In this piece, Ise-Oluwa Ige examines the background facts surrounding the hearing and delivery of a controversial judgment by a three-member regular panel of the Calabar division of the Court of Appeal Court, eight (8) clear days after it was disbanded by the President of the Court of Appeal through a letter dated October 10, 2019 and concludes that the refusal by the old panel to yield jurisdiction to the newly constituted panel indeed constitutes a fresh cause of action.
By a unanimous verdict, a three-member panel of the Court of Appeal sitting in Calabar on October 18, this year, dismissed an appeal filed by the All Progressive Congress (APC) and its candidate, Hon Bassey Effiong Etim which challenged the electoral victory of Senator Obong Bassey Akpan of the Peoples Democratic Party (PDP) in the last national assembly election which held in the Akwa Ibom North East Senatorial District.
That was after the panel held that the appeal maintained by APC and its candidate, Hon Bassey Etim against the election of Senator Akpan was unmeritorious.
The panel of justices who took the appeal comprised Justice M. A. Owoade, Justice Y.M Nimpar and Justice M. L Shuaibu.
But only Justice M. L Shuaibu sat on October 18 when the judgment was delivered.
The jurist read out the judgment of other panel members on their behalf.
Soon after the judgment was delivered, the APC and its candidate rejected the verdict and vowed that it would not stand.
However, by virtue of section 246(3) of the 1999 Constitution, the Court of Appeal is the final law court on national assembly elections in Nigeria.
Specifically, section 246(1) (b) (i) of the 1999 Constitution (As Amended) provides that “An appeal to the Court of Appeal shall lie as of right from decisions of the National Assembly Elections Tribunal and Legislative House Election Tribunal on any question as to whether any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution while section 246(3) provides that “the decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.”
By implication, the judgment of the three-member panel of the Court of Appeal is ordinarily final and unquestionable.
But the APC and its candidate, Bassey Etim are contending that while the power of final decision on petitions arising from national assembly election truly rests with the Court of Appeal, proceedings must be conducted by a properly constituted court with due regard for fair hearing
They said in the instant case, the panel of justices that decided the case was disbanded by the President of the Court of Appeal, Justice Z. A. Bulkachuwa, in exercise of her constitutional powers as the head of the intermediate appeal court before it began sitting.
They said notwithstanding the protestations by them and the convocation of a special external panel of justices by constituted authorities, the old panel of justices struggled jurisdiction with the new panel to hear and determine the case in the most strange manner.
They consequently vowed to return back to the Court of Appeal to nullify the judgment of the Appeal Court panel on the account that any judgment given without jurisdiction amounts to nullity.
Bar and Bench Watch learnt at the weekend that the aggrieved party is already before the Court of Appeal in Calabar division to set aside the October 18, 2019 judgment.
In the application, the APC and its candidate, Bassey Etim are seeking an order setting aside the judgment and a separate order retrying the petition by a new panel as ordered by the President of the Court of Appeal, Justice Z.A Bulkachuwa in her letter dated October 11, 2019.
They listed three grounds for initiating the originating motion including that the judgment as delivered was a nullity, the panel of justices which gave the judgment, having been disbanded.
The application already served on the PDP, its candidate in the senatorial election, Senator Akpan and INEC was filed by a Kaduna-based legal practitioner, Yunus Ustaz, SAN,
In a 6-point accompanying affidavit deposed to by a lawyer in the Chambers of Yunus Ustaz, SAN, on behalf of the APC and Bassey Etim, they explained that after the National Assembly Election Petition Tribunal headed by Justice Jennifer Ijohor dismissed their petition which challenged the electoral victory of Senator Akpan of APC, they came before the Appeal Court to redress the alleged injustice suffered by them at the tribunal.
But before the panel constituted by the Presiding Justice of Calabar Division of the Court of Appeal to hear all the appeals emanating from Akwa Ibom State started sitting, the APC wrote a letter dated October 4, 2019, to the President of the Court of Appeal, Justice Bulkachuwa, urging her to set up a special panel of neutral justices of the court that will “exclusively concentrate on our cases from Akwa Ibom State” for the purpose of getting fair hearing and justice.
The letter reads in part: ”After serious and unbiased deliberations on the various judgments delivered by the National Assembly and State Houses of Assembly Election Tribunal for Akwa Ibom State, we became convinced beyond doubt that the number of petitions and the various and varied sound and cogent legal issues raised by our counsel were not considered by the Tribunal possibly because of the lack of time the tribunal had to read through our counsel processes and delivered judgments within a few days like three to four days.
“The party and our candidates were indeed unjustly but undoubtedly short-changed because of this lack of time and presently the same scenario is about to play out itself in the Court of Appeal, Calabar division where our party and our candidates have filed our appeals against these decisions of the Tribunals.
“The number of appeals we have filed as all our candidates and the party are going on appeal will certainly be difficult for their Lordships in the Court of Appeal to deal with and deliver judgments that will meet the end and demands of justice in the special circumstance of our appeals
“The likely effect therefore is that the appeal would likely be treated as formalities and given inadequate considerations. Our fear and the fears of our candidates is that our appeals to the Court of Appeal , Calabar division would be like the scenario at the tribunal that disposes of the petitions by dismissing them.
“Further, we also discovered that our opponents are adopting a strategy of peddling rumours against the Justices of the Court of Appeal , Calabar Division and making their rumours to appear as if these rumours were originated by our party and candidates. This illicit strategy is to make their Lordships in the Court of Appeal, Calabar go against our party and our candidates at all cost in the determination of our appeals.
“My Lord, we are hard press and indeed starved of justice and will therefore pray that your lordship does intervene and to ensure justice without any fear or favour by setting up panels that will exclusively concentrate on our cases from Akwa Ibom State.
“While thanking you for your anticipated prompt action, please accept the assurances of our highest considerations, please,” the party signed off.
But on October 8, a panel of three justices of the regular Court of Appeal in Calabar sat to mention available pending appeals in the court’s docket including that of Bassey Etim against Senator Akpan contrary to the request by APC to the President of the Court of Appeal (PCA).
However, the panel could not make any meaningful progress on October 8 as parties were yet to exchange briefs.
The development made the regular Court of Appeal to adjourn till October 14.
However, before the adjourned date, the President of the Court of Appeal in a letter dated October 10 exercised her powers to disband the regular panel of three justices set up by the Calabar division of the Court of Appeal and constituted a new special panel of three justices comprising Hon Justice A. Jauro, Hon Justice S. T Hussein, and Hon Justice M. O Bolaji Yusuf.
The letter with Reference Number PCA/EPT/APPEAL/2019/VOL 1 addressed to the three newly constituted justices and titled: Re: Request for external panel for election appeals reads: “You are hereby empanelled to hear and determine all National and State House of Assembly appeals emanating from Akwa Ibom State. Hon A. Jauro will be presiding in the panel and is to liase with the Presiding Justice, Calabar division for the fixation of dates.
Bar and Bench Watch learnt that all the members of the old panel of Appeal Court in Calabar were also sent to other jurisdictions to sit as external panel members on similar election appeals.
Less than 24 hours after the external panel for Akwa Ibom election appeals was constituted by the Appeal Court President, Justice Bulkachuwa, PCA, information filtered in that Justice Jauro who was to preside had been elevated to the Supreme Court bench, a development which compelled issuance of another letter dated October 11, from the Office of PCA substituting Justice Jauro with Justice M. Mustapha while Justice S. T Hussein was named new presiding justice of the external panel.
But while the APC and its candidates were still jubilating over the constitution of a fresh panel of external justices to take appeals from Akwa Ibom election petitions, news filtered in again that the old panel would not respect the decision of the PCA, Justice Bulkachuwa as it would go ahead to hear the appeals.
It was at this point that Bassey Etim did a petition dated October 14, 2019 to the President of the Court of Appeal to caution the old panel from sitting on his pending appeal so that he would also be given fair hearing like other appellants whose cases were pending.
Bassey copied each of the justices on the panel.
He had alleged in the petition that his opponent, Senator Akpan had boasted severally that he was aware that the PCA was planning to set up a new panel but that he would do everything possible to ensure that the old panel sat and gave judgment in his favour.
Bar and Bench Watch learnt that notwithstanding the fact that the President of the Court of Appeal had disbanded the old panel and posted out the justices on the old panel—Justice M. A. Owoade, Justice Y.M Nimpar and Justice M. L Shuaibu to another jurisdictions, by her letters of October 10 and 11, the old panel still sat on Bassey Etim’s appeal on October 14.
The panel which had wanted to fix judgment in the case for October 15 later adjourned judgment in the case, sine die.
However, two days after the old panel sat on the case, information came again that the old panel would deliver judgment in the Bassey Etim’s case on October 18, a development which made Etim to fire another letter to the National Judicial Council (NJC) on October 17 to seek its intervention even as he wondered why the old panel was specially interested in his case after it had been disbanded.
Indeed, at about 3:00pm, on October 17, the old panel called legal teams of parties on phone to come for their judgment the following day.
Although two of the panel members were absent, one of them actually sat on October 18 to deliver the judgment of the panel which dismissed the joint petition of APC and Bassey Etim for want of merit.
After ruminating on the circumstances surrounding the case, the APC together with its candidate Bassey Etim hired a member of the inner bar, Yunus Ustaz, SAN, to set aside the judgment.
Barring any last-minute change, the case is scheduled for hearing on Monday.
Background of the case
It would be recalled that on February 25, this year, the Independent National Electoral Commission (INEC) had declared Senator Obong Bassey Albert Akpan of the Peoples Democratic Party (PDP) as winner of the 2019 election into the North East senatorial district of Akwa Ibom State.
Professor Idara Akpabio declared Senator Akpan winner of the poll on Sunday midnight at the Uyo INEC office.
He said Akpan polled a total of 147,731 votes to beat 12 others including his closest rival, Bassey Etim of the APC, who scored 60,930.
The highest scorer after Bassey Etim was Uduak Enefiok Essien of DPP who garnered 187 votes.