Barr. Joseph Ukpong & Ors. V. Sen. Aloysius Etuk & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

The appellants and the 1st and 2nd respondents had contested the election conducted by the 3rd respondent in the Akwa Ibom North-West (Ikot Ekpene) Senatorial Constituency of Akwa Ibom State on the 9/4/2011. At the end of the polls, the 1st respondent sponsored by the 2nd respondent was declared and returned winner of the election on the 10/4/2011. Expectedly, the appellants were dissatisfied with the declaration and return by the 3rd respondent and so questioned the election by presenting an election petition NO.EPT/AKS/SEN/04/2011 on the 30/4/2011 before the National/State Houses of Assembly Elections Tribunal sitting at Uyo (hereafter to be called Lower Tribunal).

The petition which is at pp. 1 – 5 of the record of appeal was amended with leave of the lower tribunal granted on the 24/6/2011. The amended petition appears at pp. 1261 – 1265 of Volume Two of the record of appeal and contained Ten (10) paragraphs in all. I have perused the whole petition carefully more than once and am in no doubt that no ground on which the petition was based was clearly and precisely stated by the appellants therein. Section 138(1) of the Electoral Act, 2011 which was applicable to the petition, has set out very clearly, the grounds distinctively, on which an election may be questioned as follows:-

138(1) An election may be questioned on any of the following grounds: that is to say –

(a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election;

(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or

(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

The 1st Schedule to the Electoral Act thereafter made provisions for Rules of Procedure to be followed in filing election petitions for the guidance of parties wishing to question elections in which they participated. Specifically, the Laws and Rules of Procedure were enacted to govern all the electoral matters to which they relate in addition to the general Laws and Rules of Procedures that apply to other civil causes or matters and may, also by the operation of the Electoral Laws and Rules of Procedure, are applicable to electoral matters. That is one reason why the superior courts have over the years held that election petitions in particular, are sui generis and not ordinary civil matters because compliances with the specific Laws and Rules of Procedure enacted specially to govern them, is necessary. HARUNA v MODIBBO (2004) 16 NWLR (900) 487; BUHARI v INEC (2008) 19 NWLR (1120) 246.

Paragraph 4(1) of the 1st Schedule to the Electoral Act dealing with the contents of an election petition has made the following provisions:- :

“4(1) An election petition under this Act shall –

(b) Specify the parties interested in the election petition;

(c) State the holding of the election, the scores of the candidates and the person returned as the winner of the election; and

(d) State clearly the facts of the election petition and the ground/grounds on which the petition is based and the relief sought by the petitioner.”