Dr. Kemdi Opara & Anor V. Hon. Bethel Amadi & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI M. ABBA AJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the interlocutory Ruling of the National Assembly and State Houses Election Tribunal, holden at Owerri in Petition No.EPT/IM/NASS/HR/11/2011, per Hon. Justice Ishaq Bello, Hon. Justice S. A. Bola and Hon Kadi Kabir Abubakar which dismissed the Appellants’ Petition for failure of the Petitioners to apply for the issuance of pre-hearing Notice in the manner prescribed by the provisions of the Electoral Act 2010 (as amended).

The 1st Respondent herein had at the Lower Tribunal filed a motion dated 25th day of June, 2011 and filed on the 27th day of June, 2011, praying for an order:

1. Dismissing Petition No.EPT/IM/NASS/HR/II/2011 between Dr. Kemdi Opara and Anor Vs Hon. Bethel Amadi and Anor dated and filed on 1st May, 2011.
2. And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.

GROUNDS UPON WHICH THE APPLICATION IS BROUGHT

1. The Electoral Act enjoins a Petitioner to apply formally by a motion for the issuance of Pre-hearing Notice session not later than 7 (Seven) days after the close of pleadings.
2. It is more than seven days after parties herein concluded the exchange of their pleadings, with the Petitioners Reply duly served on the 1st Respondent/Applicant.
3. As at the time of this Application, no formal application in the form envisaged by the Electoral Act 2010 has been filed by the Petitioners/Respondents.
4. Time is of the essence in election Petition.
5. By reason of the above, the Petition has become abated or abandoned.
6. This jurisdiction of this Honourable Tribunal to entertain and adjudicate over the Petition has been washed away.

After hearing the Counsel on both sides, in a considered Ruling, the Honourable Tribunal dismissed the Petition and held inter alia that:

“All said and done in this action, the Petitioners have failed to comply with paragraph 18 (1) and (2) of the Schedule to the Electoral Act, 2010. The corollary of this is that the Petition is deemed abandoned. The consequential effect is dismissal of same by this Tribunal. Accordingly, this petition is dismissed pursuant to paragraph 18 (3) of the 1st Schedule to the Electoral Act, 2010 (as amended).”

Predictably, the Appellants are aggrieved by the whole decision of the Lower Tribunal and have appeal to this Honourable Court vide the Notice of Appeal filed on the 1st day of August, 2011, containing six (6) grounds of appeal, which said grounds are hereby reproduced, without their particulars.

GROUNDS OF APPEAL

GROUND ONE:

The Election Petition Tribunal erred in law when it dismissed the Petition because the Petition had been abandoned.

GROUND TWO:

The Tribunal misdirected itself on the ratio decidendi of the supreme court decision in OKEREKE vs YAR’ADUA (2008) 12 NWLR (PT.1100) P.95 AND COURT OF APPEAL DECISION IN RIRUWAI vs SHEKARAU (2008) 12 NWLR (PT.1100) P.142, which misdirection occasioned a miscarriage of justice when it held that the two decisions were binding precedents different from those of the instant appeal.

GROUND THREE:

The Tribunal erred in law when it held that application for pre-hearing proceedings must be by motion and not by letter.