Prince Sunday Bamidele Aderonmu & Anor V. Independent National Electoral Commission & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the decision of the National Legislative House Election petition Tribunal, Holden at Lagos (Coram Justice A. A. Nwagwe (Chairman); Justice N. S. Adeyanju (Member), Justice D. Z. Senchi (Member) of the 23rd of February, 2012 striking out the Appellants petition.

The first Tribunal had on the 17th of October, 2011 ordered a trial of the Appellants petition de novo on the merits.

But the Court of Appeal by its decision of the 14th of December 2011, set aside that Ruling of the first Tribunal of the 17th of October, 2011.

The facts culminating in the present appeal may be briefly put as follows:

On the 39th day of April 2011, the Appellants presented a petition before the National Assembly Election Tribunal holden at Lagos, challenging the victory of the 2nd Respondent in the election held on the 9th day of April 2011 into the seat of the Surulere II Federal Constituency of the House of Representatives (Pages 204 to 210 of the Record of Appeal.)

The sole ground for the Petition was that the 2nd Respondent was not qualified to be a candidate for election into the office as member of the Federal House of Representatives of the Federal Republic of Nigeria.

The 1st Respondent opposed the Petition vide reply filed on the 7th of June, 2011 praying the Honourable Court to dismiss the Petition (See Pages 159-170 of the Record of Appeal). The 2nd and 3rd Respondents also opposed the petition vide their reply filed on 20th of May, 2011. (See Pages 181 to 185 of the Record of Appeal).

Due to applications filed by the 1st, 2nd and 3rd Respondents, the Tribunal dismissed the petition on the ground that the Petitioners/Appellants’ mode of application for issuance of pre-hearing notice was not in accordance with the provision of Paragraph 47(2) of the first schedule to the Electoral Act 2010 and also that the Tribunal had no jurisdiction to hear the petition, being, ab-initio, a pre-election matter.

The Appellant appealed the decision of the Tribunal and on the 14th of December 2011, the Court of Appeal, Lagos Division set aside the decision of the Tribunal and ordered that the petition be heard de novo.

At the reconstituted Tribunal for the hearing of the Petition de novo, the 2nd and 3rd Respondents filed a Notice of Preliminary Objection dated and filed on the 7th of February 2012 that the Tribunal lacks jurisdiction to entertain the Petition on the ground that the constitutional period for hearing of the petition had lapsed. The objection was upheld and the Petition was accordingly struck out.

The fulcrum of the Appellants’ appeal is that by striking out their petition without a hearing on merits, they were denied their right to a fair hearing.

The gravamen of the Appellants’ argument is that the right of fair hearing is their inalienable right which cannot be waived as a matter of their constitutional

At the Tribunal, the 2nd and 3rd Respondents had filed a Notice of preliminary Objection that the Tribunal lacks jurisdiction to entertain this petition. The 2nd Respondent is KAZEEM ALLIU BABATUNDE, while the 3rd Respondent is ACTION CONGRESS OF NIGERIA (ACN).