IN THE COURT OF APPEAL OF THE FEDERAL REPUBLIC OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
PETITION NO.EPT/CR/SA/10/2011
THE ELECTION INTO YAKURR I STATE CONSTITUENCY OF THE CROSS RIVER STATE HOUSE OF ASSEMBLY HELD ON SATURDAY THE 26TH DAY OF APRIL, 2011.
BETWEEN:
OTU BASSEY UKPENTU - APPELLANT
AND
1. MFAWA OFEGOBI
2. INDEPENDENT NATIONAL ELECTORAL RESPONDENTS
COMMISSION
3. THE RETURNING OFFICER,
YAKURR ONE (1) STATE
CONSTITUENCY
4. PEOPLES DEMOCRATIC PARTY
NOTICE AND GROUNDS OF APPEAL
Take Notice that the Appellant being dissatisfied with the Judgment of the National/State Assemblies Election Petition Tribunal sitting in Calabar, Cross River State of Nigeria, delivered on Friday the 11th Day of November, 2011, do hereby appeal upon the Grounds set out in Paragraph 3 and will at the hearing of the appeal seek the Reliefs set out in Paragraph 4.
The Appellant further state that the Names and Addresses of the persons directly affected by the appeal are those set out in Paragraph 5 hereof.
2. PART OF THE DECISION OF THE LOWER TRIBUNAL COMPLAINED OF: The entire decision.
3. GROUND 1
The Lower Tribunal erred in law when it rejected the Statements on Oath of PW 1, PW2; PW3 and PW 4 respectively on the ground that their Statements on Oath did not comply with Section 13 of the Oath’s Act, 2004, because the deponent failed to use the wordings used exactly by the legislature of the Oath Act.
PARTICULARS OF ERROR
I. The Statements on Oath of PW 1; PW2, PW3 & PW4 respectively substantially conformed to the provisions of Section 13 of the Oaths Act.
II. The insistence of the lower Tribunal that the deponent to an Statement on oath should have reproduced the Form in the Schedule to the Oath Act word for word is crass technicality that is at variance with the current jurisprudence that substantial justice must prevail over technical justice.
III. It was clear that the swearing of another Oath by the witness operates to validate whatever defect was apparent in the statement including non-compliance with the provisions of the Oaths Act.
IV. The authority of Obumneke v. Sylvester which the Tribunal relied on was not applicable because there were also other authorities such as Femi Adekanye v. Controller of Prisons that says that an affidavit that substantially conforms to Section 13 of the Oaths Act is competent.
GROUND TWO
The Lower Tribunal erred in Law when it held that it cannot evaluate documentary evidence tendered by the Appellant because there was no nexus between the documentary evidence and oral evidence.
PARTICULARS OF ERROR
I. The Tribunal was bound to evaluate documentary evidence after it had been received by it.
II. The documentary evidence before the Tribunal were pleaded by the Appellant and formed the thrust/substratum of his case.
III. The documentary evidence were tendered by consent of the parties.
IV. It is well settled that oral evidence cannot be used to alter or vary or contradict the contents of a document.
V. It is well settled that in election petition litigations a tribunal can decide a matter only on documentary evidence before it.
GROUND THREE
The Tribunal erred in law when it granted the 2nd & 3rd Respondents Motion for extension of time even though the Respondents placed absolutely nothing before the Tribunal to enable it exercise its discretion in their favour and extend time.
PARTICULARS OF ERROR
I. The Motion for extension of time filed by the 2nd & 3rd Respondents was an admission that the Reply of the 2nd & 3rd Respondents filed on the 15th June, 2011 was filed out of time.
II. The 2nd & 3rd Respondents were served with the Petition on the 26th May, 2011.
III. By paragraph 12 (1) of the First Schedule to the Electoral Act, the Respondents had 14 days from service of the Petition to file their Reply.
IV. The Appellant had filed a Motion that the Tribunal should exercise its discretion vested on it by the provisions of Paragraph 36 of the First Schedule to the Electoral Act and allow the Appellant to proceed into hearing since the Respondents had failed to file a Reply.
V. The Tribunal had no jurisdiction to grant an application for extension of time despite the provisions of Paragraph 45 of the First Schedule to the Electoral Act in view of the provisions of Section 285 (7) of the Constitution which provides that an election petition must be heard and judgment delivered within 180 days from filing.
VI. The provision by the Electoral Act that a Petition must be filed within 21 days from the date of Declaration of Results imposes on a Respondent a corresponding duty to file his Reply within the time stipulated by the Paragraph 12 (1) of the First Schedule to the Electoral Act.
GROUND 4
The Tribunal erred in law when it refused to consider all the issues raised and canvassed by the Appellant in his Final Written Address.
PARTICULARS OF ERROR
I. The Tribunal was bound to consider all issues legitimately raised and canvassed by the Appellant in his Final Written Address.
II. The Tribunal infringed on the right of fair hearing of the Appellant by refusing or failing to consider and pronounce on all the issues legitimately raised and canvassed by the Appellant.
GROUND 5
The Tribunal erred in law when it rejected the Statements on Oath which witnesses called by the Appellants had given indication they wanted to adopt as their evidence in chief.
PARTICULARS OF ERRORS
I. The Tribunal ought to have allowed the witnesses to adopt their Statements on Oath.
II. The Tribunal rather ordered that the Statements on Oath to be marked received and rejected.
III. The Statements on Oath were not supposed to be received as documentary evidence but as oral evidence or evidence in chief of witnesses called by the Appellant.
IV. The adoption of a wrong procedure by the Tribunal occasioned a miscarriage of justice on the Appellant.
V. The refusal of the tribunal to adopt witnesses deposition of the Appellant on a purely technical ground infringed on the right of fair hearing of the Appellant as secured by Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
GROUND 6
The Tribunal erred in law when it held that the Replies of the Respondents to the Final Written Address of the Appellants were not filed out of time.
PARTICULARS OF ERROR
I. The Reply of the 1st Respondent was purported filed on the 7th November, 2011, which was a Public Holiday and the Registry of the Tribunal did not open to business on that day.
II. The Respondents were ordered by the Tribunal to file their Replies by the 5th November, 2011.
III. The 2nd, 3rd & 4th Respondents filed their Replies on the 8th November, 2011, contrary to the Order of the Tribunal without an application for leave for extension of time being brought by them.
GROUND 7
The Tribunal erred in law when it held that the Replies of the 1st and 4th Respondents were competent and filed within time.
PARTICULARS OF ERROR
I. The 1st Respondent was served on the 2nd June, 2011, with the Appellant’s Petition, but filed his Reply on the 22nd June, 2011.
II. The 4th Respondent was served on the 26th May, 2011 but filed its Reply on the 15th June, 2011.
III. The provision of Paragraph 12 (1) of the First Schedule to the Electoral Act provides that a Reply must be filed within 14 days of service of the Petition by a Respondent.
IV. The Replies were decidedly filed out of the 14 days allowed by the provisions of Paragraph 12 (1) of the First Schedule to the Electoral Act.
GROUND 8
The Tribunal erred in law when it refused to accede to the application of the Appellant that it should strike out the Final Written Address of the 2nd, 3rd & 4th Respondents.
PARTICULARS OF ERROR
I. The 2nd, 3rd & 4th Respondents did not call any evidence but rested their case on that of the Appellant.
II. The 2nd, 3rd & 4th Respondents by refusing to call evidence had abandoned their Replies to the Petition.
III. The 2nd, 3rd & 4th Respondents were not entitled to file any Written Address because of their failure to call evidence.
IV. The 2nd, 3rd and 4th Respondents were only entitled to file Replies on points of Law arising from the Written Address of the Appellant.
GROUND 9
The judgment is against the weight of evidence.
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL:
I. An Order setting aside the Judgment of the National/State Assemblies Election Petition Tribunal sitting in Calabar, Cross River State of Nigeria, delivered on Friday the 11th Day of November, 2011, in Petition NO.EPT/CR/SA/10/2011.
II. An Order setting aside the decision of the Tribunal rejecting the Statement on Oaths of PW1; PW2; PW3 and PW 4 respectively and adopting same as the evidence in chief of these witnesses.
III. An Order Invoking the Jurisdiction of this Honourable under Section 16 of the Court of Appeal Act, 2004, and assuming the Jurisdiction of the Trial Election Tribunal and hearing and determining Petition No. NO.EPT/CR/SA/10/2011 and granting all the reliefs sought by the Appellant in his Petition filed on the 17th May, 2011.
IV. Any further Order(s) as the Court may deem fit and proper to make in the circumstances of this case.
5. NAMES AND ADDRESSES OF PERSONS DIRECTLY AFFECTED BY THE APPEAL:
I. THE APPELLANT
OTU BASSEY UKPENTU
C/O HIS SOLICITORS
OBONO, OBONO & ASSOCIATES
2ND FLOOR, TRINITY HOUSE, MABUSHI,
ABUJA, NIGERIA.
OR
NO.1 EJIKA LANE, LETAMPANKOM,
IJIMAN, UGEP, YAKURR LOCAL GOVERNMENT AREA,
CROSS RIVER STATE.
08033490404; 08033303287
okoiadvocate@gmail.com; okoiobla@hotmail.com
II. THE 1ST RESPONDENT
C/O MFAWA OFEGOBI
NO. 9 IJIMAN STREET, UGOM, IJIMAN
UGEP, YAKURR LOCAL GOVT AREA, CRS, NIGERIA.
III. THE 2ND & 3RD RESPONDENTS
C/O THE RESIDENT ELECTORAL COMMISSIONER
INDEPENDENT NATIONAL ELECTORAL COMMISSION
MURTALA MOHAMMED HIGHWAY, CALABAR, CRS, NIGERIA.
IV. THE 4TH RESPONDENT
C/O THE STATE CHAIRMAN
PEOPLES DEMOCRATIC PARTY
PDP STATE SECRETARIAT, MM HIGHWAY
CALABAR, CROSS RIVER STATE, NIGERIA.
DATED THIS 11TH DAY OF NOVEMBER, 2011.
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(APPELLANT’S SOLICITORS)
2ND FLOOR, TRINITY HOUSE,
MABUSHI, ABUJA, NIGERIA.
OR
NO.1 EJIKA LANE, LETAMPANKOM,
IJIMAN, UGEP, YAKURR LOCAL
GOVERNMENT AREA,
CROSS RIVER STATE.
ADDRESS FOR SERVICE:
1. ON THE 1ST RESPONDENT
C/O MFAWA OFEGOBI
NO. 9 IJIMAN STREET, UGOM, IJIMAN
UGEP, YAKURR LOCAL GOVT AREA, CRS, NIGERIA
2. ON THE 2ND & 3RD RESPONDENT
C/O THE RESIDENT ELECTORAL COMMISSIONER
INDEPENDENT NATIONAL ELECTORAL COMMISSIONER
INEC HEAD OFFICE, 81 MURTALA MOHAMMED HIGHWAY
CALABAR.
3. ON THE 4TH RESPONDENT
C/O THE STATE SECRETARY
PEOPLES DEMOCRATIC PARTY
PDP STATE SECRETARIAT, MURTALA MOHAMMED HIGHWAY
CALABAR, CROSS RIVER STATE, NIGERIA.
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
PETITION NO.EPT/CR/SA/10/2011
THE ELECTION INTO YAKURR I STATE CONSTITUENCY OF THE CROSS RIVER STATE HOUSE OF ASSEMBLY HELD ON SATURDAY THE 26TH DAY OF APRIL, 2011.
BETWEEN:
OTU BASSEY UKPENTU - APPELLANT
AND
1. MFAWA OFEGOBI
2. INDEPENDENT NATIONAL ELECTORAL RESPONDENTS
COMMISSION
3. THE RETURNING OFFICER,
YAKURR ONE (1) STATE
CONSTITUENCY
4. PEOPLES DEMOCRATIC PARTY
NOTICE AND GROUNDS OF APPEAL
Take Notice that the Appellant being dissatisfied with the Judgment of the National/State Assemblies Election Petition Tribunal sitting in Calabar, Cross River State of Nigeria, delivered on Friday the 11th Day of November, 2011, do hereby appeal upon the Grounds set out in Paragraph 3 and will at the hearing of the appeal seek the Reliefs set out in Paragraph 4.
The Appellant further state that the Names and Addresses of the persons directly affected by the appeal are those set out in Paragraph 5 hereof.
2. PART OF THE DECISION OF THE LOWER TRIBUNAL COMPLAINED OF: The entire decision.
3. GROUND 1
The Lower Tribunal erred in law when it rejected the Statements on Oath of PW 1, PW2; PW3 and PW 4 respectively on the ground that their Statements on Oath did not comply with Section 13 of the Oath’s Act, 2004, because the deponent failed to use the wordings used exactly by the legislature of the Oath Act.
PARTICULARS OF ERROR
I. The Statements on Oath of PW 1; PW2, PW3 & PW4 respectively substantially conformed to the provisions of Section 13 of the Oaths Act.
II. The insistence of the lower Tribunal that the deponent to an Statement on oath should have reproduced the Form in the Schedule to the Oath Act word for word is crass technicality that is at variance with the current jurisprudence that substantial justice must prevail over technical justice.
III. It was clear that the swearing of another Oath by the witness operates to validate whatever defect was apparent in the statement including non-compliance with the provisions of the Oaths Act.
IV. The authority of Obumneke v. Sylvester which the Tribunal relied on was not applicable because there were also other authorities such as Femi Adekanye v. Controller of Prisons that says that an affidavit that substantially conforms to Section 13 of the Oaths Act is competent.
GROUND TWO
The Lower Tribunal erred in Law when it held that it cannot evaluate documentary evidence tendered by the Appellant because there was no nexus between the documentary evidence and oral evidence.
PARTICULARS OF ERROR
I. The Tribunal was bound to evaluate documentary evidence after it had been received by it.
II. The documentary evidence before the Tribunal were pleaded by the Appellant and formed the thrust/substratum of his case.
III. The documentary evidence were tendered by consent of the parties.
IV. It is well settled that oral evidence cannot be used to alter or vary or contradict the contents of a document.
V. It is well settled that in election petition litigations a tribunal can decide a matter only on documentary evidence before it.
GROUND THREE
The Tribunal erred in law when it granted the 2nd & 3rd Respondents Motion for extension of time even though the Respondents placed absolutely nothing before the Tribunal to enable it exercise its discretion in their favour and extend time.
PARTICULARS OF ERROR
I. The Motion for extension of time filed by the 2nd & 3rd Respondents was an admission that the Reply of the 2nd & 3rd Respondents filed on the 15th June, 2011 was filed out of time.
II. The 2nd & 3rd Respondents were served with the Petition on the 26th May, 2011.
III. By paragraph 12 (1) of the First Schedule to the Electoral Act, the Respondents had 14 days from service of the Petition to file their Reply.
IV. The Appellant had filed a Motion that the Tribunal should exercise its discretion vested on it by the provisions of Paragraph 36 of the First Schedule to the Electoral Act and allow the Appellant to proceed into hearing since the Respondents had failed to file a Reply.
V. The Tribunal had no jurisdiction to grant an application for extension of time despite the provisions of Paragraph 45 of the First Schedule to the Electoral Act in view of the provisions of Section 285 (7) of the Constitution which provides that an election petition must be heard and judgment delivered within 180 days from filing.
VI. The provision by the Electoral Act that a Petition must be filed within 21 days from the date of Declaration of Results imposes on a Respondent a corresponding duty to file his Reply within the time stipulated by the Paragraph 12 (1) of the First Schedule to the Electoral Act.
GROUND 4
The Tribunal erred in law when it refused to consider all the issues raised and canvassed by the Appellant in his Final Written Address.
PARTICULARS OF ERROR
I. The Tribunal was bound to consider all issues legitimately raised and canvassed by the Appellant in his Final Written Address.
II. The Tribunal infringed on the right of fair hearing of the Appellant by refusing or failing to consider and pronounce on all the issues legitimately raised and canvassed by the Appellant.
GROUND 5
The Tribunal erred in law when it rejected the Statements on Oath which witnesses called by the Appellants had given indication they wanted to adopt as their evidence in chief.
PARTICULARS OF ERRORS
I. The Tribunal ought to have allowed the witnesses to adopt their Statements on Oath.
II. The Tribunal rather ordered that the Statements on Oath to be marked received and rejected.
III. The Statements on Oath were not supposed to be received as documentary evidence but as oral evidence or evidence in chief of witnesses called by the Appellant.
IV. The adoption of a wrong procedure by the Tribunal occasioned a miscarriage of justice on the Appellant.
V. The refusal of the tribunal to adopt witnesses deposition of the Appellant on a purely technical ground infringed on the right of fair hearing of the Appellant as secured by Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
GROUND 6
The Tribunal erred in law when it held that the Replies of the Respondents to the Final Written Address of the Appellants were not filed out of time.
PARTICULARS OF ERROR
I. The Reply of the 1st Respondent was purported filed on the 7th November, 2011, which was a Public Holiday and the Registry of the Tribunal did not open to business on that day.
II. The Respondents were ordered by the Tribunal to file their Replies by the 5th November, 2011.
III. The 2nd, 3rd & 4th Respondents filed their Replies on the 8th November, 2011, contrary to the Order of the Tribunal without an application for leave for extension of time being brought by them.
GROUND 7
The Tribunal erred in law when it held that the Replies of the 1st and 4th Respondents were competent and filed within time.
PARTICULARS OF ERROR
I. The 1st Respondent was served on the 2nd June, 2011, with the Appellant’s Petition, but filed his Reply on the 22nd June, 2011.
II. The 4th Respondent was served on the 26th May, 2011 but filed its Reply on the 15th June, 2011.
III. The provision of Paragraph 12 (1) of the First Schedule to the Electoral Act provides that a Reply must be filed within 14 days of service of the Petition by a Respondent.
IV. The Replies were decidedly filed out of the 14 days allowed by the provisions of Paragraph 12 (1) of the First Schedule to the Electoral Act.
GROUND 8
The Tribunal erred in law when it refused to accede to the application of the Appellant that it should strike out the Final Written Address of the 2nd, 3rd & 4th Respondents.
PARTICULARS OF ERROR
I. The 2nd, 3rd & 4th Respondents did not call any evidence but rested their case on that of the Appellant.
II. The 2nd, 3rd & 4th Respondents by refusing to call evidence had abandoned their Replies to the Petition.
III. The 2nd, 3rd & 4th Respondents were not entitled to file any Written Address because of their failure to call evidence.
IV. The 2nd, 3rd and 4th Respondents were only entitled to file Replies on points of Law arising from the Written Address of the Appellant.
GROUND 9
The judgment is against the weight of evidence.
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL:
I. An Order setting aside the Judgment of the National/State Assemblies Election Petition Tribunal sitting in Calabar, Cross River State of Nigeria, delivered on Friday the 11th Day of November, 2011, in Petition NO.EPT/CR/SA/10/2011.
II. An Order setting aside the decision of the Tribunal rejecting the Statement on Oaths of PW1; PW2; PW3 and PW 4 respectively and adopting same as the evidence in chief of these witnesses.
III. An Order Invoking the Jurisdiction of this Honourable under Section 16 of the Court of Appeal Act, 2004, and assuming the Jurisdiction of the Trial Election Tribunal and hearing and determining Petition No. NO.EPT/CR/SA/10/2011 and granting all the reliefs sought by the Appellant in his Petition filed on the 17th May, 2011.
IV. Any further Order(s) as the Court may deem fit and proper to make in the circumstances of this case.
5. NAMES AND ADDRESSES OF PERSONS DIRECTLY AFFECTED BY THE APPEAL:
I. THE APPELLANT
OTU BASSEY UKPENTU
C/O HIS SOLICITORS
OBONO, OBONO & ASSOCIATES
2ND FLOOR, TRINITY HOUSE, MABUSHI,
ABUJA, NIGERIA.
OR
NO.1 EJIKA LANE, LETAMPANKOM,
IJIMAN, UGEP, YAKURR LOCAL GOVERNMENT AREA,
CROSS RIVER STATE.
08033490404; 08033303287
okoiadvocate@gmail.com; okoiobla@hotmail.com
II. THE 1ST RESPONDENT
C/O MFAWA OFEGOBI
NO. 9 IJIMAN STREET, UGOM, IJIMAN
UGEP, YAKURR LOCAL GOVT AREA, CRS, NIGERIA.
III. THE 2ND & 3RD RESPONDENTS
C/O THE RESIDENT ELECTORAL COMMISSIONER
INDEPENDENT NATIONAL ELECTORAL COMMISSION
MURTALA MOHAMMED HIGHWAY, CALABAR, CRS, NIGERIA.
IV. THE 4TH RESPONDENT
C/O THE STATE CHAIRMAN
PEOPLES DEMOCRATIC PARTY
PDP STATE SECRETARIAT, MM HIGHWAY
CALABAR, CROSS RIVER STATE, NIGERIA.
DATED THIS 11TH DAY OF NOVEMBER, 2011.
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(APPELLANT’S SOLICITORS)
2ND FLOOR, TRINITY HOUSE,
MABUSHI, ABUJA, NIGERIA.
OR
NO.1 EJIKA LANE, LETAMPANKOM,
IJIMAN, UGEP, YAKURR LOCAL
GOVERNMENT AREA,
CROSS RIVER STATE.
ADDRESS FOR SERVICE:
1. ON THE 1ST RESPONDENT
C/O MFAWA OFEGOBI
NO. 9 IJIMAN STREET, UGOM, IJIMAN
UGEP, YAKURR LOCAL GOVT AREA, CRS, NIGERIA
2. ON THE 2ND & 3RD RESPONDENT
C/O THE RESIDENT ELECTORAL COMMISSIONER
INDEPENDENT NATIONAL ELECTORAL COMMISSIONER
INEC HEAD OFFICE, 81 MURTALA MOHAMMED HIGHWAY
CALABAR.
3. ON THE 4TH RESPONDENT
C/O THE STATE SECRETARY
PEOPLES DEMOCRATIC PARTY
PDP STATE SECRETARIAT, MURTALA MOHAMMED HIGHWAY
CALABAR, CROSS RIVER STATE, NIGERIA.
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