Augustine Onyedebelu V. Oyibo N. Nwaneri & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABDULLAHI, J.C.A.

The Governorship and Legislative Houses Election Tribunal (henceforth referred to as the lower Tribunal) in a Ruling delivered on 16th day of August, 2007 dismissed a petition filed by the petitioner on 14th of May, 2007 challenging the return of the 1st Respondent, as a member representing Oru East Constituency in the Imo State House of Assembly.

The Tribunal on the said date held thus:

“On the whole, the Petitioner having failed to bring an application in accordance with paragraph 3(1) of the Practice Directions, this petition is deemed abandoned by virtue of para 3(4) thereof and ought to be dismissed. Accordingly, petition is hereby dismissed.”

Dissatisfied with this ruling, the petitioner filed a Notice of Appeal which initially carried four grounds of appeal and with the leave of this Court, the 5th ground was filed on the 11th of December, 2007 from which he distilled four issues for determination. Devoid of their particulars, the grounds are as follows:

“GROUND 1 – ERROR IN LAW

The Honourable Tribunal erred in law when it held that the Petitioner is under duty to apply for pre-hearing conference 14 days after entering appearance by the Respondent pursuance (sic) to paragraph 3 of the Election Petition and Court Practice Directions 2007 whether or not the respondents filed any reply to the petition and by the said error arrived at a wrong construction of paragraph 3(1) of the Election Tribunals and Court practice Directions 2007.

GROUND 2 – MISDIRECTION OF LAW

The Honourable Tribunal misdirected itself in law when it held that:

‘The necessary intendment of paragraph 3 of the Practice Direction is that if the Petitioner is not vigilant and fails to apply for pre-hearing conference within 14 days after entering appearance his petition cannot be revived.’

GROUND 3 -ERROR IN LAW

The Honourable Tribunal erred when it held that the provision of paragraph 3(1) (2) (4) of the Election Petition Practice and Court Direction are mandatory and applicable to Petitioner notwithstanding that non of the respondents had filed and served any reply to the petition.

GROUND 4 – ERROR IN LAW

The Honorrrabie Tribunal erred in law when it held that “the provision of Order 28 Rule 7(1) of Federal High Court Civil Procedure Rules cannot apply to the present situation because unlike in civil cases there in provision under the Practice Direction and the first schedule :as to what the respondents should do failing which the Petition should apply for pre-hearing conference and consequently dismissed the petition notwithstanding the provision of paragraph 35(d) of the first schedule to the Electoral Act 2006.