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. ENGR. OGBONNA EBEJI ABARIKWU

2. ALL PROGRESSIVES GRAND ALLIANCE

APPELLANTS 

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1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

2. CHIEF OBINNAL AGUOCHA

3. LABOUR PARTY (LP)

4. RIGHT HON. CHINEDU ORJI

5. PEOPLES DEMOCRATIC PARTY (PDP)

RESPONDENTS 

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AREA(S) OF LAW

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

 

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SUMMARY OF FACTS

The 1st Appellant, the 2nd Respondent and 4th Respondent were candidates in the election conducted by the 1st Respondent (INEC) on the 25th February 2023 for the House of Representative Seat representing Umuahia North/Umuahia South Ikwuano Federal Constituency which was to be conducted in all the polling units of the said Constituency on the 25th February 2023.

They pleaded in paragraph 9 of the Petition that, though the election was inconclusive, the 1st Respondent still declared results showing the that the 1 st Appellants scored 2,758 votes, the 2nd Respondent scored 48, 191 votes and the 4th Respondents scored 35, 196 votes. Based on the said that results, the 1st Respondent declared the 2nd Respondent the winner of the election and returned him elected.

The Appellants contested the return of the 2nd Respondent as the winner of the election, insisting that the election was inconclusive and therefore the 2 nd Respondent cannot be declared winner. The Appellant also claimed that the 2nd Respondent whose election is challenged was, at the time of the election not qualified to contest, the election was invalid by reason of non- compliance with the provisions of the Electoral Act, 2022, and that 2nd Respondent was not duly elected by majority of lawful voted cast at the election.

The learned Judges of the Tribunal found no merit in the petition and dismissed it with N250,000 cost awarded to the Respondents. The Appellants were aggrieved with the judgment and 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 learned Judges of the Tribunal were right when they dismissed the Appellants’ application to amend the petition to wit- to delete “Ikwuano/Umuahia Federal Constituency” wherever occur in the petition and replace them with Umuahia North/Umuahia South Ikwuano Federal Constituency?

2.  Whether the learned Judges of the Tribunal were right when they held that the Appellants’ issues of double nomination of the 2nd Respondent borders on pre-election complaints, and thereby declined jurisdiction to entertain that ground of Petition?

3.  Whether having regards to the unchallenged, un-discredited and cogent oral and documentary evidence tendered by the Appellants at the trial, the Tribunal was right in holding that the Appellants did not prove their Petition?

 

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RATIONES DECIDENDI

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AMENDMENT – AMENDMENTS ALLOWED TO A PETITION OUTSIDE THE 21 DAYS PROVIDED BY S. 132 (7) OF THE ELECTORAL ACT

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…it is the provisions of Paragraph 14(2)(a)(i) and (ii) of the First Schedule to the Electoral Act 2022 that are the applicable.

The said paragraph allows amendment to a petition outside the 21 days provided by Section 132(7) of the Electoral Act for filing petition. However, no alteration may be made “effecting a substantial alteration of the ground or the prayer in the election petition.” The reason for restricting the amendment to only that which does not alter the ground of the petition, or the prayers is so as not to tamper with the strict 21 days provisions of the Constitution. The Electoral Act recognizes that there may be need to make some amendment to the petition and allowed it as a procedural issue. – Per B. B. Aliyu, JCA

 

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DOUBLE NOMINATION – THE LAW AND PENALTY ON DOUBLE NOMINATION BY MORE THAN ONE PARTY OR IN MORE THAN ONE CONSTITUENCY

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The provisions of Section 35 of the Electoral Act, 2022 prohibits a candidate from allowing himself to be nominated by more than one political party or in more than one constituency for an election. Where a candidate allows himself to be nominated by more than one political party, the nomination will be void and it will be a ground of disqualification in the post-election petition at the Election Tribunal. – Per B. B. Aliyu, JCA

 

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DOUBLE NOMINATION – WHETHER THE ISSUE OF DOUBLE NOMINATION COULD BE A POST- ELECTION ISSUE

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…it is correct, the issue of double nomination could be a post-election issue… – Per B. B. Aliyu, JCA

 

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BURDEN OF PROOF – BURDEN OF PROOF IN AN ELECTION PETITION

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the Appellants have the burden to prove the affirmative of their grounds of appeal because they will fail if no evidence is given on their grounds of the petition. This is the position of our law entrenched in Section 131 to 134 of the Evidence Act, 2011. And so regardless of whether

1st , 3rd to 5th Respondents call evidence, as far as the grounds of the petition are concerned, the Appellants must rely on the strength of their case to succeed in the declaratory reliefs they sought. The logic of that principle of law (as I stated supra) is that Appellants as Petitioners will fail if no evidence was called, coupled with the presumption of law on the regularity of election result declared by INEC. See MAIHAJA VS. GAIDAM (2017)LPELR-42474 (SC) and PDP VS. INEC (2022) 18 NWLR (PT.1863) 653. – 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

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