Chijioke Donald B. Williams V. Ernest Ifeanyi Ibejiako & Ors. (2008)

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MOHAMMED LAWAL GARBA, J.C.A.

The Appellant and 1st Respondent were candidates at the election conducted on the 21st of April, 2007 by the 2nd Respondent (Independent National Electoral Commission (INEC) to the House of Representatives, Federal Republic of Nigeria for the Owerri Federal Constituency, Imo State. The All Peoples Grand Alliance (APGA) and Peoples’ Democratic Party (PDP) both registered political parties sponsored the Appellant and 1st Respondent respectively for that election at the end of which the latter was declared and returned as the winner. Being dissatisfied with the return, the Appellant on the 21st of May, 2007 filed an election petition before the Imo State Governorship and Legislative Houses Election Petitions Tribunal (hereinafter to be named lower Tribunal) questioning same on the grounds that –

(i) “The 1st Respondent was not duly elected by majority of lawful votes cast at the election;

(ii) The election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act.”

The Appellant’s petition was first served on the 2nd – 7th Respondents on the 25th of June, 2007 and then the 1st Respondent

On the 3rd of July, 2007. The 1st Respondent filed a Reply to the petition on the 20th of July, 2007 while the 2nd -7th Respondents’ filed a motion on notice on the 26th of July, 2007 seeking order-enlarging time within which to file their Reply to the petition. Annexed to the motion was the Reply sought to be deemed properly filed.

Then on the 11th of August, 2007 the lower Tribunal suo motu and without notice in the parties, acting pursuant to paragraph 3(4) of the Practice Directions No. 1 of 2007, dismissed the Appellant’s petition on the ground that it was abandoned.

The Appellant felt aggrieved by the ruling of the lower Tribunal and so he filed a Notice of Appeal against it on the 14th of November, 2007 on two grounds as follows:-

(1) “The Trial Tribunal erred in law when it dismissed the Appellant’s petition in the absence of the Petitioner and without giving the Petitioner an opportunity to know that his matter was coming up on the said day.

(2) The learned Tribunal erred in law when it relied on paragraph 3(4) of the Practice Directions 2007 to dismiss the appellant’s petition.

In line with the rules of practice in this court, briefs of arguments were filed by learned counsel for the parties in the appeal. The Appellant’s brief was filed on the 3rd of January, 2008, the 1st Respondent’s brief on the 17th of January, 2008 and the 2nd – 7th Respondents’ on the 14th of January, 2008. The briefs were adopted at the hearing of the appeal on 11th March, 2008 by the respective learned counsel as submissions in support of their positions in the appeal.

Learned counsel has submitted two issues, which he said arise for decision in the appeal. They are:-

(a) “Whether the Appellant was given fair hearing

(b) Whether the learned trial Tribunal was right in relying on paragraph 3(4) of the Practice Direction No. 1 of 2007 in dismissing the Appellant’s petition?