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

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

On 22nd February, 2012, the National and State House of Assembly Election, Petition Tribunal, Kwara State, presided over by Hon. Justice S.O. Itodo (Chairman), Hon. Justice Joy Isaiah Unwana (member) and Hon. Justice John Igboji (member), in its ruling, struck out the petition filed by the Appellants, which had earlier been sent back to the lower Tribunal by this court on 6/1/2012 for retrial on the merits de novo.

The Tribunal which was constituted as a second panel to hear the petition, in their ruling, held that the petition by the Appellants was no longer maintainable on the ground that the Supreme Court’s decision in the consolidated case of SC.1/2012 and SC.2/2012 – ANPP vs Goni (unreported) delivered on the 17th February, 2012 had robbed the Tribunal of its jurisdiction to re-hear the petition on merit as earlier ordered by the court.

This appeal is against that ruling of the said second lower tribunal.

Appellants filed their Notice and Grounds of Appeal on 12/3/12 and raised seven grounds of appeal on pages 140 to 147 of the Record of Appeal.

For reliefs, Appellants sought from this court:

i. An order allowing the appeal setting aside the ruling of the tribunal.

ii. A declaration that the retrial order made by the Court of Appeal on 5/1/2012 (sic) is subsisting and the new panel of the tribunal which started its retrial proceedings on 31/1/2012 ought to continue the retrial.

iii. An order remitting the petition back to the tribunal to continue retrial of the petition by another panel.

iv. A consequential order deemed necessary in the circumstances of this appeal.

A brief facts of the case that brought about this appeal is pathetic. The Appellants had contested the April 2011 General Elections conducted on 26/4/2011 into the Kwara State House of Assembly to represent Ilorin North/West constituency. The 1st Appellant was sponsored by the 2nd Appellant, at the election, which the 1st Respondent, (sponsored by the 2nd Respondent), was declared the winner by the 3rd Respondent (INEC) who conducted the election. Appellants had filed the petition on 18/5/2011 against the declaration of the 1st Respondent as winner. The trial of the petition commenced on 9/9/2011 after the pre-hearing formalities and the Appellants called 7 witnesses and tendered several documents.

The respondents also called witnesses and tendered documents, and on the 12/11/2011, the Tribunal delivered its judgment wherein it found that the Appellants made out a case of non-compliance with the Electoral Act and consequently nullified election result only in Balogun Alanamu Ward and Oloje Ward on the ground that the election was inclusive. It ordered a fresh elections in the those 2 wards within 90 days. It further stated “that it is only after the collation of the results from the two wards that whoever wins a majority of valid votes cast in the said election from all the seven wards will be announced and be declared winner in the said Ilorin North/West constituency”

Dissatisfied with the judgment, Appellants filed a notice of appeal on 29/11/2011 which was heard and determined on 6/1/2012, remitting the petition back to the Tribunal for retrial de novo by another panel. The 2nd panel did not hear the petition to conclusion on the merit as ordered, but struck it out on the grounds that it was no longer maintainable, in view of some latest decision of the Supreme Court on the issue of the life-span of an election petition from the date of filing; that the 180 days allowed by the constitution cannot be extended or expanded by an order of court for retrial.