Mr. Afam Ogene V. Hon. Chukwuka (Chuchu) Onyema & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment)

The appeal herein and the cross appeal are against the judgment of the National and State Houses of Assembly Election Petition Tribunal Anambra State, holden at Awka, delivered on 9th February, 2012, wherein the tribunal nullified the return of 1st Respondent as the member representing Ogbaru Federal Constituency.

The facts of the case can be compressed as follows: The Appellant and the 1st Respondent were amongst the candidates that contested the Federal House of Representatives election for Ogbaru Federal Constituency, Anambra State, held on 9th April, 2011 with a re-return in Ogwuikpele Ward held on 6th May, 2011. Upon the conclusion of the said election, the Appellant was declared and returned as the winner with 10,153 votes. Dissatisfied with the declaration and the return of the Appellant, the 1st Respondent challenged same vide a petition date d 24th May, 2011 and filed the same day.

The case of the petitioner was that there was no justifiable reason for the cancellation of the result in Ogwuikpele Ward. It was the petitioner’s case that he scored 1854 votes to the 1st Respondents 121 votes in Ogwuikpele Ward and that when this score is added to the total score in the constituency, that is 8048 votes for the petitioners and 9757 for the Appellant, the petitioner would have emerged the winner with 9905 votes as against 9878 votes for the Appellant. The Respondents on their part contended that the petitioner was not a candidate for Peoples Democratic Party but that of Action Congress of Nigeria and that the election in Ogwuikpele Ward was marred by violence, hence inconclusive which necessitated the cancellation of the election in Ogwuikpele Ward.

The petitioner prayed for the following reliefs in paragraph 12 of the petition as contained on page 5 of the record, namely:

“(A) A declaration of the Honourable Tribunal that the 1st respondent who was declared winner of the election to the Ogbaru Federal Constituency did not win the same with a majority of the lawful or valid votes cast in the election.

(B) A declaration of court that the 5th respondent had no cogent or verifiable reasons for failing to announce the result of the election of 9/4/2011 and to declare the petitioner winner based on the results already declared by the presiding officers in the polling units all over the Ogbaru Federal Constituency after the said election of 9/4/2011 which the petitioner won with 9905 votes to the 1st respondent’s 9878 votes.

(C) A further order of court compelling the INEC to issue a certificate of return to the petitioner forthwith as having won the election held on 9/4/2011.

(D) A declaration of court that any other election conducted by the INEC on any other day than 9/4/2011 in the Ogwuikpele Ward or the entire Ogbaru Federal Constituency was null and void and of no effect.”

In the course of pre-hearing session, the petition was struck out on 11th July, 2011. An appeal challenging the striking out of the petition was filed vide a notice of appeal dated 13th July, 2011. See pages 263 to 266 of the record. On 9th September, 2011 an order was made by this court, remitting the petition for adjudication by another panel. See pages 267 to 268 of the record. In the course of hearing, the 3rd to 5th Respondents challenged the jurisdiction of the tribunal based on effluxion of time, as provided in section 285(6) of the 1999 Constitution (as amended) to the effect that 180 days expired on 28th November, 2011.

The tribunal in a ruling delivered on 30th November, 2011 dismissed the application and proceeded with the case. See pages 483 to 489 and the supplementary record. Upon the conclusion of proceedings, the tribunal in its judgment delivered on 9th February, 2012 nullified the declaration and return of the 1st Respondent now Appellant and declared the Petitioner now 1st Respondent as the winner of the election. See pages 680 to 721 of the record.

Distressed by the aforementioned decision, the 1st Respondent now Appellant challenged same via two Notices of Appeal. The first notice of appeal was dated and filed on 10th February, 2012 while the second notice of appeal was dated 13th February, 2012 and filed on 15th February, 2012. See pages 722 to 742 of the record. The Appellant however, abandoned the initial notice of appeal filed on 10th February 2012, and relied on the one filed on 15th February, 2012. The notice of appeal filed on 10th February, 2012 having been abandoned is accordingly struck out. The notice of appeal relied upon is anchored upon twenty two grounds of appeal. The 3rd to 5th Respondents also challenged the decision of the tribunal by a notice of cross appeal dated and filed 20th February, 2012. The said notice of cross appeal is anchored upon eleven grounds of appeal. See pages 743 to 754 of the record.

In compliance with the Rules of Court and Election Tribunal and Court Practice Direction 2011, briefs of argument were filed and exchanged. The 1st Respondent filed a notice of preliminary objection against the appeal and the Cross Appeal. The two notices of preliminary objection were both dated 16th March, 2012 and filed the same day. The Appellants brief in respect of the appeal is dated 1st March, 2012 and filed on the 2nd March, 2012. The Appellant also filed a reply brief to 1st Respondents brief which is dated 13th March, 2012 and filed on 14th March, 2012. The 1st Respondents brief is dated 9th March, 2012 and filed the same day. The 2nd Respondents brief dated 7th March, 2012 was filed on 8th March, 2012.

The 3rd to 5th Respondents brief of argument dated 9th March, 2012 was filed the same day. As for the Cross Appeal, the Cross Appellants brief dated 2nd March, 2012 was filed the same day. The Cross Appellant also filed a Reply brief dated 14th March, 2012 and filed the same day. The 1st Cross Respondent’s brief dated 9th March, 2012 was filed the same day. The 2nd Cross Respondent’s brief dated 9th March, 2012 was filed the same day.