IDONGESIT GODWIN AKPAN UDOKPO V. KENNETH EDET ARCHIBONG & ORS
(2011)LCN/4798(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of September, 2011
CA/C/NAEA/195/2011
RATIO
UNAPPEALED FINDINGS/ORDER: EFFECT OF AN UNAPPEALED FINDING AND HOLDING OF THE TRIBUNAL
It is important to state that there was no appeal against the finding and holding of the Tribunal that pleadings closed on 8th July, 2011 as well as the order of 19th July, 2011 granting the prayer for pre-hearing notice. There was also no application for setting aside. A decision of court not appealed against is deemed accepted by the parties and same is therefore binding. See Iyoho v. Effiong (2007) All FWLR (Pt. 374) 204. PER ISAIAH OLUFEMI AKEJU, J.C.A.
DUTY OF THE COURT: WHETHER A TRIBUNAL OR COURT CAN APPROBATE AND REPROBATE IN THE SAME PETITION
It was wrongful for the Tribunal to have approbated and reprobated in the same petition. PER ISAIAH OLUFEMI AKEJU, 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
IDONGESIT GODWIN AKPAN UDOKPO – Appellant(s)
AND
1. KENNETH EDET ARCHIBONG
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A.: (Delivering the Leading Judgment): This appeal is against the ruling delivered by the National State House of Assembly Election Tribunal Holden at Uyo (hereinafter called the Tribunal) on 19th July, 2011.
The Appellant herein was a Contestant at the election conducted by the 3rd Respondent on 9th April, 2011 into the House of Representative Seat for Itu Federal Constituency, and at the end of which election the 3rd Respondent declared the 1st Respondent as winner and the duly returned candidate. The appellant who felt dissatisfied with the declaration filed Election Petition No: EPT/KKS/HR/07/2011 at the Tribunal on 30th April, 2011.
By a motion on notice filed on 11th July, 2011, the 1st Respondent sought the order setting aside the hearing notice for pretrial session as well as the pre-trial information sheet attached thereto as issued by the Tribunal’s Secretary and another order for dismissal of the petition for failure by the Appellant to comply with provisions of paragraphs 18 (1) and 47 (2) of the 1st schedule to the Electoral Act 2010 (as amended).
The ruling on the 1st Respondent’s motion was delivered by the Tribunal on 14th July, 2011. The Tribunal granted the first relief and set aside the processes as sought by the 1st Respondent, but refused the prayer for dismissal of the petition for the reason that pleadings in the petition closed on 8th July, 2011 when the petitioner’s Reply to the 2nd Respondent’s Reply was filed.
By another motion on notice filed on 16th July, 2011 the 1st Respondent sought the dismissal of the petition for failure to comply with paragraph 18 (1) and (3) of the 1st Schedule to the Electoral Act, 2010 (as amended). Meanwhile the Appellant had on 14th July, 2011 applied for an order directing the issuance of pre-trial notices. The two applications were heard on 19th July, 2011, and the Tribunal allowed the 1st Respondent’s motion and dismissed the petition for non-compliance with paragraph 18 (1) and (3) of the 1st Schedule to the Electoral Act, 2010 (as amended).
Aggrieved by the decision of the Tribunal in the said ruling of 19th July, 2011, the Appellant filed a Notice of Appeal on 3rd August, 2011 containing three grounds of appeal, following which the Appellant’s Brief of Argument was filed on 15th August, 2011. The following issues were formulated for determination:
“1. Whether the Tribunal rightly assumed jurisdiction to entertain the 1st Respondent’s motion of 16th July, 2011 touching and concerning compliance with paragraph 18 (1) of the 1st Schedule to the Electoral Act when it had earlier ruled on the same issue on 14th July, 2011. (Ground 1)
2. Whether the Tribunal was right in dismissing the petition when the orders of the Tribunal made on 14th July, 2011 and 19th July, 2011 were still valid and subsisting. (Ground 2)
3. Whether the Tribunal was right in holding that application for issuance of pre-hearing Notice should be issued to each Respondent individually.”
The 1st Respondent’s brief of Argument, settled by David Olande Rsq. was filed on 19th August, 2011 and the lone issue there is:
“Whether the Tribunal was right in dismissing the Petition for failure to comply with the mandatory provisions of paragraph 18 (1) of the 1st Schedule to the Electoral Act.”
The 2nd Respondent in the brief filed also on 19th August, 2011 and settled by Joseph M. Uduk Esq. adopted the three issues of the Appellant which had been reproduced earlier. Each learned counsel argued the issues raised in the brief of argument.
Learned counsel for the Appellant, Samuel Ikpo Esq, filed Reply Brief separately for the Briefs of the 1st and 2nd Respondents on 2nd September, 2011.
From all the issues formulated by the parties in their Briefs of Argument which have been duly considered, the issue in this appeal is whether the Tribunal rightly treated the petition as abandoned under paragraph 18 (1-3) of the 1st Schedule to the Electoral Act 2010 (as amended) and dismissed the same under paragraph 18 (4) upon the application of the 1st Respondent.
A thorough appraisal of the record of appeal has disclosed that on 4th July, 2011, upon an application by the 1st Respondent, the tribunal had held that pleadings in the petition closed on 8th July, 2011 when the Petitioner filed his Reply to the 2nd Respondent’s Reply. The Appellant on 14th July, 2011, by a motion on notice, applied inter alia for issuance of pre-hearing notice, and on 16th July, 2011, the 1st Respondent applied that the petition be dismissed against the 1st Respondent for petitioner’s failure to comply with paragraph 18 (1) and (3) of 1st schedule to the Electoral Act, 2010 (as amended).
The ruling delivered on 19th July, 2011 which is the subject of this appeal covered the above two applications. On the Appellant’s application for pre-hearing notice, the Tribunal held at page 792 thus:
“We have considered the submission of the parties and we hold that there is merit in the application, hence it is hereby granted as prayed.”
Thereafter at page 797 in respect of the 1st Respondent’s application, the same Tribunal held that:
“In view of the foregoing we find the application of the 1st Respondent meritorious and ought to be granted.
The petition is hereby dismissed for the non-compliance with paragraph 18 (1) and (3) of the 1st Schedule to the Electoral Act, 2010 (as amended).”
Without doubt the implication of the ruling of the Tribunal that the pleadings in the petition closed on 8th July, 2011 was that the petitioner was within time to apply for pre-hearing session which if actually granted in the ruling of 18th July, 2011. The same Tribunal in another breadth on the same date and indeed after a few hours dismissed the same petition in its entirety.
It is important to state that there was no appeal against the finding and holding of the Tribunal that pleadings closed on 8th July, 2011 as well as the order of 19th July, 2011 granting the prayer for pre-hearing notice. There was also no application for setting aside. A decision of court not appealed against is deemed accepted by the parties and same is therefore binding. See Iyoho v. Effiong (2007) All FWLR (Pt. 374) 204. It was wrongful for the Tribunal to have approbated and reprobated in the same petition.
The conclusion is that this appeal succeeds and it is allowed. Consequently the ruling of the Tribunal delivered on 18th July, 2011 dismissing Election Petition No. EPT/AKS/HR/07/11 is set aside and the same Petition is remitted to the Tribunal sitting at Uyo, Akwa Ibom State for hearing.
I make no order as to costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A: I have had the privilege of reading wile in draft form, the leading judgment of my learned brother, Isaiah Olufemi Akeju, JCA. He has proficiently and diligently considered all the issues raised in the said appeal. I am thus in full agreement with the review, reasoning and conclusion reached therein, to the effect that the appeal has merit and it should be allowed. It is also allowed by me and I abide by the consequential orders made therein, inclusive of the order regarding costs.
JOSEPH TINE TUR, J.C.A.: The Independent National Electoral Commission (3rd Respondent) conducted election into the Federal House of Representative Itu Federal constituency Akwa Ibom State on 9th April, 2011. At the close of polls and on the same day the 3rd Respondent declared Kenneth Edet Archibong (1st Respondent) of the Peoples Democratic party (2nd Respondent) the duly elected member of the House of Representatives. Being aggrieved Idongesit Godwin Akpan Udokpo (Petitioner) of the Action Congress of Nigeria presented a petition before the Election Tribunal holding at Uyo in Akwa Ibom state on the 30th April, 2011. Upon exchange of pleadings the 1st Respondent raised a preliminary objection to the hearing of the petition on the grounds already set out by my Lord in the lead judgment. I do not intend to once again set out the grounds of objection and argument by learned Counsel.
The fact as found by the Tribunal on 04-07-2011 was that pleadings closed on 8th July, 2011. The petitioner had to have applied for a pre-hearing conference or notice under paragraph 18(1) and (2) of the 1st Schedule to the No.6 of 2010 as amended which 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 prehearing information sheet as in Form TF 008…”
On 14th day of July, 2011 the appellant applied for a pre-trial conference by motion on notice. But on the 16th day of July, 2011 the 1st Respondent applied for the dismissal of the petition for non-compliance with the provisions of paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010 (as amended). The Tribunal heard argument and dismissed the petition.
To me, pleadings having closed on 8th July, 2011 as rightly held by the Tribunal and supported by the records, the seven days within which to apply for a pre-hearing notice as in Form TF007 started to run from the 9th July, 2011 and expired on 15th July, 2011. See Azeez Akeredolu v. Akinremi (1985) 2 NWLR (Pt.10) 787 at 793-794. Therefore the Tribunal erred in law and in fact to have dismissed the petition for non-compliance with the provisions of paragraph 18 (1) of the 1st Schedule to the Electoral Act, 2010 as amended.
From the facts and arguments presented before this Court, the Tribunal was under a mandate to issue Form TF007 accompanied by Form TF008 to the parties or their Legal Practitioners for the pre-hearing conference to commence and I so hold.
Accordingly, I allow this appeal and direct that Forms TF007 and TF008 be issued to the parties to enable the petition to be determined on the merit.
Appearances
Samuel Ikpo Esq.For Appellant
AND
David Obande Esq.
Joseph M. Uduk, Esq.For Respondent
