Akwa Ibom ACN Appeals Tribunal’s Ruling

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Jul 25, 2011 No Comments ›› ACN (ji)

The Akwa Ibom State chapter of the Action Congress of Nigeria (ACN) and two others have appealed the decision of the  Governorship Election Petition Tribunal, dismissing its petition against the declaration of Governor Godswill Akpabio as winner of the last election.

ACN, its governorship candidate and his running mate, Senator John Akpanudoedehe and Chief Ime Umanah, in the appeal filed before the Court of Appeal, Calabar, argued that the tribunal erred in law in reaching its decision.

In the notice of appeal filed by their lead counsel, Prof Yemi Osinbajo, the appellants raised 10 grounds of appeal. They are seeking six reliefs, among which is an order allowing the appeal and setting aside the ruling of the tribunal of July 18.

They are also seeking an order that the petitioners’ petition be remitted to the tribunal for it to be heard on its merit by another panel of Justices.

The appellants also want the court to set aside the order of the tribunal affirming the return of Akpabio, as  governor and its order discharging the order ex-parte made by the tribunal on July 5.

They urged the court to hold that the petitioners/appellants’ letter and motion ex-parte filed for issuance of pre-hearing notice were made within the time prescribed under paragraph 18(1) of the First Schedule to the Act.

The appellants are also praying for an order striking out and or dismissing the 1st and 2nd respondents’ application dated July 11, 2011 on the ground that they are incompetent.

They faulted the tribunal’s c hair for reading a ruling/judgment that was not authenticated by any of the justices of the tribunal, stating that Section 294 (1) of the 1999 Constitution (as amended) expressly stipulates that the judgment of a court shall be duly authenticated.

They argued that the failure of the judges of the tribunal to authenticate the ruling/judgment in the instant case occasioned substantial miscarriage of justice as provided in Section 294 (5) of the 1999 Constitution (as amended); saying an alleged ruling/judgment not duly authenticated is not a valid judgment in law, saying it is void.

They contended that the tribunal misapplied the case of Okereke v. Yar’Adua (2008) 12 NWLR (pt 1100) 95 to the petitioners’ application for an order for the issuance of the pre-hearing notice and  thus holding that the leave of court was imperative to move petitioners’ application for the commencement of pre-hearing session.

“The case of Okereke v. Yar’Adua is not an authority for the position that leave of the tribunal shall be obtained before an application for issuance of pre-hearing notice can be brought and ordered.

The appellants also condemned the tribunal for grating a substantive prayer not sought for by affirming Akpabio and Ekere as winners of the disputed election.

“No governorship election was held in Akwa Ibom State on April 12, 2011. The tribunal has no jurisdiction to grant reliefs not sought by parties. The 1st and 2nd respondents did not seek relief that election of the 1st respondent be affirmed in their application. Granting of the relief not sought has occasioned a miscarriage of justice to the petitioners. The holding is perverse’’, they argued.

They contended that the tribunal erred in law when it held that the petitioners ought to have sought for and obtained the leave of the tribunal to move the application for issuance of pre-hearing notice.

According to them, application for issuance of pre-hearing notice is guided by provision of Paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended), saying Paragraph 47 relied upon by the tribunal was totally inapplicable to the application for issuance of pre-hearing notice.

The appellants faulted the tribunal for setting aside the proceeding of July 5 on the basis that the petitioner did not apply for leave to bring the ex-parte application for issuance of pre-hearing notice.

They said the tribunal has no jurisdiction to refuse to issue pre-hearing notice within time, saying the relevant provision for issuance of pre-hearing notice is paragraph 18 and not paragraph 47 of the first schedule to Electoral Act, 2010 (as amended).

The appellants also criticised the tribunal for holding that there was no application known to law for a pre-hearing session as at the date the ruling was delivered.

They argued that the tribunal’s reason for its decision is the erroneous conclusion that no leave was obtained to move the petitioners’ application for pre-hearing session which was moved and which the tribunal considered and granted on July 5, 2011.

“There was a competent valid and proper application filed within time before the tribunal which it considered and granted. The tribunal failed to consider the fact that all parties agreed that pleadings indeed closed on June 27, 2011 and that the petitioners filed both letter and motion ex-parte after the service of their reply with  seven days as stipulated by paragraph 18(1) of the Act.

“The petitioners’ application for issuance of pre-hearing session moved on July 5, 2011 was valid, legal and consistent with paragraph 18(1) of the schedule to the Electoral Act, 2010 (as amended). The tribunal did not specify which of the petitioners’ letter or motion ex-parte (both applications dated and filed June 27, 2011) is unknown to law.

“The tribunal misconstrued what constitutes an application under paragraph 18(1) (2) of the First Schedule to the Act. The finding is manifestly unsustainable and ought to be set aside,” they argued.

They also contented that the tribunal erred in law when it held that paragraph 53(2) of the Schedule does not apply to bar and /or stop the 1st and 2nd respondents from filing their motion to dismiss the petition.

“The 1st and 2nd respondent did not file their application to dismiss the petition within a reasonable time after being aware of the alleged defect and had further taken steps in the proceedings within the true and proper meaning of Paragraph 53(2) of the Schedule to the Electoral Act, 2010 (as amended).”

 

The Nation


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