Action Congress Of Nigeria & Anor V. Independent National Electoral Commission & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, JCA (Delivering the Leading Judgment)

This is an appeal against the judgment of the National and State Legislative Houses Election Tribunal sitting in Abeokuta, Ogun State delivered on the 11th of October 2011 in Petition No.EPT/OG/FH/06/2011.

Briefly, the Appellant and the 2nd Respondent contested for the House of Representatives seat of Egbado North/Imeko Afon Federal constituency in Ogun State during the 9th April 2011 general election. The election was conducted by the 1st Respondent which declared the 2nd Respondent the winner of the election. Appellant disputed the result of the election and the eligibility of the 2nd Respondent to contest the election.

The petition was based on three grounds. They are stated hereunder:

(i) That the 1nd Respondent was not qualified to contest the election on the ground that he was not sponsored by any political party. His substitution form was submitted to the office of the 1st Respondent after the date fixed for the submission of the forms and was consequently smuggled into 1st Respondent’s office. The 2nd Respondent was nominated by two political parties for the same seat.

(ii) The election was marred by election malpractices in 25 polling units because under aged persons and foreigners were allowed to vote in favour of the 2nd Respondent. There were allegations of bribery of voters, campaign during election and disenfranchisement of Appellants supporters from voting.

(iii) The 2nd Respondent was not duly elected by majority of the lawful votes cast at the election.

Parties joined issues. During trial, the Appellant called two witnesses. The 2nd Respondent called one witness. In its judgment, the Tribunal in a unanimous decision held that the 2nd Respondent was duly elected by majority of lawful votes cast during the election and dismissed the petition.

Dissatisfied with the decision, Appellants appeared to this court.

Appellants distilled a sole issue for determination from the four grounds of appeal in their brief of argument dated 10th November, 2011 but filed on 11/11/11 the reply brief was filed on 23/11/11. The sole issue states:

Whether, on the facts and circumstances presented before the lower Tribunal in the petition, the lower Tribunal was right in its application of the law thereto, to arrive at its decision to the effect that the 2nd Respondent was validly nominated by the 3rd Respondent and that the 2nd Respondent was therefore qualified to contest the election which was the subject matter of the petition pending before it.

The 2nd and 3rd Respondents brief of argument is dated and filed 21st November, 2011. 2nd and 3rd Respondents state that the only issue for determination in the appeal is:

Whether the lower Tribunal rightly or wrongly dismissed the petition on the ground that the Appellants failed to discharge the burden of proving their allegation that the 2nd Respondent was not qualified to contest the election.

1st Respondent however did not file any brief. Be that as it may, the issues formulated by the Appellants and the 2nd and 3rd Respondents are the same but couched differently. However the appeal will be determined on the issue formulated by the 2nd and 3rd Respondents. The issue is: