Hon. (Mrs.) Obiageli Ilukwe V. Barrister Chuks Anah & Ors (1999)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A. 

This is an election petition appeal in respect of the Local Government election conducted all the 5th December, 1998 under Decree No. 36 of 1998. The 1st respondent was declared as having won the election. The appellant brought a petition before the Election Tribunal which struck out his petition on the ground that the petition was not properly pending as the filing fees were not fully paid at the time of filing the petition as required by paragraph 37(1) (2) (3) of the 5th Schedule to Decree No. 36 of 1998 (hereinafter in this judgment referred to as ‘the Decree’).

Not satisfied with the striking out of the petition, the appellant has appealed to this court. The relief he seeks from this court as per his notice of appeal is “to set aside the decision of the Local Government Election Tribunal and list the petition for trial and determination.”

The appellant has also filed a brief of argument in which he formulated 2 issues for determination thus:

“1. Whether in the circumstances of this case the tribunal was correct in striking out the petition for being incompetent by reason of non payment by the appellant of the prescribed fees.

2. Whether the tribunal was right to have struck out the petition when issues were yet to be joined.”

The appellant argued his issue No. I under 3 heads vis:

“i. Propriety of the tribunal entertaining an application challenging the competence or the action in the absence of a duly constituted motion, supported by affidavit.

ii. What should be the legal consequence of failure to pay fully the fees prescribed by Decree No. 36 of 1998 at the time or presentation of the petition.

iii. Propriety of the orders made by the tribunal, having regard to the substance of the petition before the tribunal.”

It is submitted by learned counsel for the appellant that under section 87(3) of the Decree the jurisdiction of the Election Tribunal to strike out a petition whether for irregularity or for being a nullity is exercisable only “on the motion of a respondent in an election petition”. By paragraph 51 of the schedule to the Decree the practice and procedure of the Election Tribunal shall conform as nearly as possible to the practice and procedure of the Federal High Court with such modifications as to give effect to the intendment of the Decree. Counsel relies on the provisions of Order 33 of the Federal High Court Rules. It is contended that the respondent did not file any motion paper. The 2nd – 5th respondents did not enter appearance. The oral application made to the tribunal, counsel argues, does not qualify as a motion in the absence of an affidavit. The tribunal therefore had no authority to strike out the petition. He refers to Timitimi v. Amabebe 14 WACA 374 at 376.

On the legal consequence of the failure to pay the full fees as prescribed by the Decree at the presentation of the petition learned counsel submits that the Decree does not prescribe any penalty for non-payment of filing fee. He argued that the appellant paid the fee assessed by the secretary to the tribunal. Counsel refers to N.B.N Ltd. v. Weide & Co. (Nig) Ltd. (1996) 8 NWLR (Pt.465). 150 at 165. He urges the court to apply the reasoning in Alawode v. Semoh (1959) SCNLR 91 (1959) 4 FSC. 27 at 29 – 30.

He referred to and relied on the section 13 (1) of the Interpretation Act Cap. 192 Laws of the Federation 1990. Learned counsel argued that undue reliance should not be placed on technicalities.

On issue No.2, counsel argued that when the petition was struck out on 25/1/99, issues had not been fully joined. The matter, he submits, was not yet ripe for hearing.

At the hearing of this appeal, learned counsel for the appellant adopted his brief. Mrs. Okonkwo who appeared for the 1st respondent filed no brief but was allowed by the court to argue without a brief. She was however not very helpful to the court.