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Nwole vs. Iwuagwu

PRINCE UCHE NWOLE

V

CHIEF AMAH CHIBUZO IWUAGWU

INDEPENDENT NATIONAL ELECTORAL COMMISSION

THE RETURNING OFFICER, OWERRI SENATORIAL CONSTITUENCY

THE RETURNING OFFICER, MBAITOLI L.G.A.

THE RETURNING OFFICER, IKEDURU L.G. A

THE RETURNING OFFICER,OWERRI WEST L.G.A.

THE RETURNING OFFICER,OWERRI MUNICIPA L.G.A.

THE RETURNING OFFICER,OWERRI NORTH L.G.A.

THE RETURNING OFFICER, AHIAZU L.G.A.

THE RETURNING OFFICER, ABOH MBAISE L.G.A.

THE RETURNING OFFICER, EZINIHITTEE L.G.A.

THE RETURNING OFFICER, NGOR-OKPALA L.G.A.

THE ELECTORAL OFFICER, MABITOLI L.G.A.

THE ELECTORAL OFFICER, IKEDURU L.G.A.

THE ELECTORAL OFFICER,OWERRI NORTH L.G.A

THE ELECTORAL OFFICER, OWERRI MUNICIPAL GOVT. AREA

THE ELECTORAL OFFICER, OWERRI NORTH L.G.A.

THE ELECTORAL OFFICER, AHIAZU L.G.A.

THE ELECTORAL OFFICER, ABOH-MBAISE L.G.A.

THE ELECTORAL OFFICER, NGOR-OKPALA L.G.A.

COURT OF APPEAL

( PORT HARCOURT DIVISION )

MICHAEL EYARUOMA APKIROROH, JCA ( Presided )

ABOYI JOHN IKONGBEH, JCA

DAVID ADEDOYIN ADENIJI, JCA ( Read the Lead Judgment )

CA/PH/EPT/ 201/2003

THURSDAY, 9TH OCTOBER, 2003

ACTION - Parties - Necessary party - Who is

ACTION -Proper parties under section 133(2) of the Electoral Act 2002 Determination of

COURT - Court ascribing a particular situation to a litigant when he did not make such allegation - Impropriety of

COURT - Discretion of Court - Need for to be exercised judicially

COURT - Section 133(2) of Electoral Act 2002 - Application of - Need for court not to be dogmatic

COURT - Need for to eschew technicalities

COURT - Striking out of an election petition - Discretionary power of court to so do - Section 136 of the Electoral Act 2002

ELECTORAL LAW - Controversy as to candidate to be pleaded under section 133(1)(2)  of the Electoral Act 2002 - How resolved

ELECTORAL LAW - Non-compliance with the Electoral Act 2002 - Scope of

ELECTORAL LAW - Proper parties under section 133(2) of the Electoral Act 2002 - Determination of

ELECTORAL LAW - Section 133 (2) of Electoral Act 2002 - Application of -  Need for court not to be dogmatic

ELECTORAL LAW - Section 133(2) of the Electoral Act 2002 - Proper Interpretation of

ELECTORAL MATTERS - Election petition - Need for to be handled with a view to doing substantial justice to both parties

ELECTORAL MATTERS - Non-compliance with the Electoral Act - When may not give rise to invalidation of an election

INTERPRETATION - Interpretation of statute - Need to avoid isolated reading  of a section

PARTIES - Parties - Necessary party - Who is

PARTIES - Proper parties under section 133(2) of the Electoral Act 2002 Determination of

PRACTICE AND PROCEDURE - Court ascribing a particular situation to a litigant when he did not make such allegation - Impropriety of

PRACTICE AND PROCEDURE - Election petition - Need for to be handled with a view to doing substantial justice to both parties

PRACTICE AND PROCEDURE - Non -compliance with the Electoral Act -  When may not give rise to  invalidation of an election

PRACTICE AND PROCEDURE -Discretion of court - Need for to be exercised judicially

PRACTICE AND PROCEDURE - Striking out of an election petition Discretionary power of court to so do - Section 136 of the Electoral Act 2002

STATUTE - A section of a statute - Need to avoid isolated reading of

STATUTE - Electoral Act 2002 - Non-compliance with  - Scope of

STATUTE - Section 133 (2) of Electoral Act 2002 - Application of - Need for court not to be dogmatic

STATUTE - Section 133(2) of the Electoral Act 2002 - Proper Interpretation of vis-a-vis paragraph 4 (ii) (c) of the first schedule of the Act

Issue:

Whether the Tribunal in law was right in striking out the election petition filed by the appellant for incompetence on the ground that presiding officers were not joined in the petition.

Facts:

The appellant and the 1st respondent were candidates in the National Assembly Election for the Owerri Senatorial District. He contested on the platform of the All Nigeria Peoples Party (ANPP) while the 1st respondent contested on the platform of the Peoples Democratic Party (PDP). The appellant not satisfied with the result of the election filed a petition before the Election Petition Tribunal, Imo State sitting at Owerri in suit No. MAE/ IMS/16/03. At a stage in the proceedings, the respondent’s counsel raised an objection on the ground of incompetence of the petition, the petitioner having made allegations against the Presiding Officers and Ward Returning Officers for the Senatorial District without making them parties in the petition.

Issues were joined on that ground and the Election Tribunal upheld the objection raised by the 1st respondent whereby the entire petition was struck out. The appellant being dissatisfied, appealed to the Court of Appeal. The Court of Appeal in resolving the appeal considered sections 133(1)(2), 135(1)  and 136(3) of the Electoral Act 2002, Paragraph 4(ii)(c) of the first Schedule of the Act which provides thus:

“Section 133(1) An election petition may be presented by one or more of the following persons:

(a)          A candidate at an election;

(b)         A political party, which participated at the election.

          (2) The person whose election is complained of is, in this Act referred to as the respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officers or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party”.

“Section 135(1) An election shall not be liable to be invalidated by reason of non-compliance with the provision of this Act if it appears to the Election Tribunal or court that the election was conducted substantially in accordance with the principle of this Act and that the non-compliance did not affect substantially the result of the election.”

“Section 136(3) On the motion of a respondent  in an election petition, the Election Tribunal or the court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this part of this Act, or the provisions of the First Schedule of this Act”.