Hon. Gabriel Okoye Onyenweife V. Hon. Boniface Okoye & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE ADAMU JAURO, J.C.A (Delivering the Leading Judgment)

This is an appeal against the ruling of the National and State Houses of Assembly Election Tribunal Anambra State, holden at Awka, delivered on 11th October, 2011 in petition number EPT/AN/HA/46/2011, wherein the Tribunal refused the 1st Respondent’s application to dismiss the petition.

By way of preamble, a resume of the facts giving rise to this appeal is hereby made as follows: The Appellant as the 1st Respondent/Applicant at the Tribunal, by a Motion on Notice dated 12th September, 2011 and filed 13th September, 2011 prayed for the dismissal of the petition as an abandoned petition. Written addresses in respect of the application were filed, exchanged and adopted before the Tribunal. In a ruling delivered on the 11th October, 2011, the Tribunal dismissed the application as lacking in merit.

Aggrieved by the aforementioned ruling, the Appellant challenged same vide a Notice of Appeal dated 31st October, 2011 and filed the same day. The Notice of Appeal was predicated upon two grounds of appeal. The 1st and 2nd Respondents on their part filed a Notice of Preliminary Objection pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2011, wherein they challenged the competence of the appeal. The Notice of Preliminary Objection dated 7th December, 2011 was filed on the 8th December, 2011.

In compliance with the Rules of Court and Election Tribunal and Court practice Directions 2011, briefs of argument were filed and exchanged. The 1st and 2nd Respondent’s Notice of Preliminary Objection with argument in support is dated 7th December, 2011 and filed on 8th December, 2011. The Appellants brief of argument is dated 2nd December, 2011 and filed on 5th December, 2011. The 1st and 2nd Respondents brief of argument dated 7th December, 2011 was filed on 8th December, 2011. The 4th Respondent’s brief is dated 8th December, 2011 and filed the same day. The 3rd and 5th Respondents did not file any brief of argument.

On 8th December, 2011 the date fixed for hearing the appeal, Mr. A.C. Anaenugwu leading O.M. Onyia Esq., for the 1st and 2nd Respondents adopted the argument in respect of the preliminary objection and urged that the appeal be struck out. The preliminary objection is to the effect that the appeal is an academic exercise and being an interlocutory appeal no leave of court was sought, hence rendering it incompetent. Learned counsel relied on the case of Nwankwo v. Ekwunife, CA/E/EPT/46/11 and urged that the appeal be struck out, Mr. Arthur Obi Okafor SAN, leading E.A. Ahuchogu Esq., for the Appellant, adopted the Appellant’s brief and urged the court to allow the appeal. Learned senior counsel stated that the preliminary objection is misconceived and unavailing.

Learned senior counsel submitted that the appeal is not academic and distinguishable from CA/E/EPT/56/11 and urged the court to dismiss the preliminary objection and allow the appeal. Mr. A.C. Anaenugwu adopted and relied on the 1st and 2nd Respondents’ brief in respect of the appeal and urged the court to dismiss the appeal.

Mr. Emeka Agbapuonwu, leading Emeka Mofumamaya Esq., for the 4th Respondent, adopted the 4th Respondent’s brief and urged the court to allow the appeal. Mr. Emeka Ajaegbo for the 3rd Respondent, having filed no brief, urged the court to do justice to the case. Mr. Clems Ezika for the 5th Respondent stated that he did not file any brief of argument, hence urged the court to do justice to the case.

The 1st and 2nd Respondents as earlier stated in this judgment filed a preliminary objection, challenging the competence of the appeal. The preliminary objection is to the effect that the appeal being interlocutory in nature, leave of court was not sought and obtained before filing same. Secondly, that the appeal itself is an academic exercise, hence it should be struck out. Suffice it to say and without over flogging the issue that a right of appeal exists in an interlocutory decision in an election petition by virtue of Section 246(1)(b)(i) of the 1999 Constitution (as altered). See Uduma v. Arunsi (2011) ALL FWLR (Pt. 560) 1290 at 1301, Chief Sergeant Chidi Awuse v. Dr Peter Odili & 3 Ors (2003) 18 NWLR (Pt. 851) 116 at 164 – 165.The appeal is therefore competent and it cannot be said to be an academic exercise. The preliminary objection therefore fails and is hereby dismissed.

The Appellant distilled a lone issue for determination on page 4 of the Appellant’s brief as follows:

“Whether the Lower Tribunal was right in the conclusion it reached that the application for Pre-Trial Conference Notice Form was filed by the 1st and 2nd Respondents on 22/6/2011 by which it sustained the Petition instead of having same dismissed as requested by the Appellant.”

The 1st and 2nd Respondents also identified a sole issue for determination on page 9 of their brief, to wit:

“Whether the Tribunal was correct in its conclusion that the petition was not liable to be dismissed as an abandoned petition.”

The 4th Respondent on page 4, paragraph 3 of his brief of argument adopted the lone issue for determination as formulated by the Appellant. The issue as formulated by the Appellant and the one formulated by the 1st and 2nd Respondents is virtually identical. I however find the issue as formulated by the 1st and 2nd Respondents more comprehensive, precise and all encompassing, hence it will be adopted in resolving this appeal.