Akunne C. Ozobia V. Chuks Anah & Ors (1999)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

The petitioner in this case was a Chairmanship candidate at the 5th December, 1998, Local Government Elections held for Onitsha North Local Government Council. He filed a petition before the Anambra State Election Tribunal holden at Awka challenging the return of the 1st respondent as the Chairman elect and prayed the tribunal also for his return instead of the 1st respondent.

The facts of the case upon which this appeal is based are as follows:- In the course of the Election Petitions Tribunal proceedings, appellant, realising that the fees payable by him had been wrongly assessed and as such not fully paid, filed a motion on notice pursuant to paragraphs 18, 37, 44 and 50 of Schedule 5 of Decree No.5 of 1998. He prayed the tribunal for the following orders:-

(i) Extending the time within which to pay the balance of the filing and hearing fees of this petition.

(ii) Directing the Secretary of the tribunal to accept the said fees from the petitioner, and

(iii) For such order or further orders as the tribunal may deem fit to make in the circumstances.

When the motion was sought to be moved, respondent raised a preliminary objection orally as to the competence of the petition itself. The objection was premised on the ground that necessary fees had not been paid by the petitioner at the time the petition was “presented” to the tribunal. It was contended that this failure had rendered the petition incompetent, depriving the tribunal of its jurisdiction.

Counsel to the petitioner on the other hand contended that the petition was competent and the tribunal had power to hear it. Counsel conceded though that the petition was defective but the defect was a procedural one which the tribunal could cure having re-course to paragraphs 4(4) (1) (2) & (3) and paragraph 50(1) of the 5th schedule to the Decree.

In a considered ruling, the tribunal held that even though the petitioner had complied with the provision of section 82 of the Decree by presenting his petition within the stipulated time, failure to pay the necessary fees was a breach of the mandatory provisions of 37(1) which breach rendered the petition incompetent. The tribunal sustained the respondents’ objection and struck out the petition.

The petitioner being dissatisfied with the tribunal’s ruling brought this appeal. The appeal is predicated on three grounds which are:

Ground of appeal 1

Error of law: The learned trial Election Tribunal erred in law striking out the petition as being incompetent.

Particulars of error

(1) The sale reason for striking out the said petition was the petitioners non payment of the full prescribed filing fees at the time the petition was presented, even though the petitioner paid all the fees as was assessed by the tribunal.