Prince Ime Udonte V. Raphael Edet Bassey & Ors (1999)

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OPENE, J.C.A.

The petitioner/appellant and the 1st respondent were the candidates for the Chairmanship or Nsit Atai Local Government, Akwa Ibom State in the Local Government Elections held on the 5th day of December, 1998.

The appellant lost the elections to the 1st respondent and as a result of this, the appellant filed a petition in the Local Government Election Petition Tribunal, Akwa Ibom State, sitting at Uyo praying the tribunal among other things to declare that the 1st respondent was not duly elected and/or returned.

The appellant later brought a motion to amend his petition, the motion was heard and dismissed on the 13th day of January, 1999. The 1st respondent thereupon filed an application praying the tribunal to set aside the petition as it is incurably defective for non-compliance with the mandatory provisions of Schedule 5, paragraph 5 (1)(c) or Decree No. 36 of 1998. The tribunal heard this motion and struck out the petition on 20th January, 1999.

Dissatisfied with this ruling, the appellant has now appealed to this court.

The appellant filed three grounds of appeal. The appellant, the 1st respondent and the 2nd – 4th respondents filed their briefs of arguments.

Chief Uyouko, the learned Counsel for the 1st respondent filed a preliminary objection challenging the competence of the appeal on the ground that an appeal does not lie against a decision made by the Local Government Election Tribunal “in” petition, that this appeal is against such a decision and thus incompetent.

In the 1st respondent’s brief of argument, the 1st respondent argued that the ruling of the Court is an interlocutory and that the rights of the parties were not decided. The following cases were referred to – Omunuwa v. Oshodin (1985) 8 NWLR (Pt.10) 924. Alaye of Effon & Ors. v. Fasan & Ors (1958) 1 N.S.C.C. 35; (1988) 3 FSC 68. (1958) SCNLR 171

The simple answer to this preliminary objection is that it is not well taken, section 86 (1) of Decree 36 of 1998 states that an appeal arising in respect of an election petition under this Decree shall lie to the Constitutional Court. This section of the law does not say that an appeal lies only against a final decision of the Tribunal and not against an interlocutory decision.

Further, the ruling of law tribunal has completely determined the rights of the parties as there is nothing more left to be decided again between the parties. I will therefore overrule the objection.

The most important issue that calls for decision in this appeal is whether the tribunal was right in assuming jurisdiction to hear the 1st respondent’s motion to set aside the petition when the 1st respondent had taken steps in the proceeding by entering an unconditional appearance and filing a reply.

paragraph 50(2) of Schedule 5 of the Decree states:

“An application to set aside an Election Petition or a proceeding resulting there from for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when no party making the application has not taken any fresh step in the proceedings after the knowledge of the defect.”

The appellant’s complaint is that the 1st respondent had taken steps in the proceeding by filing a reply and that his application should not be allowed.