Hon. Barr. Josephat Chibueze Emenaha V. Kelvin Obioha Chino & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal filed by the appellant, who was the petitioner, against the decision/ruling of the National and State Houses of Assembly Election Tribunal, Owerri (Coram: Umeokoye E. Essang, J. (Chairman); A. M. Yakubu, J.; and A. O. Salihu, J.) delivered on the 22nd day of September, 2011 dismissing the petition.

The petition was in respect of the election to the House of Assembly, Imo state, for Njaba state constituency, which was conducted by the 2nd respondent on the 26th day of April, 2011. The appellant and the 1st respondent were amongst the candidates at the election.

Dissatisfied with the return of the 1st respondent at the election, the appellant presented a petition to the National and State Houses of Assembly Election Tribunal Owerri (hereinafter referred to as “the tribunal”) wherein he sought for the following reliefs viz:

(1) That the 1st Respondent Kevin Obioha Chino, who was the candidate of Congress of Nigeria, was not duly elected or returned by the majority of the lawful votes cast at the House of Assembly elections held on the 26th day of April, 2011, in respect of Njaba State Constituency of Imo State.

(2) That the said election or return of the 1st Respondent as the winner of the House of Assembly Election held on the 26th day of April, 2011, in respect of Njaba State Constituency of Imo State, is invalid and void by reason of diverse acts of electoral malpractices and non-compliance with the provisions of the Electoral Act, 2010 (as amended).

(3) That the Petitioner, Hon. Barr. Josephat Emenaha, having scored the majority of lawful votes cast at the April, 26th, 2011 House of Assembly election conducted by the 2nd and 3rd Respondents in respect of the Njaba State Constituency of Imo State, be declared and returned as the rightful winner of the said election and be issued a certificate of return accordingly.

ALTERNATIVE RELIEF

(4) That the declaration and return of the 1st Respondent by the 2nd and 3rd Respondents as the winner of April, 26th 2011, House of Assembly election conducted in respect of Njaba State Constituency of Imo State being illegal and unlawful, be nullified and accordingly set aside and a fresh election ordered in the constituency.

After exchange of pleadings, the tribunal conducted a pre-hearing session during which the 1st Respondent challenged the competency of some paragraphs of the petition in that they allegedly contained averments of crime against persons who were not parties to the petition. After hearing arguments, the tribunal ruled that the said paragraphs of the petition were incompetent, and struck them out. The appellant appealed against that decision and in a unanimous decision of this Honourable Court delivered on the 11th day October, 2011, in Appeal No. CA/OW/EPT/19/2011, the ruling of the tribunal was set aside and the petition sent back for the trial on the merit before another panel.

Trial of the petition commenced on the 6th day of September, 2011 when the petitioner testified as P.W.1, at the conclusion of his testimony, the tribunal suo motu raised the issue as to whether, having regard to the evidence, “even if the results in all the 19 polling units tendered in evidence by the petitioner are cancelled by this Tribunal, can this cancellation adversely affect the outcome of the said election?” and called for the addresses of counsel.

At the conclusion of addresses, the tribunal delivered a considered ruling, subject of this appeal, in which it concluded, thus:

“To therefore proceed with the hearing of this petition will only amount to an exercise in futility and this Tribunal so holds. The consequence is that petitioner’s petition number EPT/IM/SHA/15/2011 is hereby dismissed.”

Earlier on, in the course of the evidence of P.W.1, the Tribunal refused to admit the certified true copies of register of voters for 20 polling units. In its ruling delivered on 6th September, 2011, it said “The tribunal hereby upholds the objection of the 1st Respondent’s counsel that these 20 voters register certified by engineer Moses Udoh, Administrative Secretary are-inadmissible. They are accordingly rejected and they should be so marked.”