Emenike Owanta & Anor V. Independent National Electoral Commission & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A (Delivering the Leading Judgment)

This appeal stems from the judgment of the Governorship Election Petition Tribunal Sitting at Umuahia Abia State in Petition No. EPT/AB/G/16/2011 delivered on the 10th August, 2011 wherein the Tribunal dismissed the Appellant’s petition against the return of the 3rd Respondent as the Governor of Abia State in the April 26th 2011 Governorship election.

The 1st Appellant herein, Emenike Owanta was a candidate of the 2nd Appellant, the Democratic Front for a Peoples’ Federation at the election held on the 26th day of April, 2011. The 3rd Respondent, Theodore Orji contested the said election on the platform of the 2nd Respondent, Peoples Democratic Party (PDP). The 1st Respondent, Independent National Electoral commission (INEC) declared the 3rd Respondent, the winner of the election as having polled the highest number of votes cast at the election and returned him accordingly as the winner of the Governorship election of Abia state.

The Appellant not satisfied with the election and return of the 3rd Respondent filed a petition before the Abia State Governorship Election Petition Tribunal, sitting at Umuahia upon this exclusive ground:

1. That the 2nd Petitioner validly nominated the 1st Petitioner to contest as the 2nd Petitioner’s candidate at the Election but was unlawfully excluded from the Election by the 1st Respondent.

The Petitioners prayed for the Honourable Tribunal to determine as follows:

1. That the Petitioners were unlawfully excluded from the Abia State Governorship Election held on April, 26th, 2011.
2. That the Abia State Governorship Election held on April, 26th 2011 where the 3rd Respondent was declared winner be nullified.
3. That the return of the 3rd Respondent as the winner of the Abia state Governorship Election held on April, 26th 2011 be set aside.
4. That a fresh election for the office of the Governor of Abia State be ordered with the 1st Petitioner participating with the inclusion of the 2nd Petitioner’s symbol inscribed on the ballot paper to be used for the fresh election.

Upon being served with the petition, the 1st Respondent filed its Memorandum of Conditional Appearance and Reply to the Petition dated June 4th, 2011 (See pages 130 -161 of the Records). A Notice of preliminary objection indicating that the 1st Respondent intended to challenge the competence of the Appellants, petition in limine was incorporated into the 1st Respondent’s Reply. The 2nd and 3rd Respondents also filed their Replies to the Appellant’s petition dated 6th June, 2011 and June 28th, 2011 respectively and equally incorporated Notices of preliminary objections to their respective Replies, challenging amongst others, the locus Standi of the Appellants to present the Petition. (see pages 170 – 200 and, 276 -314 of the Records).

The Appellants, in their Reply to the respective Respondents Replies, attached the Appellant’s 2nd Witness Statement on oath, in support of the Reply as well as other additional documents.

Upon the agreement of counsel to the parties, the Tribunal ordered all the Respondents to file and serve their formal applications to set down the preliminary Objections for hearing. Each of the Respondents filed Motion on Notice and written Address challenging the competence of the petition. Upon service of same, the Appellants fired counter Affidavit and Written Address in opposition to each of the said motions.

In a considered Ruling delivered on the 10th of August 2011, the Tribunal dismissed the Petition of the Appellants. This is what the Tribunal said in dismissing the petition at pages 726 -727 of the Records:

In the final analysis, we hold that.

”1. Petitioner had not nominated a candidate to run as his associate as Deputy – Governorship candidate as at 31st January, 2011 the published deadline for the submission of Frorm CF 001.

2. That the 1st Petitioner was not nominated by 50 persons whose names appear on the register of voters as stipulated by law. The number of the 1st Petitioner’s nominators fell short of fifty (50). In addition, many of the nominators supplied fake and impossible dates and dubious particulars which rendered the nomination of the 1st Petitioner defective, questionable and invalid. There is considerable merit in these grounds of the consolidated applications. The result is that the Respondents’ Preliminary Objection that the 1st Petitioner was not validly nominated and that both Petitioners lack the locus standi to present this petition is meritorious and uphold by this Tribunal. The Petition is accordingly dismissed as lacking in merit.”?

The Appellants are aggrieved and appealed to this court vide a Notice of Appeal dated and filed on the August 22nd, 2011. The grounds of appeal without their particulars are hereby reproduced.

GROUNDS OF APPEAL

1. The Tribunal erred in Law when it held that the 1st petitioner had no locus standi to present the Petition on the basis of its evaluation of material other than the petition.
2. The Tribunal erred in law when it dismissed the Petition on the basis of an interlocutory application.
3. The Tribunal erred in law when it failed to ascribe a presumption of regularity to the conduct of the 1st Respondent who accepted the Petitioner’s nomination and included the party on the ballot although it excluded their party symbol.
4. The Tribunal erred in law when it considered the qualification requirements of the 1st Petitioner without due regard to the absence of a cross-petition to raise this issue.
5. The Tribunal misdirected itself in law when it held, at page 28 of its instant Ruling as follows:

”Section 32 places a burden on a nominator to supply his full voter’s identification Number with all particulars and signature. This would enable the 1st Respondent and the Tribunal if need be, to ascertain the validity of the particular nominator in the event of dispute. ”We agree with the Respondents counsel that in view of the foregoing, the nomination of the 1st Petitioner is invalid.”?