Igbekele Bolodeoku V. Ibunkun Olayemi Kalasuwe & Ors (2009)

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ALI ABUBAKAR BABANDI GUMEL, J.C.A.

Elections were held for seats into the Ondo State House of Assembly on 14th April, 2007. For the Ese-Odo Constituency, Mr Ibukun Olayemi Kalasuwe (1st Respondent herein) was the candidate of the Labour Party (LP) while Mr. Igbekele Bolodeoku (Appellant herein) was the candidate of the Peoples Democratic Party (PDP). At the end of the elections, the INEC (2nd Respondent herein) declared and returned Mr. Igbekele as the person duly elected with majority of lawful votes Mr. Kalasuwe was aggrieved by the return and declaration of the result of the election. He sought to challenge the result of the election in an election petition. Paragraph 12 of this petition sets out the grounds upon which it was brought as follows:-

12(a) The 1st Respondent was not duly elected by a majority of lawful votes cast at the election as no election took place in Ese-Odo Constituency;

(b) The purported election of the 1st Respondent as member to represent Ese-Odo Constituency in Ondo State House of Assembly in the purported election of 14th April, 2007 is invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act.

The various Respondents joined issues with the petitioner denying all the material averments in the petition. After a pre-hearing session the petition went into a full trial during which a number of witnesses on either side gave oral evidence and were cross-examined. Also, a number of documents were tendered and admitted in evidence. The 2nd Respondents’ pleadings were deemed as abandoned because they did not call any evidence. So too, the pleadings of the 5th Respondent. At the conclusion of the oral testimonies, respective learned counsel filed, exchanged and adopted written addresses and thereafter the lower court delivered its judgment on 20th May, 2008.

In its very well considered judgment, the lower court decided and ordered as follows:-

“By the combined effect of oral testimonies and documentary evidence adduced in the considered two issues aforementioned, we deduced that there was no lawful and valid election in Ese-Odo State Constituency on the 14th April, 2007 in accordance with the provisions of the Electoral Act No: 2 of 2006.

Base (sic) on the above, the purported return of the 1st Respondent – Igbekele Bolodeoku as elected member of Ondo State House of Assembly to represent Ese-Odo Constituency in the House of Assembly election held on the 14/4/07 is void and thereby nullified in accordance with the provision of section 147(1) of the Electoral Act 2006.

Consequent upon which the 2nd Respondent – INEC is hereby ordered to conduct a fresh election in the Ese-Odo State Constituency within 60 days from today.” (See page 62 of judgment contained at page 551 of the record of appeal)

The Mr. Bolodeoku was dissatisfied with the decision of the Election Petitions Tribunal (lower court). He appealed the decision on 4 grounds with many copious particulars. In an application dated 1st September, 2008 but filed on 2nd September, 2008, the appellant sought for leave of this court to amend the notice of appeal to enable him to raise a fresh issue not raised at the lower court in the appeal before this court. This application also sought for other kindred and related reliefs to this main relief. The application was considered and granted on 26/02/09. The fresh issue sought to be raised on appeal is contained in one of the additional grounds of appeal. It is as follows:-

“The learned members of the Tribunal erred in law in exercising jurisdiction over the petition of the 1st Respondent, when the said petition was filed outside the statutory period provided for by section 141 of the Electoral Act, 2006.”

Based on the latest grounds of appeal, respective learned counsel filed and exchanged briefs of arguments. The appellant’s brief of argument dated 09-01-2009 was deemed properly filed and served on 26-02-09. The brief of the 1st Respondent dated and filed on 11/3/09 was deemed properly filed and served on 22/04/09. The brief of the 2nd – 4th Respondents was also deemed properly filed and served on 22/04/09. The 5th Respondent filed a preliminary objection and a brief in support of same pursuant to Order 10 Rule 1 of the rules of this court. At the hearing of the appeal on 18th May, 2009, respective learned counsel adopted and relied on their respective briefs.

The first issue formulated and argued by learned counsel to the Appellant, Mr. Adedipe SAN is:-

“Whether the petition which was filed on the 14th of May, 2007, was within time as prescribed by section 141 of the Electoral Act, 2006, to entitle the Tribunal to exercise jurisdiction over its hearing and determination.”