Kingsley Nonye Philips V. Independent National Electoral Comm. (INEC) (2009)

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CHIOMA EGONDU NWOSU-IHEME (Ph.D) J.C.A.

The Appellant in this appeal, commenced proceedings in the lower tribunal by way of an election petition against the Respondent in which he claimed the following reliefs:

(a) A declaration that the petitioner being the validly nominated Candidate of the Peoples Democratic Party be issued with a Certificate of Return for the Ika South Constituency House of Assembly, having scored the highest number of votes cast at the elections.

(b) An order that the petitioner be declared validly elected and returned his political party having polled the highest number of lawful votes cast at the election.

(c) An order that INEC issues the petitioner a Certificate of Return, the petitioner having been duly sponsored by a political party (PDP), having contested and won the elections for Ika South Constituency of the House of Assembly general Elections.

Before then, the Appellant had filed a suit at the Federal High Court claiming that having been validly nominated by his party the PDP and, presented to the Respondent in this appeal, the substitution was wrong and that he remained his party’s candidate for the election into the Ika South Constituency of the House of Assembly.

While the, suit, at the Federal, High Court was pending, elections were held for the constituency aforesaid. In the mean time, the, Federal, High C0urt gave Judgment to the Appellant granting declarations in terms of the reliefs sought in reliefs (1), (2) & (3). (See pages 36 and 43 of the record of appeal, and refusing reliefs 4, 5, and 6 (See pages 37 and 43 of the record of appeal). In effect the Federal, High Court declared that there was no cogent and verifiable reason for the substitution, of the appellant as the candidate of his party, and could not do so time for so doing having expired.

The Appellant relied on this Judgment in bringing the petition subject of this appeal. The grounds stated by the appellant for bringing the petition was pleaded in paragraph 12 of the petition as follows:

“(12) and your petitioner states that the, ground on which the petitioner relies is that he was validly nominated, validly contested and won the election.”

The Respondent filed a preliminary objection challenging the competence of the election on the ground 3, inter alia, that the ground relied upon by the petitioner was not recognizable under the Electoral Act, or the 1999 Constitution, and that a necessary party was not joined. On his part the Appellant filed a motion seeking to join one Martin Okonta.

The lower tribunal took arguments on the preliminary objection, and without considering ‘the application for joinder’ struck out the petition. Hence this appeal.

Counsel on both sides filed briefs of argument in which four issues were formulated and agreed upon by them as follows:

1. Whether the Ruling of the tribunal, which is the subject matter of this appeal was not delivered in breach of the provisions of the constitution and where same is so delivered, whether the Ruling is not null and void.
2. Whether the tribunal was right in holding that the petition of the Appellant was incompetent for non-joinder of the person returned when there was pending before the tribunal an application to join the person returned which application was brought to the knowledge or notice of the tribunal and the tribunal, went ahead to strike out the petition without determining the said motion one way or the other.
3. Whether the tribunal was right in holding that the grounds of the Appellants petition were unknown to law especially in view of the provision of the constitution of the Federal Republic of Nigeria 1999.
4. Whether the tribunal was right in holding that the Appellant as petitioner did not have the locus standi to present the petition.

In the brief of argument of the appellant, no reference was made of ground one of the grounds of appeal. The resultant effect is that that ground is abandoned.

On issue No. 1, the arguments of learned counsel for the appellant hinged on the failure of each of the five Judges that sat on the petition at the trial tribunal to write a separate and distinct opinion on the decision now on appeal. Reliance was placed heavily on the provisions of section 294(3) of the 1999 constitution which required each judge of a court of more than one judge to give a separate and distinct opinion in cases decided by them. Referring to the provisions of paragraphs 26(1) & (2) of schedule 1 to the Electoral Act 2006, learned counsel argued that those provisions were inconsistent with sections 294(3) of the constitution, and therefore void because, according to him, the Election Tribunal is one of the courts established by the constitution from sections 230-285 which created election tribunals.