Mr. Ogbeiwi V. Hon. Moses Omo Egharevba & Ors. (2009)

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ALI ABUBAKAR BABANDI GUMEL, J.C.A.,

This is an appeal against the judgment of the Edo State Governorship and Legislative Houses Election Tribunal delivered on 22nd January, 2008. Sequel to the election held on 14th April, 2007, the 8th Respondent herein (INEC) declared the Appellant, Mr. Ogbeiwi {Etinosa} Ikponmwosa, the candidate of the Action Congress (AC), as the winner of the election – into the Edo State House of Assembly for Orhionmwon II Constituency. The 1st and 2nd Respondents herein were aggrieved by this declaration of result of election and thereby petitioned the Tribunal in a petition dated 11th May, 2007. The Respondents to the petition joined issues with the petitioners in their respective replies to the petition.

Issues having been duly joined, the petition went through a pre-hearing session consequent upon which, the lower Tribunal settled the following 3 issues as the real issues for determination in the petition. They are: –

i. Whether or not the votes scored by the 1st petitioner as pleaded in paragraph 7 of the petition were invalid votes cast at Ukpato and Evbuesi Wards on 14th April, 2007, and whether they were correctly recorded;

ii. Whether the result of the election as declared by INEC i.e. 13,987 votes for the 1st Respondent and 13,302 votes for the 1st petitioner as pleaded in paragraph 6 of the petition excluded the votes scored by both candidates at the election in polling units 18, 20 and 21 of Ukpato Ward and Units 002, 005, 009 and 010 of Evbuesi Wards of Orhionmwon Constituency II; and

iii. Whether or not during the election on 14th April, 2007 voting took place in Urhonigbe South Ward and whether as alleged by the 1st petitioner that result which emanated from that ward were invalid votes by reason of corrupt practices and non-compliance with the Electoral Act, 2006.

The respective parties to the petition adduced both oral and documentary evidence at the trial. Learned Counsel to the respective parties filed and exchanged written addresses. After considering the totality of evidence before it and the addresses of respective learned counsel, the Tribunal delivered its judgment wherein it upheld the petition and went further to set aside the election and return of the Appellant. It also held that it was the 1st Respondent herein, representing the PDP that ought to have been declared and returned as the duly elected candidate in the above said election.

The Appellant herein was dissatisfied with the nullification of his election. He appealed to this Court in a notice of appeal dated 25th January, 2008. Upon being served with the notice of appeal, the 1st and 2nd Respondents filed a Respondents’ Notice dated 27th February, 2008. It was brought pursuant to 0.9 rules 2 of the Court of Appeal 2007.

With leave of this Court, the appellant filed and argued additional grounds of appeal. Subsequent to this leave, the appellant filed a composite brief of argument incorporating arguments and submissions on issues distilled from both the original and additional grounds of appeal. The brief was filed on 20/05/08 and it is dated 19/05/08. In response to the appellant’s brief of argument, the 1st and 2nd Respondents filed a brief of argument dated 23/05/08 but filed on 26/05/08. This brief also incorporates arguments and submissions on the Respondent’s notice. The response of the 3rd – 8th Respondents came in a brief of argument dated and filed on 26/5/08. To respond to some of the submissions and arguments in the briefs of the 2 sets of Respondents, the appellant filed a reply brief dated 2nd June, 2008. From the 10 grounds of appeal the appellant identified and formulated 5 issues for determination in this appeal. They are as follows:-

1) Whether the Tribunal was right when it refused to pronounce on the propriety or otherwise of the reply filed on behalf of the 2nd, 3rd, 4th, 6th and 7th Respondents’ and whether the reply filed was valid;

2) Whether the parties before the Tribunal joined issues on the fact that results of the election in Units 2 , 5 , 9 and 10 of Evbuesi Ward were recorded on pieces of paper instead of Form EC8A and if the answer is in the negative whether the Tribunal was right when it cancelled the result of the election in Units 2, 5 , 9 and 10 of Evbuesi Ward;

3) Whether the learned Justices of the Tribunal were right when they held that the 1st Respondent (Appellant herein) did not conform to or satisfy the provisions of paragraphs 12(2) and 15 of the Rules of Procedure for election Petition in his reply and thus the evidence of RW12, RW17, RW18 and RW19 regarding Unit 8 of Ukpato Ward and Units 20 – 28 of Ugboko Ward are inadmissible;

4) Whether the Tribunal was correct when it held that there was no election in Urhonigbe South Ward and proceeded to cancel the result of all the Units in the said Ward, and

5) Whether the Tribunal was correct in law to have proceeded to declare the petitioner as the duly elected candidate in the disputed election, having regard to the fact that the Tribunal had nullified/cancelled the results of all the Units in Urhonigbe South Ward and some other Units in Ukpato Ward and the fact that there was no election in Ugwu Ward.