Sir Celestine Omehia & Anor V. R. T. Hon. Chibuike Rotimi Amaechi & Ors. (2011)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
T. O. AWOTOYE, J.C.A. (Delivering the Leading Judgment)
This is the judgment in respect of the appeal from the Ruling of the Governorship Election Petition Tribunal Holden at Port Harcourt decided on 27/7/2011.
The petitioners at the lower Tribunal after the receipt of the replies of the Respondents had by a letter dated 24/6/201l applied for the issuance of the Pre-hearing Notice. The tribunal acted on the said application and ordered the issuance of the pre-hearing notice accompanied by the pre-hearing information sheet.
The 1st and 2nd respondents on receipt of the pre-hearing Notice filed a motion challenging the manner the application for pre-hearing notice was brought insisting that an application in the form of a letter was incompetent because paragraph 47(2) of the 1st schedule made it mandatory that all application be brought by “Motion”.
The 3rd and 4th Respondents made similar applications.
In its ruling the Tribunal relying on RIRUWAI v. SHEKARAU 2008 12 NWLR (PT.1100 page 142 and ADO v. MEKARA (2009) 9 NWLR (PT.1147) 491 dismissed the petition.
It is against this decision that the appellants filed notice of appeal containing 10 grounds of appeal. After transmission of record of appeal each of the parties filed a brief and the briefs were exchanged.
In their amended appellants’ brief of argument the appellants formulated and argued four issues for determination. They are as follows:-
“2.01 WHETHER, IN THE CIRCUMSTANCES, THE TRIBUNAL WAS RIGHT TO HOLD THAT INSPITE OF THE SUPREME COURT DECISION IN OKEREKE V. YAR’ADUA 2008 12 NWLR (PT.110) 95 THE TRIBUNAL HAD THE JURISDICNON TO HEAR THE RESPONDENTS’ MOTIQNS *OUTSIDE THE PRE-HEARING SESSION? [GROUNDS 1 & 2].
- WHETHER THE TRIBUNAL WAS RIGHT TO FOLLOW THE EARLTER JUDGMENT IN RIRUWAI V. SHEKARAU (SUPRA) BECAUSE IT WAS A JUDGMENT OF THE ”FULL COURT” OF APPEAL RATHER THAN THE LATER JUDGMENT IN HASSAN V. INEC (SUPRA) GROUND 9].
- WHETHER, IN THE CIRCUMSTANCES, THE TRIBUNAL WAS RIGHT TO HOLD THAT IT WAS PRECLUDED BY THE COURT OF APPEAL DECISIONS IN RIRUWAI V. SHEKARAU (SUPRA), (SUPRA) AND THE UNREPORTED CASE OF AYUBA V. INEC (SUPRA) FROM FOLLOWING THE JUDGMENT OF THE COURT OF APPEAL ON THE POINT IN QUESTION IN THE CASE OF AND WITHOUT PRONOUNCING ON THE SUBMISSIONS MADE FOR THE PETITIONERS/APPELLANTS ON THE PROVISIONS OF PARAGRAPHS 18 AND 47 OF THE 1ST SCHEDULE TO THE ELECTORAL ACT?
- WHETHER IN ALL THE CIRCUMSTANCES OF THE CASE THE OBJECTION BY THE RESPONDENTS ON THE MANNER AND FORM OF THE APPELLANT’S SAID APPLICATION IS NOT A MERE TECHNICALITY WHICH DOES NOT AFFECT THE SUBSTANTIVE OR MAIN ACTION? [GROUND 10]
The 1st and 2nd Respondents in their adopted brief formulated and argued two issues for determination.
The issues are:-
“(i) Whether the lower Tribunal is not bound by the decisions of the superior court in RIRUWAI V. SHEKARAU (2008) 12 NWLR (Pt.1100) page 142 and
ADO V. MAKERA (supra)
(ii) Having regard to the provisions of the Electoral Act 2010 as amended whether the appellants could apply for issuance of pre-hearing notice in forms TF007 and TF008 by a letter and whether the lower tribunal was not right in law to dismiss the petition having been rubbed of jurisdiction.”
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