Edeoga & Anor v. INEC & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

MOHAMMED LAWAL GARBA, J.S.C. (Delivering the Lead Judgment)

This appeal is against the decision of the Court of Appeal, sitting at Lagos contained in the judgment delivered on the 10th November, 2023 in the Appellants’ Appeal No. CA/E/EP/GOV/EN/21/2023 by which the appeal was dismissed and the decision of the Enugu State Governorship Election Tribunal (trial tribunal) in petition No. EPT/EN/GOV./O1/2023 was affirmed.

The Appellants; as candidate and the political party who sponsored the candidate, and the 2nd and 3rd Respondents had participated in the election for the office of Governor of Enugu State, conducted by the 1st Respondent on the 18th March, 2023, at the end of which, the 2nd Respondent was declared and returned as the winner.

Aggrieved by the declaration and return of the 2nd Respondent as the winner of the said election, the Appellants in line with the provisions of the Electoral Act, 2022, challenged the declaration and return by way of an election petition before the trial tribunal, on three (3) grounds as follows:-

1. The 2nd Respondent was at the time of the election not qualified to contest the election.
2. The 2nd Respondent was not duly elected by majority of lawful votes cost at the election.
3. The Election and Return of the 2nd Respondent is invalid by reason of non-compliance with the Electoral Act, 2022”.

At the end of the trial, the petition was dismissed and the declaration and return of the 2nd Respondent as the duly election Governor of Enugu State in the election by the 3rd Respondent was affirmed by the trial Tribunal in the judgment delivered on the 21st September, 2023.

The Appellants brought the appeal in this Court vide two (2) separate Notices of Appeal both dated the 21st , but filed on the 22nd November, 2023 at the Lagos and Enugu Divisions of the Court below. At paragraph 2.8 on page 3 of the Appellants’ Brief filed on the 4th December, 2023, the Notice of Appeal filed at the Lagos Division is relied on for the purpose of prosecuting the appeal while the Notice of Appeal filed at the Enugu Division, was withdrawn at the hearing of the appeal and it is struck out accordingly.
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From the thirteen (13) grounds contained on the extent Notice of Appeal, which appears at pages 3116-3139 of Vol. Ill of the Record of Appeal, four (4) issues are said to be “necessary” for determination in Appellants’ Brief, thus:-
“1. Was the lower Court right in affirming the trial Tribunal’s decision in expunging from its record and refusing to assess the evidence of PW1, PW2, PW3, PW3, PW6 and PW30 together with all the Exhibits they tendered? [Grounds 2, 3 and 4 of the Notice of Appeal].

2. Was the lower Court right in holding that the 2nd Respondent was qualified to contest or was not disqualified by the provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended from contesting the Governorship Election held in Enugu State on 18th March, 2023? [Ground 5 of the Notice of Appeal].
3. Was the lower Court right in affirming the trial Tribunal’s assessment of the evidence of the witnesses called by the Appellants and the documentary evidence tendered by them on the one hand; and the totality of the evidence called by the parties on the other hand? [Grounds 6, 7, 8, 9, 10 and 12 of the Notice of Appeal].
4. Was the lower Court right when it refused to strike out the respective Briefs of Arguments of the 2nd and 3rd Respondents and when it discountenance the Appellants’ Reply Briefs? [Grounds 1 and 11 of the Notice of Appeal]”.

These issues are adopted at paragraph 6 on page 3 of the 1st Respondents’ Brief filed on the 9th December, 2023 while four (4) issues are also formulated for determination in the 2nd Respondent’s Brief filed on the 11th December, 2023 in the following terms:-
“i. Whether the Court below did not correctly overrule the appellants’ objection to the validity of the 2nd respondent’s brief? (Ground 1 of the Notice of Appeal).
ii. Whether the Court below did not rightly affirm the decision of the trial Tribunal that the respondent was qualified to contest the Enugu State Governorship Election of 18th March, 2023? (Grounds 2, 3, 4 and 5 of the Notice of Appeal).

iii. Whether the Court below was not correct, considering the applicable laws, in affirming the trial Tribunal’s resolution of the evidential issues before it. (Grounds 6, 7, 8, 9 and 10 of the Notice of Appeal).
iv. Having regard to settled law, whether the lower Court did not rightly strike out the appellants’ reply brief and dismiss their appeal? (Grounds 11 and 12 of the Notice of Appeal.”

For the 3nd Respondent, it “contends that the issues which arc called for the determination of the Court of Appeal (sic)”, at paragraph 3.00 on page 2 of the 3rd Respondent’s Brief filed on the 8th December, 2023, are as follows:-

“1. Whether the Court of Appeal was wrong and occasioned a miscarriage of justice, when it dismissed the Appellants’ objection to the respective Briefs of Argument of the 2nd and 3rd Respondents, and discountenanced the Appellants’ Reply Brief on the premise that it was a rehash of the arguments canvased in the Appellants’ main Brief. Grounds 1 and 11.

2. Whether the Court of Appeal was correct to hold that the Tribunal was right to expunge and refuse to assess the Statements on Oath of PW1, PW2, PW3 and PW30 being subpoened witnesses whose Witness Statement on Oath contravened Section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and paragraph 4 (5) of the First Schedule to the Electoral Act, 2022. Grounds 2 and 3.
3. Whether the Court of Appeal was correct to hold that the Appellants failed to prove that the 2nd Respondent was not qualified to contest election for the office of Governor of Enugu State by reason of presentation a forged National Youth Service Certificate (NYSC) to the 1st Respondent. Grounds 4 and 5.

4. Whether the Court of Appeal was correct to hold that the evidence of the Appellants’ witnesses lacked probative value and that Appellants’ witnesses who testified as agents did not comply with the provisions of Section 43(1) of the Electoral Act, 2022 and the 1st Respondent’s Regulations and thereby failed to prove their case. Grounds 6, 7, 8, 9, 10 and 12.”

The Appellants filed Appellants’ Reply briefs to the 3 .Respondents’ Briefs as follows.

1. Reply to 1st Respondent’s Brief – filed on 14/12/2023,
2. Reply to 2nd Respondent’s Brief- filed on 13/12/2023, and
3. Reply to the 3rd Respondent’s Brief- filed on 11/12/2023.

For representing the specific complaints by the Appellants against the decision by the Court below as contained in the grounds of the appeal, I intend to use and consider the issues as couched and set out in the Appellants’ Brief for the determination of the appeal.

Issue 1
“1. Whether the Court of Appeal was wrong and occasioned a miscarriage of justice, when it dismissed the Appellants’ objection to the respective Briefs of Argument of the 2nd and 3rd Respondents, and discountenanced the Appellants’ Reply Brief on the premise that it was a rehash of the arguments canvased in the Appellants’ main Brief Grounds 1 and 11.

Appellants’ Submissions
It is submitted that the Court below erred in Law to have affirmed the decision of the trial Tribunal expunging and refusing to assess the pieces of evidence adduced by the PW1, PW2, PW3, PW26 and PW30 called by the Appellants along with the documents tendered through them on the ground that their statements on oath were not filed within the time prescribed for the filing of the petition, relying on, inter alia, Oke v. Mimiko (2013 LPELR – 20645 (SC) as well as Section 285(5) of the Constitution and Paragraphs 4(5),(6) and 14(2) of the 1st Schedule to the Electoral Act, 2022.
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It is contended that the said witnesses were not under the control of the appellants before the presentation of the petition and could only be compelled by subpoena to give or make statements for the Appellants which could have been filed along with the petition.