DR. CHRISTOPHER AKPAN ENOCH V. HON. DAN AKPAN & ORS.(2011)

DR. CHRISTOPHER AKPAN ENOCH V. HON. DAN AKPAN & ORS.

(2011)LCN/5076(CA)

In The Court of Appeal of Nigeria

On Friday, the 16th day of September, 2011

CA/C/NAEA/193/2011

RATIO

AN ISSUE FOR DETERMINATION BY AN APPEAL COURT

LAW OF EVIDENCE: WHETHER A FACT THAT IS DENIED NEEDS FURTHER PROOF

What is not denied or disparaged needs no further proof. No man or woman sets out to prove that which has not been denied or contradicted. See Section 75 of the Evidence Act, 2004; Olale vs. Ekwelendu (1989) 7 SCNJ 181; In Re Odutola (2002) FWLR (Pt.119) 178 at 188 and Akuma Industries Ltd vs. Ayman Enterprises Ltd. (1999) 13 NWLR (Pt.634) 66 at 88. PER.JOSEPH TINE TUR, J.C.A.

JURISDICTION OF A COURT

Jurisdiction must be vested in a tribunal before the rights of the parties may be determined. See Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76. If a tribunal has no jurisdiction to extend time for the doing of any act she cannot make any binding orders. See Nyarko vs. Akowuah 14 WACA 426. PER. JOSEPH TINE TUR, J.C.A.

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

DR. CHRISTOPHER AKPAN ENOCH Appellant(s)

AND

1. HON. DAN AKPAN
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The Independent National Electoral Commission (hereinafter referred to as “The 3rd Respondent”) conducted elections into the Etinan/Nsit Ubium/Nsit Ibom Federal Constituency on the 9th day of April, 2011. Dr. Christopher Akpan Enoch (hereinafter known as “the petitioner”) contested the election on the platform of the Action Congress of Nigeria while Honorable Dan Akpan (hereinafter called the “1st” Respondent”) was fielded by the People Democratic Party (hereinafter called “the 2nd Respondent”) in this appeal. One John Okon contested on the platform of the All Progressive Grand Alliance (APGA). At the close of the polls the 3rd Respondent returned Hon. Dan Akpan of the Peoples Democratic Party as the duly elected member of the House of Representatives having polled 30,576 votes as against 19,831 votes polled by the petitioner of the Action Congress of Nigeria,. John Okon was credited with 3,052 votes. Being aggrieved Dr. Christopher Akpan Enoch presented a petition before the Tribunal sitting at Uyo in Akwa Ibom State on 30th day of April, 2011. The grounds upon which the petition was presented were as follows:
“20. The Petitioner therefore avers that the 1st Respondent was not duly elected as he did not score the majority of valid votes cast.”
GROUNDS UPON WHICH THE PETITION IS BROUGHT
The grounds upon which the petition is brought are:
“(a) That the General Election for the Etinan Federal Constituency conducted on 9th April, 2011 in 60 polling units was invalids by reason of corrupt practices.
(b) That the 1st Respondent (Hon. Dan Akpan) was not duly elected by majority of the valid votes cast at the General election of 9th April, 2011.
(c) The General election for the Etinan Federal Constituency conducted by the 3rd Respondent, on 9th April, 2011 was characterized by non-compliance with the provisions of the Electoral Act, 2010 (as amended). The facts relied upon are as stated in paragraphs 1-20 above.
PARTICULARS OF CORRUPT PRACTICES
1. The top members of the 2nd Respondent in connivance with the 1st Respondent who are serving officials of the Akwa Ibom State Government invaded the polling zones with thugs and armed security operatives to intimidate, harass the voters and the election officials and in some cases fired gunshots to enable them conduct illegal/massive thumb printing of ballot papers and induce the voters with money.
2. The agents of the 3rd Respondent knowing fully well that there were irregularities connived with agents of the 1st and 2nd Respondents to credit the 1st Respondent with unlawful votes, collated and announced same purporting same to be valid votes cast and returned the 1st Respondent as duly elected.”
RBLIEFS SOUGHT
The petitioner is praying for the following reliefs:
“(a) That it be determined that the 1st Respondent was not duly elected and did not score the lawful majority votes cast on the 9th April, 2011 Etinan Federal House of Representatives Constituency Election and ought not to have been returned by the 3rd Respondent.
(b) That it be determined that the votes allegedly scored or credited to the 1st Respondent in 25 polling units in Etinan Local Government Area, 34 polling units in Nsit Local Government Area and 2 polling units in Nsit Ibom Local Government Area as follows… Are invalid on ground of corrupt practices, fraud, illegal thumb printing of ballot papers, ballot stuffing and outright rigging.
(c) That it be determined that the General election in the 61 potting units in the Etinan/Federal Constituency conducted on the 9th April, 2011 suffered from non-compliance with the Electoral Act, 2010 (as amended).
(d) That it be determined that the petitioner scored the highest number of valid votes cast at the said election and ought to have been returned by the 3rd Respondent as duly elected.
(e) AN ORDER declaring the petitioner as the winner of the Etinan Federal Constituency election of 9th April, 2011 having scored the highest number of valid votes cast in the said election.” Upon service of the petition a memorandum of appearance was entered by Sam Akpabio Esq, of learned Counsel to the 1st Respondent on 13th May, 2011. The address for service of the processes of the Tribunal on the 1st Respondent was:
“Sam Akpabio, Esq,
C/o His Solicitors,
Liberal Chambers,
53 Wellington Bassey Way,
Uyo. ”
On 09-05-2011 Samuel Ikpo Esq, entered a memo of appearance on behalf of Peoples Democratic Party (2nd Respondent) and directed that service of processes should be:
“C/o His Solicitors,
Samuel Ikpo Esq,
Zion Chambers,
26 Oron Road, Uyo.”
But when the 2nd Respondent filed a Reply to the petition on 23rd day of May, 2011 the address for service was to be on:
“Etim E. Okon, Esq,
(2nd Respondent’s Counsel),
Perry Chambers,
Etim Okon & Associates,
115 Oron Road, Uyo.”
The 3rd Respondent namely, the Independent National Commission did not initially file a memo of appearance but did so thereafter with leave of tribunal.
On 06-06-2011 the petitioner’s learned Counsel filed a Reply in reaction to the 1st Respondent’s Reply and directed that it be served on the 1st Respondent:
“C/o His Solicitor SAN (sic) Akpabio Esq,
Liberal Chambers,
53 Wellington Bassey Way,
Uyo.”

The 2nd Respondent was to be served the Reply:
“C/o Her Solicitor Dominic Okon Esq,
Providence Chambers,
37 Okon Road,
Uyo.”

The 3rd Respondent was to be also served at:
“Udo Udoma Avenue,
Uyo,
Akwa Ibom State.”
The petitioner’s Reply meant for service on the 2nd Respondent at her solicitors address was erroneously served on Barrister Emmanuel Isiongidoho on 4th day of July, 2011. But Counsel redelivered same to learned counsel to the 2nd Respondent on that same day.
Paragraph 18(1) and (2) and (3) of the 1st Schedule to the Electoral Act, No.6 of 2010 as amended reads as follows:
“18(1) Within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.
(2) Upon application by a petitioner under sub-paragraph (1) of this paragraph, the Tribunal or Court shall issue to the parties or their Legal practitioners (if any) a pre-hearing conference notice as in Form 007 accompanied by a pre-hearing information sheet as in form TF 008 for:-
(a) the disposal of all matters which can be dealt with on interlocutory application;
(b) giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions;
(c) giving directions on order of witnesses to be called and such documents to be tendered by each party to prove their cases having in view the need for the expeditious disposal of the petition and;
(d) fixing clear dates for hearing of the petition.
(3) The Respondent may bring the application in accordance with sub-paragraph (1) where the petitioner fails to do so, or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.”
The learned counsel to the petitioner did not apply for the issuance of pre-hearing notice on the grounds that the petitioner’s Reply was served on the wrong Counsel. But the learned Counsel to the 2nd Respondent admitted in the Tribunal he received the Petitioner’s Reply on the 4th day of July, 2011 from the counsel who was erroneously served. Thus the 7 days under paragraph 18(1) of the 1st Schedule to the Electoral Act supra for the petitioner to apply for the issuance of a pre-hearing notice had commenced from the 5th day of July, 2011 to expire on 11th July, 2011. The day of service of the petitioner’s Reply ought to be excluded in computing time. see Akeredolu vs Akinremi (1985) 2 NWLR (Pt.10) 787. After the seven days had expired, without any application from either the petitioner or the Respondents, the Secretary of the Tribunal issued Form 007 to the parties setting a date for the commencement of the pre-hearing conference. The Tribunal conducted pre-hearing businesses based on Form TF007 issued suo motu by the Secretary to the Tribunal.
On the 15th day of July, 2011 Mr. Akpabio Esq, of learned counsel to the l1st Respondent applied by motion on notice that all the businesses conducted by the Tribunal as a result of the unauthorized acts of the secretary of the Tribunal be set aside for lack of jurisdiction. Having heard argument from counsel appearing for the parties the Tribunal held at page 763 to 764 of the printed record as follows:
“In the instant case it is not in doubt that the petitioner’s reply to the answers/reply of the 3rd Respondent was filed on the 1st of July, 2011 and same had been served on the 4th of July, 2011. We hold that pleadings are deemed to have closed between the parties in this petition on the 4th of July, 2011. It is also not in doubt that the Secretary to this Tribunal issued a pre-hearing session on the 8th of July, 2011 for the pre-trial session to hold on the 20th of June,2011 which was issued without any formal application for same.
In view of the foregoing leave is hereby granted to the 1st Respondent/Applicant for an order setting aside the hearing notice for pre-hearing session in this petition. It is hereby set aside along with the pre-trial information sheets attached thereto as well as the purported pre-trial session held from 20th June, 2011 to 12th July, 2011.
In view of the fact that pleading closed on the 4th of July, 2011 the petitioner ought to have applied 7 days from the 4th of 2011. He did not do so consequently he is in breach of paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended). It is on this note that we agree with the submissions of Counsel to the Respondent having come under paragraph 18(3) of the 1st Schedule to the Electoral Act that this petition ought to be dismissed and is hereby dismissed.”
This ruling was delivered on 19th day of July, 2011. Learned Counsel to the petitioner presented a Notice of Appeal against this ruling on 3rd day of August, 2011. The ruling is challenged on four grounds from which the learned Counsel distilled four issues for determination wit:
“1. Whether the Tribunal was right in taking the motion for dismissal of the petition when the motion to regularize the petition was pending before it.
2. Whether the failure of the Tribunal to produce on the material issue of whether there was proper service of the petitioner’s Reply to the 3rd Respondent’s Reply on the 2nd Respondent in accordance with the provisions of paragraphs 12(3) and 48(2) of the Electoral Act, 2010 as amended did not lead to a miscarriage of justice.
3. Whether the Tribunal was right in holding that pleading closed on 4th July, 2011 when the date of service of the petitioner’s Reply to the 3rd Respondent’s Reply on the 2nd Respondent was not ascertained.
4. Whether the Tribunal was right when it failed to consider and pronounce on the material issue of the inability of the petitioner to access the endorsement copy of proof of service of the Petitioner’s Reply to the 3rd Respondent’s Reply on the 2nd Respondent in the Tribunal Registry until 12th July, 2011 which was canvassed and argued before the tribunal which led to a wrong conclusion that the petitioner failed to apply for the issuance of Form TF 007.”
The learned Counsel to the 1st Respondent streamlined the four issues raised by the learned counsel to the petitioner bearing in mind that arguments proffered in respect of these issues were repetitive. I also agree they are. Counsel then formulated the following lone issue for determination to wit:
“In the circumstances of this case and the facts before the trial Tribunal whether the Tribunal was right in holding that pleadings closed on the 4th of July, 2011 and the petitioner ought to have applied 7 days from the 4th July, 2011 in compliance with the provisions of paragraph 18(1) Electoral Act, 2010 (as amended) and consequently dismissed the petition as abandoned pursuant to paragraph 18(4) thereof.”
At the hearing of this appeal on 14th September, 2011 learned counsel to the appellant/petitioner adopted the Brief of Argument of 15th August, 2011 and the Reply Brief of 8th September, 2011. Learned Counsel urged the court to set aside the ruling of the Tribunal and remit the petition to be determined by another Tribunal.
Learned Counsel to the 1st Respondent adopted his brief filed on 19th August, 2011 urging this court to dismiss the appeal. There was no brief of argument from the 3rd Respondent.
Before considering the issues set down for determination l wish to remind Counsel and the parties that time is of essence in the filing and determination of election petitions. The legislative intention is that the Tribunal and the Court of Appeal shall adopt the best course that will ensure a just, expeditious and economical disposal of the petition or an appeal emanating from the judgment or ruling of Tribunals. This Court will not entertain academic or hypothetical questions or prolix number of issues that have no bearing on the facts or matters in controversy.

Issues should be formulated by the learned counsel to the appellant to cover more than one ground of appeal so as to save the time of the Court in arriving at a just decision. See Saude vs Abdullahi (1989) 7 SCNJ 216; Eze vs. FRN (1987) 1 NWLR (Pt.51) 506 at 521-522; Osinupebi vs Saidu (1982) 7 SC 104 at 110-111. An issue for determination by an Appeal Court may arise from many grounds of appeal not the other way round. See Kalu vs Odili (1992) 6 SCNJ (Pt.1) 76 at 93.
Having perused the facts before the Tribunal and the ruling of 19th July, 2011 and upon reading the briefs of argument filed by learned Counsel to the petitioner/appellant on 15th August, 2011 and the Reply to the 1st Respondent’s Brief of 8th September, 2011, I am of the humble view that three issues for determination have emerged.
I shall, to save time consider these issues together. The argument by learned Counsel to the petitioner is that since he had filed an application to regularize his client’s position that should have been taken before the 1st Respondent’s application for the dismissal of the petition, citing Long John vs Blakk (1989) 59 LECN 3864 at 3874; Akpan vs Bob (2011) 193 LECN 78 at 96 and Mobil vs. Monokpo (2004) 115 LRCN 3016 at3029.
Learned Counsel further submitted that the Tribunal should have pronounced on the failure of the Registry to serve the petitioner’s Reply on the 2nd Respondent before determining when pleadings closed, citing paragraphs 12(3) and (4) of the 1st Schedule to the Electoral Act, 2010 as amended. That oral evidence should have been called by the Tribunal before it could be ascertained as to the actual date pleadings closed, failure of which occasioned a miscarriage of justice. Learned Counsel cited the following authorities to support his proposition, namely Inakoyi & Ors vs Adeleke & Ors (2007) 143 LRCN 1 at 24; Ojong vs Duke 14 NWLR (Pt.841) 581 at 618; Amaechi vs INEC (2008) 158 LRCN 1 at 44. Counsel urged this Court to allow the appeal.
The 1st Respondent’s learned Counsel drew this Court’s attention to the fact that though service of the Petitioner’s Reply was wrongly done the process had been returned the same day to the 2nd Respondent’s learned Counsel. This was admitted by learned Counsel to the 2nd Respondent at the Tribunal. The Tribunal was right to have held that pleadings closed on 4th day of July, 2011 and to have dismissed the petition. Counsel submitted that time could not be extended for the petitioner to comply with the provisions of paragraph 18(1) of the Electoral Act, 2010 as amended. Learned Counsel urged that this appeal should be dismissed.
In the application filed by the learned counsel to the 1st Respondent on 15-07-2011 to set aside the pre-hearing notice issued by the Secretary of the Tribunal without jurisdiction, paragraphs 4 to 7 of the affidavit in support of the application deposed to by Edet Bassey Esq, read as follows:
“4. The 1st Respondent herein filed his Reply/Answers to the petition on the 23rd May, 2011.
5. The 2nd Respondent equally filed her Reply/Answers to the petition on the 23rd May, 2011. The 3rd Respondent by the leave of this Court had her Reply/Answer to the petition deemed as properly filed on the 28th of June, 2011.
6. In all these the Petitioner filed Replies to all the answers of the Respondents as follows:
(a) Petitioner’s Reply to 1st Respondent’s Reply is dated 4th June, 2011 and filed on the 6th of June, 2011.
(b) Petitioner’s Reply to 3rd Respondent’s reply is dated 1st of July, 2011 and filed on the same day and was served on ALL the Respondents on the 4th of July, 2011.
7. The 3rd Respondent was the last to file her reply as same was made possible by the Order of the Tribunal granting it on extended time within which to do so.”
The petitioner filed a counter-affidavit on 18-07-2011. Paragraphs 1 and 2 thereof read as follows:
“1. That I am the Petitioner on record and I have been served with the motion on Notice of the 1st Respondent filed on 15-07-2011.
2. That paragraphs 3, 4, 5, 6, 7, 8 and 10 of the supporting affidavit are admitted.”
The application filed on 18-07-2011 to regularize the petitioner’s position was clear evidence that the seven days within which he should have applied for the issuance of pre-hearing notice since 04-07-2011 had elapsed on 11-07-2011 hence the need for the application. The fact that service of the petitioner’s Reply was effected on the wrong person and at the wrong address but was however returned or re-delivered to the 2nd Respondent’s Counsel was not challenged or disparaged by learned counsel to the petitioner either before the Tribunal or this court.
What is not denied or disparaged needs no further proof. No man or woman sets out to prove that which has not been denied or contradicted. See Section 75 of the Evidence Act, 2004; Olale vs. Ekwelendu (1989) 7 SCNJ 181; In Re Odutola (2002) FWLR (Pt.119) 178 at 188 and Akuma Industries Ltd vs. Ayman Enterprises Ltd. (1999) 13 NWLR (Pt.634) 66 at 88.
The error in serving the petitioner’s Reply on the wrong Counsel having been timeously corrected or rectified the same day can no longer be a ground to argue that there was a miscarriage of justice. Therefore, it does not lie within the province of the petitioner/appellant to seek to impugn that which has been admitted namely, that on 4th July, 2011 pleadings had closed.
Whether the Tribunal acted within the ambit of the law to have dismissed the petition as abandoned by the petitioner is covered by paragraph 18(4) and (5) of the 1st Schedule to the Electoral Act No. 6 of 2010 as amended which reads as follows:
“18(4) Where the petitioner and the respondent fail to bring an application under this paragraph, the tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.
(5) Dismissal of a petition pursuant to sub-paragraph (3) and (4) of this paragraph is final and the tribunal or Court shall be functus officio.”
In the consideration of this issue I shall bear in mind that the Secretary of the Tribunal acted without jurisdiction when he issued, without an application from either the petitioner or the Respondent, Form TF007 for pre-hearing conference. Such an application was to have been made firstly by the petitioner failing which any of the Respondents could have done so, or in the alternative, they could have applied for the dismissal of the petition after the close of pleadings. Having acted without jurisdiction the Tribunal was in law and conscience bound, upon the application of the 1st Respondent, to declare the acts of the Secretary null and void, setting aside all actions founded thereupon as a nullity. No action can be founded on nullities. see Bello vs INEC (2010) 8 NWLR (Pt.1196) 342; Okoye vs Nigeria Construction Furniture Co. Ltd (1991) 6 NWLR (Pt.199) 501; Benjamin Mcfoy vs UAC (1961) 3 WLR 1405.
An order of the tribunal was needed to set aside the nullity acts of the Secretary in suo motu issuing pre-hearing notice. See Akinfolarin vs. Akinola (1994) 4 SCNJ (Pt.1) 30 at 47 – 49; Rossek vs ACB (1993) 8 NWLR (Pt.312) 282 and Aladegbemi vs Fasanmade (1988) 3 NWLR (Pt.81) 129. The effect is that between 4th to 11th July, 2011 there was no application from either the petitioner or any of the Respondents for the issuance of pre-hearing notice as in Form TF007. On the 15th day of July, 2011 the 1st Respondent rightly brought the application for the dismissal of the petition.
Counsel’s argument that the application filed by the petitioner to regularize his client’s position should have been heard before the 1st Respondent’s application to dismiss the petition is not supported by the provisions of paragraphs 18(4) and (5) of the 1st Schedule to the Electoral Act, 2010 as amended.
Once the seven days within which the petitioner ought to have applied for the issuance of the pre-hearing notice expired on 11th July, 2011, any of the Respondents could have brought an application for the dismissal of the petition. By virtue of paragraph 18(4) of the 1st Schedule to the Electoral Act No.6 of 2011 as amended the petitioner was in such a circumstance precluded from filing an application for an extension of time for the Tribunal to direct the Secretary to issue Form 007. Where the application was filed the Tribunal was under a mandate to refuse to entertain the application. The proper order was for the Tribunal to strike out the application. Had the Tribunal entertained the application she would have acted without jurisdiction.
Jurisdiction must be vested in a tribunal before the rights of the parties may be determined. See Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76. If a tribunal has no jurisdiction to extend time for the doing of any act she cannot make any binding orders. See Nyarko vs. Akowuah 14 WACA 426.

An unauthorized process when filed should be struck out. See Odiase & Ors. vs. Agbo & Ors. (1972) 1 All NLR (Pt.1) 170 at 117. The effect is as if the process was never filed at all. See Ikeakwu vs Nwankpa (1967) NMLR 224 at 227 and Amadi vs Okoli (1977) 7 SC 57 at 58. Accordingly, I strikeout the application filed by the petitioner on 18-07-2011 before the Tribunal and dismiss this appeal as lacking in merit. I award N20,000.00 cost to the 1st Respondent.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read while in draft from the leading judgment just delivered by my learned brother Joseph Tine Tur, JCA. I agree with the same to the effect that the appeal is devoid of merit and it is accordingly dismissed by me too. I also abide by the consequential orders contained in the said lead judgment including the one on costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: I am in full agreement with the reasoning in the lead judgment in this appeal delivered by my learned brother, Joseph Tine Tur, JCA and I agree that the appeal is devoid of any merit. I therefore dismiss the appeal with costs of N20,000.00 costs as in the lead judgment.

Appearances

S.J. Ikpo Godwin;For Appellant

AND

Samuel Akpabio;
Edet Bassey;
Ubong Offiong;For Respondent