Mrs. Florence Ikeh V. Donatus Njoke & Ors (1999)

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FABIYI, J.C.A:

This is an appeal against the ruling handed out on 1/2/99 by the Election Petition Tribunal of Ebonyi State. In the local government election which was held nation-wide on 5/12/98, the appellant desired to be Chairman of the Onicha Local Government Council. She contested as the candidate for the All People’s Party (APP). The 1st respondent was the candidate for the People’s Democratic Party (PDP). The 3rd candidate was one Mr. Christopher Ikele who vied under the banner of the Movement for Democracy and Justice (MDJ). At the end of the election, the 1st respondent was returned as the chairman elect.

The petitioner/appellant was not satisfied with the return of the 1st respondent. She decided to challenge same. In paragraph 2 of her petition, the scores of the candidates were stated a s follows:-

“(a) Mrs. Florence Ikeh (APP) – 18,936 votes

(b) Mr. Donatus Njoku (PDP) – 23,631 votes

(c) Mr. Christopher Ikele (MDJ)- votes”

The petitioner, in her paragraph 3(ii) of the petition, contended “that the 1st respondent was not duly elected by a majority of valid votes cast at the election”. The 1st respondent filed two memoranda of appearance as well as his reply. For failing to state the score of the 3rd candidate, a preliminary objection was taken to challenge the competence of the petition. The preliminary objection was sustained by the trial tribunal which struck out the petition on 1/2/99. The stance taken by the tribunal has led to this appeal.

The notice of appeal dated 8/2/99 was filed on the same date. The notice was accompanied by seven grounds of appeal. On 25/2/99, the appellant was granted leave to file her brief of argument dated 19/2/99 out of time. Three issues were formulated for determination. They read as follows:-

“01 Whether the provision of paragraph 5(1) of schedule 5 to Decree No. 36 of 1998 is mandatory and incapable of being waived.

02 Does the non disclosure of the scores of a candidate in an election in contravention to paragraph 5(1) of schedule 5 to the Decree divest the Election Tribunal of jurisdiction to hear and determine election petition on its merits?

03 In the alternative, whether, having regard to the form of the petition and the argument of the petitioner’s counsel before the Election Tribunal, the tribunal was correct in its finding that the votes scored by the 3rd candidate was not disclosed.”

The 1st respondent’s brief, dated 1/3/99, was filed on the same date. Three issues which are fairly similar in content were formulated for determination by the 1st respondent. They read as follows:-

“01. Whether an election petition which fails to disclose the scores of the candidates at an election, and which said petition at the material time is incapable of amendment is competent and proper before the Election Tribunal.

2. Whether the petitioner as shown on page 1 of the records discharged or stated the scores obtained by the 3rd candidate at the above election.
3. Whether the 1st respondent could waive, or could be deemed to have waived the issue of non-compliance of the petition with the provision of paragraph 5(1) of schedule 5 of Decree No 36 of 1998 on account of his filing a memorandum of appearance as well as a reply to the petition”.

K.B. Okpaleke Esq., learned counsel for the appellant, made alluring submissions in an alternative fashion. He submitted that the provision of paragraph 5(1) of Schedule 5 to Decree No 36 of 1998 is not mandatory but merely directive.