Hon. Innocent Ikeakor V. Barrister Val. Elosiuba & Ors (1999)

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GALADIMA, J.C.A.

In the Gubernatorial and State House of Assembly Election held on the 9th day of January 1999, the petitioner now the Appellant and the 1st Respondent contested the said election for membership of the Anambra State House of Assembly for Onitsha South Constituency II, under the platforms of the Peoples Democratic party (PDP) and the All Peoples Party (APP) respectively. At the end of the polls, the 1st respondent was declared the winner of the election. Dissatisfied with the result, the petitioner filed his petition challenging the return of the 1st respondent. All the Respondents filed a conditional memorandum of appearance. Meanwhile 1st Respondent filed on the 4/3/99 a motion praying the Tribunal for an order striking out the Petition for non-compliance with the mandatory requirements of the State Government (Basic Constitutional and Transitional Provisions) Decree of 1999, and Schedule 6 thereto. On the 8/3/99 the 2nd to 5th respondents filed their motion praying the Tribunal for an order striking out the petition on the grounds arising from the petitioner’s failure to comply with the mandatory provisions of the State Government (Basic Constitutional and Transitional Provisions) Decree No.3 of 1999 since the two motions were praying for the same reliefs they were consolidated and heard by the Tribunal which struck out the petition on the ground that the petition did not substantially comply with the provisions of paragraph 5 sub-paragraphs 4 and 7 of Schedule 6 to the Decree No.3 of 1999.

The Appellant dissatisfied with that ruling appealed to this Court and filed 4 grounds of appeal as follows:-

“1. Error in Law

The Learned members of the State House of Assembly Tribunal erred in law by over ruling preliminary objection raised by the appellant’s counsel against the respondent’s preliminary objection to the petition filed by the appellant.

2. Error in Law

The Learned Tribunal erred in Law by holding that non-compliance with paragraph 5(4), and (7) of Schedule 6 to Decree No.3 of 1999 renders the petition incurably defective and incompetent.

3. Error in law

The Tribunal erred in law by holding that the petitioner/appellant did not comply with the provisions of paragraph 5(4), and (7) of Schedule 6 to Decree No.3 of 1999.

Error in Law

The Learned Tribunal erred in law by rejecting the document tendered by the petitioner/appellant.”

The Appellant formulated 2 issues for determination as follows:-

“1. Whether non-compliance with paragraphs 5(4) and (7) of Schedule 6 to the State Government (Basic Constitutional and Transitional Provisions) Decree No.3 of 1999 is a fatal defect to an election petition under the said Decree.

2. Whether the respondent’s counsel complied with the provision in paragraph 50(3) of Schedule 6 to Decree 3 of 1999.”

The 1st Respondent on the other hand set out 3 issues for determination in the appeal as follows:-

“A. Whether the petitioner complied with the provisions of paragraphs 5(4) and 5(7) of Schedule 6 of the State Government (Basic Constitutional and Transitional Provisions) Decree, 1999. Whether the non-compliance with the provisions of the said paragraphs 5(4) and 5(7) of the State Government (Basic Constitutional and Transitional Provisions) Decree, 1999 is fatal to the petition.

Whether the application of the respondents to strike out the petition complied with paragraph 50(3) of Schedule 6 of the State Government (Basic Constitutional and Transitional Provisions) Decree 1999.”