Engreener Tuboikonba Baniye & Anor V. Hon. Otelemaba Dan Amachree & 2 Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A (Delivering the Leading Judgment)

On the 28th of September 2011, I dismissed this appeal and reserved reasons for my decision to a later date. I now give reasons for my decision in this appeal.

On the 26th day of April, 2011, an election was held to elect a member representing Asari-Toru constituency I into the Rivers State House of Assembly by the Independent National Electoral commission (INEC).

At the end of the election, the first Respondent herein was declared the winner and returned as elected member representing the said constituency.

The Appellant herein who contested the election under the platform of Action Congress of Nigeria (CAN) is dissatisfied with the result of the election and therefore challenged same at the National and State House of Assembly Election petition Tribunal (henceforth to be referred to as Tribunal) sitting at port Harcourt. Part of the petition that is relevant to this appeal reads thus:-

“Your 1st petitioner states that the election was held on the 26th day of April, 2011, when ENGR. TUBOIKONBA IBANIYE, HON OTELEMABE DAN AMACHREE and others were candidates, and your petitioner state that

(i) The election was invalid by reason of corrupt practices and non compliance with the provisions of the Electoral Act (as amended).

(ii) The 1st Respondent was not duly elected by majority of lawful votes cast at the election. WHEREFORE your petitioner pray that it may be determined that the said HON. OTELEMABA DAN AMACHREE was not duly elected or returned and that his election was void by reason of corrupt practices, AND THAT your 1st petitioner ought to have been returned as elected.”

In reaction to the petition aforesaid, the first and 2nd respondents filed their respective replies and issued separate notices of Preliminary objection to the competence of the petition. The common ground of objection in the two notices of Preliminary objection is that the petition is in flagrant violation of the mandatory provision of paragraph 4(1) (c) of the 1st schedule of the Electoral Act 2010, in that the scores of the candidates, the person returned as the winner of the election and the ground or grounds on which the petition is based are not stated.

The Tribunal upheld the Preliminary objection in the following words:-

“It seems obvious to us that having not stated the scores of the candidates in the election including his own in a petition complaining of undue return, the petition is by that omission incurably effective (sic defective) and liable to be struck out.”

The petition was accordingly struck out. The Appellants herein are dissatisfied with the ruling of the Tribunal and have therefore brought this appeal. The notice of appeal at page 270 of the record of appeal contains three grounds of appeal.

Parties filed and exchanged briefs of argument.

The Appellants formulated five issues for determination of the appeal.