Akinwe Victor Adesule V. Akinfolarin Mayowa S. & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE IYIZOBA, (J.C.A.) (Delivering the Leading Judgment)

This appeal is against the judgment of the Governorship/Legislative House Election Tribunal Holden at Akure, Ondo State (Coram: Hon. Justice G.M. Nabaruma, Hon. Justice M. A, Oredola, Hon. Justice A.E. Okon, Hon. Justice D.I. Okungbowa, Hon. Justice A.S. Umar) delivered on 21st day of January, 2008 wherein the Petitioner/Appellant’s petition was dismissed.

The brief facts of the case are that on the 14th day of April, 2007, INEC, the 2nd Respondent conducted an election for the House of Assembly, Odigbo Constituency 1 Ondo State. The Appellant herein was the candidate of the Labour Party (LP) in the election. The 1st Respondent was the candidate of the Peoples Democratic Party (PDP). There were two other candidates:

1. Akintayo A. (Action Congress)
2. Akinwehinmi S.O. (Democratic Peoples Alliance)

Odigbo Constituency of Ondo State is made up of six wards namely:- Agbagbu ward 01; Ajue ward 03; Ebijaw ward 06; Odigbo ward 08; Ore 1 ward 10; and Ore 2 ward 11. The parties are on common ground that the election in Ebijaw ward 06 was cancelled by INEC. At the end of the election, the 4th Respondent, the returning officer declared the 1st Respondent the winner. The results declared were as follows:-

1. Akintayo A. (AC) 2250
2. Akinwehinmi S.O. (DPA) 310
3. Akinwe V.A. (LP) 8223
4. Akinfolarin M.S. (PDP) 10726

The Appellant being dissatisfied with the result of the election presented a petition before the Governorship/Legislative Houses Election Tribunal sitting at Akure on the 14th day of May, 2007 claiming the following reliefs:-

1. “That it may be determined and thus determined that the 1st Respondent Akinfolarin Mayowa S. was not duly elected returned by the majority of lawful votes cast at the House of Assembly elections held in Odigbo Constituency 1, Odigbo Local Government Area on Saturday 14th April, 2007.

ii. That it may be determined that the said election and return of the 1st Respondent are voided by acts which clearly violate and breach various provisions of the Electoral Act No. 6 2006 including but not limited to rigging and manipulation of election results, acts of violence, thuggery and coercion of opponent committed at the wards and units aforementioned, as well as unlawful interference in the electoral process by political office holders in Odigbo Local Government.

iii. That it may be determined and thus determined that the results of the House of Assembly Election in Odigbo Constituency 1, for the 2 wards of Ore II ward 11, Odigbo ward 8, Units 001, 003, 011, 012, 013 and 015 in Agbabu ward 01, in Odigbo Local Government as declared and announced variously by 2nd, 3rd and 4th Respondents be nullified.

iv. That it may be determined and thus determined that the purported Election and return of the 1st Respondent, Akinfotarin Mayowa S. As Elected member of the House of Assembly for Odigbo Constituency is void and in his stead, declaring as duly elected and return the Petitioner, Akinwe Victor A. having scored the majority of the Total number of lawful votes cast at the said election as shown in Paragraph 18.

v. An order mandating the 2nd Respondent to issue immediately to the Petitioner his certificate of return.

vi. In the alterative to the above, that the election in the said wards and units be voided and/or set aside and a fresh election ordered.

vii. In further alternative to (v) above, that a fresh election be ordered throughout the wards and units in Odigbo Constituency 1 in accordance with the provisions of the Electoral Act 2006.”

The case of the Appellant at the Tribunal was that there was massive violence, hijacking of ballot boxes, multiple thumb printing of ballot papers and occurrences of other wide spread electoral offences by the 1st respondent, PDP leaders and political office holders who were assisted by armed PDP thugs, renegade soldiers and policemen who acted as agents of the 1st Respondent. Consequently, 1st Respondent was not duly elected by majority of lawful votes cast at the election as there was no election in the entire (a), Ore II ward 11, ( b) Odigbo ward 08, and ( c) Polling stations nos. 001, 003, 011, 012, 013 and 015 Agbabu ward 01. It was also the Appellant’s case that if the scores attributed to the wards and units mentioned above are deducted from the results declared by the 4th Respondent, the scores on the basis of lawful votes cast will be:- Appellant … 5669; 1st Respondent…5404.

The 5th and 6th Respondents filed their joint reply on the 16th day of June, 2007. They denied all the allegations made against the Police and contended that elections were held in all the wards except Ebijaw ward 06 where the election was cancelled by INEC.

The 1st Respondent filed his reply to the petition on the 19th day of July, 2007, also denying all the allegations in the Petition. The 2nd – 4th Respondents did not file any reply as their motion to file out of time was refused and dismissed by the Tribunal.