Barr. Vincent Ezenwajiaku V. Mr. Chukwuma Umeoji & Ors (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED L. TSAMIYA, J.C.A.

This is an appeal against the judgment of the Legislative Houses/Governorship Ejection Tribunal No.1 (herein referred to as the Tribunal 1). Sitting at Awka, in Anambra State, which struck out the petition on 28/9/2007 for the lack of diligent prosecution as there was non service of the petition on the respondents.

Being dis-satisfied with the said judgment, the petitioner, as appellant initialed this appeal by virtue of the Notice and Grounds of Appeal dated 11/10/2007 and filed on 19/10/2007. The Notice and Grounds of appeal contained two grounds of appeal on error in law.

The appellant has equally presented the appellant’s Brief of Argument in substantiation of the two grounds of appeal. In his Brief of argument, there were two issues distilled from the two grounds of appeal as follows:

(a) Whether the non-service of the petition filed on 21/5/07 as at 28/9/07, if indeed there was non service, was legally sufficient to render the petition liable to be struck out.

(b) Whether the tribunal has the jurisdictional competence to strike out the petition at the time it did when it has made a finding of non service of the petition on the respondents.

The 1st respondent has also filed the respondents’ brief of arguments in response to the appellant’s brief in which the 1st respondent raised only one issue for determination in this appeal as follows:

“Whether the Tribunal on a dispassionate consideration of circumstances of the petition was right when it struck out the appellant’s petition.

On receipt of the 1st respondent’s brief, the appellant filed the appellant’s Reply to 1st respondent’s brief of argument.”

On the 2nd – 4th respondents’ part, they filed their Brief of argument after receipt of the appellant’s Brief. It should be noted that they also filed a notice of preliminary objection which was incorporated into their Brief of argument.

In reaction to the said notice of preliminary objection, the appellant also filed a Reply Brief within time.

The facts of the case in brief are that, by an undated Election petition filed on 9/5/2007 the appellant, prayed that it be determined as follows:

1) An order canceling or annulling the result and the return, of Aguata Federal Constituency election wherein the 1st respondent was returned as elected in the election in the Federal House of Representative held on 21st April 2007.

2) An order directing the 4th respondent to conduct fresh and/or a bye-election into the Federal House of Representatives for Aguata Federal Constituency.