Hon. Godwin Udo King V. Independent National Electoral Commission (INEC) & Ors (2008)

LawGlobal-Hub Lead Judgment Report

OMOKRI, J.C.A.

This is an appeal from the decision of the Governorship and Legislative Houses Election Petition Tribunal sitting in Uyo, delivered in Petition No. EPT/AKS/05/07 on 26/10/07 wherein the petition of the appellant was dismissed.

This appeal emanated from the election conducted by the 1st respondent into the Akwa Ibom State House of Assembly for Ikot Abasi/Eastern Obolo State Constituency on 14/4/07. The appellant was the candidate of the Action Congress (AC) while the 8th respondent was the flag bearer of the Peoples Democratic Party (PDP), the 6th respondent. Sequel to some disturbances in Eastern Obolo Local Government Area, the election there was cancelled and rescheduled for 28/4/07. On the other hand the election in Ikot Abasi Local Government Area was successfully conducted but the result was withheld pending the conclusion of the bye-election for Eastern Obolo Local Government Area.

On the 28/4/07, the rescheduled election was successfully conducted and the 8th respondent, Hon. Dr. Charles Mbong was declared winner by the 1st respondent, having scored the highest number of votes cast thereat.

Dissatisfied with the result of the election, the appellant, filed petition No. EPT/AK/05/07 before the Tribunal sitting in Uyo. The grounds upon which the petition was brought are set out thus:

“1. Your petitioner was validly nominated to contest the election under the platform of the ACTION CONGRESS party into the Ikot Abasi/Eastern Obolo Constituency but was unlawfully excluded from the election.

2. The return of the 8th respondent by the 1st to 8th respondents was unlawful and not in compliance with the Electoral Act. The 8th respondent was entirely and validly returned nor elected in the election, the subject of this petition.
3. The election was not free and fair.
4. The election was marred by violence and was massively rigged.”

The reliefs sought by the appellant at the Tribunal are as follows:

“1. A declaration that the 8th respondent was not a candidate at the said election and that the 7th respondent was rendered incompetent by the Electoral Act, 2006.

2. An order that the eligible candidates for the 14th April, 2007 election or any election held into the State Assembly in the Ikot-Abasi/Eastern Obolo State Constituency are Hon. Godwin Udo King of the Action Congress Party (AC), Mr. Maxwell Nsifon of the All Progressive Grand Alliance, APGA, Mr. Ignatius Sylvester of the (NDP) and Mr. Edwin A. Nta of the Democratic Peoples Party (DPP) and no other.
3. An order voiding the declaration and return of the 8th respondent as winner of the Ikot Abasi/Eastern Obolo Constituency into the State House of Assembly in Akwa Ibom State.
4. An ORDER restraining the 1st to 5th respondents from recognizing the 8th respondent as winner of the Ikot Abasi/Eastern Obolo Constituency into the State House of Assembly Election in Akwa Ibom State.
5. An ORDER restraining the 1st to 5th respondents from recognizing the 8th respondent as duly elected and the 8th from parading himself as the duly elected candidate thereof during the pendency of this case.
6. An Order declaring the petitioner as duly elected and returned as member of Akwa Ibom State House of Assembly representing the Ikot Abasi/Eastern Obolo as an unopposed pursuant to 7th and 8th respondents’ incapacity.

OR ALTERNATIVELY

An ORDER those fresh Polls/Elections is held in the Ikot Abasi/Eastern Obolo Constituency of Akwa Ibom State.”

The 1st to 5th respondents filed a joint reply to the petition while the 6th-8th respondents also did the same.

At the hearing of the petition, the appellant, as petitioner, testified for himself and called 7 other witnesses. The 1st – 5th respondents called two witnesses. Eleven (11) witnesses, including the 8th respondent, testified for the 6th and 8th respondents’ case. Thereafter the parties filed and exchanged their written addresses at the end of the trial. The Tribunal in a considered judgment dismissed the petition. Unhappy with the judgment of the Tribunal, the appellant appealed to this court on 30/10/07 on 5 grounds subscribed in his notice and grounds of appeal. From the 5 grounds of appeal, the appellant formulated 9 issues for determination in his brief of argument dated 28/11/07 and filed on 21/12/07 and they are:

“1. Whether or not the evidence before the lower tribunal discloses that the petitioner was notified about the bye-election of Eastern Obolo Local Government Area on 28/4/2007.

2. Whether or not the results of the election were not substantially affected by the proven cases of irregularity or non-compliance with the Electoral Act, 2006.
3. Whether or not the non-announcement of the Ikot Abasi Local Government Area election results after collation until two weeks thereafter at Independent National Electoral Commission designated places is not a substantial non-compliance that affected the results of the election.
4. Whether or not the disallowance of the petitioner’s agent from signing and counter signing the results of the election was not a substantial non-compliance sufficient to nullify the results of the election.
5. Whether or not the respondents discharged the onus shifted to them by leading credible evidence in defence thereof on the balance of probabilities.
6. Whether or not the lower tribunal lacks the jurisdiction to entertain and adjudicate upon issues related to substitution of a candidate under the Electoral Act, 2006.
7. Whether or not, the order striking out the name of the 7th and 9th respondents who did not deem it fit to defend the action, in the judgment of the lower tribunal is not so done in error.
8. Whether or not proper probative values where attached to the testimonies of the witnesses in the course of the judgment.
9. Whether or not the refusal of the lower tribunal to admit the official Newspaper (viz the Pioneer Newspaper) or INEC in which the name of the 8th respondent was not inserted as a candidate on the platform (sic) of Peoples Democratic Party was not done in error.”

The 1st to the 5th respondents in their joint brief of argument dated and filed on 4/12/08 distilled 2 issues for determination and they are as follows: