Chukwuma Odii Ifeanyi & Ors v. Independent National Electoral Commission (Inec) & Ors (2024)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

TIJJANI ABUBAKAR, JSC (Delivering the leading judgment)

Following the conduct of elections into the office of the governor of Ebonyi State by the 1st respondent on the 18th day of March, 2023, the 1st respondent declared the 2nd respondent, who was the 3rd respondent’s flagbearer, as lawfully elected and returned.

Dissatisfied with the said outcome, the appellants challenged the return and election of the 2nd respondent before the Governorship Election Petition Tribunal (“Tribunal”) vide a petition filed on the 7th day of April, 2023, on grounds of non-qualification, non-compliance with the provisions of the Electoral Act, 2022; and that the 2nd respondent was not elected by a majority of lawful votes cast at the election.

The appellants’ challenge before the tribunal was unsuccessful because the tribunal found no merit in the petition and therefore dismissed it, the tribunal affirmed the 2nd respondent’s election in a judgment delivered on the 27th day of September, 2023.

The appellants’ further appeal against the said judgment was dismissed by the Court of Appeal (save for the dissenting judgment delivered by Georgewill, JCA with respect to the first issue before the lower court bordering on non-qualification of the 2nd respondent). Nettled by the decision of the Court of Appeal, the appellants initiated an appeal to this court by notice of appeal dated the 4th day of December, 2023.

In line with the practice of this court, learned counsel for the respective parties filed and exchanged briefs of arguments after the records of appeal were compiled and transmitted.

In the appellants’ brief of argument filed on the 17th day of December, 2023, learned senior counsel Chief Chris Uche, SAN leading other counsel, the following three issues were nominated for determination:

1. “Whether the Court of Appeal was not wrong in its majority decision, when it affirmed the decision of the tribunal on ground 1 of the appellants’ Petition relating to the 2nd respondent’s qualification under section 177(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the “Constitution”), to contest the governorship election for Ebonyi State held on 18rh day of March, 2023 as not justiciable, rooted in membership, nomination and sponsorship of the 2nd respondent and a matter within the domestic and internal affairs of a political party, thus amounting to a pre-election dispute?
2. Whether the Court of Appeal was not wrong when it affirmed the tribunal’s evaluation of the evidence led at the trial in coming to the conclusion that the 1st respondent was qualified to contest the election, despite the overwhelming evidence demonstrating that the 2nd appellant was at all times material to the election a member of the 2nd appellant, and not having been sponsored by the 2nd appellant in breach of section 177(c) of the Constitution of the Federal Republic of Nigeria, 1999?
3. Whether the Court of Appeal was not wrong when it affirmed the decision of the tribunal that the appellants’ allegations of non-compliance with the provisions of the Electoral Act, 2022 against the Governorship election for Ebonyi State held on 18th day of March 2023 were not proved?”

Three similar issues for determination were crafted in the 1st respondent’s brief of argument filed on the 22nd day of December, 2023, by Baba Dala Fika, the issues are reproduced as follows:

1. “Whether on the facts and evidence on record before this honourable court, the lower court was right when the court held that the membership, nomination and sponsorship of the 2nd Respondent by the 3rd respondent to contest the governorship election for Ebonyi State held on 18th day of March, 2023, was a pre-election matter not justiciable before or cognisable by the trial tribunal.
2. Whether on the facts and evidence on record before this honourable court, the lower court was right when it held that the 2nd respondent was qualified at the time of the governorship election for Ebonyi State held on 18th day of March, 2023, qualified to contest the said election.
3. Whether on the facts and evidence on record before this honourable court, the lower court was right when the court dismissed the appellant’s appeal and affirmed the decision of the trial tribunal that the governorship election for Ebonyi State held on 18th day of March, 2023, was not invalid by reason of non-compliance with the Electoral Act, 2022.”

Dr. Onyechi Ikpeazu, OON, SAN, leading other counsel, filed the 2nd respondent’s brief of argument on the 22nd day of December, 2023, wherein three issues for determination were formulated, the issues are also reproduced as follows:

1. “Whether having regard to the facts pleaded in the petition, the Court of Appeal was correct when it affirmed the decision of the tribunal to the effect that the tribunal had no jurisdiction to entertain ground 1 of the petition which was founded on a challenge to the qualification of the 2nd respondent.
2. Whether the Court of Appeal was correct when it affirmed the decision of the tribunal to the effect that the appellants failed to prove that the 2nd respondent was, at the time of the election, not qualified to contest the election.
3. Whether the Court of Appeal was correct when it affirmed the decision of the tribunal to the effect that the appellants failed to prove that the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022.”

Learned senior counsel, Abdul A. Ibrahim, SAN, leading other counsel filed the 3rd respondent’s brief of argument on the 21st day of December, 2023, wherein the following four issues for determination were nominated:

1. “Whether or not the court below was right when it held that the trial tribunal lacked jurisdiction to entertain ground 1 of the petition which related to political party membership?
2. Whether or not the lower court was right when it held that the appellants failed to establish that the 2nd respondent was at the time of the election to the office of Governor of Ebonyi State on 28th day of March, 2023, not qualified to contest the said election?
3. Whether or not the court below was right to hold that the appellants failed to establish that the election of the 2nd respondent was invalid by reason of substantial non-compliance with the provisions of the Electoral Act, 2022?
4. Whether the court below was right to affirm the trial tribunal’s decision to strike out certain offensive paragraphs in the appellants’ replies to the respondents’ replies to the petition?”

Separate reply briefs were filed in response to the arguments canvassed in the respective respondents brief of argument. Same shall be considered where necessary. I have carefully studied the issues formulated by the respective parties, the judgments of the two courts below, the grounds of appeal contained in the notice of appeal filed by the appellants, and I am of the view that the issues formulated by the appellants aptly capture the appellants’ grievance. I therefore adopt the issues crafted for determination by the appellants as the issues to be resolved in the determination of this appeal.

Issue one

Learned senior counsel for the appellants argued that both the court below and the tribunal misconceived the nature of the case put forward by the appellants in their petition. He submitted that the appellants’ case in simple terms is that since the 2nd respondent was still a member of the 2nd appellant at the time of the election on the 18th day of March, 2023, and was not sponsored by the 2nd appellant for the said election, he was not qualified for election to the office of Governor of Ebonyi State, in accordance with section 177(c) of the Constitution.

The decision in Aisha J. Alhassan & Anor. v. Darius D. Ishaku & Ors. (2016) 10 NWLR (Pt. 1520) 230 at 264 was relied on in support of the contention that the Constitution and the Electoral Act did not make provision for independent candidates. Learned senior counsel submitted that having rightly anchored their petition on section 134(1) (a) of the Electoral Act, 2022 and section 177(c) of the Constitution, the question of the 2nd respondent’s qualification is a germane and live issue, which the Tribunal is vested with the requisite jurisdiction to entertain, hear, and determine.