Eze Sunday V. Hon. Michael Onyeze & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR, J.C.A (Delivering the Leading Judgement)

This Appeal is against the Ruling of the Governorship and Legislative Houses election Tribunal Enugu delivered on 1st November 2007 wherein it struck out the Petitioner/Appellant’s petition.

The Appellant who was the Petitioner at the lower court filed a petition at the lower Tribunal on 28th day of May 2007 challenging the declaration of the 1st Respondent as the winner of the House of assembly Election conducted by the 2nd Respondent.

The 1st Respondent was the candidate of the Peoples Democratic Party for the 14th April 2007 election into the Igbo Eze North Constituency 1 Seat of Enugu State House of Assembly. The 1st Respondent contested the said election with six other candidates of (sic) other Political Parties including the Petitioner/Appellant. The 2nd Respondent, the Independent National Electoral Commission (INEC) conducted the said election, through its officers and other adhoc staff.

At the conclusion of the said election on the night of 14th April 2007, the result was collated and announced by Ugwu Amechi, the Electoral/Returning Officer for Igbo-Eze North Local Government Constituency at the said elections, who also issued a certificate of declaration of result in Form EC.8E(1) dated 14th April 2007 to the 1st Respondent having been duly elected by the majority of lawful votes cast at the election.

The Petitioner/Appellant on 28th day of May 2007 filed petition No. NAGL/EPT/EN/SH/53/07 at the Governorship and Legislative Houses Election Tribunal, Enugu challenging the declaration of the 1st Respondent as the winner by the 2nd Respondent and contending that the 1st Respondent did not obtain the highest number of votes cast in the Constituency. He asked to be declared validly elected or returned, having polled the highest number of lawful votes cast at the election. In the alternative, the Petitioner moved a prayer that the election be nullified on the ground that it was not conducted substantially in accordance with the provisions of the Electoral Act 2006.

The 1st Respondent filed a reply as well as the 2nd set of Respondents. The 1st Respondent went further on 4th August 2007 to file a Notice of Preliminary Objection seeking a determination of the following points of law amongst others:

1. Whether the Petition is competent, having regard to the failure of the Petitioner/Respondent to file the same within the 30 days permitted by law?
2. Whether the Petition is competent, having regard to the failure of the Petitioner/Respondent to state the scores recorded by each candidate at the said election, as required by the rules?

In reaction to the 1st Respondent’s Notice of Preliminary Objection, the Petitioner on the 17th August 2007 filed a Motion to amend his petition. The 1st Respondent’s application to strike out the petition as incompetent for being statute barred and failure to state the names and scores of all the candidates at the election was indicated in paragraph 14(b) of the 1st Respondent’s Pre-hearing information sheet dated 24th August 2007 and filed on 4th October 2007.

The 2nd set of Respondents associated themselves with the 1st Respondent’s Preliminary Objection for striking out the Petition and on 1st November 2007, the Tribunal in its ruling upheld the Preliminary objection of the 1st Respondent and accordingly struck out the petition for being incompetent. This appeal is against that decision.

The Appeal was taken on the 24th 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. P.M.B. Onyia informed the Court that the 1st Respondent’s brief of argument is dated and filed on 16/4/08. Counsel adopted the brief, rely on same and urge the Court to dismiss the appeal. Counsel informed the Court that a Notice of Preliminary Objection was incorporated in the brief of Argument and the submission thereto, Counsel moved the Notice of Preliminary Objection, adopted the submissions thereto and urged the Court to dismiss the Appeal.

Counsel to the 2nd to 115th Respondents Mr. W.C. Ugwuozor informed the Court that the 2nd to 115th Respondents’ brief of Argument was dated 16/4/08 and filed on 17/4/08, that the brief of Argument contained a Notice of Preliminary Objection, Counsel adopted the brief of Argument, the Notice of Preliminary Objection contained in the brief and the submissions thereto and urge the Court to dismiss the Appeal.

The Appellant despite service on him of the hearing Notice for the hearing of the appeal was not in Court to argue the Appeal. By the provisions of Order 17 Rule 9(4) of the Rules of the Court of Appeal the Appellant is deemed to have argued his appeal.

From the nine grounds of appeal, the Appellant formulated two Issues for determination, the Issues are:-