Dr. John Olukayode Fayemi & Anor V. Olusegun Adebayo Oni & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISA AYO SALAMI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the majority judgment of the Ekiti State Governorship and Legislative Houses Election Tribunal delivered by Hon. Justices Hamman Barka (Chairman), S. U. Dikko and M. B. Goji delivered on 5th May, 2010. In the judgment contained at pages 4631-5063 of the record of appeal, the learned majority judges dismissed the petition of the Appellants herein.

Dissatisfied with that judgment of the lower Tribunal, the appellants have appealed on 24 grounds of appeal in the Notice of appeal spanning pages 5948 to 5972 of the record, and contained in Volume VII.

The complaint from which this appeal arose emanates from the supplementary elections conducted by the 3rd and 4th respondents on 25th April, 2009 and 5th May, 2009. The said supplementary elections are in respect of office of Governor of Ekiti State. For a clear understanding, it is important to give a succinct summary of the facts leading to the above supplementary election.

It is common knowledge that gubernatorial elections were held throughout Nigeria on 14th April, 2007, Ekiti State inclusive. At the end of this election, the candidate of the Peoples Democratic Party (PDP), Olusegun Adebayo Oni was declared and returned as the winner of the election by the 3rd and 4th respondents. Consequent upon this declaration and return, the 1st petitioner who is to be called the 1st appellant herein, challenged the election of Olusegun Adebayo Oni as the Governor of Ekiti State before the then National Assembly, Governorship and Legislative Houses Election Petition Tribunal sitting in Ado-Ekiti on diverse grounds. The Election Tribunal in its considered judgment of 28th August, 2008 dismissed the petition. Dissatisfied with the judgment of the Election Tribunal, the 1st Appellant appealed against the judgment to the Court of Appeal.

The Court of Appeal sitting in Ilorin in its penultimate judgment delivered on 17th February, 2009 allowed the appeal in part and ordered that a supplementary election be conducted in named sixty-three wards spreading across ten (10) Local Government Areas of Ekiti State. It added that the results of the election in the six (6) uncontested Local Governments (including Ilejemeje) would remain as declared by the Independent National Electoral Commission (INEC) and shall be added to the result of the ordered supplementary elections when conducted.

In compliance with the order of the Court of Appeal, the Independent National Electoral Commission (3rd Respondent herein) on 25th April, 2009 and 5th May, 2009 conducted supplementary elections in the 63 wards spreading across ten (10) Local Government Areas as contained in the judgment of the Court of Appeal. Both the 1st appellant (Dr. John Olukayode Fayemi) and the 1st Respondent (Olusegun Adebayo Oni) contested this supplementary elections.

While the 1st appellant on the one hand contested under the platform of Action Congress which is the second petitioner also to be known as the 2nd appellant herein, the said 1st respondent on the other hand contested under the platform of the Peoples Democratic Party (PDP). Eleven (11) other political parties participated and sponsored candidates at the said election. At the end of the supplementary elections, the 3rd and 4th respondents after adding the votes obtained by the respective political parties in the supplementary elections as well as that obtained in the six (6) Local Governments not affected by the supplementary elections, declared and returned the 1st respondent as the winner having said to have polled the highest votes of 111,140. The 1st appellant came 2nd with total votes of 107,017.

Being aggrieved by the declaration and return of the 1st respondent as the Governor of Ekiti State, the appellants through their counsel, Mallam Yusuf O. Ali SAN filed a petition on the 2nd June, 2009. The grounds and facts upon which the petition was anchored are as adumbrated in paragraph 42 at page 49 Vol.1 of the record wherein the petitioner alleged that:

“That 1st respondent is not duly elected by the majority of lawful votes cast at the election.

The election and return of the 1st respondent is invalid by reason of corrupt practices and/or non compliance with the provisions of the Electoral Act 2006.”

Particulars were given predicating and supporting the grounds of the petition wherein the following reliefs were sought in paragraph 133 at pages 85 and 86 of the record of appeal.

WHEREOF the petitioner prays:-

“(i) That it may be determined and doth declared that the 1st respondent Olusegun Adebayo Oni who was the candidate of the 2nd respondent was not duly elected or returned by the majority of lawful votes cast at the Ekiti State supplementary elections held on 25th April, 2009 and 5th May,