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Chianson v. Igba

BASIL CHIANSON

ALL NIGERIA PEOPLES PARTY (ANPP)

V

PETER IGBA

PEOPLES DEMOCRATIC PARTY (PDP)

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

INDEPENDENT NATIONAL ELECTORAL COMMISSION, BENUE STATE

THE RETURNING OFFICER, MAKURDI SOUTH CONSTITUENCY

THE ELECTORAL OFFICER, MAKURDI LOCAL GOVERNMENT

THE RETURNING OFFICER, WAILOMAYO COUNCIL WARD

THE RETURNING OFFICER, MODERN MARKET COUNCIL WARD

THE RETURNING OFFICER, BAR COUNCIL WARD

THE RETURNING OFFICER, FIIDI COUNCIL WARD

THE RETURNING OFFICER, ANKPAWADATA COUNCIL WARD

THE PRESIDING OFFICERS, POLLING STATIONS IN BAR COUNCIL WARD

THE PRESIDING OFFICERS, POLLING STATIONS IN FIIDI COUNCIL WARD

THE PRESIDING OFFICERS, POLLING STATIONS IN MODERN MARKET COUNCIL WARD

THE PRESIDING OFFICERS, POLLING

STATIONS IN WAILOMAYO COUNCIL WARD

THE PRESIDING OFFICERS, POLLING STATIONS IN ANPA/WADATA COUNCIL

WARD

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

OLUDADE OLADAPO OBADINA, JCA

IKECHI FRANCIS OGBUAGU, JCA (Read the Lead Judgment)

CA/J/187/2003

TUESDAY, 2 ND DECEMBER,  2003 

APPEAL - Ground of appeal - Nature of - What determines

COURT - Appeal court - Power of to grant relief not asked for by parties

COURT - Issues for determination - Duty on to consider all issues formulated by parties

COURT - Reliefs - Omnibus prayer - Whether empowers court to grant relief not specifically claimed

ELECTION PETITION - ‘Prayer’ as used therein - Meaning of

ELECTION PETITION - Appeal against election tribunal’s decision Time within which could be filed

ELECTION PETITION - Non-compliance - Failure of to comply with mandatory statutory provisions - Effect of

ELECTION PETITION - Objection challenging the regularity or competence of - Need to hear and determine same firstly

ELECTION PETITION - Parties - Necessary parties to an election petition - Determination of

ELECTION PETITION - Parties - Non-joinder of electoral officers against whom allegations of misconduct is made - Effect

ELECTION PETITION - Prayer required therein - Types of

ELECTION PETITION - Prayers in an election petition - Duty on petitioner to specifically plead

PRACTICE AND PROCEDURE -  Appearance - Types of

PRACTICE AND PROCEDURE - Competence or regularity of proceedings - Objection to by defendant or respondent Procedure for

PRACTICE AND PROCEDURE - General or omnibus prayer - Whether empowers court to grant relief not specifically claimed

PRACTICE AND PROCEDURE - Objection to competence or regularity of an election petition - Validity of respondent who did not file a conditional appearance or memorandum of appearance raising

PRACTICE AND PROCEDURE - Parties to an election petition Necessary parties - Non-joinder of -  Effect

WORDS AND PHRASES - The expression ‘entering an appearance’ Meaning of

WORDS AND PHRASES - The term ‘prayer’ as used in an election -

Meaning of

Issues:

1.              Whether the conditional memorandum of appearance filed on 13 /6/2003 for the 1st respondent was deemed, not to have been filed in law, in view of the mandatory provisions of paragraph 9(1), (2) and (3) of the First Schedule to the Electoral Act, 2002, and a fortiori, whether the trial Tribunal was wrong to allow objection predicated on the invalid and incompetent conditional memorandum of appearance.

2.              Whether necessary parties were joined in appellants’ petition No. EPT/BEN/HA/16/03 and whether the trial Tribunal was right to make a case for the 1st respondent that the Electoral Act, 2002 does not permit lumping/merger of electoral officers/ returning officers and presiding officers as respondents in an election petition.

3.              Whether prayers 1, 2, 3 and alternative prayer (1) in the petition of the petitioners/appellants are grantable prayers in an election petition and or whether appellants are under legal compulsion to adopt and follow strictly the example of prayers set out in the 2nd Schedule to the Electoral Act, 2002, in their petition No. EPT/BEN/HA/16/03.

Facts:

The 1st appellant herein was a candidate at the election held on 3rd May, 2003 for the Makurdi South Constituency to the Benue State House of Assembly. He contested on the platform of the 2nd appellant - All Nigeria Peoples Party (ANPP). The 1st respondent was also a candidate at the said election and contested on the platform of the 2nd respondent - Peoples Democratic Party (PDP). There were three (3) other contestants sponsored by their respective political parties.

At the conclusion of the election exercise, the 1st respondent was returned as the House of Assembly member-elect for the said constituency by the 3rd to 16th respondents having scored the highest votes. According to the appellants this return was made even though the 1st respondent did not score majority of lawful and valid votes cast at the said election.

Dissatisfied with the return, the appellants filed a petition at the National Assembly/Governorship/Legislative Houses Election Petition Tribunal sitting at Makurdi, Benue State.

The 1st respondent caused a conditional appearance to be entered on his behalf and equally filed a motion urging the Tribunal to strike out the petition for being incompetent. Other respondents did not enter appearance but gave notice of preliminary objection to the competence of the petition. The Tribunal took arguments of counsel on the preliminary objection and upheld same holding that it did not have any jurisdiction to entertain the petition. It then struck out the petition.

Dissatisfied, the appellants appealed to the Court of Appeal.