Mrs. Charity Fubara & Anor. V. Independent National Electoral Commission & Anor (2009)

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SULEIMAN GALADIMA, J.C.A.

This is an appeal against the decision of the Governorship and Legislative Houses Election Petitions Tribunal which dismissed the Petition of the Petitioners challenging the return of the 2nd Respondent.

On 14/4/2007, Election took place throughout Nigeria. In Rivers State 1st Respondent conducted an election to the Rivers State House or Assembly for OGU/BOLO Local Government Area Constituency. The 1st Appellant contested in the said election as the candidate of the Democratic Peoples Party (DPP) (2 Appellant herein); while the 2nd Respondent contested as the candidate of the Peoples Democratic Party (PDP), other 5 candidates that participated in the same election are not parties in this appeal.

At the end of the election, the 2nd Rcspondent was returned by the 1st Respondent as the candidate duly elected. The 1st and 2nd Appellants were aggrieved with the return of the 2nd Respondent and they filed their joint petition in the lower Tribunal on 14/5/2007 to challenge the said return.

To prove their petition, the Appellants called 3 witnesses with the 1st appellant testifying as PW1. The 1st Respondent called only a witness who testified as R.W.1. The 2nd Respondent called 3 witnesses who testified as RW2, RW3 and RW4 respectively. At the conclusion of the hearing both Counsel filed and adopted their respective final written addresses.

The Election Tribunal in its considered judgment delivered on 1/4/2008 unanimously dismissed the petition, finding that the Appellants failed to prove their allegations of corrupt practices, non-compliance with the provisions of the Electoral Act or that the 2nd Respondent was not duly elected by majority of lawful votes cast at the election.

Dissatisfied with the decision of the lower Tribunal the Appellants filed their Notice of ‘Appeal on 25/4/2008 originally containing six grounds of Appeal. However, they found it expedient to file additional seven grounds of appeal upon an application brought to this Court on 1/7/2008. Leave of this Court was also sought to raise and argue fresh issues not taken at the lower Tribunal and to extend time for the Appellants to file their brief of argument. The application was granted on 18/6/2009.

Learned Counsel for the Appellants’ brief of argument and Reply Brief have been filed. In their brief of argument the two issues distilled for the determination of the appeal read as follows:

“1. WHETHER the lower Tribunal properly evaluated the evidence before it, having regard to the state of the pleadings, onus and statement of proof on the parties before arriving at its judgment.

2. WHETHER the conduct of the election was in the substantial compliance with the provisions of the Electoral Act 2006.”

The 1st Respondent’s brief of argument dated 10/3/2009 was filed by his Counsel same date and the preliminary objection which was argued on pp.4 – 15 of the brief, was filed on 10/3/2009. At page 15 paragraph 4.10 the 1st Respondent adopts the two issues formulated by the Appellants in their brief of argument.

The 2nd Respondent brief of argument was dated 5th of March 2009 and filed same date. At page 6 of the 2nd Respondent’s brief, learned Counsel adopts two Issues formulated by the Appellants.

Briefs having been filed and exchanged, we took this appeal on 18/6/2009. Learned Counsel for the respective Parties have identified their briefs of argument without further amplification on the briefs. Learned counsel for the Appellants, C.N. Eke Esq. urged us to dismiss the preliminary objection of the 1st Respondent and to allow the appeal.

For the 1st Respondent, their counsel K. TAMBOU Esq, having identified and adopted the brief of argument, urged us to uphold the preliminary objection or in the alternative, dismiss the appeal.