Eugene O. Dibiagwu V. Independent National Electoral Commission (Inec) (2012)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering the Leading Judgment)
This is an appeal against the judgment of F.A. Olubanjo J., sitting at the Federal High Court, Owerri delivered on 12th December, 2011.
The Appellant, who was plaintiff before the lower court filed an originating summons on 4th May 2011. By an order of the lower court, the Appellant filed an Amendment originating summons with Exhibits and Supporting Affidavit on 18/05/2011. The Appellant who was the PDP candidate in Oguta Constituency for the Imo State House of Assembly Election held on 26th April 2011 asked for the determination of the following questions:
“1. Whether on a proper construction of Sections 153(1) and (2) 160(1), and Sections 14 and 15 of part 1 of Schedule 3 to the Amended Constitution of the Federal Republic of Nigeria 1999, Sections 1(a) and (b), 2, 25, 26, 27, 30(3), 68, 133(1) and 137(1) of the Amended Electoral Act No. 64 2010, the Defendant have powers to conduct fresh elections in booths and wards in Oguta L.G.A where elections took place on 26th April 2011 and results produced and announced?.
- Whether on a proper construction of Sections 153(1) 1(2), 160(1) and Sections 14 and 15 of part 1 of Schedule 3 to the Amended Constitution of the Federal Republic of Nigeria 1999, Sections 1(a) and (b) 2, 25, 26, 27, 30 (3), 68, 135(1) and 137(1) of the Amended Electoral Act No. 64 2010, the Defendant have powers to disregard the results of the election of 26th April, 2011 in Oguta LGA.
- On a proper construction of Sections 1 33(1) and 137(1) of the Amended Electoral Act No. 64 2010 can the defendant question the results of the election of 26th April, 2011 in Oguta L.G.A?
- Whether on a proper construction of Section 151 of the Evidence Act Cap. 122 Laws of the Federation 2004, is the defendant not precluded or estopped from denying the authenticity, correctness and genuineness of the results of the election of 26th April 2011 in Oguta L.G.A.
- Whether on a proper construction of Section 26 (4) of the Amended Electoral Act No. 64, 2010 can the defendant return the plaintiff as elected for the Imo State House of Assembly election in the Oguta State Constituency even though elections did not hold in four (4) out of the eleven (11) Wards of Oguta L.G.A.?.
The Appellant as plaintiff thereat prayed the lower court for the following:
(a) A declaration that the defendant lacks the power to conduct fresh election for the seat of Imo State House of Assembly in the Oguta L.G.A. State Constituency in Oguta Ward A, OGUTA WARD B, EGWE/EGBUOMA WARD, ORU WARD, OSSEMOTOR/ENIGBO WARD, AWA WARD AND IZOMBE WARD of Oguta State Constituency after the elections of 26th April, 2011.
(b) A declaration that the defendant lacks the power to disregard the result of the Imo State House of Assembly elections compiled and announced in OGUTA WARD A, OGUTA WARD B, EGWE/EGBUOMA WARD, ORU WARDS, ASSEMOTOR/ENIGBO WARD, AWA WARD and IZOMBE WARD and in OGUTA L.G.A. collation centre as the results of the Imo State House of Assembly elections for Oguta State Constituency held on 26th April, 2011.
(c)A declaration that the defendant lacks the capacity and competence to question the Imo State House of Assembly election in Oguta State Constituency after the issuance and announcement of the results of the said election held on 26th April, 2011.
(d) An order of court restraining the defendant from conducting fresh elections for the Imo State House of Assembly sit in Oguta State Constituency in OGUTA WARD A, OGUTA WARD B, EGWU/EGBUOMA WARD, ORU WARD, OSSEMOTOR/ENIGBO WARD, AWA WARD and IZOMBE WARD, in Oguta State Constituency.
(e) An order of court directing the defendant to utilize the results produced and announced in OGUTA WARD A, OGUTA WARD B, EGWU/EGBUOMA WARD, ORU WARD, OSSEMOTOR/ENIGBO WARD, AWA IVARD and IZOMBE WARD OF OGUTA LGA of Imo State House of assembly sit in Oguta State constituency.
(f) A declaration that it is no longer necessary for the defendant to conduct supplementary elections in Uwaorie Ward, Mbala/Uba Ward, Obudi/Aro Ward and Ndi Uloukwu/Umuowere Ward in Oguta L.G.A. for the Imo State House of Assembly sit (sic) seat.
(g) An order of court directing the defendant to declare the plaintiff as winner of the Imo State House of Assembly in Oguta Local Government state Constituency held on Tuesday 26th of April, 2011 and issue certificate of return to him.
The Appellant supported his Amended originating summons, before the lower court with a 27 paragraph Amended Affidavit in Support and several exhibits. The Respondent filed an eight (8) paragraph Affidavit in opposition. The case of the Appellant as plaintiff in the lower court was that having collated and announced results in the election held on 26th April, 2011 in seven (7) out of the 11 eleven Wards in the Oguta L.G.A. and having secured the majority votes in the results of the (7) seven Wards already announced, the Respondent should declare him as the winner of the said election and if the Respondent is minded to conduct a supplementary election, such an election should only be for those four (4) Wards of the Oguta L.G.A. where elections did not hold on 26th April, 2011.
The Respondent on the other hand, admitted that “results were collated from seven(7) Wards into the Form ECBC(i) that is the collation sheet at the State Constituency level…”. But, that “the returning officer declared the election of 26/4/2011 inconclusive based on the provisions of the INEC manual for election officials 2011.”
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