By Kayode Matthew
The Court of Appeal, Enugu Judicial Division had on February, 10 2009 delivered a judgment in a suit where it declared Senator Joy Emodi of the Peoples Democratic Party, (PDP) as the winner of the election into the National Assembly for Anambra North Senatorial District which was held on April 28 2007.
The same Court of Appeal on March 25 2010 delivered another judgment declaring Hon. Alphonsus Uba Igbeke of the All Nigeria Peoples Party (ANPP) the winner of the same election into the same senatorial district without making reference to or setting aside the earlier decision. Thus, we have two conflicting decisions from the same appellate court which unfortunately is the final court on election matters. But how did the court arrive at giving conflicting decisions on the same subject matter?
After the National Assembly elections held on April 28 2007, the Independent National Electoral Commission (INEC), declared Senator Joy Emodi of the PDP as winner. Three candidates including Alphonsus Igbeke who participated at the election challenged this declaration before the National Assembly, Governorship and Legislative House Election Petition Tribunal sitting at Awka which consolidated the three petitions.
The election petition tribunal in its judgment delivered on June 17 2008 resolved the two main issues in dispute: Was there election on the 28/4/07 in the Onitsha South and Ayamelum Local Government Areas in the Anambra North Senatorial District; In the other five Local Government Areas of Anambra East, and West, Onitsha North, Ogbaru and Oyi which of the results as tendered by the petitioner and the 1st Respondent in evidence are the authentic genuine result of the election held on 28/4/07 in the Anambra North Senatorial District in the National Assembly Election.
In its judgment, the Election Petition Tribunal held that: â€œupon a review and evaluation of the evidence led by the petitioner (Alphonsus Igbeke) it is a far cry from the legal requirements o proof of an allegation of non voting and no Election and we hold the petitioner has failed to discharge the burden placed on him to prove that the Election did not hold in Onitsha South and Ayamelum Local Government Areas on 28/4/07. He neither called any single voter in these two local governments areas nor tendered any unmarked voters card or an unmarked voters register to show that there was no accreditation of voters in these two local government areas.
On the other hand, though no such initial burden was placed on the 1st respondent (Emodi), to show that the election held, in the absence of any credible evidence of no election by the petitioner, the 1st respondent led unchallenged evidence that she voted in Onitsha South Local Government Area on 28/4/07 and tendered her marked voters card and also called DW2 who led unchallenged evidence that he voted in Ayamelum Local Government Area on 28/4/07 and also tendered his marked voters register.
â€œIn the circumstances therefore and on the credible unchallenged evidence of the 1st respondent and her witness, we find as a fact that the election of 28/4/07 was duly held in Onitsha South and Ayamelum Local Government Areas in the Senatorial District and that the results generated in those election from the polling units and duly collated at the various levels of collation are presumed genuine and authentic and are the valid scores of the candidates in those two local government areas and we are not impressed with the belated attempt to attack the results of these two local government areas in the address of the learned SAN for the petitioner as that was never part of the case of the petitioner as he was content with relying on his unproved allegation that the election in these two local government areas did not hold due to non distribution of election materials in the absence of the polling units results sheets. â€œWe have already found that the petitionerâ€™s witnesses were not truthful witnesses and we do not believe them and would therefore attach no weight to their very unreliable evidence.
â€œConsequently, the only issue for determination is hereby resolved in favour of the 1st respondent and we find as a fact that in the Senatorial Election in the Anambra North Senatorial District held on 28/4/07 the 1st respondent scored a majority of the total valid votes score of 326,700 as against the petitionerâ€™s total valid votes score of 12,466 and the 1st respondent was thus validly returned as duly elected and so declared by the 2nd to 4th respondents (INEC). We hold firmly therefore that the 1st respondent was validly elected and returned as the winner of the Senatorial Election of 28/4/07 in the Anambra North Senatorial District by the 2nd to 4th respondents.
Dissatisfied with this judgment, the Labour Party candidate in the Senatorial Election, Hon. Jessie Balonwu and the ANPP candidate, Hon. Alphonsus Uba Igbeke filed separate appeals against the judgment at the Court of Appeal, Enugu. The appellate court comprising Justices Victor A.O.Omage, M.Ladan Tsamiya and Olukayode Ariwoola decided Jessie Balonwuâ€™s appeal on February 10 2009. In the judgment delivered by Justice Victor Omage, the court held that the Election Petition Tribunal was right to disbelieve the appellant and the witnesses when they depose that election materials were not distributed.
The election was properly conducted. The court below was right to uphold the election of the 1st respondent. The appellant also failed to make out a case of non-compliance with the provisions of the Electoral Act 2006. The contradictory evidence of the appellant witnesses fail to discharge the onus of proof that there was no compliance with the Electoral Act 2006. The court below would have been wrong to nullify the election of the 1st respondent and the court below was right to refuse to nullify the election of the 1st respondent because the appellant is not entitled to succeed in the petition without the joinder of presiding officers. Why were the presiding officers not joined, the answer will be that they would have spoken the truth and the falsity of petitioner would have been revealed. The partiesâ€™ failure to join the presiding officers is fatal to the petition of the appellantâ€. The court therefore dismissed the appeal.
Justice Mohammed L.Tsamiya who concurred with the judgment said, â€œI had a preview of the lead judgment of my learned brother, Omage JCA which has just been delivered. I agree entirely with his reasoning and conclusion that this appeal lacks merit and deserves to fail. My learned brother has exhaustively dealt with all the relevant issues in the appeal and resolved same. I therefore have nothing more to add. The appeal is accordingly dismissed. I abide by the consequential orders made in the said lead judgment including the order as to costsâ€. JusticeÂ Ariwoola in his concurring judgment said, I read in advance the lead judgment of my learned brother Victor Omage. I agree with the reasoning and conclusion in this appeal and I abide by the consequential order that is contained in the judgmentâ€.
Justices Mohammed L.Tsamiya and Olukayode Ariwoola who were part of the panel that upheld the election of Senator Joy Emodi were members of another panel that decided another appeal filed by the ANPP candidate, Hon Alphonsus Igbeke against the same judgment of Election Petition Tribunal, Awka. In fact, Justice Olukayode Ariwoola wrote the lead judgment where he resolved all the issues in favour of the ANPP candidate and declared Senator Joy Emodi was not duly elected by a majority of lawful votes cast at the election and further ordered that Alphonsus Igbeke should be issued with certificate of return.
In the judgment delivered on March 25 2010 the Court of Appeal faulted the lower tribunal for failing to properly evaluate the evidence of the petitionerâ€™s witnesses and to ascribe probative value to their evidence. The court also held that the tribunal was wrong to have admitted and accorded probative value to the results of the election tendered by Senator Joy Emodi as they were not filed along with her reply to Igbekeâ€™s petition before the tribunal in accordance with the requirements of the Practice Directions 2007.
According to Justice Ariwoola, â€œthese documents ought not to have been admitted or received in evidence at all in the first instance, much more relying on the documents which were neither frontloaded with the 1st respondentâ€™s reply as required by the Practice Direction nor indeed physically available for the trial of the case as Exhibits. Therefore, relying on them as holding that they constitute valid and authentic results of the election in dispute was a grave error on the part of the tribunal and has occasioned miscarriage of justice, to say the leastâ€.
The court further held that â€œthe respondents in the instant case who asserted the positive fact of holding election had the burden to prove the fact which burden they failed woefully to discharge after it had shifted to them. Therefore, the tribunal was wrong in its decision that the appellant did not prove that election did not hold in Onitsha South and Ayamelum Local Government Areas. The burden was on the respondents to prove that election held and the failed to discharge the burden. Accordingly this issue is resolved in favour of the appellant but against the respondents.
â€œThe tribunal adopted the unit results of the 1st respondent as the authentic one and thereupon held that the appellant failed to prove that he scored the majority of the votes cast at the election. This decision of the tribunal was based on the wrongful admission and attachment of probative value to the unit results tendered by the 1st respondent which ought not to have been admitted by the tribunal much more attach any probative value to any of them. â€œIt is clear that the appellant won the majority of lawful votes cast in the election held on 28/4/07 and ought to have been returned and declared winner.
The 1st respondent was not duly elected by a majority of lawful votes cast at the election. Accordingly, the 2nd respondent is ordered to withdraw the Certificate of return issued to the 1st respondent forthwith. It is further ordered that the appellant be issued with certificate of return without any further delayâ€.
It is a statement of law that a court is not bound by its previous decisions since it can overrule its earlier decision particularly it was arrived at in error. In doing so however, the court is duty bound to refer to its earlier decision on the matter and distinguish it out for the late one to replace it.
It is very worrisome that the judge who delivered the judgement in Igbekeâ€™s appeal sat in the earlier case filed by Balonwu and knew of its existence. He should have referred to the earlier case which was on the subject matter with the latter case. The Igbekeâ€™s case was decided as if nothing exists. On the issue of superiority of the two conflicting decisions of the Court of Appeal on the same subject matter of election conducted on 28/4/2007 in Anambra North Senatorial District, the first judgment should prevail particularly since the second declaration did not mention the first declaration or distinguish it. This was the decision of the Court of Appeal in 2005 in the case of Agbakoba Vs Ikpeazu.