Mr. Blessing Agbebaku V. Felix Olushola Unuigbe & Ors. (2009)

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CHIOMA EGONDU 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 by their Lordships Hon. Justice N. C. Umeadi, Hon. Justice A. S. Tahir, Hon. Justice O. Ogbuinya and Hon. Justice S.M. Anjor. The Appellant in Appeal No.CA/B/EPT/129/08, Mr. Blessing Agbebaku was the 1st Respondent at the trial tribunal. He was the Candidate of the Peoples Democratic Party (PDP) for the Owan West Constituency in Edo State held on the 14/4/07.

The 1st Respondent in the same appeal Felix Olushola Unuigbe 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 whose responsibility it was to conduct the said election.

The 6th Respondent was the Peoples Democratic Party. At the Conclusion of the election, the Appellant was declared victorious and returned as elected. Dissatisfied 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 questioned the election on two grounds namely:

1. “AN ORDER invalidating the 13,990 votes or such part of the votes scored or allocated to the 1st and 2nd Respondents by the 3rd, 4th and 5th Respondents as may be found to be invalid in Owan West Constituency election held on 14/4/07 on the ground of corrupt practices or non compliance with the provisions of the Election act, 2006.
2. AN ORDER declaring the Petitioners as validly elected and Returned as winners of the Owan West 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. Thereafter, the petition proceeded to trial, at the Conclusion of which the lower tribunal in its Judgment at page 427 of the record of appeal held that the Petitioners had proved their case.

“Overall, going by the reasons marshaled in this Judgment, we hold that the Petitioners Petition flies high and their prayers gramed. Accordingly, we hereby order:

(a) that the 1st Petitioner, Felix Olushola Unuigbe, won the election to the House of Assembly of Edo State for Owan West state Constituency held on 14th April, 2007.

(b) that the 1st Petitioner, Felix Olushola Unuigbe, be and is hereby declared duly elected and Returned as the elected representative for Owan West Local Government Area in the Edo State House of Assembly;

(c) that the Certificate of Return issued to the 1st Respondent Blessing Agbebaku, by the 3rd Respondent (INEC) be withdrawn from him forth with.

(d) . that the 3rd Respondent, INEC issues the 1st Petitioner, Felix Olushola Unuigbe, with a Certificate of Return forth with; and

(e) that the parties bear their respective costs of prosecuting this petition.”

It then went ahead to nullify the election and Return of the Appellant (1st Respondent at the trial tribunal) and declared the 1st Respondent (1st Petitioner at the lower tribunal) as winner. Dissatisfied with the Judgment, the Appellant appealed to this Court. From the Appellants Grounds of Appeal, they distilled Five issues for determination as follows:

1. Whether the learned Chairman and members of the tribunal were right in holding that they can suo motu examine and utilize all the exhibits tendered in evidence in resolving any issue that arises while determining the Petition, considering the manner in which the exhibits were tendered and evidence led thereon. (Encompassing Grounds 1, 13 and 19 of the Grounds of Appeal.)
2. Whether from the state of pleadings and witnesses dispositions, the learned Chairman and members of the tribunal were right to have proceeded to determine the allegation of non-compliance having held that the 1st & 2nd Respondents failed to prove the allegation of corrupt practice. (Encompassing Grounds 2, 3, 6 and 7 of the Grounds of Appeal.)
3. Whether the facts relied upon by the Chairman and members of the tribunal were pleaded in law and if pleaded evidence were led thereon (Encompassing Grounds 4, 5, 8, 9, 10 and 11 of the Grounds of Appeal.)
4. Whether the trial tribunal was right in law in declaring the 1st Respondent the winner of 14th April, 2007 House of Assembly election for Owan West Constituency of Edo State. (Encompassing grounds 12, 14, 15, 16, 17, 18 and 20 of the Grounds of Appeal.)
5. Whether having regards to the provisions of Section 141 of the Electoral Act 2006, the Petition filed by the 1st and 2nd Respondents was competent…”

The Peoples Democratic Party which was the 2nd Respondent at the lower Tribunal also appealed against the Judgment in appeal No.CA/B/EPT/130/08 and therein raised issues for determination.

The petitioners at the lower tribunal (1st and 2nd Respondents herein) as well as INEC, its officials and the 6th Respondent also filed their respective briefs;