Senator Aloysius Etuk & Ors. V. Dr. Anny T. Asikpo & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A.

Three Appeals have emanated against the ruling of the National Assembly/Legislative Houses Election Tribunal holden at Uyo, Akwa Ibom State delivered on the 29th day of November, 2011.

The facts are that the Independent National Electoral Commission conducted elections for Akwa Ibom West Senatorial in the National Assembly on the 9th day of April, 2011. Senator Aloysius Akpan Etuk of the Peoples Democratic Party was returned as duly elected having polled 383, 607. Dr. Anny T. Asikpo of the Congress for Progressive Change polled 9,172. There were other candidates at the election who are lot aggrieved with the declaration or returns hence are not parties in this appeal.

Being aggrieved with the decision of INEC, Dr. Anny T. Asikpo and the Congress for Progress Change presented a petition before the tribunal on 30-04-2011. Upon filing and exchange of pleadings a preliminary objection to the competence of the petition was raised by the 1st and 2nd respondents. Having heard arguments the tribunal struck out the petition without a hearing on the merit. Dr. Anny T. Asikpo and the Congress for Progressive Change appealed to the Court of Appeal, Calabar Division. On 13-10-2011 the appeal was allowed and the Court directed that the petition be heard on the merit before another Election Tribunal.

When the petition came before a newly constituted Tribunal the panel suo motu called for addresses from Counsel as to the interpretation of the provisions of Section 285(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered, namely, whether by effluxion of time, the tribunal had no jurisdiction to entertain the petition notwithstanding that it had been remitted by the Court of Appeal for retrial. Having listened to arguments from learned Counsel the Tribunal held at page 1422 lines 3 – 19 of the printed record as follows:

“Tine Tur, JCA in his said concurring judgment firmly and emphatically rejected the arguments being put forward by the Respondents herein as the learned Justice of Appeal dearly stated that such arguments should not be entertained to deny the Petitioners’ right to have their case heard and determined on the merits.

This is also the position of the Supreme Court in the unreported decision in Suit No. SC/360/2011 PROFESSOR STEVE UGBA VS. PDP VS. OTHERS where Dahiru Musdnpher C.J.N. 180 days after the election petition considered in the case was filed, ordered the petition to be heard on the merits.

The refrain of the appellate Courts is so resoundingly clear that election petition must be heard on the merits, we cannot but echo and chorus that refrain.

In any event, the Order of the Court of Appeal made on the 13th October, 2011 in respect of this petition is that it be heard de novo and this Tribunal is bound to follow that order as it is not open to a lower Court to disagree with the decision of the higher Court. Osakwe vs FCE (Technical) Asaba (2010) All FWLR (Pt.552) 1601 at 1625. This is also the position of Section 287(2) of the 1999 Constitution (as amended) which enjoins inferior Courts to follow decisions of superior Courts.

This Tribunal accordingly has .jurisdiction lo hear this petition on the merits. ”

Being aggrieved with the above ruling all the respondents in the Tribunal have lodged appeals before this Court in the following manner: CA/C/NAEA/319/2011 viz. Senator Aloysius Etuk vs. Dr. Anny T. Asikpo & Ors. The Notice of Appeal was filed on 12-12-2011; CA/C/NAEA/311/2011 viz Independent National Electoral Commission vs. Dr. Anny T. Asikpo & Ors. The Notice of Appeal was filed on 12-12-2011; and CA/C/NAEA/312/2011 viz Peoples Democratic Party (PDP) vs. Dr. Anny T. Asikpo & Ors. The Notice of Appeal was filed on 12-12-2011. Briefs of arguments were filed and exchanged followed by Reply briefs from 1st and 2nd Respondents.

When the three appeals came up for hearing on the 23rd day of January, 2012 learned Counsel to the Respondents urged the Court to strike out the Notice of Appeal as incompetent for reasons set out in the Notice of Preliminary Objection. The reasons were canvassed in each brief filed by the Respondent’s learned Counsel. In case the preliminary objection failed learned Counsel urged that the appeal be dismissed on the merit.

Learned Counsel to each appellant replied to the argument in the preliminary objection in their respective briefs of argument. Since the preliminary objection, if it succeeds, will lead to the striking out of the Notices of Appeal filed in each appeal, and this will go to the root of this appeal. I intend to consider the preliminary objection before delving into the substantive appeal if the law and good reasons so dictate. This is because for the appellants to be heard by this Court there must be a competent Notice and grounds of appeal which must relate to the decision appealed against and must further relate to the ratio decidendi. See Egbe vs Alhaji (1990) 1 NWLR (Pt.128) 546 at 590 cited in Saraki vs Kotoye (1992) 9 NWLR (Pt.264) 156 at 184 and Chami vs UBA (2010) 6 NWLR (Pt.1191) 474 at 500 and a host of others cases similarly decided

At the hearing of this appeal an application was made by Umoh Esq, of counsel appearing for the appellant in Appeal No. CA/C/NAEA/312/2011 that the three appeals be consolidated having emanated from the same ruling. There was no opposition from learned Counsel appearing for the other parties hence the Court ordered that the three appeals be consolidated. Since the arguments against the hearing of the three appeals is predicated on the same grounds of objection, and having consolidated them, I believe time and energy shall be saved if a ruling in any of the appeals will cover the other two appeals.