Entine Chris Ogar Eneji & Anor. V. Ajor Idagu Agaji & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the National and State House of Assembly Election Petition Tribunal holden at Calabar.

The Appellants were the Petitioners at the Tribunal. They filed their motion for pre-hearing trial on the 16th June, 2011 prayed court for the following orders viz

(1) An order for leave of the Hon. Tribunal to move the motion for on order for issuance of pre-hearing notice Form TF. 008.

(2) An order for the issuance of pre-hearing notice as in Form T.F. 008.

(3) And for such further order or other orders as this Hon. Tribunal may deem fit to make in the circumstances.

The 4th Respondent also filed a motion on Notice on 6th July, 2011 praying for the following Reliefs:-

1. Leave to bring this application.
2. An order dismissing this Petition.
3. Such further order or orders as the Tribunal may deem fit to make in the circumstances.

Curiously these two motions were consolidated. The Appellants motion was one to sustain the Petition; the 4th Respondent’s motion was to destroy or cut short the life of the petition.

The Tribunal held inter alia “that the application for pre-hearing notice filed by the Petitioners on 16th June, 2011 was premature” The Tribunal relied on the authority of Ohaka Vs Eze (2010) All FWLR Pt 525 Pg 380 per Eko JCA as follows:-

“I agree as submitted for the Respondents that the effect of applying for pre-hearing session notice before the close of pleadings is to shut out the Respondents whose time was yet to effluxe. It is clearly the duty of every Court to protect the rights of the parties before it………. …….” A process filed prematurely is a mere piece of paper without any legal consequence. A condition precedent to the filing of an application for issuance of a pre- hearing notice is that pleadings must have closed or are deemed to have closed. Until the happening of the condition precedent, there can be no competent application for pre-hearing notice before the Tribunal.”

The Tribunal went on to observe as follows:-

“We would have regarded the action of the Petitioners as overzealousness and allow the application for pre-hearing session notice of the Court of Appeal as quoted above.”

The Tribunal thereafter went ahead and dismissed the Petitioners’ Petition.

Being dissatisfied, the Petitioners now Appellants filed a notice and 1 ground of appeal.