Chief Damian a. Ozurumba V. Chinagorom Nwankpa & Ors (1999)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

This is an appeal by the petitioner before the Imo State Local Government Election Tribunal. He had contested the office of Chairman of Isiala Ngwa South Local Government against the 1st respondent, who had the 2nd respondent as his running mate. He was defeated in the election and so filed his petition against the election of the two respondents. One of the grounds on which he challenged their election was that at the time of their election neither one of them was qualified to be elected. He averred that this was so because neither of them paid his/her tax as and when due as required by the enabling law. The enabling law is the Local Government (Basic Constitutional and Transitional Provisions) Decree, No. 36 of 1998. He averred additionally that at the time of his election the 1st respondent did not possess the requisite educational qualification.

Although the parties placed a mass of evidence, both oral and documentary, before the tribunal to prove or disprove the averments, the tribunal declined to make a ruling one way or the other on the issue joined and canvassed. It adopted this approach because, in its view, it lacked the jurisdiction to pronounce on the issue. The jurisdiction to do so is vested, according to it, in I.N.E.C. or its duly accredited official. It arrived at this conclusion on a consideration of the effect of paragraph 6(2)(a) and (3) of Schedule 4 to Decree 36 of 1998 on sections 51(b) and 84(1)(a) of the Decree. The sections provide:

“51. A person shall be qualified for election under this Decree if –

(b) he produces evidence of tax payment as and when due for a period of three consecutive years immediately preceding the year of the election;

84.(1) An election may be questioned on any of the following grounds, that is

(a) That a person whose election is questioned was, at the time of the election not qualified, or was disqualified from being elected;”

Paragraph 6(2)(a) and (3) provides:

“(2) The Electoral Officer shall be entitled to declare the nomination form invalid only on one or more of the following grounds-

(a) that the candidate has not produced evidence of tax payment as and when due for a period of three years immediately preceding the year of election or a valid evidence of exemption from the payment of all or any of the tax; or

(3) Notwithstanding any other provision of this Decree or any other law, the decision of the Electoral Officer, that a candidate has been validly nominated under the sub-paragraph (2) of this paragraph shall not be the ground of an election petition under this Decree.”

From its reading of these two paragraphs the tribunal concluded at pages 104 – 105 of the record that:-

“If a candidate is declared qualified to contest an election under sub-paragraph (2) the Electoral Officer’s decision that the candidate has been validly nominated shall not be the ground of a petition, since such decision is final.” (Italics mine)

It reproduced paragraph 6(3) and continued at page 105,