Legalpedia Citation: (2023-12) Legalpedia 89284 (CA)

In the Court of Appeal

Holden At Lagos

Tue Dec 5, 2023

Suit Number: CA/ABJ/EP/HR/RV/147/2023

CORAM

Jimi Olukayode Bada Justice, Court of Appeal

Mohammed Danjuma Justice, Court of Appeal

Paul Ahmed Bassi Justice, Court of Appeal

PARTIES

1. MR. VICTOR TAMUNO CHUKUIBI
2. LABOUR PARTY

APPELLANTS

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. BLESSING AMADI
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. DR. OMIETE OLULU BRIGGS (COLLATION/RETURNING OFFICER ON 25TH FEBRUARY, 2023)

RESPONDENTS

AREA(S) OF LAW

APPEAL, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The petitioners claimed they won the election to the Federal House of Representatives, Port Harcourt Constituency 2 elections but the only evidence they had to show for it was a recorded video where the returning officer did say they won the election.

There is however a direction as to the mode of declaring the winner of an election and it wasn’t adhered to by the returning officer who claimed to have been asked to declare the election inconclusive and which she complied with. Despite this however the petitioners ask the court to declare them the winners of the election that was declared inconclusive.

A supplementary election was conducted and the 2nd Respondent was declared winner of the supplementary election. The petitioners contested that the 2nd Respondent was not duly elected by a majority of lawful votes cast in the Federal House of Representatives, Port Harcourt Constituency 2 elections and therefore the declaration and return of the 2nd Respondent by the 1st Respondent as Member House of Representatives representing Port Harcourt Constituency 2 are unlawful, undue, null and void and of no effect whatsoever.

The petition went into hearing and was dismissed on 9th October, 2023. The Appellants being dissatisfied with the judgment of the Tribunal appealed to this Court hence the instant appeal

HELD

Appeal dismissed

ISSUES

1. Whether the learned trial Judges of the lower Tribunal when having admitted the documents tendered by the petitioners which are thus deemed admitted, including the FORM EC8E (II) to Final Declaration of results, ought not to have held that the 1st Appellant was validly declared winner of the election subject matter of this appeal upon collation of results by the RETURNING OFFICER of the 25/2/2023 election?
2. Whether the learned trial Judges of the lower Tribunal ought not to have applied the provisions of Section 24 (6) of the Electoral Act, 2022 to this case thus invalidating the purported supplementary election of 15/4/2023 having been held in defiance of the pendency of FHC/PH/CS/44/2023 and thus in substantial non-compliance with the provisions of the Electoral Act?
3. Whether the lower Tribunal did not misdirect itself when it held that the election of 25/2/2023 was inconclusive despite the abundance of indisputable evidence of declaration of the results of 25/2/2023 election by the 4th Respondent in line with Section 66 of the Electoral Act, 2022 and the GUIDELINES OF INEC for declaration of the results in an election as published by the 1st Respondent?

RATIONES DECIDENDI

RESPONDENT – THE ROLE OF A RESPONDENT IN AN APPEAL

In the case of DIRIWARI V. INEC & ORS (2023) LPELR-59990 (CA), this Court stated thus:

“It is trite that the role of a Respondent in an appeal is to defend the judgment of a lower Court and not assist the Appellant in attacking such a judgment and seeking that it be set aside by the appellate Court”.

​Furthermore, in the case of BUHARI & 2 ORS V. OBASANJO & ORS (SC 194/2003), (2003) 6 (14 November, 2003) the Supreme Court stated that:

“The traditional role of a Respondent in an appeal is to defend the judgment or ruling appealed against, if however, a Respondent wishes to attack or challenge the judgment or ruling, he or she is enjoined to file a cross-appeal. Therefore, in the absence of a cross-appeal by a Respondent as in this case, the Respondent’s counsel cannot be allowed to play the role of an Appellant”. – Per J. O. Bada, JCA

BURDEN OF PROOF – BURDEN OF PROOF IN ELECTION PETITIONS

It is trite that the burden of proof is on the petitioners to prove that they are entitled to the relief sought. Section 131 (1) of the Evidence Act, 2011 cast this burden on the petitioners/Appellants which they have however failed to discharge. – Per J. O. Bada, JCA

ADMISSION – WHETHER A PARTY IS ENTITLED TO RELY ON AN ADMISSION AGAINST INTEREST BY AN ADVERSE PARTY

In the case of IPINLAYE II V. OLUKOTUN (Supra) the Supreme Court held that a party is entitled to rely on admission against interest by an adverse party, the Court held as follows:

“A party is entitled to rely on his opponent’s admission as an admission against interest to defeat his opponent’s claim. In this case, Exhibit “A” written by the Appellant constitutes an admission against interest and the respondent was perfectly entitled, as he did not rely upon it to defeat the appellants’ claim. (P. 165, Paras. B-C). – Per J. O. Bada, JCA

 

ELECTION PETITION – BURDEN OF PROOF IN ELECTION PETITIONS

The law is no longer recondite that election petition is often declaratory in nature and by virtue of which the petitioners cum Appellants herein are expected to solely establish their case on a credible and concise evidence. This is because, seeking declaratory reliefs means that the Appellants are expected and required to succeed only on the basis of the strength of their case and indeed, not even on the admission of their case by the Respondents.  – Per J. O. Bada, JCA

CASES CITED

STATUTES REFERRED TO

1. Electoral Act, 2022
2. Evidence Act, 2011
3. Court of Appeal Rules, 2021
4. Guidelines of INEC for Declaration of the Results in an Election

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