Dr. Emmanuel Onwe V. Senator Julius Ali Ucha & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal lodged by the 4th Respondent in PETITION NO EPT/EBS/SEN/AB/12/2007 – DR. EMMANUEL ONWE V. SENATOR JULIUS ALI UCHA & 4 ORS against the Ruling delivered on 2/7/2007 by the National Assembly/Governorship and Legislative Houses Election Petition Tribunal holden at Abakaliki, Ebonyi State (hereinafter to be

simply referred to as “the Tribunal”). In the Ruling, the Tribunal dismissed the application brought by the 4th Respondent – the Peoples Democratic Party dated 5/6/2007 and filed on 13/6/2007, in which an Order for the striking out of the Petition was sought. The grounds relied upon for the Order sought as set out in the application are: –

“1. The Tribunal lacks the jurisdiction to entertain the petition in that the subject matter cause of action therein are matters or events preceding the election of 21st April, 2007 and as well as intra party affairs.

2. The said petition is incompetent in that the petitioner has no locus standi to present the petition.
3. And for such other order or orders as the Honourable tribunal may deem fit and proper to make in the circumstances.”

The Tribunal in ruling on the application of the 4th Respondent said thus:

“RULING: – We have listened to all counsel in the application. We have read the addresses filed by counsel, and see no substantial difference between this application and the one earlier ruled on today.

Accordingly, in view of the Ruling of this Tribunal, (sic) Petition No. EPT/EBS/HR/AB/3/07 this present application lacks merit, and ought to be dismissed. It is accordingly dismissed. 11/07/07 for Pre-Trial and Hearing.”

This interlocutory appeal and the substantive appeal were both entertained by the Court on 9/6/2010 with the substantive appeal taken first in time. I am however considering the interlocutory appeal first in this judgment because if it is allowed, there would be no need to consider the substantive appeal on the merit. This must be so as the success of the interlocutory appeal would result in upholding the objection of the 4th Respondent (i.e. Appellant in the instant interlocutory appeal) before the Tribunal that the said Tribunal had no jurisdiction to have entertained the petition presented by the 1st Respondent as Petitioner before the Tribunal. A conclusion in this vein would automatically result in the striking out of the petition and a declaration of the proceedings and judgment subsequently delivered by the Tribunal as null and void.

The 4th Respondent (now Appellant) being aggrieved with the Ruling of the Tribunal filed a motion for leave to appeal against the said Ruling and also to deem both the Notice and Grounds of Appeal and Brief of Argument in respect of the appeal as properly filed and served. The Orders were granted by the Court on 7/12/2009. Later, the Appellant by a motion dated 7th June, 2010 and filed on the same date sought for the Orders of this Court: –

(i) Amending the Notice and Grounds of Appeal;

(ii) Deeming the Notice and Grounds of Appeal, Exhibit 2 hereto as duly filed and served; and

(iii) Deeming the Appellant’s Brief of Argument dated and filed on 23rd February, 2009 and Appellant’s Reply to 1st Respondent’s Preliminary Objection dated and filed on 9/3/2010 as duly filed and served.

The application was entertained by the Court on 9/6/2010. Dr. J.O. Ibik SAN learned senior counsel for 2nd Respondent as well as Ugwuocha, Esq., of counsel for the 3rd and 4th Respondents did not oppose the motion with any reservation. L.O. Fagbemi, SAN learned counsel for the 1st Respondent however did not oppose the motion subject to his subsequently raising and arguing the preliminary objection in the Notice of Preliminary Objection filed in the appeal by the 1st Respondent on 22/2/2010. Suffice it to say that on the same 9/6/2010 the Court granted the Orders sought by the Appellant in the aforementioned application dated 7/6/2010.

The Appellant’s Amended Notice and Grounds of Appeal dated 7/6/2010, and filed on the same date but deemed as properly filed and served on 9/6/2010, contains two grounds. There are four Respondents in the Amended Notice of Appeal. The 5th Respondent – THE CLERK OF THE NATIONAL ASSEMBLY was dropped as a Respondent therein. The two grounds of appeal in the Amended Notice of Appeal with their respective particulars read thus: –