Igbokwe Patrick Ike & Anor V. Independent National Electoral Commission (Inec) & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, J.C.A (Delivering the Leading Judgment)

The first appellant herein, was a petitioner at the National Assembly Governorship and Legislative Houses Election Tribunal, Abakaliki, Ebonyi State (The Tribunal for short), wherein he petitioned against the respondents herein. He contested the election into the State House of Assembly membership in Ishielu South Constituency on the platform of his party, the Action Congress, which is the second petitioner now second appellant. The first respondent, INEC, was the statutory body that conducted the said election which was held on 14th April 2007 while the 2nd and 3rd respondents were its official who assisted it in the conduct of the said election.

The 4th respondent herein was one of the candidates who also contested the said election in the same constituency with the 1st petitioner/appellant, but he contested the said election on the sponsorship of his party, the Peoples Democratic Party (PDP) who is also the 5th respondent herein. The fourth respondent was the candidate who was returned and declared winner of the said election by the 1st respondent, INEC at the end of the election. It is that return and declaration by the 1st respondent that vexed the two petitioners/appellants which led to their filing the petition before the tribunal.

At the tribunal, the two petitioners (now appellants) challenged the election of the 4th respondent alleging that there were corrupt practices, malpractices, irregularities in the conduct of the election and noncompliance with the provisions of Electoral Act 2006. During the trial the petitioners called seven witnesses to prove their case and tendered some exhibits. The 4th respondent testified in defence of his election and tendered the result of the election as Exhibit 17 and called two other witnesses. At the end of the proceedings, the tribunal dismissed the petition in its judgment delivered on 17th of September 2007 on the grounds that the petitioners failed to adduce sufficient evidence in proof of their petition and also for their inability to make a prima facie case at the trial.

Aggrieved by the dismissal of their petition, the two petitioners appealed to this court and thus filed a Notice of Appeal dated 5th October 2007 but later regularized it with leave of this court granted on 29th June 2009. Sequel to that and in keeping with the practice applicable in this court, parties filed and exchanged their respective briefs of Argument. The appellants filed their joint Brief of Argument dated 30/4/2008. They also in response to a Notice of Preliminary Objection raised in the 1st to 3rd respondents’ Brief of Argument and also in the 4th Respondent’s Brief of Argument, filed Appellants’ Reply Brief of Argument on 28/5/2010 dated 25th May 2010. In the Appellants’ Brief of Argument two issues were proposed for the determination of the appeal which are thus:

(a) Was the tribunal below right in deciding the petition as if the respondents made a no case submission when in fact no such submission was made and without considering the respondents case?

(b) Was the tribunal right when it did not disbelieve the petitioner and his witnesses on the allegation that INEC in collaboration with the 4th respondent and PDP members thumb-printed ballot papers purporting that voters did the thumb-printing.

The 1st to 3rd respondents’ Joint Brief of Argument dated 3/7/2009 was filed on 29/1/09 but deemed properly filed and served on 22/4/2010 and therein, two issues were also formulated for the determination of the appeal which read as below :-

(1) Whether the Petitioners did not make out prima facie case at the trial.

(2) Whether the Petitioners did not adduce enough evidence to substantially prove the alleged malpractice and non-compliance with the Electoral Act, 2006 to warrant dismissal of the petition.

The fourth respondent in his Brief of Argument dated and filed on 3/7/2009 but deemed filed on 29/7/09 only one issue was raised for the determination of the appeal which lone issue reads –

“Whether the lower tribunal was justified on the evidence and pleadings placed before it to dismiss the Petitioners’ case as unproven”

The fifth Respondent in its two paged Brief of Argument dated and filed on 6/7/2009 simply adopted the issue for determination formulated in the Brief of the 4th Respondent.

As highlighted above, the 1st to 3rd Respondents and 4th Respondent filed Notice of Preliminary Objection and raised and argued them in their respective Briefs of Argument. The Preliminary Objections will be considered first before considering the main appeal in compliance with the procedure approved by this court and the apex court too that preliminary points raised should be resolved first before treating the main appeal. I shall start with the Preliminary Objection raised in the 4th Respondent’s brief as it was adopted and argued first when the appeal was heard by us on the 7th day of June 2010 before the one filed by the 1st to 3rd Respondents’ counsel.