Hon. Jonas Okeke & Ors v. Hon. Austin Nwachukwu & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the National and State Houses of Assembly Election Tribunal, Imo State, sitting at Mararaba, Nasarawa State, Coram: Anthony Olotu Akpovi J., (Chairman), A. S. Kudu j., (Member) and Ibrahim Mohammed J., (Member) in Election Petition No. EPT/IM/HR/17/2023:

Hon Austin Nwachukwu & Anor. v. Hon Jonas Okeke & Others delivered on 10/9/ 2023, wherein the petition filed by the 1st and 2nd respondents as petitioners against the 1st and 2nd appellants as respondents, was granted and the declaration and return of the 1st appellant of the 2nd appellant by the 3rd respondent as the winner of the questioned election was nullified on the ground that he was, at the time of the questioned election, not qualified to contest the said election.

The appellants were peeved with the said judgment and had appealed against it to this court vide their notice of appeal filed on 25/9/2023 on 14 grounds at pages 1405 – 1425 in volume 2 of the record of appeal.

The record of appeal was duly transmitted to this court on 29/9/2023. The appellants brief was filed on 7/10/2023. The 1st respondents brief was filed on 11/10/2023. The 2nd and 3rd respondents did not file any brief. The appellants reply brief to the 1st respondents brief was filed on 13/10/2023. The 1st respondents notice to contend was filed on 4/10/2023.

At the hearing of this appeal on 27/10/2023, the appellants were represented by Osita Mbamalu, Esq., appearing with L. C. Ekene Okwunma, Esq., who adopted the appellants brief and reply brief as their arguments in support of the appeal and urged the court to allow the appeal and set aside the judgment of the lower Tribunal and to dismiss the 1st and 2nd respondents petition for lacking in merit.

The 1st respondent was represented by Alex N. N. Williams, Esq., appearing with Prof Joshua Alobo, who adopted the 1st respondents brief as their arguments in opposition to the appeal and urged the court to dismiss the appeal and affirm the judgment of the lower tribunal. The 3rd respondent was represented by V. P. Odogbe, Esq., holding the brief of Emeka Iwebulam, Esq. The 2nd respondent, though duly served with hearing notice on 25/10/2023 through their counsel, were not represented by counsel at the hearing of this appeal.

Brief statement of facts

As can be garnered from the averments of the parties in their respective pleadings before the lower tribunal as well as the evidence, oral and documentary as led by the parties who called witnesses, the facts relevant to this appeal are that the 3rd respondent had on 25/2/2023, conducted election into the Ehime – Mbano/Ihitte – Uboma/Obowo Federal Constituency, in which the 1st appellant contested has the candidate of the 2nd appellant, PDP, while the 1st respondent contested as the candidate of the 2nd respondent, Labour Party. At the conclusion of the questioned election, the 1st appellant was returned and declared as the winner of the election by the 3rd respondent, INEC, having scored the majority of the lawful votes cast at the election.

The 1st and 2nd respondents were peeved with the outcome of the questioned election and had by way of an election petition filed on 18/3/2023 challenged the return and declaration of the 1st appellant by the 1st respondent as the winner of the questioned election on grounds alleging that the election and return of the 1st appellant was invalid by reason of substantial non-compliance with the provisions of the section 84(5) (C) (i) of the Electoral Act, 2022. See pages 1 – 259 in volume 1 of the records of appeal.

Upon service of the 1st and 2nd respondents petition, the 1st appellant as respondent filed his reply to the petition on 24/4/2023, while the 2nd appellant filed its reply to the petition on 18/4/2023. In response, the 1st and 2nd respondents as petitioners filed their replies to the respondents. The appellants vehemently denied the allegations of the 1st and 2nd respondents and averred that the 1st appellant was qualified and was duly nominated as the candidate of the 2nd appellant at the question election, in which he lawfully participated, scored the majority of the valid lawful vote cast and was validly declared and returned as the duly elected person by the 3rd respondent, INEC. See pages 268 -834 in volume 1 and pages 869 – 1102 in Volume 2 of the records of appeal.

By their pleadings, the parties duly joined issues and the 1st and 2nd and respondents petition proceeded to the pre-hearing session, at the conclusion of which the matter proceeded to trial. At the trial, the 1st and 2nd respondents, as petitioners, in proof of their case called the 1st respondent as their sole witnesses, who testified as PW1, and tendered some documents, which were admitted in evidence as exhibits, and closed their case. In his defense, the 1st appellants as respondent called Chief Abanili David Onwuzurike as his sole witness, who testified as RW1, and tendered some documents, which were admitted as and closed his defense. See pages 1360 – 1368 in Volume 2 of the records of appeal.

At the conclusion of the trial, the parties filed and exchanged their final written addresses, which were duly filed by them, and on 10/9/2023, the lower Tribunal delivered its judgment, wherein the petition filed by the 1st and 2nd respondents as petitioners against the 1st and 2nd appellants as respondents, was granted and the declaration and return of the 1st appellant of the 2nd appellant by the 3rd respondent as the winner of the questioned election was nullified on the ground that he was, at the time of the questioned election, not qualified to contest the said election, herein hence this appeal. See pages 1369 – 1404, 1405 – 1425 in volume 2 of the record of appeal.

Issues for determination