Ozor Ochiagha Ugochukwu V. Okechukwu Simon Nwoke & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment)

By way of motion on Notice dated 3rd March, 2009 filed on 5th March, 2009, the appellant herein applied for the consolidation of his appeal No.CA/E/EPT/5/2007 and the appeal filed by the 1st respondent herein No. CA/E/EPT/5A/2007 which said appeals hereinafter referred to as 1st and 2nd appeal respectively emanated from the Rulings of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting at Enugu, Enugu State, (‘the tribunal’ for short) delivered on 14th of August, 2007 in Petition No. NAGL/EPTEN/SH/103/2007. As all the parties were not opposed to the application for consolidation, this court on 19th March, 2009 consolidated the two appeals before hearing them on 24th of May, 2010.

This judgment is therefore in relation to the two appeals. The two appeals will therefore be considered in the reverse way they were argued before us but before doing so I see the need to give a brief facts that gave rise to the two appeals. The Appellant in the first appeal herein (1st respondent in the second appeal) No. CA/E/EPT/5A/2007 was a petitioner in petition No. NAGL/EPT/EN/SH/03/2007 before the said tribunal sitting in Enugu. He belonged to and was sponsored to contest the election into the Enugu State House of Assembly in Igbo-Etiti West Constituency on the platform of his party the All Nigeria Peoples Party (ANPP). The election was held on 14th April, 2007 and he contested with eight other candidates sponsored by various registered political parties. The 1st respondent (as the appellant in the second appeal) was sponsored by the Peoples Democratic Party (PDP) for the same elective post and in the same constituency.

The 2nd respondent is the statutory body saddled with the responsibility of conducting the said election with the help of its officers and other ad hoc staff. At the conclusion of the said election, the 2nd respondent declared results of the election and returned the 1st respondent winner of the election on the same 14/4/2007 and issued him with Certificate of return as the duly elected candidate having won the election with a majority of lawful votes cast at the election. The appellant became disenchanted with the declaration of such results and the return of the 1st respondent/appellant winner of the election and he thereby filed the petition before the tribunal contending that he was the actual winner of the election having won with a majority of lawful votes cast at the said election.

It was contended that the petition was allegedly served on the 1st Respondent, (appellant in 2nd appeal) on the 4th day of June by means of substituted service. The 1st respondent filed a Memorandum of Appearance and a Reply to the Petition. He however filed an application for enlargement of time and to regularize the processes already filed by him i.e. Memorandum of conditional appearance and Reply, but such application was refused by the tribunal and struck out. However, before this application for enlargement of time to file the two processes was heard by the tribunal, the petitioner/appellant filed another application praying it to enter judgment in his favour and also to bar the 1st respondent from defending the petition. A counter affidavit against the application was filed by the 1st respondent.

It is pertinent to note also that on 17th of July, 2007, the petitioner/appellant filed a motion for an order striking out the 1st respondent’s Reply and a counter affidavit was also filed by the 1st respondent in opposition to the motion for extension of time: Thereafter, the two applications for judgment filed by the petitioner/appellant and the motion also filed by him for striking out the 1st respondent’s Reply were both initially slated for hearing on 17/7/2007 but later adjourned to Pre-hearing session then fixed for 27/7/2007. On 27/7/2007, the 1st respondent filed an application seeking an order striking out the petition in its entirety on the ground that it was filed out of time. The appellant/petitioner opposed the application by filing a counter affidavit thereto while the 1st respondent filed a further affidavit.

The tribunal heard the application and reserved its ruling till 14/8/2007. On that day (14/8/2008) the tribunal delivered a considered ruling dismissing the application to strike out the petition and proceeded to take or hear the motion for judgment filed by the appellant wherein it voided the election and ordered that a fresh election be held in the said Constituency. Aggrieved by the tribunal’s ruling voiding the election the petitioner/appellant appealed to this court vide a Notice of Appeal filed on 29/8/2007. Similarly, the 1st respondent also became dissatisfied with the decision of the tribunal refusing to strike out the petition and thereby appealed against such decision vide his Notice of Appeal filed on 3rd September, 2007. The two Rulings are subject of the two appeals.

Briefs were settled and filed by learned counsel for the parties in the two appeals.

On the first appeal No. CA/E/EPT/5/2007, the petitioner/appellant’s brief was dated and filed on 17/9/2007, wherein three issues for its determination were distilled from the grounds of appeal dated 29/8/2007 and those issues are:-

(1) Whether an order voiding the entire election can possibly flow directly in consequence of the appellant’s petition as it is?

(2) Whether the Election Petition Tribunal can declare the Petitioner as duly elected given the circumstances of this petition?

(3) Whether an election petition Tribunal can void an election entirely on the ground that less than half of the electorates voted instead of reserving votes already recorded and ordering a bye-election in the outstanding area?

After being served with the Petitioner/Appellant’s brief of argument, the 1st Respondent responded by filing his brief of argument on 24th September, 2007 dated 20/9/2007 wherein, he proposed only one issue that called for the determination of the appeal which is, ‘whether the tribunal was in the circumstance wrong to have refused the sole relief the Appellant claimed in his petition i.e. to be declared duly elected’.

On his part, the 2nd respondent, whose brief of argument was dated and filed on 20th of September, 2007 two issues for determination of the appeal were formulated out of the four grounds of appeal contained in the notice of appeal dated 3/9/2007. The dual issues are-