Boniface Isichei V. Independent National Electoral Commission (INEC) (2009)

LawGlobal-Hub Lead Judgment Report

GEORGE OLADEINDE SHOREMI, J.C.A.

This is an appeal arising out of an Election Petition filed on 15th day of May 2007 before the Governorship and Legislative House Election Petition Tribunal holden at Asaba, wherein the Appellant sought for the following reliefs against the Respondent:-

1). A declaration that the Petitioner being the validly nominated candidate of the Peoples Democratic Party (PDP) be issued with a Certificate of Return for the Aniocha North Constituency House of Assembly having scored the highest number of votes cast at the elections.

2). An Order that the Petitioner be declared validly elected and returned, his political party having polled the highest number of lawful votes cast at the election.

3). An Order that INEC issues the Petitioner a Certificate of Return, the Petitioner having been duly sponsored by a political party (PDP), having contested and won the elections for Aniocha North Constituency House of Assembly general elections.

Before the filing of the Petition, the petitioner had gone to the Federal High Court, Abuja on a pre-election case in Suit No. FHC/ABJ/CS/221/2007. BONIFACE ISICHEI V. PDP & INEC wherein the Petitioner challenged the purported substitution of his name by PDP and INEC and was granted the following reliefs:

1. A Declaration that there are no cogent and verifiable reasons for the Defendants to change, substitute, or entertain the change of the name of the Plaintiff as the candidate of the Peoples democratic party (PDP) for Aniocha North Constituency House of Assembly Elections due in April, 2007.
2. A Declaration that the Defendants cannot change or substitute the name of the Plaintiff as the 1st Defendant’s candidate for the Aniocha North Constituency of the House of Assembly the time for so doing having expired.
3. A Declaration that it is unconstitutional, illegal and unlawful for the Defendants to change the name of the Plaintiff as the Aniocha North Constituency of the delta state house of Assembly candidate after the plaintiff had been duly nominated by the 1st defendant as its candidate and after the 2nd Defendant has accepted the nomination and published the name and particulars of the Plaintiff in section 32(3) of the Electoral Act until the High Court or any Court of competent jurisdiction disqualifies the Plaintiff and or until cogent and verifiable reasons are given to the 2nd Defendant by whosoever desires to make the change.

The Respondents filed a motion on notice on the 4th of July, 2007 for an order striking out/dismissing the petition for not joining the said Hon. Victor Ochei as a statutory Respondent to the petition. This was regardless of the fact that the respondent issued the certificate of return to Hon. Victor Ochei, after the petition had been filed and in disobedience of the Federal High Court’s judgment. The Petitioner/Appellant filed a counter affidavit on the 19th day of July, 2007, wherein he annexed a copy of the Federal High Court’s judgment, of the press conference by the delta State Resident Electoral Commissioner in Asaba declaring the results of the Elections on party bases, and a letter from Accord Party substituting one Daniel Madubuike with the said Hon. Victor Ochei, as exhibits.

The Election Petition Tribunal struck out the Petition on the ground inter-alia that the non-joinder of the said Hon. Victor Ochei contravened section 140 and 144 (2) of the Electoral Act 2006 as well as paragraphs 4 (1) (a) and (c) of the First Schedule to the said Act and therefore incompetent..

The Appellant has now filed an Appeal before this Honourable court to determine amongst other issues raised, the issue of non joinder and the propriety of striking out the entire petition and also for the court to invoke its powers under section 16 of the Court of Appeal Act and determine the petition.

The Ruling of the lower tribunal is as contained on page 96-112 of the Record. In conclusion the tribunal held as follows and I quote –

“From all that has been said it is no doubt clear that all the grounds of the instant application brought by the respondent in the instant petition succeed. This being the case the respondent has therefore successfully impugned or challenged the competence of the instant petition and consequently the jurisdiction of the tribunal to entertain the same. This is because no court or tribunal has the jurisdiction to entertain a matter that is shown to be incompetent.

The petitioner in his address has argued that the instant application should be dismissed so that the instant petition can be heard on the merit. Suffice it to say that the law is most settled that when a court has no jurisdiction to entertain a matter, anything that it does in relation thereto will be an exercise in futility. See ATTORNEY-GENERAL OF KANO STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2007) ALL FWLR (Pt 364) 238 AND MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 342. The tribunal therefore has no choice in the matter but to put an end to the instant petition having found before now to the effect that the respondent has successfully impugned or challenged the competence of the said petition and consequently its jurisdiction to entertain the same.

In conclusion the tribunal hereby strikes out the instant petition on the ground that it lacks jurisdiction to entertain the same having before now found all the grounds of the instant application brought by the respondent in the instant petition (and which have successfully impugned or challenged the competence of the instant petition) to succeed.

It is against this conclusion that the Appellant filed grounds of appeal set out herein without the particulars.