All Progressive Grand Alliance (Apga) & Anor V. Chief Chriscato Ameke & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the leading Judgment)

On the 22nd day of December, 2011, this Honourable Court pronounced the judgment in this interlocutory appeal by the Petitioners against the Ruling of the National Assembly/Legislative Houses Election Tribunal sitting at Awka, Anambra State Coram: Hon Justice N. U. Gummi (Chairman), Hon. Justice T. A. Kume and Hon. Justice I. B. Garba; wherein they dismissed the Appellants’ Petition on the 2nd day of November, 2011; in limine on the ground that same had been abandoned by the Petitioners.

CONCISE STATEMENT OF FACTS

The facts of the case as stated by the Appellants are that they commenced the proceedings by way of the petition which is at pages 1-97 of the Records and the respective Replies of the Respondents are at pages 98 – 354 of the Records. The Appellants subsequently filed a Reply to the Reply of the 1st Respondent. See pages 354 – 258 of the Records.

According to the learned counsel to the Appellants, he made an application by way of letter dated 22/6/2011 for the issuance of Pre-hearing Notice which the Secretary of the Tribunal acknowledged on 24/6/2011 by endorsing on the duplicate copy of the said letter. Page 517 of the Records refers. On 12th July, 2011, the first Tribunal was said to have granted the 2nd Respondent’s motion to regularize its Reply to the petition which had been filed out of time; as reflected at Page 447-448 of the Records refers wherein the Tribunal ordered that: “This matter is hereby set down for Pre-hearing on Tuesday 19/7/2011 at 10:30am, Learned Counsel for the petitioners shall file and serve the necessary forms accordingly. The learned counsel for the Respondents shall file and serve their Answers to the Questions on the Pre-hearing information sheet. “Pages 448 – 449 of the Records refers.

Pursuant to the Order of the Tribunal the Appellants and the 1st Respondent duly completed and filed the pre-hearing information sheets Form TF 008 at page 433-446 of the Records and on the day fixed for pre-hearing i.e 19/7/2011, the Tribunal took the two applications pending before it namely an application directing the 2nd Respondent to produce Electoral Materials and the 1st Respondent’s application praying the Tribunal to strike out the petition and/or certain paragraphs of the petition. The tribunal adjourned to render its Ruling. After the Ruling, the Tribunal extended the pre-hearing session by seven days and adjourned to 4th August 2011 for continuation of pre-hearing and closure.

On 4th August, 2011, the Tribunal was informed that there were no pending applications and that the pre-hearing session ought to be closed. The Tribunal then observed as follows:

“We do observe that this matter would seem to have been set down for pre-hearing suo-motu by this tribunal on 12/7/2011 upon being told that pleadings had been completed in the matter on the same by the service of the 3rd and 4th Respondents Reply on the petitioner on 12/7/2011. It is observed that there was no subsequent application by the petitioner for issuance of pre-hearing notice.

In the light of the Supreme Court decision in Okereke v. Yar’adua & Ors (2008) 12 NWLR (Pt.1100) 95 at 120-121, we would like the petitioners counsel to address us whether the pre-hearing could properly have been constituted without an application and whether this tribunal does not lack jurisdiction to continue in this matter.” See pages 465-466 of the Record.

Counsel for the Petitioners was said to have initially asked that the matter be stood down, but subsequently asked for an adjournment to adduce evidence by way of affidavit to show that the Appellants did make the said application by a letter to the Secretary of the Tribunal and to challenge the Record of the tribunal. See pages 466-467 of the Record.

Upon that application Counsel for the 1st and 2nd Respondents opposed the application for adjournment. See pages 465-466 of the Records. The Tribunal did not however deliver its Ruling on the application for adjournment for in its words:

“The Tribunal reserved its ruling on this application for adjournment and advised him to address it on the issue raised suo-motu.”

In other words, the Tribunal did not determine whether or not to adjourn to enable the Appellants present facts in answer to the issue raised that same morning by the tribunal. The Tribunal subsequently refused the application for adjournment sought by the Appellants’ Counsel to enable him

respond effectively to the issue raised suo motu by the Tribunal that morning and challenge the Record of the Tribunal; and thereupon proceeded to consider the issue it had suo-motu raised and for which it had denied the Appellants request for an adjournment, and came to the conclusion that the petition was an abandoned petition and dismissed same. See page 470-476 of the Records.