Nwabugwu Nwaogu V. Independent National Electoral Commission & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

The Appellant who was the petitioner at the lower Tribunal brought this appeal against the ruling of the Governorship/Legislative Houses Election Tribunal holden at Port Harcourt, River State on 18/10/2007 in petition No.EPT/SA/28/2007

The petition against the Respondents sought for the following reliefs:

“1. A Declaration by the design of the 1st and 2nd Respondents the Petitioner and his agents were prevented from participating in the recording of results of lawful votes cast at the various units and wards into the original result sheets in the April 14, 2007 House of Assembly Elections.

2. A Declaration that the purported declaration of the 3rd Respondent by the 1st and 2nd Respondents as duly elected as the House of assembly candidate in April 14, 2007 is null and void and of no effect.
3. An Order directing the 1st and 2nd Respondents to the (sic) declare Petitioner as duly elected he having scored the highest number of valid and/or lawful votes cast as representing Omuma Constituency in the Rivers State House of Assembly at the April 14, 2007, Election.
4. A perpetual injunction restraining the 3rd Respondent (Emmanuel Okatta) from parading himself as House of Assembly member duly elected in the April 14, 2007, House of Assembly Election for Omuma Constituency.

IN THE ALTERNATIVE

A declaration that there was no valid and/or proper House of Assembly Election conducted in Omuma Constituency and therefore fresh election be conducted for the House of Assembly Candidates in the Omuma Constituency. (See pages 5-6 of the Record of Appeal).”

Facts garnered from the Records of appeal show that the 1st and 2nd Respondents on 27/6/2007 entered a conditional appearance and on 9/7/2007 filed a motion of Notice for an order extending within which the 1st and 2nd Respondents may file and serve their Memorandum of Conditional Appearance. On the 10/7/2007 1st and 2nd Respondents filed a Counter Affidavit to the Appellant/s Motion on Notice filed on 5/7/2001. The 1st and 2nd Respondents also on 11/7/2007 filed their Respondents’ Response to the petition as well as the Deposition of 1st and 2nd Respondents’ witness (RW1) and the list of witnesses.

On 13/7/2007 the 1st and 2nd Respondents filed their pre-hearing Notice. However the 3rd Respondent on 6/8/2007 filed a Notice of preliminary objection challenging the jurisdiction of the Tribunal to hear the petition on the basis of non-compliance with paragraphs 4(1)(c) of the 1st Schedule to the Electoral Act 2006 and 1(1)(c) of the Election Tribunal and Court Practice Direction 2007. The Tribunal dismissed the petition on the grounds that firstly, stating the holding of the election and the winner of the election and then attaching the form EC8E(1) is not a compliance with paragraph 4(1)(c) of the First Schedule to the Electoral Act 2006; secondly, that the petitioner did not comply with the provision 1(1)(c) of the Election Tribunal and Court Practice Direction, 2007, because he did not accompany the petition with all the documents he pleaded; and thirdly, that the 3rd Respondent was not personally served with the petition and therefore the petition was incompetent.

Dissatisfied with the Ruling, the Appellant has filed a Notice of Appeal in this Court on six grounds. In compliance with the Rules of this Court the Appellant filed his brief of argument from which the following 5 issues for determination were presented:

“1. Whether a party must plead document, which is an evidence, specifically to be able to rely on it particularly when it is accompanying the petition as a document to be relied on, and does the accompanying of Form EC8E(1) with the petition and given by a petitioner to the Respondents not sufficiently satisfy the compliance with the provision of paragraph 4(1) c of the First Schedule to the Electoral Act, 2006 (Ground 1)

2. Whether compliance with the provisions of Paragraph 4(1)c of the First Schedule to the Electoral Act, 2006 is so mandatory that the Tribunal is left with no discretion to exercise where there is credible reason for non-compliance strictly with the provision (Ground 2).
3. Whether nullification of the election result is not the main claim of the Petitioner and what is the effect of claim for the nullification of election result on a defective compliance with Paragraph 4(1)c of the First Schedule to the Electoral Act, 2006 (Ground 3).
4. Whether the provision of paragraph 1(1)c of the Election Tribunal and Court Practice Direction, 2007 requires that the petition should be investigated to determine whether all the documents pleaded were accompanying the petition, all the documents listed to be used or attached to the petition were all pleaded (Ground 4).
5. Whether the failure to serve one of the Respondents to a petition with the petition personally makes the petition incompetent (Ground 5).”

On the other hand the 1st and 2nd Respondents submitted 3 issues for determination in their brief as follows:

“3.1 Whether the petitioner/Appellant in filing his petition complied with provisions of paragraph 1(1)(c) of the Election Tribunal and Court Practice Direction, 2007?

3.2. Whether the petitioner/Appellant in filing his petition complied with provisions of paragraph 4(1)(c) of the Schedule to the Electoral Act, 2006?

3.3 Whether the petitioner/Appellant served on the 3rd Respondent originating processes in the petition personally in compliance with the Rules on Service of Court process?”