In The Court of Appeal

(Port Harcourt Judicial Division)

On Thursday, the 27th day of November, 2003

Suit No: CA/PH/EPT/225/2003

Before Their Lordships

 Between

 And

S.A. AKINTAN, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment delivered at the National Assembly, Governorship and State Assembly Tribunal, Imo State, sitting at Owerri delivered on 30th July 2003 in Suit No. NAET/IMS/1/03. The appellant, chief Ethelbert Okwaranyia, and the 1st respondent, Mrs. Patricia Udogu, were candidates at the election into the Ideato North and South Federal constituency in the House of Representatives held on 12th April 2003. The appellant contested the election on the platform of the All Nigeria Peoples Party (ANPP) while the 1st respondent contested on the platform of the Peoples Democratic Party (PDP). The 2nd respondent, the Independent National Electoral commission (INEC), is the body that conducted the election while the 3rd to 12th respondents are officials of the 2nd respondent that were involved in conducting the said election. There were other candidates sponsored by other political parties that also contested the election.

At the conclusion of the election, the results as declared by the 2nd respondent are as follows: 

1. Chief Ethelbert Okwaranyia (ANPP)    =    33,776 votes

2. Mrs. R.N. Udogu (PDP)          =    28,087 votes

3. Chief Ben Obinali (AD)          =    4,435 votes

4. Obi Nwankwo (APGA)          =    4,086 votes

The appellant, Chief Ethelbert Okwaranyia, having scored the highest votes, was declared the winner of the election.

The present respondent, Mrs. Udogu, who was adjudged as scoring the second highest votes was dissatisfied with the result declared by the 2nd respondent. She therefore filed a petition at the tribunal. She prayed the tribunal in the concluding paragraph of her petition for the following relief:

"Wherefore your petition prays: That it may be determined that the said Chief Ethel Okwaranyia, 1st respondent, was not duly elected or returned and that Barrister (Mrs) P.N. Udogu, the petitioner was elected and ought to have been returned."

At the hearing at the tribunal, the petitioner gave evidence along with four other witnesses in support of the petition. Nine witnesses in all testified in defense of the petition. The tribunal, after taking written submissions from the counsel for the parties in the case, delivered its reserved judgment on 30th July 2003. The tribunal held that the petitioner had proved her case and therefore entered judgment in her favour as follows in the concluding portion of the judgment: 

"We agree with the petitioner that if the votes scored by the petitioner and the 1st respondent at the polling stations complained about in all the four aforesaid wards had been correctly entered and recorded into Exhibits 112 - 118, the lawful votes of the petitioner and the 1st respondent would have been:

Respondent        -    24,478 votes and

Petitioner        -    30,078 votes

In the result, the petitioner succeeds; the return of the 1st respondent as declared and announced by INEC through 10th respondent on the 12th April, 2003 is hereby set aside. The petitioner is hereby declared and returned winner of the election into the National Assembly of Ideato North and South Federal Constituency of Imo State."

The appellant was dissatisfied with the judgment delivered by the tribunal and he has appealed against it to this court. Ten grounds of appeal were filed against the judgment. The parties filed their respective brief of argument in this court. The appellant filed an appellant's brief and an appellant's reply brief. The 1st respondent also filed a 1st respondent's brief. A motion was also filed on behalf of the 1st respondent in which he prayed this court for the following relief:

"1. An order of this honourable court dismissing and/or striking out the appeal or alternatively 

2 An order striking out the grounds of appeal contained in the Notice of Appeal; or

3. An order striking out the appellant's brief of argument and/or

4. An order striking out issues 1, 2, and 3 as contained in the appellant's brief of argument." 

The following three issues are formulated for determination in the appellant's brief which are also adopted in the 1st respondent's brief:

"(i) Was the tribunal right in refusing to strike out the petition for disclosed incompetence firmly established on the evidence at the trial?

(ii) Did the petitioner discharge the obligation of proof resting on her on the pleadings and the evidence adduced?

(iii) Whether the conclusion and verdict arrived at by the tribunal can be justified on the pleadings and evidence tendered?"

The 1st respondent raised a preliminary objection in her brief of document prepared by Mr. Fagbemi, SAN, to the competency of the appeal.

The objection raised is as follows:

"(A) 1st Respondent objects to all the grounds of appeal contained in the Appellant's Notice of Appeal for the following reasons among others:

(1) Grounds (i), (ii) and (iii) have been raised earlier by the Appellant before the Tribunal by way of preliminary objection which was dismissed. Appellant filed a Notice of Appeal which was abandoned in Appeal No. CA/PH/EPT/116/2003;

(2) Ground (iv) of the grounds of Appeal aforesaid does not present a complaint;

(3) On Ground (v); the particulars, especially particulars (c), (d) and (e) thereunder do not relate to the ground; and

(4) Grounds (vi), (vii), (viii), (ix) and (x) are argumentative, and should be struck out.

(B) Appellant's brief has abandoned grounds (ix), (v), (viii) and (x) of the grounds of Appeal."

The affidavit afore-mentioned above also set out the details of the facts relied on in support of the objection. The notice and grounds of appeal filed in the interlocutory appeal as well as the order of this court dismissing the appeal were exhibited.

The 1st respondent did not deny the fact that an interlocutory appeal was filed against the ruling of the tribunal refusing to strike out the petition and that the said appeal was dismissed for want of prosecution;rather, it is argued that the issues now raised are founded on the final judgment and not on the interlocutory ruling.

The grounds of appeal complained of are grounds (i), (ii) and (iii). The said three grounds of appeal without their particulars read as follows:

"(i) The tribunal erred in law by refusing/failing to strike out the petition as incompetent for compliance with the mandatory statutory requirements of section 133(2) and paragraph 4(1)(a) and (c) of the Electoral Act 2002, as established by the uncontested evidence disclosed at the trial. 

(ii) The tribunal erred in law by failing to strike out the petition for disclosed incompetence by not joining certain necessary parties against whom allegations of misconduct were, alleged in the petition.

(iii) The tribunal erred in law by treating the submissions made in relation to the failure of any reference whatsoever to the said NDP candidate at the election in the petition, as raising only an issue of joinder of parties." 

The ground of appeal filed against the interlocutory ruling which was dismissed by this court in Suit No. CA/EPT/166/2003 on 23rd September, 2003 reads thus:

"The learned Chairman and members of the Election Tribunal below erred in law when they held that the election petition NAETIMS/1/2003 is competent." 

The above single ground of appeal filed had 18 particulars in which the various allegations made against the petition were enumerated. I have no doubt in holding that the issues raised in grounds (i), (ii) and (iii) of the grounds of appeal filed in the present appeal and which I have reproduced above are the same as raised in the ground of appeal filed against the interlocutory ruling delivered by the tribunal and which was the subject of the appeal already dismissed by this court on 23rd September, 2003. The appellant cannot therefore be allowed to reopen the same matter covered by the earlier appeal already dismissed by this court. See Madukolu & Ors v. Nkemdilim (1962) 1 All NLR 587; and Ijale v. A.G. Leventis Ltd. (1961) All NLR 762. The objection raised against the three grounds of appeal is therefore upheld. The said grounds (i), (ii) and (iii) of the grounds of appeal filed in this appeal are therefore struck out. The submissions made in respect of the three grounds of appeal in the 1st respondent's brief are also struck out for the same reasons. 

The other point raised in the appeal is whether the tribunal was right in reversing the scores of the appellant and the 1st respondent thereby resulting in the present respondent being declared the winner of the election. The tribunal came to its conclusion after the careful examination of the documentary exhibits tendered before it by the parties. The various result sheets tendered were carefully scrutinized by the tribunal before deciding on which of the conflicting forms tendered before it. The tribunal eventually accepted the figures contained in the copies tendered by the police who claimed that they were assigned to monitor the elections on that day and that by virtue of their assignment, copies of the result issued were usually given to them.

I have no doubt that the tribunal was right in the decision it made in this respect. Since it is the final figures arrived at from the said forms tendered by the police officers that led to the reversal of the earlier results declared, I believe that the finding of fact made by the tribunal is supported with credible evidence presented before the tribunal. No appellate court therefore has any right to interfere with such finding of fact made by a lower court in such a situation, See Kodilinye v. Odu (1935) 2 WACA 336; Okoye v. Ejifo (1934) 2 WACA 130; and Raynard v. Allan (1934) 2 WACA 52.

In the result, I hold that there is no merit in the appeal and I accordingly dismiss it with N10,000.00 costs in favour of the 1st respondent.
 

ABOYI JOHN IKONGBEH, J.C.A: I have read in advance the lead judgment just delivered by my learned brother, AKITAN, J.C.A. I agree with his reasoning and conclusion.

I too dismiss the appeal and abide by the consequential orders made therein. 

DAVID ADEDOYIN ADENIJI, J.C.A: I have had the opportunity of reading in advance, the leading judgment just delivered by my learned brother AKINTAN, J.C.A. and I agree wholly with his reasoning and conclusion. 

I also dismiss the appeal and do abide by the consequential orders made in the leading judgment.

     Appearances