Atikase Otito V. Kunle Odidi & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Governorship/Legislative Houses Elections Petitions Tribunal established for Ondo State under the Chairmanship of Ikyegh, J. delivered on 10th June, 2008.

On the 14th April, 2007 elections were held nationwide into the various Governorships and States Legislative Houses seats in Nigeria. For the Ilaje II Constituency of the Ondo State House of Assembly, the Peoples Democratic Party (PDP) nominated and sponsored the Appellant while the Labour Party (LP) nominated and sponsored the 1st Respondent. Two other political parties; Democratic Peoples Alliance (DPA) and Alliance for Democracy (AD) each sponsored its candidate.

At the conclusion of this election, the 2nd Respondent (INEC) declared and returned the Appellant as the duly and validly elected candidate. The 1st Respondent was not satisfied with the declaration of the results of the election and proceeded to challenge same in an election petition dated 14th May, 2007. It is election petition No. EPT/OND/25/07. The Appellant herein was the 1st Respondent to the petition while INEC and its staff were made 2nd to 4th Respondents etc. This petition was made on 2 grounds. They are:-

a) The 1st Respondent was not duly elected by a majority of lawful votes cast at the election; and

b) The purported House of Assembly election of 14th April, 2007 in Ilaje II Constituency was marred by corrupt practices, massive and unprecedented violence and absolute non-compliance with the provisions of the Electoral Act because there was no election and yet returns were made.

Upon these grounds, the Petitioner sought for the following reliefs. They are: –

1) That it may be determined and thus determined that the purported return of the 1st Respondent as elected member for Ilaje constituency II to the Ondo State House of Assembly held on 14th April, 2007 is void and the purported election and/or return be nullified;

2) That it may be determined and thus determined that the entire purported House of Assembly election held on 14th April, 2007 in the Ilaje constituency II be voided or nullified and a fresh election be conducted for the Constituency; and

3) An order directing the 2nd Respondent to immediately conduct a fresh election in Ilaje Constituency.

Issues were duly joined by parties to the petition and after all the preliminary issues such as pre-hearing conference, the matter went to trial. In the course of the trial, the Petitioner (1st Respondent herein) relied on his personal testimony and 3 other witnesses while the 1st Respondent (Appellant herein) adduced evidence through 6 witnesses. From the entire spectrum of the trial, the case of the petitioner hinged on that election did not hold in the entire Ilaje Constituency II on 14th April, 2007. Also, where electoral materials were available, they were allegedly hijacked and taken away by thugs armed hoodlums, soldiers and policemen who were accused and alleged to have been working for the 1st Respondent/Appellant. On his own part the 1st Respondent/Appellant sought to convince and prove to the lower Court that elections indeed took place in all the polling units and wards of the Constituency.

At the conclusion of the trial, respective learned Counsel filed and exchanged written addresses. In its judgment the lower Court upheld the petition, set aside the result of the election and return of the 1st Respondent/Appellant and went further to order INEC to conduct a fresh election within 60 days.

The 1st Respondent/Appellant being dissatisfied with this decision appealed to this Court in a notice of appeal containing 9 grounds, which with leave of this Court was amended to incorporate 8 additional grounds of appeal.

To argue the appeal, parties filed briefs of argument. The relevant brief of the appellant is the one dated 24/03/09 but deemed properly filed and serve on 19th May, 2009, while that of the 1st Respondent is dated 11/3/09. The brief of the 2nd – 4th Respondents is dated 21st May, 2009. The Appellant also filed a reply brief dated 21/4/2009. The 5th, 6th and 7th Respondents did not file any briefs.