Fubara Akinbiyi Iyagba V. Hon. George Thompson Sekibo & Ors (2008)

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TIJANI ABDULLAHI, J.C.A.

This is an appeal against the judgment of the Governorship/Legislative Assembly Election Petition Tribunal sitting at Port Harcourt, Rivers State in the petition No. EPT/NA/14/2007 delivered on the 23rd day of April, 2008. Elections were conducted on 28/04/2007 for the seat of the Senate and House of the Representatives throughout the country.

In Rivers State, the petitioner (herein after referred) to as the Appellant was the candidate of All Nigeria Peoples in the said election and scored 26,579. The 1st Respondent Hon. George Sekibo who was declared the winner with 415,159 votes was the candidate of the Peoples Democratic Party (PDP). Five other persons from different political parties who did not contest the declaration of the 1st Respondent also participated as candidates in the said election.

Dissatisfied with the return of the 1st Respondent by the 2nd to 4th Respondents, the Appellant herein approached the Election Petition Tribunal and filed a petition in which the following reliefs were sought:

(a) That 1st Respondent, Honourable George Thompson Sekibo was not duly elected or 1st returned and that his election was void and invalid by reason of non-compliance with the provisions of the Electoral Act, 2006.

(b) That the return of the 1st Respondent as Senator elect for the Rivers East Senatorial District be set aside.

(c) That the election is nullified and a fresh election/bye election be ordered to be conducted in the entire Rivers East Senatorial District as no valid election can be said to have taken place. [See pages 9 – 10 of the Records).

Pre-hearing sessions were held and information sheets were filed by all the parties. The trial Tribunal came out with the pre-hearing, report in which four issues were formulated for determination. The petition went into full trial. The petitioner in proving his case testified as PW.2 and called one other witness, the PW.1. He tendered Exhibits P1 and P2.

The 1st Respondent on the other hand did not testify personally by himself but called 6 witnesses RW.1 – RW.6. He did not tender any document as Exhibits in defence of his case. 2nd to the 4th Respondents called two witnesses who testified as RW.7 and RW.8. They tendered Certified True Copies of the results of the election after an objection for their admissibility was overruled by the trial Tribunal.

In a well-considered judgment, the trial Tribunal held thus:

“Having resolved all the four issues raised and determined by parties before us in favour of the Respondents and against the petitioner, we are satisfied that the petitioner has failed woefully to prove the numerous allegations he made in he [sic] petition. Consequently therefore, the petition is hereby dismissed”.

As expected, the petitioner then, now Appellant on the 13th of May 2008 filed two grounds of appeal from which he distilled two issues for determination as follows:

1. Whether failure to expunge legally inadmissible evidence and relying on same without any evaluation did not affect the decision of the tribunal that the election of the 1st Respondent was in compliance with the Electoral Act, 2006.
2. Whether election in compliance with the provisions of the electoral Act, 2006 can be valid without any evidence of accreditation of voters to vote, no evidence of voting and no evidence of the results of the election from the contestants before the Tribunal.”

On the 17th November, 2008 when the appeal came before us for hearing in accordance with the rules of this court, learned counsel for the Appellant, Mr. Obiora adopted his two briefs, the Appellant’s brief dated and filed on 4/6/08 and his reply – brief which was deemed filed on 27/10/08. He also filed a list of additional authorities. He placed reliance on the two briefs and the said list of additional authorities. He urged us to allow the appeal, nullify the election of the 1st Respondent and set aside the judgment of the lower Tribunal.

Learned senior counsel for the 1st Respondent, adopted his brief of argument dated and filed on the 11th June, 2008. Whilst adopting his brief learned senior counsel urged us to discountenance the reply brief of the Appellant for not conforming to the rules of the court on what a reply brief should contain. Fresh issues were raised and argued in the said Reply Brief in addition to re-arguing his brief. Again, learned senior counsel urged us to discountenance all the unreported cases cited by the Appellant in his brief because citations were not supplied by the Appellant. Learned senior counsel made the point that contrary to the tradition of honourable and learned profession, allegations were made against the members of the Tribunal and the counsel for the Respondents. Finally learned senior counsel urged us to dismiss the appeal as lacking in merit and affirm the decision of the lower Tribunal.