Matthew Aigbuhuenze Iduoriyikemwen & Ors v. Imasuen Neda Bernards & Ors (2023) LLJR-CA
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
USMAN ALHAJI MUSALE, JCA (Delivering the leading judgment)
This appeal is against the judgment of the National and State Houses of Assembly Election Petition Tribunal, Edo State, sitting at Benin City (hereinafter called the tribunal) delivered on the 14th of September, 2023.
The 3rd respondent (Independent National Electoral Commission or INEC) is constitutionally saddled with power, duty/responsibility to conduct elections in Nigeria. Among elections conducted by INEC on the 25th February, 2023 was the Edo South Senatorial District.
The 1st appellant was/is the candidate of the 2nd appellant (Peoples Democratic Party). The 1st respondent was/is the candidate of the 2nd respondent (Labour Party).
The 1st appellant and 1st respondent were among the ten (10) candidates that contested the election held on 25/2/2023 in respect of the senatorial seat for Edo South Senatorial District. At the end of the election, the 3rd respondent declared the 1st respondent as the winner and returned him as duly elected on 27/2/2023.
Being dissatisfied with the said declaration and return of the 1st respondent as the winner of the election, the appellants filed their petition against same before the tribunal on 19/3/2023. Hon Justice Yusuf Ubale Mohammed (Chairman), Hon Justice M. A. Agboola (Member) and Hon Justice K. A. Lewaanya (Member) heard the petition.
The tribunal adopted three (3) issues for the determination of the petition viz;
- Whether the petitioners have established that the 1st respondent was not qualified to contest the election conducted on the 25th February, 2023 for membership of the Senate for Edo South Senatorial District as at the date the election was conducted?
- Whether the election held on the 25th February, 2023 for Edo South Senatorial District was conducted in substantial compliance with the Electoral Act, 2022?
- Whether the 1st respondent in this case scored the majority of the lawful votes cast in the election of 25th February, 2023 for Edo South Senatorial District and was validly returned?
At the trial, twenty (20) witnesses testified and several electoral documents were tendered in evidence. The 1st appellant testified as PW8.
Through a ruling embedded in and delivered along with the judgment, the tribunal declared that paragraph 16 of the petition raised pre-election matters and consequently struck them out. One of the grounds of the petition was based on section 134(l)(a) of the Electoral Act, 2022 on qualification.
The second ruling in the judgment was in respect of an application filed by the counsel to the 2nd respondent. His contention was that the petition was not signed by an identifiable Legal Practitioner.
The name of the lawyer who signed the process was boldly typed among the list of Petitioners counsel, ticked and his Nigerian Bar Association (NBA) stamp/seal was duly pasted against his name. The name of the counsel that signed the petition was thus shown and easily identifiable. It was however stated thereafter as follows: “For Ken E. Mozia (SAN) & Co.”. The challenge of the 2nd respondent was predicated on its assertion and claim that the petition “emanated from an incompetent originating process” and thus incapable of activating the jurisdiction of the tribunal.
The complaint in the interlocutory relief claimed was therefore not that the petition itself is incompetent. The tribunal however ruled that the petition was not signed by a juristic personality and same was declared as defective and incompetent. The petition No. EPT/ED/SEN/03/2023 was dismissed for lacking in merit. See page 2410, volume 3 of the records of appeal.
The appellants were not satisfied with the decision of the tribunal, thus this appeal. The appellants filed their notice of appeal on the 27thof September, 2023. Six (6) grounds of appeal were raised therein. See pages 2414 to 2423 of volume 3 of the records of appeal. The judgment is on pages 2326 to 2413 of volume 3 of the record, transmitted on 3rd October, 2023.
The brief of the appellants filed on the 9th of October, 2023 was settled by the learned senior counsel Kenneth E. Mozia, SAN. In the brief, three issues were distilled for the determination of the appeal. In the court learned senior counsel K. E. Mozia, SAN and M. A. Magaji, SAN led other counsel in adopting the main brief and the reply briefs in response to the briefs filed by 1st, 2nd and 3rd respondents. The issues are:
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