Hon. John Obafemi & Anor V. Peoples Democratic Party (PDP) & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A.(Delivering the Leading Judgment)

The appeal is against the decision of the National and state Legislative Houses Election Petition Tribunal, Abeokuta, Ogun State (Lower Tribunal). It is in respect of the nullification of the election of the 1st Appellant of the Peoples Party of Nigeria (PPN), the 2nd Appellant, as member of the House of Assembly for Remo North constituency of Ogun State. The lower Tribunal also ordered the 3rd Respondent to issue certificate of return to the 2nd Respondent of the Peoples Democratic Party (P.D.P.), 1st Respondent, as the duly elected candidate for the constituency.

In substance, the 1st Appellant was the candidate of the 2nd Appellant at the general elections held on 26.4.2011, by the 3rd Respondent. The 2nd Respondent who was the 1st Respondent’s candidate also contested the election. One Hon. Olusola Pelumi Adeboye of the Action Congress of Nigeria (A.C.N.) Political Party was among the contestants. Some other candidates from five other political parties too contested the election. The 3rd Respondent announced the result of the election on 27.4.2011, recording 4,442 votes for the 1st Appellant as winner of the election followed by the 2nd Respondent with 4073 votes; one Hon. Olusola Pelumi Adeboye took the third position.

Upset by the result of the election, the 1st-2nd Respondents filed a joint petition at the lower Tribunal on the grounds of late substitution of the 1st appellant’s candidature by the 2nd Appellant contrary to the relevant provisions of the Electoral Act 2010, as amended, and the failure of 1st Appellant to score majority of lawful votes at the election.

The lower Tribunal heard evidence in the petition. It took final addresses of learned counsel for the respective parties before it decided that the petition was meritorious and granted the 1st-2nd Respondents’ prayers nullifying the election and declaring the 2nd Respondent the duly elected candidate for the constituency on the sole premise that he scored the majority of lawful votes at the election.

The Appellants appealed against the decision of the lower Tribunal in a notice of appeal with ten grounds of appeal from which four issues were drawn for determination on the appeal in the Appellants’ brief of argument settled by their learned senior counsel, Professor Osipitan, as follows:

“(1) Is this Petition competent or incompetent having regard to the mandatory requirement that the Petitioners should plead the results of all the Candidates at Election? GROUND 1.

(2) Was the Tribunal right or wrong when it held that the Appellants did not join issues with the Respondents on allegation of malpractices and non-compliance as set out in paragraph F1(I) – (V) of the Petition? GROUNDS 2 & 3.

(3) Did the Lower Tribunal rightly or wrongly cancel the entire result of Ward 8? GROUNDS 4, 8, 9 & 10.

(4) Did the 1st and 2nd Respondents discharge the burden of proving allegation of manipulation of Election results in favour of the 1st Appellant? GROUNDS 5, 6 & 7.”

Issue 1 ventilated that the 1st-2nd Respondents as Petitioners questioned the election on the issue of the majority of lawful votes in their joint petition putting the scores of all the candidates at the election on the line, and were obligated by paragraph 4(1)(c) of the First Schedule to the Electoral Act 2010, as amended, taken together with the cases of Khalil v. Yar’Adua (2003) 15 NWLR (Pt.847) 446 at 487, Ibrahim v. INEC (1999) 8 NWLR (Pt.514) 334 at 351 to plead the scores of all the eight candidates at the election and, having pleaded the scores of only three candidates, the petition was incompetent and should have been struck out by the lower Tribunal.

The Appellants’ brief cited the cases of Yoye v. Onibode (1974) 1 ALL NLR (Pt.2) 118 at 123, Omega Bank (Nig) Plc. v. O.B.C. Ltd (2005) 8 NWLR (Pt.928) 547, Ishola v. U.B.N. Ltd. (2005) ALL FWLR (Pt.212) 1655 at 1738, George and Others v. Dominion Flour Mills Ltd. (1963) 1 ALL NLR 71, Overseas Construction Company Nig. Ltd. V. Creek Enterprises (Nig) Ltd (1985)3 NWLR (Pt. 407) 40, Hashidu v. Goje 2 EPR 790, Omoboriowo v. Ajasin 3 EPR 488 at 511, Iniama v. Akpabio 2008) 17 NWLR (Pt.1116) 225 at 309 to buttress the point that parties are bound by pleadings and counsel’s submissions cannot be substitute for pleadings, therefore the 1st – 2nd Respondents having pleaded disenfranchisement of 300 voters in paragraph F2(i)-(iii) of the petition, Exhibits P2A and P2B admitted for that purpose was wrongly used for another unpleaded purpose by the lower Tribunal as uncollated votes for Ward 4 of the constituency, which it computed and added to the 2nd Respondent’s scores when the pleadings were not amended to reflect the new case agitated in 1st-2nd Respondents’ final address at the lower Tribunal.

It was also argued that apart from the PW1 who testified for the 1st – 2nd Respondents that he voted at the election, no other witness testified in the petition for the 1st – 2nd Respondents towards proof of the allegation of disenfranchisement of voters contrary to the case of Nnaji v. Agbo (2006) 2 EPR 867 at 891 to the effect that an allegation of disenfranchisement must be proved by the disenfranchised voters giving evidence of the disenfranchisement together with the tendering of their voter’s cards in evidence showing they were not allowed to vote at the election.

It was argued further that the lower Tribunal was wrong to raise suo motu the issue of formal admission of the averment in paragraph F1 (i) – (v) of the petition without affording the appellants the opportunity to react to same before it made adverse findings on it against the appellants in violation of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, (1999 Constitution) and the cases of Onah v. Okenwa (2010) 7 NWLR (Pt.1194) 512 at 537, Udogu v. Egwuatu (1994) 3 NWLR (Pt. 330 120 at 127.