EZE SUNDAY V. HON. MICHAEL ONYEZE & ORS.
(2010)LCN/3996(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of September, 2010
CA/E/EPT/3/2008
RATIO
GROUND OF APPEAL: WHETHER FOR A GROUND OF APPEAL TO BE COMPETENT IT MUST ARISE FROM THE JUDGMENT OR DECISION APPEALED AGAINST
Now the law is that for a ground of appeal to be competent it must arise from the Judgment or decision appealed against. In NGIGE V. OBI (2006) 14JMWLR (PT. 999) 1 AT 240, this Court held thus: “A ground of appeal, to be competent, must arise from or relate to the decision of the lower Court appealed against. Where it does not, the ground of appeal, the Issue for determination formulated from it, and all argument on it must be struck out by the Court.” PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A
INTERPRETATION OF STATUTE: EFFECT OF AN ELECTION PETITION THAT DID NOT COMPLY WITH THE MANDATORY REQUIREMENT OF PARAGRAPH 4(1)(C) OF THE FIRST SCHEDULE OF THE ELECTORAL ACT, 2006
The law is settled that any petition that did not comply with the Mandatory requirement of paragraph 4(1)(c) of the First Schedule of the Electoral Act, 2006 is fundamentally defective and therefore not competent to proceed to trial. In interpreting the provisions of paragraph 4(1)(c) of the 1st schedule of the Electoral Act, 2002, which is impari materia with paragraph 4(1)(c) of the 1st Schedule to Electoral Act 2006, this Court in CHIEF UGWU UJAM V. CHIEF KEN NNAMANI 2006 2 EPR 155 at 171 – 111 through Mohammed, JCA as he then was stated thus:- “It is very important to note that an election petition like that of the Appellant , predicated on the ground specified in paragraph (C) of Sub-Section (1) of Section 134 of the Electoral Act, 2002 quoted earlier in this Judgment, can only be determined effectively by a trial Tribunal where the petition complies with the provisions of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2002. In other words, an election petition based on the only complaint that the Respondent who won the election was not duly elected by a majority of lawful Votes cast at the election under the Electoral Act, 2002 in which the petitioner failed to plead the scores of the Candidates at the election, the petition is fundamentally defective and therefore not competent to proceed to hearing. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A
EFFECT OF NOT STATING THE SCORES OF ALL CANDIDATES AT THE ELECTION WHERE THE PETITIONER CLAIMS THAT THE RESPONDENT WAS NOT DULY ELECTED BY A MAJORITY OF THE LAWFUL VOTES CAST AT THE SAID ELECTION.
It is very clear and it is my finding that the Appellant who was the Petitioner before the trial Tribunal and who is contending to have been elected by a majority of lawful votes cast at the election failed to state the scores of the Candidates at the election as declared by INEC.
By law the stating of scores of all Candidates at the election is a mandatory requirement of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2006 which non compliance with is Fatal and renders the petition incompetent, accordingly since there is clear non-compliance with the provisions of paragraph4(1)(c) of the 1st Schedule to the Electoral Act 2006… PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
EZE SUNDAY Appellant(s)
AND
1. HON. MICHAEL ONYEZE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. RESIDENT ELECTORAL COMMISSION & 115 OTHERS. Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A (Delivering the Leading Judgement): This Appeal is against the Ruling of the Governorship and Legislative Houses election Tribunal Enugu delivered on 1st November 2007 wherein it struck out the Petitioner/Appellant’s petition.
The Appellant who was the Petitioner at the lower court filed a petition at the lower Tribunal on 28th day of May 2007 challenging the declaration of the 1st Respondent as the winner of the House of assembly Election conducted by the 2nd Respondent.
The 1st Respondent was the candidate of the Peoples Democratic Party for the 14th April 2007 election into the Igbo Eze North Constituency 1 Seat of Enugu State House of Assembly. The 1st Respondent contested the said election with six other candidates of (sic) other Political Parties including the Petitioner/Appellant. The 2nd Respondent, the Independent National Electoral Commission (INEC) conducted the said election, through its officers and other adhoc staff.
At the conclusion of the said election on the night of 14th April 2007, the result was collated and announced by Ugwu Amechi, the Electoral/Returning Officer for Igbo-Eze North Local Government Constituency at the said elections, who also issued a certificate of declaration of result in Form EC.8E(1) dated 14th April 2007 to the 1st Respondent having been duly elected by the majority of lawful votes cast at the election.
The Petitioner/Appellant on 28th day of May 2007 filed petition No. NAGL/EPT/EN/SH/53/07 at the Governorship and Legislative Houses Election Tribunal, Enugu challenging the declaration of the 1st Respondent as the winner by the 2nd Respondent and contending that the 1st Respondent did not obtain the highest number of votes cast in the Constituency. He asked to be declared validly elected or returned, having polled the highest number of lawful votes cast at the election. In the alternative, the Petitioner moved a prayer that the election be nullified on the ground that it was not conducted substantially in accordance with the provisions of the Electoral Act 2006.
The 1st Respondent filed a reply as well as the 2nd set of Respondents. The 1st Respondent went further on 4th August 2007 to file a Notice of Preliminary Objection seeking a determination of the following points of law amongst others:
1. Whether the Petition is competent, having regard to the failure of the Petitioner/Respondent to file the same within the 30 days permitted by law?
2. Whether the Petition is competent, having regard to the failure of the Petitioner/Respondent to state the scores recorded by each candidate at the said election, as required by the rules?
In reaction to the 1st Respondent’s Notice of Preliminary Objection, the Petitioner on the 17th August 2007 filed a Motion to amend his petition. The 1st Respondent’s application to strike out the petition as incompetent for being statute barred and failure to state the names and scores of all the candidates at the election was indicated in paragraph 14(b) of the 1st Respondent’s Pre-hearing information sheet dated 24th August 2007 and filed on 4th October 2007.
The 2nd set of Respondents associated themselves with the 1st Respondent’s Preliminary Objection for striking out the Petition and on 1st November 2007, the Tribunal in its ruling upheld the Preliminary objection of the 1st Respondent and accordingly struck out the petition for being incompetent. This appeal is against that decision.
The Appeal was taken on the 24th June 2010 and in line with the Rules and Practice of this Court the Parties duly filed their respective briefs of Argument.
Counsel to the 1st Respondent Mr. P.M.B. Onyia informed the Court that the 1st Respondent’s brief of argument is dated and filed on 16/4/08. Counsel adopted the brief, rely on same and urge the Court to dismiss the appeal. Counsel informed the Court that a Notice of Preliminary Objection was incorporated in the brief of Argument and the submission thereto, Counsel moved the Notice of Preliminary Objection, adopted the submissions thereto and urged the Court to dismiss the Appeal.
Counsel to the 2nd to 115th Respondents Mr. W.C. Ugwuozor informed the Court that the 2nd to 115th Respondents’ brief of Argument was dated 16/4/08 and filed on 17/4/08, that the brief of Argument contained a Notice of Preliminary Objection, Counsel adopted the brief of Argument, the Notice of Preliminary Objection contained in the brief and the submissions thereto and urge the Court to dismiss the Appeal.
The Appellant despite service on him of the hearing Notice for the hearing of the appeal was not in Court to argue the Appeal. By the provisions of Order 17 Rule 9(4) of the Rules of the Court of Appeal the Appellant is deemed to have argued his appeal.
From the nine grounds of appeal, the Appellant formulated two Issues for determination, the Issues are:-
1. Whether the Tribunal was right in rejecting/refusing the Petitioner’s application for amendment of his petition.
2. Whether the Tribunal was right in upholding the Preliminary objection raised by the Respondents having regard to the state of the pleadings and other processes already filed by the Parties before the Tribunal.
The 1st Respondent in his brief of Argument formulated two issues for determination, the Issues are:-
i. Whether the Petitioner/Appellant’s petition was statute barred and therefore robbed the Tribunal the Jurisdiction to entertain same.
ii. Whether the Honourable Tribunal was right in striking out the Petition on the ground of non-compliance with paragraph 4(1)(c) of the First Schedule to the Electoral Act 2006.
The 2nd to 115th Respondents submitted two Issues for determination, the Issues are:
1. Whether the Petitioner’s/Appellant’s petition was statute barred and therefore robbed the Tribunal the Jurisdiction to entertain same.
2. Whether the Honourable Tribunal was right in striking out the petition on the ground of non compliance with paragraph 4(1)(c) of the first Schedule to the Electoral Act 2006.
The two set of Respondents, the 1st Respondent, and the 2nd to 115 Respondents incorporated Notice of Preliminary Objection in their briefs of argument. The 1st Respondent’s Notice of Preliminary objection and the submissions thereto are contained at pages 5 to 8 of the brief of Argument while the 2nd to 115th Respondents’ Notice and brief of Argument and the submissions thereto are contained at pages 4 to 6 of the brief of Argument.
Both the two set of Respondents Notices of Preliminary Objections and the Submissions thereto are couched in the same manner and word for word as such for the purpose of this Judgment, they would be treated as one.
The 1st Respondent and the 2nd to 115 Respondents Notice of Preliminary Objection read thus:-
NOTICE OF PRELIMINARY OBJECTION TAKE NOTICE that at hearing of this appeal the 1st Respondent and the 2nd to 115th Respondents shall and hereby raise Preliminary objection to the competence of the following Grounds of Appeal.
1. GROUNDS 1, 2 and 8 of the Notice of Appeal are incompetent and should be struck out
2. GROUND 7 should be struck out.
3. Issues No. 1 was not formulated from any of the Grounds of Appeal and should be struck out. Grounds of Objection.
1. Grounds 1 & 2 of the Notice of Appeal do not arise from the ruling of the Tribunal.
2. Ground 7 of the Grounds of Appeal should be deemed as abandoned as it is not covered by any of the Issues the Appellant puts forward for determination.
3. Ground 8 of the Notice of Appeal is vague, inconclusive and couched in general terms that it discloses no reasonable ground of Appeal.
It is submitted for the 1st and 2nd to 115th Respondents that the law is that for a ground of appeal to be competent, it must arise from the Judgment or decision appealed, reference made to NGIGE V. OBI (2006) 14 NWLR (PT. 999) 1 AT 240; AWUSE V. ODILI 2005) 16 NWLR (PT. 952) 416.
That Grounds 1 and 2 of the Notice of Appeal are found at pages 134 to 135 of the Record. Shown of their particulars they read as follows:-
(1) The Election Tribunal erred in law in failing to consider the effect of paragraph 49 (2) and (5) of the First Schedule to the Electoral Act, 2006 vis-a-vis the Preliminary Objection filed on 16/8/07.
(2) The Tribunal erred in law in allowing the 1st Respondent’s Notice of Preliminary Objection filed on 16/8/07 notwithstanding that the same was barred (sic) by paragraph 49(2) and (5) of the first Schedule to the Electoral Act 2006.
It is argued that these two grounds of appeal are at large as neither of them relates to or challenges the validity of any ratio decidendi in the decision of the Tribunal Court is therefore urged to strike out grounds 1 and 2 of the Notice of Appeal as being incompetent.
On Ground 7, the 1st and 2nd to 115th Respondents state that Ground 7 of the Notice of Appeal reads:
“(7) Error in law
The Tribunal erred in law in not determining the application for amendment filed on 17/807 not withstanding that same was moved by the Petitioner’s Counsel.
PARTICULARS OF ERROR
(a) It is trite law that the Court should determine every application or Issues raised before it.” That the Petitioner/Appellant formulated two Issues for determination in this appeal none of which covers this ground of appeal. Furthermore, no argument has been proffered in the Appellant’s brief of Argument in support of this ground of appeal. It is submitted for the 1st and 2nd to 115th Respondents that this ground of appeal is therefore deemed abandoned and should be struck out reference made to IMAM V. SHERIFF (2005) 4 NWLR (pt. 914) 80.
On ground 8.
In respect of Ground 8 of the Notice of Appeal. It is contended for the 1st and 2nd to 115th Respondents that this ground of Appeal is vague, inconclusive and couched in general terms that it discloses no reasonable ground of Appeal. That a ground of Appeal is said to be vague where it is couched in a manner which does not provide any explicit standard for its being understood, or when what it states is so uncertain that it is not capable of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or is not particularized or when the particulars are clearly irrelevant, reference made to IMAM V. SHERRIFF (SUPRA).
That Ground 8 of the Notice of Appeal reads:
“ERROR IN LAW
The Tribunal erred in law in clinging to technicalities instead of allowing the petition to be determined on the merit.
PARTICULARS OF ERROR
(a) The Petitioner averred that in the petition that he was the winner of April, 14 2007 House of Assembly Election in Igbo-Eze North Constituency 1 of Enugu State and not the 1st Respondent declared by the 2nd and 3rd Respondents.”
It is contended for the Respondents that it is not explicit from Ground 8 as set out above the error in the decision of which the Petitioner/Appellant is complaining against. Further more the particulars of the ground is clearly irrelevant, that ground 8 of the Notice of Appeal is vague and the Court is urged to strike it out.
INCOMPETENCE OF THE APPELLANT’S ISSUE NO. 1 That Issue No. 1 formulated by the Appellant reads:
“Whether the Tribunal was right in rejecting/refusing the Petitioner’s application for amendment of his petition.”
It is submitted for the Respondents that under this issue, the Petitioner/Appellant in the Appellant’s brief of argument argued that the Honourable Tribunal was not right in refusing the application for amendment by the Petitioner on the ground that it was intended to over reach the Preliminary Objections raised by the Respondents.
That the ruling of the Tribunal, the subject matter of this appeal is at pages 128 – 130 of the Record.
It is submitted that nowhere in the ruling did the Tribunal consider any application for amendment filed by the Petitioner/Appellant. Also nowhere in the said ruling did the Tribunal hold that the application for amendment by the Petitioner was intended to over reach the Preliminary Objections raised by the Respondents.
That Issue No. 1 was not distilled from any of the grounds of Appeal or any of the part of the Tribunal’s Ruling. Counsel to the Respondents contends that Issue No. 1 is therefore incompetent and urged that it be struck out.
The 1st and the 2nd to 115th Respondents objects to Grounds 1 and 2 of Appellant’s Notice of Appeal on the ground they do not arise from the ruling of the Tribunal.
Now the law is that for a ground of appeal to be competent it must arise from the Judgment or decision appealed against.
In NGIGE V. OBI (2006) 14 NWLR (PT. 999) 1 AT 240, this Court held thus:
“A ground of appeal, to be competent, must arise from or relate to the decision of the lower Court appealed against. Where it does not, the ground of appeal, the Issue for determination formulated from it, and all argument on it must be struck out by the Court. In the instant case, the Appellant’s Ground of Appeal relating to non-joinder of Policemen, Soldiers and other security agents did not arise from the Judgment of the Tribunal, consequently, the ground of Appeal, the Issue for determination formulated from it and the argument proffered in respect of the issue ought to be struck out by the Court. A.G. OYO V. FAIRLAKES HOTEL (1988) 5 NWLR (pt. 92) 1; OGUNBIYI V. ISHOLA (1996) 6 NWLR (pt. 452) 12; ALUBANKDI V. A.G. FEDERATION (2002) 13 NWLR (pt. 796) 338; OWENA BANK PLC V. OLATUNJI (2002) 13 NWLR (pt. 781) 259 referred to.”
In the instant Appeal Grounds 1 and 2 of the Notice of Appeal are found at pages 134 to 135 of the Record of Proceedings, without their particulars they read as follows:
1. The Election Tribunal erred in law in failing to consider the effect of paragraph 49(2) and (5) of the First Schedule to the Electoral Act, 2006 vis-a-vis filed on 16/8/07.
2. The Tribunal erred in law in allowing the 1st Respondent’s Notice of Preliminary Objection filed on 16/8/07 notwithstanding that same was bared (sic) by paragraph 49(2) and (5) of the First Schedule to the Electoral Act, 2006.
The Ruling of the Tribunal is at pages 128 to 130 of the Record.
I have carefully read the Ruling and nowhere in the Ruling was anything relating to grounds 1 and 2 of the Notice of Appeal canvassed, put in another way Grounds 1 and 2 do not relate to the Ruling whatsoever. These two Grounds of Appeal are at large as neither of them relates to or challenges the validity of any ratio decidendi in the decision of the Tribunal, it is therefore my findings that grounds 1 and 2 of the Grounds of the Notice of Appeal are incompetent and accordingly are struck out.
The Respondents also object to Ground 7 of the Notice of appeal. The Ground is stated thus:
7-ERROR IN LAW
The Tribunal erred in law in not determining the application for amendment filed on 17/8/07 notwithstanding that same was moved by the Petitioner’s Counsel.
PARTICULARS OF ERROR
(a) It is trite law that the Court should determine every application or issues raised before it.
I have perused the Ruling of the Tribunal in its entirety and it is my findings that this Ground of Appeal does not relate or challenges the validity of any ratio decidendi in the decision of the Tribunal accordingly Ground 7 of the Notice of appeal is struck out for being incompetent.
The 1st and 2nd to 115th Respondents also took objection to the competence of Ground 8 of the Notice of Appeal and ground 8 of the Notice of Appeal reads thus:-
8 ERROR IN LAW
The Tribunal erred in law in clinging to technicalities instead of allowing the petition to be determined on merit.
PARTICULARS OF ERROR
(a) The Petitioner averred that in the petition that he was the winner of April, 14 2007 House of Assembly Election in Igbo-Eze North Constituency 1 of Enugu State and not the 1st Respondent.
From the Ruling of the Tribunal at pages 128 to 130 of the Record, it is not explicit from Ground 8 as set out above the error in the decision of which the Appellant is complaining against, besides, the particulars of the ground are grossly irrelevant when related to the Ruling of the Tribunal this ground is also incompetent and is struck out.
The 1st and 2nd to 115th Respondents challenged the competence of the Appellant’s Issue No. 1, the Issue is stated thus:
“Whether the Tribunal was right in rejecting/refusing the petitioner’s application for amendment of his petition.”
By the Ruling of the Tribunal, the subject matter of this appeal which is at pages 128 to 130 of the Record of Proceeding, nowhere in the said ruling did the Tribunal consider any application for amendment filed by the Petitioner/Appellant. Also nowhere in the said ruling did the Tribunal hold that the application for amendment by the Petitioner was intended to over reach the Preliminary objections raised by the Respondents. Besides, Issue No. 1 is not distilled from any of the grounds of Appeal or any part of the Tribunal’s Ruling, it is therefore my findings that Issue No. 1 is incompetent and is accordingly struck out. On the whole the Preliminary Objection by the 1st and 2nd to 115th Respondents succeeds and it is hereby sustained.
With the striking out of grounds 1, 2, 7 and 8 of the Grounds of Appeal and Issue No. 1 of the Appellant, what remains to sustain the appeal is Issue No. 2 formulated by the Appellant and grounds, 3, 4, 5, 6 and 9 of the grounds of Appeal.
Issue No. 2 state as follows:-
“Whether the Tribunal was right in upholding the Preliminary Objections raised by the Respondents having regard to the state of the pleadings and other processes already filed by the Parties before the Tribunal.”
It is obvious that this Issue is not distilled from the remaining surviving grounds of Appeal.
I have carefully read the Ruling of the Tribunal at pages 128 to 130 of the Record of Proceeding. Certainly, the Issue did not arise from any ratio decidendi in the Ruling of the Tribunal accordingly this Issue is struck out. From the remaining grounds of Appeal which are Grounds 3, 4, 5, 6 and 9, the following single Issue can be formulated and will adequately deal with the Appeal, the Issue is:-
“Whether the Honourable Tribunal was right in striking out the Petition on the ground of non-compliance with paragraph 4(1)(c) of the First Schedule to the Electoral Act 2006?”
In its Ruling at pages 128 to 130 of the Record of Proceedings, the Tribunal states thus:-
“The two sets of Respondents as indicated in the Reply and Pre information and notice of Preliminary Objection, the subject of this ruling contained that the petition is incompetent on the ground that the Petitioners failed to state the scores of all the candidates at the election. Although affidavit evidence is filed by both sides, to our mind an issue which can be deciphered on the face of the petition does not require much of affidavit evidence.
On the face of the petition before us, it is averred that not less than six Candidates contested the election. See paragraph 3 and 4. He did not state the scores of the Candidates, but stated their parties.
But quite intriguely, he went ahead to allot some scores to himself and the 1st Respondent in paragraph 23 all to show that he won the election. He even was kind enough to allot scores to other Candidates whom he mentioned.
Paragraph 4(1)(b) of the 1st Schedule to the Electoral Act, 2006 provides inter-alia that an election petition shall state the scores of the Candidates and the person returned as the winner. The Petitioner who is praying to be declared the winner has a duty to state all the scores of the Candidates, without which it is impossible to know all the scores in the election.
This Tribunal has consistently held that where a Petitioner fails to comply with the said provisions, such petition is incurably defective. We relied on the Court of Appeal decisions in a plethora of cases in similar provisions. Among them are:-
MAGAJI V. BALAT (2004) 8 NWLR (pt. 876) 449 at 473; KHALIL V. YAR’ADUA (2004) 1 EPR 146 AND AWUSE V. ODILI (2004) 8 NWLR (pt. 876) at 512.
In line with the above authorities among others, we hereby are bound by them on the principle of stare decis.
Accordingly we find merit in the objection. The petition is hereby found to be incurably defective, it is hereby struck out.”
In nutshell the complaint in the Issue formulated for determination as can be deducted from the Ruling of the Tribunal at pages 128 to 130 of the Record of Proceedings is that the petition of the Appellant is incurable defective for non-compliance with the provisions of paragraph 4(1)(c) of the First Schedule of the Electoral Act 2006. The paragraph provides as follows:-
4(1) An election petition under this Act shall
(a) – –
(b) – –
(c) state the holding of the holding of the election, the scores of the Candidates and the person returned as the winner of the election; and
(d) – – – –
And paragraph 4(6) of the said First Schedule then provides thus:-
“An election petition which does not conform with sub- paragraph (1) of this paragraph or any provision of that sub-paragraph is defective and may be struck out by the Tribunal.”
The petition of the Appellant is at pages 1 – 7 of the Record of Proceedings and nowhere in the petition did the appellant state the holding of the election, the scores of the Candidates and the Person returned as the winner of the election as mandatorily required by the provisions of paragraph 4(1 )(c) of the First Schedule of the Electoral Act, 2006.
The appellant in paragraphs 2, 4, 23 and 24 of his petition states thus:-
2. Your Petitioner states that the election was held on the April 14th 2007 when the Petitioner and Mr. Mike Onyeze the 1st Respondent, were Candidates and on April, 14 2007, the 2nd and 3rd Respondents declared that the First Respondent, Hon. Mr. Mike Onyeze of Peoples Democratic Party (PDP) won the election without stating his figure and the figure of other contestants. The results were neither posted at the website nor the board of the Commission.
4. The other Candidates for the said election were Mr. Eze Romaus of LP, Eke Fabian C of ANPP, Agashi Hillary of AC, Hon. Michael Onyeze of PDP, Joel Odoh E. of UNPP.
23. Your Petitioner claims that he had the highest number of votes cast at the election that is to say 20,291 votes while 1st Respondent only obtained 3,973
24. Your petitioner received a total of 20,291 valid votes against the 3,973 votes received by the 1st Respondent and ought to have been declared the winner of the said election.
The above paragraphs 2, 4, 23 and 24 of the Petition does not constitute the requirement compulsorily required by paragraph 4(1)(c) of the First Schedule of the Electoral Act, 2006.
The law is settled that any petition that did not comply with the Mandatory requirement of paragraph 4(1)(c) of the First Schedule of the Electoral Act, 2006 is fundamentally defective and therefore not competent to proceed to trial.
In interpreting the provisions of paragraph 4(1)(c) of the 1st schedule of the Electoral Act, 2002, which is impari materia with paragraph 4(1)(c) of the 1st Schedule to Electoral Act 2006, this Court in CHIEF UGWU UJAM V. CHIEF KEN NNAMANI 2006 2 EPR 155 at 171 – 111 through Mohammed, JCA as he then was stated thus:-
“It is very important to note that an election petition like that of the Appellant , predicated on the ground specified in paragraph (C) of Sub-Section (1) of Section 134 of the Electoral Act, 2002 quoted earlier in this Judgment, can only be determined effectively by a trial Tribunal where the petition complies with the provisions of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2002. In other words, an election petition based on the only complaint that the Respondent who won the election was not duly elected by a majority of lawful Votes cast at the election under the Electoral Act, 2002 in which the petitioner failed to plead the scores of the Candidates at the election, the petition is fundamentally defective and therefore not competent to proceed to hearing. This is because without pleading the scores of the Candidates, at the election the foundation upon which the ground of the petition is founded namely that the Respondent was not elected by a majority of lawful votes cast at the election under section 134(1)(c) of the ‘Electoral Act, 2006 would be completely absent. In this situation, the hearing of the petition in the absence of scores of the Candidates becomes a futile exercise because of the absence of vital pleaded facts upon which evidence could be led to support the relief being sought.”
At this stage, it is very necessary to point out that the Petitioner/Appellant in paragraph 3 of the petition claimed that the 1st Respondent was not duly elected by a majority of the lawful votes cast at the said election.
It is very clear and it is my finding that the Appellant who was the Petitioner before the trial Tribunal and who is contending to have been elected by a majority of lawful votes cast at the election failed to state the scores of the Candidates at the election as declared by INEC.
By law the stating of scores of all Candidates at the election is a mandatory requirement of paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2006 which non compliance with is Fatal and renders the petition incompetent, accordingly since there is clear non-compliance with the provisions of paragraph4(1)(c) of the 1st Schedule to the Electoral Act 2006, the sole Issue formulated for determination is resolved against the Appellant in favour of the Respondents.
On the whole I hold that the appeal is totally lacking in merit and ought to be dismissed. Accordingly the appeal is hereby dismissed.
The Ruling of trial Tribunal delivered on 1st November, 2007 is affirmed. N30,000.00 costs is awarded to each set of Respondents.
HELEN MORONKEJJI OGUNWUMIJU, J.C.A : I have read the judgment just delivered by my learned brother ABUBAKAR JEGA ABDUL-KADIR JCA and I agree with the conclusions reached therein and the order as to costs.
MOJEED ADEKUNLE OWOADE, J.C.A : I read in advance the judgment just delivered by my learned brother, Jega Abdulkadir, JCA.
I agree with the conclusion reached therein. I also abide with the consequential orders.
Appearances
Appellant not in Court at the hearingFor Appellant
AND
Mr. P.M.B. Onyia;
Mr. P.U. Ogbadu
Mr. W.C. Ugwuozor;
Mr. J.O. OkorFor Respondent
