Elder Ikechl Kwu Amadi Obuzor JP. & Anor V. Hon. Wilson Asinobiake & Ors (2008)

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

This is an appeal against the ruling of the National Assembly/Governorship Election Tribunal sitting in Port Harcourt, Rivers State (hereafter referred to as the lower Tribunal) delivered on 11th September, 2007 dismissing the appellants petition on grounds of incompetence and lack of jurisdiction.

The 1st appellant herein was a Senatorial candidate on the platform of the 2nd appellant, Democratic Peoples Party (DPP) at the Senatorial bye-elections, which took place on 28th April, 2007 in respect of the Rivers West Senatorial District of Rivers State. The 1st respondent also participated in the election on the platform of the Peoples Democratic Party (PDP) and was eventually returned by the 2nd respondent, the Independent National Electoral Commission (INEC) as the winner. The appellants were dissatisfied with the conduct of the election and the return of the 1st respondent. In a petition filed on 30/5/07 the 1st and 2nd appellants herein, filed a petition before the lower Tribunal seeking the following reliefs:

1. “A declaration that by the design of the 2nd, 3rd and 4th respondents, the 1st petitioner’s supporters and electorates were prevented from casting their votes for the 1st petitioner in the April -28th, 2007 bi-election (sic) as 1st petitioner’s party name, logo and inscription were not provided on the ballot papers and that no elections were conducted in several wards in the District.
2. A declaration that the purported declaration of 1st respondent by the 2nd, 3rd and 4th respondents as the duly elected SENATOR for the Rivers West Senatorial District is null and void.
3. A declaration that the 1st petitioner having scored the highest number of legitimate and lawful votes cast at the Senatorial election in Rivers West Senatorial District held on April 28, 2007 be declared the winner and returned as such.
4. A perpetual injunction restraining the 1st respondent from parading himself as the duly elected SENATOR from the Rivers West Senatorial District in the April 28, 2007 election.”

The 1st respondent and the 2nd – 4th respondents respectively were duly served with the petition. In reaction thereto both sets of respondents filed motions on notice raising preliminary objections to the petition and seeking the dismissal and/or striking out thereof on grounds of incompetence and lack of jurisdiction. The motions were accompanied by written addresses in support thereof. The petitioners filed counter affidavits to the respective motions and also filed written addresses in support thereof. Both applications raised essentially the same issues. The lower Tribunal therefore consolidated them and heard them together. After a careful consideration of the submissions of all the parties, the lower Tribunal, in a considered ruling at page 262 of the record held as follows:

“In light of the foregoing therefore with heavy emphasis and reliance on issue 3 to which we have emphatically stated we hold that the failure by the petitioner to comply substantially or fully with paragraph 4(1) (c) is a fundamental infraction of the Electoral Act which has rendered the petition incompetent and has robbed the tribunal of jurisdiction.

Accordingly, the applications of the respondents/applicants succeed and the petition is dismissed.”

Dissatisfied with this ruling the appellants filed a notice of appeal dated 26/9/07 containing five grounds of appeal.

The parties duly filed and exchanged their respective briefs of argument in compliance with the rules of this Court. In the appellant’s brief dated and filed on 26/10/07 the following three issues were formulated for the determination of this appeal:

1. Whether paragraph 4(1) (c) of the 1st Schedule of the Electoral Act 2006 laid down a procedure for stating scores and for which the Tribunals are bound to follow?
2. What is the meaning and purpose of the phrase “state the scores of candidates”?
3. Whether the Tribunal was right in dismissing the Petitioner’s petition for being incompetent?

In the 1st respondent’s reply brief dated 4/12/07 but deemed fifed on 22/1/08, a single issue was distilled from the grounds of appeal thus:

“Whether the National Assembly Election Petition Tribunal was right when it held that the appellant did not plead the scores of the candidates that contested the election.”

The 2nd – 4th respondents filed a preliminary objection to the hearing of the appeal. It is dated 6/11/07. In their brief of argument dated and filed the same day they argued the preliminary objection and alternatively raised a single issue for determination thus:

“Whether the lower Court was right when it held that the Appellants failed to plead in their petition, the scores of the candidates in the election in question?”

The appellants filed a reply brief dated and filed on 28/1/08 to the 1st respondent’s brief and filed a separate reply brief dated and filed on 13/11/02 to the 2nd – 4th respondents’ brief. At the hearing of this appeal on 13/2/08, N. Joshua, Esq. adopted the appellants’ brief of argument and the respective reply briefs and urged us to allow the appeal. Mr. V.M. Uchendu adopted the 1st respondent’s brief and urged us to dismiss the appeal. K. Wodu, Esq. adopted the 2nd – 4th respondents’ brief and drew our attention to the arguments in respect of the preliminary objection contained at pages 2 & 3 thereof. He adopted the said arguments and the arguments on the merit of the appeal and urged us to dismiss the appeal.

As the 2nd – 4th respondents have raised a preliminary objection to the hearing of the appeal it is prudent to consider it first as it challenges the jurisdiction of this court to hear the appeal. The grounds for the objection as stated on the face of the notice of preliminary objection dated 6/11/07 are as follows: