Hon. P.C. Okeke V. Mrs. Uche Ekwunife & Ors (2008)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO O. OMAGE, J.C.A

This is an appeal by the Petitioner in the Tribunal below. The Tribunal sat in Awka in Petition NO. EPT/AN/NA/HR/28/2007 for the house of representative election. The 1st respondent had raised preliminary objection to the petition of the appellant at the pre trial session on the ground inter alia that the appellant lacked the requisite standing to institute petition specifically that the appellant failed to join in the petition PDP, which party the petitioner claimed sponsored him for the election.

In furtherance of the objection made by the complainant now the 1st respondent, the petitioner aver that appellant filed his petition before the Tribunal and maintained therein in that the petitioner was a candidate for the Federal House of Representative election for Njikoka/Anocha/Dunukofia Federal Constituency which held on Saturday April 21st 2007. In the petitioner the Appellant averred that the 1st respondent Uche Ekwunife was not a candidate at the said election and was unduly returned by the 2nd respondent at the said election.

(2) That the 1st respondent was not duly elected by majority of lawful votes cast at the election. The process which commenced the proceeding in which the Petitioner put in issue for determination are the two motions filed by the 1st Respondent Uche Ekwunife in which she sought “an order of the Tribunal pursuance to paragraph 144(1), 143(3) of the Electoral Act 2006 par 4(1) (c) 49(5) of the 1st schedule to the Electoral 2006 to strike out the petition for incompetence and failure to comply with the provision of paragraph 144 (1) of the Electoral Act par 4(1) of the 1st schedule.” The 2-7th Respondent also took a action before the Tribunal and urged the Tribunal to strike out the petition on the ground that the scores of the candidate as declared and published by INEC was not stated in the petition.

(2) The candidate (name) who was returned at the election was also not stated.

(3) The Petitioner who is complaining of unlawful exclusion cannot validly present a petition.”

The issues which provoked the motion of the 1-7 Respondents to seek the order for striking out of the petition as contained in the petition was the averment in the petition that he participated in the election held on 21st April 2007 as the candidate of the PDP. He said he was the person duly nominated by the PDP to contest the election and that his name was published. He claimed that notwithstanding the above the 7th Respondent for INEC illegally substituted his name on the candidate but less than 60 days to the election. That because of his belief that his purported substitution was wrongful illegal and not in accordance with the provisions of the electoral Act 2006, he filed an action in the Federal High Court Enugu to challenge the substation and at the same time intensified his campaign before the election.

In their reply, in the Tribunal the 1st 2-7th Respondent severally and jointly filed the following documents, (a) declaration of the result of election form EC8 E (ii) certified true copies of the nomination documents for the said election to establish that the 1st Respondent was duly nominated candidate for PDP. After hearing the applications and the replies and the petition of the Petitioner and the replies of Respondents the Tribunal ruled on 17th September, 2007 as follow:

“That the petitioner was not a candidate at the election which holds on 21st April, 2007 and struck out the petition.”

The Petitioner was dissatisfied with the decision of the Tribunal he has filed his appeal to this court. In his brief the appellant, formulated the following issues for determination (1) whether the absence of his petitioner political party as a party in the election petition deprives the petitioner a standing to sure where his claim is that he won the election and should be returned as the winner, (2) Does the petitioners case a cause of action consist of one solitary averment a the totality of his pleadings and which the needs to plead his evidence. In the argument in his brief, this petition appellant referred and relies on the provisions of Section 144(1) Electoral Act which provides that an election may be presented by party or more of the following provisions. (a) Candidate in an election. (b) Political party which participated in this election submitted that by which of Section 144(1) Electoral Act, he was not precluded from filing his petition after the election of 21st April, 2007, his non joinder of the political party does not detar him. The petitioner said, he was a registered member of the PDP and was a candidate under the party for the Federal House of Representative for Njikoka Anaocha Dunukofia Federal Constituency held on 21st April, 2007. He averred in his brief that he was duly elected as winner. He pleaded the party membership card and his expression of interest with his party nomination form. The Petitioner pleaded he was the person nominated verified cleared and his name published for Njikoka/Anaocha/Dunukofia Federal Constituency held on 31st April, 2007.

He urged the Court of Appeal to hold and rule that the 1st respondent was not validly elected. (11) That the 1st respondent did not contest the election as a candidate of PDP. That the court should declare the Petitioner (himself) who scored majority of the lawful votes cast at the election and set aside the wrongful, return of the 1st respondent; and declare him the rightful winner of his Federal House of Representative election for Njikoka Anaocha Dunukofia Federal Constituency held on Sunday April 21, 2007. The Petitioner submit and urged this court to held that the totality of the claim is for his court to determine which of the two candidates at the election of 21st April, 2007 is duly elected and such determination calls for presentation of evidence.

The 2nd issue on which the appeal seeks an order of Court of Appeal petition at that stage in the Tribunal below he needs to plead evidence and submits that the tribunal is misconceived when it relied on the narrow part of the petitioners’ pleadings out of con of her pleadings and required the petitioner to plead evidence. The appellants filed also a replied brief in which as the petitioner he responded and elaborated on the appellants brief.

I have recorded above that the 1-7th Respondents particularly the 1st respondent filed two motions seeking an order of the Tribunal to strike out the petition for incompetence, and for failure to comply with the provision of Section 144(1) of the Electoral Act par 41(c) of the 1st schedule of the Act.

The application was supported by an affidavit, and submissions of the two parties the 1st respondent and the 2nd to 7th Respondents. In it the two parties showed that the appellant in the Tribunal failed to state the scores of each of the candidates as declared and published by INEC (11) The name of the candidate returned at the election was not stated.