Prince Collins Eselemo V. Hon. Solomon Funkekeme & Ors (2007)

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ZAINAB A. BULKACHUWA, J.C.A.

This is an appeal against the ruling by the National Assembly/Governorship and Legislative House Election tribunal, Delta State delivered on the 4th day of May, 2005.

The Petitioner/Appellant was a candidate in the election held on 9/5/2003 to the Delta State House of Assembly as a member representing Burutu south constitutuency under the platform of the Justice Party (JP). He contested with 4 others contestants amongst who was the 1st Respondent who was returned as winner of the election.

Dissatisfied with the election result, the petitioner filed a petition before the said Legislative Houses Election Tribunal, Delta State on the 7/6/2003 against the 1st Respondent and 5 others.

The Petitioner based his petition on two grounds which were improper election involving voting, counting, collation of results of valid votes in any of the five wards of Burutu South constituency and that the election was marred by fraud and/or grave irregularities contrary to the provisions of the 2002 Electoral Act.

The Petitioner sought for the following reliefs from the Tribunal;

1. A DECLARATION that the Delta state House of Assembly, Burutu South Constituency election was not properly held on the 9th of May, 2003 according to the Electoral Act, 2003 (sic).
2. AN ORDER NULLIFYING the announcement of the 1st Respondent by the 4th Respondent as the winner of the Delta State House of Assembly, Burutu South Constituency election conducted on the 9th of May, 2003 (sic).
3. AN ORDER canceling or directing the cancellation of the fictitious and false results announced by the 3rd and 4th Respondents on the 9th May, 2003 proclaiming the 1st Respondent as the winner.
4. AN ORDER for fresh elections into the Delta state House of Assembly, Burutu South Constituency.

Upon being served with the petition the 2nd – 6th Respondents in an application filed on the 24/6/2003 applied that the petition be struck out for being incompetent for non-joinder of necessary parties and for non compliancy with the mandatory provision of the Electoral Act, 2002.

The lower Tribunal heard the parties on the Preliminary objection of the 2nd – 6th Respondents and in a considered ruling delivered on 4th May, 2005 struck out the Petition. The Petitioner being dissatisfied with the said ruling has now appealed to this court on one single ground of appeal on the 16th May 2005 and with leave of court granted on the 11th April, 2006 the Appellant filed 5 additional grounds of appeal.

As is the practice of this court parties filed and exchanged briefs of argument. In the Appellant’s brief, he raised these issues for the determination of the appeal,

1. Whether the election petition is incompetent having regard to Section 133 and 134 of the Electoral Act, 2002.
2. Whether the Tribunal was justified in striking out the petition.

The 1st Respondent identified the following issues in his brief of argument;

1. Whether the Election Tribunal was not in error when it struck out the entire petition on the ground of non-joinder of necessary parties.
2. Whether fraud or grave irregularities’ is known to law as a ground for challenging an election under Section 134 of the Electoral Act, 2002.

The 2nd – 6th Respondents also formulated two issues for the determination of this appeal. These issues are;

1. Whether or not the petition which was based on malpractices, irregularities, fraud and forgery in the conduct of the election but which did not joined (sic) the affected presiding officers as parties to the petition is not incompetent and or unmentionable by the petitioner.
2. Whether fraud and grave irregularities is a ground for challenging an election petition under section 134 of the Electoral Act, 2002.

The two issues as identified by the two sets of respondents all relate to the 1st issue raised by the Appellant, I will accordingly in the determination of this appeal apply the issues raised by the Appellant.

The Appellant in his brief filed with the leave of court on 18/4/2006 submits on the 2 issues that the lower tribunal erred in striking out the petition for non joinder of necessary parties for as he points out the

petitioner was complaining against undue return and in the said petition the necessary party is the returning officer who as the 4th Respondent is a party on the record.