Uche Geoffrey Nnaji & Ors v. Mbah Peter Ndubuisi & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA (Delivering the leading judgment)

This is an appeal against the decision of the Enugu State Governorship Election Petition Tribunal, holden at Enugu, Enugu State delivered on the 20th June, 2023 Coram: Hon. Justice K. M. Akano, Chairman, hon. Kadi M. I. Gombe, Member 1 and Hon, Justice M. M. Odinya, Member 2.

Following the declaration of the 1st respondent sponsored by the 2nd respondent as the winner of the election conducted by the 7th respondent to the office of Governor of Enugu State of Nigeria which election was held on the 18th March, 2023 across the 17 Local Government councils of Enugu State, the appellants filed a petition at the trial tribunal on the 10th April, 2023 to challenge the said declaration.

In the course of the proceedings, the 2nd respondent filed a motion on notice on the 16th June, 2023 wherein it sought the following reliefs:

1. An order of this honourable tribunal granting leave to the 2nd respondent/applicant to move this instant motion outside the pre-hearing session.
2. An order dismissing this instant petition, same having been abandoned by the petitioners’
3. And for such further order or orders as this honourable tribunal may deem fit to make in the circumstances.

The grounds for the said reliefs were stated as follows:

The 3rd and 4th respondents were the last set of respondents to file their reply to the petition on the 22nd day of May, 2023.

1. In answer to the said 3rd and 4th respondents reply, the petitioners filed the petitioner’s reply to the 3rd and 4th respondents’ reply on the 3rd day of June 2023. The said petitioner’s reply to the 3rd and 4th respondents reply was the final reply filed in this petition and pleadings were closed on 3rd June 2023.
2. The said petitioners reply to the 3rd and 4th respondents’ reply was served on the 7th respondent on 6/6/2023; the 1st, 2nd, 3rd and 4th respondents were served on 7/6/2023. The 5th and 6th respondents were served on 8/6/2023 pursuant to the Order of this tribunal by pasting at the notice board of this honourable tribunal.
3. By paragraph 18 (1) of the First Schedule to the Electoral Act, 2022, the petitioners are mandatorily required within 7 days from the date of filing and service of the petitioner’s reply on the respondent(s) to apply for the issuance of pre-hearing notice in Form TF 007.
4. The petitioners had up till 14/6/2023 to apply for the issuance of pre-hearing notice in compliance with the provisions of paragraph 18(1) of the First Schedule to the Electoral Act, 2022.
5. A valid application for the issuance of the pre-hearing notice in Form TF 007 can only be made at the close of pleadings in consonance with paragraph 18(1) of the First Schedule to the Electoral Act, 2022.
6. The petitioners did not make any application for the issuance of the pre-hearing notice as mandatorily required by paragraph 18(1) of the First Schedule to the Electoral Act, 2022 within the time the 7 days prescribed.
7. The petitioners had twice prematurely applied for the issuance of the pre-hearing notice before this honourable tribunal before the ‘service’ of the petitioner’s reply to the 3rd and 4th respondents’ reply on the 1st, 2nd, 3rd, 4th, 5th and 6th respondents herein.
8. The petitioner’s first application for issuance of prehearing notice was filed on 16th May, 2023; while the second application was filed on 6/6/2023.
9. Pursuant to the said premature application made by the petitioners for the issuance of the pre-hearing notice on 6/6/23, the hearing notice for the pre-hearing session dated 7th June, 2023 was issued by this honourable tribunal.
10. The said application for pre-hearing notice and the said pre-hearing notice dated 7th June 2023 issued as a consequence of the said application by the petitioners made prior to service of the petitioners reply to the 3rd and 4th respondents reply on the 1st 6th respondents is not competent.
11. The said petitioner’s reply to the 3rd and 4th respondents reply was served on the 7th respondent on 6/6/2023; the 1st, 2nd, 3rd and 4th respondents were served on 7/6/2023. The 5th and 6th respondents were served on 8/6/2023 pursuant to the order of this tribunal by pasting at the notice board of this honourable tribunal. The proof of service of the said petitioners reply on the 1st, 2nd, 3rd 4th, and 7th respondents to this petition is attached hereto as exhibit C; while the affidavit of service of the said petitioners reply on the 5th and 6th respondents is attached hereto as exhibits D & E respectively.
12. The petitioners have abandoned the petition by their failure to apply for the pre-hearing notice in Form TF 007.
13. Election petitions are sui generis and time is of the essence.
14. In computing the time in election petition cases for taking any step or filing any process, the date of the happening of the event that ought to give rise to the filing of the particular process is included.
15. Time cannot be extended for the petitioners to apply for the issuance of the pre-hearing notice in Form TF 007 as prescribed by paragraph 18 (1) of the First Schedule to the Electoral Act, 2022.
16. This honourable tribunal therefore lacks the jurisdiction to entertain and determine the petition as presently constituted, same having been abandoned by the petitioners.

The said application was predicated on the contention that the appellants failed to file an application for the issuance of pre-hearing notice within the period stipulated by paragraph 18 (1) of the First Schedule to the Electoral Act, 2022 and that in the circumstances their petition was deemed abandoned and should be dismissed.

The application was seriously contested by the appellants on the arguments that their application for pre-hearing notice was competent having been filed within seven days of the close of pleadings and that any lapse arising from service of the process involved was that of the trial tribunal’s Registry which could not be visited on them.

They further argued that the application made by the appellants for the issuance of pre-hearing notice was in complete compliance with the provisions of section 18 of the First Schedule to the Electoral Act, 2022, and that the motion of the 2nd respondent be dismissed.

In the subsequent ruling delivered as aforesaid on the 20th June, 2023, the trial tribunal found the application filed by the appellants for the issuance of pre-hearing notice premature and therefore incompetent. Consequently, the petition of the appellants was dismissed on the basis that it was abandoned.

Dissatisfied, the appellant invoked the appellate jurisdiction of this court via the notice of appeal filed on the 21st June, 2023 containing nine grounds which are reproduced as follows:

Ground one: error of law

The learned trial Judges of the Enugu State Governorship Election Petition Tribunal, erred in law when the tribunal granted leave and allowed the 2nd respondent to move the application filed on the 16th day of June, 2023 and the oral application of the 1st, 3rd, 4th, and 7th respondents contrary to the unambiguous provisions of the Electoral Act 2022 and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Particulars of errors