CORAM

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Mohammed Ambi-Usi Danjuma, Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe, Justice of the Court of Appeal

Uwabunkeonye Onwosi, Justice of the Court of Appeal

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PARTIES

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1. DR. BRIGHT ENABULELE

2. ACCORD PARTY

APPELLANTS 

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1. OKPEBHOLO MONDAY

2. ALL PROGRESSIVES CONGRESS (APC)

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS 

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AREA(S) OF LAW

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ELECTION LAW, PRACTICE AND PROCEDURE, APPEAL, CONSTITUTIONAL LAW, EVIDENCE LAW, ELECTORAL MALPRACTICES, COURT JURISDICTION, SUBPOENA, PRELIMINARY OBJECTIONS, PLEADINGS, BURDEN OF PROOF, CORRUPT PRACTICES, NON-COMPLIANCE WITH ELECTORAL LAWS

 

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SUMMARY OF FACTS

The Edo State Governorship Election was conducted by the Independent National Electoral Commission (INEC) on 21st September 2024. The 1st Appellant, Dr. Bright Enabulele, was the candidate of the 2nd Appellant (Accord Party), while the 1st Respondent, Okpebholo Monday, was the candidate of the 2nd Respondent (All Progressives Congress). At the conclusion of the election, INEC declared the 1st Respondent as the duly elected Governor, having scored 291,667 votes against the 1st Appellant’s 222 votes.

Dissatisfied with the election result, the Appellants filed a petition on 11th October 2024 before the Edo State Governorship Election Tribunal, challenging the election on three main grounds: that the 1st Respondent was not duly elected by majority of lawful votes cast; that the election was invalid by reason of corrupt practices perpetrated by the Respondents; and that the election was invalid by reason of non-compliance with the Electoral Act 2022, INEC Guidelines, and the Constitution.

The Respondents filed preliminary objections challenging the competence of various paragraphs of the petition. The Tribunal deferred ruling on these objections, which were delivered contemporaneously with the main judgment. The Tribunal upheld the preliminary objections, struck out numerous paragraphs of the petition, and eventually struck out the entire petition for want of supporting facts.

Despite striking out the petition, the Tribunal proceeded to hear the matter on merit and dismissed it for lack of credible evidence. The Appellants called only three witnesses and failed to tender any documentary evidence, including election results. The Tribunal found the witnesses’ testimonies contradictory and unreliable. The Appellants had also sought to subpoena INEC staff, but these witnesses failed to appear, and the Appellants made no formal complaint to the Tribunal about this non-attendance.

The Tribunal delivered judgment on 2nd April 2025, dismissing the petition and affirming the election of the 1st Respondent. Aggrieved by this decision, the Appellants filed an appeal with six grounds on 21st April 2024.

 

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HELD

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1. The appeal was dismissed for lack of merit.

2. The Appellants’ Brief of Argument was struck out for being incompetent, having exceeded the 25-page limit prescribed by Paragraph 14(a) of the Election Judicial Proceedings Practice Direction, 2023.

3. The Court held that the Lower Tribunal was correct in upholding the preliminary objections and striking out the petition for vague and imprecise pleadings that failed to comply with Paragraph 4(1)(d) of the First Schedule to the Electoral Act, 2022.

4. The Court affirmed that the Appellants failed to prove their case with credible evidence and that the failure of INEC staff to honor subpoenas was not fatal to the Respondents’ case.

5. The judgment of the Edo State Governorship Election Tribunal delivered on 2nd April 2025 was affirmed.

 

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ISSUES

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1. Whether the Lower Tribunal was right in upholding the 1st, 2nd and 3rd Respondents’ Preliminary Objection and striking out/dismissing the Appellants’ petition. (Distilled from grounds 2 and 3 of the Notice of Appeal)

2. Whether the Lower Tribunal was right when it held that the Appellants failed to prove their petition by cogent and credible evidence to be entitled to the reliefs sought. (Distilled from grounds 4, 5 and 6 of the Notice of Appeal)

3. Whether failure of the 3rd Respondent to honour the subpoena issued against them is fatal to the case of the Appellants in relation to allegation of non-compliance in specified Local Government Areas. What the Lower Tribunal ought to have done. (Distilled from ground 1 of the Notice of Appeal)

 

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RATIONES DECIDENDI

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BRIEF OF ARGUMENT COMPLIANCE – PAGE LIMITATION REQUIREMENTS

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“Paragraph 14(c) of Election Judicial Practice Directions, 2023, is clear that ‘Any Brief of Argument which does not comply with these provisions shall be invalid’. The sentiment of the number of the pages with which the Brief of Argument exceeded the number of pages as required by law is immaterial, even if it is half a page.” – Per Uwabunkeonye Onwosi, J.C.A.

 

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STATUTORY PROCEDURE IN ELECTION MATTERS – SUI GENERIS NATURE

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“The principle of law is well established that proceedings in election related matters are sui generis. That is, election matters are in a class of their own, they are not identical with civil or criminal proceedings, hence, are governed by their own statutory provisions which regulate their practice and procedure and are time bound.” – Per Uwabunkeonye Onwosi, J.C.A.

 

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PARTICULARITY IN ELECTION PETITIONS – COMPLIANCE WITH PARAGRAPH 4(1)(D)

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“The pleadings as contained in various paragraphs of the petition were replete with expression such as, ‘at the polling units, the ward collating center’, ‘result emanating from these pulling units’, ‘votes from the polling units in all the polling units and wards’, ‘various locations’, ‘all various polling units’, ‘most of the polling units’ etc. but the petitioner failed to plead the particulars of the exact poling units and or wards where the alleged non-compliance and corrupt practices took place as required from them under Paragraph 4(1)(d) of the First Schedule to the Electoral Act, 2022.” – Per Uwabunkeonye Onwosi, J.C.A.

 

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MANDATORY NATURE OF ELECTORAL ACT PROVISIONS – DEAD ON ARRIVAL PETITIONS

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“The provisions of Paragraph 4(1) of the First Schedule to the Electoral Act which provided for the contents of an election petition are mandatory for a petitioner. In the words of the Supreme Court in the recent decision of Okechukwu V Obiano (2018) 9-12 MJSC 1, 24, A-G, the petition inflicted with a deficiency in the manner in which it sets out facts in support of the grounds of a petition will be adjudged dead on arrival.” – Per Uwabunkeonye Onwosi, J.C.A.

 

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INCONSISTENT RELIEFS – CONTRADICTION IN ELECTION PETITIONS

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“A matter of this nature is not acrobatic dance where parties rolls and summersault, blowing hot and cold. They are enjoined to be consistent in their pleadings.” – Per Uwabunkeonye Onwosi, J.C.A.

 

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SUBPOENA ENFORCEMENT – FORMAL COMPLAINT REQUIREMENT

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“From the record before us and as submitted by the Respondents, the Appellants did not present a formal complaint before the Tribunal. Parties are bound by the record of proceedings. All that the Appellants did was to express from the Bar that they were not able to procure their Witness whom they had subpoenaed. There was no application of any kind or any Order sought from the Tribunal in consequence thereof.” – Per Uwabunkeonye Onwosi, J.C.A.

 

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FRONTLOADING REQUIREMENT – NO DISTINCTION BETWEEN WITNESS CATEGORIES

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“The Lower Trial Tribunal is right in their holding because in this regime, no distinction is drawn between a subpoenaed witness, official witness and ordinary witness. All evidence required must be frontloaded within the time prescribed for filling the process which they are supposed to support.” – Per Uwabunkeonye Onwosi, J.C.A.

 

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INCOMPETENT BRIEF OF ARGUMENT – JURISDICTIONAL CONSEQUENCES

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“The issue of competence and validity of Brief of Argument before this Court, is a jurisdictional issue. A Court has no jurisdiction to entertain incompetent Brief of Argument.” – Per Uwabunkeonye Onwosi, J.C.A.

 

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DISTINCTION BETWEEN INCOMPETENT AND DEFECTIVE BRIEFS

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“It is pertinent for me here to draw a distinction between incompetent and defective briefs. An incompetent brief is one whose defect touches on the jurisdiction or power of Court to entertain the brief, while defective brief is one that is in breach of the rules of the appellate Court on brief writing, the brief is merely bad, faulty or inelegant.” – Per Uwabunkeonye Onwosi, J.C.A.

 

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BURDEN OF PROOF IN ELECTION PETITIONS – PREPONDERANCE OF EVIDENCE

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“The burden of proof does not shift from the Appellants to Respondents until the former has discharged the onus placed on him which is on the preponderance of evidence or balance of probability. However, where a Petitioner as the Appellants in this case fails to discharge this burden, then, the Respondent needs not prove any fact and the party alleging cannot rely on the weakness of the opponent’s case, particularly in declaratory action such as this one.” – Per Uwabunkeonye Onwosi, J.C.A.

 

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PRESUMPTION OF WITHHOLDING EVIDENCE – SECTION 167(D) LIMITATIONS

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“That the effect of failure to answer the subpoena does not lead to an adverse finding against the defaulting party. The appellant was entitled to issue committal processes or lead secondary evidence on the matter.” – Per Olabode Abimbola Adegbehingbe, J.C.A. (quoting Edozie, J.S.C.)

 

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UNARGUABLE APPEAL – INVALID BRIEF CONSEQUENCES

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“I am glued that the appeal strictu sensu was unargued in law; and therefore, deemed abandoned. This is because an appeal is argued on the basis of the Brief of Argument filed therein and adopted. In this matter, the Appellant filed a process which turned out to be an incompetent and invalid Brief of Argument; being invalid in law. It was a purported Brief of Argument, therefore.” – Per Mohammed Ambi-Usi Danjuma, J.C.A.

 

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CONTRADICTORY CLAIMS IN ELECTION RELIEF – NULLIFICATION VERSUS VICTORY

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“A contradictory claim to victory cannot be made alongside a claim to Nullify the election and to call for a fresh poll. How do you become the winner in a void election? Is aptly applicable herein as a contradiction in form and substance.” – Per Mohammed Ambi-Usi Danjuma, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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• Electoral Act, 2022

• Constitution of the Federal Republic of Nigeria, 1999 (as amended)

• Evidence Act, 2011

• Election Judicial Proceedings Practice Direction, 2023

• First Schedule to the Electoral Act, 2022

• INEC Guidelines for 2023 General Election

• Sheriff and Civil Processes Act

• Court of Appeal Rules

 

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