Sandy Onoh & Ors V. Mr. Innocent Okey (1999)

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EKPE, J.C.A.

This is an appeal against the judgment of the Local Government Election Tribunal of Cross River State (hereinafter referred to as the Tribunal) sitting at Calabar in the election petition No. LGET/CRS/P/10/98. In the judgment delivered on the 16th day of February, 1999, the tribunal held that the election into the office of the Chairman of Etung Local Government Area conducted on the 5th of December, 1998. “was marred by massive electoral malpractices and offences, to the extent that it substantially affected the election to warrant its nullification’” and accordingly nullified the election. The appellants (who were the respondents at the trial of the election petition) being dissatisfied with the judgment of the tribunal have appealed to this court on a number of grounds of appeal. The 1st appellant filed his own notice and grounds of appeal, while the 2nd and 3rd appellants filed a joint notice and grounds of appeal.

Dr. Sandy Onoh, the 1st respondent in the election petition (hereinafter referred to as the 1st appellant) and Mr. Innocent Okey the petitioner in the election petition (hereinafter referred to as the respondent) were candidates of All Peoples Party (A.P.P) and the Peoples Democratic Party (P.D.P) respectively, for the post of Chairman of Etung Local Government Area of Cross River State at the local government elections of 5th December, 1998. The Independent National Electoral Commission (INEC) (hereinafter referred to as the 2nd appellant) conducted the election and Mr. Emmanuel Eborty (hereinafter referred to as the 3rd appellant) was the Electoral Officer for Etung Local Government Area for the purpose of the election. At the end of the election, the 1st appellant was declared the winner and accordingly was returned as the Chairman of the said local government area.

Dissatisfied with the result and the declaration, the respondent filed an election petition dated 18th December, 1999 before the tribunal alleging a number of irregularities and electoral malpractices in the conduct of the election and prayed that it may be determined that:

“1. The 1st respondent did not score majority of the lawful votes cast at the election and was therefore not duly elected or returned.

2. Your petitioner scored the majority of the lawful votes cast at the election and ought to have been duly elected and returned.
3. The votes allegedly scored by the 1st respondent at Agbokim, Mkpot, and Nsofang Wards are unlawful votes and should therefore be declared null and void.
4. The cancellation of the six polling boxes from Bendeghe Ekiem Ward and Agbotai polling unit in Abijang Ward is unreasonable and void.

In the alternative your petitioner prays that:

The Chairmanship election/results he annulled or cancelled in Effraya, Etomi, Agbokim, Mkpot, Abijang, Nsofang and Bendeghe Ekiem Wards and/or the entire Etung Local Government Area be cancelled and a bye election ordered since the election of 5th December, 1998 was avoided by corrupt practices and grave criminal offences perpetrated by the 1st respondent’s agents and thugs.”

From the pleadings of the respondent, he is challenging the election results from seven (7) out of a total of ten (10) wards that constitute Etung Local Government Area. The seven wards were, Bendeghe Ekiem Ward, Mkpot Ward and Abijang Ward. The three wards that were not affected were Itaka Ward, Ajasso Ward and Abia Ward. The respondent called fourteen witnesses to prove his case.

The appellants who generally denied the allegations in the petition called nine witnesses. As I have already stated, the tribunal in its judgment at the end of the trial granted the petition and nullified the election. The appeal of the 1st appellant to this court was grounded on six grounds of appeal, but the 1st appellant having abandoned ground five of the grounds of appeal, only five grounds of appeal therefore remain. There are two issues in the brief of argument for the 1st appellant which are predicated on the five grounds of appeal, namely:

“1. Whether the election of the 1st respondent (now appellant) was voided by massive electoral malpractices and offences to warrant its nullification.

2. Whether the Election Tribunal was right in nullifying the election of 5th December, 1998 having regard to the evidence before it.”

The 2nd and 3rd appellants also filed their notice and six grounds of appeal and framed four issues in their brief of argument for the determination of the appeal.

The four issues are:

(i) Whether the petitioner’s (respondent’s) prayer in the petition was inconsistent with his prayer in evidence in such a manner as to create the confusion which misled the tribunal into entering a judgment that can not but be a nullity.

(ii) Whether the trial tribunal was right in nullifying thee entire election in Etung Local Government Area in view of the evidence before it.