Chike Anyaonu V. Umeoji Chukwuma & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting in Awka (hereinafter simply referred to as ‘the Tribunal’) delivered on 16th May, 2008. In the said judgment, the tribunal dismissed the petition filed by the Petitioner now appellant herein, and upheld the election and return of the 1st Respondent as duly elected member of the House of Representatives representing Aguata Federal Constituency of Anambra State.

The background facts which gave rise to this appeal are simple and straight forward. The Appellant then petitioner at the tribunal took part in the 21st April, 2007 election held in throughout the Nigerian Federation, and had contested the said election into the House of Representatives representing his own constituency i.e. Aguata Federal Constituency of Anambra State. He contested the election on the platform of the Peoples Democratic Party (PDP for short). The first respondent herein, as also 1st Respondent in the petition before the tribunal, contested the same election with the appellant/petitioner on the sponsorship of Labour Party (or LP) which is a registered political party and which is the 2nd respondent at both the tribunal and in this appeal too. The third respondent (INEC) is the statutory body saddled with the responsibility of conducting elections throughout the country while the 4th, 5th and 6th Respondents are officials of the 3rd respondent. After the conduct of the said election, the fifth Respondent declared and returned the 1st Respondent as the winner of the said election. Dissatisfied with the results of the election, and more particularly the candidacy and/or eligibility of the 1st respondent to contest the election ab initio, the appellant as petitioner filed a petition before the tribunal on 21/5/2007. The ground or gravamen of the appellants petition at the tribunal as could be gleaned from his depositions in the petition filed on 21/5/2007, is to the effect that the 1st respondent who was returned as duly elected and winner of the election, was in the first place not qualified to contest the said election and therefore his returned as winner of same by the 5th Respondent was invalid under Section 32(1) and (2) of the Electoral Act 2006 and Sections 65(2) (b) and 68(1)9g) of the 1999 Constitution of the Federal Republic of Nigeria. For these reasons adumbrated above, the petitioner in Paragraph 16 of his petition averred as follows:- Whereof the Petitioner prays that it may be determined that the 1st respondent, Mr. Umeoji Chukwuma, who was returned as the elected member of the House of Representatives representing Aguata Federal Constituency of Anambra State, was not validly elected at the election and not qualified to contest the election. In addition to the above the petitioner prayed the tribunal to nullify the said election and declare him the winner of same as according to him, he scored the highest number of valid votes if the return of the 1st Respondent is nullified. In the alternative, the petitioner urged the tribunal to order fresh election in the said constituency.

After Replies were filed and exchanged by parties to the petition, hearing commenced in earnest and some documentary exhibits were tendered by parties. In the end, the tribunal in its wisdom while dismissing the repetition decided as follows:-

We have calmly considered the submissions of both senior counsel on this point and we must state that we are in complete unison with Dr. O. Ikpeazu SAN that the petitioner did not prove that the 1st Respondent was not unqualified or not qualified to contest the election as stated in the sole ground of the petition, where he grounded his petition on non-qualification but the evidence adduced disclosed disqualification which is not a ground to question election under Section 145 of the Electoral Act 2006.

Aggrieved by the above finding of the tribunal on which it apparently dismissed the appellant/petitioners petition on 16/5/2008, the appellant herein, appealed to this court. To that effect, he on 5th June 2008 filed an undated Notice of Appeal containing three grounds of appeal which said Notice of Appeal is reproduced hereunder for ease of reference:

NOTICE OF APPEAL

TAKE NOTICE: that the Petitioner/Appellant being dissatisfied with the decision of the National Assembly Election Tribunal/Governorship and Leg1stative Houses Tribunal (The Election Tribunal) delivered on the 16th day of May 2008, more particularly stated in paragraph 2 herein, doth hereby appeal to the Court of Appeal upon the Grounds set out in paragraph 3 AND the Petitioner/Appellant will at the hearing of the appeal seek to Relief set out in paragraph 4. AND the Petitioner/Appellant further state that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.

2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF: THE WHOLE GROUND OF APPEAL

a. ERROR OF LAW: The learned justices of the Election Tribunal erred in law and thus occasioned a miscarriage of justice when they held: The Petitioner in an attempt to prove that 1st Respondent did not sear to his Form CF001 before the High Court of Justice FCT, Abuja summoned on Hajiya Zainab Mohammed Fufure who produced a letter written by the FCT High Court. She could not tender the said letter as she had no written deposition as required by paragraph 1 of produced a letter written by the FCT High Court. She could not tender the said letter as she had no written deposition as required by paragraph 1 of the Practice Direction. The said letter was therefore produced and left with the Secretary of the tribunal. We say no more of the letter.

Particulars of error

i. Letter dated 14/5/2007 and written by the Chief Registrar, High Court of Justice FCT Abuja is amply pleaded in the petition.

ii. Exhibit P4, the subpoena duces tecum issued by the Honourable Election Tribunal Commanded the Chief Registry of the High Court of Justice Abuja to produce the letter dated 14:5:2007 before the Honorable Election Tribunal.

iii. By the Provisions of Section 192 of the Evidence Act, the Honourable Election tribunal was enjoined to act on the letter dated 14:5:2007 produced before the Honourable Election Tribunal

iv. The Honourable Election Tribunal completely failed and refused to act on the letter dated 14:5:2007 which was produced before it as required by law.