Bernard Ndubuisi Isu V. Engr. Okpani .u. Uche & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED L. TSAMIYA, J.C.A.

This is an appeal against the judgment of the National Assembly/Governorship/Legislative House Election Tribunal (herein this appeal referred to as the Tribunal) holden at Abakaliki; the Capital of Ebonyi State. The judgment appealed against was delivered on 22/11/2007.

Briefly, the facts of the case are that in the 14/4/07 general election, the Peoples Democratic Party (PDP) sponsored, as its Candidate the appellant, while the All Nigeria peoples party (ANPP the 2nd respondent) sponsored the 1st respondent, as its candidate for the election into the Ebonyi State House of Assembly to represent the Afirkpo North-East Constituency.

The election was conducted by the named 4th and 5th respondents (herein referred to as ‘INEC’ and ‘RECO’ respectively). After the election, the appellant was alleged to have scored the highest number of votes and was declared the winner. The 1st respondent and his party, the 2nd respondent in this appeal, were dis-satisfied with the outcome of the election. They, therefore, as petitioners filed petition No. EPT/EBS/HA/11/2007, to challenge the declarations and return made by INEC Officials for the said Constituency.

The petition was predicted essentially on grounds of corrupt practices and non-compliance with the provisions of the Electoral Act 2006. The relief sought was the nullification of the said result. As an alternative remedy, the 1st and 2nd respondents, as petitioners, prayed that the election may be determined that the appellant was not elected by a majority of lawful votes cast at the election and that his election was void by reasons of corrupt practices and non-compliance with the provisions of the Electoral Act 2006.

Issues were joined on all the allegations in the petition by all the respondents named therein. At the trial, the 3rd respondent (PDP) proffered no evidence. That 1st and 2nd respondents called 5 witnesses (including 1st respondent) and tendered numerous exhibits comprising alleged carbon copies of polling Unit’s results. The appellant also called 4 witnesses (including appellant himself) and tendered numerous certified true copies (C.T.C.) of polling Units and collation centre results, including the declaration of result in his favour. INEC, to be noted was foreclosed from adducing evidence when its application for adjournment was refused and its case therefore closed by the Tribunal.

However, in the course of the proceedings, the Tribunal dismissed the petition for want of deligent prosecution. It subsequently an application on Notice made an order re-listing the said petition. Thereafter the tribunal upheld one of the grounds of the petition and nullified the election of the appellant.

Dis-satisfied with the judgment, the appellant appealed to this Court vide Notice and Grounds of appeal filed on 11/12/2007. The Notice and Ground of Appeal Contained four (4) grounds of Appeal. These grounds of Appeal with their particulars are as follows:

GROUND 1:

The lower tribunal erred in law in ascribing unassailable probative value and weight to Exhibits 6 to 44 when it erroneously held that the said Exhibits were “not challenged nor rebutted by the their to the one hundred and fifty second Respondents nor by any of the witnesses of the first Respondent” and thereby wrongly concluded that the said Exhibits “will be deemed true and correct and the contents of the result sheets will be believed by this Tribunal.”

PARTICULARS OF ERROR IN LAW

(a) The authenticity of the said Exhibits 6 to 44 was specifically challenged in the pleadings (Replies) of all the Respondents.

(b) The said Exhibits were tendered as carbon copies of EC8A (1) allegedly received by the 1st petitioner from party agents of the 2nd petitioner.

(c) None of the party agents testified as to the authenticity thereof