Oladele Olatunji V. Dr. Wole Olakunde Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment)

On the 21st day of April, 2007 the independent National Electoral Commission (INEC), the 2nd respondent to this appeal, conducted election to the House of Representatives in respect of Okitipupa/lrele Federal Constituency of Ondo State. Six (6) candidates contested the said election. The appellant and the 1st respondent were among them. The appellant – OLADELE OLATUNJI contested on the platform of Labour Party (LP) while the 1st respondent – DR. WOLE OLAKUNDE contested on the platform of Peoples Democratic Party (PDP). The result of the election was declared on the 21st day of April, 2007 and the appellant was credited with 4, 438 votes while the 1st respondent was credited with 112, 358 votes and consequently declared the winner of the election having polled the highest number of the votes cast.

The appellant was not satisfied with the result of the election and on the 21st day of May, 2007 he filed an election petition anchored on the following three grounds, namely:

“(a) The 1st Respondent was not duly elected by majority of lawful votes cast at the election.

(b) The purported House of Representatives election of 21st April 2007 in Irele/Okitipupa Federal Constituency was marred by corrupt practices, mass abduction of Labour Party leaders and supporters, massive and unprecedented violence; and absolute non-compliance with the provisions of the Electoral Act because there was no election yet returns were made.

(c) The Petitioner was validly nominated but was unlawfully excluded from the election by abduction and unlawful detention of the Petitioner by men of the Nigerian Army acting as agents of the 1st Respondent.”

After exchange of pleadings (the petition and the replies) the matter was heard by the National Assembly/Governorship and Legislative Houses Election Petition Tribunal for Ondo State, sitting at Akure (Coram: IKYEGH, ELECHI, NIMPAR, ONWUAMUEGBU and MAIWADA, J.J).The said Tribunal delivered judgment on the 3rd day of May, 2008 and dismissed the petition. The appellant was not satisfied with the decision of the trial tribunal hence his appeal to this Court.

In accordance with the Rules of Court, the appellant and the 1st respondent filed and exchanged briefs of argument. The 2nd to 7th respondents did not file any briefs of argument. It must be pointed out immediately that all the respondents save the 6th & 7th filed notices of preliminary objection to the hearing of this appeal. It should be kindly noted that Dr. Olatoke, learned counsel for the 1st respondent withdrew his notice of preliminary objection dated the 3rd day of March, 2009 but filed on the 4th day of March, 2009 and the same was duly struck out.

The 1st respondent’s notice of preliminary objection dated the 24th day of November, 2009 was filed by Dr. Olatoke, learned counsel for 1st respondent, on the 7th day of December, 2009. The 2nd – 4th respondents filed a joint notice of preliminary objection on the 18th day of March, 2009. The said notice dated the 19th day of February, 2009 was signed on their behalf by the counsel – Nwokeocha, Esq. The 5th respondent’s notice of preliminary objection dated the 25th day of January, 2009 was filed on the 30th day of January, 2009. Each notice of preliminary objection, save that of the 1st respondent, was filed with or accompanied by a brief of argument. The appellant filed two briefs of argument in opposition to the preliminary objections of the 1st and 5th respondents, respectively. The appellant’s brief in opposition to the 1st respondent’s objection dated the 23rd day of March, 2009 was filed on the same date. The brief in opposition to the 5th respondent’s objection was dated and filed the 13th day of March, 2009. The 1st respondent filed a reply of points of law on 30/03/09.

The respondents argued their respective objections and the appellant replied thereto before the substantive appeal was heard.

The first preliminary objection in this matter is that of the 5th respondent. Dated the 21st day of January, 2009 it was filed on the 30th day of January, 2009. The objection of the 5th respondent is as follows:

(i) “That Petition No. ETP/OND/NA/07/07 from which the appeal arose to this Honorable Court is incurably incompetent and lacked existence in law having been filed outside the statutory period of “within thirty (30) days from the date the result of the election is declared” as provided for by section 141 of the Electoral Act, 2005.

(ii) That the judgment of the lower Tribunal delivered on the 3rd May, 2008 which is the subject-matter of the appeal before this Honourable Court is void ab intio for lack of jurisdiction”.

The relevant grounds for the objection are as follows: