Kenny Ekenechukwu Okolugbo V. Mercy Almona Isei & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of the Governorship/Legislative Houses Elections Petitions Tribunal, Asaba, Delta State in Petition No. EPT/DT/NASS/41/2007 delivered on 5th February, 2008. On the 21st April, 2007, the 2nd Respondent (INEC) conducted elections for the Ndokwa/Ukwuani Federal Constituency of the House of Representatives of the National Assembly of the Federal Republic of Nigeria. The appellant herein was the candidate of the Accord Party at the election while the 1st Respondent was the candidate of the Peoples’ Democratic Party (PDP). At the conclusion of the election, the then candidate of the PDP, one Mrs. Mercy Almona Isei was declared and returned by INEC as the duly elected Candidate.

The Appellant was not satisfied with result of the election and petitioned in Petition No. EPT/DTA/NASS/41/2007 dated and filed on 21st May, 2007. The petition was predicated on 3 grounds. They are:-

1. That at the time of the election the 1st Respondent was not qualified to contest the said election;
2. That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2006; and
3. That the 1st Respondent was not duly elected by majority of lawful votes cast at the election.

Upon these 3 grounds and the particulars therefore, the appellant as the petitioner at the Court below sought for the following reliefs namely: –

1. A declaration that the House of Representatives election into the Ndokwa/Ukwuani Federal Constituency did not own (sic) in majority or substantial unit in the aforementioned Federal Constituency;
2. A declaration that the 1st Respondent was not validly nominated and/or sponsor (sic) by Peoples Democratic Party;
3. An order nullifying the purported votes ascribed to the 1st Respondent;
4. An order nullifying or setting aside the certificate of return already issue (sic) to the 1st Respondent;
5. An order nullifying the entire election; and
6. An order on the 2nd – 6th Respondent (sic) to conduct fresh election for the Ndokwa/Ukwuani Federal Constituency.

Issues were duly joined with the Petitioner/Appellant in the replies of the respective Respondents to the Petition and the matter went to trial.

During the trial, the Petitioner/Appellant gave oral evidence as PW3 and 2 other witnesses gave oral evidence in support of his petition. A number of documents were also tendered and admitted in evidence including witnesses statements. Four witnesses gave oral evidence and tendered documents in support of the case of the 1st Respondent while DW5 gave evidence likewise in support of the case of the 2nd – 7th Respondents. Also, in the course of the trial respective learned Counsel were ordered to file and exchange written addresses. In due course addresses were filed and exchanged and judgment was reserved. In its judgment the lower Court held that the Petitioner/Appellant failed to establish any of the grounds of the petition and accordingly dismissed it for lacking in merit.

The Petitioner/Appellant was dissatisfied with the decision of the lower Court and appealed to this Court in a notice of appeal filed on 25th February, 2008. This appeal is predicated on 3 grounds with their particulars. They are as follows: –

GROUND ONE

The Honourable Tribunal erred in law when it held that “Exhibits showing the return of the 1st Respondent namely, Exhibit “6” and Exhibits 4 (A) to 4 (C) and 5 respectively upon which the return of the said 1st Respondent is based. The correctness and authenticity of the Exhibits have in no way been impugned”.

PARTICULARS OF ERROR

i. The correctness and authenticity of Exhibit 4A-4C, 5 and 6 were violently impugned.

ii. DW5 was SEBASTIN OBINOR. He is not only a party (7th Respondent) in this petition; he was also named as a witness in the 2nd – 7th Respondents reply in this suit.

iii. Consequently DW5 made a statement on oath.

iv. DW5 gave evidence that he made the statement on oath before the Commissioner for Oath (the secretary of the Election Tribunal) and he adopted same in the witness box.