Okeke Jonas Onwueguchulam & Ors v. Reginald Keke & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL JCA (Delivering the leading judgment)

This is an appeal against the judgment of the National and State Houses of Assembly Election Tribunal, Imo State, sitting at Mararaba, Nasarawa State, Coram: Anthony Olotu Akpovi J., (Chairman), A. S. Kudu J., (Member) and Ibrahim Mohammed, J., (Member) in Election Petition No., EPT/IM/HR/02/2023: Reginald Keke & Anor. v. Okeke Jonas Onwuebuchulam & Ors. delivered on 10/9/2023, wherein the petition filed by the 1st and 2nd respondents as petitioners against the 1st and 2nd appellants as respondents, was granted and the declaration and return of the 1st appellant of the 2nd appellant by the 3rd respondent as the winner of the questioned election was nullified on the ground that he was, at the time of the questioned election, not qualified to contest the said election.

The appellants were peeved with the said judgment and had appealed against it to this court vide their notice of appeal filed on 25/9/2023 on 12 grounds at pages 492 – 512 of the record of appeal.

The record of appeal was duly transmitted to this court on 28/9/2023. The appellants’ brief was filed on 7/10/2023. The 1st and 2nd respondents’ brief filed on 14/10/2023 was at the hearing of this appeal on 27/10/2023 withdrawn by their learned counsel, and consequently struck out along with the appellants’ reply brief to the 1st and 2nd respondents’ brief. The 3rd respondent did not file any brief .

At the hearing of this appeal on 27/10/2023, the appellants were represented by Osita Mbamalu, Esq., appearing with L. C. Ekene-Okwunma, Esq., who adopted the appellants’ brief as their arguments in support of the appeal and urged the court to allow the appeal and set aside the judgment of the lower tribunal and to dismiss the 1st and 2nd respondents’ petition for lacking in merit. The 1st and 2nd respondents were represented by Malechi Okafor, holding the brief of Eugene Onus, Esq. The 3rd respondent, though duly served with hearing notice on 23/10/2023, was not represented by counsel at the hearing of this appeal.

Brief statement of facts

As can be garnered from the averments of the parties in their respective pleadings before the lower tribunal as well as the evidence, oral and documentary as led by the parties who called witnesses, the facts relevant to this appeal are that the 3rd respondent had on 25/2/2023, conducted election into the Ehime-Mbano/Ihitte – Uboma/Obowo Federal Constituency, in which the 1st appellant contested as the candidate of the 2nd appellant, PDP, while the 1stRespondent contested as the candidate of the 2nd respondent, Peoples Redemption Party, PRP.

At the conclusion of the questioned election, the 1st appellant was returned and declared as the winner of the election by the 3rd respondent, INEC, having scored the majority of the lawful votes cast at the election.

The 1st and 2nd respondents were peeved with the outcome of the questioned election and had by way of an Election Petition filed on 16/3/2023 challenged the return and declaration of the 1st appellant by the 3rd respondent as the winner of the questioned election.

The grounds upon which the 1st and 2nd respondents’ petition were that the 3rd respondent conducted the election contrary to the Constitution and the Electoral Act; that the 1st appellant was not elected by majority of the lawful voters cast at the election, and that 3rd respondent ought to disqualify the 1st appellant from contesting the questioned election by reason of the the illegal nature of his nomination. See pages 5 – 6 of the record of appeal.

The gist of the 1st and 2nd respondents’ case was that 1st appellant was, at the time of the conduct of the questioned election, not qualified to contest the said election in that the Primary Election of the 2nd appellant, wherein the 1st appellant was nominated as the candidate of the 2nd appellant, held in Aladinma Hall in Owerri Imo State Capital, outside the Ehime-Mbano/Ihitte – Uboma/Obowo Federal Constituency contrary to section 84(5), (c), (i) of the Electoral Act, 2022 and therefore that the nomination and sponsorship of the 1st appellant by the 2nd appellant was invalid.

Upon service of the 1st and 2nd respondents’ petition, the 1st and 2nd appellants filed their replies. The 3rd respondent also filed its reply. The appellants vehemently denied the allegations of the 1st and 2nd respondents and averred that the 1st appellant was qualified and was duly nominated as the candidate of the 2nd appellant at the question election, in which he lawfully participated, scored the majority of the valid lawful vote cast and was validly declared and returned as the duly elected person by the 3rd respondent, INEC, having polled 19, 468 votes as the 1st respondent who polled 1, 506 votes at the said election. See pages 13 – 25 and 65 – 87 of the record of appeal.

In proof of their petition, the 1st and 2nd respondents called 2 witnesses, PW1, one Ozioma Obiecheie, the 3rd respondent’s electoral officer for Ihitte Uboma Local Government Area and PW2, and the 1st respondent. In his defense, the 1st appellant called one witness, RW1, one Chief David Abanihi. The 2nd appellant and the 3rd respondent did not call any witness. See pages 428 – 437, 439 – 449 and of the 450 – 456 of the record of appeal.

At the conclusion of the trial, the parties filed and exchanged their final written addresses, which were duly by them, and on10/9/2023, the lower tribunal delivered its judgment, wherein the petition filed by the 1st and 2nd respondents as petitioners against the 1st and 2nd appellants as respondents, was granted and the declaration and return of the 1st appellant of the 2nd appellant by the 3rd respondent as the winner of the questioned election was nullified on the ground that he was, at the time of the questioned election, not qualified to contest the said election, herein hence this appeal. See pages 463 – 491 and 492 – 512 of the record of appeal.