⦿ CASE SUMMARY OF:
Hon. Dr. Willie Ogbeide v. Mr. R. E. Arigbe Osula & Ors (2003) – SC
by PaulPipar
⦿ THEME(S)
– necessary parties to an election petition;
– filing a cross appeal;
– filing a respondent notice;
– failure to state scores of candidates in a petition;
⦿ PARTIES
APPELLANT
Hon. Dr. Willie Ogbeide
v.
RESPONDENTS
1. Mr. R. E. Arigbe Osula
2. Olufemi Olumise Ayeni (Returning Officer Oredo, Federal Constituency of Edo State)
3. The Electoral Officer, Oredo Local Government Area
4. Independent National Electoral Commission (INEC)
⦿ CITATION
(2003) LPELR-10308(CA);
[2003] 15 NWLR (Pt.843)403
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
MUNTAKA-COOMASSIE, J.C.A.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Mr. Izinyon, SAN.
* FOR THE RESPONDENT
– Mr. Ken Mozia.
⦿ FACT
The Appellant herein was the Petitioner at the National Assembly/Governorship and Legislative Houses Election Tribunal, sitting in Benin, hereafter, referred to as the Tribunal.
He was sponsored by the People Democratic Party (P.D.P.) to contest the election into the House of Representatives for Oredo Federal Constituency, Edo State.
The 1st Respondent, Mr. E. Arigbe Osula, contested under the platform of the All Nigerian Peoples Party (A.N.P.P.).
The election was held on 12/4/03 and at the close of the election, the returning officer, i.e. Mr. Olufemi Olumise Ayeni, the second Respondent herein, returned the 1st Respondent as duly elected by a majority of 40,301 (Forty Thousand Three Hundred and One) votes as against 34,380 (Thirty-four Thousand, Three Hundred and Eighty) votes awarded to the Petitioner.
The Appellant was not satisfied with the results declared by the returning officer and presented a Petition before the Tribunal on the grounds that the 1st Respondent was not qualified to contest the election; and that the election was marred with thuggery and violence.
The 1st Respondent filed a memorandum of conditional appearance and a reply in which he raised a preliminary objection as to the competency of the petition on the ground that the petition failed to comply with paragraph 4(1)(c) of the First Schedule of the Electoral Act, 2002, as amended, in that the petition did not state the votes scored by the candidates in the election. In addition, the 1st Respondent attacked the scores stated on the grounds that the word “award” was used, which renders the scores stated nugatory and non-existent.
After considering the petition, the Tribunal was of the view that the content of the petition is not complete, since the petition did not join all the necessary parties and state their scores in the petition, therefore, the petition must be declared incompetent.
The Petitioner, herein Appellant has, appealed before this Court.
⦿ ISSUE(S)
Whether the non-stating the of names and scores of other candidates by Appellant’s petition renders the petition incompetent having regard to the provision of paragraph 4(1)(c) of the First Schedule of Electoral Act, 2002?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED]
The sole issue was judged in favour of the Appellant. The Court of Appeal stated, “In the instant appeal, the omission to state the scores of other candidates who contested, but lost the elections cannot affect the competency of the petition since the necessary parties i.e. the statutory Respondents were all joined and the petition could properly be determined without them.”
⦿ REFERENCED
⦿ SOME PROVISIONS
Paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2002 states as follows:
4(1). an election petition under this Act shall:
(a) specify the parties interested in the election petition;
(b) specify the right of the Petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the winner of the election; and
(d) state clearly the facts of the election petition and ground or grounds on which the petition is based and the relief sought by the Petitioner.
(6) An election Petition which does not conform with sub-paragraph (1) of this paragraph or any provision of that sub-paragraph is defective and may be struck out by the Tribunal or Court.
Section 133(2) of the Electoral Act, 2002 are:
(i) The person whose election is complained of (usually the person who is returned as the winner of the election); and
(ii) 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 officer or person shall be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party.
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
* PROCEDURAL
* SUBSTANTIVE
No doubt, the proper way for the Respondents to question any aspect of a judgment that is substantially in his favour is to file a cross-appeal or file a Respondent’s notice with regard to that complaint. – MUNTAKA-COOMASSIE, J.C.A. Ogbeide v. Osula (2003)
See also Ogunbadejo v. Owoyemi (supra), wherein the Supreme Court enumerated the situations when a Respondent needs to file a cross-appeal in an appeal as follows:
(a) Where there are separate and distinct causes of action and one party seeks to contest the decision upon one cause of action and another party upon another cause of action;
(b) Where there are several parties and the Respondent seeks to vary the decision or order of the Court on a point in which the Appellant has no interest;
(c) Where the Respondent wished to contest the jurisdiction or vires of the Court;
(d) Where the Respondent wishes to reverse any findings made by the Court or Courts below;
(e) Where the Respondent wants a complete reversal of the decision of the lower Court. – MUNTAKA-COOMASSIE, J.C.A. Ogbeide v. Osula (2003)
A Respondent’s notice applies only where the Respondent intends to retain the judgment, but at the same time wants it varied. – MUNTAKA-COOMASSIE, J.C.A. Ogbeide v. Osula (2003)
