Barr. Chugbo Enwezor V. Independent National Electoral Commission (INEC) & Anor (2008)

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VICTOR AIMEPOMO O. OMAGE, J. C. A.

This is an appeal against the decision of the Governorship/Legislative Houses Election Tribunal holden at Awka, Anambra State, per Coram J.S. Abiriyi and other members of the Tribunal.

The decision was made on 13th October 2007, in the main, in the decision, it struck out as abandoned, the petition of the appellant in the appeal on the grounds to be stated hereafter.

In the main Petition the appellant deposed that he contested, the sought to contest elections to the Anambra State House of Assembly Onitsha North 1 Constituency, and concluded all the necessary requirements to do so with INEC, the 1-3 respondents on the platform of All Progressive Grand Alliance who sponsored him. On 14th April 2007 when the election was fixed to take place, he went to the various unit of the polling booth to find that no election took place. Eventually information reached him that the main office of INEC was burnt down by irate and frustration people who gathered the said office. Owing to persistent enquiry the INEC issued a statement declaring that the 4th Respondent of PDP had won the election. Despite repeated demands the INEC refused and or neglected to give him details of the election that he knows never took place. The appellant filed his petition before the Tribunal of the Anambra Governorship/Legislative Houses Election which held at Awka. He filed the election petition on 11th May 2007, He duly filed his petition on the Respondents, who are the person declared a winner, the 4th Respondent, and the INEC who are the 1st – 3rd Respondents. The Petition having been received by the Respondent he filed the Respondent’s brief. The Petitioner also filed a reply to the Reply of the Respondent and did not file the Form TF007 within the period specified until 17th September 2007.

The Respondent also did not file to request for Form TF 007. Instead the Respondent meanwhile the 4th Respondent applied to the court to dismiss the appeal on the ground that the petitioner had abandoned his petition. The Tribunal obliged the prayer of the Respondent, and dismissed the petition for the appellant’s failure to file for the issuance of Form 007. Because the petitioner was dissatisfied with the judgment of the Tribunal below.

In the appeal the appellant formulated the following Issues for determination of the appeal.

(1) Whether upon the facts and circumstances of this case the Tribunal was right in its interpretation of paragraphs 3(1) (2) (3) and (4) of the Election Tribunal and the Court Practice Direction 2007? Grounds 1, 2, and 5 of the Grounds of Appeal.

(2) Whether the Tribunal was right when after acknowledging that both the 1st, 3rd and 4th Respondents had filed Forms TF 008 (per hearing information sheet) still went ahead to dismiss the appellant’s petition on the ground that it has become abandoned for failing to file Form TF007 within time. Ground 3 of the grounds of appeal.

(3) Whether there exists any conflict between the provisions of paragraph 3(4) of the Election Tribunal and Court Practice Directions and Sections 285 (2) 119 (c) of the Constitution and paragraph 43(1) of the First Schedule Rules of Procedure for Election Petition 2007 Ground 4 of grounds of appeal.

(4) Whether the honourable Tribunal was right when it held that there was affidavit evidence showing that the 4th Respondent has complied with the tribunal order of 7th September 2007.

The 4th, 1 and 3rd respondents in their briefs agree and adopt the issues formulated by the appellant.

My lords before I answer the several questions contained in briefs of the parties on issues to be determined, I wish to say in this judgment that the issues of all the parties will be taken together, further it is desirable and I deem it appropriate to commence by Sections 1, 2, and 3(1-4) on which the court below based its judgment. The Sections are of Election Tribunal and court Practice Direction 2007. The Election practice Directions are the rules formulated by the Honourable President of the Court of Appeal for the provisions of the Election Tribunal, under the constitution of Nigeria 1999. The rules have equal effect as the rules of ordinary court. The rules commenced its enforcement on 3rd April 2007, and it states, these Practice Direction shall apply to the Presidential, Governorship National Assembly and States House Assembly election petition. It subscribes 1 (c) All petitions to be presented before the Tribunal or Court shall be accompanied by (a) list of all the witnesses that the petitioner intends to call in proof of his petition (b) Written Statements on Oath of the witnesses, and (c) Copies or list of every document to be relief on at the hearing of the petition.

(2) A petition which fails to comply with sub-paragraph (1) shall not be accepted for filing by the Secretary. The Respondents Reply shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and written statement on oath.

3(1) within 7 days after the filing and service of the Petitioner’s Reply on the Respondent or 7 days after the filing and service of the respondent’s Reply whichever is the case, the Petitioner shall apply for the issuance of pre hearing notice as in Form TF007. (2) Upon application by a petitioner under subparagraph (1) above the Tribunal or court shall issue to the parties or their legal Practitioners if any a pre hearing information sheet as in Form TF007 accompanied by a pre hearing conference information sheet in Form TF008 for the purpose set out hereunder (a) disposal of all matters which can be dealt with on interlocutory application (b) giving such directions as to future course of the petition as appear best adapted to secure its just and expeditious and economical disposal in view of the urgency of election petitions. (d) Fixing clear dates for hearing of the petitions.