Adetunji Akande V. I.N.E.C & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Governorship and Legislative Houses Election Tribunal, Ibadan, Oyo State (herein after referred to as the tribunal) delivered on 17th June 2010, striking out the Appellant’s petition for want of jurisdiction.

The Election challenged was a bye-election conducted for the Federal House of Representatives for Ibadan South West/Ibadan North West Federal Constituency by the 1st Respondent. At the conclusion of the election the 1st, 2nd, 4th and 5th Respondents declared the 3rd respondent who was the candidate of the People Democratic Party (PDP) as the winner. The Appellant was dissatisfied with the outcome of the election and filed a petition dated 14th November, 2009 before the tribunal seeking to be returned as the winner of the election or alternatively seeking the nullification of the said election for substantial non-compliance with provisions of the Electoral Act.

After due consideration of the various applications and the responses to them, the Tribunal at page 237 of the records concluded as follows:

“From all what has been said herein before we find and hold that the petition filed on 14/12/2009 was filed 31 days from the date of declaration of the result of the bye-election held 14/11/2009. The result is that there was no compliance with the provisions of Section 141 of the Act, thereby rendering the petition incompetent and liable to be struck out. Accordingly, Petition No. OY/NA/EPT/HR/01/2010 is hereby struck out for want of jurisdiction”.

The Appellant was dissatisfied with the decision and filed a notice of appeal dated 17th June, 2010 containing two grounds of appeal.

In the Appellant brief of argument 23/12/10 filed same date, but deemed filed on the 28/2/11, the sole issue formulated for determination is as follows:-

“Whether when an Election Petition Tribunal was not set up prior to the conduct of an election as required under Section 140 (3) of the Electoral Act 2006, The Election Tribunal can ignore the rules of the court in which the petition was presented and decided authorities applicable to such rules in the computation of time within which the petition must be filed”.

The 1st, 2nd, 4th and 5th Respondents in their joint brief of argument dated 24/1/11 and filed on the 25/1/11 also formulated a sole issue for determination as follows: –

“Whether the petitioner/Appellant filed his petition outside the 30 (thirty) days period prescribed by section 141 of the Electoral Act, 2006.”

The 3rd Respondent in his brief of argument dated and filed the 25/1/11 also formulated a sole issue for determination viz-

“Whether or not in the circumstances of this case, the Tribunal was right in striking out the petition of the Appellant”.

By a motion on Notice dated and filed the 7/3/11 the appellant had sought for an order of this court that this appeal be heard on only the briefs of Appellant, 1st, 2nd, 4th and 5th Respondents, and the 3rd Respondent. The 6th and 7th Respondents having failed to file their respective Briefs in the Appeal. The said motion was moved, and granted by this court on the 31/3/11.

In arguing the appeal based on the sole issue formulated for determination, learned counsel to the Appellant/petitioner listed out the argument of the Appellant at the Tribunal and then highlighted the reason by the Tribunal in its judgment, and submitted that the Tribunal failed to appreciate and properly considered the argument of the Appellant before it.