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

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, OFR J.C.A (Delivering the Leading Judgment)

This appeal was dismissed on the 6th of December, 2011 and reasons for dismissing the appeal were reserved until today, pursuant to S. 285(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), I now give my reasons.

This is an appeal against the judgment of the National and State Assembly Election Petition Tribunal sitting at Abeokuta, Ogun State delivered on the 10th October, 2011. The Petitioners (now Appellants) were respectively a Political Party – the Peoples Democratic Party (PDP) and its candidate Hon. Mohammed T. Odunowo who participated in the election for the Ogun East Senatorial District of Ogun State seat in the Senate of the Federal Republic of Nigeria held on the 9th April, 2011. At the end of the election, the 1st Respondent, the Independent National Electoral Commission (INEC) declared the 2nd Respondent Mr. Sefiu Saka who was sponsored by the 3rd Respondent, the Action Congress of Nigeria as the winner of the election.

Aggrieved the 2nd Petitioner (2nd Appellant) who came second in the said election challenged the results of the election and the return of the 2nd Respondent before the National and State Assembly Election Petition Tribunal sitting at Abeokuta, Ogun State by petition No. EPT/OG/FH/03/2011 filed on the 29th April, 2011 seeking the following reliefs –

1. A declaration that the 2nd petitioner polled the highest number of lawful votes cast at the said election to the senate for the Ogun East senatorial District held on the 9th May, 2011 and ought to be returned as duly elected.
2. An order directing the 1st Respondent to deliver within 48 hours of the decision of the Tribunal a certificate to the 2nd Petitioner in evidence of his return as the validly elected senator representing the Ogun East senatorial District of Ogun State in the senate of the Federal Republic of Nigeria.

IN THE ALTERNATIVE to prayers 1 and 2 above the Petitioners prayed for the following reliefs:

1. An order nullifying/invalidating/declaring as invalid, null and void the entire election to the Senate for the Ogun East Senatorial District held on the 9th April 2011.
2. An order directing the 1st Respondent to conduct within 21 days of the decision of this Tribunal, a new election to the Senate for the Ogun East Senatorial District in Ogun State.
3. An order barring the 4th & 5th Respondents from participating or fielding candidates at the new election.

The Appellants’ grounds for the petition are:-

1. The 2nd Respondent did not win a majority of the lawful votes cast at the said election and was therefore not duly elected or returned.
2. Non-compliance with the provisions of the Electoral Act 2010 in that the 1st Respondent allowed the participation of the 4th Respondent in the said election in violation of the provision of the Electoral Act in order to split the votes which would ordinarily have been cast for the 2nd petitioner.

After the pretrial conference the petition went on to be heard and on the 10th October, 2011, the Tribunal delivered judgment dismissing the petition. Aggrieved the Petitioners (now Appellants) appealed against the judgment by a Notice and grounds of appeal filed on the 17th October 2011. By leave of Court, Appellants filed an Amended Notice of Appeal dated 28th November, 2011 on the same day. The said Amended Notice of Appeal consists of eight grounds (A-H) and is reproduced below shorn of particulars-

GROUNDS OF THE APPEAL

A. MISDIRECTION ON THE FACTS

The Honourable Tribunal misdirected itself on the facts when it held that the Petitioners/Appellants’ allegation of disenfranchisement of voters in the election for Ogun East senatorial district held on the 26th of April, 2011 was not established.

B. ERROR IN LAW

The Honourable Tribunal erred in law when it held that the allegation of non-recording of the number of voters on the queue when voting commenced ought to have been pleaded in the petition.

C. ERROR IN LAW

The Honourable Tribunal erred in law when it held that the Petitioners/Appellants failed to plead and lead evidence in respect of two sets of results.