4
It is convenient to set out the grounds of appeal:
"(a)
the proceedings brought by the Respondent in OS 233 of 2003 was in breach
of Section 206 of the Organic Law on National and Local Level Government
Elections "the Organic Law" and an abuse of process. Section 206 of the
Organic Law provides that the validity of an election or return may be
disputed by petition addressed to the National Court and not otherwise; and
(b)
the Learned Trial Judge erred in law in finding that Section 117 of the
Organic Law was irrelevant when that Section provides that an election
shall not be challenged on ground of a failure to observe a polling schedule
or comply with the provisions of Section 114 (regarding notice of polling
schedules) or of a variation or departure from a polling schedules."
(c)
the Learned Trial Judge erred in law and acted without jurisdiction in
finding that he polling schedule and variations to it were inadequate,
insufficient and ordering further polling when Section 115 of the Organic
Law imposes the duty, authority and discretion for the conduct of polling
and the preparation and variation of polling schedule solely upon the
Appellants;
(d)
the Learned Trial Judge failed to find that the provisions for extensions of
time for polling and or variations in polling schedules are accorded to the
Head of State acting with and in accordance with the advice of the
Appellants pursuant to Section 177 of the Organic Law and that accordingly
the National Court had no jurisdiction to make the orders made; and
(e)
the Learned Trial Judge erred in law in failing to find that there was
insufficient evidence of fact upon which to make such orders.
In the National Court, the Respondent sought to extend the polling by one day to give
registered and eligible voters opportunity to vote in the six polling places referred to earlier.
The grounds of appeal raise important questions of law.
Questions of Law
Both counsel for the Appellants submit that the Trial Judge exceeded its jurisdiction by
interfering with the election process contrary to the provisions of the Organic Law. In
particular s 115, s 117, s 177 and s 206.
A supplementary election may be held in accordance with s 97 of the Organic Law. The
supplementary election in respect of Imbongu Open Electorate has been conducted in
accordance with this provision.
Section 126 (1) of the Constitution provides:
"Elections to the Parliament shall be conducted, in accordance with an Organic
Law, by the Electoral Commission."