Mr. Charles Ikechukwu Nwadiani V. Ms Doris Amina Olayemi Uboh & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The Appellant, a member of the Action Congress [AC], was one of the candidates at the election into the House of Representatives for the Ika Federal Constituency of Delta State. Dissatisfied with the scores declared by INEC, which put him in the fourth place, he filed a Petition at the Delta State National Assembly, Governorship and Legislative Houses Election Petition Tribunal, wherein he contended inter alia that he was the only one qualified to contest the election because the 1st Respondent was charged before a United States District Court with offences involving dishonesty and fraud; the 2nd Respondent did not resign, withdraw or retire from his employment 30 days before the date of the election; and the 3rd Respondent is a member of the Reformed Ogboni Society. The 1st Respondent, the candidate for Peoples Democratic Party [PDP], who was declared duly elected by INEC, entered a “Conditional Appearance” and later filed a Reply to the Petition.

The 2nd Respondent also entered a Conditional Appearance, and filed a Reply and a Notice of Preliminary Objection to the Petition. The 3rd Respondent did not enter any appearance or participate in the proceedings at the Tribunal. The 4th and 5th Respondents filed an application for extension of time to enter appearance and file their joint Reply to the Petition, which had not been moved before the 1st Respondent filed a Motion on Notice praying for –

“An order striking out the Petition as being incompetent on grounds that the Petitioner failed to pay adequate statutory fees at the filing of the Petition”.

The Motion was supported by a 6-paragraph Affidavit, wherein the deponent averred as follows in paragraphs 3 thereof –

3. I am informed by M.I. Mozia (Mrs.) of counsel and I verily believe that:

(a) A Petitioner while filing his Petition ought to pay full deposit for cost and filing fees on each Respondent who took part in the Election in his Petition;

(b) That the 2nd and 3rd Respondents were also candidates in the same election.

(c) Allegations were made against the 2nd and 3rd Respondents in the Petition. Orders were also sought to be made against them in the Petition.

(d) That the Petitioner paid the deposit for cost and filing fees on only the 1st Respondent.

The Appellant himself deposed to a 5-paragraph Counter-Affidavit wherein he averred as follows in his own paragraph –

3. That I know as a fact that I paid the filing fees as assessed by the Registry of this Tribunal for the Petition.

In its Ruling delivered on 29th November 2007, the Tribunal struck out the Petition on the ground that the non-payment of filing fees for three separate Petitions was a “substantial irregularity that affects the foundation of the Petitioner’s Petition”. Aggrieved by the decision, the Appellant appealed to this Court with a Notice of Appeal containing eight Grounds of Appeal, and eight Issues for determination were distilled there-from in the Appellant’s brief of argument prepared by Ikhide Ehighelua, Esq. The Issues are –

1. Whether the Ruling of 29/11/07 by which the Tribunal struck out the Petition of the Appellant was not delivered in breach of the provisions of the extant Constitution of the Federal Republic of Nigeria and if so delivered whether same is not void. (Ground 1)
2. Whether in view of the numerous steps already taken by the 1st Respondent in the proceedings the Tribunal was right in holding that the default complained of was a substantial irregularity, which affected the foundation of the Petition. (Ground 2)
3. Whether the Tribunal was right in failing to abide by the doctrine of stare decisis in respect of decisions of superior Courts cited before it. (Ground 3)
4. Whether the Tribunal was right in holding that a Petitioner filing a Petition has responsibility in assessing filing fees. (Ground 4)
5. Whether the Tribunal was right in attributing the default in this case (which default is not conceded) to the Appellant. (Ground 5)
6. Whether the Tribunal was right in the circumstances of this case to hold that adequate and appropriate filing fees were not paid.(Ground 6)
7. Whether the Tribunal was right in refusing the application of the Appellant to direct the Registry to do a proper assessment when –

(a) It was obvious that the Petitioner paid exactly what the Registry assessed him to pay.

(b) The defect was curable.

(c) The Tribunal was punishing a litigant for an error committed by its Registry. (Ground 7)