ASUQUO EKPO ADA & ANOR v. WILSON E. EKPENYONG & ORS.

ASUQUO EKPO ADA & ANOR v. WILSON E. EKPENYONG & ORS.

 final
In The Court of Appeal
Calabar Judicial Division
On Tuesday, the 13th day of September, 2011
Suit No: CA/C/NAEA/191/2011
 
Before Their Lordships
 
JA'AFARU MIKA'ILU    ……. Justice, Court of Appeal
MASSOUD ABDULRAHMAN OREDOLA    ……. Justice, Court of Appeal
ISAIAH OLUFEMI AKEJU    ……. Justice, Court of Appeal
    
 
 Between

1. ASUQUO EKPO ADA
2. ACTION CONGRESS OF NIGERIA   – Appellants
            
 
      And
                   
1. WILSON E. EKPENYONG
2. THE RESIDENT ELECTORAL COMMISSIONER CROSS RIVER STATE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE PEOPLES DEMOCRATIC PARTY (PDP)    -Respondents
        
 
                  
     

 

 


 COUNSEL:
                              
William Ballantyne, Esq.    -For the Appellants

                        

Chief Ogar Ndoma Egodo, EsEsq.      -For the Respondents


JUDGMENT:         

        
JA'AFARU MIKA'ILU, J.C.A.:
(Delivering the Leading Judgment): This is an appeal against the ruling of the National Election and State Houses of Assembly Tribunal sitting at Calabar delivered on the 15th of July 2011 wherein the trial Tribunal struck-out the petition of the appellant challenging the validity of the election of the 1st Respondent in the election conducted by the 3rd Respondent for the House of Assembly seat for Odukpani Constituency.

The petitioner field the petition on the 18th May 2011 challenging the declaration of the 1st Respondent winner of the election conducted for the House of Assembly seat for Odukpani Constituency.

The 4th Respondent filed their reply on 14/6/11. The 2nd and 3rd respondent filed their reply on 15/6/2011 while the 1st Respondent filed his reply on 18/6/2011. The petitioners filed reply to the 1st Respondent's reply on 21/6/11. It is to be noted that the 1st Respondent brought two similar applications dated on 26/06/2011 and 06/07/2011 praying for an order striking out the witness statement on oath of the petitioner's sole witness and the petition.

On the 15th July 2011 the trial tribunal heard the 1st respondents motion dated 6/7/11 and proceeded to strike out the petition hence this appeal.

The issues framed for determination of the appeal in the appellants' brief of argument read as follows:

1. Whether having regard to the time constitutionally provided for the disposal of election petitions, the striking out of the appellants petition by the trial tribunal at the stage it did without a full trial was not unconstitutional and a breach of the Electoral Act 2010 (as amended).

2. Whether the trial Tribunal was right when it based its decision to strike out the petition summarily on section 90 (b) of the Evidence Act at the pre-hearing stage relying on a dissenting opinion of one of the Justices of the Supreme Court.

3. Whether the appellant was given fair hearing by the trial court.

It is to be noted that in the 1st Respondent's brief of argument a preliminary objection has been raised to the following effect:-

(a) The petition upon which this appeal is predicted is in competent for non-compliance with paragraph 18 (1) of the First Schedule to the Electoral Act 2010 as amended, consequently this Honourable court lacks jurisdiction to entertain or determine this appeal.

(b) The Petitioner/Appellant failed to comply with the mandatory provisions of paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010, after bringing the petition which is the subjection matter of this appeal.

The grounds for raising the said objection are as follows:-

1. The appellant's after filing this petition failed, neglected and refused to apply for the issuance of pre-hearing Notice in the appropriate form and manner within seven (7) days after the service of the petitioner's Reply or seven (7) days after the filing of the Respondent's Reply as mandatory provided in paragraph 18 (1) of the Rules of Procedure for election petition contained in the First Schedule to the Electoral Act 2010 as amended.

2. By virtue of paragraph 18 (1) of the First Schedule to the Electoral Act 2010 as amended, it is imperative or incumbent on the petitioner to apply for pre-hearing Notice within the time and in the manner specified therein and, failure on this part renders the petition abandoned by virtue of paragraph 18 (4) of the First schedule to the electoral Act 2010 as amended.

3. The 1st Respondent filed his Reply on the 18th day of June, 2011 and the petitioners/Appellants ought to have applied for issuance of pre-hearing Notice within seven(7) days after that date not before.

4. Any process filed by the Petitioners/Appellants and an order upon which such process is predicted which is not complaint (sic) with the mandatory provisions of section 18 (1) by virtue of paragraph 18 (4) of the first schedule to the Electoral Act.

5. The petition upon which this appeal is predicted is abandoned by virtue of paragraph 18 (4) of the First schedule to the Electoral Act 2010, therefore the appellate jurisdiction of this court is not properly invoked as this Appeal is incompetent.

There is no need to dwell much on the above formulated for determination by the appellant will be would surfice to determine this appeal. The issues are:-

1. Whether having regard to the time lines constitutionally provided for the disposal of election petitions, the striking out the appellants petition by the trial tribunal at the stage it did without a full trial was not unconstitutional and a breach of the Electoral Act 2010 (as amended).

2. Whether the trial tribunal was right when it passed her decision to strike out the petition summarily on section 90 (b) of the Evidence Act at the Pre-hearing stage relying on a dissenting opinion of one of the Justices of the Supreme Court,

3. Whether the appellant was given fair hearing by the tribunal.

I have a careful perusal of the issues formulated by the appellants. They are not dissimilar from the issues in appeal No.CA/C/NAEA/164 and this court must be consistent in its decisions and I have no cause to depart from the said decision I've reaffirmed that the use of alphabets or initials is permitted by Practice Direction it is therefore lawful. I hold the petition was wrongfully struck-out. The appeal is allowed, the ruling of the tribunal is set aside. The petition is remitted to the tribunal for hearing. The appeal is allowed.

No order as to costs.

 

 

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree

 

 

ISAIAH OLUFEMI AKEJU, J.C.A.: I agree.