Justice Party & Anor V. Independent National Electoral Commission (Inec) & Ors (2003)

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D. MUHAMMAD, J.C.A.

In 1999, this country once again embarked on yet another effort to return to democracy. By May of that year, the effort had materialised. With the conduct of successful elections, the executive and legislative arms of government at both state and national levels were put in place. Persons elected into these offices were to serve for four years. They would seek re-election at the end of their tenure if they must continue in office.

The governorship elections of 19th April, 2003 was part of the country’s further effort to sustain the nascent democratic experiment began in 1999. Contestants into these offices across the country did so on the platform of registered political parties. The Justice Party was one of such registered political parties. Mr. James David Ebri was the person nominated by the party to contest the governorship election in Cross River State.

Both Mr. Ebri and the Justice Party that sponsored him for the governorship election insisted that the former was a candidate at the election. It is still their case that they had contested the election. Eight other candidates sponsored by different political parties also contested the elections conducted by the Independent National Electoral Commission. Mr. Donald Etim Duke was one of the other candidates. Mr. Duke was returned as the duly elected candidate by INEC at the end of polls. The votes scored by the successful candidate were also declared by INEC.

The votes scored by the eight contestants excluding Mr. Ebri were also provided by INEC.
Mr. Ebri and the Justice Party, his sponsor, were aggrieved by the non-disclosure of the votes the former scored at the election.

And also the return of Mr. Duke as the winner. They filed a petition on 29/5/2002 at the appropriate tribunal. Thereat, they challenged the failure of INEC to disclose the votes scored by Mr. Ebri and the return of the successful candidate at the end of the election. The Independent National Electoral Commission, its Cross River State Resident Electoral Commissioner, and State Chief Returning Officer as well as Mr. Duke who contested on the platform of the Peoples Democratic Party were respondents to the petition. The petition was on the ground that though Mr. Ebri was validly nominated as his sponsor’s candidate, he was unlawfully excluded from the election by the respondents. The tribunal was prayed that Mr. Duke’s return and election being unduly made and void should be so declared.

Mr. Duke’s counsel filed two applications at the tribunal on 20th June, 2003. The two were withdrawn and accordingly struck out. On 25th June, 2003 two similar applications to those that had been withdrawn and struck out on 23rd June, 2003 by the tribunal, were again filed on behalf of Mr. Duke. In one of the motions, an order for enlargement of time to enable Mr. Duke file his reply to the petition was sought.

The 2nd motion was for an order dismissing the petition filed by Mr. Ebri and his sponsor on the following grounds:
“(1) The petitioners lack the locus standi to bring this petition to wit:
(a) The 1st petitioner unlawfully nominated two persons for election into the office of governor
of Cross River State.
(b) The 1st petitioner did not sponsor the 2nd petitioner for, and the 2nd petitioner was not a candidate at the elections, petitioners having withdrawn therefrom.
(c) This petition is incompetent and disclose no cause of action”

The first motion for enlargement of time was taken and being not opposed was granted by the tribunal. Arguments in respect of the second motion were heard also on 2nd July, 2003.
The tribunal overruled the first arm of the objection raised against the petition. However, in sustaining the second arm of the very objection, the petition was struck out on the basis that the petitioners lacked the locus standi to present the petition. 2nd petitioner was not a candidate at the election as required by S.133 of the Electoral Act, 2002. The said 2nd petitioner had withdrawn from participating in the elections two days to the election. The petitioners are dissatisfied with the decision of the tribunal.

They have appealed against the decision by their notice dated and filed on 14th July, 2003. The notice has seven grounds.

The petitioners at the election petition tribunal are thus the appellants before us. The Independent National Electoral Commission and its two officials are the 1st, 2nd, 3rd respondents while Mr. Donald Etim Duke the successful candidate at the election whose return by INEC was being challenged is the 4th respondent in the appeal.

Parties in the appeal have filed and exchanged briefs of argument. The appellant on being served with the briefs of the respondents also filed a reply brief. The briefs have been adopted and relied upon by the parties at the hearing of the appeal.

It is important to note that appellants had in their brief elected to abandon ground six of their notice of appeal. Same is accordingly struck out.

A notice of preliminary objection pursuant to Order 3 rule 15 of the Court of Appeal Rules, 2002 had been filed by 1st – 3rd respondents’ counsel. By the said objection, Chief H. O. Ogbodo of counsel has asked us to strike out the six remaining grounds of appeal and by extension the appeal itself.