His Excellency Dr Orji Uzor Kalu & Anor V. Comrade Uche Chukwumereije & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

On Friday, the 25th day of November, 2011 this appeal was dismissed. I now provide the reasons, why it was dismissed.

The appeal stems from the decision/ruling of the National and State Houses of Assembly Election Tribunal sitting in Umuahia, Abia State – Coram. Honourable Justice A. A. Adebara (Chairman), Honourable Justice J. I. Acha and Honourable Justice L. W. Mahmud (members) delivered on 29th September, 2011 wherein the Lower Tribunal struck out Appellants’ petition as being incompetent.

The Ruling of the Lower Tribunal itself was a product of consolidated applications. First, by the 1st & 2nd Respondents and also by the 3rd and 5th Respondents before the Lower Tribunal.

The 1st and 2nd Respondents filed a motion on notice, pursuant to sections 137, 138 and 140 of the Electoral Act 2010 as (amended), paragraphs a (1) 3(a) & (9) and 47 of the First schedule to the Electoral Act 2010 (as amended), order 26 of the Federal High court (Civil Procedure) Rules, 2009 and under the inherent jurisdiction of the Tribunal and prayed for the following orders:

“1. AN ORDER dismissing and /or striking out the petition for being incompetent, fundamentally defective and vesting no jurisdiction on the Honourable Tribunal to adjudicate on it.

2. AND for such further or other orders as this Honourable Tribunal may deem fit to make in the circumstances.”

The grounds upon which the application is premised is as follows:

“(i) The entire petition is defective, incompetent and not in compliance with the Electoral Act, 2010 (as amended).

(ii) The right of the petitioners to present the petition as mandatorily required by the Electoral Act, 2010 (as amended) has not been stated and /or specified.

(iii) The Petitioners did not specify the parties interested in the election petition contrary to the mandatory provisions of the Electoral Act, 2010 (as amended).

(iv) The petition did not comply with the mandatory provisions of paragraph 4(1)(c) of the First schedule to the Electoral Act, 2010 (as amended).

(v) Pursuant to paragraph (iv) supra, paragraph 1(e) of the petition lacks legal basis and is liable to be struck out and/or discountenanced.

(vi) The Respondents did not participate in any questioned election on the 9th April, 2011.

(vii) The persons against whom the Petitioners made weighty criminal allegations are not joined in the petition.