Ifeanyi Peterkin Okereke & Anor V. Hon. Matthew Ibe & Ors. (2008)

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

On the 14th day of April, 2007 the 2nd respondent, Independent National Electoral commission (INEC) conducted elections into the Abia State House of Assembly. The 1st appellant and 1st and respondent, along with other candidates contested the election as representatives of the Umunneochi State constituency. The 1st appellant contested the election on the platform of the 2nd appellant, the Peoples Democratic Party (PDP), while the 1st respondent was the candidate of the Peoples Progressive Alliance (PPA). At the conclusion of the election, the 2nd – 5th respondents returned the 1st respondent as duly elected having scored the highest number of lawful votes cast.

The appellants challenged the declaration and return of the 1st respondent at the Governorship and Legislative Houses Election Tribunal holden at Umuahia, Abia State by a petition dated and filed on 14th May 2007. They sought the following reliefs:

a. That the election in Lokpanta, Lokpaukwu, Leru/Lekwesi, Cattle Market, Eziama Ugwu and part of Eziama Agbo Wards (units 001 and 003) was invalid by reason of corrupt practices and or non-compliance with the provisions of the Electoral Act.

b. That the said Hon. Matthew Ibe (1st respondent) was not duly elected or returned; and that the petitioner herein was duly elected and ought to have been returned having scored a majority of the lawful votes cast at the election.

c. In the alternative that the election in Umunneochi State constituency be nullified and a bye election conducted by the 2nd respondent. (See page 9 of the record).

At the conclusion of the hearing and after considering the evidence and the addresses of learned counsel for the respective parties, the lower Tribunal delivered its judgment on 15th February, 2008 wherein it dismissed the petition and affirmed the declaration and return of the 1st respondent. (See pages 1048 – 1066 of the record). The appellants were dissatisfied with the decision and filed a notice of appeal containing six grounds of appeal.

The parties, in compliance with the rules of this Court duly filed and exchanged their respective briefs of argument. The appellants’ brief is dated 5/5/08 and filed on 7/5/08. The 1st respondent filed a notice of preliminary objection dated 23/5/08 and filed on 2/6/08. Arguments in respect of the preliminary objection were incorporated in the 1st respondent’s brief dated 23/5/08 and filed on 26/5/08. The 2nd – 153rd respondents, brief is dated 16/5/08 and filed on 19/5/08. The appellants’ reply brief to the 1st respondent’s brief is dated 4/6/08 and filed on 5/6/08.

Their reply to the 2nd – 153rd respondents’ brief is dated 23/5/08 and filed on 26/5/08.

We heard this appeal on 28/10/08. Learned counsel for the 1st respondent, A.O. Ugwa, Esq. applied to withdraw the notice of preliminary objection filed on 3/10/08. He also applied to withdraw the arguments canvassed in respect thereof in paragraphs 3.04 and 4.01 – 4.04 at pages 5 – 6 of the 1st respondent’s brief. Learned counsel for the 2nd – 153rd respondents, Chief E.E. Uwakwe, also applied to withdraw the arguments contained in paragraph 1 (h) at page 2 and paragraph 5 (c), (f), (g), and (h) at pages 11 – 12 of his brief.

The 1st respondent’s preliminary objection and the above mentioned paragraphs in the 1st respondent’s and 2nd – 153rd respondents’ briefs of argument were accordingly struck out. Consequently, learned counsel for the appellants, Nwabu M. Nwosu Esq., applied to withdraw paragraphs 2.1 to 2.1.12 at pages 1 – 4 of the reply to the 1st respondent’s brief and paragraphs 2.22 and 2.23 at page 7 of the 2nd – 153rd respondents’ brief. The said paragraphs of the reply briefs were equally struck out. Thereafter learned counsel for the appellants adopted his brief and the reply briefs to the 1st respondent’s and 2nd – 153rd respondents’ briefs. He applied that Ground 1 of the notice of appeal be struck out as no issue was formulated from it. He urged us to allow the appeal. Learned counsel for the 1st and 2nd – 153rd respondents adopted their respective briefs and urged us to dismiss the appeal.

In the appellants’ brief, the following two issues were formulated for the determination of this appeal:

1. Whether the Tribunal was right in not evaluating or properly evaluating the documentary evidence before it, which would have given impetus to its collation of the result of the election and which collation would have clearly shown that the Appellants’ won majority and whether this failure did not occasion a miscarriage of justice? (Grounds 2, 4 & 6).
2. Assuming Issue No. 1 is not resolved in favour of the Appellants, whether in all the circumstances of the proceedings before the trial Tribunal, the Appellants constitutional right to fair hearing was not breached which occasioned a miscarriage of justice? (Grounds 3 & 5).

The 1st respondent formulated the following two issues for determination:

1. Whether the Tribunal was right when it refused to embark on the computation or collation of results? (Grounds 2, 4 & 6).
2. Whether from the circumstances of the case the Appellants’ constitutional right to fair hearing was breached? (Ground 5)

The 2nd – 153rd respondents adopted the issues formulated by the Appellants. Upon close examination of the issues formulated by the Appellants and the 1st respondent, it is clear that they are substantially the same. The issues formulated by the 1st respondent are however more concise. The appeal shall be determined on the issues as formulated by the 1st respondent. The first issue is modified slightly to read: