Angos Dide & Anor. V. Ebiotu Seleiletimibi & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

Following election in Ekeremor II Constituency in Ekeremor Local Government Area conducted on 14th April, 2007, the 1st Respondent was returned, as duly elected into the Bayelsa State House of Assembly. The election was conducted by the 4th Respondent. The 1st Appellant was the candidate sponsored in that election by the 2nd Appellant, a political party. The PDP, the 2nd Respondent, a rival political party, sponsored the 1st Respondent.

Aggrieved by the return of the 1st Respondent the Appellants, as petitioners, filed their petition at the Governorship and Legislative Houses Election Tribunal sitting at Yenegoa, Bayelsa State. The petition presented on 14th May,2007 claims the following reliefs –

a. That it be determined that 1st petitioner is the rightful winner of the Bayelsa State House of Assembly election for Ekeremor Constituency II conducted on the 14/4/2007 having scored the majority of lawful votes cast at the election. b. That the 1st Respondent did not win and cannot be declared the winner of the said election having not scored the majority of votes cast at the election.

c. That it be determined that the 1st Respondent ought not to and was not qualified to have contested the election on ground of perjury and deliberate falsehood regarding his age and place of birth.

d. That the 4th Respondent should issue the return certificate to the 1st petitioner as he is the duly elected candidate for the said election.

e. Alternative to relief (c) above; that it be determined that the original result forwarded by the 3rd Respondent to the headquarters of the 4th Respondent wherein your 1st petitioner was returned as the duly elected candidate for Bayelsa State House of Assembly Election for Ekeremor Constituency II ought to be and is the correct version of the result of the said election. (please see pages 1 to 7 and page 12 of the Appellants’ Additional record of appeal).

The Respondents in this appeal, who also were respondents in the petition, field their replies to the petition. The 1st Respondents Reply dated 5th June, 2007 was filed the same day together with two witness statements, bereft of any documentary evidence. The 4th Respondents, on her part, filed her petition dated 26th June, 2007 on 27th June, 2007. It was accompanied by the declaration of result and certificate of return. By leave of the Tribunal granted on 20th August, 2008 the statement of Patience Bokiri (RW.1) was permitted later to accompany the Reply of 4th Respondent. The 2nd and 3rd Respondents did not file any reply. The petition was accompanied by two (2) sworn statements of witnesses namely the 1st petitioner (Appellant) and Oladimeji Blessing and some documents. The third witness and Oladimeji Blessing and some documents. The third witness indicated on the list of witnesses for the petitioners was “INEC official to tender ward Collating Result Sheet dated 14th April, 2007”.

At the trial three (3) witnesses including the 1st Petitioner/Appellant, testified. A number of documents were admitted in evidence while some were rejected. The witnesses, who testified, adopted their sworn depositions and were cross-examined. Upon the close of testimonies the counsel for respective parties submitted final addresses in writing. In its reserved judgment, delivered on 15th September, 2008, the Tribunal dismissed the petition in its entirety.

The petition was presented and contested on two main ground, namely,

1. That the 1st Petitioner/Appellant was the winner of the said election as was determined from the totality of valid and lawful votes cast during the election. He had averred on this ground that the 3rd Respondent had on 14th April, 2007 declared him the winner and that subsequently, and after a few days, the National Headquarters of the 4th Respondent declared a contrary result in favour of the 1st Respondent. Hence the petition.
2. That by dint of section 107(1) of the 1999 Constitution the 1st Respondent was disqualified when he presented forged/false statutory Declaration of Age affidavit in which his age and the place of birth declared therein contradicted declaration of age and place of birth done earlier in 1996 under his hand.

The 1st and 4th Respondents vehemently denied the allegation that the 1st Petitioner/Appellant was on 14th April, 2007 declared winner with the majority of lawful votes and that the declaration was subsequently cancelled in favour of the 1st Respondent. As regards the allegation that the 1st Respondent presented forged/false declaration or certificate to the 4th Respondent, only the 1st Respondent, in his reply denied the allegation. The 4th Respondent merely averred that they are “not in a position to admit or deny,, the allegation, and put the 1st Petitioner to the strictest proof of the same.

At the trial the 1st Respondent did not call evidence, in proof of his pleadings in the Reply, contrary to the two depositions on oath of himself and Niceman Dauyegha that accompanied the 1st Respondent’s Reply. Niceman Dauyegha is the deponent of the statutory Decraration of Age of the 1st Respondent, which the Appellants insist is a forged/false declaration or certificate presented to INEC, 4th Respondent, contrary to section 107(1)(i) of the 1999 Constitution.

Upon the dismissal of their petition on 15th September, 2008, the Petitioner/Appellants lodged their appeal against same on 2nd October, 2008. They canvass a total of 9 grounds of appear; including ground 6 that is a complaint against the Ruling of the Tribunal of 1st August, 2008 rejecting the document titled: CORRESPONDENCE RECEIVED/REVENUE COLLECTED FOR THE MONTH OF JANUARY, 2004. The document was apparently intended to say that Niceman Dauyegha, the deponent of the controversial affidavit – Statutory Declaration of Age, did not only fail to pay for the oath but also that he did not make the oath at the court Registry as alleged. In other words, a corroboration of the alleged forgery.

The Appellant’s Brief of Argument dated 9th February, 2009 was regularized and deemed fired and served upon Appellants’ motion dated 9th February, 2009, but fifed on 11th February, 2009. The 1st Respondent’s Brief of Argument filed within time is dated and filed on 28th April, 2009. The Appellants further fired Appellants’ Reply Brief on 6th May, 2009. No other Respondent, apart from the 1st Respondent filed brief of argument. on 20th May, 2009 when the appeal came up for hearing none of the Respondents was present inspite of the hearing notice served on them on 14th May,2009. The 1st Appellant and his counsel, Preye Agedah leading L.K. Abbe, were present. Preye Agedah Esq. of counsel for the Appellants adopted the Appellants Brief of Argument and the Appellants Reply Brief as the Appellants’ argument in the appeal and urged as to allow the appeal on al the issues canvassed.