Mrs. Gloria Anulika Anaekwe V. Mr. Kingsley Iruba & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment)

This is an appeal against the ruling delivered on 11/8/2011 by the National and State Houses of Assembly Election Tribunal, Awka, Anambra State, (hereafter simply referred to as “the Tribunal”) dismissing Petition No. EPT/AN/HA/18/2011: as an abandoned Petition.

The Appellant was the Petitioner in Petition No. EPT/AN/HA/18/2011 (hereafter simply referred to as “the Petition”). The Appellant on 16/5/2011 instituted the Petition which relates to the Nnewi South Constituency 1 of the Anambra State House of Assembly election held on 26/4/2011. The Appellant contested the election on the platform of the Peoples Democratic Party (hereafter simply referred to as “PDP”). The Appellant is by the Petition challenging the declaration and return of the 1st Respondent as the winner of the election. The reliefs which the Appellant prayed of the Tribunal, as set out in paragraph 6 the Petition, are re-produced hereunder: –

“Your Petitioner most humbly prays this Honourable Tribunal for the following Reliefs:

1. That it may be determined that the return of the 1st Respondent is wrongful, null and void by reason that the 1st Respondent was not duly elected and returned by majority of the lawful votes cast at the said election.
2. That the Petitioner be declared as validly elected having polled the highest number of lawful votes cast at the election and subsequently be returned and 2nd Respondent be directed to issue the Petitioner with a Certificate of Return.

OR

In the alternative Order a re-run in Osumenyi Wards 1 and 2 to determine the eventual lawful winner of the said election.”

The 1st and 2nd – 9th Respondents respectively, duly filed their Replies to the Petition. The Petitioner also filed his Replies to the respective Replies of the 1st and 2nd – 9th Respondents. The 2nd – 9th Respondents will hereafter be simply referred to as “the 2nd Set of Respondents. Upon information given to the Tribunal by the Appellant that she had made the requisite application for the issuance of pre-hearing forms, the Tribunal set the Petition down for pre-hearing session which commenced on 15/7/2011. Subsequent to the conclusion of the pre-hearing sessions held in the Petition, the 2nd Set of Respondents brought a motion on notice dated 29/7/2011 and filed on 31/7/2011, seeking for the following: –

“1. An Order granting the Respondents/Applicants leaves of the Honourable Tribunal to entertain this Motion outside the pre Hearing Session.

2. An Order striking out the Petitioner’s Application (by letter) for the issuance of Pre Hearing Notice as in Form TF 007 for being incompetent and unknown to Law/Electoral Act 2010 (As Amended).
3. An Order setting aside the said Application/Notices for Pre Hearing Form sessions as well as the Pre Hearing session conducted in the Petition as a nullity having emanated from a process unknown to law and thus conducted without jurisdiction.
4. An Order dismissing this PETITION NO. EPT/AN/HR/18/2011: GLORIA ANIEKWE (sic) v. KINGSLEY IRUBA & ORS as abandoned petition.
5. And for such further Order or Orders as the Honourable Tribunal may deem fit to make in the circumstances.”

The grounds of the application as set out in the motion on notice are as follows: –

“1. The Petitioner/Respondent applied for the issuance of Pre Hearing Notice as in Form TF 007 by letter contrary to mandatory and express provisions (sic) Paragraph 47(2) of First the (sic) Schedule to the Electoral Act 2010 (As Amended).

2. The application for Pre Hearing Notice as in Form TF 007 made by the Petitioner in this Petition is unknown to Law and the Electoral Act 2010 (As Amended), thus incurably defective and grossly incompetent.
3. The proper application for the issuance of Pre hearing notice as in Form TF 007 is a condition precedent for the issuance of Pre hearing notice and the subsequent conduct of Pre hearing session in an Election Petition as well as hearing of the Petition.
4. The condition precedent for the conduct of Pre hearing session in this Election Petition was not satisfied in this case as there is no proper application known to Law/Electoral Act, 2010 (As Amended) for the issuance of Pre hearing Notice as in Form TF 007.
5. Any Pre Hearing session conducted without the proper Procedure is a nullity and robs the Honourable Tribunal of the jurisdiction to continue to entertain/hear this Petition.
6. The Application/Directive/Notices/Order for Pre Hearing Conference and the Pre Hearing Session conducted in this Petition as well as any other directives given therein amount to a nullity having been made without jurisdiction and ought to be set aside by this Honourable Tribunal.
7. This Petition No. (sic) PETITION NO. EPT/AN/HR/18/2011: GLORIA ANIEKWE V. KINGSLEY IRUBA & ORS is liable to be dismissed by virtue of paragraph 18(4) of the First Schedule to the Electoral Act, 2010 (as Amended) as no application for the Pre Hearing Notice known to Law and the Electoral Act, 2010 (as amended) has been made by Petitioner/Respondent.
8. This Honourable Tribunal is divest (sic) of the jurisdiction to continue with the hearing of this Petition in the circumstances.
9. To save the judicial and judicious time of this Honourable Tribunal and in the interest of justice.”

The Appellant filed a counter affidavit and written address in opposition to the motion brought by the 2nd Set of Respondents. The 2nd Set of Respondents aside from filing a written address in support of their motion also filed a further affidavit and further written address in the motion. The motion was entertained by the Tribunal on 8/8/2011 and ruling therein reserved till 11/8/2011, The Tribunal duly delivered its ruling on 11/8/2011 and in the ruling, dismissed the Appellant’s Petition as an abandoned Petition.

The Petitioner (now Appellant) being dissatisfied with the dismissal of the Petition as an abandoned Petition, lodged an appeal against the ruling of the Tribunal in that regard. The Notice of Appeal filed by the Appellant is dated 26/8/2011 and filed on 27/8/2011. The Notice of Appeal contains four grounds of appeal. The grounds of appeal shorn of their respective particulars read thus: –

GROUNDS OF APPEAL

GROUND ONE – ERROR IN LAW