Chief (Hon.) Aleruchi Williams & Anor V. Independent National Electoral Commission & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of Election Petition Tribunal at Port Harcourt, Division on the Preliminary objection filed by the Respondents in Petition No.EPT/GOV/PH/4/2011 made on 22/7/2011.

The 1st – 4th Respondents and 6th Respondent had filed a motion on notice to dismiss the petition for the petitioner’s failure to inter alia, apply for pre-hearing notice as required by the Rule.

After listening to all the parties the tribunal held as follows:-

“After the close of pleadings, when the petitioners’ counsel considered an application due wrote a letter to the secretary of the Tribunal on the 28/6/2011 applying for a pre-hearing notice. Upon the receipt of the letter, the Tribunal secretary on the 29/6/2011 wrote a reply to the petitioner’s counsel stating that the letter the counsel wrote for the pre-hearing notice was not a proper application. The letter was served on the counsel on the same 29/6/2011.

The said letter written by the Petitioners’ counsel, Exhibit A, was not acted upon by the Tribunal. No pre-hearing Notice was issued. In spite of the Secretary’s reply to the learned Petitioners’ counsel that the letter was not a proper application and the fact that no such pre-hearing notice forms which the letter purportedly sought, were issued, the petitioner’s did nothing, until the respondents on the 5/7/2011, 6 days after filed these motions praying for the dismissal of the Petition.

The judicial interpretation respect to a letter written for issuance of pre-hearing notice, such as exhibit A in these motions, as we have demonstrated in the cases of ADO vs. MEKARA (supra) and RIRUWAI V. SHEKARAU (supra is undoubtedly clear, that a letter does not amount to an application as envisaged by the Electoral Act. The legal and judicial effect that go with such interpretation which runs through the membrane of the cases from ADO v. MEKARA (supra) decided on 31/3/2008, to RIRUWAI vs. SHEKARAU decided on 10/4/2008, all by the KADUNA DIVISION of the Court of Appeal is that such a Petitioner has not applied for pre-hearing notice as mandatorily required.

By the same token, the legal and judicial injunction is that effect must therefore be given to paragraphs 18(3) & (4) of the 1st schedule to the Electoral Act 2010, as amended which are in pari material with paragraph 3 (3) & (4) of the 2007 Practice Directions, under which these decisions were rendered. The injunction leaves no option or discretion to the tribunal to do anything other than dismiss the petition. We are therefore bound by these Judicial Authorities to do just that, and accordingly, this petition. No. EPT/GOV/PH/4/2011, is hereby dismissed vide paragraph 18(3) of the 1st Schedule to the Electoral Act, 2010, having answered the two issues formulated in the negative and against the petitioners.”

It is against the above decision that the appellant filed Notice of Appeal containing 3 grounds of appeal on 10/8/2011.

The grounds of appeal are (the particulars are excluded):-

GROUNDS 1

The lower tribunal erred in law when it held that the petitioner’s letter to the tribunal secretary on 28/6/2011 to apply for issuance of pre-hearing notice was improper and was written out of time.

GROUNDS 2

The lower tribunal erred in low when it dismissed the substantive matter based on rules of court instead of determining the matter on merit and do substantial justice.