Azubuike Ikenna Esq. V. Mr. Ben Nwankwo & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A, (Delivering the Leading Judgment)

The appeal herein is against the ruling of the National and State Houses of Assembly Election Petition Tribunal Anambra State, holden at Awka, delivered on 8th August 2011 in petition number EPT/AN/NAE/HR/12/2011 wherein the said petition was dismissed.

A synopsis of the facts culminating in this appeal is hereby made as follows: The Appellant and the 1st Respondent are members of the same political party, the Peoples Democratic Party, hereinafter referred to as P. D. P. The elections of the House of Representatives for Orumba North/South Federal Constituency, Anambra State was held on the 9th April, 2011. Upon the conclusion of the election, the 3rd to 7th Respondents declared and returned the 1st Respondent as the winner of the election. Dissatisfied by the declaration and return of the 1st Respondent as the winner of the election, the Appellant as Petitioner challenged same by a petition filed in the tribunal.

The petition of the Appellant was dated 29th April 2011 and filed on the 30th April, 2011. The Appellant in the said petition contended that he was the one that contested and won the election for the Orumba North/South Federal Constituency Anambra State held on 9th April 2011 under the platform of the P.D.P. The Appellant further contended that the 3rd to 7th Respondents instead of declaring him as the winner of the election, wrongfully declared the 1st Respondent. The facts given in support of the petition inter alia included the allegation that the 1st Respondent was not sponsored by the P. D. P. The Appellant sought for the following reliefs in paragraph 9 of the petition namely:-

“1. A declaration of court that the 1st Respondent was not validly or duly returned as a member of the House of Representatives for the Orumba North/South Federal Constituency having not been sponsored by the Peoples Democratic Party in the election nor gone through or participated in all the stages of the said election held on 9/4/2011.

2. A further declaration of court that the votes attributed to the 1st Respondent in the said election i.e. 11,835 votes were improperly or invalidly attributed to him and ought to have been attributed to the petitioner who had been sponsored by the P. D. P in the election, had contested in the same and actually won the election with the aforesaid 11,835 votes
3. A declaration of court that the return made in favour of the 1st Respondent by the constituency returning officer on 10/4/2011 was undue and invalid in that the petitioner and not the said 1st Respondent was the candidate of the P. D. P. who actually contested the election and earned the majority votes of 11,835 votes in the election.
4. A declaration of court that the petitioner was validly elected as the member of the Federal House of Representatives to represent Orumba North/South Federal Constituency in the election to the National Assembly held on 9/4/2011 since the majority of the votes had been cast for him in the said election.
5. An order of injunction that the INEC issues a certificate of return in favour of the petitioner to enable him take this rightful place at the National Assembly to represent the Orumba North/South Federal Constituency, Anambra State, and a further order of injunction restraining the 1st Respondent from parading or putting himself forward as the person returned or elected as the member of the aforesaid Orumba North/South Federal Constituency or from enjoying any rights/perquisites of that office.”

See page 6 of the Record of Appeal.

On the 4th August, 2011 the Appellant’s counsel moved the tribunal to adjourn the petition for pre-trial. On the 8th August 2011 being the next adjourned date, the Appellant’s counsel informed the court that he was not ready for pre-trial and hence applied for a short adjournment. However, upon the application of 3rd to 7th Respondents’ counsel, the tribunal dismissed the petition on grounds of unpreparedness to participate and or take part in pre-trial session, pursuant to paragraph 18(11) (a) of the 1st schedule to the Electoral Act 2010 (as amended). See pages 602 to 603 of the Record of Appeal and pages 14 to 16 of the additional Record of Appeal.

Dissatisfied by the aforementioned decision dismissing his petition, the Appellant filed in this appeal pursuant to a Notice of Appeal dated 24th August 2011 and filed on 25th August, 2011. The Notice of Appeal was anchored on two grounds of appeal and the said grounds stripped of their particulars are hereby reproduced thus:

“GROUNDS OF APPEAL – ERROR IN LAW

The learned trial tribunal erred in law when it had assumed jurisdiction in the matter and in dismissing the petition of the Appellant.

ERROR IN LAW – The learned trial tribunal erred in law by foreclosing the Appellant from filing the petitioner’s Reply to the reply of the 3rd – 7th Respondents even as he was still within time so to do.”

See pages 609 to 610 of the Record of Appeal.

The 1st Respondent on his part, filed a notice of intention to contend that the judgment should be affirmed on grounds other than those relied upon by the court below, pursuant to Order 9 rule 2 of the Rules of Court. The said notice divorce of the grounds in its support is hereby reproduced thus:

“TAKE NOTICE that upon the hearing of the above appeal, the 1st Respondent intends to contend that the decision of the court below dated the 8th day of August 2011 shall be confirmed on grounds other than those relied on by the court below, to wit: THAT THE DISMISSAL OF THE APPELLANTS PETITION BE SUSTAINED ON THAT OTHER GROUND THAT EVEN BEFORE THE 8TH DAY OF AUGUST 2011 (WHEN THE LOWER TRIBUNAL ORDERED THE DISMISSAL OF THE APPELLANT’S PETITION) THE SAID PETITION HAD LONG BEEN ABANDONED WITHIN THE CONTEMPLATION OF PARAGRAPH 18(1) AND (4) OF THE 1ST SCHEDULE TO THE ELECTORAL ACT 2010 (AS AMENDED).”