Mr. Jude Lawrence Nwibie V. Mr. Leyii Kwanee & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

T.O. AWOTOYE, J.C.A. (Delivering the Leading Judgment)

On 18/11/2011 after hearing the appeal against the decision of the National and State House of Assembly Election Tribunal which sat – at Port Harcourt in Petition No. EPT/SHA/PH/29/2011. NWIBIE V. KWANEE & ORS. delivered on 27/9/2011, I gave a decision this dismissing appeal for lacking merit.

I hereby give reasons for doing so.

This appeal is in respect of the decision of the above tribunal delivered on 27/9/2011. The said tribunal had in their judgment as per page 437 of the record found as follows:

“In the final analysis we find that the petitioner has failed to prove that the grounds or issues of non-compliance with the Electoral Act that he enumerated substantially affected the resift or the election/return of the 1st Respondent. MR. LEYII KWANEE as the winner of the House of Assembly Election of 26/4//2011 for Khana Constituency II of the Rivers State House of Assembly. We hold that he was validly elected consequently this petition fail and is hereby dismissed.”

Earlier in the proceedings the said tribunal had dismissed the said petition on 28/06/2011. Consequently upon application of the 2nd – 3rd Respondents for its dismissal on ground of non-compliance with the provision of paragraph 18(4) of the 1st Schedule to the Electoral Act 2010 (as amended).

However, on the application of the petitioner for re-listing the said petition was re-listed by the Tribunal, hearing commenced and judgment was eventually delivered.

It is pertinent to narrate what led to the earlier dismissal of the petition and its subsequent re-listing.

The petitioner had filed his petition on 17/4/2011. The 2nd and 3rd Respondents filed their reply to the petition on 9/6/2011. The said reply was served on the petitioner on 13/6/2011 yet the petitioner did not apply for pre-hearing notice within 7 days after being served as required by paragraph 18(1) of the 1st Schedule to the Electoral Act (as amended). See pages 82 and 85 of record of appeal.

Being dissatisfied with the dismissal of his petition, the petitioner applied for re-listing because the motion of the 2nd – 3rd Respondents for dismissal was not served on him and that in any case the 1st Respondent was yet to serve his memorandum of appearance or reply on him. It was this prayer of the petitioner that had to the relisting of the said petition. The tribunal proceeded to hear the parties and later dismissed the Petition.

The petitioner, being dissatisfied filed a notice of appeal containing 10 grounds of appeal.

On being served with the notice of appeal the 1st Respondent to this appeal filed notice of intention to contend that judgment should be affirmed on grounds other than those relied upon by the court below in line with order 9 Rules 2 of the Court of Appeal Rules 2011.

On transmission of record of appeal parties filed and exchanged written briefs of argument.

C.C. Nwaodu learned counsel for the appellant formulated 5 issues for determination in his brief.