Mr. Johnny Lar Salbie & Anor V. Independent National Electoral Commission & Ors. (2008)

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EJEMBI EKO, J.C.A.

Before the Governorship and Legislative Houses Election Tribunal sitting at Port Harcourt (hereinafter called “the trial Tribunal” the Appellants were the petitioners. The Respondents herein were the Respondents in the said petition. The 1st petitioner/Appellant contested on the platform of the 2nd Petitioner /Appellant with the 4th Respondent for a seat in the Rivers State House of Assembly representing Gokana Local Government Area of Rivers State, as a constituency. The election held on 14th April, 2007 was conducted by the 1st-3rd Respondents. The 4th Respondent, after the said election, was returned as the winner of the election. Dissatisfied the Petitioners/Appellants filed their petition challenging the return of the 4th Respondent by the 1st – 3rd Respondents. The petition was subsequently served on all the Respondents.

The 4th Respondent, after service of the processes on him entered conditional appearance through his Counsel, J. T. Kpakol, Esq., on 27th June, 2007. The said Counsel on the same 27th June, 2007 filed “Notice of Preliminary Objection”. The 4th Respondent has not filed his reply till date.

The preliminary objection filed on 27th June, 2007 was heard on 3rd August, 2007. The ruling in the objection was reserved to 15th August, 2007. The 1st-3rd Respondents did not file any Notice of preliminary objection. As at 15th August, 2007 the motion of the 1st – 3rd Respondents dated 13th August, 2007 but filed on 14th August, 2007 had not yet been heard by the Tribunal. That motion inter alia, prays for an order extending time within which 1st – 3rd Respondents may file and serve both the memorandum of appearance and the reply of the 3rd Respondents. As at the time the reserved ruling on the preliminary objection was delivered on 15th August, 2007 none of the Respondents in the Petition had filed any reply to the Petition. That is by the way.

The preliminary objection was predicated on the following grounds:-

1. The Petitioners did not sign the Petition.
2. The Petitioners did not comply with section 4(3) (b) of the 1st Schedule to the Electoral Act, 2006 by signing the Petition.
3. Section 4(3)(b) of the 1st Schedule of the Electoral Act, 2006 which required “sic” petitioner(s) to sign the Petition is mandatory.
4. The Petitioners did not comply with section 4 (1) (c) of the 1st Schedule to the Electoral Act, 2006 in that the scores of each candidate who participated in the election was tot stated.
5. Section 4(1) (c) of the 1st Schedule to the Electoral Act, 2006 which require (sic) the scores of the candidates to be stated is mandatory.
6. This Tribunal lacks jurisdiction to entertain this Petition in view of the non-compliance with section 4 (3) (b) of the Electoral Act, 2006 (sic).

At the hearing of the preliminary objection J. T. Kpakol, Esq, of Counsel to 4th Respondent formulated two issues to be determined by the Tribunal. That is:-

1. The effect of the petition not signing the election petition.
2. The: effect of the petitioner not stating the names of all the candidates who participated and their scores in the election.

On the first issue formulated by the 4th Respondent, who has purportedly cross Appealed, the Tribunal found at pp. 164-165 of the record of appeal that:-

The petitioners did not sign the petition; it was their Solicitor that signed.

And that unfortunately, he signed not as their Solicitor but as the petition, because he has written his names JOSEPH ELLEH (PETITIONER) and wrote in barrack (sic) to show that he is the Petitioner or one of the Petitioners.

If he had written that he is the Petitioner’s Counsel and wrote (sic) for example JOSEPH ELLEH PP. JOSEPH ELLEH & CO. Counsel to the Petitioners his signature could suffice to stand as he signed as the Solicitor of the Petitioners.

Having seen the signature of Mr. JOHNNY LAR SALBIE as contained in his written statement on Oath where he signed as the deponent (sic). And where he signed the petition letter he sent to the INEC protesting the malpractice in the election we have seen that he signed those documents but he was not the one who signed the petition, so Joseph Elleh can not be Johnny Lar Salbie is distinct and different person from Joseph Elleh.

The Tribunal found further at page 167 of the record of appeal that:-

It was the counsel or solicitor of the petitioners that signed though not as the counsel to the petitioners but as the petitioner himself, which throughout this case he is not and he can not be.

Be that as it may, we hold that there was no substantial conformity with paragraph 4 (3) (b) and that renders the petition that can not be amended, void.