Hon. Dein Benadoumene & Anor V. Inec & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

On the 12th October 2011, this court dismissed this appeal and reserved reasons for that decision to a date to be communicated to the parties. The reasons for the decision are hereby given today. But before the reasons are given, I seek to set out in brief the facts of the case that gave rise to this appeal

The first Appellant herein was a candidate sponsored by the 2nd appellant in an election into the Bayelsa State House of Assembly. The election was conducted by the first Respondent to elect a member representing Ekeremor Constituency III of the State on the 26th April, 2011.

The 2nd-10 Respondents also contested the election under the platform of different political parties listed against their names in the, appellant’s petition at the lower court and in the notice of appeal filed on the 3rd of September 2011. At the conclusion of the election and for reasons which are not relevant in this appeal the returning officer, Dr. Kenneth Okiongbo declared the election inconclusive and no candidate was returned as elected. This development was communicated to the first Respondent who promptly fixed the 6th of May 2011 for a return election in one of the two wards in the constituency and all the parties were duly informed of the outcome On the 6th of Mary 2011, the 1st Respondent conducted election in the remaining one ward where election fraud was earlier detected. At the conclusion of that election and in the final result, the 2nd Respondent herein was declared the winner and returned as elected member representing Ekeremor Constituency III of Bayelsa State.

The appellant’s are dissatisfied with the procedure leading to the declaration of the first election as inconclusive. They accordingly filed a petition at the National and State House of Assembly Election Tribunal sitting at Yenagoa on the 6th of May 2011 challenging the inconclusive election which was conducted on the 26th of April 2011 in which no result was declared and no return made in respect of any of the candidates that contested the election. The Tribunal heard the various motions that challenged the competence of the petition and in a reserved and considered ruling held:-

“In the instant case we hold that there was no fulfillment of paragraph 4(1)(c) of the 1st schedule which was also not contested by the petitioners being a condition precedent to filing a petition. The cause of action in this petition had not accrued when this petition was filed.

It is therefore not for a tribunal to declare a party where there was no declaration at all there must be declaration before tribunal such as ours can come close to such case.

It is our collective resolve that this petition is premature, discloses no cause of action and incompetent for failing to comply with the mandatory provisions of paragraph 4(1)(c) of the 1st schedule to the Electoral Act 2010 [as amended].

On the basis of the comments reproduced herein above, the Tribunal dismissed the petition in limine. It is against the decision of the Tribunal that the appellants have brought this appeal. Their notice of Appeal dated 29th August 2011 and filed on the 1st of September 2011 contains eight grounds of appeal.

The 2nd Respondent is not satisfied with certain aspect of the judgment. Being aggrieved, he has cross appealed to this court. His notice of cross-appeal at pages 484-488 of the record of appeal contains one ground of appeal.

Parties filed and exchanged briefs of argument. Appellants formulated three issues for determination of this appeal. I reproduce these issues hereunder as follows:-

1. Whether the Honourable Tribunal had jurisdiction to hear and determine the respondents’ objections to the hearing of the petition as in this case independent of and without hearing such objections along with the substantive petition.
2. Whether the Honourable Tribunal has jurisdiction to hear and determine this petition by virtue of the provisions of section 285(2) of the 1999 constitution of the Federal Republic of Nigeria.
3. Whether inadequate payment of filing fees in a petition against candidates not returned in an election robs the Honourable Tribunal of jurisdiction to hear and determine the petition

The 1st Respondent formulated one issue only for determination of this appeal and it reads thus:-

“Whether the National and State Houses of Assembly Election Tribunal established under section 285 (1) (b) of the constitution of the Federal Republic of Nigeria as amended has jurisdiction to hear and determine petition No. EPT/BYS/HA/05/2011, Hon Bein Benadoumene & Anor V. Independent National Electoral Commission & 9 Ors as presently constituted.

For the 4th-8th Respondents two issues were formulated jointly for determination of the appeal. These two issues are also reproduced herein under as follows:-