All Nigeria Peoples Party (ANPP) & Anor. V. Independent National Electoral Commission (INEC) & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A
This is an appeal against the ruling of the Justice Amina Wambai led National Assembly/Governorship and State House of Assembly Election Petition Tribunal, Calabar, Cross River State.
In their petition dated, and filed on the 14th May, 2007 the appellants challenged the return of the 2nd Respondent in the election held on 14th April, 2007 as the Member, Yala I Constituency in the Cross River State House of Assembly. The appellants’ case is that the 2nd appellant was validly nominated by his Party, the 1st appellant as the Party’s candidate in the April 14th election but was unlawfully excluded from the election by the Respondents.
Upon service of the Petition on them, the 1st, 3rd, 4th and 5th Respondents entered a conditional appearance, followed by a motion on notice for enlargement of time to file their reply. There was also the notice of preliminary objection raised by the 2nd and 6th Respondents. The tribunal took the arguments of learned Counsel for the parties in the preliminary objection.
There is seemingly no proper sequence in the record but the Tribunal in its ruling on 31/1/07 did indicated that
“Upon the perusal of the contents of this file, the Tribunal suo motu deemed it necessary to fix the petition for call over.”
See page 100 of the records. The Petition was adjourned to 19/07/07. On page 108 of the records the Tribunal stated;
“After the submission of both Counsel, the Tribunal sought to know from the Petitioners’ Counsel, the documents that were filed along with the Petition, the purpose for which the Petition was fixed for call over.”
The above question had to do with the competence vel non of the Petition and after hearing Counsel on the issue it raised suo motu as it appears the Tribunal struck out the Petition for failure to comply with paragraph 1(1)(b) of the Practice Directions, 2007, as amended. See page 108 of the records.
Aggrieved by the ruling striking out their Petition the appellants appealed on six grounds from which they distilled the following three issues for determination by the Court in their brief of argument:
“1. Whether the procedure adopted by their Lordships of the Election Petition Tribunal in suo motu calling-over the Petition for the purpose of pointing out errors detected by them in the Petition and thereby peremptorily terminating the petition is not alien to our adversary system of adjudication and the Rule of practice and procedure applicable to the Tribunal?
- Whether the learned Judge of the Election Tribunal did not place undue reliance on technicalities against the dictates of justice in their interpretation and application of the provisions of paragraph 1(1)(b) and (2) of the Election Tribunal and Court Practice Directions (2007) as (amended)?
- Were their Lordships, the learned Judges of the Election Tribunal right in their construction and application of the provisions of Sections 80 and 81 of the Evidence Act and the cases of OLANIYANU vs. PROF. EME AWA (1989) 2 NWLR (PT. 122) 493 and BUHARI vs. YUSUF (2003) 14 NWLR (PT. 841) AT 536 PARAGRAPHS E- G?”
In their joint brief of argument the 2nd and 6th Respondents presented the following three issues for the Court to resolve:
” 1. Whether the procedure adopted by the Tribunal in suo motu calling for the petition for clarifying issues by Counsel was not proper in Law.
- Whether there was substantial compliance with the Election Tribunal and Court Practice Directions, 2007, when the Petitioner failed to file his written statement on oath.
- Whether written statement deposed to at the Registry of the High Court can be said to have the same legal status as those before the Tribunal.”
Upon their application dated 14/7/08 and filed on 22/7/08 the appellants were granted an order setting down the appeal for hearing on the Appellants brief of argument alone for failure of the Respondents to file their respective briefs of argument.
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