Adebutu Oladipupo Olatunde & Ors v. Independent National Electoral Commission (INEC) & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED BABA IDRIS, JCA (Delivering the leading judgment)

This is an appeal against the decision of the Governorship Election Petition Tribunal, holden at Abeokuta, Ogun State delivered on the 19th day of June, 2023 in petition No: EPT/OG/GOV/03/2023 granting the 2nd respondents application.

The appellants who were the petitioners before the Governorship Election Petition Tribunal, holden at Abeokuta, Ogun State (hereinafter referred to as the tribunal) challenged the declaration and return of the 2nd respondent, who was the candidate of the 3rd respondent, as the winner of the election conducted by the 1st respondent and held on the 18th day of March, 2023 for the office of Governor of Ogun State, Nigeria.

The appellants filed their petition at the tribunal on the 6th day of April, 2023 and served same on all the respondents. The respondents filed their respective replies to the petition and the appellants in turn filed their response to the respondents’ replies.

The 2nd respondent upon being served with the appellants reply to the petition filed an application on the 4th day of June, 2023 seeking the following relief:

An order striking out the pleadings comprised in paragraphs 2, 4, 5, 6, 7, 10, 11, 14, 15, 16, 18, 21, 22, 23, 24, 31, 32, 33, 36, 37, 39, 40, 41, 42, 43, 44, 48, 51, 52, 53, 54 and 55 of the petitioners reply dated 22nd May 2023 and witness statement on oath/affidavit depositions in support of the pleadings.

The tribunal, per Honourable Justice H. N. Kunaza (Chairman), Honourable Justice J. B. Egele (Member 1) and Honourable Justice Sanusi Shehu (Member II), after hearing the arguments of the parties on the application gave its ruling on the 19th day of June, 2023 in petition No: EPT/OG/GOV/03/2023 granting the 2nd respondents application.

Dissatisfied with the ruling of the tribunal, the appellants appealed to this court vide their notice of appeal filed on the 29th day of June, 2023 raising 8 (eight) grounds of appeal. The parties thereafter filed their respective briefs of argument.

In the appellants brief of argument filed on the 12th day of July, 2023 and settled by their counsel, Olumuyiwa Obanewa, Esq., these 2 (two) issues were distilled for determination as follows:

(1) Whether the tribunal was right in granting the 2nd respondents application and striking out the appellants reply to the 2nd respondents reply to the petition? (Distilled from grounds 1, 2, 3, 4, 6, and 7 of the notice of appeal)

(2) Whether the tribunal breached the provisions of section 136(4) of the Electoral Act, 2022 in delivering its ruling on the 2nd respondents application before the final judgment on the petition. (Distilled from ground 8 of the notice of appeal)

On the first issue, the learned counsel for the appellants submitted that the tribunal failed to properly appreciate and appraise the appellants reply which it struck out and that the tribunal was wrong when it held that paragraphs 2, 4, 5, 6, 7, 10, 11, 14, 15, 16, 18, 21, 22, 23, 24, 31, 32, 33, 36, 37, 39, 40, 41, 42, 43, and 44 of the appellants reply to the 2nd respondents reply to the petition was an expansion of the scope of the appellants petition and an addition to the contents of the petition.

It was submitted that the 2nd respondent in paragraph 6, 7, 8, 9, 10, and 11 of his reply to the petition, made allegations against the appellants of financially inducing voters to vote for them by allegedly distributing customized pre-paid verve ATM Cards and that the appellants defended these allegations in paragraphs 3, 4, 5, 6, 7, 8, 9, and 10 of their reply to the 2nd respondents reply to the petition. It was further argued that the 2nd respondent continued the allegation of vote buying at paragraph 30 of his reply, necessitating the appellants to respond to it in paragraph 14 of their reply to the 2nd respondents reply to the petition and denied the allegations of vote buying levied against them by the 2nd respondent in his reply to the petition.

The learned counsel for the appellants submitted that the 2nd respondent further raised the new issue that the reasons why elections did not hold in the 99 polling units challenged under the principle of margin lead was of willful obstruction of the election process and resistance by the electorate to the deployment of election materials including the BVAS machines. It was further argued that contrary to the findings of the tribunal, paragraphs 2, 4, 5, 6, 7, 10, 11, 14, 15, 16, 18, 21, 22, 23, 24, 31, 32, 33, 36, 37, 39, 40, 41, 42, 43, and 44 of the appellants reply did not raise any new facts but were in direct and specific response to the new and fresh issues raised by the 2nd respondent in paragraphs 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 40, 41, 42, 46, 57, 58, 59, 60, 61, 62, 63, 64, 65, 70 (i) (iv) and 74 of his reply to the petition.