Independent National Electoral Commission (INEC) & Ors. V. Hon. Ifeanyi Igwe & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REASONS FOR THE JUDUGMENT PRONOUNCED BY HON. JUSTICE ALI ABUBAKAR BABANDI GUMEL, J.C.A, ON 7TH JANUARY, 2012

On the 7th January, 2012, I dismissed this appeal and indicated then that I would give my reasons for so doing at a future date. I now do so today.

This appeal arose from all the facts and circumstances of Election Petition No. EPT/AN/HA/25/2011 and the judgment of the National Assembly Election Trlbunal, Akwa, Anambra State delivered on 10th November, 2011 in which the Tribunal found for the Petitioner when it held and decided that there was no valid election at Oganiru Primary School Polling Units 005, 006, 007 and 008 and no valid results exist for the said 4 polling units and thereafter proceeded to nullify the election in the 4 units.

INEC, the 3rd Respondent at the Tribunal along with 8 of its officials as Respondents too, were aggrieved and dissatisfied with this decision and appealed to this Court in a notice of appeal dated 28/11/2011 but filed on 30/11/2011. To argue the appeal, learned Counsel to the Appellants, Onyechi Ikpeazu SAN filed a brief of argument dated 19/12/2011.

In his answer to the appeal learned Counsel to the 1st Respondent, Ilochi Okafor SAN filed a brief of argument dated 27/12/2011. To respond to the issues argued in the 1st Respondent’s brief learned Counsel to the Appellants filed a reply brief dated 6/01/2012.

From the 9 grounds upon which this appeal is predicated, learned Counsel to the Appellants formulated and argued the following 2 issues in his brief of argument. They are:-

i. Whether based on the evidence led the tribunal was justified in holding that the 1st Respondent established his case as required in an election petition thus necessitating the shifting of the onus of proof to the Appellant and the 2nd Respondent to justify the result of the election. GROUDNS I, II, III, IV, V, VI and IX

ii. Whether the Tribunal was right in nullifying the results of the elections in Oganiru Primary School Polling Units 005, 006, 007 and 008 GROUNDS VII and VIII

In his response, learned Counsel to the 1st Respondent also formulated and argued his own 2 issues. They are:-

i. In all the circumstances of this case, was the Tribunal below right in holding that the 1st Respondent, Tony Uche Ezekwelu was not duly elected or returned by majority of lawful votes cast at the election?

ii. If the answer to the above issue 1 is resolved against the appellant, is this Appeal not liable to be dismissed?

No briefs were filed on behalf of the 2nd and 3rd Respondents. At the hearing of the appeal before us on 6/01/2012, learned Counsel who argued the appeal on behalf of the 1st Respondent Mr. C. I. Okafor drew the attention of the Court to a notice of preliminary objection (PO) he filed. He identified it and explained that it was fully argued in the 1st Respondent’s brief of argument dated 27/12/2011 but filed on 28/12/2011. He adopted and relied all the arguments and submissions in that behalf and urged on the court to uphold the PO and hold that the Appellants lacked the requisite right to bring this appeal.

On behalf of the Appellants, learned Counsel Mr. Ezeuko referred to a reply brief dated and filed on 6/01/2012 as his response to the PO. He specifically drew our attention to the arguments and submissions at pages 3-11 of the reply brief and urged on the Court to dismiss the P. O. for lacking in any merit. With respect to the appeal itself, learned Counsel Mr. Ezeuko for the Appellants urged on the Court to allow it and set aside the judgment of the Tribunal delivered on 10/11/2011 and affirm the declaration and return of the 2nd Respondent, the candidate of the 3rd Respondent, as the duly elected person for the Idemili South Constituency of the Anambra State House of Assembly. Learned Counsel Mr. Okafor urged on the Court to dismiss this appeal. Respective Learned Counsel, to the 2nd and 3rd Respondents, having filed no briefs, did not have anything to urge on the Court.

The Preliminary objection of the 1st Respondent is predicated on the following 3 grounds. They are:-