Ishaya Ikpiri Achangat V. Rev. Mathias Akubawok Kutai & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ZAINAB A. BULKACHUWA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Election Petition Tribunal constituted to handle the petition that emanated from the Re-run Election of Rukuba/Irigwe Constituency into the Plateau State House of Assembly which took place on the 26th day of July, 2008 following the judgment of this Court nullifying the election and return of the 1st respondent in the election that was held on the 14th day of April, 2007.

Before the lower tribunal the 1st and 2nd respondents, as petitioners therein, filed a petition challenging the return of the appellant (Ishaya Ikpiri Achangat) as the duly elected member into the Plateau State House of Assembly from Rukuba/Irigwe Constituency on the grounds that the appellant was not qualified to contest the election, having not been educated up to at least the school certificate level or its equivalent and that the appellant presented a forged Primary School Leaving Certificate to the Independent National Electoral Commission (INEC).

The matter went to trial and in a considered judgment of the lower tribunal delivered on the 12/2/2009 the election of the appellant was nullified on the grounds stated in the petition, and an order made that INEC conduct a fresh election within 90 days for the Rukuba/Irigwe Constituency into the Plateau State House of Assembly.

Being dissatisfied with the decision the appellant/1st respondent to the petition has now appealed to this court on ten grounds of appeal filed on the 4/3/2009.

The petitioners also filed a notice of cross appeal on the 5/3/2009 of three grounds challenging the order of the lower tribunal, refusing to declare and return the petitioners as duly elected. Parties, as is the practice in this court filed and exchanged their respective briefs of argument.

In the appellant’s brief these issues were identified;

(1) Whether in the light of the evidence before it, which evidence it refused or omitted to use, the lower tribunal was right to hold that the appellant was not qualified to contest the election into the Plateau State House of Assembly for the Rukuba/Irigwe Constituency?

(2) Whether the lower tribunal was right in coming to the conclusion that Exhibit 22 was forged on the balance of probability?

(3) Whether the lower tribunal was right in expunging Exhibit 24 from the record of proceedings for the reason that it was not specifically pleaded?

(4) Whether the lower tribunal was right in discountenancing Exhibit 25 for the reason that it contradicted Exhibit 23?

The 1st and 2nd respondents identified these issues in their brief of argument;

(1) Whether the decision/finding by the lower tribunal that the appellant was not qualified to contest the election into the Plateau State House of Assembly is correct?

(2) Whether the lower tribunal was right in finding that the burden of proof of whether the appellant attended ECWA Transferred School is one to be discharged on a balance of probabilities is correct?