EKERE VS UDOM: Udom Left Gasping As Ekere Jumps Legal Landmine

Proceedings at A’Ibom Election Petition Tribunal holding at the High Court complex, Fulga, Uyo took an entirely different dimension this morning following fresh issues raised by Petitioners Counsel contrary to the expectation of the panel of judges. It was expected that Petitioners shall continue with invitation of witnesses but alas that was not to be as J. S. Okutepa (SAN), lead counsel to the petitioner who was in court after a few days of absence triggered a huge surprise.

Okutepa (SAN) drew the attention to the Tribunal to what he described as “great jurisprudential hazard and recklessness” should the Tribunal proceed without the full composition of its 3 Tribunal members. One of the Justices was reported to have taken ill yesterday. The 3member panel of judges was fully constituted when it resumed sitting yesterday morning. But when it returned to resume sitting after break at 2:00pm one of the judges was absent. The Tribunal chairman promptly notified the Parties that their friend was challenged health wise and proceeded with the proceedings. During the proceedings, the Tribunal admitted 4 witnesses (PW 37 – PW40) called by petitioners’ counsel.

Narrating his personal experience and involvement in matters where improperly constituted panel of judges have served to annul judgements and rulings of courts/Tribunal, he told the Tribunal that proceeding with the matter without full complement of the 3 justices will tantamount to jurisprudential hazard and recklessness for a lawyer of his standing, saying it was a risk he was not willing to take. Citing the case of Kunle Kolajaiye (SAN) vs Legal Practitioners Disciplinary committee (2009), the Supreme Court declared the judgement of the lower court a nullity due to the absence of a member of the committee. He also cited Oyetola vs Adeleke (2019) in which the Supreme Court in a split decision of 5/2 ruled that where a member was absent for one day and later joined the proceedings, such absence rendered the Tribunal’s judgement a nullity. In his opinion, Okutepa averred, “this Tribunal cannot continue with proceedings today in the absence of a member who participated in the admission of witnesses from PW1 – PW36 but PW37 – PW40 were admitted in the absence of one member. I advise that the proceedings that admitted PW34 – PW40 be expunged or set aside on grounds that it was conducted without the full complement of the Tribunal. In other words, it was lacking jurisdiction.

It is trite that where such happens the Court/Tribunal that conducted such proceedings is entitled to set it aside. He referenced Peter Osalor vs Iwueze, Court of Appeal decision to support his argument. He apologised to the Tribunal for raising the matter late saying it was never too late to correct an error and get to do the right thing”.

Responding to Petitioners request, Counsel to 1st Respondent, Assam Assam (SAN) contended thus; “as well intentioned as petitioner’s submission maybe, it is defeated by the application made that Your Lordship continues to sit and make an order voiding the proceedings in the same manner as the situation he now wants the panel to expunge a section of yesterday’s proceedings. Secondly, petitioner cannot make application to a panel with jurisdictional incompetence. Neither can it make any order/ruling/hearing or even taking motions no matter how well intentioned it maybe.

Second Petitioners counsel, Tayo Oyetibo (SAN) raised 2 issues. (a) what is the quorum of this Tribunal as provided by the Constitution? (b) What is the proper procedure with which to approach the Tribunal in a matter such as this? On (a) Oyetibo informed the Tribunal that under the old law as provided by Section 285 of the Nigerian constitution, the Tribunal must be constituted by a Chairman and 2 members. However, by the 2nd alteration of the constitution section 9 of the alteration Act introduced section 4 which provides that a quorum of the Tribunal shall be the Chairman and 1 member. This he contended was affirmed by the Supreme Court in Nyesom Wike vs Dakuku Peterside (2016) He contended it was wrong for Petitioners counsel to propose that the Tribunal cannot sit with the Chairman and 1 member. If the petitioner feels very strongly about his views for reasons not known to others, then he must comply with Paragraph 47 (2) and (3) of the 1st schedule of the Evidence Act by filing application with reasons on oath stating why the Tribunal should not sit in line with the constitutional provisions referred to earlier.

Counsel to 3rd Respondent, Silva Oguebor (SAN) aligned more or less with 2nd Respondent saying Petitioner ought to present his application by way of motion in consonance with Paragraph 47 of the Electoral Act.

Responding to the arguments of Respondents, Okutepa maintained that they had missed the point by taking a voyage on the composition of the Tribunal. He contended that the Tribunal is not properly constituted with a chairman and 1 member saying the argument canvassed by his colleagues was considered by the Supreme Court in Nyesom Wike vs Dakuku Peterside. He said the supreme court came down heavily and discredited the proceedings as incompetent declaring the entire proceedings a nullity. The same thing he said, applied to Oyetola vs Adeleke. On the contention to make a written application via a motion, Okutepa told the Tribunal, my Lord, “I am not a clairvoyant advocate. How could I have seen the need to come by way of a Motion. This matter has only just been brought to the attention of the Tribunal. I could not have prepared for this development in advance. In any case, objection to jurisdiction does not necessarily have to be by way of Motion. It can come anyhow. It is a contradiction to expect me to put issues of law via a Motion. This Tribunal should not be excited by their arguments. A court without jurisdiction can determine issues of jurisdiction. It is my responsibility as Petitioners counsel to avoid legal landmines. Chief Ofodili vs Egwuatu & others (2005).

The Tribunal rose for 1hr for ruling after arguments by the parties.

RULING: After reviewing arguments of counsel to the parties, the Tribunal Chairman ruled that oral application on the issue of jurisdiction was trite and sound law discountenancing Respondents arguments. Issue of jurisdiction can be raised orally without reference to Paragraph 47 of the Evidence Act citing Nyesom wike vs Dakuku Peterside and Oyetola vs Adeleke. It is wrong for the Tribunal to proceed without one (1) member. Proceedings of 18th July 2019 admitting the witness statements of PW37 – PW40 in evidence by the Tribunal is hereby set aside. Tribunal as presently constituted has jurisdiction to set aside proceedings till quorum is formed. Today, 19th and Saturday 20th July 2019 shall not be counted for petitioner.

Tribunal adjourned till Monday, 23rd July 2019.