Stephen Adamgbe & Anor V. Abraham Agba Akor & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA, J.C.A (Delivering the Leading Judgment)

This is an appeal against the ruling of the National/State House of Assembly Election Tribunal for Benue state delivered on 12/10/2011 (herein referred to as the Tribunal) striking out petition No: NSHA/EPT/BN/HA/38/2011 against the petitioners (herein referred to as the appellants) and in favour of the respondents (herein referred to as the respondents), The ruling is contained on pages 433 -450 of the records.

The brief facts of this is that the appellants filed their petition on 17/05/2011 challenging the declaration of results of the election held on 26/04/2011 in favour of, and returning of the 1st appellant as the winner by the 3rd respondent.

The grounds of the petition and the facts of the petition are contained on pages 4 – 8 of the records. Pursuant to the petition, the appellants prayed for some reliefs and the reliefs sought before the tribunal are also on page 8 of the records, Consequent upon the grounds and facts relied upon by the appellants, all the respondents, in compliance with the provisions of the rules and practice governing the practice and procedure of election petition, filed and exchanged their pleadings.

The 3rd respondent attempted to file again a reply through a motion for extension of time but the application was refused.

Thus no reply to the petition from the 3rd respondent.

Apart from the pleadings that were filed and exchanged, the parties also filed different motions with different consequential effects on the proceedings on the petition. That on 20/8/2011 the 1st respondent filed a motion praying the tribunal to strike out the entire petition on number of grounds. The motion is at pages 155- 177 of the record. The appellants re-acted by filing a counter-affidavit opposing the application. The tribunal heard the arguments of the parties for and against on 28/9/2011 and 12/10/2011 delivered its ruling wherein, the petition was struck out. The ruling is on pages 451-456 of the record.

The appellants being dissatisfied with the ruling, appealed to this court on 14/10/2011 and their Notice and Grounds of appeal is on pages 451-456 of the record. However, the 1st respondent in the petition, being dissatisfied with part of the decision of the tribunal dated 12/10/2011 also filed his Notice of cross-appeal on 25/10/11 and the Notice of cross appeal is on pages 457-461 of the records.

The 2nd respondent on his own filed on 26/10/2011 a Notice of intention to contend that the decision of the tribunal dated 12/10/2011 be affirmed on grounds other than those relied on by the tribunal.

In accordance with rules of this court both parties filed their respective brief of arguments in respect of the main appeal while no brief irrespective of cross-appeal was filed by the other respondents except appellants/1st and 2nd respondents, Who file his appellants/cross respondents’ brief during the hearing of this appeal and cross-appeal, the appellants/1st and 2nd cross-respondents, the 1st – 3rd respondents adopted and relied upon their respective briefs and the appellants in the appeal urged this court to allow the main appeal while the respondents urged this court to dismiss the appeal.

On cross-appeal, the 1st respondent/cross-appellant filed his cross-appellant’s brief which only the appellants/1st cross-respondents, responded by filing their 1st cross-respondents’ brief otherwise no brief from other cross-respondents. More so, the 2nd respondent informed the court of his intention to abandon his Notice to affirm the decision of the tribunal on other grounds than those relied upon by the tribunal, which was filed on 4/11/2011.

Having abandoned the said Notice it is hereby struck out together with all the submissions thereto.

In the respective briefs filed by both parties to the appeal and cross-appeal, issues were formulated for consideration of this court, The appellants formulated four (4) of them as contained on pages 3-4 of their brief of argument. The 1st respondent formulated three (3) issues while 2nd respondent in his brief of argument at pages 2-3 formulated 3 issued, and 3rd respondent on page 10 of his brief formulated two (two) issues all for the consideration of this court in this appeal.

The 1st respondent/cross-appellant formulated only one issue as contained on page 3 of his brief while the appellants/1st cross-respondents formulated, one issue as shown on page 1 of his appellants and1st respondents brief. As I said above no brief from other cross-respondents. After a full over-view and consideration of the entire facts and circumstance of this appeal the appeal ought to be and is hereby allowed in Part.