Chief (Hon.) Bassey Etim Edet V. Dr. Esio Oquong Udo & Ors. (2003)

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OKWUCHUKWU OPENE, J.C.A. 

On

the 12/4/03, there was a National Assembly election and the appellant, Chief Bassey Etim Edet, a candidate of All Nigeria Peoples Party (ANPP) contested the seat for Oron Federal Constituencey, Akwa Ibom State while the 1st respondent a candidate of the Peoples Democratic Party (PDP) and other candidates also contested the election and at the end of the election the 1st respondent was declared elected. It was as a result of this that the appellant filed an election petition at the Election Tribunal holding at Uyo, Akwa Ibom State challenging the election of the 1st respondent.
On 17/6/03, the petition was struck out by the Tribunal. Dissatisfied with the said ruling the appellant has appealed to this court.

The appellant filed two notices of appeal on 30/6/03 and 4/7/03, respectively.
On 8/9/03, the counsel for the 3rd -5th respondents filed a Motion on Notice praying this hon. Court for the following reliefs:
“An order dismissing the appellant’s appeal for want of diligent prosecution on the part of the appellant.
And for such further order or orders as this Hon. Court may deem fit to make in the circumstances.

The motion was supported by a 10 paragraph affidavit and the most relevant paragraphs are:
“3. That the petition was filed on the 9th of May, 2003, and that the Ruling was delivered on the 17th of June, 2003.

4. That the appellant/respondent filed two Notices of Appeal on 30th June, 2003 and 4th July, 2003, respectively.

5. That the appellant has not taken any steps to process a Record of Appeal for this appeal.

6. That the appellant failed to file his brief of argument within the period of five (5) days prescribed by the Rules of Court.

7. That till date, the appellant has not filed is (sic) appellant’s brief.

8. That the appellant is not ready to prosecute this appeal.

9. That it is in the interest of justice to grant this application.

It is most surprising to observe that despite these weighty facts deposed to in the affidavit that the appellant did not deem it necessary to file a counter-affidavit and contradict or challenge those facts.

It is settled law that where facts provable by affidavit evidence are duly deposed to in an affidavit by a party to a suit, his adversary has a duty to controvert those facts in a counter-affidavit if he disputes them otherwise such facts may be regarded as duly established. See: Long John vs. Blakk (1993) 6 NWLR (Pt.555) 524 and Ajomale v. Yaduat (No.2) (1991) 5 NWLR (Pt.191) 266.

At the hearing of this motion, Mr. Abang, the learned counsel for the appellant said that on the issue of not filing a counter-affidavit that he was making his submission on point of law, that the court should take judicial notice that their brief of argument was filed within time, that they were served on 6/8/03 and that they filed their brief of argument within 5 days. He also argued that the Secretary of Tribunal’s inability to compile the records within time should not be visited on his client and that the case of Buhari vs. Yusuf (2003) 14 NWLR (Pt.841) 446 is not applicable to the instant case.
In respect of payment of deposit which is a condition for prosecution of the appeal he said that the money was paid differently for the two appeals and within 10 days and that they have no power over the Registrar who should record the payment. He urged that application be dismissed.

It can be seen that the submission of the learned counsel that they were served on 6/8/03 and that their brief of argument was filed within time are not issue of law as contended by the learned counsel but a matter of fact.

The facts deposed to in the applicant’s affidavit remain unchallenged and must be accepted by the court. Election petitions are different from ordinary civil proceedings and it is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. See Buhari vs. Yusuf, supra.

In the instant case, the appellant filed his two Notices of Appeal on 30/6/03 and 4/7/03, respectively.

Paragraph 4 of the Practice Direction No. 2 of 2003 provides that the Registrar shall within a period of not more than 10 days cause to be compiled and served on all the parties the record of proceedings.

Paragraph 5 states that within a period of 5 days after the Service of the Record of Proceedings, the appellant shall file in the Court and serve all the Respondents a written brief, being a succinct statement of his arguments in the appeal.

Under the above rules, the appellant should have filed his of argument on or before 15/7/03 and 19/7/03, respectively. At the expiration of the time, he did not ask for any extension of time till the 3rd – 5th respondents filed this motion on 8/9/03.

This is an inordinate delay and there is no reasonable explanation for this delay. The appellant no doubt has not been diligent in the prosecution of his appeal and this is very fatal to his appeal.
Further, other blaming the Registrar or Secretary of the Tribunal for not issuing him receipt for the deposit of the money which is a condition for prosecuting the appeal, there is nothing to show that he deposited any money with the Tribunal.

The deposit of the money is a sine qua non for the prosecution of the appeal.

On the whole, the appellant has been grossly negligent in the prosecution of his appeal. He cannot file his appeals and abandon them indefinitely, this defeats the whole intendment of the Constitution and the Electoral Act and it should not be tolerated.

There is merit in the application and it is accordingly allowed. The appellant’s appeals are hereby dismissed for want of diligent prosecution.

We make no order as to costs.

Other Citations: (2003)LCN/1489(CA)