Dr. Asogu Ohaka V. Mr. Chukwudi Mayor Eze & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

This appeal is against the ruling on the 25th day of September, 2007 by the National Assembly Election Tribunal, Imo State (hereinafter called the Tribunal) holden at Owerri, Imo State. By the said ruling the Tribunal dismissed the petition filed before it by the Appellant.

The Appellant, as the petitioner, filed the said petition challenging the return of the 1st Respondent as the person duly elected to represent Orlu, Oru East and Orsu Federal Constituency in the Federal House of Representatives of the National Assembly during the election conducted by the 3rd -11th Respondents on 21st April, 2007. The 2nd Respondent is the political party that sponsored the 1st Respondent in the said election.

On the 21st May 2007 the Appellant, as the petitioner, filed his petition at the Tribunal. The 3rd – 11th Respondents were served the petition on 18th June, 2007. The petition was served on the 2nd Respondent on 2nd July, 2007 while the 1st Respondent was served on 10th July, 2007. By paragraph 12(1) of the 1st schedule to the Electoral Act, 2006.

The Respondent shall, within fourteen (14) days of entering appearance file in the Registry his reply-

The Respondent who does not enter appearance however, is given “not later than twenty one (21) days from the receipt of the election petition” to file his reply by dint of paragraph 10(2) of the 1st Schedule to the Electoral Act. Since it does appear that the 2nd Respondent did not file memorandum of appearance he, therefore, had 21 days from the receipt of the election petition to file his reply. By this computation the 2nd Respondent would have up to 23/7/2007 to file his reply.

The 3rd-11th Respondents filed their joint reply to the petition on 9/7/2007. The reply was served on the Petitioner/Appellant on 27/7/2007. Paragraph 16 (1) of the 1st schedule to the Electoral Act gives the Petitioner 5 days to file reply to the Respondent’s reply from the receipt of the Respondent’s reply.

The reply of the 1st Respondent was filed on 27/7/2007 was served on the Petitioner/Appellant on 14/8/2007. The 2nd Respondent as at 23/7/2007 the last date limited to him to file his reply, did not file any reply.

By virtue of paragraph 50 of the 1st Schedule to the Electoral Act the practice and procedure of the Tribunal, in relation to the election petition, shall be, as nearly as possible, similar to the practice and procedure of the Federal High court in its civil jurisdiction subject to such necessary modifications necessary to render them applicable. Pursuant to paragraph 50 of the 1st Schedule to the Electoral Act, 2006 and Section 285(3) of the 1999 Constitution the President of the Court of Appeal issued Election Tribunal and court Practice Directions, 2007 for use of Tribunals in election petitions. The Petitioner/Appellant in compliance with these Practice Directions, particularly paragraph 3 thereof, filed his application for issuance of hearing Notice for pre-hearing session on 27/7/2007. Shortly thereafter the 1st Respondent filed his reply to the petition on the same 27/7/2007.

In the meantime, pursuant to the Petitioner/Appellant’s application for issuance of pre-hearing notice the Tribunal issued the pre-hearing Notice on 7/8/2007 and the petition was set down for commencement of pre-hearing sessions on 15/8/2007. At the pre-hearing session the Tribunal suo motu raised the issue as to whether the petition was still competent having regard to paragraph 3 of the Election Tribunal and court Practice Directions, 2007. The parties, except the 2nd Respondent, through their respective Counsel submitted written addresses to articulate their positions on the matter. The Tribunal, in a considered ruling on 24th September, 2007 dismissed the petition for non-compliance with paragraph 3(1) of the Practice Directions holding that the non-compliance was an incurable fundamental vice. On 10th October, 2007 the Petitioner/Appellant, aggrieved by the ruling lodged this appeal. The Appellant canvassed 5 grounds of appeal; which are herein below reproduced without their particulars of error-

GROUND ONE

The learned trial Tribunal erred in law when they held that the Petitioner has abandoned his petition by reason of filing the application for issuance of hearing Notice for pre-hearing session even before he was served with the 1st Respondent’s reply.

GROUND TWO

The learned trial Tribunal erred in law when they held that the Tribunal was functus officio to enlarge or abridge the 7 days time limit for filing of the application for the issuance of hearing Notice for pre-hearing session of the petition.