the winner of the April 11 governorship election in Imo State.
The apex court, in a unanimous judgment by a seven-man panel of
Justices, dismissed the appeal that was lodged before it by former
Deputy Speaker of the House of Representatives and governorship
candidate of the Peoples Democratic Party, PDP, in the state, Mr.
Emeka Ihedioha.
The Supreme Court declined to set-aside two concurrent verdicts of the
Imo State Governorship Election Petition Tribunal and the Court of
Appeal which earlier declared Okorocha as winner of the gubernatorial
poll.
Ihedioha had in a petition he filed before the tribunal on May 19,
sought the nullification of Okorocha's election.
He had among other things, alleged that the election was fraught with
irregularities, insisting that officials of the Independent National
Electoral Commission, INEC, rigged the poll in favour of the All
Progressives Congress, APC.
In the petition marked EPT/IM/GOV/3/2015, which had Okorocha, APC and
36 others as respondents, Ihedioha, told the tribunal that the
election was marred by violence, harassment and intimidation of
voters.
Besides, it was his contention that the election was conducted in
substantial non-compliance to the provision of the Electoral Act.
He maintained that the election was in violation of Paragraph 28 of
INEC's guidelines for the 2015 election.
However, the tribunal, in a judgment it delivered on July 22,
dismissed the petition at the preliminary stage.
The tribunal led by Justice David Wyom held that the petition was
incompetent and lacked merit.
The panel upheld argument by Okorocha's lawyer, Mr. Niyi Akintola,
SAN, that the petition should be deemed as abandoned considering that
Ihedioha, failed to within seven days, pay mandatory N100 required to
kickstart pre-hearing session on his petition as stipulated in Section
18(1) of the Electoral Act, as amended.
The tribunal noted that the petitioner applied on June 23, but failed
to pay for the pre-hearing notice until June 3, despite the fact that
his application was within time.
According to the tribunal, "Based on the strength of the Supreme Court
authority on this issue, the validity of the process starts from when
the pre-hearing notice payment was made and not when it was applied,
this in turn means the petitioner paid out of time but applied within
time".
Meantime, dissatisfied with the decision of the tribunal, Ihedioha
took the matter before the Owerri Division of the Court of Appeal.
In a judgment it delivered on September 3, the appellate court panel
led by Justice Jimmy Bada affirmed the decision of the tribunal,
adding that Ihedioha's notice of appeal was fundamentally defective.
Not happy with the verdict, Ihedioha filed appeal before the Supreme
Court wherein he sought for an order setting aside the concurrent
decisions of the two lower courts.
In the lead judgment that was read yesterday by Justice John Inyang
Okoro, the apex court, said the lone issue to be determined in the
matter was "Whether there was service on the 2nd-36threspondents; if
not, what is the effect".
The apex court relied on Section 318 of the Constitution which deals
on "Interpretation, Citation and Commencement" of hearing, to
discountenance the appellant's argument that the registrar of the
tribunal had announced to parties that notices of appeal had been duly
served on the respondents.
According to Justice Okoro, the word "decision" under Section 318 of
the CFRN "means, in relation to a court, any determination of that
court and includes judgement decree, order, conviction, sentence or
recommendation".
"In view of the foregoing, I do not think the registrar's statement
gave any credence to service of notice of appeal. It is trite that
notice of appeal is a condition precedent, and there is nothing on
record to show that the appellant duly effected service on the
respondents.
This issue does not avail the appellant and I resolve it against the
appellant." he added.
More so, the apex court held that the statement of the registrar that
there was service on all respondents did not emanate from the chairman
of the tribunal nor was it backed by any evidence.
The Supreme Court said it also considered whether the appellant
complied with the rules of the Court of Appeal on the issue of filing
of notice of appeal.
"Where a defendant is not aware of a pending litigation against the
defendant, proceeding held in respect of the issue is nullity.
"In this instant case, there is evidence that the 2nd-36 respondents
were not served with appeal notices and there is no evidence from the
Court of Appeal showing that an order of substituted service was made.
"Failure to serve notice of appeal on the respondents offends the
provision of Order 2 Rule 3 of the Court of Appeal and non filing of
notice of appeal is a flagrant abuse of Order 2 Rule 3, and thereby
renders it incompetent", the Supreme Court held.
The court further held that the appellant instead of serving the
proper parties, dumped the notice of appeal at the office of the APC
on July 28, 2015, "whereas there was no order for substituted
service".
"Let me categorically state here that the court is not a slave to
rules; non compliance with rules guiding the service of notice of
appeal and other processes is incurably defective. I agree that not
every non compliance with the rules vitiates a proceeding, but service
of processes is important and fundamental; failure to do this offends
Section 36 (1) of the Constitution" Justice Okoro said.
"Failure to serve the respondents is a breach of fair hearing;
confusion of the appellant arises from their erroneous belief that3-36
respondents are not part of the case. Appellant made a serious blunder
by effecting service of its originating summon with levity.
"Appeal was not commenced by due process of the law; failure to put
the names and addresses of respondents on the notice of appeal was
fatal to the case. Law is trite that notice of appeal is its
foundation. There is no merit in this appeal.
"Judgment of the Court of Appeal Owerri is accordingly upheld" Justice
Okoro added.
-Vanguard
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