Preye Oseke & Anor V. Independent National Electoral Commission & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TUNDE OYEBANJI AWOTOYE, J.C.A (Delivering the Leading Judgment)

On 12/10/2011, we gave a decision dismissing this appeal, after hearing the parties: I now give reasons for doing so.

This is an appeal against the decision of the National and state Houses of Assembly Election Tribunal sitting at Yenagoa Bayelsa state delivered on 16/8/2011 on the ground that the petitioners abandoned the petition under paragraph 18 of the First Schedule to the Electoral Act 2010.

Being aggrieved with the said decision, the petitioner filed notice of appeal containing 2 grounds of appeal.

After transmission of record of appeal learned counsel on either sides filed and exchanged briefs of argument which they later adopted in the course of the appeal. Each of the parties formulated issues for determination by this court.

The sole issue common to all the parties which encompasses the two Grounds of Appeal of the appellant is:-

“Whether the learned chairman and members of the Election Tribunal were right in dismissing the petition of having been abandoned for non-compliance with paragraph 18(1) of the First schedule to the Electoral Act 2010 when pleadings had not in fact come to a close. ”

The facts of this appeal can be succinctly put thus:

The appellants who were the petitioners filed and served their petition on all the Respondents but only the 2nd respondent filed his Reply to the petition on 14/6/2011.

The appellants did not apply for pre-hearing notice as required paragraph 18(1) of the First Schedule.

The petition was consequently dismissed on the application of the 2nd Respondent at the tribunal.

In his argument learned counsel for the appellant Dr. Anthony Okorodas submitted that the lower tribunal was wrong in dismissing the petition as having been abandoned when at the time the application for dismissal was brought by the 2nd respondent pleadings had not in fact come to a close. He submitted further that paragraph 18(1) of the First Schedule showed that the provision became mandatory only upon the close of pleadings because the provision was activated only upon the existence of one of two situations – the filing and service of wither the respondent’s reply or petitioner’s reply, after which the petition was required to apply for prehearing notice within 7 days. He stated further that the purpose of pre-hearing session was to plan the conduct of the entire case for the hearing of the petition. He further argued that it was after the service of art replies that pleadings came to a close. He relied on several authorities including ADESANYA V. PRESIDENT OF NIGERIA (1981) 2 NCLR 358, and ADIGUN V. A -G. (Oyo STATE) (1987) 2 NWLR 197.

He urged the court to allow the appeal.

Learned counsel for the 2nd respondent PREYE-AGEDAH in his adopted brief submitted that the timelines provided in paragraph 18(1) of the First schedule apply in its interpretation and not necessarily the actual filing of the appropriate Replies or pleadings. He cited IKORO v. IZUNASO (2010) ALL FWLR AND AZUDIBIA V. INEC (2008) 4 LRE IN 105 At 121. He cited other cases including OKEREKE V. YARADUA (2008) ALL FWLR (PT.430) 626. He submitted that the application of the petitioners now appellants for pre-hearing notice was rate and so the tribunal rightly dismissed the petition.