The Court of Appeal, Enugu has upheld the election of Victor Umeh of All Progressives Grand Alliance (APGA) as Senator representing Anambra Central senatorial district in the National Assembly.
In a unanimous judgment delivered Wednesday, the appellate court dismissed the appeal by Mr. Nkem Ekweozor, challenging the judgment of the Anambra Central Senatorial Election Petition Tribunal which upheld the victory of Umeh in the January 13, 2018 senatorial rerun in the district.
Ekweozor who was the candidate of the Mega Peoples Progressives Party (MPPP) in the senatorial rerun, had claimed that Umeh was not validly elected by majority of lawful votes cast at the election and that the election was marred by corrupt practices.
Ekweozor alleged that Umeh was not qualified to contest for the election, as he got his nomination while still holding the position of National Chairman of APGA.
The appellant who joined Umeh, APGA and Independent National Electoral Commission (INEC) as 1st, 2nd and 3rd respondents respectively, prayed the court to order INEC to conduct a fresh election and that Umeh should be disqualified from the fresh election.
Delivering judgment, the three-man Appeal Panel headed by Justice Uwani Musa Abba Aji noted that the appellant has made no reference to any particular primary election conducted by the 2nd respondent (APGA), from which Umeh emerged as the candidate.
The judge held that the appellant’s complaints on the issue of nomination of the 1st respondent, Umeh, “are at large and ex facie.”
According to him, there was no dispute on the primary election of the 2nd respondent, APGA, which produced Umeh as its candidate.
Citing relevant authorities, the judge stated that the appellant’s averments in his petition bother on matters of mere conjecture and speculation, which the court or tribunal does not have jurisdiction to act on.
Justice Abba Aji further warned that a court should refrain from indulging in speculation, as it is not part of judicial exercise but a mere guess work.
He stated the law as settled by decisions of the Supreme Court is that the issues of primary election, nomination and sponsorship of a person as the candidate of a political party “are definitely pre-election matters.”
He said the tribunal was right when it held that it was not clothed with the jurisdiction to look into the complaints raised by the petitioner, which relate to the nomination, sponsorship and candidature of the 1st respondent.
“The decision to inquire into the conduct of primary election by political parties resides in the Federal High Court, the High Court of a state or the High Court of the Federal Capital Territory as donated by section 87 (9) of Electoral Act, 2010 (as amended),”the judge said.
On the striking out of some paragraphs of the election petition by the trial tribunal, Abba Aji said he carefully perused the averments as contained in the stated paragraphs and completely agreed with the findings of the tribunal that the said paragraphs clearly and absolutely fell short of the requirements of the provisions of paragraph 4 (1)(d) of the Electoral Act and therefore resolved the issue in favour of the respondents and against the appellant.
On whether the tribunal rightly evaluated the documentary evidence presented before it, vis-à-vis the oral testimonies of the petitioner/appellant and his witnesses in the proof of the petition, the judge said “mere making of an allegation does not shift the burden of proof to the other party.”
“It is incumbent on the party making an allegation to adduce credible evidence in support thereof before the onus of disproving such allegation could shift to the other party. Whereas in the present case, allegations made were unsupported with any scintilla of credible evidence, the allegations by themselves fall flat and remain dead,” he said.
“The remaining issue is: Whether the tribunal was right when it ascribed probative value to the documents tendered and admitted where the 3rd respondent failed to call oral evidence in respect of such document. The 3rd respondent did not call any witnesses at the trial but rather tendered a set of documents from the bar with the consent of the other parties.
“The said documents were result sheets forms EC8C (1) and EC8B (1) for the respective local governments and were admitted as exhibits R12 TO R24 respectively.
“Before us while arguing the appeal, the Appellant asked this court to hold that the first Respondent was ineligible to have contested the said senatorial elections and consequently order that the candidate with the second highest votes in that election be returned elected.
“The implication of this volte face includes the fact that the appellant was no longer contesting the results as declared by the 3rd respondent.
“The further implication of this later posture of the appellant is that the arguments canvassed in respect of this issue are rendered academic. Courts exist to resolve live disputes between parties and would demur from delving into academic issues,” Justice Abba Aji said.
He added that in totality, the appeal is devoid of any form of merit and accordingly dismissed.
The other two justices, Moore Aseimo Adumein and Joseph Olubunmi Oyewole, concurred with the lead judgment.
The court however asked all the parties in the matter to bear their respective costs.
