Aiyeomo Remi V. Akinrodoye Ebun Sunday & Anor (1999)

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MOHAMMED, J.C.A.

When this appeal came up for hearing on 19-3-1999. it was observed that there were two distinct and separate appeals namely –

(1) The appeal by Aiyeomo Remi whose election and return by INEC as the Chairman of Irele Local Government Area of Ondo State was set aside by the Election Tribunal, and

(2) The appeal by the Independent National Electoral Commission (INEC) and its officials who conducted the Local Government Elections in Ondo State including the election to the office of the Chairman of Irele Local Government Council of Ondo State which is in dispute in this appeal.

As the appeals though arose from the same proceedings of the Ondo State Local Government Election Tribunal sitting at Akure, were being handled by separate counsel representing parties whose interests are not the same and who had filed separate briefs of argument, we decided to hear the two appeals separately by giving the appeal by INEC and its officials a separate number CA/B/78A/99 and was heard as such. This judgment is therefore in respect of the first appeal by Aiyeomo Remi with Akinrodoye Ebun Sunday and Akinyode Olusegun as the respondents.

Election into various Local Government Councils, including Irele Local Government Council of Ondo State were conducted throughout the country on 5-12-1998 under the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 which in this judgment shall simply refer as ‘Decree 36 of 1998’. The appellant and the 1st respondent were candidates for the post of Chairman of Irele Local Government Council of Ondo State. The appellant contested the election under the platform of the Alliance for Democracy (AD) while the 1st respondent contested under the platform of the Peoples Democratic Party (PDP). At the conclusion of the election, the appellant Aiyeomo Remi of the Alliance for Democracy (AD) was returned as the duly elected Chairman or Irele Local Government Council of Ondo State having polled 13,979 votes against 7,686 votes scored by the 1st respondent.

Dissatisfied with this result or the election and the return of the appellant, the 1st respondent filed a petition before the Ondo State Local Government Election Tribunal sitting: at Akure challenging the election and return of the appellant. Although the petition was presented on 18-12-1998 twelve days after the dcc1aration of the results of the election on 6-12-1998, the payment of the balance of the amount required for deposit for security for costs was not done by the 1st respondent/petitioner until 29-12-1998 more than 14 days after the declaration of the results of the election. Although the appellant had raised an objection to the competence of the petition before the Election Tribunal, the objection was heard and dismissed by the Tribunal which proceeded to hear the petition on its merits.

The main ground upon which the election and returned of the appellant were challanged in the petition was that although election was conducted in all the units or Ajagba 1 Ward 7 and Ajagba II Ward 8 in Irele Local Government Area, the results were not collated and added to the final results upon which the appellant was declared and returned as the winner of the election. The 1st respondent therefore urged the Tribunal to declare him the winner of the election by adding the results of the two Wards 7 and 8 of Ajagba I and II to the final scores of the two candidates namely, the appellant and the respondent which would have the effect of making the 1st respondent the candidate with the majority of lawful and valid votes cast at that election being 17,794 votes against the 15,053 votes scored by the appellant. It was the stand of the 1st appellant and INEC on this petition that there was no return of votes from these two Wards 7 and 8 of Ajagba I and II because no election was conducted in the Wards on the date of the election. At the end of the hearing of the petition, the Tribunal in its judgment delivered on 16-2-1999 found in favour of the 1st respondent/petitioner and declared him the winner of that election and returned him accordingly is the duly elected Chairman of Irele Local Government Council of Ondo State. The relevant part of this judgment at pages 138 – 139 of the record reads:-

“We shall therefore add the scores of the 1st petitioner and the 1st respondent from the two Wards in Ajagba to the result already declared in order to determine who between the 1st respondent and the 1st petitioner scored a majority of lawful votes cast in all the wards in Ajagba Irele Local Government. On addition, the scores of the 1st respondent is 14,756 votes, while that of the Ist petitioner is 15,985 votes.

With the 1st petitioner’s 15,985 votes against the 1st respondent’s 14,756 votes, the Tribunal holds that it was the 1st Petitioner and not the 1st respondent that scored a majority of lawful votes cast at the election. We hold that the 1st respondent who was returned as elected was not validly elected having not scored the majority of valid voles cast at the election. The petition therefore succeeds, and accordingly we hereby declare and determine that the petitioner Akinrodoye Ebun Sunday, was at the time of the election duly elected by a majority of all the lawful votes, he having scored the majority of 15,985 votes which is at least 1/4 of the total votes cast in not less than 2/3 of the Wards in Irele Local Government.”

Dissatisfied with this judgment the appellant, who was the 1st respondent before the Tribunal has now appealed to this court upon 9 grounds of appeal contained in his Notice and Grounds of appeal filed on 22-2-1999. Arising form the 9 grounds of appeal the following 4 issues for the determination of the appeal were distilled in the appellant’s brief of argument.

“1. Whether or not the lower Tribunal had/has jurisdiction to entertain the petition considering the fact that it was filed on 29th December 1998 – Ground 1.

2. Having regard to the state of pleadings of the parties and the evidence adduced by the petitioner himself, whether or not the lower Tribunal was not in grave error to have declared the Petitioner/1st respondent herein as the winner of the election with a poll of 15,938 votes as against 14,756 votes credited to the appellant – Grounds 4 and 5.
3. Was the lower Tribunal right in holding that election took place at Ajagba II Ward 8 and Ajagba I Ward 7 – Grounds 2, 3 and 6.
4. Considering the circumstance surrounding the conduct of the election, the evidence led, the declarations made by the 2nd to 7th co-respondcnts/co-appellants and the provisions of Decree No. 36 of 1998, whether the lower Tribunal was not in error to have upturned the return of the appellant as the Chairman of Irele Local Government. Grounds 7, 8 and 9.”

However, although the above issues were duly adopted by the Respondents in their brief of argument filed on 12-3-1999, the 4 issues were differently worded as follows:

a) Whether having regard to the further payments of costs made on the 29th of December 1998 the petition of the Petitioners/Respondents was competent so as to vest jurisdiction in the Tribunal