Itu federal constituency tussle: ACN survives second appeal, court clarifies section 285(6)

BY NDON ASIAN

Five days after the Supreme Court judgment on Udoedehe and Akpabio, another court of higher authority has taken a swipe at judges who presided over the dismissal of many petitions at the Election Petition Tribunals, for relying on technicalities.
The latest criticism came on Thursday 17th November, 2011 in Calabar, when Hon. Justice Uzo I. Ndukwe Anyanwu who led a three member panel of the Court of Appeal in its unanimous decision frowned at the failure of Hon. Justice Abdulahi Yusuf, Hon. Justice Matilda Abrakasa Ayemieye and Hon. Justice Olumuyiwa S. Olusanya to comply with an earlier order of the Court of Appeal, remitting petition no EPT/AKS/HR/1/2011 for retrial.
In the petition, Mr. Idongesit G. Udokpo of the Action Congress of Nigeria (ACN) is disputing the claims of Independent National Electoral Commission (INEC) which declared that Hon. Kenneth Archibong won the Itu Federal Constituency election on the platform of the ruling Peoples Democratic Party (PDP).
Briefly, the petition was initially dismissed by the Abdulahi Yusuf chaired election petition tribunal for applying for the issuance of pre-hearing notice out of time. Then, counsel to the petitioner, Barr. Samuel Ikpo, had applied for the issuance of pre-hearing notice where upon the secretary complied with the directive of the tribunal issuing hearing notices to parties for pre-hearing session.
On the 11th July, the 1st respondent filed motion on notice praying the tribunal to set aside the hearing notice for pre-trial session and to dismiss the petition for failure to comply with paragraph 18(1) and 47(2) of the 1st schedule to the Electoral Act 2010 as amended.
The tribunal ruled that the Appellant was within time as it held thus, “We have considered the submission of the parties and we hold that there is merit in the application hence it is granted as prayed”.
Barely 5 days later, on the 16th of July, 2011, the same 1st Respondent filed another motion praying the tribunal to dismiss the petition earlier allowed, on the grounds of non-compliance with paragraph 18(1) of the 1st schedule to the Electoral Act. Counsel to the 1st respondent had premised his applications on an intriguing sequence, saying that the first motion was subsequent upon the reply of the 1st respondent while the second followed the reply of the 3rd respondent.
Samuel Ikpo Esq. had argued vehemently that the application for pre-hearing should be done within 7 days after the reply of the last respondent. Arguments were taken. The tribunal in a curious twist departed from its earlier judgment, and dismissed the petition.
A disatisfied Samuel Ikpo Esq. had told Weeekend Insight Newspaper that the tribunal erred in law by sitting on appeal over its earlier judgment on the application instead of allowing the 1st respondent to appeal to a higher court.
Counsel to the petitioner headed to the Court of Appeal, Calabar, which allowed the appeal in its 16th September 2011 judgment. The case was sent back to Uyo for trial.
Back in Uyo, the 1st and 3rd respondents respectively brought separate motions on September 26th, 2011 praying tribunal to set aside the order for issuance of pre-hearing notices and to dismiss the petition for not complying with paragraph 18(1), and failure to seek and obtain leave before applying for pre-hearing session.
The two motions, being similar in wording and prayers, was consolidated and arguments taken. Interestingly, during argument counsel to Idongesit Udokpo had brought to the notice of the tribunal that the full panel of the Court of Appeal, Jos, had on the 22nd of August, 2011 held that leave was not required, and that a letter was sufficient to activate pre-hearing.
Samuel Ikpo Esq further urged the tribunal to exercise restraint until the following day, 13th October 2011 when the Court of Appeal shall have ruled on a similar matter involving Senator Aloysius Etok, but the tribunal refused, went ahead to dismiss the petition for the second time on the 12th of October 2011, relying on the appeal judgment involving state Governor of Akwa Ibom in petition No EPT/AKS/Gov/15/2011.
The following day, the Court of Appeal in Calabar delivered judgment on the Ikot Ekpene Senatorial District appeal involving Dr. Any Asikpo and Senator Aloysius Etok relying on the Jos appeal court judgment. The Court upheld Dr. Asikpo’s appeal.
A furiously disappointed Samuel Ikpo Esq. returned back to the Court of Appeal for the second time to file notice of appeal on the 19th of October, 2011 on two grounds.
Ikpo formulated two issues for determination (a) whether the leave of the tribunal was required before application for the issuance of pre-hearing notice could be made.
He submitted in his argument that application under paragraph 18(1) of the 1st schedule to the Electoral Act 2010 (as amended) did not require the leave of court. He relied on the judgment of the lower tribunal in the case of Aliyu Brahim Gebi Vs Alhaji Garuba Dahiru and 3 others delivered on 22nd August 2011 where it was held that “In he result we are of the view that the letter to the tribunal as in this case comprise and carries out the intention and requirement of paragraph 18(1) of the 1st schedule to the Electoral Act 2010 (as amended).
To this, the full panel of the Court of Appeal Jos reacted thus, “Without much ado, I would want to believe that the above findings of the lower tribunal are rather unassailable. And my reason for saying so is not far fetched”.
On issue (2) “Whether the lower tribunal was right in failing or refusing to follow and apply the binding decisions of the Court of Appeal (Jos Division) in Aliyu Ibrahim Gebi Vs Alhaji Garuba Dahiru and 3 others in CA/J/EP/HR/127/2011 delivered on 22nd August 2011 contrary to the well established principles of stare decisis”, Ikpo urged the court to hold that the lower tribunal was duty bound to have followed and applied the decision of the Court of Appeal, Jos in Aliyu Ibrahim Gebi’s case and resolve the issue in favour of the appellant.
Counsel to 1st respondent, David Obande Esq, filed notice of intention to rely on preliminary objection. Order 10. His objection rested on two legs.
(1) “That the appeal is incompetent and should be struck out”. He argued that the “Appeal is a continuation of the petition filed by the petitioner/appellant since the 30th of May 2011. On the 29th of October, 2011 the said petition became 180 days since filing and naturally became time barred. The petition having lapsed by effusion of time, this appeal has become totally unnecessary since whatever the outcome of this appeal, the petition remains inchoate, spent, expired”.
(2) “That no sufficient materials have been furnished the courts to enable this court disturb the order of dismissal made by the tribunal, thus rendering this appeal an academic exercise”.
Apparently the tortuous path the petition has followed in returning to the Court of Appeal a second time seem to help in interpreting the constitution to give a definite direction to the proper understanding of the Electoral Act 2010 as amended.
Until the Court of Appeal, Calabar judgment on section 285(6) as it affected petition No EPT/AKS/HR/1/2011, no court in the entire country has pronounced on that section of the 1999 constitution, as altered. Just like “the tribunal misunderstood the situations where leave of court should be obtained before an application can be made”, the tribunals also seem to manifest a complete lack of understanding of section 285(6), many analyst argue.
In delivering judgment, the three learned judges of the Court of Appeal did put the record straight as it stated thus, “In the instant case, the tribunal delivered its judgment on 12th October, 2011 within the 180 days envisaged by section 285(6) of the 1999 constitution (as amended). The 180 days was supposed to have expired on 27th October, 2011.
“I therefore hold that the tribunal’s judgment delivered as on 12th October, 2011 was still within time. Does section 285(6) of the 1999 constitution affect the Appeal filed in this Court?
“To answer this question reference must be made to section 285(7) of the 1999 constitution (as amended) which provides as follows.
“An appeal from a decision of an election petition tribunal or court shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal.
“The judgment of the tribunal was delivered on 12th October, 2011 and this court has up to 11th December, 2011 to deliver its judgment. I therefore hold that section 285(6) does not affect this appeal as it is so filed. Section 285(7) is the subsection relevant to this court. With section 285(7) this court is still within time to deliver its judgment”.
Hon. Justice Joseph Tine Tur, in his judgment went further to say “I shall add some comments of mine because the appeal raises an interesting issue relating to the jurisdiction of election tribunals to entertain petitions remitted to them by appellate courts for hearing or trial de novo, namely, whether the 180 days stipulated under section 285(6) of the constitution of the Federal Republic of Nigeria, 1999, as altered, for delivering judgment having expired, they shall decline jurisdiction to entertain the petition.
“There is no doubt that on 16th day of September, 2011 the Court of Appeal, Calabar Division, remitted this very petition to the election tribunal for retrial on the merit. An appeal is a proceeding undertaken to have a decision of a lover court or tribunal reconsidered or reviewed by a higher authority for possible confirmation or reversal. In most cases, where the judgment of the lower court or tribunal is set aside and a new trial is ordered unconditionally the appellate court intends that the suit shall be heard “de novo” meaning “anew”.
Hon. Justice Joseph Tine Tur delve into the Black law Dictionary to define the phrase hearing de novo as a complete new beginning “as if the original hearing had not taken place”.
He maintained that “the election petition tribunal from which this appeal emanated being subordinate to the Court of Appeal was bound to enforce the orders of this court made on 16th September, 2011 that the petition should be heard or retried de novo. Without a hearing no judgment can be delivered within 180 days as stipulated under section 285(6) and (7) of the constitution”.
He concluded that having examined the judgment of the tribunal, the Court of Appeal has arrived at the decision that the appeal once again succeeds, and the petition remitted to a tribunal differently constituted to hear and deliver judgment on merit in 180 days as stipulated by the constitution.
On the second issue of seeking leave, the court agreed with the Supreme Court judgment. It drew the attention of parties to the fact that paragraph 18(1) is clear and unambiguous. “There is no where leave was mentioned in the application of pre-hearing notice. In ALIYU IBRAHIM GEBI VS. ALHAJI GARUBA DAHIRU and 3 ORS (SUPRA), the Court held that an application may be made by a letter requesting for pre-hearing. This has also been endorsed by the Supreme Court which went further to state that an oral application to the Court is also sufficient”.