Senator Chris Adighije V. Hon. Nkechi J. Nwaogu & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is appeal against the judgment of the lower Tribunal sitting in Umuahia, Abia State delivered on 24/10/08 dismissing the petition of the Appellant. There are some facts which should highlighted: The 1st Tribunal on 26/11/07 had dismissed the petition in limine for non joinder of parties, an issue on which it had previously made a contrary ruling. The Court of Appeal in its judgment dated 14th May, 2008 reversed the decision of the Tribunal on this ground and because the Tribunal did not make a finding on the merit of the petition, sent the petition back to a reconstituted Tribunal to determine the petition based on the issues joined by the parties in respect of paragraphs 17 – 20 of the petition. To put it succinctly, the new Tribunal was to determine:

“the question whether or not election was conducted in Osisioma Ngwa Local Government Area on 28th April, 2007 as pleaded in paragraphs 17, 18, 19 and 20 of the petition and the paragraphs of the Respondents replies joining issues on the question and the reply of the petitioner to the replies of the Respondents on that singular question”.

The second trial Tribunal determined the question posed by the court of Appeal in favour of the Respondents Dissatisfied with this judgment, Appellant filed a Notice of Appeal containing 11 grounds of appeal to this court on 12th November, 2008. The Appellant’s brief dates 22/12/08 was filed on 24/12/08. The 1st Respondent’s brief dated 16/1/09 was filed on 19/1/09. And the brief of the 2nd – 10th Respondents dated 14/1/09 was filed on the same day. Appellants Reply brief dated 27/1/09 was filed on 28/1/09.

It is important at this juncture to explain the significance of the judgment and consequential order of the Court of Appeal. The Appellant was credited with a total of 92,059 votes coming second after the 1st Respondent who was credited with 103,371 votes. The Appellant’s case is that the total votes supposedly added from Osisioma Local Government Area should be deducted from the total votes credited to both candidates. His argument is that if it is accepted that no election took place in Osisioma Ngwa Local Government and the 40,671 votes credited to the 1st Respondent is deducted from her total of 103,371 votes she would have a balance of 62,700 votes. If the 2,912 votes credited to the Appellant are deducted from his total votes of 92,059, he would have a balance of 89,147 which would make him the winner of the election. That is the crux of the matter. Thus, our answer yea or nay to the question of whether election took place at Osisioma Ngwa Local Government would determine on the merit of who won the election.

I will adopt the Appellant’s issues for determination as I feel they best address the complaints raised in the grounds of appeal and re-arrange them for ease of reference. I will only examine the five issues germane to the determination of this appeal. They are as follows:

(a) Was the Tribunal correct or competent to hold that the pleading of the Appellant were self contradictory and subject to two interpretations. –

Ground II.

(b) Was the Tribunal correct in its conclusion that the burden of proving the non holding of an election was on the Appellant who relied upon a negative assertion rather than the Respondents who made a positive assertion – Grounds 1-2.

(c) Was the Tribunal correct when it held that the Appellant did not prove any of the allegations in paragraphs 17(i)-(xii) of the petition Grounds 4, 5, 6, and 8.

(d) Was the Tribunal correct in its conclusion that the Respondents proved that an election took place in the constituency on the day in question – Grounds 9 and 10.

(e) Was the Tribunal correct in its findings that Exhibit 30 which was undated had probative value – Ground 7.

ISSUE I – The Appellant’s counsel’s quarrel is with the observation of the Tribunal on page 818 of the record that the pleadings of the petitioner are contradictory and subject to two interpretations. Learned Appellant’s counsel argued that the issue of pleadings being already settled by the Court of Appeal, the Tribunal had no right to re-open it. He argued that similar pleadings were not found contradictory by this court. He cited OKWUSA v. IKECHUKWU OBIORA in CA/PHIEPT/68/2007 of 18/12/2008, where this court was faced with similar pleading and did not find it contradictory.

Learned senior counsel for the 1st Respondent submitted that since the case was to be heard de novo, the Tribunal had the jurisdiction to look at the pleadings critically particularly in relation to the issue in controversy. He cited OKERE v. STATE (2001) 2 NWLR Pt.697 Pg.397 at 420; FABUNMI v. OYEWUSI (1990) 6 NWLR Pg.159 Pg.728 at 738; AGBI v. OGBE (2005) 8 NWLR. Pt.926 pg.40 at 107-108; BABATUNDE v. PAS & T.A. LTD. (2007)13, NWLR Pt.1050 Pg.113 at 147 – 148.