Prince Celestine Awor V. Hon. George Oben Etchi & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling of the National and State House of Assembly Election Petition Tribunal Holden at Calabar, Cross River State (hereinafter called the Tribunal) delivered on 9th August, 2011 by which the petition filed by the appellant before the Tribunal was dismissed.

The appellant and the 1st respondent were candidates at the election conducted by the 2nd respondent on 26th April, 2011 into the Akampa II Constituency seat of Cross River State House of Assembly and at the end of which the 2nd respondent declared the 1st respondent as the winner of the election and the candidate that was duly returned. The appellant who was dissatisfied with the declaration filed Election Petition No.EPT/CR/SA/14/2011 before the Tribunal and same was served on the respondents.

The 1st respondent filed his reply to the Petition on 10th June, 2011, but the 2nd and 3rd respondents did not file any reply within the statutory period and therefore applied for enlargement of time to dos so, but there is nothing on record to show that the applications were granted. Meanwhile on 20th June, 2011 after he had been served with the reply filed by the 1st respondent, the appellant as petitioner applied by motion on notice for issuance of pre-hearing session notice to the parties. The application was heard on 5th July 2011 at the proceedings attended by all the learned counsel to the 1st, 2nd and 3rd respondents who did not object to, or oppose the application. The Tribunal therefore granted the application as prayed.

The 3rd respondent thereafter filed a motion on notice on 18th July, 2011 for the following reliefs:

1. AN ORDER STRIKING OUT THE PETITIONER/RESPONDENT’S MOTION ON NOTICE DATED 20/6/2011 AND FILED SAME DAY FOR BEING INCOMPETENT.
2. AN ORDER SETTING ASIDE THE ORDER OF THIS HONOURABLE TRIBUNAL MADE ON 5TH JULY, 2011 ON THE MOTION ON NOTICE OF THE PETITIONER DATED 20/6/2011 AND FILED SAME DAY FOR WANT OF JURISDICTION.
3. AN ORDER DISMISSING THE PETITIONER’S PETITION FOR ABANDONMENT.”

The 3rd respondent’s motion was heard on 27th July, 2011 and adjourned for ruling which was eventually delivered on 9th August, 2011 dismissing the appellant’s petition for being abandoned, the main basis being that the filing of the application for issuance of pre-hearing notice by the appellant was premature.

The appellant did not accept the ruling of the Tribunal Notice and filed a Notice and Grounds of Appeal on 16th August, 2011 with six grounds of appeal and in the Appellant’s Brief of Argument settled by E. E. Osim Esq. and filed on 6th September 201l, the appellant’s learned counsel formulated four issues for determination at pages 4-5 of the Brief as follows:

“3.02 Whether there was power/vires in the lower Tribunal and or competence to entertain the 3rd Respondent Application to dismiss the petition in limine in view of the fact that the parties participated in the proceedings leading to the order without objection thereto and that the said application was taken in breach of the express provisions of section 140 (4) of the Electoral Act and Paragraph 53 particularly, paragraph 53(2) of the 1st Schedule to the Electoral Act 2010 (Grounds 1, 2 and 3)

3.03. Whether the learned justices of the lower Tribunal were right by their failure, refusal and or negligence to pronounce on all the issues raised by the parties at the lower tribunal? (Ground 4).

3.04 Whether by the express provision of paragraph 18 of the 1st Schedule to the Electoral Act, there is power in the lower court to penalize a petitioner for early and or purported premature filing of Application for issuance of Pre-Hearing Notice to the parties? (Ground 5).

3.05 Whether taking cognizance of the Affidavit evidence and the submissions of counsel both oral and written addresses, the ruling of the lower Tribunal is not perverse and or against the weight of evidence? (Ground 6).”

In the 1st Respondent’s Brief of Argument, prepared by B. Olusegun Esq., and filed on 12th September, 2011, the learned counsel set the following issues for determination:

1. Whether the lower Tribunal was wrong in entertaining and determining the 3rd respondent’s application challenging its order on grounds of nullity and or want of jurisdiction (Ground 1, 2 and 3; appellant’s issue 1).

2.Whether the lower Tribunal duly considered all the issues raised in the application before it (Ground 4; appellant’s issue 2).

3. Whether the lower Tribunal was wrong in setting aside its order of 5/7/2011 and dismissing the petition on grounds of nullity and abandonment, respectively (Grounds 5 & 6; appellant’s issues 3 & 4);”

The 2nd Respondent’s Brief of Argument was prepared by Osasu Isibor Esq. and filed on 12th September, 2011 and the learned counsel raised the issues for determination in this appeal as follows: