BONA ORAEKWE V OBIORA CHUKWUKA

CORAM

PARTIES

1 .BONA ORAEKWE

2.ACTION CONGRESS

APPELLANTS 

1.OBIORA CHUKWUKA

2.INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

3.RESIDENT ELECTORAL COMMISSIONER ANAMBRA STATE

4.ELECTORAL OFFICER ON ITS HA SOUTH LOCAL GOVERNMENT (LGA)

5.CONSTITUENCY RETURNING OFFICER ONITSHA SOUTH CONSTITUENCY II

6.SUPERVISORY PRESIDING OFFICER ODOAKPU 1

7.SUPERVISORY PRESIDING OFFICER ODOAKPU 2

8.SUPERVISORY PRESIDING OFFICER ODOAKPU 3

9.SUPERVISORY PRESIDING OFFICER ODOAKPU 4

10.SUPERVISORY PRESIDING OFFICER ODOAKPU 5

11.SUPERVISORY PRESIDING OFFICER ODOAKPU 6

12.SUPERVISORY PRESIDING OFFICER ODOAKPU 7

13.WARD COLLATION OFFICER ODOAKPU 1

14.WARD COLLATION OFFICER ODOAKPU 2

15.WARD COLLATION OFFICER ODOAKPU 3

16.WARD COLLATION OFFICER ODOAKPU 4

17.WARD COLLATION OFFICER ODOAKPU 5

18.WARD COLLATION OFFICER ODOAKPU 6

19.WARD COLLATION OFFICER ODOAKPU 7

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The 1st Petitioner/Appellant was the candidate of the 2nd Petitioner/Appellant, Action Congress (AC) who contested alongside the 1st Respondent sponsored by the Peoples Democratic Party (PDP) for the Anambra State House of Assembly election as the member representing the Onitsha South Constituency II, after which the 1st Respondent was declared the winner of the said election. Dissatisfied with the declaration of the 1st Respondents as the duly elected member representing the said constituency, the Petitioner/Appellants filed a petition at the Anambra State Governorship and Legislative Houses Election Tribunal praying that the election be nullified by reason of  substantial non- compliance with the provisions of the Electoral Act and Corrupt practices . The 1st Respondent prayed the Tribunal to strike out the petition and the written statements which accompanied it. After due consideration of the application, the written statements were struck out, but however the Tribunal went ahead to hear the petition, the 1st Respondent being displeased with this filed a notice of interlocutory appeal against the said ruling. Subsequently, the petition itself was dismissed and the Petitioners/Appellants filed a notice of appeal against the decision of the Tribunal dismissing the petition. The 2nd – 19th Respondents have however filed a preliminary objection against both notices of appeal.

HELD

Appeal dismissed and Cross appeal struck out.

ISSUES

1. Whether the court below was right in striking out the written statements of the appellants’ witnesses which were not made on oath.?

2. Whether the honourable Tribunal was right in dismissing the petition.?

RATIONES DECIDENDI

BURDEN OF PROOF IN ELECTION PETITIONS – THE BURDEN OF PROVING AN ALLEGATION OF CORRUPT PRACTICES IN THE CONDUCT OF AN ELECTION IS HIGHER THAN THAT OF PROVING A MERE NON-COMPLIANCE WITH THE ELECTORAL ACT.

“The burden of proof in any allegation of corrupt practice is higher than the burden on a petitioner who alleges a mere non-compliance with the provisions of the Electoral Act, 2006.” PER A. A. AUGIE, J.C. A.

PRACTICE DIRECTIONS – MEANING OF A PRACTICE DIRECTION.

“Practice Direction, as the name implies, direct the practice of the Court in a particular area of procedure of the court. A practice direction could also be described as a written explanation of how to proceed in a particular area of law in a particular court. – see Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 342.” PER A. A. AUGIE, J.C. A.

RULES ON FORMULATION OF GROUNDS OF APPEAL – RULES GOVERNING FORMULATION OF GROUNDS OF APPEAL ARE DESIGNED ESSENTIALLY TO ENSURE FAIRNESS TO THE OTHER PARTY

“The rules relating to formulations of grounds of appeal are primarily designed to ensure fairness to the other side, and to insist on form rather than substance is to defeat the aims of justice – see Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652).” PER A. A. AUGIE, J.C.A.

GROUND OF APPEAL IN AN ELECTION PETITION – A GROUND OF APPEAL FROM A FINAL JUDGMENT IN AN ELECTION PETITION THAT INCORPORATES A COMPLAINT AGAINST AN INTERLOCUTORY DECISION IS COMPETENT.

“It is settled that a ground of appeal from a final judgment in an election petition that incorporates a complaint against an interlocutory decision is competent. – see Orji v. PDP (2009) 12NWLR (Pt. 1161) 310, Aondoakaa v. Ajo (supra) and Maduako v. Onyejiocha (2009) 5 NWLR (Pt. 1134) 259.” PER A. A. AUGIE, J.C. A.

BRIEF OF ARGUMENT – A MERE ASSERTION IN A BRIEF CANNOT PASS AS A SUBMISSION. – ORDER 17 RULE 3 (2) OF THE COURT OF APPEAL RULES 2007.

“A mere assertion that the decisions of this court have made the arguments on the issue at stake academic is unknown to our rules, and cannot pass as a submission in any brief of argument. Order 17 rule 3 (2) of the Court of Appeal Rules 2007.” PER A. A. AUGIE, J.C. A.

BURDEN OF PROOF –THE BURDEN OF PROOF LIES ON HE WHO WOULD LOSE IF NO EVIDENCE WERE ADDUCED ON EITHER SIDE. – SECTION 135 (1) AND 136 OF THE EVIDENCE ACT.

“The law relating to burden of proof is simple and straightforward. He who asserts must prove. – see Section 135 (1) Evidence Act. The burden lies on the party who would fail if no evidence at all were given on either side – see Section 136 of the same Evidence Act.” PER A. A. AUGIE, J.C. A.

JUDGEMENT AGAINST THE WEIGHT OF EVIDENCE – A JUDGMENT AGAINST THE WEIGHT OF EVIDENCE IS TO THE EFFECT THAT CONSIDERATION WAS NOT GIVEN TO THE TOTALITY OF THE EVIDENCE ADDUCED IN REACHING A DECISION.

“When an appellant complains that the decision of the lower court is against the weight of evidence, what he means is that the evidence adduced by him is balanced against that adduced by the respondent, the judgment given is against the weight, which should have been given to the totality of the evidence. In other words, appeal against the weight of evidence is basically on the facts – see Agbamu v. Ofili (2004) 5 NWLR (Pt. 867) 540.” PER A. A. AUGIE, J.C. A.

GROUND OF APPEAL – DUTY OF THE COURT IN MAKING A DISTINCTION BETWEEN GROUNDS OF LAW, GROUND OF FACT AND GROUND OF MIXED LAW AND FACT.

“It is always difficult to distinguish a ground of law from a ground of fact or mixed law and fact, however, in making the distinction, an appellate court must examine the grounds thoroughly to see whether it reveals a misunderstanding by the lower court of the law or a misapplication by it of the law to be proved or admitted facts, in which case it would be a question of law; or one that will require questioning the evaluation of the facts before the application of the law, in which case it would amount to a question of mixed law and facts. – Ononuju v. A.-G., Anambra State (2009) 10 NWLR (Pt. 1148) 182, SC and Ogbechi v. Onochie (1986) 2 NWLR (Pt. 23) 484 at 491 SC.” PER A. A. AUGIE, J.C. A.

NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT – IT IS NOT EVERY ACT OF NON-COMPLIANCE THAT WOULD AMOUNT TO CORRUPT PRACTICES

“Every established act of corrupt practices amounts to non-compliance with the provisions of the Electoral Act, but it is not every act of noncompliance that would amount to corrupt practice because corrupt practice imputes a criminal element, the burden of which is proof beyond reasonable doubt.” PER A. A. AUGIE, J.C. A.

BURDEN OF PROOF IN CIVIL CASES – THE BURDEN OF PROOF SHIFTS FROM ONE PARTY TO THE OTHER IN CIVIL CASES

“The burden in civil trials shifts from one party to the other, depending on the nature of the case and the evidence adduced by either party. – see Section 137 (1) and (2) of the Evidence Act. In effect, where a party has offered enough evidence and the other would be the one to lose if no evidence is adduced in rebuttal, the burden will shift to that other party.” PER A. A. AUGIE, J.C. A.

FUNCTION OF A GROUND OF APPEAL – A GROUND OF APPEAL HAS THE EFFECT OF STATING WHY THE DECISION COMPLAINED OF IS CONSIDERED WRONG BY THE PARTY APPEALING AGAINST SUCH DECISION-THE ESSENCE OF STATING THE PARTICULARS OF ERROR IS TO HIGHLIGHT THE COMPLAINT AGA

“In simple terms, a ground of appeal is the totality of the reasons why the decisions complained of is considered wrong in law or fact or a mixture of law and fact by the party appealing against the judgment – see- Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357 at 395 SC, Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 1113)278 SC. the essence is to avail the opposite party of the nature of the complaints by the appellant in words that are not vague, and the purpose of particulars is to elucidate and advance reasons for complaints in the grounds of appeal- see Abiodun v. F.R.N. (2009) 7 NWLR (Pt.1141) 489, in other words, particulars of error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. – see Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (Pt. 1172) 67 SC.” PER A. A. AUGIE, J.C. A.

ELECTION PETITION – ACCOMPANYING DOCUMENTS TO AN ELECTION PETITION

“An election petition must be accompanied with written statement on oath of the witnesses, and any fact required to be proved at the hearing must be proved by written deposition.” PER A. A. AUGIE, J.C. A.

THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTIONS 2007- THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTIONS 2007 BEING A RULE OF COURT MUST BE OBEYED.

“The Election Tribunal and Court Practice Directions 2007, qualifies as a rule of court, and since the rules of court must be obeyed, it therefore follows that the said Practice Directions must also be obeyed.” PER A. A. AUGIE, J.C. A.

DEPOSITION – MEANING OF A DEPOSITION

A “deposition” is a witness’s out-of-court testimony that is reduced to writing for later use in court. – see Black’s Law Dictionary, 7th Ed.” PER A. A. AUGIE, J.C. A.

INTERLOCUTORY APPEAL – INTERLOCUTORY APPEALS FROM AN ELECTION TRIBUNAL LIES AS OF RIGHT TO THE COURT OF APPEAL

“It is not the law that an interlocutory appeal does not lie as of right from an election tribunal to this court, and I will be stating the obvious when I add that any decision of this court to the contrary has been overruled by the Supreme Court in Abubakar v. Yar’adua (supra)- see Uduma v. Arunsi (2009) 17 NWLR (Pt. 1170)310.” PER A. A. AUGIE, J.C. A.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria, 1999.

2. Court of Appeal Rules, 2007.

3. Election Tribunal and Courts Practice Directions, 2007.

4. Electoral Act, 2006.

5. Oath Act

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