Whether Inadequate Payment of Security for Costs Is Fatal to a Case

CASE TITLE: NYA-ETOK & ORS v. INEC & ORS (2023) LPELR-60970(CA)

JUDGMENT DATE: 18TH AUGUST, 2023

PRACTICE AREA: LEGAL PRACTICE AND PROCEDURE

LEAD JUDGMENT: MUHAMMED LAWAL SHUAIBU, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on payment of inadequate security for costs in an election petition.

FACTS:

This appeal is against the decision of Akwa-Ibom State Governorship Election Petition Tribunal delivered on 12th day of June, 2023 wherein the tribunal dismissed the petition for being incompetent.

The brief fact of the case is that on the 12th day of June, 2023 when Petition No: EPT/AKW/04/2023 came up for hearing, the Tribunal asked the Appellants’ counsel if the provision of paragraph 2 of the First Schedule to the Electoral Act, 2022 was fully complied with and when counsel could not proffer convincing reason, the secretary to the Tribunal was invited to clarify the issue of security for cost. And after confirming that the petitioners paid only one Million Naira, the tribunal invited the respective counsel to address the issue which they did. In a bench ruling, the Tribunal after reproducing the relevant provisions of paragraph 2(4) of the First Schedule of the Electoral Act, 2022 held as follows:

“The provision is with exactitude. In giving the wordings of legislation its ordinary and plain meaning, all that is required at this stage is to take no further proceeding in the petition. The circumstances of this petition are not an irregularity as learned counsel would like the tribunal to hold. In my humble view, it bothers incompetence. As it is, there is no petition before us to proceed with.”

​The Appellants were dissatisfied and hence this appeal.

ISSUES FOR DETERMINATION:

The appeal was determined on:

“Whether or not the trial Court (Tribunal) was right when it dismissed Petition No: EPT/AKW/GOV/04/2023 on the sole ground of inadequate payment of security for cost.”

DECISION/HELD:

The appeal was allowed.

RATIOS:

• APPEAL- NOTICE(S) OF APPEAL: Whether a notice of appeal must be served personally on parties directly affected by the appeal; effect of service of same on counsel
• ELECTION PETITION- ORDER FOR SECURITY FOR COSTS: Effect of inadequate payment of security for costs
• PRACTICE AND PROCEDURE- SERVICE OF COURT PROCESS(ES): Effect of improper or non-service of Court process(es) on jurisdiction of Court; whether taking steps in proceedings where there were improper or non-service amounts to a waiver of the right to complain

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