Mr. Victor Tamuno Chukuibi & Ors v. Independent National Electoral Commission (INEC) & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, JCA (Delivering the leading judgment)

The appellants being dissatisfied by the judgment of the Rivers State National and State Houses of Assembly Elections Petition Tribunal, sitting at the National Judicial Institute, delivered on the 9th day of October, 2023 in petition No: EPT/RV/HR/23/2023 per their lordships Hon. Justice Ayisat A. Opesanwo, Hon. Justice Fatima Musa and Hon. Justice Bashar Ibrahim, have filed this appeal seeking the reliefs set out in the notice of appeal inter alia; to set aside the judgment of the trial tribunal and granting the reliefs sought in the petition of the appellants as petitioners at the trial tribunal.

Facts relevant to this appeal

The petitioners filed Petition No: EPT/RV/HR/23/2023 at the National and State Houses of Assembly Election Petition Tribunal, wherein they jointly and severally prayed that:

a. It be determined 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 in the 2023 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.

b. That the 1st petitioner be declared validly elected or returned in the said election.

c. An order directing the 1st respondent to issue a Certificate of Return to the 1st petitioner as the duly elected member representing Federal House of Representatives Port Harcourt Constituency 2 in the 2023 elections.

d. An order declaring null and void the Certificate of Return wrongly issued to the 2nd Respondent by the 1st respondent.

The petition went into hearing and was dismissed on 9th October, 2023. The petitioners (Appellants herein) being dissatisfied with the judgment of the tribunal appealed to this court on the grounds set out in the notice of appeal.

Issues for determination

The appellants filed their brief of argument dated 26th day of October, 2023 and filed on the 9th day of November, 2023, wherein through their counsel Mr. Jubilee C. Nwokoro Esq., the following issues were raised for determination of this appeal:

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. (Distilled from ground one of the notice and grounds of appeal).
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? (Distilled from grounds two and three of the notice and grounds of appeal).
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? (Distilled from grounds four and five of the notice and grounds of appeal).

On issue one, learned counsel to the appellants Mr. Jubilee C. Nwokoro, Esq.; submitted that the trial tribunal, when having admitted the documents tendered by the petitioners which are thus deemed admitted, including FORM EC8E (II) the final declaration of results, ought to have held that the 1st appellant was validly declared winner of the election subject matter of this appeal upon collation of result by the returning officer of the 25/2/2023 elections. He cited the case of Nwokolo & Anor. v. Uboh & Ors. (2012) 33 WRN 136; (2012) LPELR-8019 (CA), where it was held as follows:

The decision in this matter on this issue falls within a very narrow compass having regard to the provisions of section 68(1) of the Electoral Act, 2010 (as amended) on the powers of a returning officer in relation to election results. Section 68(1) of the Act provides that: The decision of the returning officer arising from or relating to:

(a) Unmarked ballot papers;