Hon. Ezekwelu Tony U.c. V. Barrister Ebele Obi & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO JCA (Delivering the Leading Judgment)

This appeal is against the judgment delivered on 1/9/2012 by the National and States House of Assembly Election Petition Tribunal (coram: Hon. Justices A.M. Liman (Chairman), O’Conell Ogbonna and Salihu O. Angelina) (hereinafter simply referred to as the Tribunal.) The tribunal in its judgment upheld the election of the 1st Respondent as the winner of the Anambra State House of Assembly re-run election for the Idemili South Constituency held on 15/2/2012.

The facts of the matter briefly stated are that a re-run election was ordered by this Court in respect of the Idemili South Constituency of Anambra State House of Assembly. The re-run election was held on 15/2/2012. The 1st Respondent was declared by the 2nd and 3rd Respondents as the winner of the election and as the duly elected member representing the Idemili South Constituency in the Anambra State House of Assembly. The Appellant being aggrieved by the declaration of the 1st Respondent as the winner of the election presented a petition dated 7/3/2012 before the Tribunal on the same date, challenging the said declaration. The grounds of the petition as set out in paragraph 5 thereof read thus:-

“(A) The election was invalid by reason of substantial non-compliance with the provision of the Electoral Act 2010 as Amended which non-compliance had in turn substantially affected the result of the election to the detriment of the petitioner, had the principles of the Electoral Act been substantially complied with, many of the votes credited to the respondent would not have been credited to him and the petitioner would have been declared winner of the election.

(B) The respondent was also not elected with majority of the lawful votes cast in the election, the petitioner rather was.”

The reliefs which the Petitioner prayed of the Tribunal as set out in paragraph 10 of the Petition reads thus:-

‘(i) A declaration of court that the 1st respondent did not win the election (rerun) held on 15/2/2012 to the Idemili South Constituency with a majority of lawful votes cast in the election.

(ii) A declaration of the tribunal that the petitioner on the other hand had won the election with a majority of the lawful votes cast in the election which is 3130 votes to the 2883 votes of the 1st respondent i.e. after the votes that were not earned legitimately by the parties are discountenanced/subtracted from the votes hitherto credited to them by INEC.

(iii) A declaration of the tribunal that the certificate of return issued to the 1st respondent in the circumstances is without basis and of no effect and that the same should be issued to the petitioner as one who had won the election on the strength of the lawful votes cast in the election.

(iv) An order of the Honourable Tribunal compelling the INEC (2nd respondent) to issue a certificate of return to the petitioner forthwith as the one who had won the election to the Idemili South State Constituency Election (re-run) held on 15/2/2012″.

At the hearing of the Petition before the Tribunal, the Petitioner alone testified on his own behalf in proof of his case as set up in the Petition. Exhibits that were duly marked A – J were tendered by consent of counsel at the hearing. The 1st Respondent testified on his own behalf and called 9 other witnesses. He also tendered exhibits marked as R13 – R36. The 2nd and 3rd Respondents in their joint defence called 10 witnesses and tendered exhibits marked 37A – R54. The Tribunal after a review of the respective cases of the parties in the Petition, and evaluation of evidence before it, held that the Petitioner failed to prove that the election was not conducted substantially in accordance with the provisions of the Electoral Act (as amended) or that any non-compliance substantially affected the result of the election. Stating further that there was no basis to invalidate the re-run election held on 15/2/2012, into the Idemili South State Constituency of Anambra State, the Tribunal held the Petition to fail and accordingly dismissed it for lack of merit. Consequently, the Tribunal affirmed the election, declaration and return of the 1st Respondent.

The Petitioner being aggrieved with the decision of the Tribunal lodged a Notice of Appeal dated 21/9/2012 against the judgment on the same date. The Notice of Appeal contains ten grounds of appeal. The relief the Appellant seeks from this Court as set out in the Notice of Appeal is “To allow the Appeal of the Appellant, set aside the decision of the tribunal below dated 1/9/2012 and declare the appellant as having won majority of lawful votes cast in the re-run election of 15/2/2012 to the Idemili South Constituency Anambra State and therefore entitled to be issued with the certificate of return in the election forthwith.

In accordance with the Rules of this court, parties duly filed and exchanged Briefs of Argument. Appellant’s Brief of argument is dated 11/10/2012 and filed on the same date. The Appellant filed a Reply brief to the 1st Respondent’s Brief of Argument. It is dated 19/10/2012 and filed on the same date. Both briefs were settled by Chief Chuma Oguejiofor. The 1st Respondent’s Brief of Argument dated 15/10/2012 and filed on 16/10/2012 was settled by Emeka Agbapuonwu Esq. The 2nd and 3rd Respondent’s Brief of Argument dated 15/10/2012 and filed on the same date was settled by S.O. Ibrahim Esq. (Chief Legal Officer, INEC): M.E. Ugwuocha Esq. (Senior Legal Officer, INEC); and O. Ikoroha (Mrs) (Senior Legal Officer, INEC). The appeal was entertained on 22/10/2012 with Emeka Agbapuonwu Esq. learned counsel for the 1st Respondent first arguing the preliminary objection as raised in the Notice of Preliminary Objection contained in the Brief of Argument of the 1st Respondent. Chief Chuma Oguejiofor, learned lead counsel for the Appellant having responded to the preliminary objection thereafter adopted and relied on the Briefs of Argument of the Appellant as hereinbefore identified in urging the court to allow the appeal. The 1st, 2nd and 3rd Respondents respectively, also adopted and relied on their respective Briefs of Argument as hereinbefore identified in urging that the appeal be dismissed and the judgment of the Tribunal upheld by this Court.

In his Brief of Argument, the Appellant formulated a lone issue for the determination of the appeal from the ten grounds of appeal. The issue reads thus:-