Onwuka F. Nkeiruka (Mrs) V. Dimobi Joseph & Ors. (2008)

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SIDI DAUDA BAGE, J.C.A.

This is an appeal against the ruling of the Election Petition Tribunal Anambra State (Panel 1) sitting at Awka, presided over by Hon. Justice J. S. Abiriyi delivered on 23rd of October 2007.

By the petition dated and filed 10th May 2007 the Appellant challenged the return of the 1st Respondent as the winner of the election held on the 14th day of April 2007 for the position of member representing Anaocha II Constituency in the Anambra State House of Assembly.

The petition was predicated on two grounds namely:

(1) “That the 1st Respondent was not duly elected by a majority of Lawful Votes cast at the election as voting was frustrated.

(II) The return of the 1st respondent at the election (for Anambra State House of Assembly Anaocha II Constituency was invalid by reason of corrupt practices and non compliance with the provisions of the Electoral Act 2006”.

Learned Counsel to the 1st respondent filed a motion on notice dated 28th of September 2007. The motion prayed for the following:-

(a) “An Order striking out all the purported written statements on Oath of the petitioners purported witnesses attached to the petition, not being sworn on oath in accordance with the Oath Act.

(b) “Upon A above an Order of the Honourable Tribunal striking out the petition for non compliance with paragraph I of the Election Tribunal and Court Practice Direction 2007”.

The Counsel stated the grounds for the application and supported the motion with affidavit and written submission.

The Appellant reacted to the said motion by filing a Counter-affidavit and written submission. The Appellant also filed an application seeking leave of the tribunal to amend the questioned statement on Oath by filing fresh statements on oath that would contain the allegedly missing paragraph to Wit:

“I solemnly make this statement on Oath in good faith believing the contents to be true and correct and in accordance with Oaths Act”.

The Appellant also sought a second prayer for an Order deeming the re-sworn statements on Oath of all the petitioners witnesses as duly filed and served appropriate fees having been paid. The proposed amended statements on oath were duly attached.

The Respondent opposed the motion on the grounds that it was filed outside the statutory period for amendment allowed by Electoral Act 2006 and that it would prejudice the respondents.