Somto Udeze & Anor V. Princess Chinwe C. Nwaebili & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A (Delivering the Leading Judgment)

This is an appeal against the Ruling of the National and State Houses of Assembly Election Tribunal sitting in Awka and delivered on the 8th day of September, 2011 in PETITION No. EPT/AN/HA/18/2011 wherein the Tribunal hereinafter referred to as (the Trial tribunal) dismissed the Petition of the present Appellant as an abandoned petition for his failure to apply for the issuance of pre-hearing Notice as stipulated under paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 as amended.

The 1st appellant was a candidate sponsored by the 2nd Appellant Peoples Democratic Party (PDP) at the House of Assembly Election for Ogbaru II State Constituency, Anambra State, held on 26th April, 2011 and 6th May 2011. The 1st Respondent on the other hand was the candidate sponsored by the All Progressives Grand Alliance (APGA) in the said election and was declared winner and returned as elected by the 2nd Respondent.

The Appellants being aggrieved with the outcome of the said election filed their Petition at the Registry of the trial tribunal on 26/5/11 wherein they challenged the return of the 1st Respondent as the validly elected candidate for the Anambra State House of Assembly in Ogbaru II State Constituency.

The 1st Respondent’s reply to the petition was filed on 30/6/2011 while that of the 2nd to 6th Respondents was filed on 29/6/2011. The 7th Respondent filed his own reply on 8/7/11. On the 5/7/11 the appellants filed their reply to the 1st Respondent’s reply to the petition. On the 7/7/2011 the Appellants, through a letter dated 5/7/2011 applied to the trial tribunal for the issuance of pre-hearing notice as in Forms TF 007 and TF 008 pursuant to paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 as amended.

Subsequently on the 8/7/2011 the appellants filed another application by way of motion for the issuance of the same pre-hearing notice.

Meanwhile, on the same 8/7/2011 the Secretary of the tribunal reacted by issuing Forms TF 007 and TF 008 to the appellants who on the same 8/7/11 filed their pre-hearing information sheet.

On the 13/7/11 the 2nd to 6th Respondents filed their own pre-hearing information sheet while the 1st Respondent filed his on the 15/7/11 together with issues for determination.

At the sitting of the trial tribunal on 19/7/11, the appellants applied to withdraw their motion for pre-hearing information sheets filed on 8/7/11 and it was consequently struck out. On the 27/7/11 the appellants motion to discontinue the petition against the 7th Respondent and filed on 18/7/11 was moved and granted by the trial tribunal.

Subsequently, the 1st Respondent, on 22/8/11 filed a motion on notice for the dismissal of the petition as an abandoned petition and the appellants reacted by filing a counter affidavit on 31/8/11. The 1st Respondent also responded with a further affidavit filed on 6/8/11.

The appellants had also on the 5/8/11 filed a motion on notice praying this tribunal to relist their motion filed on 8/7/11 and seeking the issuance of pre hearing notice but withdrawn and struck out on 19/7/11. The 1st and 2nd to 6th Respondents opposed the application by filing counter affidavits. At the sitting of the trial tribunal on 6/9/11 both the appellants motion to relist their motion on notice filed on 8/7/11 but was withdrawn and struck out on 19/7/11 as well as the 1st Respondents motion on notice filed on 22/8/11 seeking to have the petition dismissed as an abandoned petition were heard together. In a reserved Ruling delivered on 8/9/11 the trial tribunal dismissed the appellant’s motion for relisting on the ground that no sufficient reason was given to warrant the grant of same. It however granted the 1st Respondent’s motion and dismissed the appellant’s petition on the ground that the application for the issuance of pre-hearing notice as in Form TF 007 was made prematurely. The appellants being aggrieved with the said Ruling filed a notice of appeal containing eight grounds of appeal. It is dated 13/9/11 and filed on 15/9/11.

The parties subsequently filed and exchanged briefs of argument. The appellants’ brief of Argument dated 5/10/11 and filed on 6/10/11 was settled by Steve Unachukwu Esq. The 1st Respondent’s brief dated 10/11/11 and filed on 11/10/11 was settled by A.C. Anaenugwu Esq., while that of the 2nd to 6th Respondents dated and filed on 10/10/11 was settled by Arthur Obi Okafor SAN.

At the hearing of the appeal on 26/10/11, the parties adopted and relied on their respective briefs of argument.

In the appellants’ brief, one sole issue was formulated for determination. To wit:-