Dr. Alphonsus Ojo V. Independent National Electoral Commission (INEC) & Anor (2008)

LawGlobal-Hub Lead Judgment Report

CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.

This appeal emanated from the ruling of the Governorship & Legislative Houses election Tribunal of Delta State, delivered on 7/9/2007 by which the Petition of the appellant was struck out on the Ground that it was incompetent following the preliminary objection of the Respondents in that petition. The appellant had filed an election petition at the said tribunal challenging the Conduct of the 1st Respondent for presenting a Certificate of Return to the 2nd Respondent in respect of the election into the State House of Assembly for the Ukwuani Constituency on the ground that he, and not the Second Respondent, was the validly nominated Candidate of PDP that Contested that election and won and therefore ought to have been issued with a Certificate of Return having Scored the highest number of votes cast at the election.

Before then the appellant had sued the 1st Respondent and PDP at the Federal High Court Abuja in Suit NO.FHC/ABJ/CS/207/2007 for Certain declaratory and injunctive reliefs challenging the Substitution of the 2nd Respondent in this appeal for his name by the 1st Respondent at the prodding of PDP. That Suit was determined in favour of the appellant which declared that the appellant was the lawful candidate of PDP for that election.

Not withstanding this declaration, the 1st Respondent in total defiance of the Judgment of the aforesaid Federal High Court, proceeded to issue a Certificate of Return to the 2nd Respondent hence the appellant’s petition to the lower Tribunal.

Dissatisfied with the Ruling of the Election Tribunal Strucking out his petition, the appellant filed a notice of appeal on Twelve Grounds; Those Grounds of appeal without their particulars are as follows:

GROUNDS

1. The Tribunal erred in law when it held that the Appellant in his petition did not disclose the Locus Standi to maintain his petition before the Tribunal upon preliminary objections filed by the Respondent.
2. The Tribunal erred in law when it held that the petition of the petitioner did not disclose the scores of the candidates at the election which is the subject matter of the petition.
3. The Tribunal erred in law when it held that the petitioner did not disclose the person returned as the winner of the election and same was therefore liable to be struck out.
4. The Tribunal erred in law when it held that the non-joinder of the Peoples Democratic Party was fatal to the competence of the petition.
5. The Tribunal erred in law in reviewing and “departing” from the judgment of the Federal High Court sitting at Abuja.
6. The Tribunal erred in law in granting the motions of the 1st Respondent in its entirety.
7. The Tribunal erred in law when it held that the grounds on which the petition of the Appellant was based were not known to law.
8. The Tribunal erred in Law when being a Court manned by more than one Judge delivered a unilateral ruling striking out the petition of the Appellant.
9. The Tribunal erred in law when it held that the petitioner related solely and entirely to nomination.
10. The Tribunal erred in law when it held that the applications of the Respondents challenging the competence of a petition could be brought at anytime.
11. The Tribunal erred in law when it held that a winner of an election cannot present an election petition.
12. The Tribunal erred in law when it resolved preliminary objections and challenge to competence of a petition by resorting to extraneous evidence/materials and not the petition itself.
13. The Tribunal erred in law in entertaining the applications of both respondents to strike out the petition of the petitioner in limine.

Before this Court, the Respondents have also raised Preliminary objections on the Competence of the appeal. The 1st Respondent on the ground that the Grounds of appeal are invalid in that an appeal does not lie as of right against a decision striking out an election petition; that the Petition did not Comply with the provisions of the electoral Act 2006 and that the petition was not determined on the merits; For the 2nd Respondent, his objection was that the Notice of appeal was not Served on him.

Let me first dispose of the two Preliminary objections:

A Summary of the preliminary objection as presented by the 1st & 2nd Respondents are as follows:

For the 1st Respondent, they argued that appeal does not lie as of right against a decision of an election Tribunal by which an Election Petition was struck out. Secondly that the appeal is against an order of the Tribunal striking out the Election Petition on the grounds of non-Compliance with the mandatory provisions of the Electoral Act 2006, and thirdly that the petition was not determined on the merit. Alternatively, the 1st Respondent argued that Grounds of appeal as contained in the appellant’s notice of appeal are not valid grounds and are liable to be struck out. He cited Section 246 (1) (b) of the 1999 Constitution.

For the 2nd Respondent, his objection was based on the fact that non-service of notice of appeal is fatal to this appeal and as such this appeal is incompetent. He referred to paragraph 51 of the 1st Schedule to the Electoral Act, 2006 and order 2 Rule 6 of the Court of appeal Rules, 2007 and argued that Service of notice of appeal is a condition precedent in initiating an appeal. He referred to the case of ODOFIN V. AGU (1992) 3 NWLR PT. 229,350 ratio 6 at 356.

He contended that what the appellant did was to serve on the 2nd Respondent his appellant’s brief and the records of appeal.

In answer to the preliminary objection raised by the 1st Respondent, it is important to point out that the case of ORUBU V. NEC and other Cases cited by learned counsel for the 1st Respondent in his argument on the preliminary objection were decisions made before the 1999 Constitution with Decree NO.37 of 1987 in mind.

My humble view is that post 1999 Constitution appeals lie from any decision of an election petition Tribunal to the Court of Appeal. Any doubt as to this has been laid to rest by the Supreme Court in the Case of AWUSE V. ODILI (2003) 18 NWLR (Pt.851) Page 116 at 154. In Awuse v. Odili, the Supreme Court stated in very clear terms that interlocutory decisions in election petitions could be appealed in the Court of Appeal.