Maduakolam Samuel Chidubem V. Obioma Ekenna & 12 Ors (2008)

LawGlobal-Hub Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

The appellant in this appeal representing Ezinhitte-Mbaise Local Government Area Constituency, contested the election into the Imo State House of Assembly held on 14th April, 2007 on the platform of the All Progressive Grand Alliance (APGA). The 1st respondent contested the election on the platform of the Peoples Democratic Party while three other candidates Raymon Nna, Peter Nwokorie and Anthony Nwogu contested on the platforms of the Progressive peoples Alliance (PPA), the All Nigeria Peoples Party (ANPP), and the Action Congress (AC) respectively. At the conclusion of the election the 1st respondent was returned as the winner with 16,024 votes while the appellant came second with 6,312 votes.

The appellant was dissatisfied with the return of the 1st respondent and filed a petition before the Governorship and Legislative Houses Electron Tribunal holden at Owerri (the lower Tribunal) challenging the said return. The grounds of the petition at page 3 of the record are

a. The 1st respondent was not duly elected by majority of the lawful votes cast at the election.

b. The election was invalid by reason of corrupt practice and/or non compliance with the provisions of the Electoral Act 2006.

The parties, in compliance with the Election Tribunal and Court Practice Directions 2007 duly filed and exchanged their witness statements and list of documents to be relied upon at the hearing. The appellant and five other witnesses testified in support of his case. Three witnesses testified on behalf of the 1st respondent while one witness testified for the 2nd – 13th respondents. Documents were tendered as exhibits. During the pre-hearing conference the appellant abandoned the first ground of the petition. The only issue for determination before the lower Tribunal was therefore whether the election was invalid by reason of corrupt practice and/or non-compliance with the provisions of the Electoral Act. At the conclusion of the trial the lower Tribunal, in a considered judgment delivered on 2/10/07, dismissed the petition.

The appellant was dissatisfied with the judgment and has filed a notice of appeal containing seven grounds of appeal.

In compliance with the Practice Directions No. 2 of 2007 the parties duly filed and exchanged briefs of argument.

In the appellant’s brief dated 3/4/08 and filed on 4/3/08. two issues were formulated for the determination of this appeal.

They are.

1. Whether the trial Tribunal was right in holding that the evidence of PW2, PW3, PW4, PW5 and PW6 were worthless? (Grounds 3, 5 and 6)
2. As between the appellant and the respondents, who discharged the burden of proof imposed on him by law? (Grounds 1, 2 and 4)

The 1st respondent, in his brief dated 10/3/08 and filed on 11/3/08, adopted the two issues formulated by the appellant.

The 2nd – 13th respondents’ brief is dated 10/3/08 and filed on 11/3/08. They formulated a single issue for determination thus:

“Whether the Appellant discharged the burden of proof of his petition?

At the hearing of this appeal on 8/4/08, Mr. N.A. Nnawuchi adopted the appellant’s brief and urged us to allow the appeal. Mr. Uzoma Onyeike for the 1st Respondent arid Mr. Gordy Uche for the 2nd – 13th Respondents adopted their respective briefs and urged us to dismiss the appeal. The appeal shall be determined on the two issues formulated by the appellant.