CORAM

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SIR. BIOBELE A. GEORGEWILL JCA

BALKISU BELLO ALIYU JCA

FOLASHADE AYODEJI OJO JCA

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PARTIES

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1. AGBAZUERE ANTHONY CHIDI BRAINS

2. PEOPLES DEMOCRATIC PARTY (PDP)

APPELLANTS 

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1. ONWUSIBE GINGER OBINNA

2. LABOUR PARTY (LP)

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The 1 st Appellant and the 1 st Respondent along with ten others were candidates that contested the election into the office of member of the House of Representatives for Isiala Ngwa North/Isiala Ngwa South Federal Constituency in Abia State that was conducted by the 3 rd Respondent (INEC) on the 25 th February 2023. At the conclusion of the election, the 3 rd Respondent declared and returned the 1 st Respondent as the winner of the election.

The Appellants challenged the declaration of the 1 st Respondent as the winner of the election by their petition claiming that the 1 st Respondent was not duly elected by the majority of the lawful votes cast at the election and that the election of the 1 st Respondent was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022.

The learned Judges of the Tribunal dismissed the petition for lack of merit. Aggrieved by the decision, the Appellants filed the instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1.  Whether the Tribunal was correct in finding no merit in and dismissing the objection of the Appellants that the 1st and 2nd Respondent’s Reply to the Petition and other processes filed by them in the Tribunal were invalid for being signed by a person not called to the Bar?

2.  Whether the Tribunal was correct in upholding the Preliminary objection of the 1st and 2nd Respondents, finding no merit in and dismissing the Appellants’ case that the 1st Respondent was not qualified to contest the questioned election?

3.  Whether the Tribunal below after evaluating the evidence adduced by the Parties to the Petition, was correct in finding no merit in and dismissing the Appellants Petition for failure to discharge the burden of proof on them to prove their case?

4.  Whether the Tribunal was correct in the exercise of its discretion to award costs of two hundred thousand Naira only (N200,000:00) to each of the Respondents against the Appellants whose Petition was dismissed?

 

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RATIONES DECIDENDI

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ELECTION PETITION – WHERE OBJECTION TO THE COMPETENCE OF A BRIEF OF ARGUMENT IS RAISED IN THE FINAL WRITTEN ADDRESS IN AN ELECTION PETITION

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Section 136(4) of the Electoral Act, 2022, which provides that “all objections filed in an election petition shall be determined at the time of final judgment.” Therefore, the objection to the competence of the 1 st and 2 nd Respondents’ brief of argument raised under this issue, though it ought to have been raised as a preliminary objection, it is still in order to be raised in the final written address and dealt with in the Judgment of the Tribunal, within the provisions of Section 136(4) of the Act. – Per B. B. Aliyu, JCA

 

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ELECTION – GROUNDS UPON WHICH AN ELECTION CAN BE QUESTIONED BY A PETITIONER

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Section 134(1) of the Electoral Act, 2022 which clearly stated three grounds upon which an election can be questioned by a petitioner, thus:

a) a person whose election is questioned was, at the time of the election, not qualified to contest the election;

b) the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act; or

c) the respondent was not duly elected by the majority of the lawful votes cast at the election.

A petitioner has the option to challenge the election on any, all or a combination of the grounds stated supra. – Per B. B. Aliyu, JCA

 

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GROUNDS OF PETITION – DUTY OF PETITIONERS TO PLEAD FACTS AND CLL EVIDENCE TO PROVE GROUNDS OF PETITION

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The Petitioners state that the Grounds upon which this Petition is based are as:

a. That the 1 st Respondent was not duly elected by the majority of the lawful votes cast at the election.

b. That the election of the 1 st Respondent was invalid by reason of non-compliance with the provisions of the Electoral Act 2022.

The Appellants were expected to plead facts and call evidence to prove these two grounds of the petition and not to expand it to include the qualification of the 1 st Respondent to participate in the election. That is not one of the grounds upon which they questioned the election. They cannot go beyond those grounds either in their pleadings or evidence. – Per B. B. Aliyu, JCA

 

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POLITICAL PARTY – THE PERSON WHO CAN SUE A POLITICAL PARTY FOR FAILING TO COMPLY WITH THE PARTY’S GUIDELINES OR THE PROVISIONS OF THE ACT

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My lords, Section 77(2) and (3) of the Act provides that every political party shall maintain a register of its members in both hard and soft copy and make such register available to INEC not less than 30 days before it conducts its primaries, congresses, or conventions. Section 84 (13) and (14) of the Act provides that an aspirant who has complaint against his political party that the Party’s guidelines or the provisions of the Act have not been complied with can approach the Federal High Court for redress. – Per B. B. Aliyu, JCA

 

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EVIDENCE – CONDUCT OF THE COURT OF APPEAL IN RELATION TO EVALUATION OF EVIDENCE BY A TRIAL COURT

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I refer to the Apex Court’s decision in the case of OWAKAH v. RSHPDA & ANOR (2022) LPELR- 57950(SC) (Pp. 24-25 paras. F),Per TIJJANI ABUBAKAR, J.S.C Where a Court of trial, unquestionably evaluates the evidence and justifiably appraises the facts, what the Court of Appeal ought to do is to find out whether there is evidence on record to justify the conclusion reached by the trial Court. Once there is sufficient evidence on record from which the trial Court arrived at its finding of fact, the Appellate Court cannot interfere with such findings. – Per B. B. Aliyu, JCA

 

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PETITIONER – DUTY OF THE PETITIONER ALLEGING THAT THE DECLARED WINNER OF AN ELECTION DID NOT SCORE THE MAJORITY OF LAWFUL VOTES CAST

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In the case of GBOMS & ANOR. VS. OGUNDU & ORS. (2019) LPELR-49026(CA), (Pp. 50-52 paras. B), Per GUMEL, J.C.A, summed up the duty on the Petitioner who alleged that the declared winner of the election did not score the majority of the lawful votes cast thus: …. In the instant appeal, the petitioners/Appellants alleged that the 1st respondent was not duly elected by majority of lawful votes cast at the election. The allegation is very weighty. It is an invitation to an election tribunal to compare and contrast figures. Therefore, in order to succeed, the petitioner, must as a starting point, specifically plead the existence of two sets of results emanating from the same election. After issues have been joined, a petitioner must in that circumstance adduce credible evidence that proves that the Respondent did not score the majority of lawful votes at the election. That is not all, the petitioner must plead and prove that the votes cast at the various polling units, the votes illegally credited to the declared winner, the votes which ought to have been deducted from that of the supposed winner in order to find out if it will affect the result of the election…. Where a petitioner claims to have scored a majority of lawful votes, he is to prove that on balance of probability…. – Per B. B. Aliyu, JCA

 

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COSTS – WHETHER THE TRIBUNAL HAS THE DISCRETION TO ORDER FOR COSTS

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…costs followed events and in this case, the Appellants’ petition was not proved. The Tribunal has the discretion to order for costs, and nothing was shown to us to tamper with the exercise of that discretion. – Per B. B. Aliyu, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Electoral Act, 2022

3. Evidence Act 2011

4. Legal Practitioners Act

5. Electoral Act, 2010

6. Electoral Judicial Proceedings Practice Directions, 2023

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