Barr. Zimako O. Zimako V. Chidi E. Nwogu & Ors. (2003)

LawGlobal-Hub Lead Judgment Report

DAVID ADEDOYIN ADENIJI, J.C.A.

This is an appeal against the judgment of the National Assembly Governorship and Legislative Houses election Tribunal Imo State delivered on 28/7/03 in Election Petition No. MAET/IMS/2/2003. The lower tribunal found for the respondents in this case but being dissatisfied the appellant appealed against the decision filing 11 grounds of appeal in the process.

The grounds are as per pages 269 – 232 of the record. He then formulated four issues for determination to wit:

(i) Whether on the state of the pleadings and evidence led at the trial the non-compliance pleaded in paragraphs 6, 7 and 8 of the petition were not proved? (Grounds 1, 2, 3 & 4).

(ii) Whether or not the issue of joinder of necessary parties was still open for re-determination by the tribunal after their decision of 26/6/2003 on the same issue in the same petition and in nay case whether sufficient necessary parties were not joined in the petition to sustain it? Ground 5.

(iii) Whether or not section 149(d) of the Evidence Act was rightly invoked against the appellant on the failure of the 2nd to 121st respondents to produce the statements of result sheets at the trial? (Ground 8)

(iv) Whether or not the petition ought to succeed? (Grounds 6, 7, 9 and 10)”

On his part the 1st respondent formulated 3 issues for determination to wit:

“1. Whether the election petition conformed with the provisions of section 132(2) (sic) 133(2) of the Electoral Act 2002 and whether that issue cannot be raised at any time.

2.Who has the burden of proof of majority of lawful votes and whether the appellant discharged the onus placed on hint.

3. Whether the Tribunal was right in holding that appellant had not proved sufficient non-compliance with the provisions of the Electoral Act, 2002 to vitiate the election.”

The appellant’s counsel however filed a reply brief on 28/10/03. When the appeal came up for hearing on 30/10/03, he adopted both briefs, He then referred to Order 3 rule 2(1) of the Federal High Court rules, which he noted was similar, but observed that that of the Federal High Court was limited to irregularities only. Order 49(2) he said was a bit different. He submitted that once nullity was in issue, jurisdiction would arise and the restraint in Order 49 he added was targeted at the Tribunal with the use of the words “shall not be allowed”. That paragraph he went on to say, enjoined a Tribunal never to entertain an issue of jurisdiction at the preliminary stages after some steps had already been taken. Counsel submitted that the Supreme Court had defined active step in the case of Otivo v. Obor (1974) 2 SC page 23 at page 31. Having joined issues in this case he said, the point could only be taken at the hearing. The learned SAN also referred to Katto v. C.B.N (1991) 9 N.W.L.R. (Pt.214) 126 at 148. He concluded his opening argument by urging this court to allow the appeal in case his introductory views are overruled. He adopted his two briefs.

Chief Mogboh (SAN) for the 1st respondent in reply said the 1st respondent’s brief was filed on 2/10/03 and this he adopted in its entirety. He pointed out that the appellant had abandoned ground 2 of the appeal and that point was conceded in the appellant’s brief per paragraphs 4 & 5 of same. He urged the court to strike out the ground and also strike out the argument relating to issue No.3.02 pages 9 – 11 of appellant’s brief as they do not derive from any ground of appeal. This case he said is different from the case of Obasanjo cited.

On paragraph 49(2) counsel was of the view that what the 1st respondent did was correct and referred to the reply of the respondent to the petition pages 26 – 27  where an indication was given that the 1st respondent would raise the objection and that did not amount to taking a step. The petitioner he went on, was therefore never left in any doubt as to the steps the 1st respondent intended to take. The important thing he maintained, was to raise the point within a reasonable time. He cited Ikeakori’s case that is case No. 5 on his list of authorities. He referred to paragraph 49(1) of the Act and urged the court to hold that the objection was properly raised.