Whether INEC Has the Power to Decide Where or Change the Venue of any Election?

CASE TITLE: ALAGBAOSO v. INEC & ORS (2022) LPELR-58889(CA)

JUDGMENT DATE: 4^TH NOVEMBER, 2022

PRACTICE AREA: ELECTORAL MATTERS

LEAD JUDGMENT: RITA NOSAKHARE PEMU, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Electoral Matters.

FACTS:

This appeal is against the decision of the Federal High Court, Owerri Judicial Division delivered on the 6th day of September, 2022 in Suit No. FHC/OW/CS/90/2022.

The Appellant Hon. Jerry Alagbaoso as plaintiff had approached the trial Court vide originating summons filed on the 7th day of June 2022, encapsulating 6 (six) questions for determination and seeking 11 (Eleven) reliefs, with 8 (eight) grounds. The defendants/Respondents by the 3rd Defendant/Respondent filed a 48 paragraph counter-affidavit with annexures.

The appellant and the 3rd Respondent Jones Onyereri were members of the Peoples Democratic Party (the 2nd Respondent). They both contested, along with two other members of the 2nd Respondent in the Primary Election for the position of the 2nd Respondent’s candidate for the Imo West Senatorial District in the 2023 General Elections.

On the 25th day of May 2022, the election commenced. 423 delegates were pre-elected to vote. Only 412 turned out. They were accredited and voted. At the end of the election; the 3rd Respondent scored a total of 228 votes. The Appellant scored 58 votes, one Ezeani Thankgod scored 118 votes, while the fourth candidate Geoffrey Chizeh scored (1) vote. 7 votes were voided. All these are reflected in Exhibits F2, F3 and F4, which were tendered by the 3rd Respondent.

Before the conduct of the primaries in question, the 2nd Respondent applied to the 1st Respondent to allow her to conduct her primaries at the state headquarters because of the emergency situation of insecurity that the State concerned (Anambra and Imo States) found themselves in. The Primary election of all the candidates for the House of Assembly, all the candidates for the Federal House of Representatives and all the candidates for the senate of the National Assembly in all parts of the State of Imo was held at Owerri, the Imo State Capital.

After the hearing of the case, judgment was given in favour of the Respondent. The Appellant was dissatisfied with the decision of the trial Court and appealed.

ISSUES:

The Court considered the following issues in the determination of the appeal:

“i. Whether the learned trial Judge was right in law when His Lordship raised the issue of proprietary or otherwise of the Plaintiff/Appellant’s Further Affidavit filed on the 5th day of August 2022 suo motu without inviting parties to address the Court on same and thus violated the Plaintiff/Appellant’s constitutional right to a fair hearing.

ii. Whether the learned trial Judge rightly interpreted the provision of Section 84(5)(c)(i) of the Electoral Act, 2022 ​when his lordship held that same admit of exceptions and proceeded to hold that the conduct of the Imo West Senatorial District Primary Election by the 2nd Respondent outside the Imo West Senatorial District is justifiable and that the Appellant waived his right to complain about the said primary election having participated in it.

iii. Whether the learned trial Judge was right when His Lordship merely reviewed and failed to evaluate the entirety of the evidence of Parties before concluding that the Plaintiff/Appellant has not discharged the burden of proof on him and that the primary election for the Imo West Senatorial District was in substantial compliance with the Electoral Act, 2022, the 2nd Respondent’s Constitution and the Electoral Guidelines for the conduct of Primary Election.

iv. Whether the learned trial Judge understood the case of the Appellant on the issue of overvoting and was right in law to have concluded that the Plaintiff/Appellant’s failed to prove overvoting.”

DECISION/HELD:

The appeal was dismissed for lack of merit.

RATIOS:

• ELECTORAL MATTERS – INDEPENDENT NATIONAL ELECTORAL COMMISSION: Power of the Independent National Electoral Commission to decide where an election will hold/ change the venue of any election
• CONSTITUTIONAL LAW – SUPREMACY OF THE CONSTITUTION: Effect of any Law or Act that is inconsistent with the Constitution
• EVIDENCE – AFFIDAVIT EVIDENCE: How error(s) in a further affidavit can be corrected
• JUDGMENT AND ORDER – WRITING OF JUDGMENT: Essential components of a good Judgment