George Banigo & Anor V. Aye Atamah Pepple & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A (Delivering the Leading Judgment)

The 1st Appellant herein was a candidate sponsored by the 2nd Appellant, a political party in an election which was conducted, by Independent National Electoral commission to elect a member for Bonny state constituency into Rivers State House of assembly.

Several other political parties sponsored candidates in the same election. One of those candidates is the 1st Respondent who was sponsored by the 2nd Respondent.

At the end of the election, the 1st Respondent was declared the winner and therefore returned as member representing Bonny state constituency in the Rivers state House of Assembly. The Appellants are dissatisfied with the declaration and return. By a petition dated 17/05/2011 and filed on the 18/05/2011, they challenged the result of the election at the National and State Houses of assembly election Petition Tribunal Holden at Port Harcourt. Notice of presentation of the petition was served on the 3rd – 5th respondents on the 26th May 2011 and the 1st and 2nd respondents were served on the 31st of May 2011. The 1st Respondent entered appearance on the 14/06/2011. Thereafter the respondents did nothing until on the 23rd June 2011 when the 3rd-5th Respondents by an application dated 22/06/2011 and filed on the 23/06/2011 sought for an extension of time within to enter appearances and file their joint reply to the petition and to deem the documents mentioned as properly filed and served.

The first Respondent also brought an application dated 5/07/2011 and filed on the 6/7/2011 in which he sought for extension of time to file and serve his reply to the petition, list of witnesses and the witnesses depositions on oath out of time. He also sought for a deeming order in respect of the documents he sought to file out of time.

The Tribunal on its own issued a notice for pre-hearing session. By a notice of motion dated and filed on the 22nd July 2011, the 1st respondent sought for the following:-

1. AND ORDER granting leave to the 1st Respondent/applicant to move this motion on notice before the pre-hearing session.
2. AN ORDER setting aside the Pre-hearing session fixed for the 27th day of July, 2011 or such further or other date[s] whereof the pre-hearing session may be fixed.
3. AN ORDER dismissing this petition as being abandoned by the petitioner.
4. AND for such further order[s]as this Honourable Tribunal may deem fit to make in the circumstance.

The grounds upon which this motion was brought as set out in the motion paper are as follows:-

[a] The petitioners inability and/or failure to comply with the express/mandatory provisions of paragraph 18(1) of the 1st schedule of the Electoral Act 2010 [as amended], and which ought to have preceded the Tribunal’s directive pursuant to paragraph 18(2) of same 1st schedule of the Electoral Act.

(b) The Honourable Tribunal is bereft of jurisdiction to suo motu fix this matter for pre-hearing.

(c) Pursuant to paragraph 18(4) of the 1st schedule to the Electoral Act 2010, the Honourable Tribunal is in total want of jurisdiction to grant leave nor extend time within which an order for pre-hearing of the petition may be applied for.

[d] Premised on grounds (a) (b) and (c) above and paragraph 19(4) of the 1st schedule to the Electoral Act [as amended] this petition is move existent in the eyes of the raw and accordingly abandoned.

[e] That resulting from the non-compliance with the said provisions of paragraph 18(1) and (3) of the 1st schedule to the Electoral Act 2010, the Tribunal is robbed of the requisite jurisdiction to further hear and determine the petition including any pre-hearing session….”

[f] Jurisdiction cannot be conferred on this Honourable Tribunal by the parties either by their own accord/consent, action or inaction on the face of fundamental breach/non-compliance with condition precedent to the assumption of jurisdiction thereof.

The Appellants as petitioners at the Tribunal filed affidavit in opposition to the application for the dismissal of the petition. On the 6th July 2011, the Tribunal heard the first Respondent’s application for extension of time and dismissed it and went on to adjourn the petition to 20/7/2011 for pre-hearing conference.