Barr. Tombowua Tar & Anor V. Hon. Akaan, G & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment)

The appeal is against the two rulings of the National and State House of Assembly Election Petition Tribunal for Benue State, sitting in Makurdi, delivered on 2/9/2011.

The 2nd and 1st respondents filed applications on 25/7/2011 and 28/7/2011 respectively, challenging the competence of the petition. On 2/9/2011 the Tribunal delivered two separate rulings on the motions. On the 1st respondent’s application, the petition was struck out for want of jurisdiction being statute barred. The Tribunal on the 2nd respondent’s motion, dismissed the petition for the fact that the remaining paragraphs of the petition did not disclose any cause of action after substantial paragraphs of the petition were struck out.

Dissatisfied, the appellant filed a Notice of Appeal on 22/9/2011 containing 5 grounds. In accordance with the rules, parties filed and exchanged their particular briefs. The appellants as well as 1st and 2nd respondents identified 4 issue respectively for determination; the 3rd – 94th respondents formulated 3 issues.

On 27/10/2011 when the appeal was heard, counsel for respective parties adopted and relied on their briefs as filed. This appeal shall be determined on the issue as formulated by the 1st and 2nd respondents.

After due consideration of the briefs as filed, the submissions of the learned counsel for the parties, the authorities referred to by them on the said 4 issues, I resolve the issues as follows;

Issue No. 1 is answered in the affirmative and resolved in favour of the 1st and 2nd respondents. That is to say, the Tribunal had the jurisdiction to entertain the application of the 1st and 2nd respondents challenging the competence of the petition.

Issue No.2 is answered in the negative and resolved in favour of the appellant. The Tribunal was wrong to hold that the petition was statute-barred and struck out the petition.

Issue No. 3 is answered in favour of the 1st and 2nd respondents. This is to say, the Tribunal has no jurisdiction to try criminal allegations made against persons that had not been joined to the petition as respondents and as such was right in striking out related paragraphs of the petition containing such allegations.

Issue No. 4 is resolved in favour of the appellants. I hold that the 4th – 94th respondents are juristic persons. Also the service on them through the 3rd respondent in the circumstances of this case is good in law.

In all, this appeal succeeds in part and is hereby allowed. The decision of the Tribunal dismissing the petition is hereby set aside. I order that petition No.NSHA/EPT/BN/HA/43/2011 be sent back to be heard and determined by another Tribunal on its merit.

Reasons for this decision shall be given on a later date to be communicated to counsel and parties.

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Other Citation: (2011)LCN/4862(CA)

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