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

CORAM

PARTIES

DR. CHRISTOPHER AKPAN ENOCH APPELLANTS

1. HON. DAN AKPAN

2. PEOPLES DEMOCRATIC PARTY (PDP)

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

In an election conducted by the 3rd Respondent into the Etinan/Nsit Ubium/Nsit Ibom Federal Constituency on the 9th day of April, 2011, the Petitioner contested for the office under the platform of the Action Congress of Nigeria while the 1st Respondent contested under the People Democratic Party (hereinafter called the 2nd Respondent). Another named, John Okon contested on the platform of the All Progressive Grand Alliance (APGA). At the conclusion of the election, the 3rd Respondent returned the 1st Respondent as the winner of the election. Aggrieved with the return, the Petitioner filed a petition before the Tribunal sitting at Uyo in Akwa Ibom State on grounds that the general election in 60 polling units was invalid by reason of corrupt practices, that the 1st Respondent was not duly elected by majority of the valid votes cast at the election and that the election was characterized by non-compliance with the provisions of the Electoral Act, 2010(as amended). The Petitioner prayed the court to determine that the 1st Respondent was not duly elected and did not score the lawful majority votes cast at the election and ought not to have been returned among other reliefs. After the service of processes on the parties, the Petitioner’s reply meant for service on the 2nd Respondent 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. 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 that he received the Petitioner’s reply on the 4th day of July, 2011 from the counsel who was erroneously served. After the expiration of the 7 days under which to apply for the issuance of the pre-hearing notice, the secretary of the tribunal issued Form 007 to the parties with hearing dates. On the date fixed for hearing learned counsel to the 1st Respondent applied that all steps taken by the court through the secretary be set aside for lack of jurisdiction. The court after hearing the argument of parties granted the Respondent/Applicant’s application. Dissatisfied with the ruling, the Petitioner has appeal against same before this court.

HELD

Appeal Dismissed

ISSUES

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.”?

RATIONES DECIDENDI

CASES CITED

STATUTES REFERRED TO

Electoral Act, 2010 (as amended)Evidence Act, 2004

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