Whether A Party that Alleges that An Election was Invalid Can at the Same Time Seek to be Declared the Winner of that Election

CASE TITLE: ENABULELE & ANOR v. MONDAY & ORS (2025) LPELR-81266(CA)

JUDGMENT DATE: 29TH MAY, 2025

PRACTICE AREA: ELECTION PETITION

LEAD JUDGMENT: UWABUNKEONYE ONWOSI, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Election Petition.

FACTS:

This appeal is against the judgment of the Edo State Governorship Election Tribunal sitting in Abuja delivered on the 2nd day of April 2025 in the petition No: EPT/ED/GOV/01/2024, wherein the Tribunal, presided over by Hon. Justice W.I. Kpochi (Chairman), Hon. Justice K. B. Yusuf (Member 1), and Hon. Justice A. Adewole (Member 2), dismissed the Appellants’ petition as lacking in merit and affirmed the election and return of the 1st Respondent to the office of the Governor of Edo State.

On the 21st of September, 2024, the Edo State Governorship Election was conducted by the Independent National Electoral Commission (INEC), the 3rd Respondent. The 1st Appellant was said to be the candidate of the 2nd Appellant in the said election, while the 1st Respondent was the candidate of the 2nd Respondent. At the end of the election, the 3rd Respondent returned the 1st Respondent as the duly elected, having scored the majority of the lawful votes.

Being dissatisfied with the result of the election as declared by the 3rd Respondent, the Appellants filed a petition at the registry of the Tribunal to challenge the election and declaration of the 1st Respondent as the duly elected Governor of Edo State in the Edo State Governorship Election upon the following grounds, namely:

1. The 1st Respondent was not duly elected by the majority of the lawful votes cast at the election.

2. The election was invalid by reason of corrupt practices perpetrated by the Respondents.

3. The election was invalid by reason of non-compliance with the provision of the Electoral Act, 2022, as amended, INEC Guidelines for the 2023 General Election, and the Constitution of the Federal Republic of Nigeria, 1999.

The Respondents also filed preliminary objections, respectively, challenging the competence of certain paragraphs of the petition and its grounds, which were heard during the pre-hearing session. The tribunal deferred ruling on them, which were delivered contemporaneously with the judgment. In the ruling, the trial tribunal upheld the preliminary objection of the Respondents and struck out the paragraphs of the petition and eventually the petition itself.

The Tribunal nonetheless proceeded to hear the petition on the merit, and after the consideration of the evidence, dismissed the petition. Dissatisfied, the Appellants approached the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court adopted the issues raised by the Appellant thus:

1. Whether the Lower Tribunal was right in upholding the 1st, 2nd and 3rd Respondent’s Preliminary Objection and striking out/ dismissing the Appellants’ petition?

2 Whether the Lower Tribunal was right when it held that the Appellants failed to prove their petition by cogent and credible evidence to be entitled to the reliefs sought?

3 Whether failure of the 3rd Respondent to honor the subpoena issued against them is fatal to the case of the Appellants in relation to allegations of non-compliance in Akoko-Edo, Etsako East, Etsako Central, Owan West, Esan North, Esan Central, Ovia North-East, Igueben, Oredo, Ikpoba-Okha, Egar, Ovia South-West, and Orhionmwon. What the Lower Tribunal ought to have done.

DECISION/HELD:

In conclusion the Court struck out the brief of argument for incompetence and also dismissed the appeal on its merit.

RATIOS:

APPEAL- BRIEF OF ARGUMENT: Effect of brief of argument filed in contravention of the provisions of Election Practice Direction
APPEAL- BRIEF OF ARGUMENT: Distinction between an incompetent and defective brief of argument
COURT—RAISING ISSUE(S) SUO MOTU: Whether a Court can raise the issue of jurisdiction suo motu and determine it without hearing parties
COURT- DUTY OF COURT: Duty of the Court of Appeal where it finds that it has no jurisdiction on an appeal to proceed to consider the merit of the appeal
ELECTION PETITION- ELECTION PETITION PROCEEDINGS: Effect of non-compliance with Paragraph 4(1)(d) of the First Schedule to the Electoral Act, 2022 in relation to the content of an election petition
ELECTION PETITION- GROUNDS FOR CHALLENGING AN ELECTION: Effect where grounds in an election petition are not in conformity with the provisions of the Electoral Act
ELECTION PETITION- ELECTION PETITION PROCEEDINGS: Whether a party that alleges that an election was invalid can at the same time seek to be declared the winner of that election
EVIDENCE- WITHHOLDING EVIDENCE: Whether failure to obey subpoena will amount to withholding evidence