Arc. Austin Asema Achado & Anor V. Christiana Alaaga & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

The appellants as petitioners at the Tribunal filed a petition on the 17th day of May, 2011 against the declaration and return of the 1st Respondent herein as member representing Gwer East/Gwer West Federal Constituency in the election that took place on the 26th day of April, 2011.

The parties exchanged pleadings and the 1st Respondent in her reply gave a notice of preliminary objection to the competence of the petition by a motion on notice filed on 11/7/2011, prayed the Tribunal to strike out the name of the 1st Respondent and the entire petition. The ruling was adjourned to 10/9/11, on that date the Tribunal suo motu raised the issue of service of the petition and called on counsel on both sides to address it on the propriety or otherwise of the service of the petition on the 4th 105th Respondents, consequently, the Rulings were further adjourned to 14/9/11 when the Tribunal delivered its Ruling and dismissed the petition.

The appellants were dissatisfied with the dismissal of the petition and appealed to this court on 29/9/2011 challenging the ruling of the Tribunal.

The appeal was allowed on the 2nd day of November, 2011. Subsequently, the petition was fixed for rehearing on 14th day of November, 2011. On that day, the 1st respondent came up with an application challenging the jurisdiction of the Tribunal to hear the petition on its merits on the grounds that the time within which the petition was to be heard had elapsed/lapsed and the tribunal lacked the jurisdiction to entertain it.

On 29th November, 2011, the Tribunal in its Ruling dismissed the application of the 1st Respondent. The 1st Respondent appealed to this Court challenging the decision of the Tribunal dismissing its application.

This Court on 2nd November, 2011 had dismissed the 1st Respondent’s appeal on the ground that Section 285 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) does not apply to a petition that has been ordered by this court to be reheard.

On 21st February, 2012, the 1st Respondent once again filed a motion challenging the jurisdiction of the tribunal to entertain the petition on the ground that the Supreme Court had interpreted Section 285(6) of the Constitution in the consolidated Appeal Nos. SC.1/2012 and SC.2/2012 delivered on 12th February, 2012 to the effect that the Tribunal lacked jurisdiction to continue hearing the petition since 180 days from the date the petition was filed had lapsed.

Thereafter, the Tribunal invited the parties to address her on the status of the petition in view of the Supreme Court’s decision in the consolidated Appeal Nos. SC.1/2012 and SC.2/2012 of 17th February, 2012. All the parties addressed the Tribunal on 22/2/12, on the same date the tribunal dismissed the petition on the ground that her jurisdiction to further continue hearing the petition had been taken away by the Supreme Court decisions in the consolidated appeal.

The appellants were once again dissatisfied with the order of dismissal of the petition by the Tribunal, appealed to this court vide the notice of appeal dated the 7th day of March, 2012 and filed on the 12th day of March, 2012 in which two issues were raised. They are:

ISSUE ONE:

“Having regards to the provisions of Section 246(3) of the Constitution of Federal Republic of Nigeria 1999 (as amended), whether the National/State Houses of Assembly Election Tribunal was correct in law to dismiss Appellants’ petition based on the Supreme Court’s decision on Section 285 (6) of the Constitution of the Federal Republic of Nigeria (as amended) when this Honourable Court had on 2nd day of November, 2011 decided on the issue of Section 285(6) of the Constitution and ordered the Tribunal to proceed with the hearing of the petition to judgment. (Grounds 1, 2, 3, 5 and 6).

ISSUE TWO:

“Arising from the provisions of chapter iv of the Constitution of the Federal Republic of Nigeria 1999 (as amended), particularly Section 36 thereof, whether the fundamental right of fair hearing of the Appellants have not been denied by the decision of the tribunal to dismiss Appellants’ petition (Ground 4).”