Ifeanyichukwu Okonkwo & Ors. V. Dr. Chris Nwabueze Ngige & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

I

n the two separate appeals CA/E/EPT/5A/05 and CA/E/EPT/5B/05 against the decision of the Governorship/Legislative Houses Election Tribunal, Awka, Anambra State in EPT/AN/GOV/42/2003 delivered on 12/8/05, the applicant Ifeanyichukwu Okonkwo, for himself and on behalf of the Nigeria Advance Party, filed similar applications on 9/11/05 praying this court for the under mentioned reliefs:

(a) An order of the Honourable Court granting leave to the applicant to appeal to the Court of Appeal and or to join in the appeal against the decision of the Governorship and Legislative Houses Election Tribunal, holden at Awka, Anambra State, dated 12/8/05 in the petition No. EPT/AN/GOV/42/2003 as a person having interest in the matter or to join in the appeal in that capacity.

(b) An order for enlargement of time within which to seek “leave” to appeal.

(c) An order for leave to appeal.

(d) An order for extension of time within which to appeal.

(e) An order seeking leave to appeal on issue of jurisdiction as a new issue, same having not been raised in the tribunal below and is before the Court of Appeal for the first time.

In arguing the application in the appeal CA/E/EPT/5A/05 the applicant conceded that any order made by this court shall be deemed applicable and binding in the appeal No. CA/E/EPT/5B/05.

He argued the grounds for the application and submitted that he was not a party on record before the lower tribunal, he is nevertheless aggrieved and dissatisfied with the decision of the tribunal delivered on 12/8/05. He is interested in the appeal hence he has brought this application to ask for leave to be joined as a party, and also has the mandate to represent his party Nigeria Advance Party.

The Federal High Court in suit No. FHC/EN/CS/172/2003 had declared on the 27th of May, 2005 that himself and his party were unlawfully excluded by INEC from contesting in the election held on the 19th of April, 2003. He has the locus standi to bring this application as he has suffered the same injury and has a right to the same relief as the other appellants in this appeal. As the time to file an appeal had lapsed he is asking for leave of this court to appeal. The applicant referred to the ground on the issue of jurisdiction, which is on the validity of the election tribunals created by section 285(1) and (2) of the 1999 Constitution. He is raising the issue for the first time before this court. The Registrar of the lower tribunal disallowed him from presenting his petition.

The court is to grant his application particularly when there is no valid counter-affidavit before the court opposing the application. Chief Okolo, SAN, counsel for the appellant/respondent leaves the application at the discretion of this court.

Dr. Ikpeazu, SAN, counsel for the 2nd respondent in this application referred to the counter-affidavit to oppose the application filed on the 30th of May, 2005 and urged this court to dismiss the application as the applicant has no legal interest to support his application to be joined as a party interested. The right of the applicant in the election was determined by this court in the suit reported as Okonkwo v. INEC & Ors. (2004) 1 NWLR (Pt. 854) 242. It is an abuse of the process of this court to bring this application. Parties to an election petition are as defined in the electoral Act 2002. The applicant must be qualified as a party, joinder cannot be invoked. Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446; Okonkwo v. Mode (Nig.) Ltd. (2002) 14 NWLR (Pt. 788) 588.

The applicant failed to exhibit the judgment of the tribunal, which makes the application for tripod prayers incompetent.