Hon. Ekpenyong O. Onoyom V. Hon. Gabriel Iyemi Egari & Ors (1999)

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OPENE, J.C.A.

The petitioner who is now the appellant and the 1st respondent contested the local government election on the 5th day of December, 1998 for the Chairmanship of Biase Local Government Council of Cross River State. The appellant contested the election under the platform of the Peoples Democratic Party (PDP) while the 1st respondent was the candidate of the All Peoples Party (APP). At the end of the election, the 2nd and 3rd respondent declared the 1st respondent as the winner.

The appellant thereupon challenged the return of the 1st respondent at the Local Government Election Tribunal of Cross River State holden at Calabar complaining about malpractices in 6 out of the 11 (eleven) wards that constitute the Local Government Area. The tribunal in its judgment delivered on 15th February, 1999 dismissed the appellants petition.

Dissatisfied with that judgment, the appellant has now appealed to this court. In accordance with the rules of this court, all the parties filed their brief of argument.

After a careful perusal of the issues formulated in the briefs of argument of all the parties in this case, I am of the view that only two issues arise for determination of this appeal and they are:-

1. Whether the tribunal was right in holding that failure of the appellant to join officials of INEC against whom allegations were made was fatal to his case;
2. Whether the appellant has proved his case as required by the law.

The basis of the appellant’s petition was that elections did not take place in Ikun/Etona Ward, Erei South Ward, Erei North Ward and Abayong Ward due to diversion of the election materials away from the appropriate venue for election to private houses and unknown destinations thereupon thumb-printed ballot papers and that fraud was perpetrated in favour of the APP.

In Agwuagune/Okurike ward, the Supervisor distributed all election materials to the presiding officers but refused to give them the result sheets which he absconded with and was never seen again and the results which were completely different from the situation on the ground were later announced.

Nine (9) witnesses testified in support of the appellant’s case and the respondents also called witness that testified in support of their case. The tribunal in its judgment found that the election result from Adim Ward was wrongly rejected and then added the said to result to the appellant’s and the 1st respondent’s total scores but found that the appellant did not prove the allegations with regards to the other live wards.

In respect of issue No. 1, the appellant’s case is that there were no elections in Ikun/Etono and Erei South wards and that the INEC officials colluded with APP officials and that election materials were diverted to private houses for perpetrating fraud in favour of the APP.

In Erei North and Abayong wards, it is alleged that there were election malpractices, that there were no elections and that the election materials were taken to unknown destination and that despite all these fraud and irregularities that the INEC officials went ahead to announce the results in favour of the APP.

The appellant in his petition named the officials of INEC who committed these offences,

1. Kennedy Ejim, Returning Officer for Ikun/Etono and the allegation is that he colluded with one Chief Sam Bassey to divert the electoral materials,
2. Victor Ekpei, Supervisor for Erei South Ward, is alleged to have taken electoral materials for the ward to a wrong centre.
3. Benjamin Inyang, the Returning Officer for the ward stayed at Agwuaguna to collate the ward results from Erei South Ward with the able assistance of the Electoral Officer.
4. In Erei North ward, it was alleged that there were glaring irregularities and corrupt practices and that despite these that INEC went ahead and announced result for the ward.
5. In Abayong ward, it was alleged that there was no election but the Electoral Official announced the result which was in favour of APP.

In Agwagume, it was alleged that there was no election but surprisingly, the INEC officials announced the result showing APP as the winner.

There is no doubt about it that serious allegations of fraud and electoral malpractices were made against the above named INEC officials and the question whether the tribunal was right in holding that the failure of the appellant to join them is fatal to his case.

In this regard, the relevant section of Decree 36 of 1998 is para. 48(1) of Schedule 5 which states as follows:-