nd and 3rd Respondents returned the 1st Respondent, sponsored by the 4th Respondent, as the candidate duly elected in the election for the said Calabar Municipality constituency. Aggrieved by this return the Appellants filed their petition challenging the return on 17th May, 2011

The petition was before the Election petition Tribunal (coram; J. M. Nabaruma, J, S. u. Dikko, J, and A. K. Baaki, J)

On 16th August, 2011 the Tribunal No. 1 transferred the petition to Tribunal No. 2 (page 449 of the Record) without any application from any of the parties, the Tribunal No. 1, on 7th September, 2011, suo moto rescinded the transfer order and thereafter fixed the petition for hearing on 13th September, 2011. See page 450 of the Record. On the said 13th September, 2011, the parties were in attendance before the Tribunal No. 1, which again adjourned the petition to 22nd September, 2011 for hearing.

It appears from the Record that the Tribunal No. 1 did not, on the said 22nd September, 2011, start sitting at 9.00a.m. In the Ruling of 22nd September, 2011, the Tribunal No. 1 stated as follows at page 454 of the Record:

This matter was adjourned to today on the 13th September, 2011 for hearing. On the application of the 4th Respondent’s counsel Chief Ogar Ndoma Egodo, the matter was stood down to 2.00p.m. It is now 2.24p.m and neither the petitioners who are supposed to open their case today nor their counsel are in court and no explanation has been forwarded to the Tribunal by them to explain the cause of their absence.

We, therefore, conclude that the petitioners have lost interest in their petition. There is, in this light, on good reason to continue to maintain the petition on our cause list.

Accordingly, the petition is struck out.

The fetter of the 4th Respondent’s counsel that gave rise to the purported stand down of the hearing is at page 499 of the Record. The letter, contrary to the usual courtesy at the Bar, was not copied to any of the parties nor their counsel. It is safe to conclude that none of the parties including the petitioners, except the Tribunal No. 1, the counsel to the 4th Respondent and Mrs. Andem-Ewa, SAN of counsel to 1st Respondent knew that the hearing of the petition had been stood down to 2.00p.m of 22nd September, 2011 . There is nothing on the Record showing that the Tribunal No. 1 acceded to the stand-down request and fixed the hearing to commence at 2.00p.m of 22nd September, 2011. It is only in the Ruling, above reproduced, that the Tribunal No. l alluded to the fact that the hearing of the petition was stood down, or adjourned to 2.00p.m that day. It is also noteworthy that Mrs. Andem-Ewa, SAN the only counsel fortunate to be at the Tribunal at the material time did not pray for the order striking out the petition.

The order of the Tribunal No. 1 on 22nd September, 2011 striking out the petition for indiligent prosecution has prompted the appeal of the aggrieved petitioners. The notice of appeal has included therein a ground, ground 3, complaining that the Tribunal No.1 erred in law when it further assumed jurisdiction over the petition and thereafter on 22nd September, 2011 struck out, having on 16th August, 2011 transferred it to another panel of the Election Tribunal. The grouse of the Appellants here, is directed against the recession order Tribunal No.1 made on 7th September, 2011 at page 450 of the Record.

The recession order of 7th September 2011 was an appealable order or decision. Therefore, upon reading the Notice of Preliminary objection of 25th October, 2011 and argued in the 2nd and 3rd Respondents’ brief filed on 25th October, 2011 and hearing Mr. Ukweni of counsel on the objection, I am satisfied that the Appellants, as petitioners, had 21 days from 7th September, 2011 to appeal against this order rescinding the order transferring the petition to Tribunal No. 2 for hearing. Paragraph 6 of the Election Tribunal and Court Practice Directions, 2011 gives the petitioners, as parties aggrieved by the said transfer order, 21 days within which to appeal the rescission order. The preliminary Objection is accordingly allowed. Consequently, Ground 3 of the grounds of appeal and the issue formulated therefrom in the Appellants, Brief are hereby struck out for being incompetent.

Having read and considered the briefs of argument exchanged I think the only issue standing out for consideration in this appeal is the propriety of the Tribunal No. l striking out the petition on the ground that the petitioners and or their counsel were not at the Tribunal No. 1 at 2.00p.m on 22nd September, 2011 when the hearing of the petition was to commence.

Mr. Egodo’s letter on which the Tribunal No. 1 purportedly acted on to stand-down the commencement of hearing was not communicated to the petitioners. The Tribunal No. 1 did not also make known to the petitioners that their petition had been stood-down for hearing at 2.00p.m on 22nd September, 2011.

The record of the Tribunal No. 1 does not show that there was an order, made known to all parties, that the hearing was to commence at 2.00p.m. The Tribunal, as it appears, had remained in the chambers incommunicado until 2.24p.m when it made the order on 22nd September, 2011. The point being made under this issue is whether the Petitioner/Appellants were, in the circumstances not denied their fundamental right to fair hearing by the order striking their petition on 22nd September, 2011. Section 36 (1) of the Constitution 1999, as amended, guarantees the Appellants’ right to fair hearing.