Chief Achike Udenwa & Anor V. Chief Hope Uzodinma & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

On 17th day of October, 2011, this Honourable Court allowed the appeal of Chief Achike Udenwa and the Action Congress in Appeal No. CA/OW/EPT/27/2011 and ordered that the Appellants petition be remitted back to the Tribunal for trial on the merit by a panel other than the panel that heard and determined the matter.

Going back before the National Assembly Election Tribunal holden at Owerri, counsel to the parties filed three separate motions.

Mr. L.M. Alozie, of counsel to the 2nd Respondent filed a motion dated 7/11/2011 but filed on 9/11/2011 praying the Tribunal to strike out the petition for want of jurisdiction. A similar application dated and filed on 17/11/2011 was brought to the tribunal by the 1st Respondent that is Chief Hope Uzodinma. The grounds in respect of the two separate applications are that Section 285 (6) of the 1999 Constitution limits the time for hearing an election petition to 180 days from the date of the filing of the petition and/or that the petition has died by effluxion of the 180 days allotted by Section 285 (6) of the 1999 Constitution (as amended). Meanwhile, before the 1st Respondent’s Motion on Notice, the Petitioners/Appellants as Applicants had filed a motion dated 7/11/2011 and filed on 9/11/2011 praying the Tribunal as follows:

“1. Leave of the Tribunal to apply by motion for determination of the effect of Section 285 (6) of the Constitution on the time left after the order of pre-trial by Court of Appeal.

2. An order that, without prejudice to the filing of the petition on 1/5/2011, the period of 180 days provided under Section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) for the hearing and determination of the petition has not elapsed.

3. An order that the hearing of this petition on the order of the court of Appeal after an appeal proceeding, should commence afresh from post pre-hearing session to full hearing on merit.

4. An order that the Petitioners/Applicants are under the Constitution of the Federal Republic of Nigeria entitled to be fully heard on their competently initiated petition.”

The grounds upon which the application is brought are

(a) The original trial was duly concluded on 19/8/2011 with the decision of the Tribunal which was final in effect.

(b) The decision of the tribunal on 19/8/2011 has been set aside and hearing on merit ordered.

(c) The constitutional provision for the hearing of a petition (S. 285 (6) is different from and independent of the provision for hearing an appeal arising therefrom (S. 285 (7)).

(d) The hearing ordered by the Court of Appeal is a fresh hearing before a fresh panel of the Tribunal on merit.

(e) The facts of this application are peculiar and circumstantial.