Chief Chris Nwaukoni V. Joan Onyemachi Bielonwu & Ors. (2008)

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ALI ABUBAKAR BABANDI GUMEL, J.C.A.

This is an appeal against the decision of the Governorship and Legislative Houses Election Tribunal of Delta State, sitting at Asaba (hereinafter simply referred as the lower Tribunal) in petition No. CA/B/EPT/HA/01/2007 in a ruling delivered on 11th December, 2007 wherein the Amended Petition of the Petitioner/Appellant was struck out for being incompetent. The Petitioner/Appellant was dissatisfied with the ruling of the lower Tribunal of 11/12/07 and appealed to this Court in a notice of appeal dated 27th December, 2007.

The facts leading to this appeal were that the Appellant and the 1st Respondent being members of the same political party – PDP, indicated interest in being sponsored to contest the election for the Aniocha South Constituency of the Delta State House of Assembly. In pursuit of this interest, the PDP organized a primary election in which the Appellant and 1st Respondent were candidates along with other interest members of the party. The Petitioner/Appellant claimed to have won the primary election.

According to the Appellant, the Executive members of the PDP of the PDP in Delta State as well as some Govern-Officials did not want him to be the candidate of the PDP for the said Aniocha South State Constituency; rather these officials appeared to have preferred the 1st Respondent. In view of their preference for the 1st Respondent, they went ahead to allow her to parade herself as the candidate of the PDP for the election into Aniocha South State Constituency. She (1st Respondent) printed posters and was presented to the electorate as the flag bearer of the PDP. Efforts were made to substitute the name of the Appellant with that of the 1st Respondent as the rightful candidate of the PDP. The National Executive Committee, however, continued to maintain the Appellant as the candidate of the PDP. His name was submitted to the 2nd Respondent who screened and cleared him to contest the election as the candidate of the PDP. The candidates of other political parties such as AC, DPP, CP, and MDP were also cleared. One Victor Okuokei was said to have been presented to the 2nd Respondent as the candidate of Accord Party for election into Aniocha South Constituency. For reasons which do not appear quite obvious from the record he was not cleared to contest the election. Therefore, the official ballot paper for the election was alleged not have any name or symbol of the Accord Party.

The election was held on 14th April, 2007. At a point after the election the 1st Respondent was returned by the 2nd Respondent as the duly elected candidate for the Aniocha South State Constituency. The 1st Respondent was said to have won the election as the candidate of Accord Party. The Appellant was aggrieved by the return of the 1st Respondent as the winner of the election. Against the return of the 1st Respondent by the 2nd Respondent as the winner of the election, the Appellant filed a petition dated 24th April, 2007 on 30th April, 2007. Upon being served with the Petition, the 1st Respondent entered conditional appearance on 8th May, 2007 and later filed a 61 paragraph reply on 21st May, 2007. The 2nd – 12th Respondents also entered conditional appearance on 8/5/07 and filed a preliminary objection to the competence of the petition and the jurisdiction of the Tribunal to entertain it as well as a reply to the petition itself. This preliminary objection and reply were dated 21/5/07. In paragraph 61 of her reply the 1st Respondent urged the Tribunal to dismiss the Petition for being unmeritorious and vexatious. By paragraph 43 of their reply the 2nd-12th Respondents also urged the Tribunal to dismiss the Petition for being frivolous and speculative. Just before these prayers, the respective Respondents had denied all the key and material averments in the petition. Also, both the petition and the respective replies had attached very copious documents in support of the averments therein.

The Petitioner/Appellant filed replies to the respective replies of the Respondents. The replies were filed on 30/5/2007. On the 8/6/2007 the Petitioner/Appellant filed a motion on notice pursuant to paragraph 14 of the 1st schedule to the Electoral Act 2006 and the inherent jurisdiction of the Tribunal for an order for leave to amend the petition and a deeming order that the petition was properly filed and served. The 1st Respondent filed a counter affidavit to oppose this motion. The 2nd – 12th Respondents did not file a Counter-affidavit. The motion was argued on 28/6/07. The Respondents vigorously opposed this motion. All the grounds of the objections of the Respondents to this motion were considered by the Tribunal and systematically dismantled. In a ruling dated and delivered on 11/7/07, the Petitioner/Appellant was granted leave to amend the petition and further the petition was deemed as properly filed and served. Lest I forget, the amendment sought to be introduced to the petition was simply to insert the address of the Petitioner.

In a motion dated 2/07/07, the 1st Respondent applied to the Tribunal for an order for the petition to be dismissed for being irregular and incompetent or in the alternative for certain paragraphs of it to be struck out. The paragraphs were many and striking them out would have had the effect of knocking off the bottom of the petition. This motion was duly argued. Five issues were considered for determination in the application. All the five issues were resolved in favour of the Petitioner/Appellant. At page 801 of the record, the lower Tribunal held as follows: –

“In the final analysis it is the considered view of the Tribunal that the 1st Respondent’s motion on notice is without any ment and is accordingly refused. The Tribunal will proceed to full hearing of this petition.”

This ruling was delivered on 8/10/07. Before the Petition could proceed to hearing, the motion of the 2nd to 12th Respondents dated 21/8/07 was at this late hour fixed for hearing on 24/10/07. However, before that date the 1st Respondent filed another motion on 22/10/07 inter alia seeking for the following 2 reliefs:

a) An order granting leave to the 1st Respondent/Applicant to filed and argue motion on notice to strike out the amended petition for being incompetent; and

b) An order striking out this amended Petition dated 8/6/07 for being in competent.

This application was predicated on 9 very copious grounds, a schedule and a 16 paragraph affidavit in support.

While the application of the 2nd – 12th Respondent was due for hearing on 24/10/07, they also filed another motion on 23/10/07 seeking for the following 2 reliefs: –

VIZ: –