Ndukwe Ogugua Louis V. Independent National Electoral Commission (Inec) & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A(Delivering the Leading Judgment)

In the election into the Delta State House of Assembly for Oshimili North Constituency, six candidates emerged for the contest including the present Appellant in this appeal who was the candidate of the Action Congress (AC) and the 5th Respondent herein who was the candidate of Accord Party (AP).

At the conclusion of the said election, the 1st, 2nd and 3rd Respondents herein declared the 5th Respondent as winner. Dissatisfied with this declaration, the Petitioner commenced proceedings at the Delta State Election Tribunal by way of a Petition wherein he sought two reliefs namely:

“(a) That the 5th Respondent was not duly declared elected or returned and should not be declared as duly returned or duly elected by 1st – 3rd Respondents.

(b) That the Petitioner be declared as validly elected or returned having scored/polled the highest/majority of lawful votes cast at the election.”

The Petition was predicated on the Ground that the 5th Respondent, Patience Ajudua did not score the majority of lawful votes cast at the election and should not have been declared winner by the 1st to 3rd Respondents.

Hearing commenced at the lower tribunal with the Petitioner (Appellant herein), Ndukwe Ogugua Louis, calling ten witnesses. The 1st – 4th Respondents who filed a joint reply called two witnesses, while the 5th Respondent

testified in defence and called no other witness. At the conclusion of the trial, the tribunal dismissed the petition.

Aggrieved by the decision, the Appellant, has now appealed to this court on Nine Grounds (vide an amended notice and Grounds of Appeal) which without their particulars are set out herein as follows:

“(a) The Judgment of the Election Petition Tribunal Asaba is against the weight of evidence.

(b) The learned Judges of the Election Petition Tribunal Asaba erred in law in the following passage of their Judgment “… there is absolutely no evidence adduced by the Petitioner establishing the delivery or receipt of any form EC8A (1) in respect of any of the Polling Stations in Ward 4 Ibusa by the 4th Respondent particularly Exhibit 5 which is the only form EC8A (1) to which any weight can be ascribed as it bears INEC stamp. Yet the Petitioner has averred that the said 4th Respondent wrongfully failed to submit authentic results to the 3rd Respondent for collation and that this led to the wrongful omission of the result of Ward 4 Ibusa from the result of Oshimili North Constituency…”

(c) The learned Judges of the Election Petition Tribunal Asaba erred in law by rejecting the Video Tape tendered by the Appellant thereby occasioning a miscarriage of Justice.

(d) The learned Judges of the Election Petition Tribunal Asaba misdirected themselves on facts in the following passage of their Judgment “…it is very clear from the averments in the petition that one of the irregularities relied on by the Petitioner as tainting the result of the election in Ward 9 and as a result of which the votes of candidates in. the said election were cancelled is that the total votes of 6,067 credited to the candidates by the 1st – 3rd Respondents in Ward 9 Okpanam exceeded the Registered number of voters in Ward 9 Okpanam which is 6,047 as contained in INEC voter’ guide …”

(e) The learned Judges of the Election Petition Tribunal Asaba misdirected themselves on facts in the following passage of their judgment “…It is not in dispute that the result of the election held in Ward 9 was announced at the Local Government Collation Centre Akwukwu Igbo by the 3rd Respondent who is alleged by the Petitioner to have cancelled the result of the said Ward. The 2nd PW admitted this much when he stated under cross-examination by learned SAN that the 3rd Respondent announced, the result of the election on 15/4/2007. The witness even stated the scores of his party ‘Action Congress,’ and ‘Accord Party’ as 4, 210 and 4, 939 respectively…”