Senator Julius Aliucha & Anor V. Chief Martin Nwanscho Elechi & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

This is an appeal from the judgment of the Court of Appeal Enugu Division delivered on the 7th day of January, 2012 dismissing the appellants appeal and affirming the judgment of the trial Election Tribunal, Ebonyi State, which sat at Abakaliki and delivered its judgment on the 11th day of November, 2011.

The facts are these. The 1st Petitioner (1st appellant) and the 1st respondent contested the gubernatorial elections for Ebonyi State on the 26th of April, 2011. The 3rd respondent, the regulatory body that handles elections in Nigeria declared the 1st respondent the winner. The appellant as Petitioner filed a petition to challenge the result of the election on the following grounds.

1. That the Election and return of the 1st Respondent was invalid by reason of corrupt practices/non-compliance with the provisions and principles of the Electoral Act, 2010 (as amended) and the manual for Election Officials 2011 and the Guidelines.
2. That the 1st Respondent was not duly elected by the majority of lawful and valid votes cast at the said election.
3. That the 1st Petitioner was the person that scored the majority of lawful votes cast at the said election and ought to have been returned by the 3rd to 5th Respondents as the winner of the election.

In the course of trial the appellants called 118 witnesses and tendered 145 exhibits. The 1st Respondent called 74 witnesses and tendered 103 exhibits while the 2nd Respondent called 1 witness and tendered one exhibit. The 3rd Respondent called 20 witnesses and tendered specimen signature of witnesses. Before the conclusion of trial the appellants abandoned their ground on corrupt practices and relied solely on the ground of non compliance.

In the judgment delivered on the 11th of November, 2011. The Tribunal held that:

The Petitioners have failed to lead cogent evidence to sustain all the grounds upon which they questioned the declaration and return of the 1st Respondent as the duly elected Governor of Ebonyi State with respect to the Gubernatorial Election conducted in the State on the 26th of April, 2011.

The Petitioners lodged an appeal. The Court of Appeal in a well considered judgment delivered on the 7th of January, 2012 dismissed the appeal, and in the concluding paragraph of the judgment said:

…There is no doubt in my mind that not only did the appellant not prove the substantial non compliance, the solitary and few examples of non-compliance he elicited from the testimony of the Respondents’ witnesses are not material enough to offset the result of the election.

Concluding the Court of Appeal went on to say that the appeal is unmeritorious. This appeal is against that judgment. In accordance with Rules of this court briefs were duly filed and exchanged. The appellants brief was deemed duly filed and served on the 27th of February, 2012. The 1st respondents brief was also filed on the 7th of February, 2012. The 2nd respondents brief was filed on the 8th of February, 2012, while the 3rd to 1775 respondents’ brief was filed on the 7th of February, 2012. Learned counsel for the appellants filed a reply brief on the 10th of February, 2012 in response to the 2nd respondents brief, and a composite reply brief to the 1st and 3rd to 1775th respondents’ brief on the 9th of February, 2012.

On the 28th day of November, 2011 the appellants’ filed a Notice of Appeal. It contained 26 grounds of appeal. Six issues were formulated from the 26 grounds of appeal for determination of this appeal. They are:

1. Whether the lower court reached a wrong decision when it failed in its judgment to consider and resolve the issue raised by the appellants that the 2nd and 3rd of 1772 respondents have conceded the appeal as their briefs were incurably defective and manifestly incompetent in law, yet countenanced the said processes and impliedly resolved the issue against the appellant.
2. Whether the lower court came to wrong decision when it refused to uphold the decision when it refused to uphold the finding of the Honourable Tribunal that the evidence of the Respondents witnesses were worthless, thus disregarding appellants case, evidence, that their petition was made out on the basis of minimal proof.
3. Whether the lower court adopted the right approach in coming to the conclusion that the appellants did not establish their allegation of non-compliance with the Electoral Act and Manual for Election Officials 2011 in the conduct of the Ebonyi State Governorship Election in the thirteen (13) Local Government Area in issue, as to meet the test of substantial non-compliance capable of vitiating the Election.
4. Whether the lower court should have reversed the decision of the Tribunal in discountenancing the copious and uncontroverted documentary evidence adduced by the appellants, on the reasoning that they were dumped on them and further held that same were indeed dumped on the Tribunal, notwithstanding, that each was a statutory from tendered individual, admitted as exhibits through a witness, thereafter related to the affected areas during hearing of the Petition and same witnesses cross-examined in respect thereof.
5. Was the lower court wrong, when, having resolved issues 4 and 5 raised by the appellants at the lower court in favour of same, it yet refused to grant the consequential reliefs sought therefrom.
6. Was the lower court wrong when it refused to reverse the decision of the Tribunal that the appellants failed to tender any result sheet in proof of the tabulation in their petition and thus reached a perverse decision.

The 1st respondent also formulated six issues. They are:

1. Whether the lower court was perverse in not discountenancing the 2nd and 3rd to 1772 respondents briefs of argument as in competent.
2. Whether the lower court was perverse in not upturning the verdict of the trial tribunal refusing to apply minimal proof in favour of the appellants in view of the discredited respondent’s evidence on record.
3. Whether the lower court was perverse in upholding the verdict of the trial tribunal that the appellants failed to prove substantial non-compliance capable of vitiating the election of the 1st respondent.
4. Whether the lower court was perverse in upholding the finding of the trial tribunal that the uncontroverted documentary evidence adduced by the appellants was dumped on the trial court.
5. Whether the lower court was perverse in not awarding the appellants consequential reliefs flowing from issues 4 – 5 being resolved in favour of the appellants.
6. Whether the lower court was perverse in upholding the trial tribunal’s verdict that the appellant failed to tender result sheet in proof of the tabulation in their petition.

On his part learned counsel for 2nd respondent adopted issues 3, 4 and 6 in the appellants brief and formulated four other issues thereby presenting seven issues for determination they are:

1. Whether the lower court is obliged to consider issue of incompetence of 2nd and 3rd to 1772 respondents brief raised in the appellants reply brief when no Preliminary Objection was filed to strike out the brief.
2. Whether the appellants discharged the evidential burden of proving non-compliance with the Electoral Act, 2010 and how it substantially affected the result of the election and to shift the onus of proof on the respondents.
3. Whether the lower court adopted the right approach in coming to the conclusion that the appellants did not establish their allegation of non-compliance with the Electoral Act and Manual for Election Officials 2011 in the conduct of the Ebonyi State governorship election in the thirteen (13) Local Government Area in issue, as to meet test of substantial non-compliance capable of vitiating the election.
4. Whether the lower court should have reversed the decision of the Tribunal in discountenancing the copious and uncontroverted documentary evidence adduced by the appellants, on the reasoning that they were dumped on them and further held that same were indeed dumped on the Tribunal, notwithstanding that each was a statutory form tendered individually, admitted as exhibits through a witness, thereafter related to the affected areas during hearing of the Petition and some witnesses cross-examined in respect thereof.
5. Whether the Court of Appeal was in error when it resolved issues 4 and 5 in favour of the appellants, but failed to grant them consequential reliefs connected with the issue.
6. Was the lower court wrong when it refused to reverse the decision of the Tribunal that the appellants failed to tender any result sheet in proof of the tabulation in their petition and thus reached a perverse decision.
7. Whether the votes of the Petitioners were wrongly credited to those of the 1st and 2nd respondents and whether the wrongful accreditation of one candidate’s vote to another candidate is not a specie of falsification of result.

Finally on formulation of issues for determination learned counsel for the 3rd to 1775th respondents formulated five issues for determination, and they are:

1. Did the Court of Appeal reach a wrong decision in failing to consider and resolve the issue raised by the appellants that the 2nd and 3rd to 1175th respondents have conceded the appellants appeal at the Court of Appeal, their briefs if argued being incurably defective and incompetent in Law.
2. Whether the Court of Appeal was right in holding that the appellants failed to prove and establish the allegations of non-compliance with the provisions of the Electoral Act, 2010 (as amended).
3. Whether the Court of Appeal was right in holding that the documentary evidence adduced by the appellants witness were dumped on the tribunal notwithstanding that there was a statutory form tendered individually through a witness and some witnesses cross-examined in respect thereof.
4. Whether the Court of Appeal was right in refusing to grant the consequential reliefs sought from issues 4 and 5 raised by the appellants at the Court of Appeal, having resolved the above stated issues 4 and 5 in favour of the appellants.
5. Was the Court of Appeal right in refusing to rely on the appellants tabulation chart, the appellants having failed to relate any result sheet to the tabulation chart whether such result sheets were tendered or not.

I have examined the issues formulated by all sides in this appeal, and I am satisfied that the issues formulated by the appellants would determine the real grievance in this appeal. At the hearing of the appeal on the 27th of February, 2012 all counsel had something to say in amplification of their briefs. Learned counsel for the appellants’ Mr. R. Tarfa, SAN adopted the appellants brief deemed properly filed on the 27th of January, 2012, reply brief field on 10th of February, 2012 and composite reply brief field on the 9th of February, 2012.