ELECTION PETITION
MEANING
AND GENERAL PRINCIPLES
Election
Petition is a petition complaining of an undue election or undue return of a
candidate at a general election. It is about the process of the election
itself. Anything outside that does not come under election petitions. If it has
to do with happenings within a political party, they are intra party disputes. Section
140(1) of the Electoral Act, 2006; ANPP
v. INEC (2004) 7 NWLR (Pt 871) 16.
Government and political offices are filled by means
of elections; whilst actions instituted for challenging the validity of
an election or disputing the return of a candidate are commenced by petitions.
Election petition is a special proceeding guided by
a particular electoral law under which the election was held. Thus, it is a
proceeding that is sui generis – Yahaya
v. Aminu (2004) 7 NWLR (Pt. 871) 159 at 181; Buhari v. Yusuf (2003) 14 NWLR
(Pt. 841) 466 at 536.
LAWS
REGULATING ELECTION PETITIONS
1.
The
1999 Constitution;
2.
The
Electoral Act 2006; and
COURT/TRIBUNAL WITH JURISDICTION
AND COMPOSITION
The
1999 Constitution makes provision for three categories of court/tribunal with
jurisdiction on election petitions. These are –
1. National
Assembly Election Tribunal – section
285(1) of the Constitution; section 140(2)(b) of the Electoral Act, 2006.
2. Governorship
and Legislative Houses Election Tribunals – section 285(2) of the Constitution; section 140(2)(b) of the Electoral
Act.
3. Court
of Appeal – section 239 of the
Constitution; section 140(2)(a) of the Electoral Act.
NATIONAL ASSEMBLY ELECTION TRIBUNAL
This
shall to the exclusion of any other court, have original jurisdiction to hear
and determine petitions as to whether –
1. Any
person has been validly elected as a member of the National Assembly;
2. The
term of office of any person under this Constitution has ceased;
3. The
seat of a member of the Senate or a member of the House of Representatives has
become vacant; and
4. A
question or petition brought before the election tribunal has been properly or
improperly brought.
COMPOSITION OF NATIONAL ASSEMBLY
ELECTION TRIBUNAL
1. A
Chairman who shall be a Judge of the High Court.
2. Four
(4) members appointed from the judiciary and not below the rank of Chief
Magistrate.
The
Chairman and other members shall be appointed by the President of the Court of
Appeal in consultation with the Chief Judge of the State, the Grand Kadi of the
Sharia Court of Appeal of the State or the President of the Customary Court of
Appeal of the State – section 285(3) of
the 1999 Constitution.
QUORUM – Chairman
and two (2) members.
GOVERNORSHIP AND LEGISLATIVE
HOUSES ELECTION TRIBUNALS
This
shall to the exclusion of any court or tribunal, have original jurisdiction to
hear and determine petitions as to whether any person has been duly and validly
elected to the office of Governor or Deputy Governor or as a member of the
State Houses of Assembly.
It should be noted that unlike
the Election Tribunal that states that it has to do with where there is a
vacancy or a cease in the office, this tribunal is silent on it.
COMPOSITION OF GOVERNORSHIP AND
LEGISLATIVE HOUSES ELECTION TRIBUNALS
1. A
Chairman who shall be a judge of the High Court.
2. Four
(4) members appointed from the judiciary and not below the rank of Chief
Magistrate.
The
Chairman and other members shall be appointed by the President of the Court of
Appeal in consultation with the Chief Judge of the State, the Grand Kadi of the
Sharia Court of Appeal of the State or the President of the Customary Court of
Appeal of the State – section 285(3) of
the 1999 Constitution.
It
should be noted that due to the fact that the composition of both the Governorship
and Legislative Houses Election Tribunals, and National Assembly Election
Tribunal are the same, there is nothing that stops one tribunal from performing
both function – Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 91. But one that is
set up for a State cannot however sit in another state – Ibori v. Ogboru (2005) 6 NWLR
(Pt. 920) 25.
COURT OF APPEAL
This
shall to the exclusion of any other court, have original jurisdiction to hear
and determine any question as to whether –
1. Any
person has been validly elected to the office of the President or Vice
President;
2. The
term of office of the President or Vice President has ceased;
3. The
office of President or Vice President has become vacant.
This
is a special original jurisdiction outside its normal appellate jurisdiction.
COMPOSITION OF THE COURT OF
APPEAL
1. At
least three (3) Justices of the Court of Appeal – section 239(2) of the Constitution.
It
should, however, be noted that while an appeal may lie from the Court of Appeal
to the Supreme Court, in respect of the presidential election, the decision of
the Court of Appeal on a matter that arises on appeal from other election
petitions is final – section 246(3) of
the Constitution.
LOCAL GOVERNMENT/AREA COUNCIL
ELECTION TRIBUNAL
This
is established at various State levels by laws of each State. For the Federal
Capital Territory (FCT), it is established by section 142(1) of the Electoral Act, 2006.
The
Federal Capital Territory Area Council Election Tribunal has exclusive original
jurisdiction to hear and determine any question as to whether –
1. Any
person has been validly elected to the office of Chairman, Vice Chairman or
Councillor.
2. The
term of office of the Chairman, Vice Chairman or Councillor has ceased.
3. The
seat of a member of an Area Council has become vacant.
4. A
question or petition brought before the Tribunal has been properly or
improperly brought.
COMPOSITION OF AREA COUNCIL
ELECTION TRIBUNAL
1. A
Chairman who shall be a Chief Magistrate.
2.
Four (4) other members appointed from
magistracy, and legal practitioners of at least 10 years standing and non legal
practitioners of unquestionable integrity – section 142(2) and (3) of the Electoral Act.
CONTENTS OF A PETITION
This
is made available in Paragraph 4 of the
First Schedule to the Electoral Act.
1. Names of the parties and
Tribunal – It shall specify the parties
(petitioner and respondent) interested in the petition and the name of the
Court/Tribunal where the petition is to be filed.
2. The right of the petitioner to
bring the petition – This means showing that the
petitioner contested the election and the capacity and platform on which he
contested.
3. The holding of the election, the
scores of the candidates and the name of the person returned as the winner of
the election – Failure to state this renders the
petition incompetent and liable to be struck out – Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) 260. However, the petitioner is not
required to state score of political party who did not field any candidate or
votes cast for persons that were not candidates in the election – Ajudua v. Nwogu (No. 1) (2004) 16 NWLR (Pt.
893) 56.
4. The fact of the petition and the
ground on which the petition is based – section 145(1) of the Electoral Act states such grounds which are –
a) That
a person whose election is questioned was at the time of the election not qualified
to contest the election;
b) That
the election was invalid by reason of corrupt practices or non-compliance with
the provisions of the Electoral Act;
c) That
the respondent was not duly elected by majority of lawful votes cast at the
election; or
d)
That the petitioner or its candidate
was validly nominated but was unlawfully excluded from the election.
It should be noted that a petition
containing grounds not recognized by law is incompetent – Doukpolagha v. George (1992) 2 NWLR (Pt. 236)
444. Also, failure to
comply with the above content renders the petition invalid and liable to be
struck out.
5. Prayer or prayers sought by the
petitioner – section
147 of the Act provides for
the orders the Tribunal may make. This is the reliefs sought. Any petition not
accompanied with prayers is incompetent and will be dismissed. Thus, a
petitioner may pray in the alternative that it is either the election be
declared null and void or he be declared winner of the election.
6. The petition must be signed by
the petitioner or the solicitor named at the foot of the petition
– An unsigned petition is liable to be struck out – Ibrahim v. Sheriff (2004) 14 NWLR
(Pt. 892) 43. Where, however, an unsigned petition is served on a
respondent, and he, apart from entering appearance, takes steps, the
proceedings will amount to a waiver of his right to complain – Nwankwo
v. Dr. Raymond Emerenini (unreported Imo State Appeal Tribunal ORZ/EP/HO/54/91
decided on 5th August 1991).
7. It shall contain an address of
Petitioner for service – Where the address is not
stated the petition will be deemed not to have been filed unless the Tribunal
otherwise orders. However, where personal service cannot be made, the Tribunal
may order substituted service.
Under
Paragraph 4(2) of, a petition is to
be divided into paragraphs and numbered consecutively.
The
respondents to such petition shall
be the following –
1. The
successful candidate at the polls;
2. The
Chief Electoral Officer of the Federation where the petition relates to the
election of a President or Vice President.
3. The
Chief Electoral Officer of the State where the petition relates to the Governor
or Deputy Governor of a State.
4. The
Electoral Officer for a senatorial district, a Federal constituency or State
constituency, where the election relates to that of a Senator, a member of the
House of Representatives or a member of the State Assembly, as the case may be.
Where
the petition complains of the conduct of a returning officer, he shall be
deemed to be a respondent for all purposes – Obasanjo v. Yusuf (2004) 9 NWLR
(Pt. 877) 144, 185, where the Supreme Court held that it is not
necessary to make unnamed and unidentified law enforcement officers or
political party agents, parties to a petition, whilst accepting that the
Electoral Act requires that if a petition complains of the conduct of an
Electoral Officer or any other person who took part in an election, that the
person ought to be made a party to an election petition.
Non-joinder
of some parties does not invariably lead to striking out of the entire petition
most especially where there are other grounds of the petition that have nothing
to do with the person not joined. All that needs to be done, is to strike out
the offending paragraphs – Kalu v. Ohuabunwa (2004) 7 NWLR (Pt. 871) 1.
An unsuccessful candidate is not a necessary or statutory party to an
election petition – Mogahlu v. Ngige (2005) 4 NWLR (Pt. 914) 1; Buhari v. Yusuf (2003) 14
NWLR (Pt. 841) 446.
GROUNDS FOR AN ELECTION PETITION
Section 145(1) of the
Electoral Act, 2006 provides that an election may be questioned on any
of the following grounds –
1.
That a person whose election is
questioned was at the time of the election not qualified to contest the
election;
2.
That the election was invalid
by reason of corrupt practices or non-compliance with the provisions of the
Electoral Act;
3.
That the respondent was not
duly elected by the majority of lawful votes cast at the election; or
4.
The petitioner or its candidate
was validly nominated but unlawfully excluded from the election.
Under the first ground stated above, a person is not qualified to
contest an election if he is caught within the provisions of the 1999 Constitution
(that is, section 137 for Presidential
election; section 182 for Governorship election; section 66 for National
Assembly election; and section 107 for House of Assembly election) that
spell out the grounds of disqualification. See
Iniama v. Akpabio (2008) 17 NWLR.
GROUNDS FOR
DISQUALIFICATION
Under the various constitutional provisions, a person is unqualified
to contest an election if –
1.
He is not a Nigerian citizen;
because candidates for the Presidential and Governorship elections must be
citizens of Nigeria by birth – sections
131 and 177 of the Constitution;
2.
He has been elected to the
office of the President or Governor at any two previous occasions – section 137(1)(b); and section 182(1)(b) of
the 1999 Constitution;
3.
He is adjudged a lunatic or a
person of unsound mind;
4.
He is under a death sentence or
a sentence of imprisonment for an offence involving dishonesty or fraud;
5.
He has been convicted and
sentenced for an offence involving dishonesty or he has been found guilty of a
contravention of the Code of Conduct within not less than ten years prior to
the election.
6.
He is an undischarged bankrupt.
7.
He is a staff of the public
service of the Federation or of a State and has not resigned, withdrawn or
retired thirty (30) days from such employment before the date of the election.
It should be noted that a leave of absence does not amount to resignation,
withdrawal or retirement – Mbukurta v. Abbo (1998) 6 NWLR (Pt. 595)
425.
8.
He is a member of any secret
society (cult member); he has been indicted for embezzlement or fraud by a
judicial or administrative panel of inquiry and the report was accepted by the
Government; and
9.
He has been presented a forged
certificate to the Independent National Electoral Commission (INEC).
The age qualification for
a Presidential candidate is forty (40)
years; for a Governorship candidate, it is thirty-five (35) years; for a Senatorial candidate, it is thirty-five (35) years; for both House
of Representatives and Assembly, it is thirty
(30) years. In addition to this, a person contesting an election must be a
member of a political party and sponsored by such party; and must be educated
up to at least school certificate level or its equivalent – sections 66, 106, 131, and 177 of the
Constitution.
Where an elected candidate was not qualified to conduct an election
and returned, the petitioner who claims to have polled the next majority votes
cannot be declared winner by the tribunal, unless the facts of disqualification
were notorious and within the knowledge of the electorate. However, if the
facts were not notorious, the tribunal must nullify the election and order a
fresh one – Bayo v. Njidda (2004) FWLR (Pt. 192) 19 at 41 and 84.
However, if the ground of the petition is that the respondent did
not poll majority of lawful votes cast at the election, the Tribunal or Court,
if so satisfied, shall return the candidate that polled the majority of lawful
votes cast – Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 at 226-227, per Omokri JCA.
COMMENCEMENT OF AN ACTION
IN ELECTION MATTERS
All actions arising from the conduct of an election are commenced by
way of petition – section 140(1) of the
Electoral Act, 2006.
An election petition shall be presented or filed within thirty (30)
days of the declaration of the result of the election – section 141 of the Act. There is no extension of time within which
to file an election petition. Once a petitioner fails to file his petition
within the stipulated thirty (30) days, he loses his right of relief – Kamba
v. Bawa (2005) 4 NWLR (Pt. 914) 43; Moghalu v. Ngige (supra).
The court or tribunal may, however, extend time within which to do
any other thing under the Act except the time within which to file a petition –
section 141(1) of the Act.
SERVICE
Notice
of the petition as well as all other documents required to be served on the
respondent before his entry of appearance shall be served personally. The fact
that the respondent was not served personally will not vitiate the proceedings – Paragraph 8 of the First Schedule to the
Act.
Where
personal service could not be served on the respondent, the Tribunal may on
application of the petitioner order for substituted service in accordance with
the provisions of the Federal High Court Rules – Paragraph 8(2) of the First Schedule to the Act.
A
process to be served on a party in an election petition not requiring personal
service shall be duly served by delivering it to the person or by leaving it at
his last known place of abode in the constituency in question or with any
resident in the place who appears to be eighteen (18) years or above – Paragraph
44(1) of the First Schedule to the
Act.
APPEARANCE
Respondent
is required to enter appearance after being served or within the time specified
by the Secretary enter an appearance by filing a memorandum of appearance (in Form TF. 004) if he intends to oppose
the petition - Paragraph 9(1) of the First Schedule to the
Act, and the respondent is to give the name and address of the solicitor,
if any, that is representing him. Either the respondent or his solicitor shall
sign the memorandum of appearance and shall furnish as many copies according to
the parties in the suit and three (3) extra copies to be left with the
Secretary.
Respondent
must pay the necessary filing fees and leave enough copies for service failing
which the memorandum of appearance will be deemed not to have been filed – Paragraph
9(4)(b) of the First Schedule to the
Act.
He
should file conditional appearance where he has a preliminary objection to the
petition – Paragraph 9(5) of the
First Schedule to the Act.
EFFECT OF NOT FILING MEMORANDUM
OF APPEARANCE
Any
document intended for service on respondent may be posted on Tribunal notice
board and shall be sufficient notice to respondent – Paragraph 10(1) of the First Schedule to the Act.
However,
the non-filing of a memorandum of appearance will not bar respondent from
defending the petition provided
he files his reply not later than twenty-one (21) days from receipt of the election
petition – Paragraph 10(2) of the
First Schedule to the Act.
FILING OF REPLY
In filing of reply, the respondent is given an opportunity to file a
reply to the petition.
Under the rules, the respondent shall within fourteen (14) days of
entering an appearance file in the registry his reply stating which of the
facts or/and figures alleged in the petition he admits or the ones he rejects.
The reply is to be filed and the respondent shall
furnish as many copies according to the parties in the suit and ten (10) extra
copies to be left with the Secretary – Paragraph 12(4). The reply must
be signed by the respondent or solicitor, if any – Paragraph 2(3).
The
reply shall be supported by –
1. copies
of documentary evidence;
2. list
of witnesses; and
3. the
written statement on oath.
The
petitioner has five (5) days from receipt of respondent’s reply to file his
reply only where new issues of fact are raised in the respondent’s reply – Paragraph
16(1). This time cannot be extended – Paragraph 16(2).
EFFECT OF NOT FILING A REPLY
The
non-filing of the required copies a reply or does not pay the prescribed fees,
the reply shall be deemed not to have been filed except the court or tribunal
requires otherwise – Paragraph 12 of
the First Schedule to the Act.
AMENDMENT OF PETITION
An
election petition can only be amended within the time limited for filing it,
which is thirty (30) days from the date of declaration of the result of the
election – Ngige v. Obi (supra).
Thereafter,
amendment will not be allowed under the following reasons –
1. To
introduce any of the contents required in paragraph
4(1) – Opia v. Ibru (1992) 3 NWLR
(Pt. 231) 658.
2. To
effect substantial alteration of the grounds for or prayer in the petition.
3. To
effect substantial alteration of or addition to the statement of fact relied on
to support the ground for or sustain the prayer in the petition except as
permitted by the Electoral Act – Paragraph 14(2); Ngige v. Obi (supra), where
it was explicitly held that no amendment affecting items listed under paragraph
14(2) of the first schedule to the Electoral Act would be allowed after the
expiry of time limited by the Act for presentation of petitions.
The
same rule applies to amendment to reply a petition. Such amendments must be
made within the time limited for filing reply which is fourteen (14) days from
the day of appearance entered by the respondents – Paragraph 14(2)(b)(ii) of the First Schedule of the Act; PDP v. Haruna (2004) 16 NWLR (Pt. 900) 597.
However,
amendment will be allowed to correct a
typographical error on the face of the petition – Chief Bola Ige v. Dr. Omololu Olunloyo (1984)1 SC 258; Aniagala v. Abeh
(1997) 7 NWLR (Pt. 611) 454.
PRE-HEARING SESSION AND
SCHEDULING
Within
seven (7) days of service of reply on the respondent or the petitioner, whichever
is the case, the petitioner shall apply for issuance of pre-hearing notice. Thereupon,
Tribunal/Court shall issue to parties or their legal practitioners pre-hearing
conference notice as in Form TF. 007. The notice is accompanied by pre-hearing
information sheet in Form TF. 008 – Paragraph 3(1) & (2).
Where
the Petitioner fails to bring the application for issuance of the pre-hearing
notice, the respondent may do so or apply for an order to dismiss the petition
– Paragraph 3(3).
Where
both parties fail to bring the application, the Tribunal/Court shall dismiss
the petition as an abandoned petition and shall not entertain any application
for extension of time to bring the application.
The
dismissal of the petition for failure to apply for pre-hearing notice is final
and renders the Tribunal/Court functus
officio – Paragraph 3(5).
Pre-hearing
session shall be completed within thirty (30) days of its commencement – Paragraph
3(9). The Tribunal/Court shall issue a report at the end of the session to
guide subsequent course of proceedings – Paragraph 3(10). Failure of a
party to attend satisfactorily in the session or obey the scheduling or pre-hearing
order, will lead to dismissal of the petition or entry of judgment as the case
may be – Paragraph 3(11).
The
judgment may be set aside upon application with undertaking to participate
effectively made within seven (7) days of the judgment with order of cost of
not less than N20,000 – Paragraph 3(12).
The
following should be noted –
1. All
motions shall be taken at pre-hearing sessions except with leave of court.
2. All
motions shall be supported by affidavit and written address – Paragraph
6(1), (2) and (3).
3. Respondents
is to file counter affidavit and written address within seven (7) days of
service if he wishes to oppose the motion – Paragraph 6(4)
4. Further
reply on point of law to be filed within three (3) days – Paragraph 6(5).
PURPOSE OF THE CONFERENCE
The
purposes of the conference are –
1. Disposal
of all matters which can be dealt with on interlocutory application.
2. Giving
such directions as to the future course of the petition as appear best adapted
to serve its just, expeditious and economical disposal in view of the urgency
of election petition.
3. Giving
directions on order of witnesses to be called and such documents to be tendered
by each party to prove their cases.
4. Fixing
clear dates for hearing of the petition – Paragraph 3(1) and (2).
ORDERS THE TRIBUNAL MAY MAKE AT
CONFERENCE
At
the pre- hearing session the Tribunal/Court shall enter a scheduling order for
–
1. Joining
other parties to the petition.
2. Amending
petition or reply or any other process (as allowed by law).
3. Filing
and adopting of written addresses on all interlocutory application.
4. Additional
pre-hearing sessions.
5. Order
of witnesses and tendering of documents.
6. Any
other matter that will promote quick disposal of the petition – Paragraph
3(6).
HEARING
Petition
shall be heard and determined in open court – Paragraph 18.
The
petitioner shall prove his case to the satisfaction of the Tribunal/Court in
accordance with the petitioner’s reply – Kudu v. Aliyu (1992) 3 NWLR (Pt. 231) 615. There
must be allegations of crime to be proved beyond reasonable doubt.
Facts
shall be proved by written depositions and oral examination of witnesses in
open court – Paragraph 4(1). No oral examination of a witness during his
evidence- in- chief save to lead him to adopt his written deposition and tender
documents mentioned therein – Paragraph 4(3).
Documents
and exhibits admitted by consent of parties at pre-hearing sessions shall be
tendered from the bar or by the party – Paragraph 4(2). Parties are
required to file written address within the stipulated time.
TIME FOR CONCLUDING HEARING
It
should be noted that the Act does not stipulate time limit for hearing a
petition but it enjoins the Tribunal/Court to give it accelerated hearing – section 148 of the Electoral Act.
JUDGMENT
After
conclusion of evidence and address, Tribunal or Court adjourns to a definite
date for judgment. The Court or Tribunal may allow or dismiss the petition,
that is, it may declare the election void or declare a particular candidate
duly elected or retuned; the tribunal may also award cost.
Where
the electoral law prescribes the time limit within which the Court or Tribunal
shall conclude the petition, the tribunal must deliver its judgment within the
time stipulated; otherwise, the judgment shall be a nullity. Immediately the
judgment of the tribunal is delivered, the Judge shall certify it to the
Electoral Commission, for their notification.
Where
a candidate’s election has been nullified by the trial Election Tribunal, the
candidate retains his seat until the Court of Appeal delivers a final decision.
If the Court of Appeal upholds the nullification of the election by the trial
tribunal, the candidate automatically forfeits his seat until a bye-election is
held – section 149(1) of the Electoral Act.
APPEALS
Appeals
from Governorship and Legislative Houses Election Tribunal, and National
Assembly Election Tribunal lie to the Court of Appeal – section 246(1)(b) of the Constitution.
The
decision of the Court of Appeal in respect of appeals from election petition is
final – section 246(3) of the Constitution; Awuse
v. Odili (2003) 18 NWLR (Pt. 851) 116; Onaguluchi v. Ndu (2001) 7 NWLR (Pt.
712) 309.
In
respect of the Area Council Election
Tribunal of FCT, appeals lie to the Area Council Election Appeal Tribunal and
the decision of the Appeal Tribunal is final – section 143(1) and (2) of the
Act. (Equivalent provisions
exist in the various state laws with respect to Local Government Election
Tribunals)
In
respect of the Presidential or Vice Presidential election, appeal lies from the
decision of the Court of Appeal to the Supreme Court. The decision of the
Supreme Court is final – section 235 of the Constitution.
ETHICAL
ISSUES
1. Rule 14 of the Rules of
Professional Conduct (RPC), 2007 – A
lawyer shall dedicate and devote his attention to the cause of his client.
2. Rule 15 of RPC – A
lawyer shall refuse to aid or participate in any conduct which he believes to
be unlawful even though there is some support for an argument that the conduct
is legal.
3. Rule 32(1) of RPC – A
lawyer in appearing in his professional capacity before a Court or Tribunal
shall not deal with the Court or Tribunal otherwise than candidly and fairly.
IN THE NATIONAL ASSEMBLY ELECTION
PETITION TRIBUNAL OF DELTA STATE OF NIGERIA
HOLDING AT ASABA.
Petition No…………..
BETWEEN
DR. VINCENT BROWN ………………… PETITIONER
AND
UNITY CONGRESS PARTY
THE RESIDENT ELECTORAL
COMMISSIONER RESPONDENTS
THE RETURNING OFFICER FOR THE SENATORIAL ELECTION
INDEPENDENT NATIONAL ELECTORAL COMMISSION
PETITION AGAINST THE SENATORIAL
DISTRICT ELECTION OF ASABA NORTH FEDERAL CONSTITUENCY OF DELTA STATE
Your
petitioner, Dr.
Vincent Brown was a
candidate in the senatorial election of Asaba North Federal Constituency of
Delta State held on 27th of April 2007 having contested the said
election under the platform of National Nigerian Party. The first respondent who contested the election under the
Unity Congress Party
was declared by the 3rd, 4th
and 5th respondents as the winner.
RESULT
OF THE ELECTION
Candidate No
of votes
Dr. Vincent Brown (petitioner) 10,000
Chief Ben Okagbue (1st
respondent) 15,000
Invalid votes 500
Total votes cast 25,500
Date of the election: APRIL 27, 2007.
Name of the returning officer:
Mr. Omorele Omogbeja
GROUNDS
OF THE PETITION
1. The 1st respondent is not
qualified to contest the election.
2. That the election was invalid by reason
of corrupt practices.
PARTICULARS
1. The 1st respondent made use
of thugs, snatched ballot boxes and disrupted election proceedings on the
election day.
2.
The 1st
respondent was indicted by the Economic and Financial Crimes Commission on 29th
of January, 2006.
3. The 1st respondent is an
ex-convict having been convicted of recovering stolen property by the High
Court of Delta State, Asaba on 1st March, 2005.
PRAYERS
1. A declaration that the 1st
respondent is incompetent to contest the Asaba North Federal Constituency
legislative election of Delta State held on April 27, 2007.
2. A declaration that the return of the 1st
respondent as the member of the Senate of the National Assembly by the 3rd,
4th and 5th respondent in the election held in April 27,
2007 is null and void.
3. An order for a bye-election.
Dated this 30th day of April, 2007
_________________
Dr. Vincent Brown
Petitioner
Plot
8, Nedu
Crescent.
Asaba.
_____________________
Petitioner’s
Counsel
Zubaiski Dise
No. 8 Abi Estate
Asaba.
Address for service
1st Respondent’s Address
No. 89, Anie
Road.
Asaba.
2nd Respondent’s
Address
House 15, Games Estate.
Asaba.
3rd Respondent’s Address
Independent National Electoral
Commission
No. 26, Independent Way
Asaba
4th & 5th Respondent’s Address
Independent National Commission
26 Independent Way
Asaba.
IN THE NATIONAL ASSEMBLY ELECTION
PETITION TRIBUNAL OF DELTA STATE OF NIGERIA
HOLDING AT ASABA.
Petition No…………..
BETWEEN
DR. VINCENT BROWN ………………… PETITIONER
AND
UNITY CONGRESS PARTY
THE RESIDENT ELECTORAL
COMMISSIONER RESPONDENTS
THE RETURNING OFFICER FOR THE SENATORIAL ELECTION
INDEPENDENT NATIONAL ELECTORAL COMMISSION
AFFIDAVIT IN SUPPORT OF PETITION
I, Dr. Vincent Brown, Male, 36, Christian, Nigerian citizen of Plot
8, Nedu
Crescent, Asaba, Delta State do hereby make oath and state as follows:
1. That I am the petitioner in this case.
2. That I am a member and candidate of
National Nigeria Party
(NNP).
3. That the Respondent is a member and
candidate of Unity Congress Party (UCP).
4. That on the 27th of April,
2007, I contested the senatorial election for Asaba North Federal Constituency
of Delta State on the platform of National Nigeria Party.
5. That on the same 27th of
April, 2007, the Respondent contested the senatorial election for Asaba North
Federal Constituency of Delta State on the platform of Unity Congress Party.
6. That the Respondent was wrongly and
fraudulently declared the winner. A copy of the election result is hereby
attached and marked “Exhibit A”.
7. That the Respondent’s agent disrupted
the election exercise, carted away polling boxes and brought in fake ballot
papers which are hereby attached and marked “Exhibit B1, B2 and B3”.
8. That the Respondent is not eligible to
contest for the election.
9. That the Respondent on the 1st
of March, 2005, was convicted of the offence of receiving stolen property. A certified
true copy of the court judgment is hereby attached and marked “Exhibit G”.
10. That I swear to this affidavit in good
faith conscientiously believing same to be true in accordance with the
provisions of the Oaths Act.
____________________
Deponent
Sworn
to at the High Court Registry, Asaba.
This 30th Day
of April, 2007.
BEFORE ME
_____________________
COMMISSIONER FOR OATHS.
IN THE NATIONAL ASSEMBLY ELECTION
PETITION TRIBUNAL OF DELTA STATE OF NIGERIA
HOLDING AT ASABA.
Petition No…………..
BETWEEN
DR. VINCENT BROWN ………………… PETITIONER
AND
UNITY CONGRESS PARTY
THE RESIDENT ELECTORAL
COMMISSIONER RESPONDENTS
THE RETURNING OFFICER FOR THE SENATORIAL ELECTION
INDEPENDENT NATIONAL ELECTORAL COMMISSION
WITNESS STATEMENT ON OATH
I, Dr. Vincent Brown, Male, 36, Christian, Nigerian citizen of Plot
8, Nedu
Crescent, Asaba, Delta State do hereby make oath and state as follows:
1. That I am the senatorial candidate of the National Nigeria Party (NNP) held on April 27, 2007.
2. That I sincerely believe that the
process of the election was irregular.
3. That I witness massive rigging and
ballot box snatching in my
ward which was carried out by
the Unity Congress Party
(UCP).
4. That I believe that the election is not free and fair.
That
I make this oath believing same to be true and in accordance with the Oath Law of
Delta State.
____________________
Deponent
Sworn
to at the High Court Registry, Asaba.
DATED this 30th Day of April, 2007.
BEFORE ME
______________________
COMMISSIONER FOR OATHS.
IN THE NATIONAL ASSEMBLY ELECTION
PETITION TRIBUNAL OF DELTA STATE OF NIGERIA
HOLDING AT ASABA.
Petition No…………..
BETWEEN
DR. VINCENT BROWN ………………… PETITIONER
AND
UNITY CONGRESS PARTY
THE RESIDENT ELECTORAL
COMMISSIONER RESPONDENTS
THE RETURNING OFFICER FOR THE SENATORIAL ELECTION
INDEPENDENT NATIONAL ELECTORAL COMMISSION
REPLY TO PETITION
1. The
1st respondent admits the facts contained in the petition only to
the extent as it concerns the fact that he is a member of the Unity Congress
Party (UCP), and did contest the senatorial election under that party.
2. The
1st respondent is vehemently opposed to the fact stated by the
petitioner that he (the 1st respondent) is not qualified to contest
the election.
3. The
1st respondent challenges the allegation by the petitioner that he
(the 1st respondent) is an ex-convict.
4. The
1st respondent challenges the allegation that the election was
invalid by reason of corrupt practices.
5. The
1st respondent shall at the hearing of the petition pray the
Honourable Court to dismiss same with punitive costs.
Dated this 5th day of May, 2007
_________________
Chief Ben Okagbue
1st
Respondent
No.
89, Anie Road,
Asaba.
_____________________
1st
Respondent’s Counsel
Soulbeez Gram
No. 20, Maka Close,
Asaba.
ADDRESS FOR SERVICE:
Petitioner’s Counsel
Zubaiski Dise
No. 8 Abi Estate
Asaba.
ABUBAKAR v. YAR’ADUA (2008) All
FWLR (Pt. 404) 1409
1.
ALHAJI ATIKU ABUBAKAR (GCON)
2.
SENATOR BEN OBI
3.
ACTION CONGRESS (AC)
VERSUS
1.
ALHAJI UMARU MUSA YAR’ADUA
2.
DR. GOODLUCK JONATHAN
3.
PEOPLES’ DEMOCRATIC PARTY (PDP)
4.
INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC)
5.
PROFESSOR MAURICE MADUAKOLAM IWU
(Chairman, INEC)
6.
CHIEF ELECTORAL COMMISSIONER and
804 Others.
FACTS OF THE CASE
This has to do with
two interlocutory appeals (first appeal relating to the ruling of the Court of
Appeal refusing leave to the petitioners/appellants to file interrogatories
against Prof. Maurice Iwu, the 5th respondent and seek further and
better particulars against the 1st and 2nd respondents
respectively; and the second appeal is against the ruling of the Court of
Appeal granting extension of time to the 4th – 808th
respondents to file 213 additional witnesses’ statements on oath) emanating
from the Presidential Election conducted on 21st April, 2007 filed
by the appellant from the Court of Appeal; the appeal were consolidated for
hearing by the Election Tribunal (Court of Appeal) but separately considered on
merits. The petitioners Alhaji Atiku Abubakar, Sen. Ben Obi and The Action
Congress challenged the election of Umaru Musa Yar’Adua who contested on the
platform of the Peoples’ Democratic People (PDP), as the winner of the April
2007 Presidential Election.
The respondent,
Umaru Musa Yar’Adua was declared the winner by INEC having polled twenty-four
thousand, seven hundred and eighty-nine thousand, two hundred and twenty seven
(24,789,227) votes. Dissatisfied with the result announced by the 5th
respondent (Prof. Maurice Iwu), the petitioner filed a suit in the Court of
Appeal that the election is invalid for non-compliance with the provisions of
the Electoral Act, 2006. They also alleged the use of corrupt practices, and
complained that acts and omissions corruptive of the electoral system and process
were committed in the conduct of the election. The Court of Appeal dismissed
the suit.
Dissatisfied with
the decision of the Court of Appeal, the appellants/petitioners appealed to the
Supreme Court.
HELD
On the attitude of court to insufficient particulars
in pleadings – The
Supreme Court stated that where the particulars given by a party in his
pleadings are insufficient under the rules of court, the court on its own
initiative or on the application of any of the parties to the case, may order
particulars of any claim, defence or any matter pleaded to be given, since the
function of particulars is to aid the operation of the basic principle that
litigation should be conducted fairly, openly and without surprises as well as
to reduce costs. There is nothing to prevent any of the parties from asking for
particulars even after the statement of the defence has been filed, and where a party omits to set
out details, he ought to have given, and his opponent does not apply for
particulars, he is entitled to give evidence at the trial of any fact which
supports the allegations in the pleadings.
On the rationale behind furnishing
particulars to a pleading – The Supreme Court stated that the furnishing of particulars to a
pleading is meant to eliminate the element of surprise being sprung on the
opposite party to a case. It also enables the party to adequately prepare his
defence or cross-examination of the witness. Failure by a party to comply with
an order to furnish further particulars to his pleadings will preclude the
party so defaulting from leading evidence on the facts of which further
particulars is required.
On when an appeal will lie as of right to the
Supreme Court – The
Supreme Court stated that section 233(1) of the 1999 Constitution provides that
an appeal from the decision of the Court of Appeal in any civil or criminal
proceedings shall lie as of right to the Supreme Court... Thus, where the
grounds of appeal against the decision, whether final or interlocutory involves
question of law alone and it is filed within the time stipulated by the rules
of court, the appeal is competent. No leave is required in such a case.
On whether every non-compliance with rules of
court will vitiate the proceedings of court – The Supreme Court stated that it is not every
non-compliance with the rules of court that will vitiate the proceedings or do
harm to the party in default. As a matter of our adjectival law, and by the
state of the non-compliance rules, the courts will regard certain acts or
conducts of non-compliance as mere irregularity which could be waived in the
interest of justice.
On the nature of election petitions – The Supreme Court stated that
election petitions are sui generis and should be treated in
that domain or realm.
On onus on a petitioner who alleges electoral
malpractices in an election – The Supreme Court stated that where a petitioner alleges electoral
malpractices as in the instant case, he has a duty to prove the malpractices
alleged and prove that same affected the result of the elction.
On when an appeal can be validly sustained – The Supreme Court stated that an
appeal can be sustained by one valid ground of appeal. In the instant case,
where three valid grounds of appeal were identified, these could sustain the
appeal.
On when an appeal is as of right – The Supreme Court stated that
appeal on grounds of law alone is as of right.
The Supreme Court
from the above and inter alia dismissed
the preliminary objection; allowed the first appeal in part; and dismissed the
second appeal.
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