Legalpedia Citation: (2023-11) Legalpedia 29968 (CA)

In the Court of Appeal

HOLDEN AT LAGOS, NIGERIA

Sat Nov 11, 2023

Suit Number: CA/OW/EP/HR/AB/27/2023

CORAM

SIR. BIOBELE A. GEORGEWILL JCA

BALKISU BELLO ALIYU JCA

FOLASADE AYODEJI OJO JCA

PARTIES

1. CHINWENDU JENSEN NWANGANGA
2. PEOPLES DEMOCRATIC PARTY (PDP)

APPELLANTS

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. MUNACHIM IKECHI ALOZIE
3. LABOUR PARTY
4. NWOKE MICHAEL IBE
5. YOUNG PROGRESSIVES PARTY (YPP)

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

The 1st Respondent (INEC) conducted the election for Member House of Representatives for Obingwa/Ugwunagbo/Osisioma Federal Constituency seat in Abia State on the 25th February, 2023. The 1st Appellant contested the election as the candidate of the 2nd Appellant, the 2nd Respondent contested under the platform of the 3rd Respondent, so also the 4th Respondent was sponsored to contest the election by the 5th Respondent along with the Appellants.

At the conclusion of the election, the 1st Respondent announced the results of the election showing that the 2nd Respondent won. The 1st Respondent declared the 2nd Respondent as the winner of the election and returned him elected as Member of the House of Representatives, representing the said Federal Constituency of Abia State.

The Appellants disagreed with the return of the 2ndRespondent, and they filed the amended petition claiming that the 2nd Respondent was not duly elected by majority of the lawful votes cast at the election, the 2nd Respondent was at the time of the election not qualified to contest the election and that the election of the 2nd Respondent was invalid by reasons of non-compliance with the provisions of the Electoral Act 2022.

The trial Tribunal dismissed the petition for lacking in merit. The Appellants aggrieved by the decision filed an appeal against the judgment of the Tribunal which constitutes the instant appeal.

HELD

Appeal dismissed

ISSUES

1. Whether the Tribunal acted under the misapprehension of the Appellants’ case and without jurisdiction and competence when they based their decision/judgment on the ‘petition’ on an incompetent process, which was no longer before the Tribunal, the petition having been duly amended and by order of the Tribunal’s?
2. Whether having regard to the relevant provisions of the 1999 Constitution (as amended), the Electoral Act, 2022 and Judicial authorities on the point, the Tribunal was correct in sustaining the 2nd and 4th Respondents’ objection to paragraphs 16(iii), 41, 42, 43, 44 and 45 of the petition and consequent striking out the said paragraphs 16(iii), 41, 42, 43, 44 and 45 of the petition as well as ground 16(iii), relief 47 (c),  (f), (h) and (i) of the petition on the grounds or for the reasons that the issues raised in the said paragraphs of the petition are pre-election matters under Section 285(14) of the 1999 Constitution (as amended) and so outside the jurisdiction of the Tribunal?
3. Whether from the totality of the pleadings and evidence adduced or laid, the Tribunal was right to dismiss the petition?

RATIONES DECIDENDI

RECORD OF APPEAL – THE IMPORTANCE OF THE RECORD OF APPEAL

It is the law that the Court and the parties are strictly bound by the record of appeal. – Per B. B. Aliyu, JCA

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

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

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

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

1. 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

ELECTION – QUALIFYING FACTORS ON WHICH AN ELECTION CAN BE CHALLENGED

Now Section 65 of the Constitution of Nigeria, 1999 provides for persons who shall be qualified to contest an election into the Senate or House of Representatives. For our purpose in this appeal, Sub-Section 2(b) of Section 65 is the relevant provision, and it provides that:

a person shall be qualified for election under subsection (1) of this Section if-

1. he has been educated up to at least School Certificate level or its equivalent; and

1. he is a member of a political party and is sponsored by that party.

Therefore, being a member of a political party and being sponsored by that party to contest the election is a qualifying factor on which an election can be challenged. The Tribunal erred in holding that the issue of qualification regarding the sponsorship by a political party is a pre-election matter. It can be a post-election matter when the qualification of a candidate is challenged on the ground that he was not a member of a political party or that he was not sponsored by a political party to contest the questioned election.  – Per B. B. Aliyu, JCA

APPELLANTS – DUTY OF AN APPELLANT CLAIMING THAT A ‘CANDIDATE’ IS NOT DULY IN THE REGISTER OF MEMBERS OF THE PARTY SPONSORING THE CANDIDATE

However, the Appellants having asserted that the 2nd and 4th Respondents’ respective names were not duly in the registers of members of the 3rd and 5th Respondents must prove it by credible evidence having in mind that they are not, themselves, members of the 3rd and/or 5th Respondents, the evidence must be cogent and strong to prove that allegations. – Per B. B. Aliyu, JCA

APPEAL – DUTY OF AN APPELLATE COURT IN THE DETERMINATION OF AN APPEAL BEFORE IT

When it comes to evaluation of evidence and finding of facts based on evidence presented, the trial Tribunal is in a very eminent position, having seen the witnesses testify and assessed them. In the case of NONGO VS. ACHADO & ORS. (2023) LPELR-60110 (SC), the Apex Court, per M. L. GARBA, JSC, held that:

It must be restated that the duty of an appellate Court in the determination of an appeal before it is to review the process of decision making by a trial Court and find out if there exist the errors complained of by an appellant against the decision or judgment of that Court, either of procedure or application of the law to the facts which are substantial to affect the conclusion or decision so as to render it unsustainable in law. Even in appeals challenging evaluation of evidence by a trial Court, the Court below, has no duty to embark on a wholesale re-valuation of the evidence evaluated by a trial Court, but only has the duty to look at and review the aspect of the specific material evidence said not to have been properly evaluated by the trial Court to find out if any errors were committed and then correct them….  – Per B. B. Aliyu, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022
3. Evidence Act, 2011
4. INEC Regulations and Guidelines for the Conduct of Election 2022

 

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