BEST LAW REPORT SUBSCRIPTION PRICE!!

  • Ray v. Maduabu
  • 310
  • 2006-05-08
  • ₦ 200
  • Buy Now

Ray v. Maduabu

ONYIMBAH ENEKWECHI C. RAY

V

EMMA MADUABU

INDEPENDENT NATIONAL ELECTORAL COMMISSION

OZO P. C. ENUH

[ Returning officer for the State House of Assembly election for Awgu south constituency, Enugu State]

COURT OF APPEAL

( ENUGU DIVISION )

JOHN AFOLABI FABIYI JCA ( Presided )

CLARA BATA OGUNBIYI JCA ( Read the Lead Judgment )

MONICA B. DONGBAN-MENSEM JCA

CA/E/EPT/7/2003

TUESDAY, 6TH APRIL, 2004

ELECTORAL MATTERS - Election Tribunal - Mandatory provision thereon to make a return only when election is conclusive Exception thereto

ELECTORAL MATTERS - Electoral Act - Non-compliance with in an election - Whether election is invalidated thereby

ELECTORAL MATTERS - Substantial non-compliance with electoral provisions in an election - How determined

INTERPRETATION OF STATUTES - Duty on court when interpreting statutes

JUDGMENT AND ORDERS - Consequential order - Definition of

JURISPRUDENCE - Act done without any legal framework - Legal consequences of

JUSTICE - ‘Interest of justice’ - Generic nature and meaning of

NOTABLE PRONOUNCEMENT - Electoral matters - Undesirable excesses of electoral officers - Need to curtail

STATUTE - Electoral Act - Non-compliance with in an election - Whether election is invalidated thereby

STATUTE - Electoral Act, 2002, section 136(1)&(2) - Interpretation of

STATUTE - Electoral Act, 2002, section 60 - House of Assembly elections

-  Regulation of thereby

WORDS AND PHRASES - ‘Consequential order’ - Definition of

WORDS AND PHRASES - ‘Interest of justice’ - Generic nature and meaning of

Issue:

Whether the Election Tribunal was justified in refusing to declare the petitioner/appellant as the elected member for Awgu south constituency in the Enugu State House of Assembly by virtue of the State House of Assembly election held on 3rd May, 2003 and/or in ordering a bye-election in some wards of Awgu south constituency having regard to its findings/holdings that the 1st respondent did not score the majority of lawful votes cast at the election.

Facts:

The appellant was the petitioner before the Enugu State House of Assembly ElectionTribunal. He contested the election to the Enugu State House of Assembly, Awgu south constituency held on 3rd May, 2003 on the platform of All Nigerian Peoples Party (ANPP), while the 1st respondent contested on the platform of the Peoples Democratic Party (PDP). At the end of the election, the 1st respondent was returned by the 2nd and 3rd respondents as the winner of the election. The petitioner/appellant was dissatisfied with the declaration and return of the 1st respondent and filed a petition before the Election Tribunal. He prayed the Tribunal in the petition to determine that; the 1st respondent was not duly elected or returned by the majority of lawful votes cast at the election, that the 1st respondent’s election was void, that the petitioner/appellant was duly elected by the majority of lawful/valid votes at the election and ought to have been returned and should be returned. He also prayed for an order directing the 2nd respondent to cause the petitioner/appellant to be sworn in as the duly elected member for Awgu south constituency in the Enugu State House of Assembly.

The Election Tribunal after hearing evidence of the parties found that from the available total number of votes, the appellant scored the highest number of votes. It also found that the elections were not conclusive as polls did not hold in all the wards in the constituency and it therefore ordered a bye-election.

The petitioner/appellant was dissatisfied with the Tribunal’s ruling for not declaring him as the winner of the election and appealed to the Court of Appeal.

The Court of Appeal in determining the appeal considered the following statutes:

Section 27 of the Schedule to the Electoral Act, 2002:

“27(1) At the conclusion of the hearing the Tribunal shall determine whether a person whose election or return is complained of or any other person, and what person, was validly returned or elected, or whether the election was void, and shall certify the determination to the Resident Electoral Commissioner or the Commission.

(2)  If the Tribunal or court has determined that the election is invalid, then subject to section 159 of this Act where there is an appeal and the appeal fails, a new election shall be held by

the Commission.”

Section 60, Electoral Act, 2002:

“60. In an election to the office of the President or Governor ( whether or not contested) and in any contested election to any other elective office, the result shall be ascertained by counting the votes cast for each candidate and subject to the provisions of sections 133, 134 and 179 of the Constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate returning officer.” Section 135(1), Electoral Act, 2002:

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

Section 136(1) & (2), Electoral Act, 2002:

136(1)  Subject to subsection (2) of this section, if the Tribunal or the court as the case may be determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the court shall nullify the election.

(2)  If the Tribunal or court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes at the election, the Election Tribunal or the court as the case may be shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirement of the Constitution and this Act.”