Fresh election is in order where no clear winner emerged
IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISIO HOLDEN AT
ON THURSDAY THE 31ST DAY OF DECEMBER 2015
BEFORE THEIR LORDSHIPS:
HON. JUSTICE OYEBISI FOLAYEMI OMOLEYE PRESIDING JUSTICE COURT OF APPEAL
HON. JUSTICE CHINWE EUGENIA IYIZOBA
JUSTICE, COURT OF APPEAL
HON. JUSTICE SAMUEL CHUKWUDUMEBI OSEJI
JUSTICE, COURT OF APPEAL
HON. JUSTICE TIJSNI ABUBAKAR
JUSTICE, COURT OF APPEAL
HON. JUSTICE JAMILU YAMMAMA TUKUR
JUSTICE, COURT OF APPEAL
ALL PROGRESSIVE GRAND ALLIANCE (APGA) …APPELLANTS
PEOPLES DEMOCRATIC PARTY (PDP)
INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC)…………….
Ordering for fresh election will arise only where a clear winner did not emerge after the deduction of the illegal votes. Having established that there was over voting in Isiala Ngwa, Obingwa and Osisioma Ngwa Local Government Areas, the entire votes recorded in the three local government areas shall be deducted from the overall results declared by the 3rd Respondents.
So held His Lordship, Oyebisi Folayemi Omoleye PJCA, her learned brothers, C.E. Iyizoba, S.C. Oseji, T. Abubakar and J.U. Tukur JJCA concurring while allowing the appeal of the Appellants.
The parties were represented by a galaxy of legal practitioners. The facts are as contained in the body of the judgment.
JUDGMENT DELIVERED BY OYEBISI FOLSYAMI OMOLEYE, PJCA
This appeal challenges the judgment of the Governorship Election Petition Tribunal holden at Umuahia, Abia State (hereinafter referred to as the Tribunal), rendered on 3rd November 2015, Coram, U.B. Bwala, J. (Chairman), E.A. Ebienye, J. (Member) and O.I. Ogunyemi, J. (Member), in Petition No. AB/EPT/GOV./2/2015.
At the Tribunal, the Appellants were the petitioners and the Respondents maintained their current status.
The facts that culminated into this appeal, from the perspective of the Appellants, are that, the 3rd Respondent, Independent National Electoral Commission (INEC), in fulfilment of its constitutional obligation of organizing general elections in Nigeria, conducted an election on 11th April, 2015, for the occupation of the office of the Governor of Abia State. In the election, the 1st Appellant, Alex Otti, was the flag flyer of the 2nd Appellant, All Progressives Grand Alliance (APGA), while the 1st Respondent, Okezie Ikpeazu, was sponsored by the 2nd Respondent, Peoples Democratic Party (PDP).
At the conclusion of the voting exercise, the 3rd Respondent made a pronouncement that the supplementary elections would be held in some pockets of polling units in the nine local government areas of Abia State. Furthermore, the 3rd Respondent announced the cancellation of the results in Obingwa, Isiala Ngwa North and Osisioma Local Government Areas, due to various acts of malpractices, violence and irregularities, in the conduct of elections and consequently, the declaration of the 1st Respondent. Therefore, the Appellants beseeched the tribunal armed with a petition dated 14th May, 2015 and filed on the 15th May 2015, contained in pages 1 to 382, Volume 1 of the Record of Appeal. The four grounds upon which the petition was predicated and the reliefs sought for by the Appellants/Petitioners are hereunder set out respectively:
Your Petitioners state that the 1st Respondent, who was returned as the winner of the 11th April, and 25th April, 2015 gubernatorial election in Abia State did not score majority of lawful votes cast and did not satisfy the mandatory constitutional threshold and spread across the local government areas of Abia State at the election.
That the election and return of the 1st Respondent was invalid by reason of substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended) and Approved Guidelines and Regulations for the Conduct of 2015 general election, and Manual for election officials 2015 which non-compliance substantially affected the result of the election.
That the election and return of 1st Respondent was invalid by the reason of corrupt practices which vitiated the election.
Your petitioners state that contrary to result declared by 3rd Respondent, the 1st Petitioner indeed won majority of lawful votes cast and satisfied the mandatory constitutional threshold and spread across the local government areas of Abia State and ought to have been declared winner and returned as the duly elected Governor of Abia State at the 11th April, and 25th April 2015 election.
WHEREFORE your Petitioners pray as follows:
That it may be determined and thus declared that the return of the 1st Respondent as Governor of Abia State pursuant to the election held on the 11th April and 25th April 2015 is void for substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended) and which non-compliance substantially affected the result of the election.
That it may be determined and thus declared that the 1st Respondent was not duly elected by the majority of the lawful votes cast and did not satisfy the mandatory constitutional threshold and the spread across the local government areas of Abia State at the Governorship election held in Abia State on 11th April 2015.
That it may be determined and declared that the election and return of the 1st Respondent as Governor of Abia State is invalid by reason of corrupt practices and liable to be nullified; and further-
That it may be determined and thus declared that the 1st Petitioner won majority of lawful votes cast at the 11th and 25th April 2015 election held in Abia State and satisfied the constitutional threshold and spread across the 17 Local Government Areas of the State and ought to be and thus be ordered to be returned as the duly elected Governor of Abia State.
In the alternative to prayer (iv) that it may be determined and thus declared that the elections in the Local Governments, wards, units and/or centres characterized by electoral irregularities and non-compliance during the conduct of the Abia State Governorship election held on the 11th April 2015 be voided and/or set aside and a fresh/supplementary election be conducted by 3rd Respondent in the affected polling units to ascertain the final scores of candidates of the election.
The 3rd Respondent had a feud with the Appellants over the Petition and filed a Notice of Preliminary Objection to the competence of Paragraphs 9(a), (b) and (d), 16, 20, 21, 30(a), (f), (g), (h) and (i), 32(A), (B), (C) and (D), 33(A), (B), (C) and (D), 36(d), 37(d),37(e),47,48, 1st relief(V), 2nd relief (V), tables under Paragraph 36, tables under 37, tables under paragraphs 38, and Tables under Paragraph 43 of the Petition. The Notice of Preliminary Objection is embedded in the 3rd Respondent’s Reply to the petition, contained in pages 391 to 1,040, Volume 1 of the Record of Appeal.
The 2nd Respondent also challenged the Appellants’ Petition and equally filed a Notice of Preliminary Objection to the competence of Paragraphs 9(a) and (b), 16, 20 to 50, 53 to 65, 67 to 80 of the Petition and that the 2nd Respondent’s be struck out, the petition not having signed by a person known to law. The Notice of Preliminary Objection is enshrined in the 2nd Respondent’s Reply to the Petition, contained in pages 1, 141 to 1293, Volume 1 of the Record of Appeal.
The 1st Respondent contended the Appellants’ Petition and he similarly filed a Notice of Preliminary Objection challenging the competence of Paragraphs 9(a), (b) and (d), 10(f) and (h),16, 18,19,21,25,26,27,29,30(a), (d), (f) and (K), 36(d), 37(d), 38(d), 39, 40,41, 42,43,44,45,46 and 47, the reliefs sought for and indeed the entirety of the Petition. The Notice of Preliminary Objection, is embedded in the 1st Respondent’s reply to the Petition, contained in pages1,294 to 2,454 to 3, 310, Volume 3 and 3,311 to 4,129, volume 4 of the record of appeal.
The Appellants subsequently filed their Replies to the 1st Respondent’s Reply, 2nd Respondent’s Reply and 3rdRespondent’s Reply to the Petition. These are contained in pages 4,134 to 4,163, 4,164 to 4,210 and 4,211 to 4,251, Volume 5 of the Record of Appeal, respectively.
The petition went into full-scale trial. To prop the four grounds of the Petition up, the Appellants fielded twenty witnesses and tendered in evidence a galaxy of documents as exhibits. The 1st Respondent in shoring up his contention against the Petition called twenty eight witnesses and tendered an array of electoral documents as exhibits. The 2nd Respondent in its defence against the petition called two witnesses and equally tendered a host of electoral documents in evidence. However the 3rd Respondent did not field any witnesses rather it relied on the witnesses of the 1st and 2nd Respondent and tendered a pack of documents as exhibits. At the conclusion of the adoption of witnesses statement on oath and oral evidence of the witnesses of all the parties, counsel’s written addresses were ordered by the Tribunal, filed, exchanged and adopted by the learned counsel for the respective parties to marshal their varied positions in support of and against the Petition. In the considered judgment of the tribunal delivered on the 3rd of November 2015, the Petition of the Appellants was dismissed by it and the election/return of the 1st Respondent as Governor of Abia State was affirmed. The judgment of the tribunal is enshrined in pages 5,521 to 5,565, Volume 5 of the Records of Appeal.
The Appellants found the judgment of the Tribunal irksome and therefore filed this appeal against it to this Court. The Notice and Grounds of Appeal of the Appellants, containing thirty grounds of appeal, dated 16th November, 2015 and filed on 18th November 2015 is located at pages 5,566 to 5,586 Volume 5 of the Record of Appeal.
TO BE CONTINUED…
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