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SHARTA BENJAMIN ELOHOR & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2019) LPELR-48806(CA)

In The Court of Appeal of Nigeria

On Saturday, the 9th day of November, 2019

CA/B/EPT/19/2019


Before Their Lordships

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria


Between

1. SHARTA BENJAMIN ELOHOR
2. ALL PROGRESSIVE CONGRESS (APC) - Appellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. PETER OKAGBARE UMEJITOBOR
3. PEOPLES DEMOCRATIC PARTY - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Election Petition.

FACTS:
This is an Appeal against the judgment of the National and State Houses of Assembly Election Tribunal, Delta State, sitting in Asaba in Election Petition  No. EPT/DT/SHA/18/2019.

The facts of the case are that the 1st Appellant contested for the seat of member of the Delta State House of Assembly for Udu State Constituency, under the platform of the 2nd Appellant (APC) in the Election conducted by the 1st Respondent on the 9/3/2019, with other candidates of other political parties, the 2nd Respondent who was sponsored by the 3rd Respondent (PDP) was declared by the 1st Respondent as winner of the Election. The Appellants dissatisfied with the result of the election ???led a Petition before the Tribunal 29/3/2019, pursuant to Paragraph 3 of the 1st Schedule to the Electoral Act, 2010 (as amended). Upon service all the Respondents ???led their respective replies to the Appellants' Petition.

The 1st Respondent ???led two separate Motions on Notice on 29/5/2019 and 11/6/2019 raising preliminary grounds of objections to paragraphs of the Petition on grounds of incompetence, seeking to strike out certain paragraphs thereof. In response to the 1st Respondent's motion of 29/5/2019 the Appellants orally replied on points of law but ???led a counter af???davit and a written address in respect of the motion on notice of 11/6/2019. The Tribunal heard the applications but reserved its ruling on them till the ???nal Judgment.

In proof of their case, the Appellants, as Petitioners before the Tribunal, called seven witnesses, including the 1st Appellant and tendered some exhibits. On their part, the 1st Respondent also called one witness, while the 2nd and 3rd Respondents did not call witnesses, but actively cross examined the Appellants' witnesses. At the close of their respective cases, the parties filed and exchanged their final written addresses, which were subsequently duly adopted by the counsel and on the parties adopted their final written addresses and on 11/9/2019, the Tribunal delivered its judgment, wherein it considered the two motions filed by the 1st Respondent, and struck out the affected paragraphs of the Appellants' Petition complained of and ???nally the entire Appellants' Petition for being incompetent and also dismissed same for lacking in merit. 

Dissatisfied, the Appellants appealed to the Court of Appeal.

ISSUES:
The Court determined the appeal on these issues couched as follows:

ISSUE ONE
Whether the lower Tribunal judicially and judiciously exercised her discretion in granting leave to hear the 1st Respondent in respect of objections which were not incorporated into the 1st Respondent's Reply to the Petition?

ISSUES TWO AND THREE (TAKEN TOGETHER)
Whether in View of the affidavits in support of the motions and the entire circumstances of the Petition, the Lower Tribunal was right to strike out ground 1; paragraphs 15-42 of the Petition and ground 2; paragraphs 44-53 of the Petition on the strength of the 1st Respondent's motions on notice ???led on 29/5/2019 and 11/6/2019 respectively, AND whether in view of the nature of averments in the Appellants' Petition, the Lower Tribunal did substantial justice when it struck out the Appellants' Petition on the ground that the facts averred in the Petition did not support the ground of the Petition?

ISSUE FOUR
Whether the Lower Tribunal's decision to strike out the Appellants' Petition for being academic amounted to a denial of the Appellants' right to fair hearing?

DECISION/HELD:
On the whole, the Court found no merit in the appeal and accordingly dismissed same.


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