Kenneth Nduka Agbakwuru & Anor V. Hon. Rapheal Nnanna Igbokwe & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Lead Ruling)

On Friday, the 25th day of November, 2011, this court delivered judgment in Appeal No.CA/OW/EPT/45/2011 wherein it allowed the appeal of the Appellants (now Respondents to the instant motion). Tsammani JCA, who read the lead judgment in the appeal ordered as follows:

(a) It is declared that the 1st Petitioner/Appellant was validly nominated but was unlawfully excluded from the election held on the 9/4/2011 for the seat of member representing Ahiazu/Ezinihite Federal Constituency in the Federal House of Representatives of the Federal Republic of Nigeria.

(b) That the election of the 1st Respondent is therefore declared as null and void.

(c) That the 2nd Respondent is ordered to conduct fresh election for the seat of member representing Ahiazu/Ezinihite Federal Constituency in the Federal House of Representatives of the Federal Republic of Nigeria, with 1st Petitioner/Appellant as a candidate on the platform of the 2nd Petitioner/Appellant.

(d) That the fresh election shall be conducted within ninety (90) days from today.

By a motion on notice dated 28/11/2011 and filed on 29/11/2011 Hon. Raphael Nnanna Igbokwe the 1st Respondent to the appeal now Applicant prayed the court pursuant to Section 285 (6) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) for.

“An order setting aside and or rescinding the orders/judgment of the Honourable Court dated 25th November, 2011, delivering (sic) judgment in the Election Petition instituted by the Petitioners/Appellants at the Imo State Legislative House Election Tribunal for being a nullity. And for such further order and or orders as the Honourable Court may deem fit to make in the circumstances.”

The grounds upon which the application was brought are as follows:

The petition of the Petitioner/Appellant was filed at the Tribunal below on 29th April, 2011.

2. By Ruling dated 29th day of September, 2011, the legislative Houses Election Tribunal, Imo State, upheld the preliminary objection that the petition was incompetent and therefore it has no jurisdiction to continue to hear it and deliver judgment.
3. The Petitioner/Appellant appealed against the Ruling which dismissed the petition.

(i) By the operation of the provision of S. 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the 180 days limited for hearing and giving judgment in the petition elapsed on the 25th day of October, 2011.

(iii) Briefs were filed and the 1st Respondent/Applicant herein raised the issue that this Honourable Court can no longer deliver judgment in the petition (not in the appeal) since the time limited for doing go had elapsed.

(iv) We were compelled to draw the attention of this Honourable Court to the decisions of the Supreme Court in Appeal Nos. SC 332/2011, SC 333/2011 and SC 352/2011 consolidated. Alhaji Kashim Shettima & Anor. Vs. Alhaji Mohammed Goni & 4 Ors., and (1) All Nigeria Peoples Party (2) Alhaji Mohammed Goni & 2 Anor v. Alhaji Kashim Shettima & 3 Ors. Consolidated and it’s sister appeal and Appeal Nos. SC/272/2011, and SC/276/2011 Peoples Democratic Party v. Congress for progressive Change etc.

(v) It is beyond argument that under the doctrine of judicial precedent which is a hallmark of the administration of justice in this country, this Honourable Court is bound by the determination/pronouncement of the Supreme Court on any issue before this Honourable Court.