Levis Osaretin Aigbogun & Anor V. Sunday Eghe- Osazemwinde & Ors. (2009)

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NWOSU-IHEME (Ph.D), J.C.A.

The Appellants filed this appeal against the Judgment of the Governorship, and Legislative Houses Election Tribunal sitting in Benin Edo State delivered on the 7th of April 2008. The Appellant in appeal NO.CA/B/EPT/180/08 Levis Osaretin Aigbogun was the 1st Respondent at the tribunal below. He was the Candidate of the Peoples Democratic Party (PDP) for Ovia North East (i) Constituency in Edo State on the 14/4/07.

The 1st Respondent in the same appeal NO.CA/B/EPT/180/08 Sunday Eghe – Osazemwinde was the Candidate of the 2nd Respondent, the Action Congress (A.C.). The 3rd – 5th Respondents in the appeal were the Independent National Electoral Commission (INEC), and its officials that conducted the said election.

At the conclusion of the elections, the Appellant was declared Victorious and returned as elected. Aggrieved with the declaration and return, the 1st & 2nd Respondents, as Petitioners in the lower tribunal, commenced proceedings by way of an Election Petition by which they challenged the election on two Grounds namely:

(a) “That the Ovia North East 1 Constituency Election for Edo State House of Assembly conducted by the 3rd, 4th and 5th Respondents and their agents in Ovia North East Local Government Area of Edo State on the 14th of April, 2007, is invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2006 in Adolor Ward 4 Units 6, 7, 8; Ofunmwengbe Ward 5 Unit 004 and 008; Uhiere Ward 7; Isiuwa Ward 8 Unit 9; Okokhuo Ward 9 Units 4 to 8, 10 to 12:

(b) That the 1st and 2nd Respondents were not duly elected by majority of lawful votes cast in the election.”

He then sought the following reliefs:

(i) “An order invalidating the 9126 votes or such part of the votes scored allocated to the 1st and 2nd Respondents by the 3rd, 4th and 5th Respondents as may be found to be invalid in Adolor Ward 4 Units 6, 7 and 8, Ofumwengbe Ward 5 Units 4 and 8, Uhiere Ward 7, Isiuwa Ward 8 Unit 9 and Okokhuo Ward 9 Units 4 to 8, 10 – 12 in Ovia North East 1 Constituency election held on 14/4/07 on the Ground of corrupt practices or non – compliance with the provisions of the Electoral Act 2006.

(ii) An order declaring the Petitioners as validly elected and returned as the winners of the Ovia North East 1 Constituency Election of Edo State House of Assembly conducted on 14/4/07 having scored the Highest number of lawful votes of the total valid votes cast in the said Election after removing the invalid votes allegedly scored or allocated to the 1st and 2nd Respondents. ”

The Respondents filed their various replies to the Petition. Consequently, the Petition proceeded to trial, at the conclusion of which the lower tribunal in its Judgment at page 543 of the record of appeal held that the Petitioners had proved their Case.

“We think the tribunal can still nullify the election based on Section 147(2) (supra) especially where 1st and 2nd Petitioners have failed to move the burden of proof placed on them as being the cause for INEC to cancel the results in Oluku Ward 6. We do not think that 1st and 2nd Petitioners would be said to have satisfied the provisions of the Act if they cause the cancellation of the election disenfranchising about 13,000 voters which is almost equal to the number of votes originally recorded for the parties by INEC. The emphasis here is that no one should benefit from his own wrong. See Exhibits 45 and 46. We think the proper thing to do is go ahead and nullify the election.

We resolve issue NO.5 against the 1st & 2nd Petitioners. The Petition succeeds and we make the following orders:

(1) The election to Ovia North – East 1 Constituency to the Edo State House of Assembly is hereby nullified;

(2) The 1st Petitioner Scored the highest number of valid votes cast but did not satisfy the requirement of the Act; and