Nze Jeremiah Osigwelem V. Independent National Electoral Commission & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This appeal arose from the judgment of the Governorship and Legislative Houses Election Petition Tribunal for Imo State sitting at Owerri delivered on the 22nd day of July 2009 in Petition No EPT/NA/IM/07/07.

On 21st day of April 2007, an election was conducted by Independent National Electoral Commission INEC (hereinafter called the 1st Respondent) for membership of the Federal House of Representatives for Nkwere/Isu/Njaba/Nwangele Federal Constituency of Imo State wherein Chief (Mrs.) Juliet Akano (3rd Respondent) who was the candidate of Peoples Democratic Party – PDP (2nd Respondent) was declared winner and returned as the successful candidate.

Dissatisfied with the result of that election, Nze Jeremiah Osigwelem (petitioner/appellant) who also contested that election on the platform of the All Nigerian Peoples Party (ANPP) filed a petition to challenge the return of the 3rd respondent as the winner of the election on the ground that the 3rd respondent, was at the time of the election not qualified to contest the election.

The Election Petition Tribunal sitting at Owerri on the 20th day of August, 2007 consequent on a preliminary objection dismissed the petitioners/appellant’s petition. The petitioner, not satisfied with the said Ruling appealed to the Court of Appeal (Port Harcourt) Division.

The Court of Appeal in a considered judgment delivered on the 31st of January, 2008 held inter alia that the Ruling of the lower tribunal be set aside, the petition was sent back to a differently constituted tribunal for re-trial on the merit. Following the judgment of the Court of Appeal, Port Harcourt Division a new trial tribunal was constituted. The retrial commenced on the 18th of March, 2009 and was further adjourned for hearing of the applications for extension of time filed by the respective respondents before the previous tribunal.

The retrial tribunal in its Ruling delivered on the 6th day of April, 2009 refused the 1st respondent’s application for extension of time to file their Reply and to deem the Reply as being properly filed and served. The 1st respondent did not therefore have any Reply to the petition and the appellant’s petition was determined on the basis of the pleadings of the petitioner/appellant and his evidence at the trial. At the trial, the petitioner/appellant was the only witness, he testified for himself and tendered three (3) exhibits to wit:

(i) Exhibits A – A3 – Announcer Express Newspaper of 8 – 10th January, 2007,

(ii) Exhibit B – His Voters Card.

(iii) Exhibit C – His Party Card,

Also, at the trial the petitioner/appellant applied to tender the following vital documents in evidence.

(i) Form for submission of names of candidates.

(ii) Affidavit in support of personal particulars of persons seeking election.

(iii) And letter of substitution of PDP candidate for Nkwerre/Isu/Federal Constituency.