Chief Onwuka Kalu (a.k.a.) Okpuzu V. Dr. Kalu Orji Johnson Uzor & Ors.(2005)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A.

This is an appeal against the judgment of The Governorship and Legislative Houses Election Tribunal dated 16th August, 2005. The appellant was the petitioner in an Election Petition filed in the said Governorship and Legislative Houses Tribunal holden at Umuahia, Abia State. The appellant and the 1st respondent herein were contestants at the gubernatorial elections, concerning the Governorship of Abia State, held on the 19th of April, 2003.

The 1st respondent was returned as duly elected by the Independent National Electoral Commission (INEC) and being dissatisfied with the result, the appellant filed the said petition challenging the 1st respondent’s return. The petition is at pages 1 – 3 of the printed record. The respondents satisfied all the preliminaries including filing their respective memoranda of appearance. The 1st respondent filed a reply to the petition which incorporated a notice of preliminary objection. In addition, the 1st respondent filed a motion on notice indicating the grounds of objection to the competence of the petition. The 2nd – 6th respondents, similarly, filed a separate notice of preliminary objection. Both objections were heard by the Tribunal and a ruling was delivered on June 13, 2005 by which the petition was struck out.

Dissatisfied with the ruling of the tribunal, the appellant appealed to the Court of Appeal. The Court of Appeal ordered that the petition be remitted to a fresh panel for hearing on the merit of the petition. Against that order, the 1st respondent filed an appeal at the Supreme Court which said appeal was struck out by the apex court for want of jurisdiction. The petition was thereafter heard by a new panel. At the hearing on merit, the petitioner called twenty-seven witnesses and also testified in person. The 1st respondent did not testify but called eight witnesses. The 2nd to 6th respondents elected not to call any witness and after hearing the addresses of all counsel to the parties, the tribunal delivered a well considered judgment and dismissed the petition as unmeritorious. It is against that judgment that the appellant has again appealed to this court.

The appellant has filed twenty-seven grounds of appeal (see pages 531- 554 of the record). There is a cross-appeal by the 2nd – 6th respondents (see pages 555 – 558) of the record. The 1st respondent has however challenged the jurisdiction of this court to hear the appeal by reason of a notice of preliminary objection dated the 20th September, 2005.From the twenty-seven grounds of appeal, the appellant raised thirteen issues for determination. They read:

Issue 1

3.01 “Whether the learned tribunal approached the pleadings by the parties in the suit correctly, and if not, whether that did not affect its decision in the case.

(This issue is distilled from grounds 1, 22 & 26)

Issue 2

3.02 Whether the tribunal was right in holding that the standard of proof required to establish the petition or grounds of the petition was not satisfied in this case?

(This issue is distilled from ground 4 & 9).

Issue 3

3.03 Whether the allegation of crime was directly issue in the petition so that it will require proof of the petition beyond reasonable doubt. (This issue is distilled from ground 10).

Issue 4