Independent National Electoral Commission & Ors. V. James Iniama & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

OWOADE, J.C.A.

This is an appeal against the ruling of the Election Petition Tribunal, Akwa Ibom State, sitting at Uyo, presided over by Hon. Justice Nasir Ajanah, delivered on 16th July 2007.

By a motion on notice dated 25th June, 2007 and filed on 27th June, 2007. Learned counsel to the 2nd – 34th respondents (now appellants) sought sundry reliefs from the lower Tribunal including:

“(a) ………………

(b) ……………….

(c) An order striking out the petition in its entirety for being irregular and incompetent.”

The ground upon which the appellants rely for striking out the petition for in competency was that the petitioners failed to comply with the mandatory provisions of paragraphs 1(1)(c) and 2 of the Practice Directions 2007 as amended.

In pursuing his line of objection before the lower court, the Learned counsel to the respondent (now appellants) referred to paragraph 7 (xviii) of the petition where the petitioners pleaded unstamped voters card and register of voters for all the Local Government and said the documents were not listed in the list of exhibits (documents). Learned counsel for the appellants argued before the lower court, that the non-listing of documents pleaded in paragraph 7(xviii) of the petition has robbed the tribunal of jurisdiction to hear the petition as a condition precedent had not been fulfilled.

The lower tribunal dismissed this ground of objection by the appellants’ counsel and held starting from page 211 of the record that:

“Learned counsel had also in the alternative submitted that even if we accept that the said exhibit are lists of documents required to accompany the petition, that the petitioners have failed to list all the documents they are relying on as referred to in their petition. We are again unable to agree with the counsel on this issue. The practice direction particularly paragraph 1(1) (c) thereof has not only enjoined that a petition be accompanied with copies or list of documents that he intends to rely on at the hearing, paragraph 1(1)(b) has also enjoined that a petition shall be accompanied by written statements on oath of the witnesses and paragraph 4(1) and (3) has precluded a witness during his evidence-in-chief from being examined orally except, he is led to adopt his written deposition. In other words, the evidence to be proffered in court is as contained in the deposition. Therefore, we are of the opinion that it is from these depositions that counsel can point out to any document referred to therein, which is not displayed on the list as containing the provisions of the practice direction.”

The lower Tribunal continued:

“A party is not bound to lead evidence on every aspect of his petition and where there is any averment in the petition that is not referred to in the evidence or deposition that averment is deemed abandoned”.

And concluded:

“It is therefore, our opinion that the only way, in the circumstances of this case, that the court can draw an inference on what documents are to be relied on by the petitioner is from the deposition accompanying the petition as that is the evidence that they are allowed to proffer before the Tribunal. The reference to document pleaded in paragraph 7 (xviii) of the petition and not listed in the list accompanying the petition is therefore not fatal to the petition. We are also inclined to agree with the counsel to the petitioners that election petition must be handled with some measure of elasticity ”