Okafor Okoreaffia & Anor V. Hon. Agwu U. Agwu & Anor (2008)

LawGlobal-Hub Lead Judgment Report

SAULAWA, J.C.A.

This is an appeal against the ruling of the Governorship and Legislative Houses Election Tribunal holden at Umuahia, Abia State which was delivered on 10/7/2007 thereby dismissing the appellants’ petition No. ABS/SHA/EPT/8/2007, pursuant to paragraph 3(4) of the Election Tribunal and Court Practice Directions No.2, 2007. The facts and circumstances surrounding this appeal, as could be gleaned from the record of the lower tribunal, are to the effect that on 14/4/07 the 2nd respondent had conducted election into the Abia State House of Assembly. Both the 1st appellant and 1st respondent had contested the said election for Arochukwu State Constituency under the respective platforms of the Peoples Democratic Party (2nd appellant) and Progressive People Alliance (PPA). They contested the said election along with four other candidates sponsored by four different political parties, namely:

(i) Okezie Lawrence of the Action Alliance (AA);

(ii) Thomas N. Ezeikpe of the Action Congress (AC)

(iii) Alex Oji Ekubo of the All Nigeria Peoples Party; and

(iv) Udenyi Okechukwu C of the All Progressive Grand Alliance (APGA), respectively.

At the conclusion of the election, the respondent was declared and returned by the 2nd respondent as the duly elected member of the Abia State House of Assembly representing Arochukwu State Constituency. Not unnaturally, the petitioner was dissatisfied with the result of that election. He accordingly filed a petition on 14/5/07 in the lower tribunal, challenging the declaration and return of the 1st respondent, on the following grounds:

(i) That the 1st respondent was not duly or validly elected or returned by majority of lawful voles cast at the questioned election of 14th April, 2007 having not scored or polled the highest member or majority of lawful valid votes cast at the election.

(ii) That the declaration election or return of the 1st respondent is undue and invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, 2006 as amended.

The petition was served on the respondents, who accordingly filed their respective replies thereto. Hearing notice was thereafter served upon the parties against the 10/7/07. On that date, the lower tribunal, suo motu, made some observations and came to the conclusion thus:

“The hearing for this day is for this tribunal to consider the status of some of the petitions before it which failed to comply with the law pertaining to hearing the petitions … We have noted that the petitioner in the petition before us filed his petition on the 14th of May, 2007 and the 1st respondent filed his reply on the 7th of June, 2007. The petitioner then filed his reply on the 23rd of June, 2007. It should be noted that paragraph 12 of the schedule to the Electoral Act 2006, provides that the respondent shall within 14 days of entering appearance file his reply to the petition ….

In the present circumstance, the failure of either party to apply for Form TF007 and TF008 as provided under paragraph 3(2) of the Practice Directions (supra) indicates the lack of seriousness on the part of the petitioner and the respondents. Hence we deem the petition before us as abandoned. It is on record that we have to issue a notice for today’s hearing in order to effect the dismissal of the petition before us. For the aforesaid reasons, we hold that this petition is hereby dismissed in accordance with paragraph 3(4) of the Practice Directions (supra). ”

See pages 265 – 266 of the record of the lower tribunal.

As a consequence of the dismissal of the petition thereof, the appellants filed a motion on notice on 25/7/07 in the tribunal seeking an order setting aside the order of dismissal of 10/7/07, and relisting the petition on the cause list for the purpose of hearing same on the merits.