Senator Ita Solomon Enang V. Obong Nsima Umoh & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

The Appellant and the 1st Respondent had along with other candidates, contested the election conducted by 4th Respondent on the 26-04-2011 for the Akwa Ibom North East Senatorial District. At the end of the polls, the Appellant was declared and returned as the winner of the election by the 4th Respondent and being aggrieved by the return, the 1st Respondent questioned the election by presenting an election petition before the National and State Houses of Assembly Election Petition Tribunal, sitting at Uyo (to be called the tribunal hereafter). The petition was presented on the 17-05-2011.

The Tribunal suo motu raised the issue of compliance with paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 and after hearing addresses from the learned Counsel for the parties, dismissed the petition on the 08-08-2011 on the ground that it was abandoned. Being dissatisfied with that decision by the tribunal, the 1st Respondent successfully challenged same before this Court by way of an appeal and on the 27-10-2011, the Court allowed the appeal in the following terms:

“This appeal is meritorious and hereby allowed. The judgment of the Tribunal delivered or- the 8th day of August, 2011 is hereby set aside. It is hereby ordered that the petition NO. EPT/AKS/SEN/18/2011 is remitted to the Tribunal for trial.”

When the tribunal sat on the 14-11-2011 differently constituted and the petition remitted for trial by the Court was mentioned, it suo motu raised the issue as to whether the petition was caught up by the provisions of Section 285(6) of the Constitution, 1999 (as altered). Addresses were taken from the learned counsel for the parties and on the 29-11-2011, relying on the decision of the court in appeal No.CA/C/NAEA/257/2011; UDOKPO V. ARCHIBONG, delivered on the 17-11-2011, the tribunal ruled that the time limited by the provisions of Section 285(6) started afresh after the order for trial de novo by this Court.

This appeal is against that decision of the tribunal with which the Appellant was not satisfied.

In line with the Tribunals and Court Practice Directions, briefs of argument were filed by the learned Senior for the Appellant on 12-12-2011 and the learned Counsel for the 1st Respondent, on the 16-12-2011. Although the other Respondents to the appeal, were duly served with the Appellant’s brief and other processes in the appeal, there is no record that they had filed briefs of argument for consideration in the appeal.

In the Appellant’s brief, two issues were formulated for decision in the appeal from the three (3) grounds of appeal contained in the Notice of Appeal. They are:

“(1). Whether the concurring judgment of Tine Tur, JCA which is different from the lead judgment in the unreported case of Udokpo v. Archibong Appeal No. CA/C/NAEA/257/2011 delivered on 17th November, 2011 is binding on the lower Tribunal as the judgment of this Court. (Ground 3).

(2). Whether the lower Tribunal has jurisdiction to hear and determine any petition after the expiration of 180 days from the filing of the petition accorded it by Section 285(6) of the 1999 Constitution as amended under any circumstances (Grounds 1 & 2).”

Two issues were also raised in the 1st Respondent’s brief without an indication from, which of the grounds of appeal, they were distilled. The issues are thus:-

“(A) Whether indeed the concurring judgment of Tine Tur, JCA is of Tine diametrically opposed to and different from the lead judgment of Ndukwe-Anyanwu, JCA in Idongesit Udokpo (supra) so as to make the concurring judgment an obiter, not capable of being relied upon by the Honourable Tribunal in Uyo.

(B) Whether by the authority of the Court of Appeal decision in IDONGESIT UDOKPO V. KENNETH ARCHIBONG (supra) Petition No. EPT/AKS/SEN/18/2011 is still caught up by the constitutional provision of Section 285(6) of the 1999 Constitutional as amended.”

At the oral hearing of the appeal on the 06-01-2012, Mr. Nta A. Nta, Esq., leading other learned Counsel for the Appellant adopted the Appellant’s brief and urged us to allow the appeal and hold that the petition has abated due to effluxion of the period prescribed by the provisions of Section 285(6) of the 1999 Constitution (as altered).