Chief Ighoyota Amori & Anor V. Ewherido Akpor Pius & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

GEORGE OLADEINDE SHOREMI, J.C.A.

When the appeal came for hearing on 12/9/2011 and after the adoption of their briefs by parties and arguments canvassed by the parties Respective Counsel this court allowed the appeal and remitted the petition to the lower Tribunal for the petitions to be heard on merit.

The reasons for doing so are hereby set out:

The background of the appeal is that the 1st Appellant was the candidate of the 2nd Appellant who contested election to the Senate to represent Delta Central Senatorial District at the election which took place on the 9th of April, 2011 in Delta State.

The 1st Respondent was the candidate of the 2nd Respondent party and he was declared as the winner of the said election by the 3rd Respondent and duly returned as such.

Being dissatisfied with the said declaration and return, the Appellants filed an election petition before the appropriate tribunal in Asaba. Upon being served with the petition, the Respondents filed their various replies after which the Appellants, as Petitioners, made a written request in the form of a letter addressed to The Secretary of the Tribunal for the issuance of Pre-Hearing Notice.

Based on the said letter, the Secretary duly issued The Hearing Notice for Pre-Hearing Session Form TF007 and the Pre-Hearing Information Sheet Form TF008.

The parties filed their respective answers to the Pre-Hearing information sheet. See pages 226 to 230 and 329 to 331 of the records. Pre-Hearing actually commenced as scheduled by the tribunal and the 1st and 2nd Respondents were duly represented. This was on the 8th of June, 2011. The second session of Pre-Hearing was held on the 23rd of June, 2011. See page 360. The 1st and 2nd Respondents indicated at the second session that they have filed an application challenging the Pre-Hearing procedure.

Through an application dated and filed on 13th June, 2011, the 1st and 2nd Respondents applied for the petition to be struck out for failure of the Petitioner to apply for the issuance of Pre-Hearing Notice.

Through a ruling delivered on the 13th of July, 2011, the Tribunal held that the application for the issuance of the Pre-Hearing Notice ought to have been by way of motion either ex-parte or on notice. The Tribunal further held that the provision is “mandatory and goes to the jurisdiction of the tribunal. It is not a mere irregularity which ordinarily can be waived or cured” (Underlined Mine)

Applying the principle of “Ex Nihilo Nihil Nihil” i.e. that out of nothing, nothing ensues, the tribunal further determined that all subsequent processes filed were nullities.

The Appellants filed a motion for extension of time to file an application for the issuance of Pre-Hearing Notice in the alternative. The case made was that in the event of the tribunal reaching a determination that the application should have been made by way of a motion rather than by a letter, the Appellants should be granted an extension of time within which to so apply rather than for the petition to be dismissed as abandoned.

The tribunal however declined to do so holding that it had no powers to extend time for the application to be made. The petition was thus held to be “abandoned” and dismissed”.

Three grounds of appeal are at page 389 – 391. From the grounds of appeal the following issues were distilled for determination.