Adegbenga Sefiu Kaka V. Otunba Gbenga Daniel & Ors (2009)

LawGlobal-Hub Lead Judgment Report

VICTOR A. O. OMAGE OFR, J.C.A

This is an appeal against the one page petition of the appellant against the decision of the Ogun State Governorship and Legislative Houses Election Tribunal which sat in Abeokuta Ogun State Coram Justice H. M. Tsammani and four others. The Tribunal delivered its judgment on 20th July, 2007. In the petition the petitioner seeks thus:- “That the election may be determined that the said Otunba Gbenga Daniel was not duly elected and returned and that his election was void and the said Adegbenga Sefiu Kaka was elected and ought to have been returned as the case may be.”

The grounds stated in the petition on which the petitioner seeks the return of himself as the Governor and the claim to voidability of the return as Governor of Ogun State of Governor Gbenga Daniel is founded as follows: – (1) That the election held on 14th April, 2007, in which he Gbenga Daniel, and Ibikunle Amosu Dipo Dina were candidates were marked with intimidation of voters, stuffing of ballot boxes, diversion of election materials and out right fraud in Shagamu Local Government, Ogun Water Side Local Government, Ijebu Ode Local Government. (2) That the 1st respondent was not duly elected by majority of lawful votes cast at the election genuine voters were harassed, intimidated and violently “cashed” away (sic) chased away to give room for thumb printing and ballot papers.

The petition was filed on 14th day of May, 2007. The Petitioner listed documents to be relied upon at the trial of the matter which list is undated. He also subscribed to an unsigned in some cases undated statements on oath as shown in the record of two witnesses. None of the statement alleged to be on oath was subscribed according to the Oaths Act.

Before the filing of the petition the appellant had filed two motions on the same prayer, one motion was made exparte the other on notice. Both motions pray “for an order to inspect all the electoral documents that were used and unused for the election”

The Petitioner/appellant wrote that the motions were not heard because the Tribunal office had not been instituted at the time he filed the motions on 14th May, 2007. On 15th June, 2007 the 1st Respondent delivered his reply to the petition to the petitioner. In the said reply the 1st Respondent had written and submitted that he would at the hearing of the petition submit that the petition as currently constituted is devoid of necessary particulars/information on facts to support allegation of intimidation of voters, stuffing of ballot boxes, diversion of election materials, fraud, thumb printing of ballot box papers alleged in the petition.

Secondly, the 1st respondent said he would submit that the petition as composed fails to declare any reasonably cause of action against the 1st respondent worthy of truth.

(3) That the petitioner does not rest his petition of any cognizable right of action, and would ask that the petition be struck out. After delivering its reply to the petition, the 2nd – 23rd filed also a preliminary objection, to the petition.

On 12th July, 2007 the respondents filed a notice of preliminary objection to the petition, and it states (1) that the election petition is defective and incompetent and that the Tribunal lacks competency and jurisdiction to hear it and ought to strike it out with substantial costs.

The other grounds objected to the petition are in substance the same as described above in the reply of the 1st Respondent to the petition.

Upon receipt of these, the Petitioner filed an application seeking to amend his petition. The Court below after listening to the submissions of all counsel decide it is appropriate and seemly to hear the prayer first which could cure the petition than to hear first the preliminary objection which seeks to dispose of the petition. The Tribunal heard the application of the petition to amend the petition and came to the conclusion on the 20th July, 2007, that it could allow amendment of the petition only on clerical error, but would not allow amendments which add to the petition, to the disadvantage of the Respondents particularly when there is in existence notice of preliminary objection to the petition. The Tribunal allowed in part, the prayer of the petitioner to amend his petition. The 1st respondent proceeded thereafter to raise the content of its preliminary objection, and so did counsel to the 2nd – 23rd respondents. Being dissatisfied with the ruling, the petitioner/applicants appealed against the ruling of the Tribunal in what the petitioner called interlocutory appeal. It is here desirable to state in some details the ruling of the Tribunal. It reads:-

“We have carefully considered the application of the Petitioner and the amendments sought herein, the amendment objected to are contained in paragraphs (i) (iii) and (iv) and are more graphically set out in the proposed amended petition attached to the application, we have also perused the content of the petition filed on 14th May, 2007. It is patently clear that the amendment sought in prayer (i) (ii) of the application is as contained in paragraph 2 (a) and (b) (i) – (xi) of the proposed amended petition annexed to the motion; upon a soberly consideration; we are of the view that the amendment sought if allowed will amount to a substantial addition to the statement of facts relied upon to support the ground to sustain the prayer against the petition. Similarly, the amendment sought in paragraph (iv) which seeks to add paragraph 3 of the proposed amended petition speaks for itself. It seeks to introduce totally new facts not contained in the original petition. We have also noted that although asked sic for his petition has scrumptiously” inserted or intended new facts, which are nowhere contained in the original petition. These amendments sought clearly in our view are not by the provision of paragraph 14(2) (a)(i)(iii) of the 1st Schedule to the Electoral Act, 2006 allowed.”

The second reason for the decision of the Lower Court’s refusal to allow petitioner the amendment sought for is that an election can only avail the petition if he applies to amend before and not after his objection has been raised as to the competence of the petition. In the instant case the Respondent had filed separately preliminary objection challenging the competence of this petition on the same issue the petitioner now seeks to amend or cure. The preliminary objection dated 11th June, 2007 and July 11th 2007 respectively are clearly earlier than the application seeking to amend which is dated 16th July, 2007. It is obvious therefore that the petitioner’s application to amend filed after the competence of the petition has been challenged is over reaching. Accordingly we hold that their (sic) application to amend cannot also be granted on this ground”.

The 1st respondent, the 2nd-23rd respondents in turn moved their notice of preliminary objection to the petition following the ruling of the Court on the partial order for amendment of the petition. The petitioner filed his amended notice of appeal and the amended petition. The Tribunal ruled on the preliminary objection and on the amended in his petition. In conclusion on both processes the Tribunal ruled thus: –