Mr Godson Chidi Anyanwu V. Mr. Samuel Eke & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABDULLAHI, J.C.A.

This is an appeal against the decision of the Governorship and Legislative Houses Election Petition Tribunal sitting at Port Harcourt, delivered on the 4th December, 2007 in which the petition of the Appellant was dismissed on the ground of irregularity or lack of personal service of the originating process on the 1st Respondent.

The facts of the case as can be gathered from the records are that on the 14th day of April, 2007, election was conducted for all the states Houses of Assembly in the country. The Appellant and the 1st Respondent were candidates on the platform of their various political parties, Action Congress (AC) and Peoples Democratic Party (PDP) respectively.

The Appellant who came a distant 5th position with only 86 votes as against the 1st Respondent 36,613 votes was aggrieved by the return of the 1st Respondent and consequently filed a petition against the Respondents on the 12/05/07 before the said tribunal.

The originating process of the petition was alleged not to have been served on the 1st Respondent as required by law. The 1st Respondent’s Solicitors obtained photocopies of the petition, entered conditional appearance, filed a reply out of time and before the hearing of the petition raised a preliminary objection as to the competence of the petition and the jurisdiction of the Tribunal to entertain the said petition.

The Notice of Preliminary Objection reads in part thus:

“TAKE NOTICE that this Honourable Tribunal shall be moved on the … day… May be heard on the motion praying for the following reliefs:

1. AN ORDER granting leave to the Appellant to move this motion as a matter of extreme circumstance;
2. AN ORDER dismissing this petition for want of jurisdiction.”

The ground upon which the relief is sought is:

(a) That the originating processes in the petition were not served at all on the 1st Respondent as required by the Electoral Act, 2006.”

It is instructive to note that in response to the above reproduced preliminary objection, the Appellant claimed that the 1st respondent was served with the processes Arguments were taken by the Tribunal and after a thorough consideration of the issues raised by the parties, the Tribunal found as fact thus:

“Hearing having not yet commenced, we hold on the authorities cited here above that the objection was filed within a reasonable time as required by paragraph 49 (2) of the 1st Schedule of the Act, this issue is also resolved in favour of the Applicant.

Accordingly, the preliminary objection is sustained and the Petitioner’s petition is hereby dismissed for lack of personal service on the 1st Respondent/Applicant.”

Expectedly, the Appellant, on the 13/12/07 approached this Court with a Notice of Appeal which carries three grounds. He filed and distilled from it a sole issue for determination as follows:

“Whether the Tribunal was right in dismissing the petition in its entirety for lack of personal service on the 1st Respondent.”