Architect Ekong Etuk V. Obong Akpan Isemin & Ors (1992)

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ONU, J.C.A. 

This is an appeal emanating from the judgment of the Governorship and Legislative Houses Election Tribunal sitting at Uyo. The judgment was delivered on February 6, 1992.

The brief facts of the case are as follows:-

The petitioner/appellant and the 1st respondent were candidates (at the December 14, 1991 Gubernatorial Elections in Akwa Ibom State on the platform of the Social Democratic Party (SDP)and the National Republican Convention (NRC) respectively. The petitioner/appellant (hereinafter in this judgment referred to as appellant simpliciter) having lost to the 1st respondent, whose running mate was the 2nd respondent, and they were both thus declared winners (as Governor and Deputy Governor respectively) at the said election organised by the 5th respondent (the National Electoral Commission (NEC) for short), whose agents were the 3rd and 4th respondents filed a petition dated 6th January, 1992 challenging the declaration in which a number of allegations of election malpractices to wit: thuggery, intimidation, harassment of NEC officials, mutilation and alteration of figures, etc., were made. The appellant’s contention thereat was that the 1st respondent was not elected by majority of lawful votes; that the election was invalid due to corrupt practices and offences under the State Government (Basic Constitutional and Transitional Provisions) Decree, 1991 otherwise hereinafter referred to as Decree No. 50 0f 1991. The petition is at pages 1 to 6 while the replies of 1st and 2nd respondents as well as that of the 3rd, 4th and 5th respondents respectively are at pages 7 to 9 and 11 to 15 of the Tribunal Record of proceedings respectively. The appellant in the result prayed in his petition that it be determined that the 1st and 2nd Respondents were not duly elected and returned and that he (appellant) was duly elected and ought to have been returned. He also prayed in the alternative that the election to the office of the Governor in Akwa Ibom State was void.

As transpired, the appellant called eight witnesses and also testified for himself as P. W. 9. The respondents for their part called two witnesses in support of their case. Counsel on both sides addressed the Tribunal and on February 6, 1992, it (the Tribunal) as stated hereinbefore, by a majority of four to one, dismissed the petition and upheld the return of the 1st respondent and afortiori, the 2nd respondent, his deputy.

It is against this majority judgment that the appellant herein has appealed to this Court on five grounds of appeal contained in his Notice of Appeal dated March 3, 1992 (See pages 142-145 of the Record). The grounds without their particulars

1. The Tribunal erred in law and misdirected itself when it held (a) that “Any List of Objections to Votes filed after 14/1/92 will have no capacity to help any petition against the election of the 14th December, 1991.’ (page 124, line 32 to page 125 lines 1 to 2 of the Record of Appeal) and (b) that “This material therefore came into C force some 14days after the expiry of the statutory one month from the date of the election of 14.12.91. At best it would be said to have come into force days after the one month time limit.” (Page 125 line 29 to page 126 line 1).
2. The Tribunal erred in law in failing to make findings regarding any irregularities or otherwise on evidence (oral and documentary) which were duly pleaded and admitted during trial, such failure amounting, in the circumstance, to excluding valid evidence.
3. The Tribunal erred in law and misdirected itself when it held that election petitions were subject to the same strict rules of pleadings as contained in the High Court (Civil Procedure) Rules.
4. The Tribunal erred in law in failing to find that the 1st Respondent was not duly elected by a majority of lawful votes at the election.
5. Judgment is against the weight of evidence.

Learned counsel on both sides acting in consonance with Practice Directions No.1 of 1992 of January 6, 1992 and issuing at the instance of the President of this Court pursuant to section 93 of Decree No. 50 of 1991, filed and exchanged briefs

of arguments and other relevant documents, all aimed at facilitating the quicker

hearing of this appeal.

Learned counsel for the appellant, Chief Bayo Kehinde, SAN., submitted the

following five issues for determination:-

1. Whether the Tribunal’s statements as to the time of filing the List of Objections to Votes amounted to an erroneous interpretation of paragraph 16 of Schedule 6 of Decree No. 50 of 1991, sufficient to find that the Tribunal did not look at the List and therefore failed to consider the main and important basis on which the petitioner questioned the election.
2. Whether the Tribunal’s failure to make any findings regarding any irregularities or otherwise on evidence amounted to an admission by the Tribunal of the irregularities complained of by the petition, sufficient to warrant nullifying the election.
3. Whether the Tribunal was right in adhering strictly to the High Court (Civil Procedure) Rules relating to pleadings instead of employing the provisions of paragraph 15 (2) of Schedule 6 to Decree No. 50 of 1991 in the interest of justice.
4. Whether the uncontradicted evidence of the National Electoral Commission’s Administrative Secretary (DW1) that 532 unauthorised polling units were created and his admission that NRC score was falsified and that he would not say that everything went well in the election, was not sufficient to nullify the election.
5. Whether considering the totality of the evidence at the trial, it would not be said that the judgment is against the weight of evidence and that the Tribunal ought to have nullified the election.

No issues were formulated on behalf of the 1st and 2nd respondents. Be that as it may, as will be shown shortly hereunder, learned counsel for them did indeed argue seriatim in the brief proffered on their behalf all the issues submitted at the appellant’s instance set out above, a ruling on the point after hearing counsel on both sides is as considered shortly hereunder. On behalf of the 3rd, 4th and 5th respondents the following five questions were submitted in their joint brief of

argument for our determination. They are:-

1. Whether list of objections to votes can substitute or extend pleadings, and whether what was not pleaded could be introduced by way of List of Objections to Votes.
2. Whether it is necessary for a court to decide issues that arise out of pleadings whether or not evidence is led in support of the averments contained therein.
3. Whether the principles of pleading that evidence on facts not pleaded go to no issue applied to an election by virtue of paragraph 51 (1) of Schedule 6 of Decree 50 of 1991.
4. Whether the Tribunal was obliged to invoke the provisions of paragraph 15 (2) of Schedule 6 to Decree No. 50 of 1991 when no issue was raised or became apparent within the time limited by paragraph 1 of Schedule 6 to Decree 50 of 1991 for presenting an election petition.
5. Whether the Petitioner’s prayer- WHEREFORE your petitioner prays that it be determined that the 1st and 2nd respondents were not duly elected/returned AND that the said Arch. Ekong Etuk was duly elected and ought to be returned. OR in the alternative, that the election to the Office of the Governor in Akwa Ibom State is void” is sustainable at Law.

At the hearing of this appeal on 23rd March, 1992, Chief Bayo Kehinde, SAN, learned counsel for the appellant, adopted the appellant’s brief and also highlighted its salient points in his oral submissions.