Charles Elodi V. Uzo C. Azubuike & Ors (2003)

LawGlobal-Hub Lead Judgment Report

DAVID ADEDOYIN ADENIJI, J.C.A.

This is an appeal against the decision of the Governorship/Legislative Houses Election Tribunal sitting in Umuahia, Abia State, delivered on 16th July 2003, dismissing the petition of the petitioner/appellant. The petitioner not being satisfied with the judgment has appealed against same to this court and filed 9 grounds of appeal in the process.

The appellant formulated 9 issues for determination that:
“1. Whether the tribunal below was not in a fundamental error when it failed and or refused to nullify the entire set of results tendered by the respondents when the total number of votes cost or total figures allocated by them exceeded the accredited voters.

2. Whether the tribunal below was right in its decision and findings that falsification, inflation, juggling of figures and doctoring of results were not proved in the petition in the place of monumental and overwhelming testimonies and exhibits tendered establishing the same at the hearing.

(3) Whether the tribunal below did not commit an error by failing and or refusing to nullify the respondents set of results vitiated and stigmatised by fundamental irregularity, falsifications, doctorings and using the petitioner’s set of results tendered in evidence to declare him the winner of the election.

(4) Whether the tribunal below was right in raising the issue of arithmetical error suo motu without any evidence led by any witness to that effect and using same to determine the winner and final result of the election without hearing the parties or giving their counsel opportunity to address on same.

(5) Whether it was proper and legitimate for the tribunal below to make use of and rely on evidence/exhibits or facts not pleaded, while ignoring and refusing to use evidence and exhibits in respect of pleaded facts and issues in its judgment.

6. (i) Whether the tribunal did not fall into a fundamental error when it failed and/or refused to review and evaluate the evidence given and exhibits tendered by the petitioner and his witnesses in respect of various wards in the constituency – wards 9, 10, and 12 in Aba South L.G.A and wards 8,

10, 11 in Aba north LGA all in Aba central constituency.
(ii) Whether the evaluation and review of evidence was not perverse and unreasonable and whether the evaluation is not contrary to the evidence and exhibits tendered and facts/issues pleaded.
(iii) Did the improper evaluation, wrongful admission, non consideration of evidence of petitioner and his witnesses plus exhibits tendered and raising issues suo motu not constitute a breach of rules of natural justice of audi alterem partem and breach of right of fair hearing under section 36 of 1999 Constitution occasioning substantial miscarriage of justice.
(iv) Do pleadings take the place of evidence or proof of facts so pleaded?
(v) Does failure to prove facts pleaded in some paragraphs of pleadings in respect of a particular issue or ground of petition preclude the use of the said paragraphs in proof of alternative facts/grounds in other paragraphs?

(7) Whether the tribunal ought not to have considered the alternative prayers made by the petitioner in paragraph 24 (b) and (c) of the petition and other relevant paragraphs of the petition viz paragraphs 10, 11, 12, 13, 14 and 20 in order to determine the effects and purport of proof or otherwise of paragraphs 22 and 23 of the petition.
(i) Was the tribunal right to consider, evaluate and review paragraphs 22 and 23 of the petition in isolation of the aforesaid prayers of the petitioner in paragraph 24 (b) and (c) and paragraphs 10, 11, 12, 13, 14 and 20 of the petition which provide alternative grounds and prayers.
(ii) Was the lower tribunal right in disallowing petitioner’s exhibits and evidence in respect of wards 9, 10, 12, Aba south L.G.A and wards 8, 10, 11 in Aba north all in Aba central constituency while using those of the respondents.
(iii) Was the tribunal right in not evaluating evidence/exhibits in respect of allegations and all the evidence led by the petitioner’s witness in respect of the aforesaid wards in order to determine whether the said corrupt practices invalidated the results in the said wards or not as pleaded in paragraphs 22 and 23 of the petition.

(8) Did the petition plead the falsity of his results from the units in form EC8As from various polling units in the six wards in question as mentioned above?

The counsel for the 1st respondent, Mr. Nwaogu, after criticising the unwieldiness of the issues framed by the appellant’s counsel and concluding that the issues as framed by the appellant are defective, went on to formulate only two issues for determination:
“(a) Is the present Appeal competent having regard to the fact that petitioner/Appellant has not appeal against the finding by the Tribunal that the Petition is defective and incompetent?
(b) Assuming that the answer to Issue No. 1 is in the affirmative, was the Tribunal right in dismissing the Petition having regard to the pleadings, the evidence adduced and the circumstances of the case?”

The facts of this case are that the petitioner/appellant and others were contestants in the recently concluded Abia State House of Assembly Election of 3rd May, 2003. The appellant was a candidate on the platform of All Progressive Grand Alliance (APGA) Party, while the 1st respondent contested on the platform of the Peoples Democratic Party (PDP). Six candidates were alleged to have contested the election, though the appellant expressly pleaded the names of only 4 political parties, that is, ANPP, APGA, NDP and PDP.

At the end of the exercise the 1st respondent was returned elected. The appellant then filed a petition against the declaration but lost at the lower Tribunal.