Barrtster Emeka Wogu V. Enwereuzo Eze a. A.k.a. Anthony Enwereuzo & Ors (1999)
LawGlobal-Hub Lead Judgment Report
ABOYI JOHN IKONGBEH, J.C.A.
This is an appeal by the petitioner before the Imo/Abia States National Assembly Election Tribunal against the Tribunal’s pre-mature termination of his petition. He lost the election into the House of Representatives to the 1st respondent. Dissatisfied with the results as declared by I. N. E. C., he filed his petition on the following two grounds:
“1. That the 1st Respondent whose election is hereby questioned was at the time of the election not qualified to or was disqualified from contesting the said election.
- That the election was voided by corrupt practices and offences against the provisions of the enabling statue and by non compliance with the provisions of the enabling statute, which corrupt practices, offences and non compliance were orchestrated by then 1st respondent and condoned by the 2nd and 3rd respondents.”
The facts supporting the two grounds are set out in Paragraphs 7(1) and 7(2) thus:
“1. DISQUALIFICATION/NON QUALIFICATION
i. The 1st Respondent using his proper name Anthony Enwereuzor registered as a voter at Ama Asaa Ntigha Ward, Isiala Ngwa North LGA and at Aba Town Hall Ward Aba South LGA through proxies. The respondents are given notice to produce the original copies of the voter registration cards and the registers for the two cards and the registers for the two wards in question.
ii. The 1st respondent was nominated in two constituencies namely Abia Central Senatorial Constituency and Aba north/Sought Federal Constituency, using his real name Anthony Enwereeuzor. The Respondents are given notice to produce the two nomination forms.
iii. As a consequence of his double registration and nomination, the 2nd Respondent DISQUALIFIED the 1st Respondent and communicated this fact to the All Peoples Party Abia State through a letter which is hereby pleaded. The respondents are given notice to produce the same at the trial.
iv. The All Peoples Party was requested to submit another candidate in replacement of Anthony Enwereuzor, the 1st Respondent.
v. The 1st Respondent fraudulently reappeared as a Candidate, this time bearing the name Enwereuzo Eze A. on the 19th February, 1999 and fraudulently who was disqualified by the 2nd respondent is the same person as Enwereuzor Eze A. The 2nd Respondent is hereby given notice to produce the 1st respondent’s personal data form in their custody. The 1st respondent’s poster are pleaded.
vi. The 1st Respondent did not pay his tax for the three years immediately preceding the election and presented false, fabricated and concocted tax papers for the purpose of being cleared by the 2nd Respondent. These tax papers are not genuine and did not emanate from the relevant tax authorities. The respondent are given notice to produce the are given notice to produce the tax papers submitted by the Respondent who has the original in his custody.
7(2) CORRUPT PRACTICES OFFENCES AND NON COMPLIANCE WITH THE ENABLING LAW
(i) The 2nd Respondent acting in concert with 1st Respondent merely procured and relied upon imaginary returns contained in forms EC 8A and EC 8B to collate figures which they entered into form EC 8C upon which they based the results which they announced for the Constituency. These purported results were fabricated by the 1st Respondent. This agents and the respondents. The respondents are given forms EC 8A and EC 8B from which the form EC 8C for the constituency, were produced. The Petitioner will show from the produced form that
(a) They were computed in a manner not in compliance with the provisions of the enabling statute
(b) They were not countersigned by the agents of the Political parties or the Candidates particularly the agent of the Petitioner.
(c) They were not duly authenticated by INEC Returning officer and stamped as required by the enabling statute.
(d) The serial numbers of the various results were inconsistent and in some, the particulars were not even entered- at all by the Contrives of the documents.
(e) They contain irreconcilable mutilations and alterations.
(f) The entries on the results were on their faces false and indefensible.
The results announced by the 2nd Respondent are not genuine but fabricated and false and inconsistent with the voting trend from other constituencies. The petitioner will pray that these results be nullified.
(ii) The Petitioner will pray that these false results be discounted for purposes of determining the result of the election for in the alternative that there was no valid election or that the 1st Respondent was not qualified to contest the election.”
After the respondents entered appearance and filed their replies to the petitioner, counsel on behalf of the 1st respondent filed a motion on notice seeking an order-
“1. striking out the petition for being incompetent; and/or
- striking out the petition for disclosing no cause of action.”
on the ground that –
“(a) the petition in substance made allegations against the conduct of the election by the Presiding Officers and the Returning Officers Units and Ward collation centres in the Constituency during the election, but failed to join them as necessary parties to the petition; and
(b) the petition does not disclose any cause of action.”
The chairman of the Tribunal sat alone and heard and determined the application. He struck out the entire petition on the ground that it was incompetent. Aggrieved, the appellant has appealed to this Court on four grounds. Based on these four grounds of appeal, learned counsel on behalf of the appellant formulated four issues for determination in the appellant’s brief as follows:
“1. Was the Tribunal below properly constituted as provided by the law setting up the Tribunal? Ground 1.
- Having regard to the 1st ground for bringing the petition, which was not found to be incompetent, was the Tribunal correct in law to have struck out the entire petition on the ground of non joinder of necessary parties which related only to the 2nd ground for bringing the petition? Ground 3
- Was the decision striking out the petition on the ground of non joinder of presiding officers and ward returning officers justified having regard to the pleadings filed by the petitioner? Ground 2.
- Having filed a reply to the petition, was the 1st respondent not precluded from objecting to the competence of the petition, having regard to the provisions of schedule 5 Regulation 50(2) of the enabling law? Ground 4.”
A respondent’s brief was also filed on behalf of the 1st respondent. In it the following four issues were formulated:
“(i) Whether in view of Section 84 of Decree and paragraph 27(1) of Schedule 5 thereof, the Honourable Chairman of the Tribunal was not vested with jurisdiction to sit alone and hear and determine the application. Ground 1 of the Appeal.
(ii) was the Tribunal right in the construction it placed on paragraph 7(2)(a) to (f) of the petition to the effect that the averments therein made allegations against the conduct of the election by the Presiding Officers and Returning Officers who officiated in the election. Ground 2 of the Appeal.
(iii) Whether the Tribunal having found that the petition failed to join compulsory statutory necessary parties and, therefore, incompetently constituted still had jurisdiction to go into hearing of the petition. Ground 3 of the Appeal.
(iv) Whether there is any time bar to an objection on the ground of fundamental incompetence of a petition and, therefore, lack of jurisdiction of the Tribunal. Ground 4 of the Appeal.”
Issue 1 in each brief covers the same point and raises the question as to the competence of the Tribunal to take the proceedings as it did, with only the chairman sitting.
In his argument in the appellants brief of argument learned counsel drew attention to section 76(5) of the National House (Basic Constitutional and Transitional Provisions) Decree No. 5 of 1999, which Provides:
“The quorum of ah Election Tribunal shall be the Chairman and two other members.”
He then submitted that-
“By Section 76(1)(d) it is the tribunal whose quorum is the chairman and two other members that determine whether an election petition is properly before the tribunal.”
For his part, learned counsel for the 1st respondent submitted that the Tribunal was properly constituted when it sat with the chairman alone to hear and determine the motion. For this submission counsel relied on a combined reading of sections 76 and 84 of Decree 5 of 1999 and paragraph 27(1) of Schedule 5 thereto. His argument goes thus:
“3.01. ISSUES NO 1
…A combined reading of sections 76 and 84 of the Decree No. 5 and paragraph 27(1) of schedule 5 thereof, will clearly show that the question listed under section 76 (1)(a) to (d) are questions or issues which must form the basis of the petition and which the Tribunal as constituted under section 76(5) will determining (sic) during hearing of the petition; while any question raised interlocutory, particularly the question of jurisdiction of the tribunal as in this case, can be eared and determined by the chairman sitting alone.
3.02. The quorum envisaged by Section 76(2) (sic) of the Decree is quorum for purpose of hearing the petition, and in that case the Chairman with at least two members of the tribunal will form a quorum. But if the question of jurisdiction of the Tribunal is raised by an interlocutory application as in this case, Section 84 of the Decree No. 5 stipulates that the procedure for determining such questions shall be as provides for in schedule 5 of the Decree. In that respect, paragraph 27(1) of Schedule 5 provides that the chairman sitting alone has the jurisdiction to hear interlocutory applications.
Upon reading section 76(1)(d) and examining the reliefs sought in the motion that the chairman alone dealt with. I have no doubt at all in my mind that the position of the appellant’s counsel on this point is far more tenable than that of the respondent’s counsel. The language of section 76(1)(d) is clear enough. It provides:
“76. – (1) There shall be established in each state of the Federation one or more Election Tribunals to be known as the National Assembly Election Tribunals (in this Decree referred to as the “Election Tribunal”) which shall, to the exclusion of any other court or tribunal, have original jurisdiction to hear and determine any question as to whether-
(d) a question or petition brought before the Election Tribunal has been properly or improperly brought.”
The respondent’s counsel acknowledges that the Tribunal must have the prescribed quorum before it can hear any of the matters listed in section 76(1) (a)-(a). His stand, however, is that because the matter giving rise to this appeal had been raised by motion rather than being embedded in the petition itself it was, therefore, an interlocutory matter which the Chairman alone is to handle under paragraph 27(1) of Schedule 5.
With all due respect, this is very faulty thinking.
It is quilt clear from the language of paragraph (d) that the matter envisaged there cannot be part of the petition. The petition is filed by the petitioner. Such petitioner cannot be expected to include in his petition, and call on the Tribunal to determine, the question as to whether a question or petition before the Tribunal has been properly or improperly brought. A petitioner who does that would, in my view, be in serious need of the services of a psychiatrist. The person that one would expect to raise such a question is the respondent. And the only way one would expect him to do that is by way of a motion or some other process independent of the petition, the competency of which is sought to be questioned in the first place. The Jurisdiction conferred on the Tribunal under this subsection is not only to hear an election petition, but also questions whether or not the petition was properly brought and should be heard.
I set out the terms of the motion earlier on. It clearly raised the question whether the petition before the Tribunal had been properly or improperly brought.
It therefore came within section 76(1)(a). Section 76(5) required that the Tribunal, with at least the Chairman and two members, should hear it. It was not the type of interlocutory matter, if the motion before the Tribunal was that, that paragraph 27(7) authorized the Chairman alone to hear and determine.
It follows, and
I hold, that the Tribunal was not properly constituted when the Chairman sat alone to hear and determine the motion. Following Madukolu v. Nkemdilim (1962) All NLR 587, at 595, the Tribunal was not competent when it heard and determined the motion. The proceedings before it were, therefore, a complete nullity.
This conclusion effectively disposes of the appeal before us. The appeal succeeds and is allowed. The matter is remitted to the Tribunal, constituted with at least the Chairman and two other members, for the motion and, if necessary, the substantive petition to be heard on the merit.
The 1st respondent shall pay costs of N2,000.00 to the appellant’s.
Other Citations: (1999)LCN/0594(CA)
