New Nigerian Peoples Party (Nnpp) & Anor V. Franklin Otele & Ors (2003)

LawGlobal-Hub Lead Judgment Report

E. AKPIROROH, J.C.A. 

There are two appeals in this Suit. The first Appeal CA/PH/EPT/167/2003 is an interlocutory Appeal by the 1st Respondent against the Ruling of the Tribunal delivered on 13/6/2003 in which the Tribunal held that the Petition was competent in law. The second Appeal (CA/PH/EPT/223/2003) filed by the Appellants is against the judgment in the substantive Suit delivered on 16/7/2003 challenging the dismissal of the petition.
The dispute that led to the filling of the petition at the Tribunal arose over the result; of the election declared by the 3rd respondent in respect of election to the Bayelsa State House of Assembly for Yenagoa Constituency 3 which was re-scheduled and held on 6/5/2003.

The appellants claimed in their petition as follows:
(i) “That the purported return of the 1st Respondent at Yenagoa be annulled as invalid and that the entire purported election be also declared invalid, void and vitiated by reason of non-compliance with the provisions of the Electoral Act and to order for fresh election for the Yenagoa III State Constituency.
(ii) That the 1st Respondent was not qualified to vote or be voted for in the election by reason of not being a registered voter.”

Upon service of the petition on the 1st Respondent, he filed a preliminary objection in which he challenged the competence of the petition which was argued and dismissed.

Dissatisfied with the ruling, the 1st Respondent/Appellant appealed against it and filed a brief and formulated one issue for determination as follows:
1. Was the Tribunal right when it held in its Ruling of 26/6/2003 that the petition dated 27/5/2003 is competent in law”

The Respondents did not identify issue for determination but proceeded to argue the appeal based on the issue distilled by the 1st Respondent/Appellant in his brief.

Also dissatisfied with the judgment of the Tribunal, the appellants appealed against it, filed a brief of argument and formulated the following issues for determination:

ISSUES FOR DETERMINATION
l. “Does the judgment of the tribunal below show a proper comprehension of the actual complaint of the petitioners – Ground One.
2. Did the Tribunal below approach the evidence led by the parties in a manner that was prejudicial to the case of the Petitioners – Ground Two.
3. Was the Tribunal below correct when it held that there was an election in Yenagoa constituency III on 6/5/2003 – Ground Three and Four.
4. Was the Tribunal below corrects in suo motu raising and resolving against the petitioners the question of inspection of copies of documents in possession of the 3rd to 5th Respondents – Ground Five.”

The 1st Respondent also filed a brief of argument and raised the following issues for determination:
2. “Was there a miscarriage of Justice in the manner the Tribunal considered the case and reached its decision in this case?
3. Was the Tribunal wrong in its finding that elections into the State House of Assembly was duly held in Yenagoa III Constituency on 6/5/2003,
4. Did the Tribunal base its judgment in this case on an issue raised suo motu by it?”
The 2nd respondent also filed a brief of argument in the substantive appeal and raised the following issues for determination:

ISSUES FOR DETERMINATION
1. “Does the judgment of the Tribunal below show a proper comprehension of the actual complaint of the petitioner?
2. Did the Tribunal below approach the evidence led by the parties in a manner that was prejudicial to the case of the petitioners.
3. Was the Tribunal below correct when it held that there was an election in Yenagoa Constituency III on 6/5/2003.
4. Was the Tribunal below corrects in suo motu raising and resolving against the petitioners the question of inspection of copies of documents in possession of 3rd – 5th Respondent.”

I will first of all consider the Preliminary Objection filed by Senior Counsel for the respondents against the interlocutory decision of the Tribunal delivered on 23/6/2003.

The substance of the Preliminary Objection of Senior Counsel to the respondents is that as the appeal was filed by the 1st Respondent/Appellant without leave of either the Court below or this Court, it is incompetent and relied on Section 246(1)(b) (i) of the 1999 Constitution which creates right of appeal to the Court of Appeal as of right only in respect of any question as to whether any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under the Constitution.

Section 246(1)(b) (i) of the 1999 Constitution relied on by Senior, Counsel for the respondents provide as follows:
“246(1) An appeal to the Court of appeal shall lie as of right from…
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether –
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under the Constitution.

The question raised in the grounds of appeal in this appeal is whether the Tribunal was right when it held that the petition before it was competent. Certainly this is not a question as to whether any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under the Constitution. The 1st Respondent/Appellant therefore requires leave of the Court below or of this Court before filing his appeal.