Appeal Court sacks Ndudi Elumelu

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The Court of Appeal, Abuja, on Thursday, set aside the judgment of the National and State Houses of Assembly Election Tribunal in Asaba which declared Ndudi Elumelu of the PDP as winner of the Feb. 25 election for Aniocha/Oshimili Federal Constituency of Delta . The appellate court, in two judgments, declared Ngozi Okolie of the Labour Party (LP) as winner of the election. The Appeal Court faulted the tribunal for voiding Okolie’s election and proceeded to dismiss the petition filed by Elumelu before the trial tribunal on which the voided judgment was given. The panel agreed with the lawyer to the LP,  Mahmud Magaji, SAN, that contrary to the findings of the tribunal, Okolie was duly nominated, sponsored by his party and that he resigned his appointment as a Senior Special Assistant (SSA) to Delta  Government as provided in Section 66(1)(f) of the Constitution. The News Agency of Nigeria (NAN) reports that the Independent National Electoral Commission (INEC) had declared Okolie the winner of the Feb. 25 election. Dissatisfied with the outcome of the poll, Elumelu, a former Minority Leader of the House of Representatives, challenged it 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 under the Constitution.
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The trial tribunal, headed by Justice A. Z. Mussa, had, in its July 24 judgment, 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 judgments by the appellate court were on the two appeals files by the LP and Okolie, marked: CA/AS/EP/HR/DL/05/2023 and CA/AS/EP/HR/DL/06/2023. Delivering the judgment, a three-member panel of the court, led by Justice Mohammed Shuaibu  resolved all the issues identified for determination against Elumelu and the PDP. Justice Shuaibu, in the lead judgment in the appeal by the LP, held that the trial tribunal was without the requisite jurisdiction to have heard and determined the petition, which was based entirely on pre-election matter. He added that issues relating nomination, withdrawal and substitution pre-election matters, over which election tribunal has no jurisdiction, noting 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 were they aspirants in the primary held by the LP.
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“The 1st and 2nd respondents (Elumelu and the PDP), who are not members of the appellant (LP) are meddlesome interlopers.”‘ The judge held that Elumelu and the PDP failed to lead credible evidence to prove their case of lack of due nomination and sponsorship against Okolie. He added that Elumelu and his party  also did no show that they have the locus standi to have filed the petition to challenge the nomination and sponsorship of Okolie when they did not participate in the primary of the LP. The judge, while affirming Okolie’s victory, set aside the trial tribunal’s judgment, dismissed the petition by Elumelu and his party and awarded N100,000 cost against them, and in favour of Okolie. The lead judgment 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. The court, in both judgments frowned at the conduct of the lawyer who represented INEC, E. O. Okoko, for holding conflicting positions at the tribunal and at the Court of Appeal.
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It noted 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. Justice Shuaibu said: “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 condemnation. “Parties and counsel must be consistent in handling their cases both at the trial court and on appeal. In the instant case, the 3rd 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 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 more, appeal is 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 forgoing, the 3rd respondent’s amended brief is hereby discountenanced. I say no more,” Justice Shuaibu declared.(NAN)

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