Micheal Obinna I.C. Ikoku & Anor V. Hon. Chude Onyereri & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A.(Delivering the Lead Ruling)

Applicants filed this motion on 15/9/15, seeking the following reliefs:

?1. “An order granting the reliefs set out in the Applicants’ motion dated 3/7/2015 and filed before the Tribunal below on 4/7/2015 and therefore set aside the ruling of the National and State Houses of Assembly Election Tribunal Holden at Owerri, Imo State in Petition No EPT/IM/HR/11/2015:Michael Obinna I. C. Ikoku & Anor vs. Hon Chude Onyereri & 3 Ors as contained in the Ruling of their Lordships, Honourable Justices A. Y. Sanya, S. O. Falola and P. Idiong, made on 24/6/2015 for being a nullity and relist same on the cause list of the Tribunal.

2. An order transferring the Applicants’ Petition No. EPT/IM/HR/11/2015? to either panel 2 or 3 instead of the panel 1 of the Tribunal, constituted by their Lordships, Hon Justices A. Y. Sanya, S. O. Falola and P. Idiong for same to be heard on merits.
3. A consequential order mandating the appropriate panel of the Tribunal below to take necessary steps to commence hearing of the petition on the merits within 48 hours from the date of receipt of the Order of this court

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in this matter.

4. A consequential order of this Honourable Court directing the appropriate panel of the Tribunal to accord accelerated hearing to the petition and eschew all forms of objections while hearing the petition on its merits.
5. An order directing the appropriate panel of the Tribunal below to abridge the time within which the parties may call their witnesses and to adjourn the hearing of the Petition from day to day till conclusion of hearing.
6. A consequential order of this Honourable Court directing the appropriate panel of the Tribunal to deliver its Judgment in this Petition not later than 14/10/2015.
7. A consequential order of this Honourable Court awarding heavy cost against the Respondents in favour of the Applicants and adding that same must be paid before the Respondents can take further steps in the Petition at the Tribunal below. And for such further consequential order(s) as the Honourable Court may deem fit and expedient to make?”

Applicants listed the grounds for making the application, as follows:

1. “Where a court or tribunal raises an issue suo motu and resolves it one way or the other without

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affording the parties the opportunity to address it thereon, any decision predicated on that issue is a nullity.

2. A court or tribunal has competence to set aside its null decision without the aggrieved party going on appeal.
3. Where a Lower Court has refused to make an order which it ought to make, this court has the power to assume the position of the Lower Court and make that order.
4. The powers of this court to make, such order can be exercised notwithstanding that no notice of appeal has been filed challenging the decision of the court or tribunal.
5. Perceiving the decision of the tribunal below made on 24/6/2015 as a nullity, the Applicants, on 4/7/2015, filed a motion dated 3/7/2015, urging the tribunal below, inter alia, to set aside the said decision for being a nullity but the tribunal deliberately refused to hear the motion and rather adjourned same sine die, pending the decision of the President of the Court of Appeal in respect of the Applicants’ application for transfer of motion to a different panel of the tribunal.
6. Till date, the President of the Court of Appeal has not exercised his administrative power in

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connection with the application for transfer.

7. Time is greatly of essence to the hearing and determination of Applicants’ petition and the time constitutionally prescribed for the hearing of the Applicants’ petition shall be elapsing on or about the 14th day of October, 2015.
8. Where this application is not granted, the Applicants’ motion may not be heard until the 180 days presented for hearing the Applicants’ petition expires.”

The motion was supported by an affidavit of 21 paragraphs, deposed to by Ezechinyere Nwachukwu, a legal practitioner, one of the Counsel of the Applicants, with Exhibits, including the Ruling of the Tribunal, delivered on 24/6/2015, whereof the Tribunal struck out the petition, for incompetence, on the ground that the votes scored by the 1st Petitioner (who was sponsored by the 2nd Petitioner at the March 28, 2015 general elections) was not stated in the petition, and that that was a clear violation of one of the mandatory requirements of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act 2010. (See Exhibit A, particularly, pages 38 and 39 of the motion papers). Exhibit B was a copy of the petition, with the

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accompanying witnesses depositions and documents etc, while Exhibit C was the motion on Notice, filed by the Applicants as EPT/IM/HR/1M/2015 at the tribunal, for the tribunal to set aside its ruling striking out the petition and to relist the petition for hearing. It was filed on 4/7/2015.

The Records show that, on 5/8/2015, when the motion came up, Applicants’ Counsel, Alex N. N. Williams Esq. told the Tribunal: