All Progressive Grand Alliance (APGA) V. Independent National Electoral Commission (INEC) & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the National Assembly/Legislative Houses Election Tribunal, sitting in Awka which upheld the election of the 7th Respondent, Ebele Obi into the Anambra State House of Assembly, representing Idemili South State Constituency in the re-run election which took place on 15th of February, 2012. In the said petition, the Appellant had prayed the Tribunal for the following reliefs:-

1. That it be determined that on a proper collation of the valid votes cast at the questioned election, the return of the 7th Respondent as the winner of the House of Assembly election held on 15th February, 2012 is null and void in that the 7th Respondent did not score the majority of lawful votes cast at the election.
2. An order setting aside the return of the 7th respondent as the winner of the said election.
3. That it be declared that the Petitioner (and her candidate) scored the highest number of valued votes cast at the election and that the Petitioner ought to have been returned as the winner of the election.
4. An order that the Petitioner (and her candidates) be returned as duly elected and a certificate of return issued accordingly and forthwith.

ALTERNATIVELY

1. A declaration that the No. of registered voters in units 006, 007, 008, 009, 010, at Nkwo Ide Public Square Alor Ward 1; Unit 006, at Alor Central School Alor Ward II, Unit 002 at Community Central School, Nnobi Ward 1, Unit 013 of Nnobi ward II; Unit 014 at Umuoghaji in Awka Etiti ward II; Unit 001 at Ejihinnadu Hall I. Awka Etiti ward 1: Unit 011 of Iruowele Hall, Awka Etiti Ward I, and Unit 007 at Central School Awka Etiti ward I where malpractices and substantial noncompliance with the provisions of the Electoral Act occurred being in excess of the number of the accredited voters on the register had rendered the result of the election in these units invalid and unlawful.
2. A declaration of the Hon. Tribunal that the massive disenfranchisement of the voters in unit 034, 035, 030, 029, 028 and 026 in Oba Ward II, Unit 031 at Ezedom Hall 1; Unit 032 at Ezedom Hall III both in Oba Ward II and unit 033 at Uruokolavu in Oba Ward II; unit 023 and 024 at Health Centre Ojoto constitute substantial non-compliance with the Electoral Act and substantially affected the results of the election.
3. An order of the Hon. Tribunal that the return of the 7th Respondent as the winner of the election be set aside and another poll conducted by the 1st Respondent for the units mentioned in alternative relief ‘b’ above.

All the Respondents filed their respective replies to the petition and at the close of pleadings, all the parties called their various witnesses. At the close of the case of all the parties, written addresses were filed and adopted by learned counsel for the various parties. After considering the evidence and addresses before it, the Tribunal delivered its judgment on 1st September 2012 wherein the Appellant’s petition was dismissed as lacking in merit.

Dissatisfied with the judgment of the trial Tribunal, the Appellant filed Notice of Appeal dated 17/9/2 on 19th September, 2012. Thereafter the Appellant filed another Notice of Appeal on 20th September, 2012 which said notice is dated 19th September, 2012. At the hearing of this appeal on 22nd October, 2012, the learned counsel for the Appellant adopted and relied on the Notice of Appeal filed on 20th September 2012. The said Notice contains 15 grounds of appeal, out of which the Appellant has distilled six issues for determination. The said issues are as follows:-

1. Whether the Trial Tribunal’s findings of fact in this case, the fulcrum on which her final orders were based, were not against the weight of evidence and therefore perverse. (Formulated from grounds ii, iii, iv, v, vi, vii, viii, ix, xiv and xv of the grounds of appeal).
2. Whether as a trial Tribunal, the court below was not wrong in its failure to evaluate all the credible evidence that was led before it, if yes, whether the said failure has not occasioned a miscarriage of justice (Ground XIII).
3. Whether the trial Tribunal was right to have shut its eyes and/or failed to act on the unchallenged credible evidence of PW8 in its consideration and resolution of the issue of who, as between the appellant and the 7th respondent, scored the majority of the lawful votes cast in the questioned election ground I…)
4. Whether the trial Tribunal acted judicially and judiciously by affirming the 7th respondent as the winner of the questioned election despite the unchallenged credible evidence of Pw8 that scores from polling units where there were over voting as well as the ones from unstamped, undated and unsigned result sheets formed part of what was used in returning the said 7th respondent (grounds x).
5. Whether the trial Tribunal considered the case of the petitioner on its merit vis-‘E0-vis the evidence in proof thereof before reaching its decision in the matter (formulated from grounds xi, xii)
6. Whether the judgment of the Trial Tribunal was not against the weight of evidence and therefore perverse (ground XV)

It was however, the view of the 1st – 4th Respondents that only one issue is germane for the determination of this appeal, to wit:

“Whether the Tribunal properly considered and evaluated the evidence of the witnesses inclusive of documentary evidence in arriving at the findings that the Appellant failed to prove all sundry allegations contained in her petition and accordingly dismissed the petition”

In the brief settled by Bona Orakwe Esq., the 5th Respondent distilled three issues as hereunder reproduced:-

i. Whether the Trial Tribunal’s finding of facts and final judgment were based on proper evaluation of credible lawful evidence led before it and in consonance with the tilting of the weight of evidence. (Grounds I, II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XII, XIV and XV).

ii. Whether the trial Tribunal properly dismissed the petition and affirmed the return of the 7th Respondent when the Petitioner failed to prove or establish how the alleged non compliance affected the result of the election or that the alleged irregularity or non compliance was done with the consent and knowledge of the 7th Respondent (Grounds III, IV, V, IX and X).

iii. Whether the trial Tribunal was right not to have acted on exhibits dumped at the Tribunal by the plaintiff without linking it to his evidence in the case. (Grounds III and VIII).

The 6th Respondent has distilled two issues which are contained on pages 5 to 6 of his brief of argument. The two issues are:-

(1) Whether the Tribunal’s finding of facts are such that the Appellate court can interfere, and if so, whether the findings are not in consonance with the pleadings and admissible evidence before the trial Tribunal. (From grounds II, III, IV, V, VI, VII, VIII, IX, XIV, and XV)

(2) Whether considering the totality of the evidence, both oral and documentary, before the Tribunal, it was right in upholding the election of the 7th Respondent (from grounds I, XIII, X, XI, and XII).