Hon. West Alalibo & Ors v. Independent National Electoral Commission (INEC) & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the National and State Houses of Assembly Election Petition Tribunal, Coram: Hon. Justice O. M. Fadey, Hon. Justice C. Iheka and Hon. Justice E. Michael in petition No. EPT/BY/SHA/12/2023 delivered on 3rd of October, 2023.

The appellants as petitioners commenced an action at the lower tribunal vide a petition filed on 7/4/2023 challenging the declaration and return of the 2nd respondent by the 1st respondent as member of the House of Assembly for Nembe Constituency 3 in the election held on 18th March, 2023. The petition was predicated on the following grounds:

a. The 2nd respondent (candidate of the 3rd respondent) was not duly elected by majority of lawful votes cast at the House of Assembly election held on the 18th day of March, 2023 in Nembe Constituency 3, Bayelsa State and ought not have been declared as having been duly elected and returned.

Alternatively,

b. The Election of the 2nd respondent was invalid by reason of corrupt practice and therefore ought to be cancelled.

After settlement of pleadings and at the end of the pre-hearing sessions, the matter went into full trial. After considering both the oral and documentary evidence, the Tribunal dismissed the petition at pages 761 – 762 of the record as follows:

We hold that the petitioners have failed woefully to prove the petition and their entitlement to the reliefs sought. Accordingly, this petition i.e. petition number EPT/BY/SHA/12/2023 is hereby dismissed in its entirety, as same is frivolous and lacks merit.

Without much ado, we re-affirm the election and return of the 2nd respondent, Douglas Sampson, as the member, representing Nembe Constituency 3 of Bayelsa State, in the Bayelsa State House of Assembly Elections, held on the 18th of March, 2023.

Being dissatisfied with the judgment of the tribunal, the appellants filed the instant appeal on 23/10/23. The said notice of appeal contains twelve grounds of appeal at pages 778 791 of the record of appeal.

At the hearing of the appeal on 13th November, 2023, Soala Jumbo, Esq., adopted and relied on the appellants brief of argument filed on 1st November, 2023 together with appellants reply briefs respectively filed on 4th, 5th and 7th November, 2023, in urging the court to allow the appeal. E. J. Alison, Esq., adopted and relied on the 1st respondents brief filed on 3rd November, 2023. I. S. Damabide, Esq. adopted and relied on the 2nd respondents 2023 while Godfrey D. Otiotio, Esq. adopted and relied on the 3rd respondents brief filed on the November, 2023 to urge the court to dismiss the appeal.

In the appellants brief, the following three issues were nominated for consideration:

1. Whether the lower tribunal was right in upholding part of the preliminary objection of the 2nd respondent and striking out the paragraphs of the petition which were struck out by the tribunal?
2. Whether the evaluation of the oral and documentary evidence at the trial tribunal including the exhibit rejected by the trial tribunal was properly done?
3. Whether the trial tribunal was right in holding that the appellants did not prove the petition and non-compliance with the Electoral Act, 2022?

The 1st, 2nd and 3rd respondents adopts all the three issues nominated by the appellants. However, the 2nd respondent filed a motion on notice on 4th November, 2023 praying this court for the following orders:

1. An order striking out ground one of the notice of appeal.
2. An order striking out issue 1 in the issue for determination in this appeal.
3. Any further orders that this honorable court may deem fit to make in the circumstances.

The said motion on notice was supported by 7 paragraphs affidavit deposed to by Funakpo Donaldson of counsel. And same was accompanied by a written address. A sole issue was crafted in respect of the 2nd respondents motion on notice and it read thus: