Mr. Emmanuel Uchieze V. Chief Godson Ezenagu & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgement)

This judgment is in respect of a consolidated appeal against the judgment of the National Assembly Governorship/Legislative Houses Election Petition Tribunal Anambra State delivered on 8/6/08. The Tribunal allowed the petition in part and nullified the election in Awka South Local Government and the return of Mr. Emmanuel Uchieze as the duly elected candidate for the Awka North/South Federal Constituency at the election held on 21/4/07.

The Tribunal upheld the election in Awka North Local Government and set aside the election in Awka South with an order for new election to be held in Awka South Local Government. The Tribunal held that fresh elections be held between the same parties who contested the General Election. In Appeal No. CA/E/EPT/NA/63/08, the Appellant who was the 1st Respondent before the Tribunal has appealed against the decision of the Tribunal to nullify the election in Awka South Local Government and set aside his return.

In Appeal No. CA/E/EPT/NA/63A/08 the Appellant who was Petitioner before the Tribunal has appealed against that part of the decision of the Tribunal not to disqualify the 1st Respondent and that part of the Tribunal’s decision validating the election held in Awka North Local Government.

CA/E/EPT/NA/63/2008

Appellant’s brief was dated 28/8/08 and filed on 25/8/08. The 1st Respondent’s brief was undated but filed on 19/9/08 while the 2nd-74th Respondents’ brief was dated and filed on 27/10/08.

The Appellant’s counsel Dr. Onyechi Ikpeazu SAN, OON, identified three issues for determination as follows:

1. Whether the discrepancy between the date of the election in Form EC8C(iii) for Awka South Local Government Area and the date in Form EC8E(ii), the statement of Declaration of result in the Awka North/South Federal Constituency was sufficient to vitiate the election in Awka South Local Government. (GROUNDS I and II).
2. Assuming the wrong date on Form EC8C(ii), Exhibit RC328, amounted to an infraction, whether the 1st Respondent established that the said non-compliance substantially affected the result of the election in Awka North/South Federal Constituency. (GROUND III)
3. Whether on the evidence led by the parties the Tribunal was justified in holding that there was no collation and announcement of result in the INEC Office at Awka South Local Government. The 1st Respondent’s counsel Mr. O.J. Nnaji Esq. also identified three issues for determination as set out below:
4. Whether the 1st Respondent pleaded and gave evidence that there was no collation and announcement of result at the Constituency Collation Centre Awka South Local Government on 21/4/2007 and the said evidence of non-collation and announcement of result supported by exhibit RR328 tendered by the Appellant (Grounds 1 and II and VI of the Notice and Grounds of Appeal).
5. In the absence of any evidence to explain the contradiction in exhibit RR328 which is to the effect that the result of the election was collated and announced on 22/4/2007. Was the Tribunal not right in the judgment of the Tribunal that the infraction supported the evidence of the 1st Respondent’s witnesses of non-collation and announcement of result for Awka South Local Government/Constituency substantial to warrant the nullification of the election for Awka South Local Government Area as was done by the Tribunal (Ground III of the Notice and Grounds of Appeal).
6. Whether the order of the Tribunal for fresh election in Awka South Local Government Area occasioned a miscarriage of justice for the Appellant (Ground IV of the Notice and Grounds of Appeal).

The 2nd-74th Respondents’ brief dated and filed on 27/10/08. Counsel Chukwudi Charles Okaa Esq. distilled the following issue for determination:

“Whether from the state of the pleadings, evidence led, the appraisal of evidence led by witnesses and ascription of probative value, the Tribunal was justified in relying on a Local Government Area collation result Form EC8C(ii) wrongly dated to nullify the election held in Awka South Local Government Area.

There is no doubt that on reading the judgment of the Tribunal and the notice and grounds of appeal in respect of this appeal that the gravamen of this appeal and the main issue for determination is as follows:

“Whether the learned Tribunal was right in holding that the discrepancy between the date of the election in Exh. RR328 – Form EC8C(ii) and Form EC8E(ii) was sufficient to vitiate the election in Awka South Local Government.”

Learned senior counsel for the Appellant, Dr. Ikpeazu SAN argued that the 1st Respondent never pleaded that the results of the election were not collated at the Awka South Local Government INEC Headquarters. The Appellant argued that the case of the 1st Respondent at the lower court was that there was non collation at the 34 wards making up the two local governments because result sheets were deliberately not supplied. Counsel argued that the 1st Respondent never alleged that collation did not take place at the Local Government INEC Headquarters of the Awka South Local Government, being the other half of the Federal Constituency. This is significant and goes to the root of the decision of the Tribunal complained of by virtue of Ground I of the Grounds of Appeal.

Appellant’s counsel argued that besides the fact that the 1st Respondent did not plead that there was no collation or declaration of result at INEC office at Awka South Local Government Area, the Tribunal was duty bound to look at the totality of the evidence led in the matter and not to isolate minute segments of an election process which is a chain of events.

Learned senior counsel argued that the evidence of non collation at the Local Government collation centre being unpleaded goes to no issue. He cited OLOMOSOLA v. OLORIAWO (2002) 2 NWLR Pt. 750 Pg. 113 at 124; SOLANA v. OLUSANYA (1975) 6 SC. 55; MARADESA v. MILITARY GOV. OYO STATE (1986) 3 NWLR Pt. 27) 125; RANSOME-KUTI v. A.G. OF THE FEDERAL (1988) 2 NWLR Pt. 16 Pg. 211; NDUKWE v. ACHA (1998) 6 NWLR Pt. 552 Pg. 25; IFEADI v. ATEDZE (1988) 13 NWLR Pt. 581 Pg. 205; EKPECHI v. OWHONDA (1998) Pt. 543 Pf. 618; OLOGE v. UKEJE (1998) 12 NWLR Pt. 576 Pg. 23.