Senator Anyanwu Samuel Nnaemeka & Ors v. Independent National Electoral Commission (Inec) & Ors (2024)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

MOHAMMED BABA IDRIS, JSC (Delivering the leading judgment)

This is an appeal against the judgment of the Court of Appeal delivered on the 16th day of July, 2024 wherein the court below affirmed the judgment of the Governorship Election Tribunal Imo State sitting at Abuja delivered on the 24th day of May, 2024 wherein the trial tribunal dismissed the petition and affirmed the return and declaration of the 3rd respondent as the winner of the Imo State Governorship election held on the 11th day of November, 2023 and conducted by the 1st respondent.

It was the case of the appellants at the Tribunal that the 3rd respondent was not qualified to contest the election as he presented a forged secondary school certificate he allegedly attended to the 1st respondent when he submitted the 1st respondent’s Form EC9 which he submitted in his effort to contest for the Governorship seat in the election that took place on the 11th day of November, 2023.

The appellants contended that the alleged forged certificate does not belong to the 3rd respondent but to one Igbonaju Israel Ezeocha, candidate No. 11649117. Also, that in the 3rd respondent’s effort to contest as a Senator of the Federal Republic of Nigeria in 2011, for the Imo West Senatorial District the 3rd respondent presented a forged school certificate of a secondary school he allegedly attended.

The second ground of the appellants’ petition at the tribunal was that the election of the 3rd respondent was invalid by reason of non-compliance with the provision of the Electoral Act, 2022, Regulations and Guidelines for the Conduct of Elections 2022 and INEC Manual for Election Officials, 2023, which substantially affected the results declared.

The appellants alleged that the election was marred by a series of irregularities like over voting, non-stamping of result sheets, non-signing of polling unit result, number of votes cast exceeded the number of permanent voters’ card collected in polling units, bypass or non-usage of BVAS amongst others.

At the conclusion of the trial, the tribunal dismissed the petition and affirmed the election and return of the 3rd respondent as the duly elected Governor of Imo State on the platform of the 2nd respondent.

Dissatisfied with the judgment of the trial tribunal, the appellants appealed to the Court of Appeal which court relied on the issues formulated by the appellants in their brief of argument to dismiss the appeal and affirmed the judgment of the trial tribunal.

Still dissatisfied with the decision of the Court of Appeal the appellants have appealed to this court vide their notice of appeal filed on the 28th day of July, 2024 raising 12 (twelve) grounds of appeal. The parties thereafter filed their respective briefs of argument.

In the appellants’ brief of argument filed on the 8th day of August, 2024 and settled by their counsel Solomon Umoh, SAN these 7 (seven) issues were distilled for the determination of the appeal as follows:

1. Whether having regard to the combined provisions of paragraph 4(5)(c) of the First Schedule to the Electoral Act, 2022, section 146 of the Electoral Act, 2022, sections 68(1) & (2) and 83(5) of the Evidence Act, 2011 (as amended) viz-a-viz the peculiar facts and circumstances of this case, the learned Justices of the Court of Appeal were right when they upheld the decision of the trial tribunal expunging exhibits P90 and P90A and thereafter failing to evaluate the said exhibits. (Distilled from grounds 1, 2 and 10)
2. Whether having regards to the facts and circumstances of this case, the learned Justices of the Court of Appeal were right when their lordships omitted to invoke the doctrine of withholding evidence against the 1st respondent but proceeded to find and hold that failure to tender BVAS is fatal to the case of the appellants. (Distilled from ground 7)
3. Whether having regards to the facts and circumstances of this case as well as the evidence adduced in this case, the learned Justices of the Court of Appeal were right when their lordship failed to apply the clear provisions of section 137 of the Electoral Act, 2022 but affirmed the holding of the trial tribunal that the appellants failed to prove Ground B of their petition which bothers on non-compliance with the Electoral Act, 2022. (Distilled from grounds 3 and 5)
4. Whether having regards to the peculiar facts and circumstances of this case as well as the evidence adduced before the trial tribunal, the learned Justices of the Court of Appeal were right when their lordships held that the appellants did not prove substantial non-compliance with the Electoral Act, and that the irregularities complained of did not substantially affect the outcome of the election to entitle the appellants to the reliefs sought in their petition. (Distilled from grounds 6 and 12)
5. Whether having regards to the peculiar facts and circumstances of this case, vis-a-vis the combined provisions of section 182(1)(j) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and section 134 of the Electoral Act, 2022, the learned Justices of the Court of Appeal were right when in affirming the decision of the trial tribunal, held that the complaint against the submission of a forged certificate by the 3rd respondent to INEC in his Form EC9 is a pre-election matter which the trial tribunal cannot entertain. (Distilled from ground 4)
6. Whether having regard to the facts and circumstances of this case, the learned Justices of the Court of Appeal were right when their lordship upheld the findings of the trial tribunal that the appellants did not prove ground A of their petition having failed to evaluate exhibit p95 but proceed to hold that the 3d respondent was at the time of the election qualified to contest for the Imo State governorship election held on the 11th of November, 2023. (Distilled from grounds 8 and 9)
7. Whether having regards to the facts and circumstances of this case, the learned Justices of the Court of Appeal were right when their lordships upheld the judgment of the trial tribunal that the 1st respondent had the locus standi to challenge the competence of ground A of the appellants’ petition which challenged the qualification of the 3rd respondent to contest the Governorship election of Imo. (Distilled from ground 11)

On issue one, the learned counsel for the appellants submitted that the Justices of the Court of Appeal omitted to take into consideration and apply the combined provisions of paragraph 4(5)(c) of the First Schedule to the Electoral Act, 2022, section 146 of the Electoral Act, 2022 and section 68(1) and (2) and section 83(5) of the Evidence Act, 2011 (as amended), to the peculiar facts and circumstances of the instant case but elected to uphold the decision of the tribunal in expunging exhibits P90 and P90A.

It was argued further that the appellants, equipped with the order of the court granted on the 28th day of November, 2023, proceeded alongside PW53, a statistician to inspect the electoral materials.

It was argued that the opinions of PW53 being an expert skilled in the science of statistic, are admissible in evidence as same would assist the court in arriving at the just determination of the petition before it particularly in the area of data collection with regard to the number of accredited voters recorded in the BVAS report, BVAS screenshot being products of BVAS machine vis-a-vis the number of votes recorded in the Form EC8As and those uploaded on the IREV portal.

Counsel then drew a distinction between the case of Atiku Abubakar v. INEC & 2 Ors in petition No. CA/PEPC/05/2023 where the statistician’s report was not pleaded and the other parties were not put on notice and the instant case where the witness statement on oath of the PW53 was pleaded and exhibits P90 and P90A were listed as documents to be relied on and tendered at the commencement of hearing which documents were brought midway in the hearing of the petition. It was argued that the parties had the opportunity to join issues on the evidence of PW53 and the documents pleaded as all the respondents cross-examined PW53 using the said exhibits.