MRS. ANN ATIM BASSEY EYO v. HON. ALICE EKPENYONG & ORS.
(2011)LCN/4840(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of October, 2011
CA/C/NAEA/229/2011
RATIO
CREATION OF ELECTION TRIBUNALS: STATUTORY PROVISION ON THE CREATION OF THE NATIONAL AND STATE HOUSES OF ASSEMBLY ELECTION TRIBUNALS IN NIGERIA
…all Tribunals were constituted in accordance with S.295 (1) of the constitution of the FRN 1999 (as amended). “There shall be established for each state of the Federation one or more election Tribunals to be known as the National and State Houses of Assembly Election Tribunals..” It is therefore constitutional to establish one or more Tribunals for any State depending to a large extent the need to dispose of election petitions as quickly as possible. PER UZO I. NDUKWE-ANYANWU, J.C.A.
TRIAL DE NOVO: WHETHER WHEN A TRIAL IS TO COMMENCE DE NOVO ALL THE PROCESSES ALREADY FILED WOULD BE FILED AFRESH
When a trial is starting de novo it does not mean that processes already filed would be filed afresh. De novo means starting the hearing afresh. All other processes filed and orders remain valid. Orders can only be challenged on Appeal to a higher court i.e. the Court of Appeal. PER UZO I. NDUKWE-ANYANWU, J.C.A.
COURT OF CO-ORDINATE JURISDICTION: WHETHER ORDERS VALIDLY MADE BY A TRIBUNAL CAN BE UPTURNED BY A TRIBUNAL OF CO-ORDINATE JURISDICTION
Both Tribunals are of co-ordinate jurisdiction and therefore Tribunal No. 2 does not have the necessary vires to upturn orders by Tribunal No (1) given within its legitimate powers under the relevant law. PER UZO I. NDUKWE-ANYANWU, J.C.A.
Before Their Lordships
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
EJEMBI EKOJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
Between
MRS. ANN ATIM BASSEY EYOAppellant(s)
AND
1. HON. ALICE EKPENYONG
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Tribunal holden in Uyo Akwa Ibom delivered on 18th August, 2011.
The Petitioner of the Tribunal contested with the 1st Respondent in the Election held on 26th April, 2011 into the Mbo State constituency. The 1st Respondent was returned by the 3rd Respondent as the winner of that election.
Being dissatisfied, the petitioner presented a petition at the Tribunal No.EPT/AKS/HA/17/2011. The tribunal by a motion Exparte filed by the petitioner granted the petitioner his prayer and ordered that the forms TF 007 and TF 008 issued by the Tribunal’s Secretary would be deemed as properly issued by the Tribunal.
Subsequently the Tribunal transferred this petition to panel 2 with many other petitions. Panel 2 in its wisdom issued Hearing notices to the parties and requested the parties to address it on two issues namely:
1. Whether the Tribunal has jurisdiction to proceed with hearing of the pre-hearing session and the petition in view of the provisions of paragraph 18 and 47 of the 1st Schedule of the Electoral Act 2010 (as amended).
2. Whether or not the Tribunal has jurisdiction to hear and determine the motion exparte filed by the Petitioner’s counsel on 2nd July, 2011 in view of paragraphs 18 & 47 of the 1st Schedule to the electoral Act 2010 (as amended).
Parties agreed to file their written addresses in answer to the issues raised by the Tribunal suo motu. In considered judgment, the Tribunal held inter alia that it had no jurisdiction to hear this petition as it was deemed abandoned.
Being dissatisfied, the Petitioner? Appellant filed his notice and 10 Grounds of Appeal on the 7th September, 2011. The Appellant filed his brief on 23rd September, 2011 and articulated 4 issues for determination as follows:-
1. Whether there was any competent order Election Petition No: EPT/AKS/HA/17/2011, from one Election Tribunal (the original Tribunal) to another (hereinafter described as Tribunal No. 2)? Ground 10)
2. Whether the Honourable Tribunal (No.2) was not in error when it assumed jurisdiction over the Appellant’s petition in view of its enabling laws and available evidence before it?
(Ground 1)
3. Whether it was proper in law for the Honouroble Tribunal (No.2) to question, sit over or review the decisions/rulings of the former Tribunal (No. 1); instead of commencing the petition de novo? (Ground 3, 6 and 8).
4. Whether the Appellant’s application for the issuance of pre-hearing notice filed on 2nd June, 2010 and granted on 6th July, 2011 was competent and in the circumstances of this case and the provisions of the 1st Schedule to the electoral Act 2010 (As Amended). (Grounds 5, 7 and 9).
Also filed on the same 7th October, 2011 is on Appellants Reply Brief to the 1st Respondents brief and another to the 2nd Respondents brief.
The 1st Respondent filed his 1st Respondent’s Brief on 4th October, 2011. In it counsel gave what he captioned notice of preliminary objection and argued some on page 5-7 of his brief. The learned counsel did not articulate different issues but adopted those articulated by the Appellant and argued them seriatim.
I have looked closely at the 10 grounds of appeal and their Particulars filed by the Appellant and I must quickly say that they are to say the least very verbose. It is difficult to decipher from the 10 grounds and particulars what the Appellant’s grouse is all about.
However, I have looked at the reliefs sought by the Appellant, where the Appellant is indeed praying for the following.
(1) An order of this court setting aside the ruling/decision of the Tribunal (No.2) delivered on 18th August, 2011 dismissing the Petition.
(2) An order of this court remitting the Petition back (sic) for Retrial (sic) on the merit before the competent Tribunal.
The learned counsel to the Appellant had submitted that the Tribunal (2) was not properly constituted to hear and determine the Petition filed at the Tribunal. May I quickly point out that all Tribunals were constituted in accordance with S.295 (1) of the constitution of the FRN 1999 (as amended).
“There shall be established for each state of the Federation one or more election Tribunals to be known as the National and State Houses of Assembly Election Tribunals..”
It is therefore constitutional to establish one or more Tribunals for any State depending to a large extent the need to dispose of election petitions as quickly as possible.
I therefore hold that the 2nd Tribunal sent to Uyo Akwo Ibom was done within the provisions of S. 285 (1) of the 1999 Constitution.
The main thrust of this appeal is whether the Tribunal was in order when it granted the Appellant’s prayers on the face of his motion Exparte filed on 2nd July, 2011 i.e. An order for pre-hearing and deeming the forms TF 007 and TF 008 already issued by the Tribunals Secretary as properly served by the orders of the Tribunal.
This court has held that on application for pre-hearing notice can come in a number of ways. The Appellant in his wisdom filed a motion Exparte which was moved and granted. This motion was filed on 2nd July, 2011 the day that pleadings closed. This motion was granted and the Tribunal deemed as properly issued the form TF 007 and TF 008 already issued by the secretary as properly issued.
There appears to be done everything that ought to be done as regards the issuance of the forms TF 007 and TF 008. This order by the court was not challenged by any of the Respondents.
When this Petition EPT/AKS/HA/17/2011 was transferred to Tribunal (2) this Petition was still in it preliminary stages. The forms TF 007 and 008 has just been served: No evidence has been taken.
Issue No. 3 was whether it was proper in law for the Hon. Tribunal (No. 2) to question and sit over or review the decisions/Rulings of the former tribunal (No.1) instead of commencing the petition de novo.
I would right away state categorically that both Tribunal No. 1 and Tribunal No. 2 are of co-ordinate jurisdiction. The appellant has argued that both Tribunals being of co-ordinate jurisdiction none can set aside the orders of the other: He further argued that all previous steps taken in Tribunal No.1 would be taken as of no effect. Learned Appellants urged the court to hold that the petition would be left with only the Petition and the replies of the respondents including the Petitioners replies to the respondents, responses.
Counsel also argued that the Tribunal No. 2 did not exercise its discretion judiciously and judicially by not commencing the trial de novo.
The Petition was transferred to Tribunal (No. 2) together with the substuting orders of Tribunal No. 1.
When a trial is starting de novo it does not mean that processes already filed would be filed afresh. De novo means starting the hearing afresh. All other processes filed and orders remain valid. Orders can only be challenged on Appeal to a higher court i.e. the Court of Appeal.
Both Tribunals are of co-ordinate jurisdiction and therefore Tribunal No. 2 does not have the necessary vires to upturn orders by Tribunal No (1) given within its legitimate powers under the relevant law.
In the issues articulated by Tribunal No.2
“whether it had jurisdiction in view of paragraph 18 & 47 of the 1st Schedule of the Electoral Act (as amended)” is misplaced.
This question does not arise any more as the pre-hearing has already been ordered in accordance with paragraph 18 of the Electoral 2011 (as amended). The Tribunal No.2 had no vires or jurisdiction to revisit this issue.
Where Tribunal No.1 had ordered that TF 007 and TF 008 be issued that order subsists and is binding on Tribunal No.2.
Tribunal No.2 had no jurisdiction to upturn the orders of Tribunal No.1. Tribunal No.2 would start de novo from the pre-hearing sessions.
I therefore hold that the action by Tribunal No.2 is without any jurisdiction and therefore a nullity.
The appeal is therefore allowed. The judgment of Tribunal No.2 is set aside. This petition No.EPT/AKS/HA/17/2011 dismissed hitherto is remitted to Tribunal No.1 for trial de novo.
I make no orders as to costs.
EJEMBI EKO, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, UZO I. NDUKWE-ANYANWU, J.C.A.
The issue is the appeal is whether Panel No.2, which was of the co-ordinate status with panel No.1, had the powers or vires in law to up turn orders validly made previously by Panel No. 1 when the petition was before the latter. My answer is that Panel No.2 does not possess that power to act as an appellate Tribunal over or in decisions or orders mode by panel No. 1 in the some matter when the matter started de novo before Panel No. 2. The said Panel No. 2 is functus officio in the circumstance. It has not been shown that the orders made previously by Panel No.1 which panel No.2 purportedly set aside were made by Panel No. 1 ultra vires its powers or that the orders were manifestly illegal and therefore void ab initio.
The appeal is allowed by me.
Consequently, the petition No.EPT/AKS/HA/17/2011 is hereby remitted to another Tribunal or panel for trial de novo.
Parties shall bear their respective costs.
JOSEPH TINE TUR, J.C.A.: I have read the judgment delivered by Lord Uzo I. Ndukwe-Anyanwu, JCA and I am in agreement.
Appearances
Alfred Edem Esq.For Appellant
AND
E. D. Ukoh Esq.
Bassey Okon Willie Esq.For Respondent
