Egwuuoyibo Okoye V. Independent National Electoral Commission (INEC) & Ors. (2009)

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MOHAMMED L. TSAMIYA, J.C.A,

In this ruling, the applicant (herein) was the petitioner before the Election Tribunal 1 (herein referred as Tribunal 1) sitting at Awka in Anambra State, while the respondents (herein) were respondents in the petition. The applicant petitioned against the return of the 4th respondent by the 1st – 3rd respondents in the General election held on 28/4/2007 in the Nnewi South Constituency, as the winner. The petition No. EPT/AN/SAE/85/2007 was on 3/6/2008 dismissed by the said Tribunal, 1.

Dissatisfied with the decision, the applicant quickly filed his notice of appeal on 12/6/2008. Then after the receipt of the judgment he filed and served the respondent another notice of appeal dated 23/6/2008 and filed on 24/6/2008. Thereafter, the appellant/applicant and 4th respondent each filed an application.

For clarity the application filed by the appellant/applicant mainly is for:

(a) Leave to withdraw the notice and grounds of appeal dated and filed on 12/6/2008;

(b) Leave to argue the appeal based on the notice and grounds of appeal dated 23/6/2008 and filed on 24/6/2008; and

(c) An order compelling the respondents to obey the order made by this Court on the 21/1/2008 in appeal NO.CA/E/155/2007.

And for the 4th respondent, his application is:

“Seeking an order of this court dismissing the appellant’s Notice and Grounds of Appeal dated and filed 12/6/2008, copied at pages 1286- 1289 of the record for want of diligent prosecution.

In situations such as this, the court must decide which of the two applications should be determined first.

In any case, since amongst the two applications before us, is an application seeking, inter-alia, leave to withdraw the notice and grounds of appeal, and to argue appeal on the other notice and grounds of appeal filed, which if successful would defeat the 4th respondent’s application seeking “to dismiss the said notice and grounds of appeal as well as the entire appeal for lack of diligent prosecution”, the practice for quite a long time in our courts, is to determine, first, the application that would save the appeal if successful.

I must observe that in the days when counsel obtain what is regarded as technical justice the application seeking to dismiss would have been heard and determined first. If successful, the case would abate and that would be the end of the matter, notwithstanding the fact that the other application if determined first could have abated the other application to dismiss.

The aim of the courts, for quite a long time, and now has been to do substantial justice between the litigants. The days of technicality on technical justice have gone forever. See Bello vs. A.G. Oyo State (1986) 12 S.C. 1. Determining first, the application that would save the substantive action to proceed is founded on the reasoning that, if the application succeeds then the other application ‘to dismiss’ may not be heard. I will now proceed to determine the appellant’s/applicant’s application filed on 4/11/2008.

In his application, as I have said above in this ruling, the appellant/applicant prayed mainly for the following orders: