Chief Great Ovedje Ogboru & Anor V. Dr. Emmanuel Ewetan Uduaghan & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C.

This is an appeal against the decision of the Court of Appeal, Benin, court below delivered on 5th January, 2012, wherein the court below dismissed the appeal of the Appellants. The reason for the judgment of the court below is in the supplementary record before this court.

The Appellants filed two Notices of Appeals, one dated 6th of January, 2012 and the other one dated 18th January, 2012. Both Notices of Appeals were argued by the Appellants in their briefs of argument.

The appellants’ main reason for the appeal was because the court below delivered its judgment on 5th January, 2012 and reserved its reason to a later date, which was subsequently delivered on the 27th day of January, 2012.

The background facts of the appeal as contained in the printed record of appeal are that the 1st appellant was the candidate of the 2nd appellant in the 26th April, 2011 Gubernatorial Election in Delta State. He lost the election in which the 1st respondent who contested the same election into the same office under the 2nd respondent, was declared by the 3rd respondent as the person who scored the majority of lawful votes, declared as validly elected and returned as Governor of Delta State.

The Appellants were dissatisfied with the decision especially the return of the 1st respondent as Governor. On 18th May, 2011, they filed a petition in the Registry of the Governorship Election Tribunal, holden at Asaba, Delta State [the tribunal] in which they prayed that the 1st respondent allegedly having not scored the majority of lawful votes in the Governorship Election of 26th April, 2011, in Delta State, was not validly elected and ought not to have been declared and returned as Governor.

The Appellants pleaded only a ground of the petition, which is section 138(1)(c) that is “that the Respondent was not duly elected by majority of lawful votes cast at the election”. However, in the pleading, the Appellants pleaded series of criminal allegations and a few paragraphs on alleged non-compliance with the provision of the Electoral Act and the manual of the election.

The main reliefs of the appellants were for a declaration that the 1st appellant ought to have been returned and should be returned as duly elected Governor of Delta State, having polled the highest number of votes cast at the election and not less than one quarter of all the votes in each of at least two thirds of all the Local Government Area in Delta State, where election were duly conducted. The implication of this is that the 1st appellant did not score one quarter of all votes cast in each of at least two thirds of all the Local Government Areas in Delta state as required by section 179 of the Constitution, on the face of the pleadings, the petition ought not to succeed by the appellants.

The Respondents took objections on the lack of cause of action and the lack of jurisdiction by the Tribunal to entertain the petition.

Issues were joined in the respective pleadings of all the parties. The respondents who denied the allegations of the appellants and maintained that elections into the Governor’s seat of Delta State, were validly held in all the areas against which the appellants directed their petition.

All the parties have called their witnesses either in proof of the averments in the petition or in rebuttal of same. Documents were also variously tendered and admitted in evidence as Exhibits.

After parties have closed their respective cases, written addresses were filed, exchanged and adopted on 2nd of November, 2011.

In its judgment, the Tribunal found that the appellants were unable to prove criminal allegations, even by their own admission as required by law. However, relying on the doctrine of severance of pleadings, the Tribunal found that the appellants proved lack of due process in some units in Delta State and nullified those units, but still held after deductions of nullified votes, that the 1st respondent scored majority of lawful votes.

The appellants appealed to the court below against the judgment, while the three respondents also filed Notices of Cross-Appeals. Briefs of argument were filed by all the parties after consideration of which the court below gave its judgment, dismissing the appeal and allowing the cross-Appeals. On 27th January, 2012, the court below gave its reason for the judgment.