Otu Bassey Ekpentu V. Mfawa Ofegobi & Ors. (2011)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
JOSEPH TINE TUR, J.C.A: (Delivering the Leading Judgment)
The 2nd and 3rd Respondents conducted election into the Yakurr One (1) State Constituency, Cross River State House of Assembly on the 26th April, 2011. The petitioner was sponsored by the Action Congress of Nigeria and polled 7451 votes at the election. The 1st Respondent of the Peoples Democratic Party was credited with 8920 votes. The 2nd and 3rd Respondents returned the 1st Respondent as the duly elected member of the House of Assembly, Cross River State to represent Yakurr One (1) State Constituency.
Being aggrieved the petitioner challenged the declaration by presenting a petition before the National and State House of Assembly Election Petition Tribunal holden at Calabar, Cross River State on 17-05-2011 . Parties filed their respective pleadings, 1st Respondent did so on 22-06-2011 while the 2nd-3rd and 4th Respondents filed theirs on 15-06-2011. Pleadings having been closed the 4th Respondent moved the Tribunal to decline jurisdiction and strike out the petition as offending the provisions of paragraph 4(1) (b) of the 1st Schedule to the Electoral Act, 2010 as amended which provides as follows:
“4(1) An election petition under this Act shall:-
(a) specify the parties interested in the election petition;
(b) specify the right of the petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the persons returned as the winner of the election; and
(d) states clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought. ”
The argument of the 4th Respondent’s learned Counsel with the tacit agreement of the learned Counsel to the 1st, 2nd and 3rd Respondents was that the petition did not comply with the provisions of paragraph 4(1)(b) of the 1st schedule I have reproduced. The Tribunal upheld the preliminary objection holding at page 487 of the printed record as follows:
” …In the instant case it is proper and safer to strike out the petition for failure to comply with the provisions of paragraph 4(1)(b) of the 1st Schedule to the Electoral Act, 2010 (as amended). Accordingly, the petition is struck out for failure of the petitioner to state, specifically, the right he has to present same.”
But paragraphs 1 – 4 of the petition reads as follows:
“1. Your Petitioner was a candidate for election into Yakurr 1(One) State Constituency Cross River State House of Assembly held on Saturday the 26th, April, 2011.
- The petitioner contested the election under the platform of the Action Congress of Nigeria, ACN, one of the registered political parties in the Federal Republic of Nigeria.
- The other registered political parties that contested the election are Labour Party (LP); Congress for Progressive Change (CPC) and All Nigerian Peoples Party (ANPP).
- The 1st Respondent contested under the platform of Peoples Democratic Party (PDP).”
However, the 4th Respondent’s Reply of 15-06-2011 reads as follows:
“1. Paragraphs 1, 2, 3, 4 and 5 of the substantive petition herein are admitted, only to the extent that:-
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