Barrister Chijioke Madumere & Ors V. Hon. Chief Fred Nwosu & Ors (2009)

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SULEIMAN GALADIMA, J.C.A.

This is an appeal by the 1st Respondent (now the “Appellant”) against the decision of the Abia State Governorship/Legislative Houses Election Tribunal (hereinafter referred to as the Tribunal sitting at Umuahia delivered on 5/2/2008. The Tribunal upturned the return of the Appellant who contested under the platform of the Progressive Peoples Alliance (PPA) as the winner of the election held on 12/4/2007 in respect of the UMUAHIA SOUTH STATE CONSTITUTENCY. The Tribunal below in its judgment held that the 1st Respondent (still 1st Respondent herein) who contested under the platform of the Peoples Democratic Party (PDP) won the majority of lawful votes cast at the said election and ordered his return as the winner of the election.

Aggrieved by the decision of the Tribunal the Appellant has thus appealed to this court. His amended Notice of Appeal contains EIGHT GROUNDS. In compliance with the Practice Directions No.2 of 2007, briefs of argument were filed and exchanged by the parties. The Appellant’s brief dated 30/4/2008 was filed on 2/5/2008. He also filed a Reply brief on 25/5/2008. THREE ISSUES were raised for determination thus:

“(i) whether in the light of issues framed for determination by the Tribunal below, the requisite standard of proof was one beyond reasonable doubt and if so, whether the standard was met or attained having regard to the circumstances (Grounds 1, 2, 4, 5 and 6).

(ii) Whether paragraphs 15 and 49 of First Schedule to the Electoral Act 2006 apply to the petition having regard to the circumstances (Grounds 3 and 7)

(iii) Whether the judgment is not against the weight of evidence (Ground 8.”

The 1st and 2nd Respondent’s Amended brief of argument dated 11/6/2008 was filed on 13/6/2008. THREE ISSUES presented for determination in this appeal are as follows:-

“1: whether the Tribunal was right in its reception and treatment of result forms tendered in evidence and in holding that the Petitioners/Respondents scored majority of lawful votes cast, regard being had to the standard of proof and specific findings of fact made on the issues joined in the pleadings (Grounds 1, 2, 3, 4, 5 and 6).

2. Whether the Tribunal was not right in holding that the application to strike out the petitioners Reply is incompetent and stale (Ground 7).
3. Whether the judgment was against the weight of the evidence led at the Tribunal (Ground 8).”

On the 20th day of January 2008, this appeal came up for hearing. AWA U. KALU SAN, Learned Senior Counsel for the Appellant identified, adopted and relied on the Appellant’s brief of argument and urged us to allow the appeal. On his part, H. BALOGU Esq., Learned Counsel for the 1st and 2nd Respondents, identified, adopted and relied on the Respondent’s brief of argument. He however drew the court’s attention to the preliminary objection which was raised and canvassed on pp. 14-19 of the brief of argument of the 1st and 2nd Respondents. He urged us to sustain the objection or in the alternative dismiss the appeal as lacking in merit.

However, CHIEF IFEANYI IBOKO Esq. who appeared for the 3rd/144th Respondents informed the court that he did not file any brief of argument in this appeal.

I shall first deal with the preliminary objection filed by the 1st and 2nd Respondents, (herein after referred as “Respondents”), it is to the effect that:

“(a) The Appellant (sic) Notice of Appeal is defective and incompetent and ought to be struck out.

(b) Grounds 1, 2, 3, 4, 5, 6 and 7 of the Notice of Appeal is incompetent and ought to be struck out.”

The grounds of the objection have been enumerated as follows: