Bona Oraekwe & Anor V. Obiora Chukwuka & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment)

The 1st Appellant, was the candidate of the Action Congress [AC], and 1st Respondent, who was sponsored by the Peoples Democratic Party [PDP], vied for the same election into the Anambra State House of Assembly as the Member representing Onitsha South Constituency II.

Dissatisfied with the declaration of the 1st Respondent as the duly elected Member representing the said Constituency, the Appellants filed a Petition at the Anambra State Governorship and Legislative Houses Election Tribunal wherein they prayed the Tribunal for the following –

“– That it be determined that the said Obiora Chukwuka was not duly elected and that his election into the Anambra State House of Assembly for Onitsha South 11 Constituency on the 14th day of April 2007

(1) Is void for reasons of:

(a) Corrupt practices;

(b) Substantial non-compliance with the provisions of the Electoral Act, and

(2) That the said election be nullified;

(3) That fresh election be conducted by the 2nd – 19th Respondents pursuant to paragraph 27 of the 1st schedule to the Electoral Act, 2006.

The Petition was accompanied with 15 Written Statements, however, before trial could commence, the 1st Respondent brought an Application praying the Tribunal to strike out the Petition for want of competence; and/or strike out the said written statements, on the following Grounds –

1. The Petition is not in accordance with the provisions of the Electoral Act 2006 and the First Schedule to the said Act.
2. The Petition did not comply with the mandatory provision of paragraph 4 (1) (c) of the First Schedule to the Electoral Act 2006 having not stated the scores of the candidates in the election as announced by INEC.
3. The purported Written Statements on Oath of the Listed petitioners’ witnesses attached to the Petition did not comply with the mandatory provisions of the Oaths Act.

The Application was argued and in its Ruling delivered on the 4th day of October 2007, the Tribunal struck out the said 15 Written Statements. Dissatisfied with the decision, the 1st Respondent filed a Notice of Interlocutory Appeal dated 20th October 2007 against the said Ruling.

At the end of the day, the Tribunal dismissed the Petition itself in its Judgment delivered on 18th January 2008, and the Appellants appealed against it with a Notice of Appeal dated 6th February 2008. However, the 2nd – 19th Respondents filed a Notice of Preliminary objection challenging the competency of the two Notices of Appeal on the Grounds that –

i. The decision appealed against vide the Notice of Appeal dated 20th October 2007 – – is basically interlocutory in nature and – – is incompetent and gross violation of Section 246 of the 1999 Constitution – – as no appeal lies to the Court of Appeal from an interlocutory decision of the Tribunal.

ii. Grounds 1 and particulars 1, 2, 3, and 4 of the 2nd Notice of Appeal dated 6th February 2008 does not arise from the decision appealed against and disclose no reasonable Ground of Appeal.