Legalpedia Citation: (2011) Legalpedia (CA) 11123
In the Court of Appeal
HOLDEN AT ENUGU
Wed Nov 9, 2011
Suit Number: CA/E/EPT/34/2011
CORAM
PARTIES
1. MARY CHINELO CHIDEBELU
2. ALL PROGRESSIVES GRAND ALLIANCE (APGA)
APPELLANTS
1. OBINNA CHRIS EMENAKA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. HON. CHIEF JOE ISIAGU
4. BARR. CELESTINE OFOEGBUNAM
5. PEOPLES DEMOCRATIC PARTY (PDP)
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Petitioners/Appellants challenged the declaration and return of the 1st Respondent as the winner of the Anambra State House of Assembly election for Anambra East Constituency held on 26/4/2011 by the 2nd Respondent. The Petition was brought on the grounds of non- compliance with the provisions of the Electoral Act, 2010, that the 1st, 3rd and 4th Respondent who were all sponsored by the 5th Respondent at the time of the election were not qualified to contest the election, and that the 1st Respondent was not duly elected by majority of the lawful votes cast at the election.
Hence, the Petitioners/Appellants prayed the court to declare the election void for non-compliance with the provisions of the Electoral Act, that it be declared by the Court that the 5th Respondent did not sponsor any candidate for the election. The Petitioner also sought a declaration that a fresh election into the House of Assembly Election for Anambra East Constituency, Anambra State, be conducted amongst others. The 2nd Respondent filed his reply out of time and got an order of the Tribunal on 29/7/2011 regularizing the lateness in the filing of the reply and deeming the said reply as having been properly filed, the 3rd and 5th Respondents respectively did not file Replies to the Petition. The Appellants thereafter by a motion on notice applied for issuance of pre-hearing notice which was opposed by the 1st and 2nd Respondents, the 4th Respondent did not file any counter affidavit against the motion but on the 16/8/2011 he filed a motion on notice in which he prayed the Tribunal to strike out the Appellants’ motion on notice and to dismiss the Petition as abandoned on the ground that the motion on notice for the issuance of the pre-hearing notice was filed out of the time stipulated by the Electoral Act 2010. The Tribunal granted the application of the 4th Respondent and dismissed the Appellant’s motion.
Being dissatisfied with the tribunal’s decision, the Petitioners/Appellants have appealed to this Court on grounds that the tribunal erred in law when it held that the Petitioner/Appellant’s application for issuance of pre-hearing notice was incompetent and consequently dismissed same among other grounds.
HELD
Appeal Allowed
ISSUES
1.Whether the Tribunal was right to have dismissed the appellants’ petition as an abandoned petition.?
RATIONES DECIDENDI
CASES CITED
STATUTES REFERRED TO
Electoral Act, 2010(as amended)