Sunday Izuhunwa Aguebor & Ors v. Independent National Electoral Commission (INEC) & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the National and State Houses of Assembly Election Petition Tribunal sitting at Benin City, Edo State (hereinafter called the tribunal) delivered on the 7th of September, 2023.

The tribunal upheld the election of the 2nd respondent and dismissed the petition of the appellants.

The background facts are that the 1st appellant, contesting under the platform of the 2nd appellant, vied for membership of the House of Representatives seeking to represent the Oredo Federal Constituency at the National Assembly Election held on 25th February, 2023.

The 2nd respondent who was the candidate of the 3rd respondent at the said election was declared winner and returned as a member, House of Representatives representing Oredo Federal Constituency having been credited with 49,893 votes compared to the 1st appellant’s 11,889 votes as declared by the 1st respondent.

Aggrieved with the conduct and result of the election, the appellants approached the National and State Houses of Assembly Election Petition Tribunal challenging the election of the 2nd respondent on ground that the 2nd respondent was not duly elected by the majority of lawful votes cast, that there was non-compliance with the Electoral Act, 2022 and that the election was invalid by reason corrupt practices.

The appellants’ petition was filed on 16/3/2023 and the following reliefs were sought at the tribunal:

1. “That the return of the 2nd respondent Iyawe Esosa of Labor Party (LP) the 3rd respondent as winner of the election to the membership of the Oredo Federal Constituency was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022 and the Regulations and guidelines for the Election issued thereunder.
2. An order voiding or annulling the certificate of return issued to the 2nd respondent Iyawe Esosa of Labour Party (LP) the 3rd respondent as the member representing the Oredo Federal Constituency in the House of Representatives
3. An order that the 1st petitioner, sunday izuhunwa aguebor of the Peoples’ Democratic Party, the 2nd petitioner scored the majority of the lawful votes cast at the election to the membership to the Federal House of Representatives at Oredo Federal Constituency on the 25th day of February, 2023 and ought to have been and is returned elected as the member representing Oredo Federal Constituency in the House of Representatives.
4. An order directing the 1st respondent to forthwith issue a certificate of return to the 1st petitioner, Sunday Izuhunwa Aguebor of the Peoples’ Democratic Party, the petitioner as the member representing the Oredo Federal Constituency in the House of Representatives.

ALTERNATIVELY:

A. An order nullifying the Elections held at the Oredo Federal Constituency on the 25th day of February, 2023 for non-compliance with the Mandatory Provisions of the Electoral Act, 2022 and the 1st respondent’s Regulations and Guidelines for the Elections.

B. An order mandating the 1st respondent to conduct a fresh election in the Oredo Federal Constituency for membership of the House of Representatives.”

The 1st respondent filed a response to the petition on 16/4/2023 while the 3rd respondent filed a response on 9/4/2023. The 2nd respondent’s reply filed 9/4/2023 was struck out by the Tribunal having been deemed to have been filed out of time. The 1st appellant testified, called two witnesses and tendered exhibits ‘PlA – P18D’ while the 3rd Respondent called two witnesses and tendered exhibits 3R1A – 3R493 from the Bar. It was the case of the appellants at the tribunal that the 1st respondent’s non-compliance with the Electoral Act, 2022 particularly regarding electronic transmission of polling units results to a server from all 619 polling units occasioned a manipulation of results.

The 3rd respondent filed a motion contending that the petition is incompetent, the appellants having failed to state their addresses for service at the foot of the petition to which a counter affidavit was filed by the learned counsel to the appellants.

The motion was heard but ruling was reserved till judgment. In a considered judgment, the tribunal upheld the preliminary objection of the 3rd respondent and struck out the petition.

The petition was thereafter in the alternative should the tribunal be wrong considered on its merit and was dismissed. Dissatisfied, the appellants lodged this appeal against the judgment of the tribunal via a notice of appeal filed on the 20th of September, 2023.