Ubani Kelechi Kenneth v. Nwankwo Sylvanus Enyinna & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This appeal is against the decision of the National and State Houses of Assembly Election Tribunal for Rivers State sitting in Abuja delivered on the 12th of July, 2023 foreclosing the petitioner (now appellant) from calling further witnesses on the ground that he had exhausted the two (2) weeks allotted to him under paragraph 41 (10) (a) of the First Schedule to the Electoral Act, 2022 to prove his case.

The appellant who is the petitioner at the Tribunal challenges the 3rd respondent’s declaration and return of the 1st respondent as the winner of the election of the office of the member, Rivers State House of Assembly Representing Omuma State Constituency.

That during the pre-trial conference, the tribunal allotted two (2) weeks to the petitioner to prove his case but the hearing was characterized by intermittent adjournments at the instance of the tribunal as a result of which the petitioners witnesses could not be accommodated on the 14th, 19th, and 22nd of June, 2023 agreed upon for hearing the petition. Thus, only PW1, PW2 and PW3 testified.

At the resumed hearing on the 7th July, 2023, counsel for the 1st respondent raised an objection that the appellant’s counsel can no longer call any witness having exhausted the two (2) weeks provided by paragraph 41 (10) (a) of the First Schedule to the Electoral Act, 2022 to prove his case. After hearing counsel for the respective parties and in a considered ruling delivered on 12th July, 2023 the tribunal held inter alia at page 582 of the record of appeal as follows:

“Allowing further hearing of the petitioners/respondents case will also amount to eating the forbidden fruit, that is to say, going against the law which this tribunal ought to preserve. Such will be worse that too bad. It is resisted.”

On the provisions of paragraph 46 (1) and (5) of the First Schedule to the Electoral Act, 2022, it has to be stated that paragraph 46 (1) of the First Schedule does not apply in this case because parties were at all material times present when this matter came up for hearing on 7/7/2023.

The 1st respondents counsel properly raised his objection in light of the extant provisions of paragraph 46 (5) of the First Schedule to the Electoral Act which allows for oral application to have a case closed.

In the light of all the tribunal has stated and held, the tribunal holds that there is merit in the objection of the 1st respondents counsel. It is sustained and the petitioner/respondent foreclosed from calling further witness or witnesses in proof of his petition. So be it.

Dissatisfied, the appellant filed the instant appeal on 20/7/2023 predicating it on four (4) grounds of appeal. And distilled from the said grounds of appeal, appellant identified two issues for determination as follows:

“1. Whether or not the tribunal which at the close of pre-trial allotted the appellant two weeks to prove his petition was right to have foreclosed the appellant after the petitioner utilized only 3 days of the two weeks?

2. Whether or not the foreclosure of the appellant amounts to the denial of his right to fair hearing?”

The 1st respondent on his part crafted a sole issue for determination thus:

“Whether the honourable tribunal in giving effect to paragraph 41 (a) of the First Schedule to the Electoral Act, 2022 and paragraph 10 to its pre-hearing report denied the appellant of his right to fair hearing.”

On the part of the 2nd respondent, two issues were formulated and these are: