Udensi Ekea Ulu & Ors v. Independent National Electoral Commission (INEC) & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BALKISU BELLO ALIYU, JCA (Delivering the leading judgment)

This appeal is against the Judgment of the National and States Houses of Assembly Election Tribunal for Abia State, holden at Umuahia, delivered on the 20th September, 2023 in respect of petition No: EPT/AB/SHA/7/2023 filed by the appellants as the petitioners against the respondents.

The 1st appellant was the candidate of the 2nd appellant in the election for member Abia State House of Assembly, representing Ohafia South State Constituency of Abia State that was conducted by the 1st respondent (INEC) on the 18th March 2023.

The 3rd respondent also contested the said election sponsored by the 2nd respondent, the Labour Party (LP). At the conclusion of the election, the 1st respondent declared the 3rd respondent winner of the election having scored the highest number of the lawful votes cast and thereby returned him elected.

The appellants disagreed with the return of the 2nd and 3rd respondents as winners of the election and they filed this petition relying on the following grounds:

1. That the 3rd respondent was at the time of the Election not qualified being a person disqualified to contest the said election, by virtue of section 107(1)(i) of the 1999 Constitution.
2. That the election was invalid by reasons of non-compliance with the provisions of the Electoral Act, 2022 in that the 1st respondent wrongly and unlawfully listed the 3rd respondent as a candidate in the election and allotted the symbol of the 2nd respondent to him.
3. The respondents was (sic) not duly elected by majority of lawful votes.

The appellants pleaded, in support of the three grounds of the petition that the Ohafia South Abia State Constituency consists of five (5) wards and one hundred and fifty-one (151) polling units which are encapsulated in the Voters Register of the constituency.

They asserted that the 3rd respondent was wrongly returned as the winner of the election and was also not sponsored for the election by the 2nd respondent. That after the election, the 1st respondent declared 6,258 votes for the 3rd respondent even though he was not qualified to contest election for failure to present to 1st respondent his First School Leaving Certificate (FSLC) and NECO in INEC Form EC9.

That the 3rd respondent had no such certificates to present. That the certificate of NECO he presented to INEC has a name which coincides with his name but has a passport size photograph attached of another person not the 3rd respondent.

The petitioners also pleaded that the 2nd respondent did not submit its register of members to the 1st respondent at least 30 days before the conduct of its primaries election as required by law. But despite the failure to submit its membership register to it, and not knowing who the members of the 2nd respondents are the 1st respondent still allotted the 2nd respondents symbol to the 3rd respondent as its candidate for the election.

They also pleaded that the 2nd respondent breached the constitutional provisions and Electoral Act in parading the 3rd respondent as its candidate for the election and the 1st respondent also breached the said laws in allotting a symbol to the 3rd respondent under which he contested the election.

Upon the pleaded facts, the appellants prayed the tribunal for the following reliefs:

1. That it may be determined that the 3rd respondent was not duly elected in the said election being a person who was disqualified as a candidate under section 107(1)(i) of the 1999 Constitution.
2. That it may be determined that the 3rd respondent was not duly elected in the said election being a person that is not qualified as a candidate under section 106(1)(d) of the 1999 Constitution.
3. That it may be determined that the allotment of the symbol of the 2nd respondent in the ballot was invalid by reason of non-compliance with the provisions of the Electoral Act.
4. An order nullifying and also setting aside all votes attributed to the 3rd respondent in the said election by reason of non-qualification and disqualification of the 3rd respondent to contest the said election in the first place.
5. An order directing the 1st respondent to withdraw the Certificate of Return issued to the 3rd respondent in respect of the Ohafia South State Constituency of Abia State.
6. A declaration of the honorable tribunal that the 1st petitioner is the winner of the House of Assembly election conducted by the 1st respondent on the 18th day of March, 2023 having scored the majority of lawful votes cast at the election.
7. An order directing the 1st respondent to issue the 1st petitioner with a Certificate of Return as the winner of the election for the Ohafia South State Constituency of Abia State, having scored the highest number of lawful votes cast at the election as duly elected member representing Ohafia South State Constituency in the House of Assembly.

The respondents filed their respective replies to the petition denying all the allegations made therein. In addition, the 2nd respondent filed a preliminary objection challenging the competence of the petition for lumping grounds of the petition. The 3rd respondent by its motion filed on 17/5/2023 also challenged the competence of the petition on the ground also for lumping of grounds of the petition and the tribunal lacked jurisdiction to edit the grounds and pick which grounds to delete on behalf of the appellants.

The rulings on the two preliminary objections were delivered along with the judgment now on appeal. In its judgment, the tribunal upheld the objections of the respondents and struck out ground 2 of the petition and the evidence of the 1st petition as PW1 along with all the documents tendered through him. On the merit, the tribunal found and held that the appellants failed to lead evidence in proof of the petition and the respondents evidence tilted the scale of justice in their favour against the appellants. The tribunal therefore dismissed the petition.

The appellants were dissatisfied with the judgment, and they filed notice of appeal against it relying on nine (9) grounds of appeal to pray this court for an order allowing the appeal and granting all the reliefs sought by the appellants in their petition.