Aniocha/Oshimili federal constituency: Appeal Court reverses PDP’s Elumelu’s victory

The Court of Appeal sitting in Abuja has set aside the July 24, 2023, judgement by the National and State Houses of Assembly Election Tribunal in Asaba, which declared Ndudi Elumelu of the Peoples Democratic Party (PDP) as the winner of the last election for Aniocha/Oshimili Federal Constituency of Delta State.

In two judgements delivered on Thursday, the appellate court declared Ngozi Okolie of the Labour Party (LP) as the winner of the election, faulted the tribunal for voiding Okolie’s election, and went ahead to dismiss Elumelu’s petition filed before the tribunal and on which the voided judgement was given.

The Court of Appeal agreed with counsel to the Labour Party, Mahmud Magaji (SAN), that contrary to the finding of the tribunal, Okolie was duly nominated and sponsored by his party and that he resigned his appointment as a Senior Special Assistant (SSA) to the Delta State Government as required by the Constitution.

The Independent National Electoral Commission (INEC) had declared Okolie the winner of the February 25, 2023, election, a decision Elumelu, a former Minority Leader of the House of Representatives, challenged before the election tribunal.

In his petition, marked EPT/DL/HR/06/2023, Elumelu based his challenge of the outcome of the election on his contention that Okolie was not validly sponsored by the LP and that he did not resign his appointment 30 days before the election, as required by law.

The tribunal, headed by Justice A. Z. Mussa, had, in its July 24 judgement, agreed with Elumelu and the PDP that Okolie did not resign before his party’s primary election and that the LP did not hold a valid primary, a decision the Court of Appeal set aside on Thursday.

The two judgements by the appellant court were on the two appeals brought before it by the LP and Okolie, marked CA/AS/EP/HR/DL/05/2023 and CA/AS/EP/HR/DL/06/2023.

A three-member panel of the court, led by Justice Mohammed Shuaibu, resolved all the issues set out for determination against Elumelu and his party.

Justice Shuaibu, in the lead judgement in the appeal by the LP, held that the tribunal was without the requisite jurisdiction to have heard and determined the petition, which was based entirely on pre-election matters.

He added that issues relating to nomination, withdrawal, and substitution are pre-election matters and that the election petition tribunal has no jurisdiction, saying that “nomination and sponsorship of a candidate is an internal affair of a party.”

Justice Shuaibu held that Elumelu and the PDP lacked the locus standi to challenge the nomination process that produced Okolie since they were neither members of the LP nor aspirants in the primary held by the LP.

“The 1st and 2nd respondents (Elumelu and the PDP, who are not members of the appellant (LP)) are meddlesome interlopers”, Justice Shuaibu held, adding that Elumelu and the PDP failed to provide credible evidence to prove their case of lack of due nomination and sponsorship against Okolie.

He added that Elumelu and his party also did not show that they had the locus standi (Legal right) to have filed the petition challenging the nomination and sponsorship of Okolie when they did not participate in the primary of the LP.

While affirming Okolie’s victory, Justice Shuaibu set aside the judgement of the tribunal, dismissed the petition by Elumelu and his party, and awarded N100,000 in costs against them in favour of Okolie.

The lead judgement in the appeal by Okolie was authored by Justice Habeeb Abiru but read on Thursday by Justice Shuaibu, in which the court expressed similar views as it did in the appeal by the LP.

In both judgements, the court frowned at the conduct of the counsel to INEC, E. O. Okoko, for holding conflicting positions at the tribunal and at the Court of Appeal.

The appellate court held that, while the lawyer supported Okolie and the LP at the tribunal, he argued in favour of Elumelu and the PDP at the Appeal Court, which informed why the court rejected his briefs in both appeals.

According to Justice Shuaibu, “I must specifically comment on the conduct of the counsel to the 3rd respondent (INEC), Mr. E. O. Okoko, which I consider unprofessional and deserving of condemnation.

“Parties and counsel must be consistent in handling their cases both at the trial court and on appeal. In the instant case, the third respondent, the supposed election umpire, has not exhibited neutrality through the conduct of the said counsel.

“The 3rd respondent’s reply, at pages 188 to 189 of the record, implicitly admitted that the appellant (LP) conducted a primary which produced the 4th respondent (Okolie), but recanted its argument before us, wherein it submitted that the 1st and 2nd respondents have the locus standi to present an election petition and that the 4th respondent was not duly sponsored having not emerged from any primary.

“Further, appeals are generally regarded as a continuation of the original suit rather than the inception of a new one. And, in appeal, parties are confined to their cases as pleaded at the court of first instance. On the strength of the foregoing, the third respondent’s amended brief is hereby discounted. I say no more.” Justice Shuaibu held in the judgement.

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