All Progressives Congress V. Lady Joy Nkechi Mbawike & Ors (2017)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judgment)

This is an interlocutory Appeal against the two Rulings of the National and State Houses of Assembly Election Tribunal, sitting in Owerri, in Suit (Petition) No. EPT/IM/SHA/RE/2/2016, CORAM; Hon. Justice A.G. Kwajafa (Chairman) and Hon. Justice A.O. Ayoola (member 1), delivered 11/11/16 and 14/11/16, respectively.

The first Ruling had allowed the Petitioner to amend the petition to correct clerical or typographical errors, while the 2nd Ruling adjourned all objections to the petition to be taken along with the substantive petition, considering the fact that 86 days had already been expended on the petition.

?Following the re-run election of 23/7/16 and the ensuing supplementary election of 28/7/16 on the Mbano State Constituency, whereof the Appellant?s candidate (3rd Respondent) was declared a winner by the 2nd Respondent, 1st Respondent filed a petition at the Election Tribunal, claiming that the 3rd Respondent was not duly elected or returned, having not scored the majority of lawful votes cast at the election; that she, sponsored by the Peoples Democratic Party (PDP), scored the

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highest number of lawful votes cast at the election, and satisfied requirements to be declared and returned the winner; she also sought an order, nullifying and setting aside the supplementary elections of 28/7/16, conducted in respect of 14 polling units in the re-run election of 23/7/16, in the aforementioned 14 polling units; an order nullifying a setting aside the certificate of return issued to the 3rd Respondent (CHIEF Dr Chidi Chimezie Collins) by INEC, and declaring her the winner of the election and issuing her with the Certificate of Return.

In the alternative, the Petitioner prayed for an order nullifying the election in the polling units affected for non-compliance with the Electoral Act and an Order directing INEC to conduct a supplementary election in the polling units, where the elections have been nullified or affected with irregularity to determine the winner of the election.

?On 10/11/16, after the inaugural sitting of the Tribunal, the 1st Respondent herein moved her application for amendment of her petition and the same was, vigorously, challenged at the Tribunal. The application was heard by the full (three man) panel. But before

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the Tribunal could rise for the day, the 1st Respondent raised objection to the participation of one of the Panel members (Hon Justice D. M. Igyuse, who was 2nd member) on the ground that he was a member of the earlier panel which nullified her election, which judgment gave rise to the re-run and supplementary elections of 23/7/16 and 28/7/16, respectively. Hon. Justice D.M. Igyuse, accordingly, withdrew from the case, and recused himself. Parties, thereafter, addressed the Tribunal as to the propriety of only two members taking further steps in the matter, Appellant says that, while 1st Respondent was in favour of just two judges sitting as the Panel to proceed, the 2nd and 3rd Respondents therein (ie. Appellant and INEC) opposed the same, vigorously.

In its Ruling on 11/7/16, the Tribunal held that the two members could continue with the petition, and went on to grant the application for amendment, and on 14/7/16, declined to take the preliminary objection raised by the Appellant (opting to take all objections along with the substantive petition. See page 1053, 1059 and 1230 of the Records.

?It must be noted that another member had since been sent

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to replace Hon. Justice D.M. Igyuse, who recused himself and that the matter was on-going at the Tribunal, as at the date of arguing this Appeal (4/1/17), as disclosed by Counsel Appellant and Respondents.