Hon. Eric Acho Nwakanma V. Enyinnaya Abaribe & Ors (2008)

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SULEIMAN GALADIMA, J.C.A.

The Petitioner now the Appellant and the 1st Respondent both contested election to the seat of a Senator in the National Assembly for the Abia South senatorial District. In the said election that was held on 28/4/2007, the petitioner contested under the platform of Progressive Peoples Alliance (PPA) while the 1st Respondent contested under the platform of the peoples Democratic Party (PDP). After the election the 1st Respondent was declared the winner and thus returned. Aggrieved, the petitioner filed his petition at the Governorship/Legislative Houses Elections Tribunal sitting at Umuahia, Abia State on the following three main grounds:

1. That the 1st Respondent whose election is questioned was at the time of the election on 28th April, 2007, not qualified to contest the said election;
2. That the erection of the 1st Respondent was invalid by reason of corrupt practices and or non-compliance with the provisions of the Electoral Act, 2006: and
3. That the 1st Respondent was not elected by a majority of the lawful votes cast at the election.

Upon service of the petition on him, 1st Respondent filed his reply to the petition wherein he denied averments in the petition.

The case of the 1st Respondent vide paragraphs 8-37 of his Reply is that he was qualified to contest and did contest and won the said election by majority of lawful votes cast at the election. He maintained that the election was free and fair and conducted in substantial compliance with the Electoral Act 2006.

The 2nd – 9th Respondents also filed their own Reply in which they essentially denied the allegation of the petitioner; they denied that the election was marred by violence, rather it was free and fair; they denied any corrupt practices as alleged in the petition.

The 10th Respondent admitted receiving reports from his officers in the field that election materials were snatched at gun point in some wards and units and that election never took place in those wards and units.

The petitioner called 10 witnesses while 1st Respondent called 17 witnesses. 3 witnesses testified for the 2nd – 9th Respondents while the 10th Respondent testified for himself.

At the close of evidence, the parties filed written addresses which they adopted. In his address 1st Respondent raised the issue of non-joinder of necessary parties to the petition and concluded that failure to do so have the effect of rendering any paragraph of the petition containing such an allegation against the party not joined incompetent. In his reply, the petitioner drew the attention of the Tribunal to the proviso to section 144(2) of the Electoral Act, 2006 and paragraph 3(v) of the petition which he said had effectively taken care of the contention of the 1st Respondent.

However, the Tribunal in its considered judgment on 23/4/2008 affirmed the declaration and return of the 1st Respondent as duly elected. Petitioner felt aggrieved. He appealed on 7 grounds. Briefs were filed and exchanged by the respective parties.

The appeal was heard on 27/11/2008. Learned Senior Counsel for the Appellant, AWA U. KALU, and SAN, identified appellant’s brief dated and filed on 2/5/2008. His motion to amend the Reply Brief was moved and without opposition granted and deemed filed or, 27/11/2009. He identified three issues for determination of the appeal as follows:

“(i) Whether the tribunal below was not in error when it held that the petitioner failed to show that the 1st Respondent was at the time of the election not qualified to contest the election. (Grounds a, b and c).

(ii) whether the tribunal below was in error when it herd that non-joinder of persons found to be agents of the Independent National Electoral Commission was fatal to the Petition and then struck out those paragraphs not withstanding the proviso to section 144(2) of the Electoral Act, 2006 (Grounds d, e and f).

(iii) Whether the judgment of the Tribunal below is not against the weight of evidence. (Ground g)

Elder C.A.N. Nwokeukwu Esq identified 1st Respondent’s brief of argument filed on 19/5/2008. His motion to amend same was not opposed by any of the counsel for the parties. It was therefore granted and deemed amended. The learned counsel for the 1st Respondent having adopted 1st Respondent’s amended brief, he drew the attention of this court to paragraphs 2.19 page 7 of the said brief. However, in the alternative he raised 3 issues on the following terms: