Chief Albert Onye & Anor V. Mr. Emmanuel George Kema & Ors (1999)

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OKWUCHUKWU OPENE, J.C.A.

On the 5th day of December, 1998 the petitioners now the appellants contested elections into the office of the chairman and vice chairman respectively of the Ikeduru Local Government Area, of Imo State under the platform of the peoples Democratic party (PDP). The 1st and 2nd Respondents also contested the said election under the platform of All Peoples Party (APP).

At the end of the elections, the 3rd to 13th Respondents declared the 1st and 2nd Respondent winners of the said election. They declared the scores of 16,552 for the 1st and 2nd Respondents and 13,772 for the petitioners/Appellants.

It is as a result of this that the petitioner/Appellant filed a petition in the election petition Tribunal for Owerri Senatorial District holden at Owerri.

There was a full Trial at the end of which, the Tribunal in a well considered judgment delivered on 13/8/98 dismissed the petition in its entirety.

Aggrieved and dissatisfied with the said judgment the appellants have now appealed to this court. All the parties filled their Briefs of argument in accordance with the rules of this court and identified the issues for determination which are: –

1. Whether the Booths/Wards complained (sic) and were voided by substantial non-compliance with the decree.
2. Whether the Tribunal was right in holding that since the compliance relates to 8 polling Booths there was then substantial compliance with the provision of the Decree governing the election?

The appellants’ complaint is that there are substantial electoral malpractice and substantial non-compliance with the provisions of the governing Decree No. 36 of 1998. It was alleged that the substantial electoral malpractices occurred in the following Booths Wards: –

1. Amachi Hall Ezeama polling Booths IM/08/086/JB in Ugirike/Okwu/Ezeama Ward.
2. Community school Umuomu Booths No. IM/08/088/L3 Community shool Uzoagba Booths No. IM/08/088/L8 Umuohii/Umuomu Square Booth No. IM/08/088/L10, ALL IN uzoagba Ward.
3. Umuakpim village Hall Booth No. IM/08/079/C2 in Iho ward.
4. Ogwu Village Hall Booth No. IM/08/082/F3 in Amakohia Ward.
5. booths Nos. IM/08/083/G2, IM/08/083/G6, IM/08/083/G7, IM/08/083/G8 AND IM08/083/G9 all in Avuvu Ward.
6. the Sulere Atta Ward II
7. booth No. IM/08/084/H1 Atta Boys Secondary School Amaeke in Atta Ward 1.

In its judgment, the Tribunal dealt with all the Booths/Wards listed above and also made its findings. No doubt, the appellant’s petition is cleared based on an allegation of claim. The law has been clearly stated by the Supreme Court and this court but for the avoidance of doubt it can be reiterated.

In Nwobodo v Onoh (1984) 1 S.C.N.L.R. 1 at B. 32 Bello JSC (as he then was) aptly stated as follows: –

“I think at this stage I may say that I accept the submission of chief Rotimi Williams that there is in law a rebuttable presumption that the result of any election declared by FEDECO is correct and authentic and the onus is on the person who denies the correctness and authenticity to rebut the presumption.

In my view, where such denial is based on allegation of crimes against the FEDECO official responsible for the declaration of the results, the rebuttal must be proved beyond reasonable doubt, the trial court found the petitioners in this case appeal had discharged the onus”.

In Omoboriowo v. AJASIN (1984) 1 S.C.N.L.R. 108 at 122 Bello J.S.C. (as he then was) observed.

“Now as I stated in Nwobodo v. Onoh (supra) there is in law a rebuttable presumption that the result of every election declared by the returning officer is correct and authentic. By virture of Section 115, 148 (c) and 149 (1) of the Evidence Act, the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption.

Where such denial is based on mere complaint that the petitioners scored a majority of lawful votes. The rebuttal needs only to be proved within the balance of probability”.