Hon. Arthur C. Kalagbor V. Independent National Electoral Commission & Ors. (2008)

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SAKA ADEYEMI IBIYEYE, J.C.A. OFR

This appeal was instanced by the appellant who was the petitioner at the National Assembly/Governorship and Legislative Houses Election Petitions Tribunal against the decision of the Tribunal which sat in Port Harcourt on the 31st day of January, 2008. The election which was conducted on 14th April, 2007 was for the Gubernatorial seat for Rivers State. The appellant as per pages 4 and 5 of the record of proceedings was one of the nineteen candidates who contested for the gubernatorial seat on the 14th April, 2007. Paragraphs C and D of the Petition filed on 7th May, 2007 state the reliefs sought as follows:

“1. A Declaration that the 1st ” Respondent was not a qualified candidate to contest the said election as at the 14th day of April, 2007 when the election was held.

2. A declaration that the Petitioner was validly nominated by his Political Party but was unlawfully excluded from the above election by the 2nd Respondent.

D. ………………………………………

1. That the Governorship Election for Rivers State conducted for the 14th of April, 2007 be nullified and a fresh election be conducted.”

In view of the peculiar circumstances of this case it is apt to state, albeit saliently that the appellant as the petitioner filed his petition against three respondents who were:

1. Sir Celestine Ornehia
2. The Independent National Electoral Commission (INEC)
3. Chief Rowland Uwah (Resident Electoral Commissioner, River State).

But as at the time judgment was delivered in this case on the 31st day of January,2008 the respondents reduced to two without the 1st respondent. Before the reduction in the number of respondents, all the three respondents had filed their replies to the petition.

At the trial, the petitioner/appellant’s four witnesses testified followed by the testimony of the only witness for the original 1st respondent. Before the original 1st and 2nd respondents could call their only witness, the Supreme Court delivered its judgment on 25th October, 2007 in Appeal No. SC/252/2007 between RT. HON. ROTIMI CHIBAIKE AMAECHI AND INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (unreported) where it declared Amaechi the one entitled to be in the Governorship seat in Rivers State since he was the lawful candidate of the Peoples Democratic Party at the election and ordered Celestine Omehia (the original 1st respondent) who was returned elected by the original 2nd and 3rd respondents and that Amaechi be sworn in immediately.

On 31st October, 2007,the appellant filed an application before the trial Tribunal praying for an order to substitute the original 1st respondent, Sir Celestine Omehia with Rt. Hon. Chibuike Rotimi Amaechi as the 1st respondent. The Tribunal heard arguments on the relief sought and dismissed it as per the ruling delivered on 3rd December, 2007. Thereafter the original 1st respondent filed and argued an application that his name be struck out as the 1st respondent. The Application was granted on the 4th of December, 2007 leaving the original 2nd and 3rd respondents now 1st and 2nd respondents until judgment was delivered on the 31st January, 2008.

Thereafter the new 1st and 2nd respondents’ only witness testified. At the close of evidence learned counsel for the appellant and respondents adopted their written addresses.

In a considered judgment, the Tribunal held inter alia, at pages 324 and 325 of the record of proceedings:

“It should be noted that this is an election petition which is said to be sui generis. It is unlike an ordinary civil matter where the plaintiff can choose whom (sic) to sue. In an election petition, the petitioner has no choice but to sue the statutory respondent as provided by the relevant Electoral Act. And failure to abide by the provision of the Act (sic) renders the petition incompetent. In the instant case, the relevant Section is 144(2) of the Electoral Act, 2006.

By the judgment of the Supreme Court delivered on 25/10/07 where Sir Celestine Celestine Omehia was ordered to vacate the seat of Governor of Rivers State immediately, the unsuccessful application of the Petitioner to substitute Sir Celestine Omehia with Rt. Hon. Chubuike Rotimi Amaechi and the subsequent striking out of the name of Sir Celestine Omehia from the petition should have dawned on the petitioner that the petition is circumvented and rendered incompetent.

It is trite law that the facts that the parties in this petition consented to continue the hearing up to conclusion does not confer jurisdiction on the Tribunal and we so hold. Any election petition which does not have the declared winner of the said election as the respondent is incompetent, so be this Petition.

Having held that this petition as presently constituted is incompetent, we felt it is unnecessary to deal with the remaining issues as formulated.