Prof. Eyo Etim Nyong & Anor V. Mr Bassey Edet Otu & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

The 1st Appellant as petitioner presented this petition on 17th May, 2011. The 2nd Appellant Action Congress of Nigeria sponsored the 1st Appellant Prof. Eyo Etim Nyong for the election into the Cross.

The 1st Respondent Bassey Edet Otu was sponsored by the 4th Respondent P.D.P. The 1st Respondent was declared the winner and returned on 27th April, 2011.

The Petitioners’/Appellants’ grounds for bringing the petition are as follows:-

i. The 1st respondent was not qualified to contest the election into the Cross River State Southern Senatorial district held on the 26th day of April, 2011.

ii. The election in National Assembly for the Cross River State Southern non-compliance with the provisions of Electoral Act 2010 (as amended).

iii. 1st Respondent was not duly elected by majority of lawful virtues cast at the election.

On the receipt of the Petition, the 1st & 4th Respondents filed their replies but 2nd and 3rd Respondent filed none. After a full trial, the tribunal delivered its considered judgment on 10th November, 2011.

Being dissatisfied, the appellant filed a notice and 12 grounds of appeal. The Appellants filed their briefs on 23rd December, 2011 and articulated 5 issues for determination as follows:-

1. Whether the Tribunal was right when it failed to nullify the election of 26th April, 2011 on the ground that the certificate of return was issued twelve days before the date the election was purportedly conducted? (Ground 9).
2. Whether the Tribunal was not in error when it held that the petitioners failed to link the exhibits tendered to the allegations in the petition? (Ground 5 and 6).
3. Whether the Tribunal was right in failing to consider the exhibits tendered? And if the answer is in the negative if failure did not lead to the conclusion that the petitioners failed to prove their case? (Grounds 11 and 12).
4. Whether the tribunal was right in proceeding to consider the criminal allegations in the petition and placing the burden of proof on the petitioners beyond reasonable doubt after the petitioners had the criminal allegations (Grounds 3, 4 and 8).
5. Whether the failure of the Judges of the tribunal to appreciate the essence of the case of Ogboru V. Uduaghan (2011) 2 NWLR (Pt. 1232) 538 with respect to placement of onus of proof did not lead to misplacement of the burden of proof thereby occasioning a miscarriage of justice? (Ground 1).

In reply the 1st respondent filed a notice of Preliminary Objection and his 1st respondent’s brief on 3rd January, 2012. The 1st Respondent’s Preliminary Objection was argued on pages 4-8 of his brief. In it he articulated 3 issues for determination as follows:-

1. Whether there exists a valid or competent Notice of Appeal before your lordships in order to activate the jurisdiction of this court to determine this appeal?
2. Whether there also exists a competent Appellants’ Brief of Argument to activate this Honourable court’s jurisdiction to consider the arguments and determine this Appeal?
3. Whether the failure and neglect of the appellants to ensure that the record of Appeal was compiled within tine renders this appeal incompetent?

On the main appeal, the 1st Respondent articulated 5 issues for determination as follows:-

1. Whether the alleged dating certificate of return 12 days before the date that the election was conduct emanated from the appellant’s pleading and evidence at the to entitle him to address on it an whether there was any miscarriage or justice by the non pronouncement of the issues of certificate by the tribunal.
2. Whether the tribunal was right when it held that the petitioners failed to link exhibit tendered to the allegation in their petition and whether the tribunal was right to reject analysis submitted by council.
3. Whether the tribunal was right when it held that the petitioners still have the burden of proving the unsevered paragraphs of their petition beyond reasonable doubt because they are interwoven with criminal allegations? Paragraph 3, 488.
4. Whether the Tribunal was right in holding that it is the duty of the petitioners to prove their petition to the required standard despite the decision in Ogboru V. Uduaghan?
5. Whether the petitioners proved their petition before the Tribunal?

The 2nd and 3d respondents filed a Preliminary Objection and their joint brief on 30th December, 2011. In their Preliminary Objection they had 4 grounds of objection namely:

1. The Notice of Appeal in this Appeal is grossly incompetent, incurably defective, and thus liable to be struck out by this Honourable court, under Order 6 Rule 6 of the Court of Appeal Rules, 2011, for being signed in violation of the rule of law.
2. This Appeal ought to be struck out or dismissed in limine in that the record of Appeal in this Appeal was compiled and served out of time, contrary to the clear provisions of the Election Tribunal and Court Practice Directions, 2011.
3. This Appeal ought to be struck out or dismissed in limine in that the Appellants’ Brief of Argument was filed and served on the 2nd and 3rd Respondents out of the time prescribed or stipulated by the Election Tribunal and Court practice Directions, 2011.
4. The Notice of Appeal Record of Appeal and appellants’ Brief of Arguments have not been initiated by the due process of law, thereby robbing this Honourable Court of the jurisdiction to entertain this Appeal.

These grounds were argued in their joint brief. Also the 2nd and 3rd Respondents articulated their own 4 issues for determination.

1. Whether or not the Tribunal was right in holding that the petitioners failed to lie or link their documents to their case? (Grounds 5, 6, 11).
2. Whether or not the Tribunal was right in holding that the petitioners still had the burden of proof beyond reasonable doubt based on the remaining unservered parts of the Petitioners’ pleading? (Grounds 3, 4 & 8).
3. Whether or not the Tribunal was right in holding that “It is incumbent on the petitioners to prove their petition to the required standard” despite the Petitioners’ pleading? (Grounds 3, 4, & 8).
4. Whether or not the Tribunal was right in holding that “It is incumbent on the petitioners to prove their petition to the required standard” despite the Petitioners’ reliance on Ogboru V. Uduashan (2011) 2 NWLR (pt 1232) 539.
5. Whether or not the Judgment of the Tribunal can be faulted for failure to consider the issue of Certificate of Return of the 1st Respondent? (Ground 9).

The 4th Respondent filed its brief on 4th January, 2012 and articulated 2 issues for determination as follows: