Chief Udochukwu Callistus Azudibia V. Independence Ogunewe & Ors (2003)

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

This

 is an appeal from the judgment delivered on 14th August 2003 by the Imo State National Assembly/Governorship and Legislative Houses Election Tribunal holden at Owerri in Suit No. NAET/IMS/4/2001. The appellant, Chief Udechukwu Callistus Azudibia, was the petitioner before the tribunal while the 1st respondent, Independence Ogunewe, was the 1st respondent. The 20th respondent (INEC) was the body that conducted the election. The other respondents were the officials of Independent National electoral Commission (INEC) that were involved in conducting the election that was the subject-matter of the petition. The appellant and the 1st respondent were candidates at the election into the House of Assembly seat for Ahiazu/Ezinihitte Federal Constituency. The election took place on 12th April 2003. There were other contestants too who contested the same election with them.

The petitioner contested the election as the candidate sponsored by the All Nigerian Peoples Party (ANPP) while the 1st respondent was sponsored by the Peoples Democratic Party (PDP). At the conclusion of the polls, the 20th respondent (INEC) declared the result in which it credited the 1st respondent with 21,989 votes while the appellant was credited with 12,612 votes. The appellant was not satisfied with the results declared by INEC.

He therefore filed the petition at the tribunal in which he prayed the tribunal for the following reliefs in paragraph 38 of his said petition:
“Wherefore the petitioner prays for the following reliefs:
(a) That the election be nullified.
(b) That the Electoral Officers, Returning Officers and Presiding Officers be replaced for a fresh conduct of the election.
(c) That all indicted Electoral and Returning Officers be barred from further participation in elections in the future.”

The 1st respondent filed a reply to the petition. Similarly, a reply was also filed on behalf of the 2nd to 46th respondents. The petitioner also filed a petitioner’s reply to 1st respondent’s reply. The petition thereafter went for trial before the tribunal. At the trial, the petitioner called 16 witnesses while the 1st respondent called two. The 2nd to 46th respondents however did not call any witness. At the close of the case for the respondents, and after taking from learned counsel in the case, the tribunal delivered its reserved judgment. The Tribual in it’s said judgment came to the following conclusion as set out in the concluding paragraphs of the judgment:
“In the premises of the foregone and based upon a proper, prudent and scrupulous evaluation and appraisal of the evidence placed before us by the parties, both oral and documentary and the submissions of learned Senior Advocates made thereon, we resolve all the three issues raised hereinabove against the petitioner.

In conclusion we find and hold that the petitioner has failed to discharge the onus of proof cast on him by law and regarding his allegations of corrupt practices, malpractices, irregularities and non-compliance with provisions of the Electoral Act 2002 made against the respondents. We do not find the said allegations sufficiently proved as required by law. Furthermore, it has not been duly established before us how the non-compliance, if any, substantially affected the result of the election in question. The petition fails. It ought therefore to be dismissed. We accordingly dismiss it in its entirety. We decline to order nullification of the same. We hereby confirm the election of Independence Chidoziem Ogunewe as the duly elected member of the Federal House of Representatives representing Ahiazu/Ezinihitte Constituency.”

The petitioner was dissatisfied with the decision of the tribunal. He therefore appealed against it to this court. Eleven 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 a reply to 1st respondent’s brief. The 1st respondent also filed 1st respondent’s brief while the 2nd to 46th respondents filed a joint brief.

The appellant formulated the following seven issues as arising for determination in the appeal:
“1. Whether the petition tribunal’s decision not to apply the testimonies of the appellant’s witnesses was proper in law.
2. Whether there is no sanction for the breach of section 18 of the Electoral Act 2002.
3. Whether the election was not vitiated by reason of non-compliance with several fundamental provisions of the Electoral Act 2002.
4. Whether election materials that are not certified in accordance with the law were legal evidence before the tribunal of proof of the content of such materials under the Electoral Act 2002.
5. Whether the tribunal’s conclusion that there was no nexus between the 1st respondent and the PDP is correct.
6. Whether the tribunal’s conclusion that the fact of non-certification of electoral materials was not pleaded by the appellant is correct.
7. Whether on the balance of probabilities the appellant did not discharge the onus placed on him as to entitle him to judgment”

The above seven issues formulated in the appellant’s brief were adopted by the 1st respondent. However three issues were formulated in the 2nd to 46th respondent’s brief. The three issues are as follows:
“1. Whether the burden of proof shifted from the appellant as petitioner to the 2nd to 46th respondents during the hearing of the petition at the tribunal.
2. Whether the totality of the evidence of the appellant’s sixteen witnesses met the standard of proof required.
3. Whether sections 18, 65, 67(3) and 134 (i) (b) of the Electoral Act 2002 should be read in isolation of the other sections of the Act to invalidate the actions of the 2nd – 46th respondents during the Election in question.”

The main grievance of the appellant, as canvassed in the appellant’s first issue, is the refusal of the tribunal to accept the testimonies of some of the witnesses that gave evidence in support of the appellant’s case. The reason given by the tribunal for rejecting the evidence given by the said witnesses was that the said witnesses were all members of the appellant’s political party, the All Nigerian Peoples Party (ANPP). It is submitted that the stand of the tribunal is erroneous because the said witnesses met the legal requirement of competency of witnesses as laid down in section 155(1) of the Evidence Act. The evidence given by the said witnesses are said not to come within evidence which by law require any corroboration. The tribunal is therefore said to have acted wrongly by rejecting the evidence given by the said witnesses.

The point canvassed in the appellant’s 4th and 6th issues is mainly in respect of the tribunal’s refusal to reject the electoral forms tendered in support of the election of the 1st respondent. Reference is made to the provisions of section 67(3) of the Electoral Act 2002 which provide that:
“The polling agents shall certify the election materials from the office to the polling booths.”

It is then submitted that since the appellant pleaded in paragraph 2 of his reply to the reply of the 1st respondent that an example of the failure of INEC to perform its statutory functions was to have election materials certified and the petitioner testified in terms of his said pleading, it was a misdirection for the tribunal to hold that the petitioner failed to plead non-certification and thereby denied the appellant the consideration of that aspect of his case. It is further submitted that a non-certified election material ought to have been rejected.

The effect of failure to comply with the provisions of section 18 of the Electoral Act 2002 which provides that all electoral officials are to affirm or swear an oath of loyalty and neutrality indicating that they would not accept bribe, is the point raised in the appellant issue 2. Reference is made to the provision of section 134(i)(b) of the Electoral Act 2002 which provides that:
“An election may be questioned on any of the following grounds, that is to say…
(b) That the election was invalid by reason of corrupt practice or non-Compliance with the provisions of the Act.”