Peoples Democratic Party & Anor V. Independent National Electoral Commission & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the National and State House of Assembly Election Tribunal sitting in Jos and delivered on the 29th September, 2011. The 1st and 2nd Appellants herein filed a petition on 18th day May, 2011, seeking to have the 2nd Appellant declared as the winner of the election held on the 26th day of April, 2011 into the Plateau State House of Assembly representing Mangu North-East Constituency of Plateau State.

In its judgment delivered on the 29th day of September, 2011, the Honourable Tribunal upheld the election and return of the 2nd Respondent herein and dismissed the petition. See page 667-708 of the record of Appeal.

Dissatisfied with the judgment, the Appellant herein filed their notice and grounds of appeal on the 18th day October, 2011. See pages 709-716 of the Record of Appeal.

SUMMARY OF FACTS

On the 26th day of April, 2011, General Election was conducted by the 1st Respondent, into the house of Assembly representing Mangu North-East Constituency of plateau State. Upon conclusion of the said elections, the 2nd Respondent was declared and returned as the winner of the election with 18,725 votes as against the 2nd Appellant’s 16,315 votes.

The 1st and 2nd Appellants, the Petitioners at the Tribunal, being dissatisfied with the declaration and return of the 2nd Respondent as winner of the election filed their petition on 18th May, 2011, seeking 7 reliefs, essentially to have the 2nd Appellant declared and returned as the winner of the election. See page 12-66 of the Record Appeal.

The said petition was served on the all the Respondents. The 1st Respondent filed its reply on 7th June, 2011. See pages 71-123 of the Record of Appeal. While the 2nd Respondent filed his reply to the petition on the 10th day of June, 2011. See pages 137-407 of the Record of Appeal.

Issues having been effectively joined, the petition was set down for hearing. The Appellant called 7 witnesses and tendered some documents in proof of their petition. The 2nd Respondent called 12 witnesses and also tendered some documents. The 1st Respondent during trial did not call any witness.

After the close of evidence parties filed their various final written addresses and the petition adjourned for judgment. Judgment was delivered on 29th September, 2011, wherein the 2nd Respondent was declared the winner of the election. Being dissatisfied with the decision of the Tribunal, the Appellants herein have filed their notice and grounds of appeal.

For the purpose of arguing this appeal, the Appellants adopt the notice and ground of appeal filed on the 18th day of October, 2011, and have distilled the 7 issues being argued in the Appellants’ brief of argument there from.

Being dissatisfied with the judgment delivered on the 29th September, 2011, wherein the learned Tribunal dismissed the petition, the Appellants have now appealed to this Court vide noticed and grounds of appeal filed 18th October, 2011 and containing eight grounds of appeal at pages 709-716 of the record of appeal.

The record of appeal was served on the Appellant on the 25th October, 2011. Briefs were accordingly exchanged between parties in accordance to the Practice Directions by the President of the Court of Appeal. While the Appellants’ brief was dated and filed 2nd November, 2011, that of the 2nd Respondent was dated and filed 11th November, 2011. A reply brief was further filed on behalf of the Appellants on the 14th November, 2011. No brief was however filed on behalf of the 1st Respondent.

At the hearing of the appeal on the 25th November, 2011, both learned senior counsel representing the Appellants and 2nd Respondent adopted and relied on their respective briefs of arguments and also adumbrated on same. While it was submitted on behalf of the Appellants that the appeal be allowed, therefore, the 2nd Respondent’s senior counsel urged that same be dismissed. The learned senior counsel Mr. O. I. Olorundare while leading his brother Mr. S. T. Ologunorisa SAN and in company of other counsel adumbrated on their brief and submitted on paragraphs 8-31 of the petition which he argued are allegations of civil nature and which standard of proof required is on the preponderance of evidence as against criminal allegations which proof is beyond reasonable doubt. The counsel therefore urged this Court on the totality to allow the appeal, set aside the judgment of the trial Tribunal and declare the 2nd Appellant as the candidate returned as duly elected at the said election therefore.