Alhaji (Chief) Ayotunde Seriki V. Sefiu Olukorede Are & Ors (1999)

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ADEREMI, J.C.A.

The amended election petition presented before the lower court by the petitioner/appellant (Alhaji (Chief) Ayotunde Seriki) against the first respondent/cross-appellant (Sefiu Olukorede Are) and the second to the fourth respondents was predicated on two grounds. The petitioner/appellant contested election for the Chairman of Epe Local Government Council, Lagos State on the 5th of December, 1998 on the platform of Alliance for Democracy (A.D.) against the first respondent/cross-appellant who vied for the said election on the ticket of All Peoples Party (A.P.P.). The conduct of the said local government elections was under the control, direction and supervision of the fourth respondent whose agents officers and/or servants, for the purpose of the said election were the second and third respondents.

The grounds on which the amended petition was founded are two; they are in the following terms less the particulars:-

1. The first respondent, Sefiu Olukorede Are, was not duly elected by a majority of lawful votes cast at the election.
2. The election was voided by corrupt practices, irregularities or offences against the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998.

The reliefs sought by the petitioner/appellant are as follows:-

(a) that the 1st respondent Sefiu Olukorede Are was not validly elected or returned as Chairman, Epe Local Government by majority of lawful votes cast and the Local Government Council Election for the Epe Local Government on 5th December, 1998

(b) that the petitioner herein Alhaji (Chief) Ayotunde Seriki was/is elected and ought to have been returned.

(e) That the petitioner herein Alhaji Chief Ayotunde Seriki is/was the winner of the Epe Local Government Chairmanship Election held on 5th December, 1998 having polled the majority of lawful votes cast at the said election.

(d) such further or other Orders as the honourable tribunal may deem fit to make in the circumstances.

Having filed and exchanged necessary processes, the petition proceeded to trial with both sides calling evidence at the end of which their different counsel addressed the lower court. In its considered judgment dated 5th of February 1999, after making a number or findings, the lower court concluded as follows:-

“We now resort to the provision of Section 85(1) and 87(1) of the Decree and conclude that the election was not conducted substantially in accordance with the principle of the Decree.

The election was so replete with bits and pieces of irregularities on both sides that the fairest order would be to declare the election void under paragraph 28 of the 5th Schedule. The election is hereby declared void.”

Dissatisfied with the said judgment, the petitioner/appellant filed on the 10th of February 1999, a notice or appeal dated 9th February, 1999 which contains four original grounds of appeal and they are as follows:

1. The Local Government Election Tribunal erred in law in failing to grant the prayers of the petitioner as contained in paragraph 53 A-C of the amended petition having found that the petitioner proved over-voting and anomalies in units 002 and 007 (Ward R1 Code 084) and units 018 and 031 (Ward C1 code 072) which showed that the petitioner won the election by majority of valid votes of 18,250 as against that of the 1st respondent’s 18,096 votes.
2. The Local Government Election Tribunal erred in law in declaring the election void when the petitioner proved that he scored the majority of valid votes cast at the election.
3. The Local Government Election Tribunal erred in law in voiding the election on the ground among others that the 1st respondent through DW4 Mr. Agbabiaka also proved over-voting and irregularities in some units in some wards in Epe Local Government in the said chairmanship election.
4. The judgment of the Local Government Election Tribunal is against the weight of evidence. The substratum of the complaint of the petitioner/appellant against the judgment is that the lower tribunal, ought to, on the face of the evidence before it, declare the petitioner the winner with majority of lawful votes instead of voiding the election as it did.

In a similar vein, the first respondent/cross-appellant who was equally dissatisfied, filed a process which he captioned “Notice of Appeal” but which for the purpose of clarity or avoiding confusion, I shall re-name “Notice of Cross-Appeal: it is dated 11th February, 1999 and filed on the same date. The cross/appeal is predicated on eight original grounds which less the particulars are set out hereunder:

1. The Local Government Elections Tribunal (hereinafter called “the Election Tribunal”) misdirected itself in law in failing to direct itself that it should answer, in the judgment the objections raised by the 1st respondent to the competence/defects of the two grounds or the petition before proceeding to treat the petition on the merits.

The Election Tribunal erred in law in not holding that ground 2 of the election petition was incompetent and should be struck-out.