Aiyelabegan Kayode A. & Anor V. Salman Abdulfatai & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the National/State Houses of Assembly Election Petition Tribunal henceforth to be referred to as the Tribunal sitting at Ilorin, which was delivered on the 17th of October, 2012.

The facts of the case that gave rise to this appeal are straight forward and simple and are ably set out in the parties briefs of argument. I will therefore recount the facts albeit briefly in this judgment.

On the 26th of April 2011, State Houses of Assembly elections were held throughout Kwara State. At the end of the elections which was conducted by the 3rd Respondent, the 1st Respondent was declared the winner and returned elected member of the Kwara State House of Assembly representing Ilorin North/West Constituency. The 1st Appellant herein who was sponsored by the 2nd Appellant in that election was aggrieved by the result of the election and therefore presented a petition No.EPT/KWA/SH/8/2011 of 18/5/2011 challenging the result of the election at the Tribunal.

The Tribunal members comprising Justice Bitrus G. Sanga as Chairman and John Awa Viko and Justice Stephen Eroh Chukwu as members heard the petition and in a considered judgment which was delivered, on the 12th day of October 2011 nullified the election in two Wards namely Balogun Alanamu and Oloje Wards and ordered the 3rd Respondent to conduct election in the two Wards and add the result to the results of the remaining five wards whose results were upheld before the announcement of the final result for the constituency.

The Appellants were dissatisfied with the decision of the Tribunal. Their appeal to the Court of Appeal was allowed on the ground that the Tribunal did not properly evaluate the oral and documentary evidence before it. A retrial of the petition was ordered to be conducted by another Tribunal strictly on the pleadings already existing on the record.

As a result of the decision of this Court, another Tribunal with Justice S. O. Itodo as Chairman and Justice Joy Isaiah Unwana and Justice John Igboji as members was set up to hear the petition. Relying on the case of ANPP v. Goni (2012) 7 NWLR (pt.1298) 147 the new Tribunal declined jurisdiction and struck out the petition on the ground that the one hundred and eighty (180) days within which its judgment should be delivered from the date of filing the petition as provided for; by section 285(6) of the 1999 Constitution of the Federal Republic of Nigeria had since expired.

Once again, the Appellants were unhappy with the decision. Being aggrieved, they appealed to this Court. Parties were heard, and in a reserved and well considered judgment, this court set aside its earlier decision in which it ordered a retrial. In its place the judgment of the Tribunal delivered on the 12th, day of October 2011 in which election in Balogun Alanamu and Oloje Wards was nullified was restored. The 3rd Respondent was therefore ordered to conduct election in the two Wards. For avoidance of doubt, this is what this Court said in its judgment of 21/4/12 –

The necessary consequence of this is that the judgment of the Election Tribunal delivered on the 12/11/11, which ordered a bye election in the two wards whereof the elections were inconclusive, revives (sic) and subsists and must be complied with by the 3rd Respondent. Therefore the Ruling of the second Tribunal, striking out the petition on 22nd February, 2012, is hereby set aside; having been reached without jurisdiction. Accordingly, the 3rd Respondent shall comply with the said earlier order of the Election Tribunal, delivered on 12/11/11 in the petition No. EPT/KW/SH/8/2011.”

Consequent upon the order of this Court as reproduced above, the 3rd Respondent conducted elections in the two Wards on the 30th June 2012. At the end of the election, 1st Respondent was again declared winner of the election when the votes from the two wards were added to the votes from five wards where fresh elections were not ordered.

The Appellants filed a petition before the Tribunal on the 20th of July 2012 in which they challenged the result of the election. In doing so, the petition covered allegations of malpractices and noncompliance or irregularities in all the seven Wards that make up the Ilorin North/West constituency.

The Respondents filed a reply to the petition and further issued a notice of preliminary objection to the competence of the petition or in the alternative strike out paragraphs 1 – 23, 33 and 36 of the petition which deal with allegations of malpractices, noncompliance and irregularities in the five Wards where fresh elections did not take place. These Wards are Adewole, Ajikobi, Ogidi, Ojuekun/Zaruni and Ubandawaki., The Appellants filed a counter affidavit.

The Tribunal, chaired by Justice J. J. Jella and Justice J. A. Viko and Justice C. L. Dabub as members heard the preliminary objection on the 16th of October, 2012 and in a reserved, and considered ruling which was delivered on the 17th day of October upheld the objection and struck out grounds 1 – 23, 33 and 36 of the petition as they relate to the holding of Election conducted on 26th April 2011 in the five Wards on the ground that the Tribunal’s mandate is restricted to the two Wards of Balogun Alanamu and Oloje only where fresh election was conducted on the 30th of June 2012.

It is against this ruling that the Appellants have again appealed to this Court. Their notice of appeal which was filed on the 24th of October 2012 contains three grounds of appeal. Parties filed and exchanged briefs of argument The Appellants formulated two issues at page 7 of their joint briefs of argument dated and filed on the 16th November 2012. These issues read as follows:-