Senator Anietie Okon V. Effiong D. Bob & Ors (2003)

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OKWUCHUKWU OPENE, J.C.A.

The facts of the present case is that the appellant and the 1st respondent, are members of the Peoples Democratic Party (PDP). There had been a struggle between the two as to who should contest the election on the platform of the PDP to represent the Uyo Senatorial District in the last National Assembly elections, held on the 12th day of April, 2003. In course of this, the 1st respondent on 17/3/2003, filed an action against Independent National Electoral Commission (INEC) at the Federal High Court, Abuja, complaining about his replacement with the appellant as the party’s candidate for the election, but the 1st respondent later discontinued the suit. The appellant’s name was then published as the party’s candidate for the election.

Before the election was held on 12th of April, 2003, the appellant’s name was replaced with that of the 1st respondent. The election result and/or scores show that Effiong Bob (1st respondent) of the PDP scored 230,411 which was the highest vote and he was thereupon, declared elected.

As a result of this, the appellant filed a petition at the election petition tribunal holden at Uyo against the respondents complaining about the conduct and the declaration of the results in the election and thereby sought the nullification of the declaration of the 1st respondent as the elected candidate in the said election and then prayed for the following reliefs:-

1. A declaration that the return of the 1st respondent as the winner of the election in the Uyo Senatorial District is null and void.
2. An order returning your petitioner as the duly elected candidate by the majority of the lawful votes cast at the election.

Alternatively:

1. An order declaring the election in Uyo Senatorial District held on the 12th of April, 2003 as a nullity.
2. A further order that fresh election be held in the Uyo Senatorial District in accordance with the provisions of the Electoral Act, 2002.

In response to this, the 1st respondent, filed a motion on notice to strike out the petition under sections 133(1) and 134 of the Electoral Act, 2002 and paragraph 2(2) of Schedule 1 to the Electoral Act, praying the tribunal as follows:-

“1. The petition is incompetent and the petitioner not being a candidate at the election nor a political party, which participated at the election has no locus standi to maintain a petition under the Electoral Act, 2002.

2. This Hon. Tribunal has no jurisdiction to nullify the election of a successful candidate on allegations of corrupt practices, when such allegations lack particularity and are not specifically referable to the successful candidate.
3. The question of who is the candidate sponsored by a political party is the domestic and internal matter of a political party and the court or this Hon. Tribunal has no jurisdiction to choose a candidate for a political party.
4. The petitioner has no capacity to question an election on the ground that he was validly nominated, but unlawfully excluded; such ground is available only to a political party which has filed a petition.
5. The petition is incompetent for want of compliance with paragraph 2(2) of the First Schedule to the Electoral Act, 2002, as the petitioner has failed to obtain an order of this Hon. Tribunal as to the giving of security for all costs.”

The appellant also filed a motion on notice praying the tribunal for an order granting leave to the petitioner to amend his petition in terms of exhibit ‘A’ which was attached to his motion.

The motion by the 1st respondent to strike out the petition and the appellants’ motion for leave to amend the petition were both argued by both sides and on 13/6/03, the tribunal delivered its ruling in which it ruled that the petitioner not being a candidate at the election has no locus standi to present the petition and that the petition is incompetent and that it has no jurisdiction to entertain same. It was also held that there being no valid petition that there is nothing to amend and accordingly struck out the petition.

Dissatisfied and unhappy with this ruling, the appellant has now appealed to this court. With exception of the 5th, 6th and 7th respondents, who have not shown much interest in this matter all the parties filed and exchanged their briefs of argument.

Besides this, the 1st respondent filed a notice of preliminary objection and also a respondent’s notice of intention to contend that the decision of the court below be confirmed on other grounds. These were argued in the 1st respondents brief of argument. I will first of all dispose of them before going into the merits of this appeal.

The basis of the preliminary objection is that:-

“The appeal is incompetent as no appeal lies to the Court of Appeal from an interlocutory decision of the Governorship and Legislative Houses Election Tribunal. Appeal to the Court of Appeal are limited to decisions on 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.”

In his argument, Chief Ekong Bassey, SAN referred to section 246(1) of the Constitution of Federal Republic of Nigeria, 1999 and the following cases: