Hon. Ortese Kpev Terna & Anor. V. Ujege Theresa A. & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI A.B. GUMEL, J.C.A. (REASONS FOR THE JUDGMENT)

On 17th October, 2011, I allowed this appeal and made some consequential orders. I indicated then that I would give my reasons at a future date. I now do so today.

This is an appeal against the ruling of the National/State Houses of Assembly Elections Tribunal established for Benue State. Sitting in Makurdi delivered on 17th August, 2011 in Election Petition No. NSHA/EPT/BN/HA/44/2011.

The 3rd Respondent (INEC) organized and conducted election for seats in the Benue State House of Assembly on 26th April, 2011. The 1st Appellant was the candidate of the 2nd Appellant for the Konshisha Constituency of the Benue State House of Assembly. The 1st Respondent was the sponsored candidate of the 2nd Respondent for the said election. There was also 3 other candidates sponsored by various other political parties. Out of these 5 candidate, the 4th Respondent, acting on behalf of the 3rd Respondent returned the 1st Respondent on the 27th April, 2011 as the winner of the election. The Appellants were dissatisfied with the declaration of the result of the election and return of the 1st Respondent as the winner.

Upon this dissatisfaction, the Appellants filed an election petition dated 16/05/2011 on 18/05/2011. This petition is predicated on 2 main grounds with very copious facts in support of the grounds based on which diverse main and alternative reliefs were sought. Issues were duly joined by the parties. With the seeming conclusion of pleadings, the Petitioners/Appellants filed a motion on notice on 5/08/2011 for issuance of pre-hearing notice, Learned Counsel to the 1st and 2nd Respondents/Respondents opposed this application and urged on the lower Court to refuse it.

In a ruling dated 17/08/2011, the lower Court refused the application for issuance of pre-hearing notice and relied on paragraph 18(4) of the 1st Schedule to the Electoral Act, 2010, as amended to dismiss the petition for having been abandoned. The Appellants were dissatisfied with this order of the lower Court and appealed against it in a notice of appeal dated 23/08/2011 but filed on 25/08/2011. This notice of appeal is predicated on 4 grounds of appeal. Later, the Appellants abandoned grounds 3 and 4 of the grounds of appeal. So, this appeal was argued as a single issue formulated out of grounds 1 and 2 of the grounds of appeal.

To argue the appeal, the Appellants filed an amended brief of argument dated and filed on 13/10/2011 but deemed properly filed and served on 14/10/2011, wherein a single issue was formulated thus:-

-Whether pleading had closed as at the dated when the Tribunal dismissed the Appellants’ petition as an abandoned petition.

The 1st Respondent opposed this appeal in a brief of argument dated and filed on 6/10/2011. Related to this brief, learned counsel to the 1st Respondent filed a notice of preliminary objection seeking to challenge the competence of the appeal on 7 grounds. This notice of objection was argued in the 1st Respondents brief of argument. Further, and ex-abundante cautela, learned Counsel to the 1st Respondent formulated and argued a single issue out of grounds 1 and 2 for the determination of this appeal. This issue is:-

– Having regard to the provisions of Paragraph 18(1) of the 1st Schedule to the Electoral Act, 2010, as amended, the fact that election Petition matters are sui generis and the pleadings filed in Petition No. NHSA/EPT/BN/EPT/REP/44/2011 when did the time start to run for the purpose of filing application for pre-hearing session in this petition?

On behalf of the 2nd Respondent, learned Counsel filed a brief of argument on 10/10/2011. Learned Counsel formulated and argued 2 issues in this brief of argument. They are:-

(a) Whether or not personal service of the Petitioners’ replies to the 1st and 2nd Respondents’ replies to the Petition on the 3rd -18th Respondents was necessary having regard to the fact that the records of the Tribunal clearly shows that the Petitioners had no intention whatsoever of prosecuting the petition against 5th – 18th Respondents who were ab initio not even served with copies of the petition by reason of the fact that the petitioners did not furnish their addresses for service of the foot of the petition as required by law and the added fact that the 3rd and 4th Respondents who were duly served with the petition did not enter any appearance or file any process whatsoever before the Tribunal ; and

(b) Whether or not the Tribunal below was justified in dismissing the petition based on the facts placed before it by the Petitioners/Appellants.

The brief of the 3rd – 18th Respondents is dated and filed on 14/10/2011. It raised and argued a single issue for the determination of this appeal thus:-