Hon. Ode Frank Igbe & Anor. V. Dr. Joseph Adoga Ona & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA, J.C.A: (Delivering the Leading Judgment)

This is an appeal against the decision of the National/State House of Assembly Election petition Tribunal (herein referred to as the tribunal) sitting at Makurdi, delivered on 19/03/2012 in Petition No: NSHA/BN/HA/45/2011. The petition was dismissed.

The brief facts leading to this appeal is that, the appellants (as the petitioners before the tribunal) filed a joint petition against the respondents on 30/09/2011, challenging the declaration and return of the 1st respondent as the duly elected member representing Oju I state constituency in Benue state House of Assembly in the election conducted by the 3rd and 4th respondents on 10/09/2011. The 1st respondent was sponsored in the said election by the 2nd respondent (Action Congress of Nigeria ‘CAN’), while the 1st appellant was sponsored by the 2nd appellant (Peoples Democratic Party ‘PDP’).

The appellants challenged the declaration and return of the 1st respondent on the following grounds:-

i. Failure by the first respondent to properly disengage from Benue State University, being a public service of State of the Federation of Nigeria.

ii. Dual Membership by first respondent to two political parties, to wit People’s Democratic Party (PDP) and Action Congress of Nigeria (ACN), at the same time, being the time of the election.

iii. That the first respondent was not duly elected by majority of lawful votes cast at the election, which was won by the 1st petitioner by majority of lawful votes.

iv. That the election in the designated polling units within the constituency under challenge was invalidated by reasons of non-compliance with mandatory provisions of Electoral Act, 2010 (as amended), Manual for Electoral Officials and violation of the provisions of the Constitution of Nigeria, 1999 (as amended).

On the receipt of the petition the respondents filed their respective replies to the petition as shown on pages 136 – 208 and 223 – 235 of the records while the appellants filed replies to the replies of the 1st and 2nd respondents as per pages 256 – 281 of the record shown.

With the leave of the Tribunal, the appellants amended their petition and the petition, thereafter, went into trial after pre-trial conference hearings. At the trial the appellants called a total number of 11 witnesses and tendered Exhibits B – AA, while the 1st respondent called 5 witnesses and tendered Exhibits R1-R9. The 2nd respondent did not call any witness to give evidence on its behalf and tendered no document as Exhibit. The 3rd and 4th respondents also called no witness but tendered Exhibits R10-R13 from the bar as their attempt to call witnesses on their behalf aborted.

After hearing the respective Counsels’ addresses’ the tribunal delivered its decision on the said 19/03/2012 in which it dismissed the petition of the appellants as shown on pages 667-702 of the record.

It is against the decision of the tribunal that the appellants appealed to this court through their notice of appeal filed on 04/04/2012 containing 12 grounds of appeal, seeking the relief contained in paragraph 4 there of the notice of appeal.

In accordance with the rules of this court both parties filed their respective briefs. The appellant filed their appellants’ brief of argument on 25/04/2012. On receipt of the 1st respondent’s briefs, the appellants filed their reply to the 1st respondents brief on 08/05/2012.The 1st respondent’s brief with the leave of this Court filed his brief on 04/05/2012 which was deemed as properly filed and served with effect from 14/05/2012. The 2nd respondents filed their brief on 14/05/2012 which was deemed filed with effect from 14/05/2012. The 3rd and 4th respondents’ on their part filed their brief of argument on 2nd may 2012.

It should be noted that the 2nd respondent filed a Notice of Preliminary Objection on 10/05/2012 but filed his argument on 14/05/2012. Being not in accordance with the Rules of this Court the Preliminary Objection was dismissed.