All Progressives Grand Alliance & Anor V. Modestus C. Ohazuluike & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the National and State Houses of Assembly Election Tribunal (coram Onajite Kuejubola J., Udu-Eze J. and Y. Mukhtar J.), sitting in Awka, Anambra State, in PETITION No. EPT/AN/HA/44/2011 delivered on the 29th September 2011 wherein the appellants’ petition was dismissed on the ground that the application for pre hearing notice was made out of time contrary to the provisions of paragraph 18 of the 1st schedule to the Electoral Act 2010, as amended.

Election into the Anambra State House of Assembly for Ihiala I Constituency was conducted on the 26th April, 2011. The 1st Appellant herein was a candidate sponsored by the 2nd Appellant All Progressive Grand Alliance (APGA) for the said election. The 1st Respondent was also a candidate but sponsored by the 4th Respondent, Peoples Democratic Party (PDP). At the conclusion of the Election, the 1st Respondent was declared winner and returned as such by the 2nd Respondent (INEC).

Being aggrieved with the Result so declared, the Appellants filed a petition at the lower tribunal on the 17/5/11. The 1st Respondent’s Reply to the petition was filed on 3/6/11 but served on the appellant on 13/6/11. From the records, it appears that all the Respondents were served with the appellants’ petition via an order of substitute service which was made at different time’s sequel to motions exparte praying for same by the appellants. The appellants subsequently by a letter dated 17/6/11 but served on the tribunal’s secretary on 23/6/11 applied for pre hearing notice. Pursuant thereto, the tribunal issued the parties with forms TF 007 and TF 008 which the Appellant and the 1st Respondent duly filled and filed on 15/7/11.

At the pre hearing session which resumed on 18/7/11 it was discovered that the 4th Respondent was not served with the originating process, (i.e. the appellant’s petition). The pre hearing was then adjourned to 20/7/11 for report of service on the 4th Respondent. On the said 20/7/11, the appellants’ counsel moved a motion exparte for substituted service on the 4th Respondent and this was granted by the tribunal and the matter adjourned further to 25/7/11. There is however no record of the sitting of the tribunal on the said 25/7/11. On the 10/8/11 the 3rd Respondent moved a motion on notice filed on 15/7/11 for extension of time to file his reply to the petition and this was granted by the tribunal. At the sitting of the tribunal on 13/9/11 the records showed that a new panel had taken over the hearing of the petition which was then adjourned to 16/9/11 for pre hearing conference. On the said 16/9/11 it was further adjourned to 22/9/11.

Meanwhile, on 30/7/11 the 1st Respondent filed a motion on notice praying for the following orders:-

1. An order setting aside all the petitioners pre hearing notice/forms for being incompetent, irregular and out of time.
2. An order setting aside the pre hearing information sheet (Form TF 088) issued by this tribunal on the 13th Day of July, 2011 as being null and void and of no effect whatsoever as same was issued without jurisdiction.
3. An order dismissing the petition as abandoned for failure to comply with the mandatory provisions of paragraph 18 of the 1st schedule to the Electoral Act 2010 (as amended).

The said motion was supported by a 6 paragraph affidavit and two Exhibits attached therewith, and written address was also filed along. See pages 302 to 313 of the record of appeal. The appellants also filed a counter affidavit of 14 paragraphs and a written address as shown in pages 314 to 325 of the record. The said motion was moved and argued by the parties on 22/9/11, in its ruling delivered on the 29/9/11 the trial tribunal in granting the 1st Respondent’s prayers in his motion on notice, dismissed the appellants petition.

The appellants being dissatisfied with the said Ruling filed a notice of appeal dated 8/10/11 and filed on 12/10/11. The said notice of appeal contained three grounds of appeals. Briefs of argument were subsequently filed and exchanged by the parties, except the 3rd Respondent. They also adopted and relied on same at the hearing of the Appeal on the 9/11/11.

This was however after the 1st Respondent’s counsel had with the leave of this court moved his notice of preliminary objection which submissions in support are incorporated in the 1st Respondent’s brief of argument. The said notice of preliminary objection filed on 28/10/11 seeks the order of this court to strike out the bundle of papers titled “Record of Appeal” in this Appeal and the Appeal itself for being incompetent. The grounds for the objection were listed as follows:-

1. The Notice of Appeal is not in compliance with the provision of order 6 (2) (1) of the Court of Appeal Rules 2011 and therefore renders the Appeal incompetent.
2. There are presently sitting at Awka three or more National/Legislative Houses Assembly Election Tribunals, the three or more tribunal could not have delivered the judgment Appealed against in this appeal as one.
3. That sufficient particulars including the parties, the Election petition in which the decision appealed against was delivered and which of the three or four tribunals’ decision is appealed against was delivered and which of the three or four tribunals’ decision is appealed against were not supplied in the Notice and Grounds of Appeal.
4. That the appeal in issue in this matter relates to the election to the Anambra State House of Assembly, Ihiala Constituency 1, it did not relate to any election to the National Assembly as falsely made out in the Notice of Appeal and included in the bundle of papers titled “record of Appeal”.
5. That only a tribunal sitting as a State Legislative Houses Election Tribunal could have delivered a verdict in respect of an election petition to the Ihiala State Constituency 1 election not the National Assembly Election Petition Tribunal.
6. The Appeal was filed on 12/10/2011 and on 13/10/2011; the Appellants’ counsel prepared the bundle of papers titled “Record of Appeal” in this Appeal contrary to the provisions of the law.
7. That a period of 10 days within which the Secretary of the tribunal is mandated by law to compile and serve the record had not elapsed to warrant the compilation of the records by the Appellants’ Counsel.
8. That until 10 days effluxes and the Secretary of the tribunal fails to compile and serve the record, the Appellants’ counsel is not permitted to compile and serve the record.
9. The bundle of papers is bereft of the contents of record of Appeal as provided in order 8 Rule 7 of the Court of Appeal Rules 2011.
10. The petition in the bundle of papers titled “record of Appeal” in this Appeal is different from petition No: EPT/AN/HA/44/2011 upon which this Appeal is brought.
11. All that occurred at the tribunal were not reproduced in the bundle of papers titled “record of Appeal”.
12. The bundle of papers titled “record of Appeal” is a hodgepodge of extraneous, irrelevant and unnecessary materials contrary to the provisions of order 8 Rule 8 of the Court of Appeal Rules 2011.
13. Relying on the incomplete hodgepodge of papers to determine this Appeal will occasion a miscarriage.

The appellants also responded to the preliminary objection by incorporating it in their “Appellants’ Reply brief to 1st Respondent’s brief”. I will now deal first with the preliminary objection.

In his argument in support therein, E.N. Onyibor of counsel for the 1st Respondent referred to Order 6 Rule (2) (1) Order 8 Rule (7) and (8) of the Court of Appeal Rules 2011 and paragraph 9 of the Election Tribunals and Court Practices Directions 2011 to submit that the appellants did not comply with their provisions and this renders the bundle of papers titled “Record of Appeal” incompetent.

He added that in the appellants Notice of Appeal, the exact nature of the relief sought and the addresses of all parties affected by the appeal were not stated therein. He cited a number of authorities on the imperative nature of a directive with the use of the word “shall”. Learned counsel argued therefore that the defects in the appellant’s notice of appeal had rendered the appeal incompetent and liable to be struck out.

He further submitted that though the appeal relates to the Ihiala I State Assembly, Anambra State, the Notice of Appeal, suggested in a misleading manner that the appeal is in respect of an election to the National Assembly. He referred to Section 285 (1) (a) and (b) of the 1999 constitution to show that there is a distinction between election petitions for the National Assembly and to the State Houses of Assembly.

Learned counsel also referred to the relief sought by the appellants as shown at page 604 of the Record of Appeal wherein they prayed that “the appeal be allowed and the case be remitted to another tribunal for retrial”.