Agu Gerald V. Marcel Njoeze & Ors (2008)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO O. OMAGE, J.C.A

In this appeal, the petitioner a candidate in the Accord party for election into the State House of Assembly election for Udi North Constituency Enugu, was dissatisfied with result of the election into the said Enugu State House of Assembly for Udi North Constituency which held on 28th May, 2007; The petitioner approached the Election Tribunal in the National Assembly Governorship and Legislative Houses Election Tribunal. The grounds upon which the petition was filed are:

(1) That the 1st respondent did not obtain the highest number of votes cast in the constituency.

(2) That the Petitioner be declared validly elected or returned having polled the highest number of lawful votes cast at the election. In the alternative, the Petitioner asks that the election be nullified on the ground that it was not conducted substantially in accordance with the provision of the electoral Act 2006 as the case may be”. The petition was filed on 28th May, 2007.

The first Respondent was served with the petition and he entered a conditional appearance after which he filed a motion in the pre-hearing procedure to seek an order of court to strike out the petition. The ground upon which the 1st Respondent sought an Order of the Tribunal to strike out the petition inter alia is non compliance with provisions of Section 4(1) of the first schedule to the Electoral Act 2006.

The 2nd Respondent also filed a separate motion on 5th September, 2007 and urged the Court to dismiss the petition for non compliance with the mandatory provision of paragraph 4(1)(c) of his 1st schedule to the Electoral Act 2006. The purpose of the two motions is to raise preliminary objection to the hearing of the petition because it failed to state the scores or votes filed at the election. The Tribunal heard the two sets of motions together and came to the conclusion that the petition is incompetent for failure to comply with the mandatory provision of Section 4 (1)c of the 1st schedule to the Electoral Act 2006, and struck out the petition on 2/ /2007. The Petitioner was dissatisfied with the decision of the Tribunal and has filed this Appeal. In his brief the Appellant deposed that on 28th May, 2007 when the ejection took place, the Electoral Officer did not arrive at the venue of the election on time, and when the election was over, the Electoral Officer did not post on the board, votes scored by the candidates, and did not do so until he was defending his claim in court below said he gathered however that he the Appellant for the Accord Party had won the election with votes figure of 7,176 and that the 1st Respondent scored 865 votes in his paragraphs 23 and 24 of the petition. The Petitioner averred that it was this delay of INEC in releasing the results which did not make him to record the scores of each candidate in the election in this petition. The Petitioner recorded in answer to the preliminary objection raised by the Respondent that, on a dispassionate view of such an omission, the Tribunal should not have resulted in the striking out of the petition. The rules, he said in the 1st schedule does not enable him to obtain the result through any other source, and submitted that in the circumstance there was substantial compliance with this requirements of paragraph 4(1)(c) to the 1st schedule of the Electoral Act. The Petitioner cited Awuse v. Odili 2004 8 NWLR pt 481. The Petitioner submitted that since there was an alternative prayer in his petition for nullification of the election the Tribunal could have preferred that option; and not strike out his petition.

In its ruling on the competence of the petition, the Tribunal held “that it is impossible for us to determine the petition based on the said principal relief when the scores of all the candidates who participated at the said election. The issue of competence of this petition touches on the jurisdiction of the Tribunal.”

The Tribunal ruled that following the decision in Buhari v. Obasanjo 2003, 17 NWLR pt. 850,23 at 475 that the provision of par. 491(2) (3) and (5) of the 1st schedule to the Electoral Act 2006 cannot be said to apply to prevent the 1st Respondent and other Respondents from raising the Preliminary Objection since the issue of Jurisdiction is involved. For these reasons, this petition was struck out.

I have read the brief of the Appellant and of the 2nd – 31st Respondents in this Appeal, I can not find in the file any brief on appeal filed by the 1st Respondent. The brief of the 2nd – 317 Respondents made sufficient references to the expressed views of the concurrence of the 1st Respondent and those of 2nd – 31st Respondents. I am in agreement with the decision of the Tribunal when it wrote about the incompetence of the petition which / robs the Tribunal of jurisdiction in the case before it. It is a provision of paragraph 4(1)(c) to the 1st schedule to the Electoral Act 2006, that in an election petition tendered for adjudication, the Petitioner must state the scores and the votes scored by the candidate declared the winner. The petition that fails to so state should be struck out. The provision of the paragraph does not excuse any petition for failure to so declare the result. The Appellant has explained and submitted that the failure of the INEC to supply the scores was responsible for his failure to include and state the scores of the person and the party duly declared to have won the election yet the Appellant averred in his petition that he scored the highest votes from his calculation at the ward level.

It cannot escape the notice of a diligent observer that the Petitioner submitted his petition before the preliminary objection was filed in a motion dated 28th May, 2007. Yet the 1st Respondent recorded he won in his preliminary objection which votes according to the Petitioner was not released by INEC, up to the time of the hearing of the objection in the Tribunal. The insertion in the petition of the score declared by INEC is a necessary part the petition and it is mandatory to state it in the petition. It is the very foundation on which the petition is founded. See Chief U. Viam v. Chief Ken Nnamani 2006 2 EPR 155 a decision made on section 134 of the Electoral Act which is in pari materia with paragraph 412 of the Electoral Act 2007 and it is clear that no amendment of the petition will be allowed. Even if the issue of failure to state the necessary provisions of the law omitted there is nothing preventing the Respondent from making it at any stage of the proceedings. See Ngwu v. Mba 1999 3 NWLR pt. 595 and Buchi v. Italadu 2004 1 NWLR (Pt. 854) 2007 with the foregoing, the Tribunal had no option but to comply with the rules of the Electoral Act.

In his first submission the Appellant has urged that there is an alternative prayer on his petition to nullify the election as in Owuru v. INEC 1999 10 NWLR pt. 622 p. 21 at 212.

The alternative prayer brings to mind the story in the Holy Bible in which King Solomon showed his sagacity by giving to the woman who volunteered that her child be kept alive and not sliced into two as demanded by her opponent who preferred the death of the child when the said King Solomon should slice the child into two, and give the half body to each claimant. The latest event in the prayer of the Appellant simply displays what Voltaire the French Historian wrote in the 12 Century that ‘man never learns from history’. The appeal fails, it is dismissed.

There will be costs to the 2nd – 103 Defendants of N10,000.00.

Other Citations: (2008)LCN/2956(CA)