Nnaemeka Ikechukwu Orizu V. Alphonsus Okey Uzoegwu & Ors (1999)

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UBAEZONU, J.C.A.

This is an appeal against the ruling of the Anambra State House of Assembly Election Tribunal delivered on 12/3/99 striking out the petition of the appellant. The appellant filed his appeal on 19/3/99, and thereafter filed his brief of argument through his counsel. Three issues were formulated in the brief viz:

“1. Whether qualification is a pre-election matter and therefore cannot be a ground for questioning an election petition.

2. Whether the absence of an attestation clause made the petition to substantially deviate from Form, TF.002 in the State Government (Basic Constitutional and Transitional Provisions) Decree No.3 of 1999.
3. Whether the respondents could validly raise a preliminary objection after taking steps in the proceedings.”

His first issue in this appeal which deals with qualification becomes a non issue since the case did not go into a trial and therefore no evidence was led as regards the qualification of the 1st respondent. I shall therefore not go into the issue of the qualification or otherwise of the 1st respondent.

The second issue deals with whether the petition was properly pending in view of non-compliance of the petition with attestation clause as required by the rules. Learned counsel submits that the requirement of paragraph 5 (7) of Schedule 6 to Decree 3 of 1999 is merely regulatory, and not mandatory. He argues that while harsh consequences are provided for non-compliance with paragraph 5(1), (4) and (5), no such consequences are prescribed for non-compliance with paragraph 5(7). He contends that as regards paragraph 5(7) only substantial compliance is required not total compliance. Counsel refers to the definition of substantial compliance in the Nigerian Law Dictionary (1st edition). He submits that the defect in the petition could be cured by amendment under paragraph 50(4) of Schedule 6 to the Decree.

On the 3rd issue, counsel submits that the respondent having taken steps in the proceeding, it is too late in the day to raise any preliminary objection to the petition. He submits that the 1st respondent filed his reply on the 5th March, 1999 after being served with the petition while the other respondents filed unconditional memorandum of appearance on 9th March, 1999. A litigant seeking to raise a preliminary objection should only enter a conditional appearance to the action. He refers to and relied on paragraph 50(2) and (5) of Schedule 6 to the Decree. He refers to Kudu v. Aliyu & ors. (1992) 3 NWLR (Pt.231) 615; Ariori v. Elemo (1983) 1 SCNLR 1; Ogbonna v. A.G., Imo State (1992) 1 NWLR (Pt. 220) 647; Odu’a Investment Co. Ltd. v. Talabi (1991) 1 NWLR (Pt.170) 761.

The 1st respondent also filed a brief of argument and therein formulated the following two issues:

1. Whether the Constitutional Court can properly grant the relief sought by the appellant in view of the mandatory provisions of paragraph 2(1) of Schedule 6, Decree No.3 of 1999.
2. Whether the Election Tribunal was correct to have struck out the petition for non-compliance with the provisions of paragraph 5(7) of Schedule 6 Decree No.3 of 1999.”

Arguing his 1st issue, learned counsel for 1st respondent submits that having regard to the relief sought from this court viz “Reversal of the whole ruling” this court cannot make the order sought in view of the provisions of paragraph 2(1) of Schedule 6 to the Decree No.3 of 1999. He refers to Ekpo v. Calabar Local Government Council & Ors. (1993) 3 NWLR (Pt.281) 324 at 339 and 345; Richard Okafor v. Dr. Nwora & Ors. (CA/E/121/94) unreported – delivered on 21/12/94; Salati v. Shehu (1986) 1 NWLR (Pt.158) 198 at 199; Attorney-General of Lagos State v. Dosumu (1989) 3 NWLR (Pt.111) 552 at 602.

Counsel further submits that an election petition not initiated in accordance with paragraph 5(7) of Schedule 6 to the Decree is not initiated in accordance with the due process of law. He refers to Ozobia v. Chuks Anah & Or. (1999) 5 NWLR (Pt.601) 1 CA/E/12/99 delivered on 4/3/99.

It is further argued that the tribunal could not amend the petition on the 9th March, 1999 since the 30 days for presentation of the petition had elapsed. Any amendment or the petition must be made with reference to section 132 of the Decree – see Kaugama v. National Electoral Commission (1993) 3 NWLR (Pt.284) 681.

On issue No.2, it is submitted that the tribunal was right in holding that the petition did not comply with paragraph 5(7) of Schedule 6. Also, the tribunal was right in holding that it was too late in the day for amendment since the period for filing the petition had elapsed. Furthermore, the appellant did not at any time apply to amend the petition – see the Federal High Court Rules Order 33 rule 2 which applies in the election petition proceedings.

It is further submitted that the court does not have the jurisdiction to hear this appeal since the petition was not filed in accordance with the law i.e. Decree No.3 of 1999.

Learned counsel for 2nd and 3rd respondents also filed a brief of argument. Counsel formulated three issues viz:

“(a) Whether disqualification or qualification is a pre-election matter or a matter for determination in the Election Tribunal.