Hon. Amos Gombi Goyol & Anor V. The Independent National Electoral Commission & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment)

On the 25 of November, 2011 we heard the instant appeal. Consequent upon which we pronounced our decision dismissing the appeal and reserved the reasons for the decision on a later date to be communicated to the respective parties. The following postulations are the reasons that informed our decision in dismissing the appeal.

The 1st and 2nd Appellants were petitioners before the National and State Houses of Assembly Election Tribunal sitting in Jos. on the 26th of April, 2011, General Election was conducted by the 1st Respondent for the seat of Member Representing Pankshin, Kanke and Kanam Federal Constituency of Plateau State in the House of Representative. The 1st Petitioner contested for the seat on the platform of the 2nd Petitioner (Labour Party). The 3rd Respondent contested for the same seat on the platform of 2nd Respondent (Peoples Democratic Party). On conclusion of the election the 3rd Respondent was declared and returned as the winner of the Election with 114,280 votes as against the 1st Appellants 87,060 votes. The Appellants were dissatisfied with the result of the election. They filed a Petition on 18 May, 2011, seeking 3 reliefs.

When issues were joined hearing commenced. The Appellants called 7 witnesses and tendered several exhibits to prove their petition. The 2 and 3 Respondents called 6 witnesses and also tendered some documents: At the close of evidence parties exchanged written addresses. Judgment was delivered on 29th September, 2011, wherein the tribunal dismissed the appellants petition. The petitioners aggrieved by the said decision filed a Notice of Appeal on 18 October 2011, containing 8 grounds of appeal. In line with the Election Practice direction, the parties filed and exchanged briefs of argument with the exception of the 1st Respondent.

At the hearing of the Appeal the Appellants brief of Argument and reply brief filed on 2/11/11 and 14/11/11 respectively were adopted. Both briefs were settled by Solomon E. Umoh (SAN).

The 2 & 3 Respondents brief filed 9 November, 2011 was adopted by Learned Senior Counsel Olorundare.

In the Appellants Brief 6 issues were distilled for determination which read thus:

1. Whether the Trial Tribunal was right when it held that no averment devoid of criminal imputation will remain in the petition if the averments alleging crime are severed having regards to the peculiar facts of this case (distillable from ground 1).
2. Whether the Trial Tribunal was right when it held that the doctrine of severance of pleading is not applicable in the petitioners’ case (distillable from grounds 2)
3. Whether the Trial Tribunal was right when it held that exhibits “A -“A376” were dumped on the Tribunal (distillable from ground 3)
4. Whether the trial Tribunal was right when it rejected the evidence of PW6 who was expert witness, and if the answer is in the negative, can the Court of Appeal substitute its findings for the findings of the Trial tribunal (Distilled from grounds 5 & 6).
5. Whether the trial Tribunal was right when it held that the petitioners did not plead how the non compliance substantially affected the result of the election (distilled from ground 7).
6. Whether the petitioners successfully proved their petition as required by law to be entitled to judgment in their favour having regards to the peculiar facts of the petition (distilled from grounds 4 & 8).

The 2 & 3 Respondent’s Brief also contains six issues similar to the issues distilled in the Appellants Brief. I adopt the 6 issues distilled for determination in the Appellants Brief to determine this appeal. The issues will be considered as argued in the Appellants brief.

Issues 1 & 2

1. Whether the Trial Tribunal was right when it held that no averment devoid of criminal imputation will remain in the petition if the averments alleging crime are severed having regards the peculiar facts of this case (distillable from ground 1).
2. Whether the Trial Tribunal was right when it held that the doctrine of severance of pleading is not applicable in the petitioners’ case (distillable from grounds 2)

Learned Senior Counsel contended that, the petitioners hinged their petition on one ground, which ground stands on two legs namely:

(1) Corrupt practices on the one side and irregularity/non compliance on the other side.

It is his submission that the ground of petition has its particulars embedded therein. He cited INEC v. Oshiomole 2009 4 NWLR (Pt 1132) at 675.

Learned senior counsel argued that non compliance is any form of disobedience to laid down rules and so the particulars of non compliance must be deemed to be embedded in the grounds once a petitioner seeks to rely on the ground of non compliances as the argument in support of his petition. He contended that what is relevant is the quantum of non compliance and that is why the Electoral Act makes reference to the substantiality of the non compliance as per S.139 of the Electoral Act. He submitted that it is not mandatory that a petitioner sets out the particulars of non compliance provided he shows that such non compliance was substantial enough to affect the result of the election.

The Learned Senior counsel for the 2 & 3 Respondent in opposition emphasized the importance of setting out the particulars to avoid springing surprise on the opponents. The Tribunal found at page 784 of the Record that the petitioners hinged their petition mainly on the 1st leg of S. 138 (i) (b) of the Electoral Act 2010 as amended and gave the particulars on facts by which the corrupt practices they alleged were going to be proved. Clearly the Tribunal did not state the particulars of the corrupt practices were not set out.