Chief Ethelbert Okwaranyia V. Mrs. Patricia N. Udogu & Ors. (2003)

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S.A. AKINTAN, J.C.A.

This is an appeal from the judgment delivered at the National Assembly, Governorship and State Assembly Tribunal, Imo State, sitting at Owerri delivered on 30th July 2003 in Suit No. NAET/IMS/1/03. The appellant, chief Ethelbert Okwaranyia, and the 1st respondent, Mrs. Patricia Udogu, were candidates at the election into the Ideato North and South Federal constituency in the House of Representatives held on 12th April 2003.

The appellant contested the election on the platform of the All Nigeria Peoples Party (ANPP) while the 1st respondent contested on the platform of the Peoples Democratic Party (PDP). The 2nd respondent, the Independent National Electoral commission (INEC), is the body that conducted the election while the 3rd to 12th respondents are officials of the 2nd respondent that were involved in conducting the said election. There were other candidates sponsored by other political parties that also contested the election.

At the conclusion of the election, the results as declared by the 2nd respondent are as follows:
1. Chief Ethelbert Okwaranyia (ANPP)    =    33,776 votes
2. Mrs. R.N. Udogu (PDP)          =    28,087 votes
3. Chief Ben Obinali (AD)          =    4,435 votes
4. Obi Nwankwo (APGA)          =    4,086 votes

The appellant, Chief Ethelbert Okwaranyia, having scored the highest votes, was declared the winner of the election.

The present respondent, Mrs. Udogu, who was adjudged as scoring the second highest votes was dissatisfied with the result declared by the 2nd respondent. She therefore filed a petition at the tribunal. She prayed the tribunal in the concluding paragraph of her petition for the following relief:
“Wherefore your petition prays: That it may be determined that the said Chief Ethel Okwaranyia, 1st respondent, was not duly elected or returned and that Barrister (Mrs) P.N. Udogu, the petitioner was elected and ought to have been returned.”

At the hearing at the tribunal, the petitioner gave evidence along with four other witnesses in support of the petition. Nine witnesses in all testified in defense of the petition. The tribunal, after taking written submissions from the counsel for the parties in the case, delivered its reserved judgment on 30th July 2003. The tribunal held that the petitioner had proved her case and therefore entered judgment in her favour as follows in the concluding portion of the judgment:

“We agree with the petitioner that if the votes scored by the petitioner and the 1st respondent at the polling stations complained about in all the four aforesaid wards had been correctly entered and recorded into Exhibits 112 – 118, the lawful votes of the petitioner and the 1st respondent would have been:
Respondent        –    24,478 votes and
Petitioner        –    30,078 votes
In the result, the petitioner succeeds; the return of the 1st respondent as declared and announced by INEC through 10th respondent on the 12th April, 2003 is hereby set aside. The petitioner is hereby declared and returned winner of the election into the National Assembly of Ideato North and South Federal Constituency of Imo State.”

The appellant was dissatisfied with the judgment delivered by the tribunal and he has appealed against it to this court. Ten grounds of appeal were filed against the judgment. The parties filed their respective brief of argument in this court. The appellant filed an appellant’s brief and an appellant’s reply brief. The 1st respondent also filed a 1st respondent’s brief. A motion was also filed on behalf of the 1st respondent in which he prayed this court for the following relief:
“1. An order of this honourable court dismissing and/or striking out the appeal or alternatively
2 An order striking out the grounds of appeal contained in the Notice of Appeal; or
3. An order striking out the appellant’s brief of argument and/or
4. An order striking out issues 1, 2, and 3 as contained in the appellant’s brief of argument.”

The following three issues are formulated for determination in the appellant’s brief which are also adopted in the 1st respondent’s brief:
“(i) Was the tribunal right in refusing to strike out the petition for disclosed incompetence firmly established on the evidence at the trial?
(ii) Did the petitioner discharge the obligation of proof resting on her on the pleadings and the evidence adduced?
(iii) Whether the conclusion and verdict arrived at by the tribunal can be justified on the pleadings and evidence tendered?”

The 1st respondent raised a preliminary objection in her brief of document prepared by Mr. Fagbemi, SAN, to the competency of the appeal.

The objection raised is as follows:
“(A) 1st Respondent objects to all the grounds of appeal contained in the Appellant’s Notice of Appeal for the following reasons among others:
(1) Grounds (i), (ii) and (iii) have been raised earlier by the Appellant before the Tribunal by way of preliminary objection which was dismissed. Appellant filed a Notice of Appeal which was abandoned in Appeal No. CA/PH/EPT/116/2003;
(2) Ground (iv) of the grounds of Appeal aforesaid does not present a complaint;
(3) On Ground (v); the particulars, especially particulars (c), (d) and (e) thereunder do not relate to the ground; and
(4) Grounds (vi), (vii), (viii), (ix) and (x) are argumentative, and should be struck out.
(B) Appellant’s brief has abandoned grounds (ix), (v), (viii) and (x) of the grounds of Appeal.”

The affidavit afore-mentioned above also set out the details of the facts relied on in support of the objection. The notice and grounds of appeal filed in the interlocutory appeal as well as the order of this court dismissing the appeal were exhibited.

The 1st respondent did not deny the fact that an interlocutory appeal was filed against the ruling of the tribunal refusing to strike out the petition and that the said appeal was dismissed for want of prosecution;rather, it is argued that the issues now raised are founded on the final judgment and not on the interlocutory ruling.