Hon. Moshood Adegoke Salvador V. Inec & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

I.M.M. SAULAWA, J.C.A. (Delivering the Leading Judgment)

The instant appeal is a fall-out of the ruling of the National Assembly/Legislative House Election Petition Tribunal, holden at Lagos, which was delivered on September 30, 2011 in petition No. NA/LEGH/EPT/L/5/2011. By the said ruling, the lower Tribunal dismissed the Appellant’s petition on the ground that it was incompetent.

FACTS AND CIRCUMSTANCES LEADING TO THE APPEAL:

On April 29, 2011 the Appellant filed in the Lower Tribunal’s Registry a 16 paragraphed petition claiming, inter alia, to have participated in the April 9, 2011 senatorial election for Lagos West Senatorial Constituency under the platform of the People’s Democratic Party (PDP). That, the 3rd Respondent, who equally participated in the election under the platform of the Action Congress of Nigeria (ACN), was declared and returned by the 1st Respondent as having won the election, with a total of 503,786 votes. The Appellant allegedly scored a total of 234,679 votes. The petition was predicated upon two grounds, viz:

(i) That the 3rd Respondent was not duly elected by majority of lawful votes cast at the election.

(ii) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act.

Whereupon, the reliefs sought by the Appellant in the petition were to the effect –

(i) That the 3rd respondent was not duly elected and that his election was void and the petitioner was elected and ought to have been returned.

(ii) That the petitioner be returned as elected having scored the highest number of valid votes at the election.

On September 8, 2011 when the petition came up for mention, the Appellant’s counsel, Onigbanjo Esq. informed the lower Tribunal that he had three applications pending. The Respondent’s senior counsel, professor Osibajo, SAN equally alluded to the three applications thereof pending.

On September 14, 2011 the 3rd Respondent’s three motions were argued by the respective learned counsel on the ground that they raised the issue of whether, or not, the lower Tribunal had the jurisdiction to entertain the petition. At the conclusion of the hearing of the 3rd Respondent’s applications in question, the lower Tribunal delivered a ruling on September 30, 2011 dismissing the Appellant’s petition, on the grounds, inter alia, that it was incompetent. The lower Tribunal thereby made certain consequential orders to the effect that –

(1) The motion on Notice filed by the 3rd Respondent on 22/8/2011 seeking to strike out the petition on the grounds that it is fundamentally incompetent and for vesting no jurisdiction on this Tribunal succeeds and is hereby granted.

(2) The preliminary objection filed by the 3rd Respondent on 22/8/2011 seeking to dismiss petitioner’s motion on Notice of 17th August, 2011 for constituting an abuse of this Tribunal’s process succeeds and is hereby granted.

(3) The motion on Notice filed by the 3rd Respondent on 22/8/2011 for setting aside the prehearing Notice issued in this petition on 7th July, 2011 for being incompetent succeeds and is hereby granted.