Jerry Okolo V. Aniweta Victor Anyakwo & Ors (1999)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

The appellant was a candidate at the councilor election held on 5th December, 1998 in the Inland Ward V, otherwise known as Ward 12 for Onitsha North Local Government, under the platform of People’s Democratic Party, PDP. The 1st respondent contested the same election under the platform of Alliance for Democracy, AD, while the 2nd respondent stood the election under the platform of All People’s Party, APP.

The 1st respondent was declared duly elected whereupon, the appellant filed this appeal challenging the declaration of the 1st respondent and now sought to be duly elected at the Local Government Election Tribunal sitting at Akwa, in Anambra State. When the appeal was adjourned for mention on 20/1/99, learned counsel for the petitioner who is now the appellant, applied without supporting affidavit: that the matter be not terminated under paragraphs 44(5) and 16, of the 5th Schedule to 1998 Decree No. 36. He then applied for enlargement of time and urged the court to use its discretion under sub-paragraphs (4) – (6) of paragraph 44 of the Decree was not complied with and the tribunal disallowed the application and further ruled that the tribunal cannot extend the period for payment of filing fee of N600 payable on present action of petition as stipulated in paragraphs 3 and 37 of Schedule 5 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, hereinafter referred to in this judgment simply as the Decree. Accordingly held that the petition is incompetent and struck it out.

The petitioner was dissatisfied and so appealed to this court. His complaint is predicated on two grounds which read as follows:-

Ground one

“The tribunal erred in law by holding that failure by the petitioner to pay in full the fees prescribed by paragraphs 3 and 37 of Schedule 5 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 was fatal to the petition.

Particulars

(a) When the petitioner filed the petition the tribunal had not been constituted and no secretary of the tribunal posted to assess the fees payable on the presentation of the petition.

(b) Petitioners were directed to file their petition in the High Court to hold forth for the Election Tribunal.

(c) The Registrar of the Onitsha High Court where the petitioner filed assessed filing fees and security fees and the petitioner fully paid.

(d) When the tribunal was constituted at Awka the secretary of the tribunal re-assessed the fees and the petitioner also paid.

(e) The tribunal on the hearing date suo motu raised the issue that the petitioner had not paid in full both the filing fee and the deposit for security for costs and struck out the petition for non-compliance with paragraphs 3 and 37 of Schedule 5 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998.

(f) The decision of the honourable tribunal is contrary to the decision of the Supreme Court in Nwobodo v. Onoh (1984) 1 SCNLR 1 and paragraph 50 (1) of the 5th schedule to the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. See the exercise leaf attached.”

Ground two