Hon. Otelemaba D. Amachree V. Boma Goodhead & Ors (2008)

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

On 28th April 2007 the 3rd respondent, the Independent National Electoral commission (INEC) conducted elections into the Rivers State House of Assembly. The Appellant and the 1st Respondent herein were among the candidates who contested the election as representatives of constituency 1 in Asari Toru Local Government Area of the state. The Appellant contested on the platform of the 2nd respondent, the Peoples Democratic Party (PDP), while the 1st respondent contested on the platform of the Action Congress (AC). At the conclusion of the election, the 3rd respondent returned the Appellant as duly elected having scored the highest number of votes cast. The 1st respondent was dissatisfied with the result declared by the 3rd respondent and filed a petition before the Governorship and Legislative House Elections Tribunal holden at Port Harcourt, Rivers State. The grounds of the petition as stated at page 5 of the record are:

i. That the 1st respondent was not duly elected by majority of lawful votes cast at the election.

ii. The total voting strength of Asari Toru Constituency 1 is 48,308 out of which petitioner scored 37,566.

The 1st respondent (as petitioner) sought the following relief from the lower Tribunal:

“Wherefore your petitioner prays that it may be determined that the said 1st respondent was not duly returned and that the said Boma Goodhead (Petitioner) was elected and ought to have been returned”.

The petition was accompanied by witness depositions on oath and duly served on all the parties. The 1st and 3rd – 12th respondents filed their respective replies thereto. The petitioner filed replies in response to the 1st and 3rd – 12th respondents’ replies, accompanied by her written statement on oath. The 2nd respondent entered appearance to the petition but filed no pleadings and did not participate in the hearing at the conclusion of the pre-hearing session the lower Tribunal issued a report on 15/11/07 setting down five issues for determination of the petition.

The issues are set out in the judgment at pages 418- 419 of the record thus:

1. Whether the Petitioner scored the majority of the lawful votes cast at the election for Rivers State House of Assembly Constituency 1 in Asari – Toru Local Government Area of Rivers State held on 28th April 2007 and ought to have been returned as duly elected instead of the 1st Respondent herein.
2. Whether the 3rd – 12th respondents’ office at Asari – Toru Local Government Area was vandalized by militants/thugs who carted away the Electoral materials from where they were kept.
3. Whether the petitioner was in unlawful possession of the purported electoral materials used in the conduct of the election of 28th day of April 2007 in Asari – Toru Local Government Area.
4. Whether the Chairman of Asari – Toru Local Government Area, the Nigerian Police and the Nigerian Army rigged the election of the 28th day of April 2007 in Asari – Toru Local Government Area in favour of the 1st respondent and ought to be joined as a necessary party. And
5. Whether Political party agents are election officials for the 3rd respondent (INEC) to be involved in the distribution of election materials under its custody (INEC) on the Election Day.

At the hearing the petitioner (1st respondent herein) called witnesses and tendered documentary evidence. The 1st respondent (appellant herein) also called witnesses. The 3rd – 12th respondents did not lead evidence in support of their pleading. At the conclusion of the hearing and after considering the written addresses of the parties the lower Tribunal in a considered judgment delivered on 1st February 2008 nullified the election, set aside the declaration and return of the Appellant and ordered the 3rd – 12th respondents to conduct a fresh election into the Rivers State House of Assembly Asari – Toru Local Government Area Constituency 1 within ninety days.

The appellant was dissatisfied with the decision and filed a notice of appeal on 15th February 2008 containing nine grounds of appeal.

The 1st respondent was dissatisfied with the part of the judgment wherein the lower Tribunal held that she failed to prove that she won the election. She also filed a notice of appeal on 19th February 2008 containing ten grounds of appeal. On 29/10/08, having regard to the notice of appeal filed by the appellant, which was first in time, this court granted leave to the 1st respondent to amend her notice of appear to read “Notice of cross-Appeal” and to make consequential amendments to the description of the parties accordingly.

All the parties, except the 2nd respondent, filed and exchanged briefs of argument in respect of the appeal and the cross-appeal. At the hearing of the appeal on 18/11/08, S.R. Dapaa – Aodo Esq. Leading H.C. Oputa Esq. and E.O. Kalu Esq. adopted the appellant’s brief dated and filed on 13/3/08. He also adopted his replies to the 1st and 3rd – 12th respondents’ briefs both said to have been filed on 20/3/08. He urged us to allow the appeal and dismiss the cross-appeal.

Mr. I.S. Dokubo, leading P. Karibi-Briggs, adopted the 1st respondent’s brief, which was deemed filed on 29/10/08. It incorporates the 1st respondent’s reply to the appellant’s brief and her cross-appellant’s brief. He also adopted the cross-appellant’s brief of argument in response to the 3rd – 12th respondents’ brief filed on 16/10/03 and the cross-appellant’s reply brief to the 1st respondent’s brief filed on 27/3/08. He urged us to dismiss the appeal and allow the cross appeal.

Mr. O. Osaze – Uzzi, learned counsel for the 3rd – 12th respondents, adopted the 3rd – 12th respondents’ brief, which was deemed, filed on 9/10/08. Arguments in response to the main appeal are incorporated with arguments in response to the cross appeal. He urged the court to allow the appeal and dismiss the cross appeal. He urged us to discountenance the document titled “cross-appellant’s brief of argument in response to the 3rd – 12th respondents’ brief” on the ground that the document is unknown to the Rules of this Court. He referred to Order 17 of the Court of Appeal Rules 2007. He submitted that in the event that it is deemed a proper reply brief it was filed out of time without leave.