Hon. Paulinus Igwe Nwagu V. Hon. Innocent Ugo Chima & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the National and State Houses of Assembly Election Tribunal Coram (H.A. Olusiyi J., P.I. Imoedemhe J. and B.M. Tukur J.) sitting in Abakaliki, Ebonyi State in Petition No. EB/EPT/SEN/1/2011 delivered on the 16th day of August 2011.

The Petitioners (now the Respondents) had by a motion on notice dated 8/8/2011 and filed on 10/8/2011 sought the following orders from the said Tribunal, hereinafter referred to as (the trial tribunal). To wit:-

1. Leave of the Honourable Tribunal to file and make use of written statement on oath of an Expert witness and further written statement on oath of the 1st petitioner.
2. Leave of the Honourable Tribunal to file and make use of a witness whose statement on oath was not filed along with the petition.
3. Leave of the Honourable Tribunal to file and make use of Additional List of documents, which was not filed along with the petition.
4. An order of the Honourable Tribunal deeming the written statement on oath of an Expert witness, further written statement on oath of the 1st petitioner, the list of Additional witness and list of additional documents exhibited in the affidavit in support of this application marked A1 – A2 and 81 – 82 respectively as properly filed and served, the appropriate filing fees having been paid.

The grounds for the application were listed as follows:-

1. The Honourable Tribunal made an order for inspection, scanning and making copies of electoral materials used in the election dated 26/5/11.
2. The Petitioners have carried out the order of the Tribunal.
3. The need for additional statement on oath and statement on oath of the expert witness arose from the findings made from the inspection, scanning and analysis of electoral materials as ordered by the Honourable Tribunal.

The said motion on notice is supported by an 11 paragraph affidavit and attached to it are Exhibits ‘A1’, ‘A2’, ‘B1 – B2’ and ‘C’ . (See pages 78 – 113 of the Record of Appeal).

A written address in support was also filed with the said motion on notice.

The 1st Respondent at the trial tribunal (now the Appellant) reacted by filing a counter affidavit of 19 paragraphs and a written address in opposition to the motion on notice dated 15/8/2011.

The 2nd Respondent also opposed the application by filing a 7 paragraph counter affidavit and a written statement in support on 16/8/11.

At the hearing of the said motion on notice on the 16/8/11, the parties adopted and relied on their written addresses. Thereafter the trial tribunal in a considered ruling delivered on the same 16/8/11 granted the application.

Being aggrieved with the said Ruling, the appellant filed a Notice of Appeal on 5/9/11. The said notice contained two grounds of appeal which shorn of their particulars reads as follows:-

GROUND 1

The Honourable Tribunal erred in Law when it held as follows:-

“Straightaway, we hold that prayer 1 is sufficient prayer by the petitioner/applicants for leave for the petitioners to apply for leave to file and make use of a written statement on oath of an expert witness etc…..

It may not have been couched in very clear terms but we find it adequate for the prayers of paragraph 47 (1) of the first schedule to the Electoral Act 2010 as amended”.