Fresh election is in order where no clear winner emerged (3) (C)
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
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)……. RESPONDENT
From a holistic reading of the pleadings of the Appellants, it is more than apparent that the grouse of the Appellants relate to the three local government areas of Obingwa, Osisioma and Isiala Ngwa North where the elections were characterized by the electoral irregularities and non-compliance with the Electoral Act, which resulted in massive over-voting as shown in the evidence of PW19, the INEC official whose evidence was not controverted by the Respondents. It is thus clear that Reliefs 3 and 4 are not contradictory of each other. If the votes which the 3rd Respondent wrongfully awarded the 1st Respondent in the three local government areas are discountenanced, the 1st Appellant would emerge as having scored the majority of lawful votes cast at the election. The situation here is quite different from what happened in the cases cited by the learned senior counsel for the Respondent.
The situation in the present appeal is quite different. There is no contradiction in the two reliefs of the Appellants. Without the scores in the three local government areas on the basis of which nullification of the declaration of the 1st Respondent was sought, it was still be possible for the 1st Appellant to emerge the winner of the election with the necessary spread. This consequently is not a case of approbating and reprobating or saying yes and no in response to the same thing. It is not a situation where the reliefs that are relevant and appropriate in the light of the facts contained in the pleadings of the Appellants/Petitioners won the case no benefit will inure to them due to incompetent reliefs. With due respect, the Tribunal erred in striking out reliefs 3 and 4. The order of the Tribunal striking out reliefs 3 and 4 is hereby set aside. Consequently, reliefs 3 and 4 of the Appellants’ petition are restored.
The issue is resolved in favour of the Appellants and against the Respondents.
Whether the learned trial Judges of the Tribunal were not wrong by holding that the 1st Appellant abandoned his claim because he did not personally testify?
The learned senior counsel for the Appellants is correct that PW20 in his witness deposition at pages 185 to 248 particularly in paragraph 76 at page 247, Volume 1 of the record of appeal, adopted the reliefs claimed for by both Appellants. PW20 deposed: ‘’that the Petitioners pray as follows:’’ it is consequently a distortion of the evidence of PW20 to say that he adopted the claims for the 2nd Appellant/Petitioner only. As submitted by the learned silk, the Supreme Court case of: Jekpe vs. Alokwe (2001) 19 WRN 105 at 122; settles the matter. In this case, Uwaifo JSC (Rtd) at pages 267-268, paras. H-B observed viz:
The point to make here is that the principle of law that the evidence must be led to support averments in a statement of claim does not require a plaintiff to recite viva voice by heart in his testimony before the court each item of the reliefs he seeks in his statement of claim. A statement of claim may contain a variety of reliefs. The preparation of the reliefs sought by the plaintiff is a function of the legal practitioner who settles the statement of claim from the brief he receives from his client. A plaintiff is not expected to know the niceties of the reliefs derivable from the totality of the facts he confides to his solicitor. Mr Okeaya-Inneh SAN was quite right when he said the plaintiffs were claiming the reliefs stated in the amended statement of claim. It was therefore surprising that the learned trial judge thought that if a plaintiff did not in his oral evidence support his claim he would therefore lose his action.
Thus, if learned senior counsel for the Appellant makes his written submission on the reliefs claimed by the Appellants that should suffice, the Tribunal did not fortunately follow through with any pronouncement that the failure of the 1st Appellant/Petitioner to adopt his witness deposition meant he had abandoned the reliefs claimed. It wisely opted to accept PW20’s adoption of his written deposition containing the reliefs as adequate. It considered the reliefs at page 5,564, volume 5 of the appeal. It is in the light of the stance taken by the Tribunal that the rather lengthy and ingenuous submissions of Dr. Ikpeazu, SAN, for the 2nd Respondent is of no moment. The 2nd Respondent did not cross appeal and did not file a Respondent’s Notice to contend. His arguments that the reliefs personal to the 1st Appellant cannot be granted because election petition is sul generic and different from ordinary writ of summons in which a party to a suit need not testify cannot now be canvassed as that would be going contrary to the decision of the Tribunal without any cross appeal. Therefore the fact that the 1st Appellant/Petitioner did not testify to state his claim orally is of no moment and cannot be a valid reason to hold that he abandoned his claim.
This issue is again resolved in favour of the Appellants and against the Respondents.
Whether having regard to the pleadings and the evidence on record the learned trial judges of the Tribunal were not wrong in holding that the claims of the Petitioners were not grantable?
Learned senior counsel submitted that the Tribunal was wrong in holding the above. He submitted that the Appellants claimed five reliefs in the petition as shown at pages 83 to 84 of vol. 1 of the record of appeal. He further opined that it is not shown in the holding of the Tribunal above the exact reasons, as distinct from the mere generalisation in the holding, why the claims of the Petitioners/Appellants were not grantable. He submitted that it is, for instance, not known what aspect of the evidence the Tribunal had in mind, which relevant laws it had in mind and which decided cases would justify the bland holding that the Petitioners’ claims were not grantable.
Learned senior counsel submitted that every court or Tribunal has a duty to resolve properly all issues raised before it and to adduce intelligible reasons for its decisions. He further relied on the case of Uzuda vs. Ebigah LPER (2009) SC 348/2002 at page 22, that the duty is not merely satisfied by merely saying that based on the evidence, the law and decided cases, a claim is not grantable.
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