Stephen Onmeje V. Mr. Otse Otokpa & Ors (1999)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A.

The appellant/petitioner before Election Tribunal sitting at Makurdi, Benue State has challenged the return of the 1st respondent as the Chairman of Ado Local Government Area. As required under the Decree, the scores of the parties at the election were not pleaded. Failure to so plead was hotly contested in an interlocutory application for striking out the petition on grounds of incompetence.

At the end of the trial, the application was overruled. The reasons for so holding are now unimportant in the consideration of this matter as there is no cross-appeal against the ruling. Howsoever in Exhibits 49 and 95 tendered before the tribunal have been reflected the disputed scores at the election thus:

1,4616 and 1,0186 respectively for the 1st respondent and 1,0026 for the petitioner in both exhibits.

The crux of the petitioner’s case at the tribunal fell under two headings, namely:

(i) That the election was voided by corrupt practices, malpractices and non-compliance with the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 (hereafter referred to as the Decree).

(ii) That the appellant scored a majority of lawful votes and ought to have been returned.

Separate replies to the petition were filed on behalf of the 1st respondent and the 2nd to 7th respondents. All the material allegations contained in the petition were duly traversed. Issues having been joined, the petition proceeded to full blown hearing. The petitioner testified and called 4 (four) witnesses, in addition tendered 100 (one hundred) exhibits, while the 1st to 2nd respondents testified and called 3 (three) witnesses and tendered 9 (nine) exhibits. Both counsel rendered their addresses and the tribunal in dismissing the petition found that there was no scintilla of evidence adduced to sustain the allegations in the petition.

Aggrieved by the decision, the appellant has appealed to this court predicating his complaints on five grounds of appeal reproduced herein as follows without their particulars:

(1) The honourable tribunal erred in law in holding that a returning officer appointed by National Election Commission of Nigeria to make a return during the 5th December, 1998, Local Government Election held under Decree No. 36 of 1998 is an ad hoc staff and, therefore, subject to the control and supervision of the electoral officer of a Local Government Area, and thereby occasioned a miscarriage of justice.

(2) The honourable tribunal erred in law when it permitted evidence on unpleaded facts to be given by the respondents, while refusing to allow the petitioner to lead evidence regarding pleaded facts, and thereby occasioned a miscarriage of justice.

(3) The honourable tribunal erred in law by holding that it could not look at documentary evidence before it because that would be a voyage of discovering behind the back of the litigants and thereby occasioned a miscarriage of justice.

(4) The honourable tribunal erred in law when it held that the electoral officer (2nd respondent) has powers to make declaration of scores of candidates and the return of a candidate and thereby occasioned a miscarriage of justice.

(5) The decision of the honourable tribunal is against the weight of evidence.