Peoples Democratic Party & Anor. V. Independent National Electoral Commission & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A (Delivering the Leading Judgment)

This appeal was dismissed on the 6th day of December, 2011 and reasons for the dismissal were reserved to be given at a later date. I now give my reasons.

This is an appeal against the judgment of National and State Houses of Assembly Election Tribunal sitting in Abeokuta, Ogun State, delivered on 11th October, 2011, by which the Appellants petition was dismissed.

On the 9th of April, 2011, the 1st Respondent conducted elections in respect of various Senatorial Districts and Federal Legislative Houses in Ogun State. Both the 2nd Appellant Hon. Oladipupo Olatunde Adebutu and the 2nd Respondent Bukunola Taofeek contested for the Ogun West Senatorial District election, in Ogun State but under the platform of different Political Parties. The 2nd Respondent contested under the platform of the 3rd Respondent (A.C.N.) whereas the 2nd petitioner contested under the platform of the 1st petitioner (P.D.P.).

At the conclusion of the election exercise, the 1st Respondent announced the results of the election which showed that the 2nd Respondent scored the highest number of lawful votes cast at the election. The 1st Respondent (INEC) declared and returned the 2nd Respondent as the winner of the election.

Dissatisfied with the return of the 2nd Respondent as the winner of the election, the Appellants filed this petition. The 2nd and 3rd Respondents duly filed their joint reply to the petition and joined issues with the Appellants on the averments contained therein. After the Pre-hearing session, the matter proceeded to trial. The 2nd Petitioner testified as PW1 and called two other witnesses PW2 and PW3 respectively. They tendered documents admitted in evidence as exhibits P1 – P24 and exhibits P2 – P17 polling Unit results.

At the close of Appellants’ case 2nd and 3rd Respondents opened their case and called two witnesses’ RW1 and RW2. They also tendered in evidence documents marked exhibits R1 – R4. At the conclusion of the matter the lower Tribunal in a well considered judgment dismissed the petition.

In accordance with the Practice Direction Parties exchanged briefs of argument. Appellant sought for leave to file additional grounds of appeal and same was granted by this court. The amended notice of appeal was filed on 28/11/11. The amended Appellants brief of argument was filed on 28/11/11. The 1st Respondent’s brief filed on 2/12/11 was deemed properly filed on 2/12/11. 2nd and 3rd Respondents’ brief was filed on 30/11/11. While Appellant’s reply brief was filed on 25/11/11.

At the hearing of the appeal all counsel adopted their respective briefs of argument. Appellants urged the court to allow the appeal, while 1st and 2nd-3rd Respondents urged the court to dismiss the appeal.

Appellants formulated five issues for the determination of this court. The issues are:-

(1) Whether the allegations of malpractice involving disenfranchisement and non-recording of number of voters on the queue at the commencement have not been established.

(2) Whether the allegation of non-recording of the number of voters on the queue at the commencement of voting ought to have been pleaded in the Petition.

(3) Whether the allegations of malpractice were not proved beyond reasonable doubt.

(4) Whether the petitioners have not established that the non-compliance with the provisions of the Electoral Act 2010 (as amended) by the 1st respondent through the unlawful inclusion of Mr. Waliu Taiwo in the election after the expiration of the period allowed for substitution of candidates substantially affected the result of the election.