By By Victor Madumere
The Hon Justice David Wyon led election Petition Tribunal Panel sitting in Owerri yesterday at the Owerri High Court dismissed the election petition EPT/IM/GOV/3/2015 filed by the Imo State Peoples Democratic Party PDP Guber candidate, Rt Hon Emeka Ihedioha challenging the election of governor Rochas Okorochas of the All Progressive Congress APC in the 2015 Imo guber election.
After postponing the ruling twice the panel finally gave the ruling yesterday in favour of Gov Rochas Okorocha’s motion of application to dismiss the petition for filing pre-hearing notice outside stipulated time of seven (7) days which is one of the two grounds presented in the motion.
Delivering the ruling, the panel chairman Justice Wyon considered all submissions, affidavits, and arguments with the accompanied authorities presented to the Panel by both petitioners counsel and respondents counsel, although he agreed with one of the authorities that payment for fillings at the registry is for administrative records dismissing petitioner’s argument that fees are not compulsory. That is why a certain supreme Court Judgment stated that pre-hearing notice could be made orally which implies that oral application cannot be assessed into monetary value.
Justice Wyon went further to rule that the time of payment has been considered by the panel as the real time of filling .
In that case the record has it that the filling was truly made on the 23rd of June 2015 while the payment of three hundred naira N300 was made on the 3rd of July 2015. According to him inspite the necessary responses on the filed document by the respondents, the document is considered to be received by the registry on 23/6/15 but was filed properly at the payment on 3rd July 2015 which is outside the stipulated days.
On the above grounds the panel dismissed the petition for filling of pre hearing notice out of time.
The respondent counsel Adeniyi Akuntola SAN thanked the panel for what he described as a landmark ruling.
Speaking outside the court room after the ruling the lead counsel to the petitioner Chief Mike Ahamba SAN told newsmen that what he witnessed in the ruling was what he has not seen or heard of in his 41 years of legal practice, where appeal court judgements supercedes supreme court judgments.
Chief Mike Ahamba has this to say; “What happened in Court was that there were three motions to be decided. One had to do with filing pre hearing application, the other had to do with striking out the reply filed by the Gov and the APC as being incompetent process before the court and another one was an effort to amend that process which we said was a void process they were conceding. That all was not well with the process but the court decided to rule on the pre hearing notice application on the ground that the application notice was a jurisdictional matter. That was a surprise to me because the three Supreme Court authorities i cited stated clearly that it was not jurisdictional. For the Court of Appeal to have been used to override a Supreme Court decision as recent as 2013 and 2014 is a surprise to me.
For the Tribunal to have overruled Supreme Court authorities on the issue of whether application for prehearing was jurisdictional. It was based on that, that the Tribunal opted to hear the application to dismiss our petition for abandonment because it was jurisdictional, well that’s alright. The Tribunal has ruled and we said as the court pleases but I have come out and received a telephone instruction by my client to proceed to the court of appeal and I intend to do so because the word abandonment has lost its meaning if a petition that has gone through pre hearing session in which all parties participated can now be said to have been abandoned. It then means i don’t know the meaning of abandonment again maybe at the Court of Appeal we will get a proper definition of abandonment. This is the position.
It is law that the rule of court does not create jurisdiction. The thing they were complaining about is Paragraph 18:1 of the rule guiding election petition proceedings and the Supreme Court has said that it does not raise a jurisdiction question but the Tribunal in Owerri says it does. The Supreme Court said it can even be done orally but they overruled the Supreme Court saying it cannot be done orally. There is nothing I can do but to go and complain at the Court of Appeal.
As at when due means something had been paid. Throughout that ruling did you hear him say Paragraph so so so, rule so so said money should be paid? So if I did what ought to have been done after every other thing had been done, why then do you talk about not being done as at when due. In any case, this motion was pending before we started pre hearing: Why did we start prehearing? If the application for pre hearing was incompetent, the motion to strike it out to say it was incompetent was already pending before the tribunal, why did we go through the rigours of prehearing and then adjourned for report of prehearing before it now recognised that it was an incompetent process? That is what I want to take to the Court of Appeal for determination because I can’t overrule them: I can’t even say they are wrong but I will go to a higher court to see if they are right or wrong.
The judgement is valid but I tell you, I am embarrassed by it as a Senior Lawyer in my 41 years of practice.
I still have confidence in the judiciary and I will continue to have confidence because if I hadn’t confidence I wouldn’t have approached them in the first instance”.
