➥ CASE SUMMARY OF:
Edeoga Jonathan & Anor. v Independent National Electoral Commission & Ors. (2023) – EPT/EN/GOV/01/2023
by Branham Chima.
Edeoga Chijioke Jonathan
Independent National Electoral Commission (INEC)
- Mbah Peter Ndubuisi
- Peoples Democratic Party (PDP)
(Governorship Election Petition Tribunal) – EPT/EN/GOV/01/2023
➥ JUDGEMENT DELIVERED ON:
21st day Of September, 2023
➥ THIS CASE IS AUTHORITY FOR:
⦿ MATTERS TO BE DECIDED AT SUBSTANTIVE CASE SHOULD NOT BE COMMENTED ON AT THE PRELIMINARY
The law is settled that a court should not comment or decide at preliminary stage matters or issues which are supposed to be decided in the substantive case. See NWANKWO & ORS V YAR’ADUA & ORS (2010) LPELR-2109 (SC) at page 71 paras B-F per Coomassie JSC; and OCHOLI ENOJO JAMES, SAN V INEC & ORS (2015) LPELR-24494 (SC) at pg.92 para G, per Okoro JSC. — K.M. Akano, J.
⦿ NEW FACTS SHOULD NOT BE INTRODUCED IN THE COURSE OF REPLY BY THE PETITIONER
By the provision of paragraph 16(1) (a) above reproduced, a petitioner is permitted to file a reply if the Respondent to the petition in his reply raises new issues of fact in defence of his case which the petition has not dealt with, but in doing so, the Petitioners’ reply shall not bring in new facts, grounds or prayer which tend to amend or add to the contents of the petition. See MADUABUM V NWOSU (SUPRA). — K.M. Akano, J.
⦿ ORAL APPLICATION FOR CORRECTION OF WRITTEN ADDRESS WILL BE ALLOWED
We have read through the submission of all the Counsel and will flow along with the decision of the Supreme Court in Adeleke v Oyetola (supra) and allow Chief Awomolo SAN’s application. In essence the prayer of the Petitioners’ Counsel to reflect the correction/amendments prayed for is hereby granted as prayed as all the Respondents counsel responded to all the issues despite the fact that i t was not raised in the issues for determination but addressed in the body of the address as an issue. — K.M. Akano, J.
⦿ TO PROVE FORGERY
It is trite that to prove forgery two documents must be produced that is (1) the document from with the forgery was made and (2) the forged document. In this petition apart from the Exhibits tendered through the subpoenaed witnesses no other document was produced by the Petitioners. — K.M. Akano, J.
⦿ CANNOT TESTIFY ON POLLING UNIT RESULT IF NOT POLLING UNIT AGENT
This witness is not fit to testify on polling unit result not being a polling unit agent. His testimony on the polling unit is hearsay and shall therefore be discountenanced with … The testimony of PW26 is not reliable in this case. Testimony was to the effect that he was the Party Chairman, and never served as an Agent in any of the polling units or wards but monitored the election. His testimony can at best be described as hearsay and not reliable. We so hold. — K.M. Akano, J.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice K.M. Akano
⦿ FOR THE PETITIONER
Chief Adegboyega Awomolo SAN.
⦿ FOR THE RESPONDENT
H.I. Okoli Esq., for 1st Respondent;
Chief Wole Olanipekun SAN, for 2nd Respondent;
Dr. Alex A. Izinyon SAN, for 3rd Respondent.
➥ CASE FACT/HISTORY
This is a petition in respect of the election conducted by the 1st Respondent, the Independent National Electoral Commission (INEC), into the office of the Governor of Enugu State held on the 18th of March 2023 during which the 2nd Respondent, that is Mbah Peter Ndubuisi contested as a candidate of the Peoples Democratic Party, the 3rd Respondent. The 1st Petitioner, Edeoga Chijioke Jonathan featured as a Candidate of the 2nd Petitioner, Labour Party along other Candidates sponsored by their various other political parties that participated in the election. At the conclusion of the election, the 2nd Respondent Mbah Peter Ndubuisi was declared by the 1st Respondent the winner of the said election with 160,895 (One hundred and sixty thousand eight hundred and ninety-five) votes as against the 1st Petitioner who came second with 157,552 (One hundred and fifty-seven thousand, five hundred and fifty-two) votes with the other candidates in the said election trailing behind them. The Petitioners filed this Petition on 6th of April 2023 challenging the declaration and return of the 2nd Respondent by the 1st Respondent upon the grounds as stated in pages 6-7 of the Petition.
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY: SUCCEEDED IN PART]
I. Whether the 1st petitioner has the locus standi to institute this petition since he was not a member of the 2nd petitioner 30 days before the election?
RULING: IN PETITIONERS FAVOUR.
A. MEMBERSHIP OF THE 1ST PETITIONER CANNOT BE CHALLENGED AS IT IS AN INTERNAL AFFAIR OF THE 2ND PETITIONER
[‘The issue of membership of a political party has been held by the Apex Court in a number of cases to be an internal affair of the political party concerned and the courts have no jurisdiction to entertain same. See ENANG V Asuquo & Ors (2023) LPELR-60042(SC) pg. 29-35 paras D-A, SANI V GALADIMA & ORS (2023) LPELR-60183 (SC) Pg. 32-33 paras D-A; TUMBIDO V INEC & ORS (2023) LPELR -60042 (SC) pg. 31-35 paras D-C. This was followed by the Presidential Election Petition court in petition No: CA/PEPC/03/2023; Peter Gregory Obi & Anor v INEC & Ors where it was held that: “The provision of section 77(3) of the Electoral Act, 2022 which only mandates every political party to submit the register of its members 30 days before its party primaries cannot be invoked by the Respondents for the purpose of challenging the 1st petitioner’s membership of the 2nd petitioner. It is only the 2nd petitioner that has the sole prerogative of determining who are its members, and having sponsored the 1st petitioner as its candidate for the presidential election, the 1st petitioner has satisfied the requirement of being a member of the 2nd petitioner as provided for in section 131(c) of the 1999 constitution. It is not within the rights of the 2nd and 3rd Respondents and the 4th Respondent to question the 1st petitioner’s membership of the 2nd petition (see page 38-39).”’]
B. AN ELECTION PETITION TRIBUNAL CANNOT DELVE INTO PRIMARIES OF A POLITICAL PARTY
[‘It is held by the Supreme Court in Alhassan & Anor v Ishaku & Ors (2016) LPELR 40083 (SC) that: 11 …..by virtue of the provisions of section 138(1) (a) of the Electoral Act, a Tribunal’s power to decide whether a person is qualified to contest an election is restricted to establishing the requirements of section 177and 182 of the constitution against the adverse party. An Election Tribunal has no jurisdiction to inquire into the primaries of a political party.”’]
II. Whether or not witnesses on subpoena are mandated to upload their written statements on oath along with the petition?
RULING: IN RESPONDENT’S FAVOUR.
A. ALL WITNESSES STATEMENTS ON OATH MUST BE FILED WITHIN THE TIME ALLOTTED
[‘The law is settled that the above provision makes it mandatory to file witness depositions along with the petition before such witness will be competent to testify before the Tribunal or court in election petitions. See OKE & ANOR V MIMIKO & ORS (2013) LPELR 20645 (SC) at pg 43-45 paras D-D; OGBA V VINCENT (2015) LPELR 40719 (CA) at pg 42-49 paras C; ARARUME & ANOR V INEC & ANOR (2019) LPELR 48397 (CA) at pg 28-36. In peter Obi & Anor v INEC & ORS (supra) the court per Tsammani JCA said: “The firm position of the Supreme Court as stated in OKE v MIMIKO (supra) and followed by this court in Ogba v Vincent (supra) is that by the combined provisions of section 285(5) of the 1999 Constitution, section 132 (7) of the Electoral Act, 2022 and paragraph 4(5) and (6) and 14(2) of the 1st Schedule to the Electoral Act, every written statement on oath of the witnesses which a party intends to call must be filed along with the petition within the time limited by section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and section 132(7) of the Electoral Act,2022. Once the time limited for filing ofa petition has elapsed, the contents of the petition cannot be added to, or amended in any manner or under any guise. Any written statement on oath of a witness filed outside that 21 days limitation will amount to a surreptitious amendment of the petition and a breach of paragraph 14 ofthe 1st Schedule to the Electoral Act, 2022. This is irrespective of whether the witnesses to be called are ordinary or expert witnesses and whether they are willing or subpoenaed witnesses. Since then, this has been the consistent position of the law followed by this court. In the instant petition, PW1, PW2, PW3 and PW30 were subpoenaed at the instance of the Petitioner while DW2 and DW3 were subpoenaed at the instance of the 2nd and 3rd Respondents respectively. Hence all the witnesses under subpoena were available to the parties at the time of filing the petition and replies thereto, it follows that the witness statements on oath filed after the time limited for doing so has elapsed are incompetent. Their testimonies as embodied in their respective witness statement and/or oral evidence, documents admitted in evidence as Exhibits are hereby struck out.’]
[MAIN PETITION: DISMISSED]
I. Whether the 2nd Respondent sponsored by the 3rd Respondent was qualified to contest the Governorship Election for Enugu State held on 18th March 2023?
RULING: IN RESPONDENT’S FAVOUR.
A. NYSC CERTIFICATE IS NOT A REQUIREMENT FOR QUALIFICATION
[‘It is not in doubt going by the provision of Section 177 of the 1999 Constitution (as amended) and highlighted which is the qualification to the office of Governor of a State, that possession of NYSC discharged certificate is not a requirement as a follow up to Section 318 of the same constitution.’
‘The consideration here and questions to ask are: 1. Was the certificate presented by the 2nd Respondent forged? 2. Did the 2 Respondent present a forged NYSC Certificate in aid ofhis qualification? In respect of the posers above, reference is made to section 177(d) of the 1999 Constitution (as amended) quoted above. The qualification of the 2nd Respondent as a Lawyer is not in doubt between the two sides in this Petition. What is in issue is that the NYSC certificate presented by the 2nd Respondent in aid of his qualification was forged as he never completed the said programme and was never issued with any discharged certificate by NYSC. A poser here again is without the NYSC certificate is the 2nd Respondent qualified to have contested the election?’
‘The qualification to contest to the office of the Governor in Section 318 of 1999 Constitution as highlighted above does not include NYSC certificate. Section 182(j) relied upon by the Petitioners cannot stand alone but interpreted together with Section 318 of the same constitution. We so hold. Therefore reading Section 182(1)(j) with Section 318 of the 1999 Constitution (as amended) we hold that NYSC certificate is not a requirement/qualification to contest to the office of Governor of Enugu State.’]
B. THE NYSC CERTIFICATE WAS NOT PRESENTED IN AID OF HIS QUALIFICATION
[‘Placing reliance on this, this Tribunal shall therefore then ask, was the alleged forged document presented in aid of the qualification of the 2nd Respondent? Reference is here made to Exhibit PET01/15 which is the Form EC9 of the 2nd Respondent to the 1st Respondent wherein the educational qualification of the 2nd Respondent was filled. Nowhere in the form is NYSC certificate filled though attached. We then ask “was the NYSC certificate attached in aid of his qualification? In Ogundehin v Olubowale (2016) LPELR 41125(CA), Tsammani JCA held thus: “… it is the settled law that any document attached to an affidavit but is not so marked as an exhibit cannot be countenanced”. See NDCA & Gaspa Project Management Engineering Ltd v Gaspa Project Management Group Ltd & Ors (2019) LPELR 47607 (CA). The said NYSC Certificate having not been referred to in the affidavit is therefore held to be merely attached and shall therefore be of no consequence to the qualification of the 2nd Respondent. Agi v PDP (2016) LPELR 42578 (SC) where the Supreme Court held: “… it must be proven that the falsification was done to circumvent the provision of Section 177 of the constitution, 1999, particularly as it relates to age qualification”’]
C. THE CERTIFICATE HAS NO BEARING ON THE AFFIDAVIT NOT BEING A STATUTORY REQUIREMENT
[‘From the consideration of evidence presented by the Petitioners and the holding of the Tribunal that the NYSC discharged certificate so attached does not have any bearing in the affidavit not being a statutory requirement. Also that same was not attached in aid of his qualification to contest the election we hold that the Petitioners did not present any evidence before the Tribunal in respect of this leg of their Petition. This issue is therefore resolved in favour of the Respondents and against the Petitioners same having not been proved. WE SO HOLD.’]
II. Whether the 2nd Respondent sponsored by the 3rd Respondent was duly elected by the majority of lawful votes cast at the Governorship Election on 18th March 2023 for Enugu State and was validly returned?
RULING: IN RESPONDENT’S FAVOUR.
A. THE WITNESSES OF THE PETITIONERS WERE NOT AGENTS IN THE POLLING UNITS THEY ARE TESTIFYING TO
[‘All the witnesses who testified for the Petitioners here admitted that they were not accredited by the 1st Respondent. However they were all issued with the identification card of their party by their party which is their Party Membership Card. It is obvious that these cannot serve the same purpose as the notice which shall be in writing, signed addressed and delivered or uploaded to a dedicated web portal as the Commission may decide. In essence none of the purported Agents is qualified to be a “polling unit agent” or a “ward collation Agent” in line with the law. What is the effect of this on their testimony? It is of importance to state here that the witnesses testified the capacity of “polling units” and “Ward collation agents” of the Petitioners and therefore performed some official duties for the Petitioners at the election. By virtue of the fact that they did not comply with the requirements of the law in performing those duties, same is declared false and outside the dictate of the Electoral law and the Manual. In view of the above provisions of the law we hold that their testimony goes to no issue as same is declared worthless as the instrument to allow them serve as “Agents” of their party, observe the election in that capacity and collect copies of the results were not applied for and issued to them all ab initio. We so hold.’]
III. Whether the Governorship Election for Enugu State held on 18th March 2023 was invalid by reason of non-compliance with the provisions of the Electoral Act 2022?
A. SEVERAL OF THE PETITIONERS WITNESSES WERE NOT PRESENT AT THE POLLING UNITS THUS THEIR TESTIMONY HEARSAY
[‘A Petitioner who alleges over voting is expected to call witnesses from the polling unit level. The Petitioners on this called PW9, PW10, PW11, PW12, PW13, PW14, PW15, PW16, PW17, PW18, PW25, PW26, PW28, PW29 and PW30. PW9 identified Exhibit EPT01/19C and tendered Exhibit EPT01/25 (a) (b) and (c) He stated that his name is Edeh Benneth Chukwuemeka and that he served as the polling agent of his party at CS Uhuome 1-008 polling unit in Ugbawka 1 Registration Area in Nkanu Local Government Area. A perusal of Exhibit EPT01/25C that he tendered does not show that he was present at the polling unit on that day as same was not signed by him but another person for his party not called as a witness. His testimony shall therefore be discountenanced with. We so hold.’
‘PW14 identified Exhibit EPT01/19C at No 2666 at page 86 and tendered Exhibits 30 (a) (b) and (c). Exhibit EPT01/30A was not signed by this witness. His testimony shall therefore be discountenance with. We so hold.’
‘PW16 tendered Exhibit EPTO1/32 (a) (b) (c) and (d). Exhibit EPT01/32 tendered by this witness as a polling unit Agent for the 2nd Petitioner was not signed by him for his party. His testimony shall therefore be discountenance with. We so hold. PW17 tendered Exhibit EPT01/33 (a) (b) (c) and (d). Exhibit EPT01/33c does not have the signature of this witness as an agent His testimony shall therefore be of the 2nd Petitioner. discountenanced with. We so hold. PW18 tendered Exhibits EPT01/34 (a) (b) (c) and (d). It needs be emphatically stated that this witness did not sign Exhibit EPT01/34C which he tendered. There is therefore nothing to show he was a Polling Unit Agent. We hold that he cannot therefore testify on same. His testimony shall therefore be discountenanced with.’
‘PW26 Casmir Agbo, the Party Chairman was never a polling unit or ward or Local Government or State agent of the 2nd Petitioner. This Tribunal holds the position that he is by virtue of this not in a position to testify on the result as declared as his testimony is based on hearsay from the agents of the 2nd Respondent.’]
B. WHERE DISCREPANCY, VOTES WERE CANCELLED
[‘PW11 identified Exhibit 19C and tendered Exhibit EPT01/27 (a) (b) and (c) of C.S. Amagu Polling unit. Exhibit 19C at No 2621 at page 84 shows total accreditation to be 83 whereas Exhibits 27B shows total number of votes cast to be 283. This is not possible! The allegation is hereby sustained and the result in CS Amagu polling unit 03 shall therefore be cancelled for all the parties. We so hold.’]
‘Having resolved all the issues above against the Petitioners, it follows that this petition is lacking in merit and ought to be dismissed. Accordingly, this petition is hereby dismissed. We affirm the declaration and return of Mbah Peter Ndubuisi by the Independent National Electoral Commission (INEC) as the duly elected Governor of Enugu State.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Sections 177, 182(1)(j), 318, of the 1999 Constitution;
Section 29 (1-6), 135 (a), 137, of the Electoral Act 2022;
➥ REFERENCED (CASE)
⦿ EXHIBIT NOT MARKED ATTACHED TO AFFIDAVIT CANNOT BE COUNTENANCED
In Ogundehin v Olubowale (2016) LPELR 41125(CA), Tsammani JCA held thus: “……It is the settled law that any document attached to an affidavit but is not so marked as an exhibit cannot be countenanced” See NDCA & Gaspa Project Management Engineering Ltd v Gaspa Project Management Group Ltd & Ors (2019) LPELR 47607 (CA).
➥ REFERENCED (OTHERS)