Hon. Offor Chukwuegbo V. MR Oji Chime Agu & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On 18-4-2015, the appellant herein as petitioner filed an election petition commencing petition No. EPT/ENU/NASS/HR/09/2015 in the National and State Houses of Assembly Election Petition Tribunal of Enugu State at Enugu against the respondents herein, claiming for the following reliefs.

(A) A declaration of the tribunal that the 1st respondent who did not win majority of the votes cast in the primary election of the 4th respondent which primary had been held to produce the candidate of the same of the 4th respondent in the Election held on 28/3/2015 for Enugu North/Enugu South Federal Constituency Enugu State, was in the circumstances not qualified to contest in the election and that the return made in his favour as having won the election by the 3rd Respondent was invalid and a nullity.

(B) A declaration of the tribunal that having not won or secured majority of the votes cast in the said primary election of the 4th respondent, that the said 1st respondent was not its candidate in the election and cannot be regarded as having been sponsored in the election as the 4th respondent’s candidate.

(C) A declaration of the tribunal that the 1st respondent in putting himself forward as a “candidate” of the said 4th respondent and the 3rd respondent in proceeding to publish his name and have him contest the election to the Federal House of Representatives to represent the Enugu North/Enugu South Federal Constituency in National Assembly, had committed a serious breach of the principles and provisions of the Electoral Act 2010 supra and which in turn acted to render his return as the winner of the election invalid and a nullity.

(D) A declaration of the court that having failed to win majority of the votes cast in the primary election of the 4th respondent held to elect its candidate in the election held on 28/3/2015 to the Federal House of the Representatives for Enugu North/Enugu South Federal Constituency, that the 1st respondent in the eyes of the election did not participate in the election of the 28/3/2015 and could not be said to have participated in all stages of the election, thus rendering his return as the winner of the election invalid and a nullity.

(E) An order of the Honourable Tribunal that a fresh election be conducted by the 3rd respondent within 30 days from the judgment of the tribunal or such other time as the tribunal may deem fit for purposes of electing the member to represent the Enugu North/Enugu South Federal Constituency in the National Assembly and in which the 1st and 4threspondents or any other person “sponsored” by the said 4th respondent be excluded or restrained from participating.”

The petition was accompanied by a witness statement on oath, list of documents to be relied on by the petitioner, and list of witnesses to be relied on by the petitioner.

The 4th respondent on 27-4-2015 filed a memorandum of conditional appearance to the petition. The 2nd and 3rd respondents filed their reply, accompanied by a witness statement on oath and list of witnesses. The 4th respondent subsequently filed a reply to the petition accompanied by list of documents to be relied on, a document to be relied on at the trial, list of witnesses, and a witness statement on oath of 4th respondent.

On 14-5-2015, the 1st respondent filed his reply accompanied by his statement on oath, list of witnesses to be called by him, list of copies of documents, and copies of documents. The petitioner on 18-5-2015 filed a reply to the 1st respondent’s reply accompanied by an additional witness statement on oath, additional list of witnesses, additional list of documents, and additional documents.

On the same day he also filed a reply to the 4th respondent’s reply accompanied by an additional witness statement on oath. The 1st respondent by a motion filed on 10-6-2015 prayed the trial Tribunal to strike out/dismiss the petition for being Incompetent on the grounds that-

a. The petitioner has no competence, capacity or authority to complain or institute an action on the outcome of the election on the basis of the conduct of primaries by a party he is not a member of.

b. Primary election is the exclusive preserve of a political party.

c. The issue complained against by the petitioner is a pre-election matter.