Tony Dimegwu V. Independence Ogunewe & Ors. (2008)

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IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

This is an appeal against the ruling of the National Assembly Election Tribunal holden at Owerri, Imo State delivered on 18/9/07. The lower tribunal had by the ruling in question dismissed the Appellant’s petition (EPT/NA/IM/24/2007 in limine, on the ground that it was incompetent.

It is common knowledge that on 21/4/07 elections were held by the 2nd – 8th Respondents in respect of the Ahiazu/Ezinihitte-Mbaise Federal Constituency. The Appellant, 1st Respondent and one Paul Opara contested the election on the platforms of the All Progressive Grand Alliance (APGA), the Peoples Democratic Party and All Nigerian Peoples Party, respectively. At the conclusion of the said election, the 1st Respondent was declared and accordingly returned, as the winner, having allegedly scored a total majority of 24,649 votes. Both the Appellant and Paul Opara were recorded to have scored 5607 and 4031 votes respectively. The Appellant was however dissatisfied with the result of that election and thus filed a petition No. EPT/NA/IM/24/2007 on 22/5/07, wherein he prayed the lower tribunal to:

a. Nullity the result of the election for the membership to the House of Representatives of the National Assembly for the entire Ahiazu/Ezinihitte-Mbaise Federal Constituency held on 21/4/07 and order that fresh election be conducted in the said constituency by the 2nd and 3rd respondents to determine the member to represent the said Constituency in the said House of Assembly

OR

b. order that the election be conducted in those polling stations and wards where there was no election to elect the member to represent the Ahiazu/Ezinihitte-Mbaise Federal Constituency in the House of Representatives on 21/4/07.

It is instructive that on 16/8/07, when the petition came up to pre-hearing session, the lower tribunal, suo motu, raised the issue of whether the petition was competent, “in view of the fact that the petitioner applied for pre-hearing session only on 18/7/07”. The learned counsel thereafter field and served their respective (written) addresses on the issue, which were accordingly adopted on 03/9/07. Thus on 18/9/07 the lower tribunal delivered a ruling wherein it came to the following conclusion:

To put it in another way, the application made by the petitioner on 13/7/07 is incompetent, and to that extent, it ought to be struck out. This Tribunal can only entertain an application for a pre-hearing session that was made, in relation to this petition between 1/8/07 and 7/8/07. There is no such application before the Tribunal. The effect of failure to apply for a pre-hearing notice either by the petitioner or the Respondent pursuant to paragraph 3(1) and (3) of the Practice Directions is provided under paragraph 3(4) of the said Directions as follows:

Where the petitioner and the Respondent fall to bring an application under this paragraph the Tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.

This provision does not permit of any discretion. It is mandatory and the Tribunal has no option other than to dismiss the petition. Accordingly, the petition is hereby dismissed.

See pages 217 – 218 of the Record.

The Appellant being dissatisfied with the ruling in question, has filed this appeal upon four grounds of appeal. Parties have accordingly filed and served their respective briefs of argument. The Appellant’s brief, in particular, was filed on 03/12/07. The briefs of the 1st Respondent and 2nd – 8th Respondents were filed on 18/12/07 and 10/12/07 respectively.

The Appellant has formulated two issues in the brief thereof, thus:

a. Whether the Appellant’s application for pre-hearing conference compiled with the provisions of paragraph 3(1) of the Practice Direction (sic) No. 1 of 2007?