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  • 2004-01-26
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Kingibe vs. Maina

HEEBAH IRETI KINGIBE

V

ISA MAINA

PRESIDING ELECTORAL COMMISSIONER

( FCT ABUJA )

RETURNING OFFICER, SENATORIAL

ELECTION FOR FCT (Mr. Paul Avan-Nonay)

THE ELECTORAL OFFICER, Kwali Area

Council.

THE ELECTORAL OFFICER, Abuja Municipal

Area Council.

THE ELECTORAL OFFICER, Kuje Area

Council.

THE ELECTORAL OFFICER, Bwari Area

Council.

THE ELECTORAL OFFICER, Gwagwalada Area

Council.

THE PRESIDING OFFICER, Igu Koro Polling

Station.

THE PRESIDING OFFICER, Panunnuke Polling

Station.

THE PRESIDING OFFICER, Piko Village Polling

Station.

THE PRESIDING OFFICER, Galuwy Polling

Station.

THE PRESIDING OFFICER, Kurmin Daudu

Polling Station.

THE PRESIDING OFFICER, Tungan Bilimi

Polling Station.

THE PRESIDING OFFICER, Kawu Primary

School Polling Station.

THE PRESIDING OFFICER, Bwari 11/Central

Pry. School Polling Station

THE PRESIDING OFFICER, Bwari 1/Central Pry.

Sch. Polling Station.

THE PRESIDING OFFICER, Barogori Pry. Sch.

Polling Station.

THE PRESIDING OFFICER, Zuma 1 Polling

Station.

THE PRESIDING OFFICER, Kawli 11 Pry. Sch.

Polling Station.

THE PRESIDING OFFICER, Ashara Polling

Station.

THE PRESIDING OFFICER, Kwaita Isoho

Polling Station.

THE PRESIDING OFFICER, Gbesan Village

Polling Station.

THE PRESIDING OFFICER, Iddo Sarki Polling

Station.

THE PRESIDING OFFICER, Dutse Baba Pry.

School Polling Station.

THE PRESIDING OFFICER, Durumin II Pry. Sch.

Polling Station.

THE PRESIDING OFFICER, Area 2 Rd. Junction Mimi Mkt. 1 Polling Station.

THE PRESIDING OFFICER, Karshi Secretariat

Polling Station.

THE PRESIDING OFFICER, Central Pry. Sch.

Polling Station.

THE PRESIDING OFFICER, Kafanty Polling

Station.

THE PRESIDING OFFICER, Jikwoyi Phase II.

THE PRESIDING OFFICER, Jikwoyi Pry. Sch.

Polling Station.

THE PRESIDING OFFICER, Gugugu Polling

Station.

THE PRESIDING OFFICER, LCA Pry. School

Polling Station.

THE PRESIDING OFFICER, Area CII Nyanya

Back of Bk 125 Polling Station.

THE PRESIDING OFFICER, Chukuku Polling

Station.

THE PRESIDING OFFICER, Kayardai Polling

Station.

THE PRESIDING OFFICER, Tukpeki Pry. Sch.

Polling Station.

THE PRESIDING OFFICER, Dagiri 1 Polling

Station.

THE PRESIDING OFFICER, Angwa Dodo 1

Polling Station.

THE PRESIDING OFFICER, Karu Polling

Station.

THE PRESIDING OFFICER, Angwan Sarki

Orozo Polling Station.

INDEPENDENT NATIONAL ELECTORAL

COMMISSION (INEC)

COURT OF APPEAL

( ABUJA DIVISION )

GEORGE ADESOLA OGUNTADE, JCA( Presided )

ZAINAB ADAMU BULKACHUWA, JCA ( Read the Lead Judgment )

ALBERT GBADEBO ODUYEMI, JCA

CA/A/EP/131/2003

MONDAY, 10TH NOVEMBER, 2003

APPEAL - Findings of trial court - When appellate court will nullify

COURT - Trial court - Findings of trial court - When appellate court will nullify

ELECTION PETITION - Ballot papers - Where number of same used and unused do not tally with number of ballot papers issued at a polling  station - Mandatory duty of a presiding officer

ELECTION PETITION - Complaint on irregularities, unlawful votes and non-compliance - Need for to be tied to the effect of same on the result of election

ELECTION PETITION - Election irregularities and malpractices Instances of

ELECTION PETITION - Election result - Presumption of authenticity of - Standard of proof required to rebut same on ground of crime and  failure to score majority of lawful votes cast respectfully

ELECTION PETITION - Irregularities - When may affect return of an election

ELECTION PETITION - Issue of commission of crime - Standard of proof required of

ELECTION PETITION - Non-compliance - When becomes substantial

ELECTION PETITION - Non-compliance with Electoral Act - Burden of proof of - On whom lies - How discharged

ELECTION PETITION - Onus of proof - When shifts

ELECTION PETITION - Votes cast - Burden of proof of unlawfulness of - On whom lies

EVIDENCE - Presumption - Presumption of authenticity of election result  - Standard of proof required to rebut same on grounds of crime and failure to score majority of lawful votes cast respectfully

EVIDENCE - Proof - Onus of proof - Onus of proof in an election petition - When shifts

EVIDENCE - Proceedings of Judicial or Administrative Inquiry - Type of evidence of required to prove allegation of indictment

EVIDENCE - Proof - Issue of commission of crime - Standard of  proof required of

EVIDENCE - Proof - Non-compliance with Electoral Act - Burden of proof of - On whom lies - How discharged

EVIDENCE - Proof - Onus of proof in civil cases - Whether static

EVIDENCE - Proof - Unlawfulness of votes cast in an election - Burden of proof of - On whom lies

TRIBUNAL - Tribunal of Inquiry - What constitutes

Issues:

1.              Whether the appellant proved before the lower Tribunal that the 1st respondent was disqualified from contesting the election.

2.              Whether the appellant proved irregularities in the conduct of the election to warrant the lower Tribunal setting aside the election and return of the 1st respondent as a senator for the Federal Capital Territory.

3.              Whether the Honourable Tribunal resolved the issues submitted

to it for adjudication by the parties.

Facts:

The appellant as petitioner before the Abuja National Assembly

Election Tribunal was a candidate under the platform of All Nigeria Peoples Party (A.N.P.P.). The 1st respondent was also a candidate under the platform of Peoples Democratic Party. Both of them together with candidates from other parties, contested for the senatorial seat for the Federal Capital Territory for the National Assembly Election conducted on 12th April, 2003. At the end of the election, the 1st respondent was declared the winner and returned as elected having scored the highest number of votes. Appellant was dissatisfied with the conduct of the election and therefore filed a petition before the lower Tribunal alleging two grounds to wit:

1.             That the 1st respondent was disqualified from contesting the said election, ab initio; as he was indicted for embezzlement by an Administrative Panel of Inquiry of the Nigerian Army.

2.             That the election was marred with fundamental irregularities and non-compliance which affected the result of the election.

The appellant testified before the lower Tribunal and tendered exhibits, similarly the 1st respondent testified as DW1 and the DW2 - DW3 testified for the other respondents.

The following documents were tendered as exhibits before the lower Tribunal: Letter from the Nigerian Army dated 23rd Jan. 2003; Memo from the P.D.P. National Legal Adviser; Form EC8D; EC8E; Forms EC8A from the polling stations in dispute; Form EC8B, Letter of retirement from the Army of the 1st respondent dated 18th November, 2000; Letter dated 5th November, 2000; Letter dated 14th November, 2001 from the Permanent Secretary, Federal Ministry of Defence to the Accountant-General of the

Federation; INEC Guidelines; INEC Official Manual; Form EC8D; Form EC8E.

At the end of the trial the lower Tribunal found that the petitioner/ appellant has failed to prove all the grounds of the petition and dismissed same in its entirety.

Dissatisfied, the petitioner appealed to the Court of Appeal.