Ntufam Etta Mbora V. Hon. Victor Ikpeme & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the interlocutory decision of the National Assembly and State Houses of Assembly Election Tribunal of Cross River State sitting in Calabar. Coram: I. W. Jauro J., A.A.G. Onibokun J., and M.E Njoku J., delivered on 19th August, 2015.

The Tribunal in its ruling dismissed the application made by the appellant who was the 1st respondent in the petition No. EPT/CR/NA/13/2015.

The appellant had sought the dismissal of the petition on the grounds of failure of the petitioner to activate the pre-hearing session by applying for issuance of prehearing notice as in form TF007 within the time stipulated in Paragraph 18(1) of the First Schedule to the Electoral Act, 2010 (as amended).

The petitioner reacted by filing a counter affidavit in opposition to the motion and accompanied same with a written address. The 3rd respondent in this appeal who was also the 4th respondent to the petition also opposed the application for the dismissal of the petition.

The trial Tribunal in its ruling agreed with the opinion of learned counsel to the 3rd respondent and dismissed the appellant’s motion stating that it

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was too late in the day to raise the issue.

Peeved by the said ruling, the appellant appealed to this Court. The notice of appeal was filed on 7/9/2015 and the record of appeal was compiled and transmitted to this Court on 16/9/2015.

The appellant’s brief of argument prepared by Kebe Pius Iwara Esq was dated 21/9/2015 and filed on 28/9/2015. In the said brief of argument a lone issue was distilled for determination in this appeal. It reads;

“whether in view of the clear and express provisions of Paragraph 18(1) and (3) of the First Schedule to the Electoral Act, the learned judges of the election Tribunal were right in refusing to dismiss the petition on ground of abandonment because the appellant participated in the pre-hearing session.”

The 1st respondent’s brief of argument dated 2/10/2015 was prepared by E.E. Osim Esq and filed on 5/10/2015. The 1st respondent did not respond to the live issues raised by the appellant but rather raised and argued three grounds of preliminary objection challenging the competence of the appeal. The three grounds of the preliminary objection were discovered to be incompetent. They were withdrawn by counsel to the 1st respondent

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and same were struck out. Since the 1st respondent has not presented any argument challenging the issue raised in the appellant’s brief of argument, the brief of argument of the 1st respondent was also struck out.