Consideration of appeal

• Pages: 409-409

409

Aderemi, J.C.A., in Iloegbunam v. Iloegbunam Suit No. CA/L/416/2000; (2001)

47 W.R.N. 72 at 83.

731. Order to make in election petition where nomination of successful

party was invalidated.

“The position resulting is that the 1st respondent, a qualified candidate had run

the election with an unqualified person as his Vice- Chairman. The inevitable

result is that the 1st respondent must be deemed as not validly nominated for the

election Section 95 of Decree No. 7 of 1997 provides: -” 95(1) Subject to

subsection (2) of this section, if the Tribunal determines that a candidate returned

as elected was not duly elected on any ground, the Tribunal shall nullify the

election. (2) If the Tribunal determines that a candidate returned as elected was

not duly elected on the ground that he did not score the majority of lawful votes

cast at the election, then the Election Tribunal shall declare as elected the

candidate who scored the majority of lawful votes cast at the election. In the

final result, I pronounce that the 6th respondent was not qualified to contest the

election. The consequence is that the 1st respondent was not validly nominated.

I therefore make an order nullifying the election. I direct NECON to organize

and conduct a fresh Chairmanship election for Gombi Area Council of Adamwa

State.” - Per Oguntade, J.C.A., in Mbukurta v. Abbo Suit No. CA/J/100/98;

(1998) 6 N.W.L.R. (Pt. 554) 456 at 465.

(43) CONSIDERATION OF APPEAL

732. Appellate Court’s duty in relation to the appeal before it.

(1) “An appellate Court is bound to base its consideration of every appeal before

it upon legal evidence upon which the Court below acted.” - Per Nnaemeka –

Agu, J.S.C., in Esangbedo v. State Suit No. S.C.61/1988; (1989) 20 N.S.C.C.

(Pt. III) 23 at 42; (1989) 4 N.W.L.R. (Pt. 113) 57 at 66.

(2) “Normally such evidence is not evidence on which it can act (vide) Esangbedo

v. The State (1989) 4 N.W.L.R. (Pt. 113) 57, 66, where this Court refused to

look at extra judicial statements which had some contradiction with the sworn

evidence of their makers during the trial, on the ground that they had not been

produced, used to contradict the witnesses, and tendered in evidence. It was

therein pointed out that an appellate Court is bound to consider an appeal before

it on the basis of legal evidence which the trial Court saw, considered and acted

upon.” - Per Omo, J.S.C., in Sambo v. State Suit No. S.C.133/1991; (1993) 6

N.W.L.R. (Pt. 300) 399 at 418.

405 Consideration of appeal Paras. 730-732