... Files 10 Grounds Of Appeal, Seeks Invocation Of Section 16 Of Court Of Appeal Act
Ihedioha has also asked the Court of Appeal to invoke Section 16 of the Court of Appeal Act to determine two pending motions, which the Tribunal sadly abandoned.
|Rt Hon Emeka Ihedioha|
In a ten-ground of appeal contained in their Notice of Appeal dated July 23, 2015, and filed at the Owerri Division of the Court of Appeal, by his lead Counsel, Chief Mike Ahamba, SAN, he contended that the Tribunal erred in law when it subjected the decision of the Supreme Court to its whims. According to Chief Ahamba, "the Governorship Election Petition Tribunal misdirected itself in discarding the decision of the Supreme Court (Per Chukwuma Eneh JSC) in Abubakar V Nasamu (No. 2) (2012) 17 NWLR (pt 1330) 523, that application for pre-hearing notice could be oral, relied on a Court of Appeal decision in Gabi V Dahimi (2015) 12 EPR 239 at 315 to reverse the Supreme Court decision”.
Ahamba averred that “the decision of the Supreme Court is not subject to discretionary acceptance by the Tribunal but is firmly binding”, adding that “letters to registrars in all judicial proceedings though filed in the case file are never assessed or paid for".
He said the “misconstruction of the dictum by Chukwuma-Eneh, Justice of the Supreme Court, JSC, occasioned a miscarriage of Justice”.
In contending that a letter applying for pre-hearing notice is not a judicial process but administrative, Ahamba drew the attention of the Appellate Court to the judgment of Justice Walter Onnoghen of the Supreme Court in Ugba Vs PDP (2013) 4 NWLR (pt. 1343) 486 at 492, positing that the “Tribunal amongst others, failed to take judicial notice of many letters to Registrars of Courts and Tribunals which ignite judicial processes but which are not assessed and paid for”.
He said that “these misconstructions of the law induced the decision of the Governorship Election Petition Tribunal that payment of a fee for the application letter was mandatory”.
The learned SAN further argued that “there is no provision in the schedule of fees payable under the Electoral Act or Federal High Court (Civil Procedure) Rules for pre-hearing notice application", stressing that "the APC and Rochas Okorocha did not show any provision in the Electoral Act or Federal High Court Rule or practice direction for pre-hearing notice application fee”. He stated that “the Tribunal deliberately ignored the express words of the Supreme Court of Nigeria cited at the tribunal sitting that "application for pre-hearing notice under paragraph 18 (1) of the First Schedule of the Electoral Act is not jurisdictional and thereby occasioned a miscarriage of Justice”.
Ahamba, in praying the Court of Appeal to set aside the decision of the petition tribunal dismissing PDP and Ihedioha’s governorship petition, as well as restore the petition to the cause list for hearing on merit, also demanded that the Court of Appeal invokes its powers under Section 16 of the Court of Appeal Act to determine the two undetermined motions, which sought to aside Governor Okorocha and APC’s joint reply and their motion to amend the said reply filed on June 26, 2015 and July 7, 2015 respectively.
Chief Ahamba then prayed that on determination of these two pending motions and setting aside of the erroneous decision of the petition Tribunal, which occasioned a miscarriage of justice, the Court of Appeal should order the composition of a fresh Tribunal to hear the petition on merit.