Barrister Vincent Osakwe V. Independent National Electoral Commission (Inec) & Ors (2005)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

This is an appeal against the judgment of the National Assembly/Governorship and Legislative House Election Petition Tribunal, Anambra State of Nigeria delivered on the 28th day of October, 2003 in petition No. EPT/AN/HA/70/03 in which it dismissed the petition of the appellant against the return of the 5th respondent as the duly elected member of Anambra State House of Assembly representing Dunukofia Local Government Area constituency following an election conducted on the 3rd day of May, 2003.

It is the case of the appellant that he was nominated by the Peoples Democratic Party a.k.a. PDP as its candidate for the Anambra State House of Assembly election of 3/5/03 in Dunukofia Constituency. That his name, along with other PDP candidates, was forwarded to the 1st respondent as candidate for that election. That following the receipt of the list containing the name of the appellant, the 1st respondent, also known as INEC duly published the list for the election. That no subsequent publication was made by 1st respondent after that of 15/3/03. That the appellant contested the said election of 3/5/03 and scored the highest number of valid votes cast at that election but rather than declare him the winner, the 1st-4th respondents returned the 5th respondent, who according to the appellant, was not PDP sponsored candidate and who never contested the said election, as the winner thereof.

The appellant was not satisfied with the action of the 1st to 4th respondents and instituted the petition against the respondents claiming as follows:

“(i) That the petitioner be declared validly elected and or returned and not the 5th respondent having polled the highest number of lawful votes cast at the said election and duly declared as winner and issued with Form EC8E by the returning officer to wit: (sic) House of Assembly Dunukofia Constituency.

(ii) That the 1st – 4th respondents (particularly the 4th respondent) have no power whatever to announce and or declare anybody else particularly Honourable Paul C. Okeke as the winner of Anambra State House of Assembly representing Dunukofia Constituency.

(iii) That the petitioner be declared validly and/or returned having polled the highest number of lawful votes cast at the said election and not the 5th respondent.

(iv) That the 5th respondent was not duly elected/returned and did not participate in the said election and should not have been declared as duly returned or elected at the said election.

(v) An order of this honourable Tribunal declaring the said judgment/order obtained in suit No. FHC/ABJ/CS/176/03 and on the 11th day of April, 2003 as a nullity having offended the express provisions of the Electoral Act, 2002, Federal High Court (Civil Procedure) Rules, 2000 and also in breach of one of the cardinal principles of natural justice audi alteram partem.”

On the other hand, the case of the 5th respondent is that on the 27th day of December, 2002 the PDP held primary election for the Dunukofia Constituency which 5th respondent won after which his name was forwarded by the executive of the party in the Local Government to the PDP, State Headquarters for ratification, which was done and the list containing the name of the 5th respondent was subsequently forwarded by the said State Executive of PDP to the National Secretariat of PDP for further ratification. That by letter dated 10th February, 2003 the National Secretariat of PDP forwarded the Party’s list of candidates to the 1st respondent. That following an attempt by a group of people to jettison the duly constituted list of the PDP vide a list of 6th March, 2003 which list contained the name of the appellant, the PDP sent another list of the same date i.e. 6/3/03 revalidating the initial list of 10th February, 2003. That the revalidation list contained the name of the 5th respondent. That the list was published and 5th respondent was invited at the 1st respondent’s office at Awka and was screened and cleared to contest the election. That at the end of the election 5th respondent was declared winner and was duly returned having polled 17,562 votes and issued with Form EC8E and a Certificate of Return. These documents were tendered, admitted and marked as exhibits at the trial.

At the conclusion of trial the Tribunal delivered a judgment, in which it dismissed the appellant’s petition, holding that the judgment in suit No. FHC/ABJ/CS/176/2003 represented an action by PDP whose prerogative it was to sponsor candidate and by virtue of which 5th respondent was the candidate so sponsored for the said election.

The appellant dissatisfied with that judgment has appealed to this court. Learned senior counsel for the appellant, Chief (Dr.) Chimezie SAN in the appellant’s further amended brief of argument deemed filed on 18/1/05 has formulated three issues for determination. The issues are as follows:

“(1) Whether the learned trial Tribunal was right when it made an order dismissing the petition of the petitioner/appellant?.

(2) Whether the learned trial Tribunal was correct when it held that the decision in suit No. FHC/ABJ/176/2003 (sic) should apply to this case?.