INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS. V. HON. IFEANYI IGWE & ORS.
(2012)LCN/5293(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 4th day of April, 2012
CA/E/EPT/65C/2011
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. PESIDENT ELECTORAL COMMISSIONER
3. ELECTORAL OFFICER, IDEMILI SOUTH STATE ASSEMBLY CONSTITUENCY, ANAMBRA STATE
4. RETURNING OFFICER IDEMILI SOUTH STATE ASSEMBLY CONSTITUENCY, ANAMBRA STATE
5. PRESIDING OFFICER, OGANIRU PRIMARY SCHOOL, I CODE 005
6. PRESIDING OFFICER, OGANIRU PRIMARY SCHOOL II, CODE 006
7. PRESIDING OFFICER, OGANIRU PRIMARY SCHOOL III, CODE 007
8. PRESIDING OFFICER, OGANIRU PRIMARY SCHOOL IV, CODE 008
9. WARD COLLATION OFFICER Appellant(s)
AND
1. HON. IFEANYI IGWE
2. TONY UCHE EZEKWELU
3. ALL PROGRESSIVE GRAND ALLIANCE (APGA) Respondent(s)
RATIO
WHETHER OR NOT THE INDEPENDENT NATIONAL ELECTORAL COMMISSION IS ENTITLED TO DEFEND AN ELECTION RESULT
INEC is entitled to defend the result of an election it conducted and for which it had declared a winner. It is equally entitled to contest any findings of a Court against it based on allegations made by a Petitioner in an election petition or any appeal arising therefrom. PER GUMEL, J.C.A.
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:-
i. The Appellants have no Right of Appeal against the judgment of the tribunal below as they have not suffered any injury therefrom.
ii. The appellants have no locus standi to bring the instant appeal.
iii. The Appellants have not disclosed any cognisable interest in the outcome of the appeal which is primarily in support of the 2nd Respondent’s Appeal against the same judgment of the Tribunal below in another appeal pending before this Honourable Court which said Appeal also bears Appeal No: CA/E/EPT/65/2011 – Between Tony Uche Ezekwelu & Anor. v. Hon. Ifeanyi Igwe & Ors.
These grounds were argued at pages 4 to 7 of the 1st Respondent’s brief of argument. The springboard upon which learned Counsel made his submissions is anchored on what he called a holistic consideration of the provisions of amended 1999 Constitution and Electoral Act 2010, as amended relating to the powers of an Election Petition Tribunal and appeals therefrom to this Court. According to learned Counsel it is no where provided that INEC has any right of appeal to this Court to seek for the determination of any question as to whether or not any person has been validly elected as a member of a House of Assembly. The foundation of all the arguments and submissions of learned counsel remained fully rooted on the decisions of this Court in BALONWU V. IKEAZU (2005) LRECN 190 at 217 and INEC & 11 ORS. V. EZEJIE (unreported) judgment of Enugu Division of this Court delivered on 7/07/2010 in appeal No: CA/E/EPT/43/2008 per LOKULO-SODIPE, JCA.
In his response Learned Counsel to the Appellants, after his opening explanations and remarks, made a bold effort to distinguish the case of BALONWU V. IKPEAZU (Supra) against the facts and circumstances of this matter. To the extent of that matter being involved with an intra-party dispute as to the superiority of list of candidates to contest an election, though without accepting the correctness of that decision, learned Counsel conceded that INEC did not have a right of appeal. But because the case is not the same here, learned Counsel relied on several other decided cases and maintained that the right of INEC to appeal in circumstance of cases like this one has always been recognised by the Courts of this country, more specifically this Court. In support of this position, Learned Counsel referred to the cases of INEC V. OSHIOMHOLE (2009) 4 NWLR (Pt. 1132) 607, NGIGE V. OBI (2006) 14 NWLR (Pt.999) 1, INEC V. ANTHONY (2011) 7 NWLR (Pt.1245) 1 AND INEC V. ABUBAKAR (2009) 8 NWLR (Pt. 1143) 259 etc. He also referred to the decision of the Supreme Court in OBI V. INEC (2007) 1 ALL NLR 258. He urged this Court to discountenance all the arguments of learned Counsel to the 1st Respondent and decide in favour of the right of the within named Appellants to bring this appeal and to also uphold its competence.
I have carefully considered all the submissions and arguments of respective learned Counsel and I am of the view that learned Counsel to the 1st Respondent must be laboring under a misconception in raising this notice of preliminary objection. In the circumstance of this appeal, all the main and principal allegations of deliberate and willful miscalculation of election results against the 1st Respondent and in favour of the 2nd and 3rd Respondents and the issuance of conflicting CTCs of election results from the same election were made against INEC and its officials. INEC is entitled to defend the result of an election it conducted and for which it had declared a winner. It is equally entitled to contest any findings of a Court against it based on allegations made by a Petitioner in an election petition or any appeal arising therefrom. I therefore agree with learned Counsel to the Appellants that it is absurd to assert or hold that while INEC is duly bound to defend the result of an election it conducted as a statutory Respondent before an Election Tribunal but could not do so at the Court of Appeal or Supreme Court. It would not be proper to interprete any of the provisions of the Constitution or Electoral Act to be so elastic as to accommodate such absurdity. I therefore, do not see any substance in this preliminary objection. It is a total misconception. It is devoid of any merit and accordingly overruled and dismissed.
Going into the merits of this appeal, the Appellants herein were respectively the 3rd to 11th Respondents in appeal No: CA/E/EPT/65A/2011. They however did not file any brief of argument in that appeal. This appeal is predicated on the notice of appeal dated 28/11/2011 but filed on 30/11/11. This notice of appeal contains 9 grounds of appeal. Ground 9 of these grounds is an omnibus ground which seeks to challenge the judgment of the Tribunal for being made against the weight of evidence. Issue one in this appeal was distilled out of this ground of appeal amongst other grounds.
In both appeals No: CA/E/EPT/65A/2011 and CA/E/EPT/65B/2011 issues were formulated and argued out of omnibus grounds of appeal amongst other grounds of appeal. The omnibus ground of appeal is an all embracing mother of all grounds of appeal. Issue 2 formulated by the Appellant in this appeal is the same as issue 4 formulated by the Appellant for the determination of appeal No: CA/E/EPT/65A/2011, amongst other issues. All these and those other issues have been fully considered and resolved upon the arguments and submissions of respective learned Counsel in that behalf.
I have carefully read all the arguments and submissions of respective learned Counsel in this appeal together with the decided cases and statutory provisions put up for consideration, and there does not appear to me to be anything new at all that was not considered and decided upon in the 2 other appeals. There is no feature in this appeal that is exceptional or special enough to warrant or necessitate any change of approach or attitude to the findings of the tribunal in its judgment of 10th November, 2011.
It is for these reasons that I dismiss this appeal and in consequence affirm the judgment of the tribunal in Petition No: EPT/AN/HA/25/2011 delivered on 10/11/2011. I make no order for costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A: I have read the judgment just delivered by my learned brother A.A.B. GUMEL, JCA. I am in complete conclusion that the appeal be dismissed. I make no order as to costs.
IGNATIUS IGWE AGUBE, J.C.A: I agree.
Appearances
Mr. G.E. Ezeuko,
Mr. O. AnumonyeFor Appellant
AND
Mr. C.I. Okafor
Martins Okeke
Mr. A.C. Anaenugwu
T.U. Ogoji
N.R. Owoh
Mr. G.B. OkaforFor Respondent
