Obong Nsima Umo & Anor V. Hon. (Barr) Ita Solomon James Enang & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, JCA (Delivering the Leading Judgment)

This is an appeal against the judgment of the tribunal Holden in Uyo Akwa Ibom State delivered on 8th August, 2011 in Petition No: EPT/AKS/SEN/18/2011.

The facts of this petition is as recounted by the Appellant and admitted by the 1st Respondents in his brief. I will quote the appellants recount of the facts for ease of reference.

The respondents were off served with the petition. The first respondent filed his reply to the petition on the 18th day of June, 2011 and served some on the Appellant on the 9th day of July, 2011. The 2nd Respondent did not file any reply until the date the petition was dismissed. The 3rd Respondent filed two replies by two separate and different counsels out of time which caused petitioners counsel to file a motion on notice on the 23rd day of July for leave to bring the application outside pre-hearing session for an order striking out the two replies filed by 3rd Respondent some being on abuse of court processes. See page 1277 to 1284 of the Record of Appeal.

1st Respondent reply to the petition was served the petitioner on the 9th day of July, 2011 and on the 15th day of July the petitioner/appellant filed their reply to the reply of the 1st Respondent within time and served same on the 18th day of July, 2011.

On the 21st day of July, 2011 the petitioner filed a Motion on Notice to the secretary of the Tribunal to activate a pre-hearing session, unknown to the petitioners/Appellant counsel that the petition was among the 23 which had been transferred from Tribunal No.1 to Tribunal No.2 in Akwa Ibom State.

These were the facts as stated by the appellant and upon these facts the tribunal delivered its considered judgment and dismissed this petition as having been abandoned.

Being aggrieved the appellant filed a notice of appeal with three grounds on 27th September, 2011. The Appellant filed their appellants brief on 14th October 2011 and articulated three issues for determination as follows:

1. Whether indeed the Motion on Notice filed on the 21st day of July by petitioners/Appellant counsel to activate a pre-hearing session was filed out of time.

2. Whether the first panel of the National and state House of Assembly Election Tribunal (Panel No. 1) and the second National and State Houses of Assembly election Tribunal (Panel No. 2) have concurrent and or Co-ordinate Jurisdiction and if so whether one can safely set aside the sittings, steps taken and orders made by the other.

3. Whether the Tribunal No. 2 is not bound by the Court of Appeal Decision in F.B.N. Plc. V. Tsokwa (2004) 5 NWLR (pt. 866) 271 CA held 13 and 14.

However the Appellant chose to argue only one issue. The 1st Respondent’s brief filed on 24th October, 2011 wherein the 1st Respondent also argued that lone issue.

To my mind, the issue of stake here is “whether the Petitioners reply to the 1st Respondent reply filed on 15th July, 2011 and served on 18th July, 2011 was filed within time.”

The appellant stated in their brief facts of the appeal and admitted to by the 1st Respondent that the petitioner was served with the 1st Respondents brief on Saturday 9th July, 2011. Appellants counsel argued that 10th July was a Sunday and as such time should start running from Monday 11th July. However, the 1st Respondent argued that time should start running on Sunday 10th July, 2011.