Mrs. Bene Ukwueze V. Sir Ugwueze Erochukwu M. & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDULKADIR, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment delivered on 28/10/2011 by the National and State Houses of Assembly Election Tribunal, Enugu State (hereafter simply referred to as “the Tribunal”) dismissing Petition No. EPT/EN/HA/11/2011: and confirming the election and return, of the 1st Respondent as the duly elected member of the Enugu State House of Assembly for Igboeze South Constituency of Enugu State.

The facts of the matter briefly stated are the Appellant as Petitioner instituted Petition No. EPT/EN/HA/11/2011 (hereafter simply referred to as “the Petition”) on 17/5/2011 before the Tribunal challenging the declaration and return of the 1st Respondent by the 3rd Respondent as the winner of the Enugu State House of Assembly election for the Igboeze South Constituency of Enugu State, held on 26/4/2011. The Appellant contested the questioned election on the platform of the Labour Party (hereafter simply referred to as “LP”); while the 1st Respondent was sponsored for and contested the same election on the platform of the 2nd Respondent. The grounds upon which the Appellant questioned the election and return of the 1st Respondent and/or predicated the Petition as set out in the Petition are as follows: –

(i) The 1st respondent who had been declared winner in the election was not qualified to contest the election because he did not possess the certificate he made out that he possessed i.e. the WAEC (GCE).

(ii) That in the PDP declaration of interest and other forms he had filed he had filled in “UGWUEZE EROCHUKWU MATHEW” as his name, the Senior School Certificate Examination result for Nov/Dec. 1998 he had submitted to the party, INEC and other bodies bore “UGWUEJE MATHEW” as his name, at the trial the said Senior School Certificate will be relied on, also to be relied on are the forms filled by the 1st Respondent and submitted to Peoples Democratic Party (PDP), i.e. Form PD00215N2010, the same form was submitted to the INEC, at the trial the 4th respondent is given notice to produce the original.

(iii) That again in the First School Leaving Certificate of the 1st respondent, he had his name as ITODO MATHEW E., at the trial a copy thereof shall be founded on.

(iv) That in an affidavit he deposed at the High Court of Abia State, Aba Judicial Division dated 23/1/09, the 1st respondent had averred and stated at paragraph 1 thus “That I enrolled and sat for the November/December 1998 Senior School Certificate Examination”, 2 “That my number was 04718295 and I was issued with the SSCE notification of result slip on 7th day of September, 1999”, at the trial a certified true copy thereof shall be founded upon.

(v) That the petitioner’s discreet search at the office of the WEST AFRICAN EXAMINATIONS COUNCIL had however revealed that the original SSCE NO. 04718295 was in the name of one “EJEH OLUCHI LILLIAN” and not in the 1st respondent’s name – a copy of the said certificate generated from the WAEC website shall be founded upon, the WAEC shall also be subpoenaed to produce the original certificate in court since a copy thereof shall be founded upon.

(vi) The 1st respondent had deposed in paragraph 3 of his affidavit supra deposed to at the Abia State High Court Aba that he had entered the following subjects in the Exam i.e. to say: – “English Language, Igbo Language, Literature in English, Christian Religious Knowledge, Government, Economics, Mathematics, Biology, Commerce” these same subjects appear in the aforesaid result generated from WAEC Website.”

Having made averments she considered to be relevant in support of the above mentioned grounds, (and amongst the averments being to the effect that the 1st Respondent lied on oath; and that the certificate he presented to INEC was a forgery), the Appellant prayed the Tribunal for the following in paragraph 9 of the Petition: –

(1) A declaration of the Honourable Tribunal that the 1st respondent was not qualified to contest the election.

(2) A declaration of court that the 1st respondent who was returned as winner of the election was not validly elected since he did not secure majority of the valid votes cast at the election.

(3) A declaration that the petitioner had won the election having secured majority of the valid votes cast in the election and that she is entitled to the certificate of return in the election and to all the perquisites of that position i.e. member representing Igboeze South Constituency, Enugu State at the Enugu State House of Assembly.”

The 1st Respondents and the others Respondents filed their respective replies to the Petition. During the pre-hearing stage of the Petition, the Tribunal on 7/7/2011 struck out the Appellant’s prayer that she be declared as having secured the majority of lawful votes, as the prayer was not supported by her pleading. The Appellant called two witnesses in the proof of the case set up in the Petition; while the 1st Respondent testified in his own behalf and called no other witness in the proof of the case set up in his reply.