Mr. Attie Samuel Wamini-emi V . Mr. Delight Igali & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A.

Before the Governorship and Legislative Houses Election Tribunal sitting at Yenagoa (to be henceforth; lower Tribunal). The Appellant and the 1st Respondent were candidates at the election into the Bayelsa State House of Assembly for the Constituency 3 in Southern Ijaw Local Government Area on 14th April, 2007. The Appellant was sponsored by the Action Congress party (AC) while the Peoples Democratic Party (PDP) sponsored the 1st Respondent for the election. The 6th Respondent statutorily charged with the conduct of the election returned the 1st Respondent through its officers as the winner of the election. Being dissatisfied and aggrieved by the return’ the Appellant on the 10th of May 2007 presented an election petition questioning and challenging it. The petition, which is in 22 paragraphs and runs from pages 4 – 10 of the printed record of appeal, did not specifically as is the usual practice, set out distinctly, the grounds upon which it was founded.

After service of the petition on the Respondents’ the 1st Respondent on the 1st of June 2007, filed a notice of preliminary objection and prayed for the following orders: –

(a) “AN order to strike out this petition as same is incompetent not being in compliance with the provisions of the constitution and the Electoral Act.

(b) An order striking out paragraphs 15, 16, 17 and 18 of the petition and reliefs 21 (iii) as same are incompetent and not cognizable by the Hon. Tribunal.”

The grounds of the objection were set out in the application thus:

(1) “That contrary to the express provisions of paragraph 4(1)(c) of the First schedule to the Electoral Act, 2006 as amended, the Petitioner’s petition does not contain the holding of the election and the scores of the candidates which it seeks to nullify by the petition before the Honourable Tribunal. This omission is fundamental and incurable.

(2) That the petition is fundamentally defective and not cognisable by this Honourable Tribunal not having been founded on any ground(s) for election petitions as provided by section 145(1) of the Electoral Act and contrary to the mandatory requirement of paragraph 4 (1) (d) of the First schedule to the Electoral Act,2006.

(3) That the petition having been brought on the ground that no elections were held in Southern Ijaw State Constituency three (3) on the 14th day of April, 2007 contrary to the prior announcements of the Respondent, the Petitioner’s remedy lies in an application for an order of mandamus in the Federal High Court to compel the 6th Respondent to conduct the election into the Southern Ijaw Federal Constituency three (3). An election petition relates only to an election already conducted.

(4) That paragraphs 15, 16, 17 and 18 together with relief 21 (iii) arising therefrom are pre-election matters not cognisable by this Honourable Tribunal and ought to be accordingly struck out.”

Written addresses by the parties in respect of the objection were filed and later adopted at the hearing. The lower Tribunal in a ruling delivered on the 19th of July, 2007 concluded thus: –

“In the final analysis we hold that the relief’s sought by the petitioner in paragraph 21 of the petition clearly require that the scores of candidate be stated, but have not contrary to paragraph 4 (1 (c) of the 1st Schedule and making the petition incompetent. In the end we uphold the entire preliminary objection dated 30/05/07 and overruler (sic) the objection to it. Consequetly we hold the petition to be incompetent and is hereby struck out.”

As a matter of course, the Appellant was not satisfied and felt aggrieved that his petition was struck out by the lower Tribunal and so to this court he came by way of an appeal against that order. The Notice of Appeal filed on the 7th of August, 2007 contained a single ground of appeal, which is a mere quotation of extracts from the ruling of the lower Tribunal. For full appreciation expedient to set it out as it is. The terms of the grounds are: –

“The Tribunal erred in law when it held that ‘we are of the view that having regard to this fundamental lapse or defect in the whole petition, but especially paragraph 13 of the petition which states the declaration of the 1st Respondent but failed to state the scores, as well as paragraph 3(1) (ii) wherein the petitioner stated his candidature and that of the 1st Respondent and others unnamed and unidentified without stating the score. In the final analysis we hold that the reliefs sought by the petition in paragraph 21 of the petition clearly require that scores of the candidate be stated, but have not contrary to paragraph 4(1) (c) of the 1st Schedule and making the petition incompetent.”