Nzeli Emmanuel & Anor V. Princess Chinwe C. Nwaebili & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A (Delivering the Leading Judgment)

The appeal herein is against the ruling of the National and State Houses of Assembly Election Petition Tribunal Anambra State, holden at Awka delivered on 19th August, 2011 in petition number EPT/AN/HA/58/2011, wherein the said petition was dismissed. The tribunal dismissed the petition as an abandoned petition, on the ground that the Appellants as Petitioners applied for the issuance of pre hearing notice prematurely before pleadings were completed.

A brief summary of the facts giving rise to this appeal is hereby made as follows: The 1st Appellant was a candidate sponsored by the 2nd Appellant at the State House of Assembly election for Ogbaru II State Constituency Anambra State, held on 26th April, 2011 and 6th May, 2011. Upon the conclusion of the election, the 2nd Respondent declared and returned the 1st Respondent as the winner of the election. Peeved by the declaration and return of the 1st Respondent as the winner of the election, the Appellants as Petitioners challenged same vide a petition dated 26th May, 2011 and filed the same date.

The ground upon which the petition is anchored is that, the 1st Respondent who was declared elected and returned did not score a majority of lawful votes. See page 3 of the Record of Appeal. The Appellants as Petitioners sought for the following reliefs in paragraph 7 of the petition, namely-

“(a) That the 1st Respondent was not validly elected having not scored the majority of lawful votes cast in the election into the State House of Assembly election held on the 26th April, 2011 and 6th May, 2011 for Ogbaru II State Constituency of Anambra State.

(b) That the 1st Petitioner and his party be declared the winners and the 1st Petitioner elected in the State House of Assembly election held on 26/4/2011 and 6/5/2011 for the Ogbaru II State Constituency of Anambra State having scored the highest/majority of lawful votes cast at the said election.”

See page 9 of the Record of Appeal

Upon the service of the petition, all the Respondents filed their respective replies. The 1st Respondent filed her Reply to the petition on 29th June, 2011, while the 2nd to 6th Respondents Reply was filed on 29th June, 2011. The petitioners’ Reply to 1st Respondent was filed on 5th July, 2011 and the Reply to 2nd to 6th Respondents filed on 18th July, 2011. The Petitioners applied for pre-hearing session vide a letter dated 5th July, 2011. The Petitioners’ reply to 2nd to 6th Respondents was served on the 2nd to 6th Respondents on 19th July, 2011. All parties filed in their pre hearing information sheet and issues for determination. The tribunal adjourned the petition for the commencement of pre hearing session against 4th August, 2011.

On the 6th August, 2011 the 1st Respondent filed a motion on notice for the dismissal of the petition as an abandoned petition. In the course of pre hearing session, the 1st Respondent’s application for the dismissal of the petition was argued on 17th August, 2011. In a reserved ruling delivered on 19th August, 2011, the tribunal dismissed the petition as an abandoned petition on the ground that the application for pre hearing notice was made before the final settlement of pleadings, hence incompetent. Hear the tribunal on pages 482 to 483 of the Record of Appeal:

“Paragraph 18 (1) of the rules provides as follows

18 (1) Within seven days after the filing and service of the petitioners’ reply on the respondents or seven days after the filing and service of the respondents reply whichever is the case, the petitioner shall apply for the issuance of pre hearing notice as in form TF 008.

From the above provision therefore a petitioner is duty bound to bring the said application within seven days of filing and service of the last pleadings be it the respondent or his own reply to the respondents reply. In the instant case, the last pleading is the petitioners reply to the 2nd to 6th respondents reply dated the 18th day of July, 2011 and filed on the same date, a certify (sic) true copy of which was tendered and admitted in evidence as exhibit “APP” it is clear from the endorsement of service at the back page of exhibit “APP” (i.e. the said petitioners reply) that same was served on all the Respondents on 19/07/11, In our view the period within which to apply for pre hearing notice is seven days after 19/7/2011 which terminated on 26th day of July, 2011. Therefore any application for pre hearing filed before or after this period is incompetent and we so hold.”

Apparently unhappy and piqued by the ruling dismissing their petition, the Petitioners challenged same by a notice of appeal dated 7th September, 2011 and filed on 8th September, 2011. The notice of appeal is anchored on six grounds of appeal. See pages 485 to 493 of the Record of Appeal. In strict adherence to the Rules of Court and Election Tribunal and Court Practice Directions 2011, briefs of argument were filed and exchanged. The Appellants brief of argument is dated 20th September, 2011 and filed on 22nd September, 2011. The 1st Respondent’s brief of argument is dated 26th September, 2011 and filed the same date. The 2nd to 6th Respondents’ brief of argument is dated 6th October, 2011 and filed on 7th October, 2011 but deemed properly filed with the leave of court on 10th October, 2011.

Mr. Emeka Agbapuonwu leading Mr. E. Mofumamaya for the Appellants adopted and relied on the Appellant’s brief in urging the court to allow the appeal. Learned counsel however intimated the court that he is abandoning the alternative relief contained in his notice of Appeal. Mr. A. C. Anaenugwu leading T. U. Oguji Esq., Okey Abazu Esq. and Chike Okafor Esq. for the 1st Respondent, adopted and relied on the 1st Respondent’s brief in urging the court to dismiss the appeal as lacking in merit. Mr. C. C. Okaa leading C. I. Okafor Esq. for the 2nd to 6th Respondents adopted and relied on the 2nd to 6th Respondents’ brief of argument in urging the court to dismiss the appeal.