Chief Ambrose Owuru V. Independent National Electoral Commission of Nigeria & Ors (1999)

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MICHAEL EYARUOMA AKPIROROH, J.C.A

This is an appeal from the Ruling of the National Assembly Election-Tribunal sitting at Port Harcourt.

The petitioner filed this petition at the National Assembly Election Tribunal on 18th March, 1999 and the 1st and 2nd Respondents were served with the petition on 30th March, 1999 while the 3rd Respondent was served on 29th March, 1999.

Upon the service of the petition on the 3rd Respondent he filed a memorandum of conditional appearance and indicated therein that he would raise preliminary objection against the hearing of the petition on grounds of law. On 7/4/99 he filed a motion to strike out the petition on the following grounds:-

“1. An ORDER striking out this purposed election petition.

2. AND for such further or other orders as this Honourable Tribunal may deem fit to make in the circumstances.
3. AND FURTHER TAKE NOTICE that the grounds on which this application is made are as follows:-
4. The purported petition is not an election petition within the purview of section 75 of the National Assembly (Basic Constitutional and Transitional Provisions) Decree 1999 in that it does not complain of an undue election or undue return of any candidate in respect of a specific senatorial district in Rivers State in the last senatorial election held on 20/2/99.
5. The purported petition failed to state the particular senatorial district in Rivers State the petition to the holding of election in respect of the senatorial district, the names of the candidates at the election, the scores of the candidates and the person returned as the winner of the election and therefore violated the mandatory provisions in paragraph 5(1)(c) of schedule 5 to the National Assembly (Basic Constitutional and Transitional Provisions) Decree, 1999 and is therefore defective and liable to be struck out by virtue of the provisions of paragraph 5(6) of Schedule 5 to the said Decree.
6. The purported petition did not state the person elected or returned as elected which person must be joined as a party in the election petition as mandatorily required by the provisions of section 75 of the said Decree.
7. The purported petition was not brought on any of the four grounds on which an election may be questioned as specified in section 75(1) of the said Decree.
8. No name of the occupier of the petitioner’s address for service was stated at the foot of the election as mandatorily required by the provisions of paragraphs 5(4) of Schedule 5 to the said Decree with the result that the petition shall be deemed not to have been filed unless the Election Tribunal otherwise orders. See paragraph 5(5) of schedule 5 to the said Decree.
9. At the time of presenting the purported election petition, the petitioner failed to give security for all costs which may become payable by him to a witness summoned on his behalf or to a respondent and therefore contravened the provisions of paragraph 3(1) of schedule 5 to the said Decree with the result that there shall be no further proceedings on the election petition. See paragraph 3(4) of schedule 5 to the said Decree.

Dated at Port Harcourt on Wednesday, April 7, 1999.”

After hearing submissions from counsel, the Tribunal struck out the petition in its ruling delivered on 21/4/99.

Dissatisfied with the ruling of the Tribunal, the appellant filed eight grounds of appeal against the said ruling (See pages 48- 50) of the records. The appellant and the 3rd Respondent filed their brief of argument in this court, but no brief was filed on behalf of the 2nd and 3rd respondent.

From the grounds of appeal filed, the appellant formulated four issues for determination in the appeal. They are:-

“1. Whether the Tribunal’s interpretation of S.75 and 79 of Decree No. 5 was right and or justified based on which the petition was struck out for non-compliance with the said provisions of the Decree.

2. Whether the contents of the petition as relevant to the petitioner’s case did not comply with the paragraph 5 to the Decree or whether compliance with all the paragraphs 4 of schedule 5 to the Decree is in mandatory forms terms.
3. Whether the petitioner having been screened and cleared to contest could be substituted with the 3rd Respondent at the Election.. Whether the petitioner was not entitled to judgment based on his unchallenged position for non-filing of reply-defence by the respondents.

The 3rd Respondent on the other hand disagreed with the issue formulated by the appellant and identified only one issue for determination in the appeal. It reads:-

“1. Whether the Election Tribunal was right in striking out the appellant’s petition.”

I would like to adopt the issue formulated by the 3rd respondent in this brief of argument in resolving the issues raised in the appeal. Put in another way, was the Tribunal right in striking out the petition without hearing it on merits in the face of paragraphs 4, 5, 6 and 7 of it?

Learned counsel for the appellant submitted in his brief of argument that the Tribunal was wrong in ruling that the right to petition is now restricted by section 70 of Decree No. 5 of 1990 for a candidate who loses at an election by virtue of section 78(1)(b) of Decree No. 5 of 1999. He then referred to Section 78(1)(b) of the same Decree and submitted that the appellant’s petition falls within it.