Dr. Mrs. Marian Nneamaka Comfort Ali & Anor. V. Senator Patrick Enebili Osakwe & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A,

This is an appeal against the ruling of the Governorship and Legislative Houses Election Petition Tribunal sitting at Asaba, Delta State delivered on Thursday 6th September 2007 wherein the Tribunal granted the Respondents’ motion to dismiss the petition and refused the Petitioners’ motion for enlargement of time within which the Petitioners may apply for the issuance of pre hearing notice.

The facts leading to this appeal are as follows:

The Petitioners Dr. Mrs Marian Nneamaka Comfort Ali and the Peoples Democratic Party filed a petition dated 26/5/07 the same day, They are the Appellants in this appeal. The Petition was against (1) Senator Patrick Enebili Osakwe (2) Accord Party (3) INEC They are the Respondents in this appeal.

The Petitioners at the Election Petition Tribunal claimed sundry reliefs principal of which is a declaration that the 1st Respondent was not properly and/or not validly nominated by the 2nd Respondent – Accord party to contest the election to the office of Senator. The 1st and 2nd Respondents tiled a Reply to the petition on 29/6/07 and on the same day filed a separate notice of preliminary objection to the jurisdiction of the Tribunal to entertain the petition itself. The 3rd Respondent filed on 19/6/07 a similar notice of preliminary objection to dismiss the petition for lack of jurisdiction of the tribunal to hear the petition.

The Petitioners filed a Reply to the 1st and 2nd Respondents’ Reply on 10/7/07. On the same 10th July 2007 the Petitioners filed a motion for extension of time to file Petitioner’s Reply to the 3rd Respondent’s Reply. It was never heard or determined by the Tribunal. On 13/7/07, three applications were filed:

(1) The Petitioners filed an application to set down for pre-hearing conference.

(2) 1st & 2nd Respondents filed another application to dismiss the petition.

(3)The 3rd Respondent also filed another application to dismiss the petition.

On 27/7/07 the Petitioners again filed a motion for an order extending time within which to apply for issuance of pre hearing notice and secondly for setting down for pre trial conference. On 1st Aug 07, the three applications were consolidated and argued before the Tribunal with consent of all counsel. They are:

i. Motion dated 13/7/07 filed by the 1st & 2nd Respondents to dismiss the petition for failure to apply for issuance of pre-trial Hearing Notice in accordance with the Practice Directions.

ii. Motion dated 13/7/07 by the 3rd Respondent which is in pari materia with motion (1) above.

iii. Motion dated 25/7/07 filed on 27/7/07 by the Petitioners for an order for extension of time to apply for the issuance of pre-hearing notice as in form TF 007 and an order deeming the previous applications in like manner filed on 13/7/07 and 17/7/07 respectively properly filed.

The learned Tribunal on 6/9/07 gave a considered ruling and granted 1st – 3rd Respondents applications, refused the Petitioner’s application and for reason of failure to apply within time for the issuance of pre hearing Notice dismissed the Petitioners’ petition. The Petitioners now Appellants have appealed against that decision. From the subsisting grounds of appeal, the Appellants initially formulated six issues for determination. I will come to them anon. The Appellants flied an Appellants’ brief in the substantive appeal dated 10/12/07 on same day but deemed filed on 11/12/07.