Zeribe Ezeanuna & Anor V. Afam Victor Ogene & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, JCA (delivering the Leading Judgment)

This is an appeal against the ruling delivered on 25/11/2011 by the National and State Houses of Assembly Election Tribunal, Awka, Anambra State, (hereafter simply referred to as “the Tribunal”) in petition No. EPT/AN/NAE/HR/67/2011 (hereafter simply referred to as “the Petition”).

In the ruling, the Tribunal on 25/11/2011 declined proceeding further with the hearing of all applications that were pending in the Petition (which was filed on 27/5/2011) on the ground that the Petition had lapsed and died since 23/11/2011. Consequently, the Tribunal on the aforesaid 25/11/2011, not only struck out all applications that were pending in the Petition, but also the Petition itself.

The Appellants on 27/5/2011 instituted the Petition which relates to the election held on 26/4/2011 to the House of Representatives of the National Assembly for the Ogbaru Federal Constituency of Anambra State. The 1st Appellant contested the election on the platform of the 2nd Appellant; while the 1st Respondent who was declared and returned as the winner of the election in question, contested the same on the platform of the 2nd Respondent. The Appellants are by the Petition challenging the declaration and return of the 1st Respondent as the winner of the election. The reliefs which the Appellants prayed of the Tribunal, as set out in paragraph 57 of the Petition are re-produced hereunder: –

“a. DETERMINATION that no election for Ogbaru Federal Constituency was conducted in the following Wards of Ogbaru 1 constituency Okpoko wards 1, Okpoko wards 2, Okpoko wards 3, Okpoko wards 4, Okpoko wards 5, Okpoko wards 6, Ochuche/Ogbakuba ward, Ogwu-Ikpele ward and Umunankwo ward in compliance with the provisions of the Electoral Act 2010.

b. DETERMINATION that the 1st Respondent was not duly elected or duly returned and that his election was invalid, null and void.

c. AN ORDER setting aside the result of the said election.

d. AN ORDER directing the 3rd Respondent to conduct election for the Federal House of Representatives seat in Ogbaru Federal Constituency in the following wards: Okpoko Wards 1, Okpoko wards 2, Okpoko wards 3, Okpoko wards 4, Okpoko wards 5, Okpoko Wards 6, Ochuche/Ogbakuba ward, Ogwu-Ikpele ward and Umunankwo ward in compliance with the provisions of the Electoral Act 2010;

The Respondents in the Petition (save the 4th) duly filed their respective Replies. Also, the Appellants duly applied for the issuance of pre-hearing notices as in Forms TF 007 and TF 008 on 22/7/2011 and parties duly filled, filed and exchanged their respective pre-hearing information sheets. Prehearing commenced in the Petition on 26/7/2011 before the Tribunal as constituted by Hon. Justices U.B. Bwala (Chairman); and I.T. Cocodia and M.A. Adeigbe (members). The Petition last came up before the Tribunal as constituted by the aforementioned Justices on 3/8/2011. After 3/8/2011, the Petition next came up on 13/9/2011 before the Tribunal as constituted by Hon. Justices Onajite-Kuejubola (Chairman); and Udu-Eze and Y. Mukhtar (members). On the said 13/9/2011, the Tribunal adjourned the Petition till 29/9/2011 (12 noon) for “pre-conference” (sic). (See pages 521 and 522 of the record). The Tribunal was yet to dispose of all the motions pending in the Petition when in the course of the proceeding on 25/11/2011, T.U. Oguji learned lead counsel for the 1st and 2nd Respondents was recorded to have said thus: “that the matter has not been determine (sic) as enshrined order (sic) section 265(6) (sic) of the CFRN as amended which he submission (sic) no fault of the tribunal”. (See page 539 of the record). The Tribunal thereafter heard from learned counsel for the Appellants; and 3rd and 5th – 7th Respondents respectively, on the issue raised by learned lead counsel for the 1st and 2nd Respondents. In the ruling delivered on the same date, i.e. 25/11/2011, the Tribunal stated to the effect that it was faced with a petition that died as at 23/11/2011 and in the circumstance it had only one duty placed on it by Section 285(6) of the CFRN 2011 as amended and is not allowed to extend time within which to give life to a dead or dying petition. The Tribunal consequently struck out all the motions that were still pending in the Petition and the Petition itself.

The Petitioners (now Appellants) being dissatisfied with the striking out of the Petition lodged an appeal against the ruling of the Tribunal in that regard. The Notice of Appeal filed by the Appellants is dated 5/12/2011 and filed on 10/12/2011. The Notice of Appeal contains one ground of appeal.

The ground of appeal and its particulars read thus: –

“1) ERROR IN LAW

The Lower Tribunal erred in law in holding that in computing 180 days, the days the Tribunal was not in existence at all will not be discounted and proceeded to strike out the Petition.

PARTICULARS OF EROR