Cosmas Ndiwe Ogu V. Ike Ekweremadu & Ors (2004)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

The appellant – Cosmas Ndiwe Ogu contested the 2003 Senatorial election on the platform of the All Progressive Grand Alliance (APGA). He lost the election to the 1st respondent – Ike Ekweremadu who contested the election, sponsored by the Peoples Democratic Party.

The appellant and the 1st respondent were among six contestants who vied for election into the Enugu West Senatorial District in the National Assembly Election held throughout the country on the 12th of April, 2003. The 1st respondent scored 237,141 votes as against the appellant who scored 5,607 votes according to the official results declared by Independent National Electoral commission (INEC). The appellant contested the result by filing an election petition against the 1st respondent, Ike Ekwereadu, the 2nd respondent, People’s Democratic Party of Nigeria and the 3rd – 539th respondents INEC and its officials. He challenged the conduct of the election and the return of the 1st respondent as the winner of the election by filing a petition on the 12th of May, 2003 praying the Election Tribunal for the following reliefs:-

(a) Declaration that the 1st respondent was not duly elected as announced by the 10th respondent and upheld by the 3rd and 4th respondents.

(b) That the petitioner is declared validly elected and returned having polled the highest number of lawful votes cast at the election.

(c) Or in the alternative, a nullification of the senatorial poll held on the 12th April, 2003 and ordering of a fresh

poll within sixty days from the date of such nullification.

The grounds for the petition as stated in the petition are as follows:-

(i) The election was fraught with irregularities and violence by the agents of the 1st and 2nd respondents.

(ii) There was non-compliance with the provisions of the Electoral Act, 2002 and the INEC guidelines and regulations for the conduct of election made pursuant to the said Electoral Act by the 3rd – 10th respondents.

(iii) The 1st respondent was not duly returned by majority of lawful votes at the election.

The appellant pleaded official result of votes of the candidates as declared by INEC and also averred that he received duplicate Forms EC8A from his agents in a few Wards in Awgu L.G.A. in respect whereof INEC was specifically required to produce at the trial originals of EC8A Forms set out. In the replies filed on behalf of the respondents the various allegations of the appellant were strongly denied. The appellant in an effort to substantiate the petition called twenty-one witnesses, the 1st respondent called nineteen witnesses and tendered documents, while the 3rd-539th respondents called five witnesses and also tendered documents in disproving the petitioner’s case. The lower tribunal delivered a unanimous judgment on the 31st of March, 2004 dismissing the election petition. Being dissatisfied with the decision of the National Assembly/Governorship and Legislative Houses Election Tribunal, the appellant appealed to this court in his notice of appeal filed on the 13th of April, 2004.

Parties filed and exchanged briefs. When this appeal was heard on the 23rd of September, 2004, the appellant adopted and relied upon the appellant’s brief filed on the 19th of August, 2004. In the brief the appellant distilled four issues for determination from the eight grounds of appeal filed. The issues for determination read as follows:-

“Issue No. One