Chief Great Ovedje Ogboru & Anor. V. Dr. Emmanuel Ewetan Uduaghan & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONIGA B. DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment)

Some time in 2007, precisely on April 14, 2007, the third respondent (INEC) herein allegedly conducted gubernatorial elections in Delta State. The first appellant was the candidate of the second appellant; on the other hand, the second respondent sponsored the candidature of the first respondent. At the end of the exercise, the third respondent returned the first respondent as the winner of the said election. Dissatisfied, the appellants beseeched the Governorship/Legislative Houses Election Petition Tribunal, holden at Asaba (hereinafter referred to as the “the tribunal”) with a petition praying for certain specific reliefs. Pleadings were settled and exchanged in accordance with the applicable Rules and Practice Directions. At the conclusion of the hearing, the tribunal, in its judgment of October 19, 2009, (about one year ago), dismissed the petition. Dissatisfied with the outcome of the proceedings, the appellants appealed to this Court. From the twenty grounds of appeal, they have formulated eight issues for the determination of this appeal. These issues were couched thus:

ISSUES FOR DETERMINATION

ISSUE ONE

Whether the Tribunal was not in error in holding that the burden of proving that the Delta State Gubernatorial Elections did not hold rested on the Appellants and that the Appellants failed to discharge the burden placed on them by law in respect of proof of the non-conduct of the election.

ISSUE TWO

Whether the tribunal was not in error in discountenancing or and failing to evaluate (properly or at all) the evidence of the Appellants’ witnesses.

ISSUE THREE

Whether the tribunal erred in striking out the evidence of PW 65 and PW 66, when no objection whatsoever was taken to their witnesses’ statements and when by their sworn statements the case of the Appellants was that there was no gubernatorial election in Delta State.

ISSUE FOUR

Whether the tribunal was not in error in admitting exhibits R3 (i)-(ix); R4 (i)-(vii); R5(i)-(ix); R6(i) – (vii); R7(i) – (ix); R8(i) – (x); R9 (i) – (ix); R10 (i)- (iv); R11(i) – (xii); R12 (i) – (ix); and R13 (i) – (iv), which purport to be Forms EC8 As for some polling units in eleven Local Government Areas of Delta State when same were not front loaded or listed at all as part of the documents to be relied on by any of the Respondents and then refused to evaluate and or give effect to the facts loudly proclaimed on the face of the exhibits.

ISSUE FIVE

Whether the order of the Court of Appeal in CA/B/EPT/205/2008 CHIEF GREAT OVEDJE OGBORU & ANOR V DR EMMANUEL EWETAH UDUAGHAN & ORS for a hearing of the petition on the merit and paragraph 49 (2) of the First Schedule to the Electoral Act 2006 precluded the tribunal from entertaining the issue of the alleged incompetence of the petition.

ISSUE SIX