Action Congress Of Nigeria (Acn) & Anor V. Mr. Adeyemi Harrison & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A.(Delivering the Leading Judgment)

This appeal was dismissed on 19th December, 2011 and reasons for the dismissal were reserved to be given at a later date. I now give my reasons.

This appeal arose from the judgment of the National and State Houses of Assembly Election Tribunal sitting at Abeokuta, Ogun State which was delivered on 9th November, 2011 wherein the joint petition of Appellants was dismissed.

The 2nd Appellant who was sponsored by the 1st Appellant participated in Election for the State House of Assembly for Ogun Waterside constituency, Ogun State held on 26th April, 2011. At the end of the Election the 3rd Respondent declared the 1st Respondent who was sponsored by the 2nd Respondent as the winner of the Election.

Issues were joined by parties. 1st respondent filed a reply to the petition on 21st June, 2011. While 2nd and 3rd respondents did not file any reply.

After conclusion of pre-trial conference, trial commenced. Appellants called two witnesses in proof of their petition. While 1st respondent did not call any witness. After considering the totality of the evidence adduced both oral and documentary and the submissions of counsel the tower Tribunal in a considered judgment dismissed the petition.

Aggrieved with the decision the appellants lodged an Appeal to this court by a Notice and Grounds of Appeal dated and filed on 16th November, 2011. In compliance with the Election Tribunal and Court Practice Directions 2011 parties exchanged briefs of argument. Appellants’ brief dated 1/12/11 was filed on same date. The 1st respondent’s brief was dated and filed 9/12/11. While the 2nd respondents brief of argument dated 6/12/11 was also filed on the same date. At the hearing of the appeal all counsel adopted their respective briefs of argument.

Appellants urged the court to allow the appeal. While respondents urged that the appeal be dismissed. Appellants formulated two issues for determination in this appeal as follows:-

1. Whether having regard to the state of pleadings and evidence before the Tribunal in this case the appellants can be said to have abandoned the issue of cancellation of results in unit 009 of ward 10 and unit 002 of ward 8 of the waterside state constituency, Ogun State.
2. Whether the non-compliance which occurred in Unit 007 of ward 5 as found by the Tribunal was substantial as to render inconclusive the Election in the Waterside State Constituency, as a whole.

The 1st respondent distilled two issues for determination as follows:

1. Whether having regard to the declaratory relief I sought by the appellants in respect of ward 10 unit 009 and ward 8 unit 002, the Tribunal can grant same on admission or merely on the state of pleadings without the Appellants leading evidence.
2. Whether non counting of votes at only the polling Unit 007 ward 5 in compliance with the Electoral Act 2010 occasioned substantial non-compliance and vitiated the electron held on 26th April, 2011, to the Ogun Waterside State constituency House of Assembly in which the 1st respondent scored majority of lawful votes and returned as winner.

The 2nd respondent adopted the two issues formulated by the Appellants.

The 3rd respondent formulated two issues for the determination of the court as follows:-

1. Whether the 3rd respondent who did not call any witness in evidence but who elicited evidence from other witnesses in the case under cross-examination can be said to have accepted the cancellation of election results of Unit 009 of ward 10 and Unit 002 of ward 8 for the reasons stated by the Appellants.
2. Whether the Appellants who did not plead the ground of complaint or who pleaded such ground of complaint in their petition but failed to lead evidence at the tribunal in proof of the same is not deemed to have abandoned that ground of complaint.

I will adopt the issues formulated by the Appellants in determining this appeal. The issues raised by the respondents will also be considered along with of the appellants.

As regards issue No.1 the contention of the Appellants is that the 1st relief claimed by the Appellants before the Tribunal was that the election to the State Assembly Election for Ogun Waterside Constituency held on 26th April, 2011 is inconclusive in that voting did not take place in Unit 009 of ward 10 and Unit 002 of ward 8. Reference was made to page 291 of record where Tribunal found as a fact that it was common ground by the parties that the results in Unit 009 of ward 10 and Unit 002 of ward B were cancelled by INEC. It was also his contention that Appellants tendered exhibits P1, P2 A-K and Exhibit P3 as evidence of cancellation of the results by INEC and to also show the number of registered voters in the two polling Units. Appellants also contended that 3rd respondent did not file a reply to the petition and is deemed to have accepted the fact of cancellation for the reasons stated by the petitioners. It was contended that the Tribunal held that the Appellants abandoned the issue of cancellation of result only because oral evidence was not led on the reasons for the cancellation. Reference was made to s. 26(1), (4) and (5) of the Electoral Act, 2010 which permits the 3rd respondent to postpone an election if it is impossible to conduct the election.

The grouse of the Appellants is that the slim margin of 58 votes by which the 1st respondent led the 2nd petitioner in the election will be affected by non-voting in the two polling Units in which election did not take place and the one Unit in which election was patently flawed. That 3rd respondent was wrong to have returned the respondent as the winner of the election without conducting a rerun election in the cancelled areas. That Appellants are not concerned with reasons for the cancellation but failure of the 3rd respondent to order rerun election before declaring a winner. Appellants further contended that the decision of the tribunal that the issue of cancellation of result is abandoned is misconceived. That a party is not bound to give evidence on all the averments in his pleadings provided he led enough evidence to sustain his claim or defence. Reliance was placed on cases of Cosmas Elukwu vs. Peter Ukachukwu & Anor. 19 NSCRQ 322 at 345, M.S.C. Ezemba vs. S.O. Ibeneme & anor. (2004) 14 NWLR (Pt. 894) 617 at 659 and Chief Akin Omoboriowo & Anor. vs. Chief Michael Adekunle Ajasin 1 SCNLR 108 at 134. The Petition decided to do away with surplus pleadings cannot be said to have abandoned the issue of cancellation of result. Appellants urged the court to hold that they did not abandon the pleadings. That the 1st respondent led the 2nd appellant with slim margin of 58 votes. The total number of registered voters in Unit 009 of ward 10 is 220 votes and Unit 002 of ward B is 436 votes which made it mandatory to order a rerun in the affected areas. Appellants urged the court to resolve this issue in their favour.