Prince Ime Udonte V. Raphael Edet Bassey & Ors (1999)

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OPENE, J.C.A.

The petitioner/appellant and the 1st respondent were the candidates for the Chairmanship or Nsit Atai Local Government, Akwa Ibom State in the Local Government Elections held on the 5th day of December, 1998.

The appellant lost the elections to the 1st respondent and as a result of this, the appellant filed a petition in the Local Government Election Petition Tribunal, Akwa Ibom State, sitting at Uyo praying the tribunal among other things to declare that the 1st respondent was not duly elected and/or returned.

The appellant later brought a motion to amend his petition, the motion was heard and dismissed on the 13th day of January, 1999. The 1st respondent thereupon filed an application praying the tribunal to set aside the petition as it is incurably defective for non-compliance with the mandatory provisions of Schedule 5, paragraph 5 (1)(c) or Decree No. 36 of 1998. The tribunal heard this motion and struck out the petition on 20th January, 1999.

Dissatisfied with this ruling, the appellant has now appealed to this court.

The appellant filed three grounds of appeal. The appellant, the 1st respondent and the 2nd – 4th respondents filed their briefs of arguments.

Chief Uyouko, the learned Counsel for the 1st respondent filed a preliminary objection challenging the competence of the appeal on the ground that an appeal does not lie against a decision made by the Local Government Election Tribunal “in” petition, that this appeal is against such a decision and thus incompetent.

In the 1st respondent’s brief of argument, the 1st respondent argued that the ruling of the Court is an interlocutory and that the rights of the parties were not decided. The following cases were referred to – Omunuwa v. Oshodin (1985) 8 NWLR (Pt.10) 924. Alaye of Effon & Ors. v. Fasan & Ors (1958) 1 N.S.C.C. 35; (1988) 3 FSC 68. (1958) SCNLR 171

The simple answer to this preliminary objection is that it is not well taken, section 86 (1) of Decree 36 of 1998 states that an appeal arising in respect of an election petition under this Decree shall lie to the Constitutional Court. This section of the law does not say that an appeal lies only against a final decision of the Tribunal and not against an interlocutory decision.

Further, the ruling of law tribunal has completely determined the rights of the parties as there is nothing more left to be decided again between the parties. I will therefore overrule the objection.

The most important issue that calls for decision in this appeal is whether the tribunal was right in assuming jurisdiction to hear the 1st respondent’s motion to set aside the petition when the 1st respondent had taken steps in the proceeding by entering an unconditional appearance and filing a reply.

paragraph 50(2) of Schedule 5 of the Decree states:

“An application to set aside an Election Petition or a proceeding resulting there from for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when no party making the application has not taken any fresh step in the proceedings after the knowledge of the defect.”

The appellant’s complaint is that the 1st respondent had taken steps in the proceeding by filing a reply and that his application should not be allowed.

The tribunal in its ruling at p.64 of the record of proceeding stated:

“The conclusion we reach therefore is that even if we exercise our discretion under paragraph 5 (6) of Schedule 5 in favour of the petitioner it would be an impracticable and futile exercise.

Further more, the discretion of court must be exercised judicially and judiciously and not arbitrarily.”

No doubt, this finding of the tribunal cannot he faulted. Paragraph 5(1)(e)of Schedule 5 of the Decree states-

“5(1) An Election Petition under this Decree shall:-

(a) …

(b) …

(c) State the holdings of the election, the scores of the candidates and the person returned as the winner of the election.”

In the appellant’s petition, he failed to state this, vital and mandatory information which is the holding of an election, the scores of the candidates and the person returned as the winner.

It therefore means that even if this matter is for any reason resolved in the appellant’s favour that it will be impossible for the appellant to prosecute his petition as he had failed to comply with the provision of paragraph 5 (1)(c) of Schedule 5 and the appellant cannot also amend the petition as he did not appeal against the ruling dismissing his application for an amendment. It was for this reason that the tribunal stated that the exercise of the discretion under paragraph 5(6) of Schedule 5 in favour of the appellant would be an impracticable and futile exercise.

In respect of issues 2 and 3 formulated by the appellant. I must say that the provisions of paragraph 5(1)(c) of Schedule 5 are mandatory and all of them have to be complied with.

The argument of the appellant that he has complied with paragraph 5(1) of Schedule 5 to the Decree and that for an election petition to be competent that it must set out in detail one or more of the grounds specified in paragraph 5(1) of Schedule 5 to the Decree has no basis. All the grounds specified must be complied with.

On the whole. I am of the view that there is no merit in the appeal and that it should be dismissed. In the result, I hereby dismiss the appeal. The 1st respondent is entitled to costs which I assess and fix at the sum of N3.000.00.

Other Citations: (1999)LCN/0604(CA)