Hon. Emibra Efiriandi Agbeotu V. Mr. Tamarate Brisibe & Ors. (2004)

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PATRICK IBE  MAIZU, J.C.A. 

The appellant, Hon. Emibra Efiriandi Agbeotu, the 1st respondent Tamaratare Brisibe and other candidates, contested the election into the Federal House of Representatives for Burutu Federal Constituency of Delta State. The election was held on Saturday, 12th April, 2003.
The above two named candidates, contested the election on the platforms of All Nigeria Peoples Party (ANPP) and Peoples Democratic Party (PDP) respectively. At the end of the election, the 2nd respondent, the Independent National Electoral Commission (INEC for short) a statutory body, which is charged with the responsibility of conducting the election, declared the following results:-
A.D. 586
A.N.P.P. 13,556
N.D.P 47
P.D.P. 50,922
U.N.P.P 9

The 1st respondent having been recorded as scoring the highest number of votes was declared as duly elected by the 2nd respondent.

The appellant was dissatisfied with the result of the election. He filed a petition before the National Assembly Election Tribunal, holden at Asaba, against the 1st respondent, the 2nd respondent and two functionaries of INEC as 3rd and 4th respondents. The grounds of the petition are in the main-
(i) Against the conduct of the electoral officers.
(ii) The issue of lawful/unlawful votes cast at the election.
(iii) Tax/Qualification and disqualification of the 1st respondent.
(iv) Electoral offences allegedly committed by the 1st respondent and officials of the 2nd respondent.

In the light of the above, the appellant prayed the Tribunal –
“(i) That the results of the election in wards 1, 5, 6, 9 and 11 are null and void as no elections took place in those wards.
(ii) That the results of the purported election in units 10 – 26 of ward 4 and units 1, 3, 4, 5, 6, 8, 10 and 13 of ward 7 are null and void as no elections took place in those units.
(iii) That the 1st respondent, Mr. Tamaratare Brisibe, was and is not qualified or is disqualified from contesting and being returned as duly elected, not having the requisite qualification and having committed several electoral offences contrary to sections 129 – 134 of the Electoral Act, 2002, and that the purported election of the 1st respondent is null and void.
(iv) That the 1st respondent (sic) Mr. Tamaratare Brisibe, was not duly elected and that his purported election is null and void as he did not score the highest number of lawful votes.
(v) That the petitioner was duly elected, as representative of the Burutu Federal Constituency in the Federal House of Representative, having polled the highest number of lawful votes cast at the election.
(vi) That the petitioner be returned as duly elected as representative of the Burutu Federal Constituency in the Federal House of Representatives, having polled the highest number of lawful votes cast at the election.
(vii) Any relief(s), order or orders, declaration or declarations, decree or decrees, judgment or determination that this Honourable Tribunal may deem fit to grant, make, declare, decree or enter, having regard to the circumstances and justice of this case, including but not limited to an order for re-election, or fresh election to be conducted in the Burutu Federal Constituency of the Federal House of Representatives as an alternative to returning the petitioner in the stead of the 1st respondent.”

Reacting to the above petition, the 1st respondent filed a reply to the petition. The 2nd – 4th respondents filed a joint reply. In their respective reply, the respondents denied all the allegations of election malpractices, etc, made in the petition against them. Thereafter, the trial proceeded. At the trial, the parties gave evidence and called witnesses. A number of documents were tendered in the cause of the trial. After the evidence of the parties and their witnesses, the learned Counsel for the parties submitted written addresses. The case was adjourned for judgment.

In a considered judgment delivered on the 23rd of August, 2003, the Tribunal held as follows-
“In our view, the petitioner has failed to prove the ground of lawful/unlawful votes for him to succeed on this claim. The petitioner has not established that he scored the majority of lawful votes at the election in order to be declared winner of the 12th of April, 2003 election.

The petitioner has not produced any evidence whatsoever, to enable the tribunal declare any vote cast in the election invalid.

In the totality of the petition, the petitioner has failed to prove that the 1st respondent was not qualified or was disqualified to contest and to be declared winner of the 12th April, 2003 election, into the House of Representatives to represent Burutu Federal Constituency. The petitioner has failed to prove that there was no election in wards 1, 5, 6, 9 and 11 of Burutu Federal Constituency, and has failed to prove that the 1st respondent was not duly elected into Burutu Federal Constituency, and has failed to prove that he, the petitioner was duly elected.

The petitioner has not proved that he scored the highest number of lawful votes cast at the election and is therefore not entitled to be declared as having done so.

In consequence, the petition fails in all aspects of the prayers sought and is hereby dismissed.”
Being dissatisfied with the above judgment, the appellant has appealed to this Court. In compliance with the Court’s Rules, the parties through their counsel filed and exchanged briefs of arguments.

The learned Counsel for the appellant filed in addition a reply brief to the briefs of the 1st, 2nd to 4th respondents. Before us, the learned Counsel for the parties adopted and relied on the submissions contained in their respective briefs. The learned Counsel for the appellant, urged the court to allow the appeal. The learned Counsel for the respondents on the other hand, urged the court to dismiss the appeal as lacking in merit.

The appellant formulated the following issues for determination by the Court –
1. Whether or not, it is just and lawful for a member of a judicial panel, who did not hear the case of the defence to take part in a decision upholding that defence and dismissing the petitioner’s case which he heard.

2. Whether or not, the defence to the petition was properly upheld, when it was based on matters expressly required by law (paragraphs 12 and 15 of Electoral Act, 2002) to be pleaded and adduced in evidence, but which were clearly not pleaded and given in evidence.