Dr. Michael Chukwudubem Ewii & Anor. V. People Democractic Party (PDP) & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDULKADIR, J.C.A (Delivering the Leading Judgement)

This appeal is against the Ruling of the National Assembly Election Petition Tribunal sitting at Awka; Anambra State delivered on 09/07/2009 in respect of election into the House of Representatives for the Orumba North/South Federal Constituency held on 28/04/2007.

The 1st Appellant (1st Petitioner at the Tribunal below) was the candidate of the 2nd Appellant (2nd Petitioner at the Tribunal below) at the said election, the 2nd Respondent emerged the winner at the primaries conducted by the Peoples Democratic Party (1st Respondent) to select the candidate to be nominated and sponsored to contest the election in the aforesaid Constituency. The name of the 2nd Respondent was therefore forwarded to the Independent National Electoral Commission (INEC, the 3rd Respondent herein) and published at the Local Government level. The publication led to many petitions and litigations challenging the eligibility of the 2nd Respondent to contest the election. In the midst of these imbroglios, the 1st Respondent substituted the name of the 2nd Respondent for one Barrister Handel Okoli on the premise that the name of the 2nd Respondent was submitted to INEC without enough information. The 2nd Respondent challenged his substitution before the competent courts of law.

In the course of protracted litigation before the court of competent jurisdiction, the 3rd Respondent (INEC) on 28th April, 2007 conducted election into the House of Representatives for the Orumba North/South Federal constituency wherein the 1st Respondent (PDP) was declared as the winner of the said election on the 28th April, 2007 vide the INEC Declaration of Result of Election (Form EC8 EII) into the aforesaid seat and constituency.

The Petitioners/Appellants challenged the return of the 1st Respondent (PDP) before the Tribunal, in Anambra State hereinafter referred as “The 1st Tribunal”. The Appellants’ initial petition before the 1st Tribunal was struck out on 26th November, 2007 on ground of its incompetence and lack of jurisdiction of the 1st Tribunal to entertain same. There was no appeal filed by any of the parties against the decision of the 1st Tribunal.

Meanwhile, the dispute regarding the rightful candidate of the 1st Respondent in the said election was finally resolved by the Supreme Court on 06/03/2009 in Ude vs. Okoli (2009) 7 NWLR (Pt.1141) 571 wherein the apex court declared the 2nd Respondent in this appeal the valid candidate of the 1st Respondent (PDP) for the election into the Federal House of Representatives for Orumba North/South Federal Constituency conducted on 28/04/2007. Sequel to this, the 2nd Respondent was issued with a certificate of Return by the Chairman of INEC (3rd Respondent herein) on 06/03/2009.

Following the issuance of the certificate of Return to the 2nd Respondent, the Appellants filed this petition at the Tribunal below. After hearing arguments from parties on an application by the Respondents challenging the competence of the petition and the jurisdiction of the Tribunal to entertain the petition the Honourable Tribunal, in a considered ruling declined jurisdiction to hear the petition on the ground that it is statute barred. This appeal is against that decision.

The appeal was heard on the 23rd June 2010 and in line with the Rules and Practice of this Court, the parties’ duly filed their respective briefs of Argument. Counsel to the 1st Respondent Mr. I. Maledo informed the Court that the 1st Respondent’s brief of argument is dated 28th August 2009 and filed same date; learned counsel adopts the brief of argument and urged the Court to dismiss the appeal. Counsel to the 2nd Respondent Mr. G.O. Okafor, SAN informed the Court that the 2nd Respondent’s brief of argument is dated and filed on 18/9/09 and that they also filed a notice of preliminary objection dated 27/10/09 and filed on 28/10/09 that the preliminary objection is argued on pages 5-7 of the brief of argument and urged the Court to strike out the appeal if the preliminary objection succeeds and dismiss the appeal on the merit. Counsel to the 3rd to 81st Respondents Alhaji S.O. Ibrahim informed the Court that their brief of argument is dated 17/8/09 and filed same date counsel to the 3rd to 81st Respondents adopts the brief of argument and urged the Court to dismiss the appeal.

The Appellants’ brief of argument is dated 8/8/09 and filed on 10/8/09 the Appellant also filed a Reply brief dated 19/8/09 to the 3rd to 81st Respondents’ brief dated 19/8/09 and filed same date, despite service of the hearing notice on the Appellant, the Appellant was not in court to argue his appeal; accordingly by the provisions of Order 12 Rule 9(4) the Appellant is deemed to have argued his appeal.

From the 7 grounds of appeal the Appellant formulated four issues for determination. The issues are stated thus:-

i. “Whether the Tribunal was right in holding as it did that the result of the election into the Orumba North/South Federal Constituency was declared on 28/4/07 when the 1st Tribunal that entertained the case had determined that no such result had been declared for the same Federal Constituency on 28/4/07 which determination or decision has not been set aside or even a subject of an appeal at all.

ii. Whether an election petition filed under the Electoral Act, 2006 on 6/04/09 is statute barred considering a declaration/return made on 6/03/09.

iii. Whether the return made by the Chairman of INEC on 6/3/09 does not constitute a declaration/return in respect of the disputed election since a winner in the election had not emerged before that date.

iv. Whether a petitioner who did not find a Tribunal Secretariat at which to file their election petition could be said to be out of time in filing of an election petition when they filed it on the day a Tribunal Secretariat was opened for business.”