Mr. Ugochukwu Agballah V. Mr. Sullivan Iheanacho Chime & Ors. (2008)

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IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

The instant appeal is against the judgment of the Governorship and Legislative Houses Election Tribunal holden at Enugu, in Enugu State, which was delivered on 18/01/2008. The Appellants petition (NAGL/EPT/EN/GOV/37/2007) was- dismissed by the lower tribunal in consequence of the judgment in question.

Its common knowledge that gubernatorial elections were conducted on 14/4/07 in 13 out of the 17 Local Government Areas in Enugu State. Likewise, the gubernatorial elections in to the remaining 4 Local Government Areas of Enugu State (i.e. Enugu South, Udi, Nsuka and Isi-Uzo Local Government Areas) were later held on 28/4/07.

Both the Appellant and the 1st Respondent had contested the said elections on the platforms of their political parties, the Accord (A)and peoples Democratic Party, (PDP)respectively. Apart from the Appellant – and the 1st Respondent, fifteen (15) other candidates had equally contested the said elections under their respective parties’ platforms.

At the conclusion of the elections in question, the 1st Respondent was accredited with a total of 811,798 votes and thus declared and returned as the winner thereof, On the other hand, the Appellant was credited with a total of 15,287 votes.

Not unnaturally, the Appellant was dissatisfied with the result of the elections. He accordingly filed a petition (No NAGL/EPT/EN/GOV/37/2007) in the lower tribunal on 25/5/07, praying for the following relief:

32) … that it may be determined and declared that the sold 1st Respondent Mr. Sullivan Iheanacho Chime was not validly elected or returned having not polled the highest number of lawful votes cast at the Gubernatorial elections of April, 14th 2007 and that the petitioner Mr. Ugochukwu Agballah be declared validly elected or returned, having polled the highest number of lawful votes cast at the gubernatorial election of April, 14th 2007 and having obtained one-quarter of the votes cast at the election In each of at least two thirds of the Local Governments of Enugu State.

The 1st Respondent, as well as the 2nd – 3238th Respondents filed their replies to the petition on 28/6/07 and 26/6/07, respectively. At the conclusion of the pre-hearing conference, hearing in the petition commenced on 19/9/07. The Appellant and one other person (SOLOMON ACHIKANU) gave evidence in proof of the petition as PW1 and PW2.A total of 2558 carbon copies of the polling booths results (Forms EC8A) allegedly used for the April 14, 2007 Governorship elections for Enugu State, were also tendered and admitted at the Appellants Instance as exhibits P1 – P2558, respectively.

On his own part, the 1st Respondent called only one witness in the person of Dr. (Mrs.) Anthonia Chiebonam Ekwo the Logistic officer, INEC Enugu State who testified as RW1. The 2nd – 32 – 38th Respondents, on the other hand, called a total of seventeen (17) witnesses as RW2- RW18, respectively. At the conclusion of the trial, the lower tribunal in a unanimous judgment, delivered on 18/01/08, held inter alia, thus:

We agree with Dr. Ibik, SAN at page 41 of his final address that the burden of proof is on the petitioner. Since the petitioner has failed to prove his petition, it is not even necessary to consider the Respondents case. The petitioner has to succeed on the strength of his own case and not on the weakness of the defence. See AWUSE VS ODILI (2005) ALL FWLR (Pt.261) 248 at 313.

Finally, it is quite obvious that with the resolution of all the two issues for determination against the petitioner, this petition is bound to collapse. Accordingly, this petition fails and it is hereby dismissed. Costs of N20,000.00 is awarded to each sets of Respondents.

Being dissatisfied with the judgment of the lower tribunal inquestion, the Appellant filed this appeal on 24/01/08 in the lower tribunal. The Notice of Appeal was predicated on a total of sixteen (16) Grounds of Appeal, thereby praying the court for the following reliefs:

AN ORDER of this Honourable Court allowing this appeal, setting aside the judgment of the Election Tribunal dated 18th day of January, 2008 dismissing the petitioners petition and substitute the Tribunal’s Judgment with an order declaring the petitioner as duly elected having obtained the highest number of valid votes cast at the election of April 14, 2007 and satisfied the requirements of the Constitution.

Its rather instructive, that all the parties in this appeal have filed and served their respective briefs of argument. The Appellants brief, in particular, was filed on 28/02/08, The 1st Respondents’ brief, on the other hand, was filed on 06/3/08, The 2nd – 3238th Respondents’ brief was equally filed on 06/3/08, A total of thirteen (13) issues have been formulated in the Appellants brief for the determination of the appeal, to wit: