Aiyedogbon Samuel Duro V. Independence National Electoral Commission & 20 Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT M. O. KEKERE-EKUN, J.C.A (Delivering the Leading Judgment)

This is an appeal against the Ruling of the Governorship and Legislative Houses Election Tribunal, Abeokuta, Ogun state (hereinafter referred to as the lower Tribunal) delivered on 3/11/07 wherein the appellant’s petition was struck out for non-compliance with the provisions of paragraph 4 (r) (b), (c) and (d) of the First Schedule to the Electoral Act.

The appellant herein contested the election heard on 21/4/07 into the Federal House of Representatives in Ado Odo/Ota Federal Constituency of Ogun State on the platform of All Nigeria Peoples Party (ANPP) while the 3rd respondent contested the election on the platform of the peoples Democratic Party (PDP). At the conclusion of the election the 3rd respondent was returned as the winner having scored 78, 707 votes as against 6, 150 votes scored by the appellant. Being dissatisfied with the result, the appellant filed a petition before the lower Tribunal seeking the following relief:

(a) It be determined that the 3rd respondent did not win the April 21st, 2007 Federal House of Representatives Election in Ado Odo/Ota Federal constituency of Ogun state in that the 3rd respondent did not receive the highest number of lawful votes in at least two thirds of the Wards in Ado Odo/Ota Local Government of Ogun State.

(b) It be determined that the petitioner won the majority of lawful votes cast in all the 16 wards in Ado Odo/Ota Local Government Area of Ogun state in the April 21st 2007 Federal House of Representative Election.

ALTERNATIVELY

(c) It be determined that the Federal House of Representatives Election of April 21st, 2007 held in Ado Odo/Ota Federal Constituency of Ogun State is null and void, same having been bedeviled by violence, electoral malpractices, ballot stuffing, over voting, ballot box snatching and general noncompliance.

(d) An order nullifying the Federal House of Representatives Election held in Ado Odo/Ota Federal Constituency of Ogun State on April 21st 2007 including the return made thereto and other (sic) fresh election.

(e) An order that the Petitioner may ask for such further order(s) as the Tribunal may deem fit to make in the circumstances.

The parties duly filed and exchanged pleadings. By a motion on notice dated 9/10/07 and filed on 10/10/07 (pages 147 – 151 of the record), the 3rd respondent challenged the competence of the petition and sought the following reliefs:

1. An order striking out the entire petition for non compliance with the mandatory provisions of the Electoral Act 2006 and for being incompetent, a nullity and thereby robbing the Tribunal of jurisdiction to entertain same.
2. An order striking out paragraphs 2, 8, 9, 12, 13, 14, 15, 16 and 20 of the petition for being inconsistent and ambiguous.
3. And for such further order(s) as this Honourable Tribunal may deem fit to make in the circumstances.

The grounds for the application were:

1. The petitioner did not state the grounds upon which the petition was brought contrary to the express provisions of S. 145 of the Electoral Act 2006 and paragraph 4 (1) (d) of the 1st Schedule made thereto.
2. The Petition did not disclose the holding of the election and the scores of the candidates that took part in the election as provided for under paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act 2006.
3. The Petitioner lacks the locus standi to present this petition as he did not clearly specify his right and capacity to present the petition as provided for under paragraph 4 (1) (b) of the 1st Schedule to the Electoral Act 2006.
4. The petition and all the averments contained therein is vague, speculative, inconsistent and fishy as opposed to the clear provisions of paragraph 4 (2) of the First Schedule to the Electoral Act 2000.
5. This Honourable Court lacks the jurisdiction to entertain this petition by reason of the incompetence of the petition a (sic) non compliance with the mandatory provisions of the Electoral Act 2006 and the 1st Schedule made thereto.

The parties filed and exchanged written addresses. In a considered ruling delivered on 3/11/07 the lower Tribunal struck out the petition for non-compliance with the mandatory provisions of paragraph 4 (1) (b), (c) and (d) of the First Schedule to the Electoral Act 2006.

Being dissatisfied with the ruling the appellant filed a notice of appeal dated 23/11/07 containing six grounds of appeal. In compliance with the Rules of this court, the parties filed and exchanged their respective briefs of argument. The appellant’s brief, settled by A. A. Yesufa Esq. is dated 25/11/08 and filed on 6/2/09. The 1st, 2nd, 4th – 20th Respondents, brief, settled by Deji Balogun Esq. is dated 15/2/10 and filed the same day. It was deemed filed on 19/5/10. The 3rd respondent’s brief, settled by O.O. Ojutalayo Esq. is dated and filed on 16/2/10. It was deemed filed on 19/5/10. The 3rd respondent also filed a notice of preliminary objection dated and filed on 16/2/10. At the hearing of the appeal on 6/10/10 the Appellant and 1st, 2nd, 4th – 20th and 21st respondents, although duly served with hearing notices against that date were absent and unrepresented by counsel. Having filed their respective briefs of argument, the appellant and the 1st, 2nd, 4th – 20th respondents were deemed to have argued the appeal pursuant to Order 17 Rule 9 (4) of the court of Appeal Rules 2007. The 21st respondent did not file any brief.

As the 3rd respondent has filed a preliminary objection, it is necessary to consider it first before delving into the merits of the appeal. The 3rd respondent has argued the preliminary objection at pages 5 and 6 of his brief. The appellant did not file a reply thereto. The preliminary objection challenges the competence of the appeal on the ground that the record of appeal and appellant’s brief of argument were filed outside the period prescribed by the practice Direction No. 2 of 2007 and the Rules of this court. That the record of appeal was transmitted to this court seven months after the ruling complained of while the appellant’s brief was filed almost seven months after being served with the record of appeal without an application for extension of time within which to file it.