Chief Ayogu Eze V. Brig. Gen. J.o.j. Okoloagu (Ritd) & 125 Ors (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED L. TSAMIYA, J.C.A.

This is an appeal against the judgment of the National Assembly/Governorship/Legislative Houses Election Petition Tribunal (herein referred to as the Tribunal) sitting in Enugu. The judgment was delivered on 11/12/2007, when the election of the 1st respondent (herein referred to as the Appellant) was nullified and INEC (herein referred to as the 2nd respondent) was ordered to conduct a fresh election within three months. (See p.413 to 421 of the record).

Being dis-satisfied with the said judgment the Appellant appealed to this Court of Appeal on 11 grounds of Appeal. The Notice and Grounds of Appeal is at pages 472-482 of the records.

From the 11 grounds of appeal, the Appellant in his Brief of arguments formulated the following issues for determination in this appeal:

1. Whether the Honourable Tribunal was right in relying on Exhibits 1, 2,3,4,5,6,7,8,9, 10, 11. 12 and 14, 14A and 14B in nullifying the election of the Appellant? (Arising from Grounds 1, 2 and 6).
2. Whether there was a proper evaluation of the evidence offered on both sides, by the Tribunal, before arriving at the decision that the 1st Respondent’s witnesses were not contradicted? (Arising from Ground 3).
3. Whether the Honourable Tribunal was right in treating evidence validly elicited under cross-examination by the counsel for the 2nd set of respondents (at the tribunal below) from witnesses for the Appellant as mere after thought? (Arising from Ground 4).
4. Whether the Honourable Tribunal was correct in nullifying the said election on the ground that there was no specific denial of the 1st Respondent’s direct and specific allegations of ‘allotment of votes to parties which did not field candidates’, considering the state of pleadings of the parties? (Arising from Ground 5).
5. Whether the Honourable Tribunal was right in holding that the allegations of non-delivery of election materials, non-voting, cancellations and mutilations of some results, omission or exclusion of the petitioner, recording of votes for some political parties which did not field candidates for the election, made in the petition by the 1st Respondent are civil in nature and are therefore to be proved on the balance of probability? (Arising from Ground 7).
6. Whether the provisions of paragraphs 3(8)(b), 4(7) and 5(7) of the Election Tribunal and Court Practice Direction, 2007 have whittled down the established standard of proof required of a petitioner in an election petition? (Arising from Ground 8).
7. Whether the Honourable Tribunal was correct in placing the burden of proving how non-compliance and irregularities affected the result of the election on the Appellant? (Arising from Grounds 9 and 10).
8. Whether the Honourable Tribunal was correct in holding that even though the 1st Respondent failed to prove that the Appellant was directly or indirectly involved in the alleged malpractices, he (the Appellant) will not be allowed to benefit from the alleged malpractices? (Arising from Ground 11)

The 1st Respondent (as petitioner in the Tribunal) on his part formulated, in his Brief, the following issues distilled from the II grounds of Appeal, as follows:

(I) WHETHER THE HONOURABLE TRIBUNAL WAS RIGHT IN RELYING ON EXHIBITS 1,2,3,4,5,6,7,8,9,10,11,12,14, 14A AND 14B IN NULLIFYING THE ELECTION OF THE APPELLANT (Arising from Grounds 1, 2 and 6)

(2) WHETHER THERE WAS A PROPER EVALUATION Of THE EVIDENCE OFFERED ON BOTH SIDES, BY THE TRIBUNAL, BEFORE ARRIVING AT THE DECISION THAT THE TRIBUNAL DISBELIEVED THE 1ST RESPONDENT’S WITNESSES AND BELIEVED THE PETITIONER’S WITNESSES.

(3) WHETHER THE HONOURABLE TRIBUNAL WAS RIGHT IN TREATING THE EVIDENCE ELICITED UNDER CROSS-EXAMINATION BY THE COUNSEL FOR THE 2ND SET OF RESPONDENTS (AT THE TRIBUNAL BELOW) FROM RWI AS MERE AFTER THOUGHT? (ARISING FROM GROUND 4).

(4) WHETHER THE HONOURABLE TRIBUNAL WAS CORRECT IN NULLIFYING THE SAID ELECTION ON THE GROUND, AMONG OTHER GROUNDS, THAT THERE WAS NO SPECIFIC DENIAL OF THE 1ST RESPONDENT’S DIRECT AND SPECIFIC ALLEGATION OF ALLOTMENT OF VOTES TO PARTIES WHICH DID NOT FILED CANDIDATES, CONSIDERING THE STATE OF PLEADINGS OF THE PARTIES? (Arising from Ground 5).

(5) WHETHER THE HONOURABLE TRIBUNAL WAS RIGHT IN HOLDING THAT THE ALLEGATIONS OF NON-DELIVERY OF ELECTION MATERIALS, NON-VOTING, CANCELLATION AND MUTILATION OF SOME RESULTS, OMISSION OR EXCLUSION OF THE PETITIONER, RECORDING OF VOTES FOR SOME POLITICAL PARTIES WHICH OLD NOT FIELD CANDIDATES FOR THE ELECTION, MADE IN THE PETITION BY THE 1ST RESPONDENT ARE CIVIL IN NATURE AND ARE THEREFORE TO BE RESOLVED ON THE BALANCE OF PROBABILITY? (Arising from Ground 7)

(6) WHETHER THE PROVISIONS OF PARAGRAPHS 3 (8)(b) 4(7) AND 5(7) OF THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTION, 2007 HAVING WHITILED DOWN THE ESTABLISHED STANDARD OF PROOF REQUIRED OF A PETITIONER IN AN ELECTION PETITION? (Arising from Ground 8)

(7) WHETHER THE HONOURABLE TRIBUNAL RIGHTLY APPRECIATED THE PARTY ON WHOM THE BURDEN OF PROOF LAY, AND IF YES, WHETHER THE PARTY DISCHARGED THE BURDEN CAST ON HIM (Arising from Ground 9).

(8) WHETHER THE TRIBUNAL WAS CORRECT IN HOLDING THAT EVEN THOUGH THE 1ST RESPONDENT FAILED TO PROVE THAT THE APPELLANT WAS DIRECTLY OR INDIRECTLY INVOLVED IN THE ALLEGED MALPRACTICES, HE (THE APPELLANT) WILL NOT BE ALLOWED TO BENEFIT FROM THE ALLEGED MALPRACTICES?) Arising from Ground II)

The 2nd – 124 Respondents did not file any Brief of argument.