Adebutu Oladipupo Olatunde & Ors v. Independent National Electoral Commission (INEC) & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED BABA IDRIS, JCA (Delivering the leading judgment)

This is an appeal against the ruling of the Governorship Election Petition Tribunal delivered on the 22nd day of June, 2023 in petition No: EPT/OG/GOV/03/2023 dismissing the appellants application.

The appellants as the petitioners before the Governorship Election Petition Tribunal, holden at Abeokuta, Ogun State, challenged the declaration and return of the 2nd respondent, who was the candidate of the 3rd respondent as the winner of the election conducted by the 1st respondent and held on the 18th day of March, 2023 for the office of Governor of Ogun State, Nigeria.

The appellants filed their petition at the tribunal on the 6th day of April, 2023 same was served on all the respondents. The respondents thereafter filed their respective replies to the petition while the appellants in turn filed their response to the respondents replies.

The 2nd respondent in response to the petition made criminal allegations of financial inducement of voters (vote buying) against the appellants.

The appellants subsequently made an application dated the 6th day of June, 2023 and filed on the 8th day of June, 2023 seeking for the following reliefs:

1. An order of this honourable tribunal striking out paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 28 and 30 of the 2nd respondents reply to the petition filed on the 15th day of May, 2023.
2. An order of this honourable tribunal striking out issue 4 formulated by the 2nd respondent in his issues for determination arising from paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 28 and 30 of the 2nd respondents reply to the petition filed on the 15th day of May, 2013.

The grounds upon which the said motion was brought are as follows:

1. That during the conduct of the gubernatorial election in Ogun State on 18th March, 2023, elections were cancelled in 90 polling units which cut across 41 wards and 16 Local Government Areas of Ogun State due to violent disruptions of the election process and over voting.
2. That the petitioners in their petition had challenged the declaration and return of the 2nd respondent as the winner of the Ogun State Governorship election inter alia for being in gross violation of the provisions of sections 24(2 & 3); 47(3); 51(20 and 62) of the Electoral Act, 2022 given the margin of lead between the 2nd respondent and the 1st respondent petitioner and the total number of permanent voters card (PVC) collected, is undue and wrongful.
3. That the 2nd respondent cannot object to votes in the 99 polling units listed in the petition where election did not hold and where results were never declared by the 1st respondent as was erroneously done by the 2nd respondent in paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 28 and 30 of his reply to the petition filed on the 15th day of May, 2023.
4. That the respondent in purporting to reply to the petition raised the allegations of vote buying against the petitioners in paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 28 and 30 of his reply to the petition.
5. That the allegation of vote buying was not contained anywhere in the petition for the facts in support of the petition.
6. That vote buying is specie of corrupt practices which is a distinct ground for challenging an election or vote scored in an election.
7. That the allegation of vote buying against the petitioners can be raised as a ground in a cross petition.
8. That the 2nd respondent failed to file a cross petition in this matter within 21 days of the declaration of the result.
9. That the allegation of vote buying by the 2nd respondent is statute barred and cannot be countenanced by the tribunal by having not been brought before the tribunal by a cross petition within 21 days of the declaration of the result of the election.
10. That the issues for determination in an election petition must arise from the grounds of the petition and facts pleaded in support of such grounds and not based on allegations raised in a respondents reply.

The application was supported by a 6 (six) paragraph affidavit as well as a written address. The 2nd respondent filed its counter affidavit attached to which was a written address in opposition to the application and the appellants also filed a further and better affidavit of 6 (six) paragraphs and a reply on points of law.

The parties thereafter argued their respective processes and the Tribunal, per Honourable Justice H. N. Kunaza (Chairman), Honourable Justice J. B. Egele (Member 1) and Honourable Justice Sanusi Shehu (Member II) after hearing the arguments of the parties on the application, gave its ruling on the 22nd day of June, 2023 dismissing the appellants application.

Dissatisfied with the said ruling of the lower court, the appellants filed a notice of appeal on the 3rd day of July, 2023 raising 7 (seven) grounds of appeal. The parties thereafter filed their respective briefs of argument.

In the appellants brief of argument filed on the 12th day of July, 2023 and settled by their counsel, Olumuyiwa Obanewa, Esq., these 2 (two) issues were distilled for determination as follows:

1. Whether the tribunal was right in dismissing the appellants application seeking to strike out paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 28 and 30 of the 2nd respondents reply of the petition filed on 15th May, 2023. (Distilled from grounds 1, 2, 3, 4, 6 and 7 of the notice of appeal)
2. Whether the tribunal was right in refusing to strike out issue 4 of the 2nd respondents issues for determination relating to vote buying which was never pleaded in the petition. (Distilled from ground 5 of the notice of appeal)

On issue one, the learned counsel for the appellants submitted that the tribunal was wrong in dismissing the appellants application seeking to strike out paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 28 and 30 of the 2nd respondents reply to the petition filed on the 15th May, 2023 as the ruling was based on a faulty premise that the said paragraphs were in response to the allegation of corrupt practices pleaded in ground 19(a) of the petition and that the particulars of corrupt practices was stated in paragraphs 79 and 82 of the petition and that the 2nd respondent had an obligation to respond to same.

The learned counsel for the appellants argued further that the said paragraphs were neither in response to facts pleaded in support of ground 19(a) of the petition, nor in response to paragraphs 79 to 82 of the petition and that the appellants did not raise any issue of vote buying to trigger the response of allegations of vote buying by the 2nd respondent against the appellants in the paragraphs sought to be struck out.

It was also submitted that paragraphs 6 and 8 of the 2nd respondents reply to the petition in its opening sentences gave the false impression that they were in response to paragraphs 2, 3 and 6 of the petition while on the contrary, they actually raised fresh issues that were extraneous to the petition. It was further argued that if not for the misconception of the tribunal, it would have granted the appellants application as prayed. On this point, counsel cited the cases of Akoma & Anor. v. Osenwokwu & Ors. (2014) LPELR 22885 (SC) (Pages 45 – 46, paragraph F) and Oke & Anor. v. Mimiko & Ors (2013) LPELR 21368 (SC) (Pages 37 – 39, paragraph E).