Chief Emmanuel Osita Okereke V. Alhaji Umaru Musa Yar’adua & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

I.T. MUHAMMAD, J.S.C.

The relevant facts in this appeal are that the appellant as petitioner at the lower court, filed his election petition containing four grounds challenging that the 1st and 2nd respondents were not qualified to contest election into the offices of the President and Vice President of the Federal Republic of Nigeria in that both were at the time of the election disqualified by their respective indictments by an Administrative Panel of Inquiry set-up by Abia State Government.

He prayed for an order canceling or nullifying the return or election of the 1st and 2nd respondents as aforesaid and prayed further, that the 35th respondent, (INEC) be ordered to conduct fresh and/or bye election into the two highest offices of the land.

The 1st and 2nd respondents filed a memorandum of conditional appearance, a notice of preliminary objection, etc, on 23/7/07. The 3rd – 35th respondents filed a notice of preliminary objection on 2/8/07. On 8/8/07, the petitioner/appellant filed a motion on notice, seeking the lower court’s order for him to furnish better and further particulars to his petition, among others. The lower court took together the petitioner’s motion on notice of 8/8/07; 1st and 2nd respondents’ notice of preliminary objection of 23/7/07 and the 3rd – 35th respondents’ notice of preliminary objection of 8/8/07.

After taking submissions by learned counsel for the respective parties, the lower court sustained the notices of preliminary objection and struck out the petition for being incompetent. Aggrieved with the lower court’s decision, the petitioner (now appellant before this court) filed his appeal to this court. All the parties filed and exchanged briefs of argument including reply briefs (where necessary) as required by this court’s rules. The appellant distilled four issues for determination. They are as follows:

“[i] Whether having regard to the provision of paragraph 6(1) of the Election Tribunal- Court Practice Direction 2007 (No.1), the determination of the Motion on Notice and the Preliminary Objection by the Tribunal was not without jurisdiction (Distilled from Ground One).

[ii] Whether on the state of affidavit evidence by the petitioner the Tribunal reached a correct conclusion of law in its application of Section 14 of the Electoral Act, 2006 that all the amendments sought were statute and time-barred. (Distilled from Grounds 2 and 4).

[iii] Whether the Tribunal’s conclusion that the petition did not comply with provision of paragraph 4(1)(d) of the 1st schedule to the Electoral Act, 2006 and paragraph 1(1)(a)(b)(c) and (2) of the Election Tribunal and Court Practice Directions 2007 is not in total disregard of the documents filed before the Tribunal and the contents of the petition as filed (Distilled from Ground 5).

[iv] Whether the Tribunal below properly directed itself as to cause of action in the petition having regard to paragraph 4(1) of the petition before it (Distilled from Ground six).”

1st and 2nd respondents formulated three issues. They are as follows:

[1] Whether the Presidential election Petition Tribunal lacked the jurisdiction to hear and determine the Notice of Preliminary Objection filed by the 1st and 2nd respondents

[2] Whether the appellant’s petition is not incompetent for failure to comply with the mandatory provisions of paragraphs 4(1) (d) of the 1st schedule to the Electoral Act, 2006 and paragraph 1(b) of the Election Tribunals and Courts Practice Directions 2007 and whether such fundamental breach can be aimed by way of amendment outside the period stipulated in section 141 of the Electoral Act, 2006

[3] Whether by not averring to facts in support of the grounds of the election petition, the petition did not fail to disclose a cause of action”

3rd – 35th respondents formulated three issues. They are as follows: