Peoples Democratic Party (PDP) & Anor. V. INEC & 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. I now give the reasons. The facts leading to this appeal are that on the 9th day of April,2011 the 1st Respondent conducted elections in respect of various senatorial districts and Federal Legislative Houses in Ogun State. The Petitioners/Appellants are respectfully a political party and its candidate that participated in the election for the Ijebu North/Ijebu East/Ogun Waterside Federal Constituency of Ogun State seat in the House of Representatives of the Federal Republic of Nigeria held on the 26th of April, 2011.

The 2nd Respondent contested with Appellants’ candidates and other candidates from other political parties in the said election At the end of the election, the 2nd Respondent was declared winner by the 1st Respondent. The 2nd Respondent scored 32,790 votes, while the 2nd Petitioner scored 24,992 votes.

Being dissatisfied with the results of the election as declared by the 1st Respondent, the Appellants as Petitioners before the lower Tribunal filed a joint petition dated 18th May, 2011 challenging the result declared by the 1st Respondent and the return of the 2nd Respondent.

The petition was founded on the following grounds:

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. The 1st Respondent in non-compliance with the provisions of the Electoral Act 2010 allowed the participation of the 4th Respondent in the said election.

The reliefs sought are as follows:

1. A declaration that the 2nd Petitioner polled the highest number of lawful votes cast at the said election to the House of Representatives for the Ijebu North/Ijebu East/Ogun Waterside Federal Constituency held on the 26th of April, 2011 and ought to be duly returned as elected.
2. An order directing the 1st Respondent to deliver within 48 hours of the decision of this Tribunal a certificate to the 2nd Petitioner in evidence of his return as the validly elected member representing the Ijebu North/Ijebu East/Ogun Waterside Federal Constituency Ogun State in the House of Representatives of the Federal Republic of Nigeria.

IN THE ALTERNATIVE to prayers 1 and 2 above your petitioners pray, in the event that the 2nd ground and/or any other ground invalidating entire election is upheld, for the following reliefs:

3. An order nullifying/invalidating/declaring as invalid, null and void the entire election to the House of Representatives the Ijebu North/Ijebu East/Ogun Waterside Federal Constituency held on the 26th day of April 2011.
4. An order directing the 1st Respondent to conduct, within 21 days of the decision of this Tribunal, a new election to the House of Representatives for the Ijebu North/Ijebu East/Ogun Waterside Federal Constituency held on the 26th day of April 2011.
5. An order barring the 4th and 5th Respondents from participating or fielding candidates at the new election”‘

Parties filed and exchanged pleadings i.e. petition and replies. After the pre-hearing session, the matter proceeded to trial. At the end of the trial written addresses were adopted by parties. In a considered judgment delivered on the 10th day of October 2011, the Tribunal dismissed the petition. See pages 479-514 of the record.

Appellants felt unhappy by the decision of the Tribunal so they filed their Notice of Appeal on 17th October, 2011.

Parties filed and exchanged briefs of argument and same were adopted on the 2nd day of December, 2011.

Appellants distilled five issues from 6 grounds of appeal. The issues are:

1. Whether the allegations of malpractice involving disenfranchisement and non-recording of number of votes on the queue at the commencement of voting have not been established by the Petitioners/Appellants.
2. Whether the allegation of non-recording of number of voters on the queue at the commencement of voting ought to have been pleaded in the petitions.
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 2011 (as amended) by the 1st Respondent through the unlawful inclusion of Mr. Segun Adekoye in the election after the expiration of the period allowed for substitution of candidates substantially affected the results of the election.
5. Whether the 7a Respondent won a majority of lawful votes cast at the election.

The 1st Respondent aligns itself and adopts the issues as formulated by the 2nd and 3rd Respondents.

The 2nd Respondent adopted the five issues formulated by the Appellants. He however contended that issue 5 formulated from ground H is incompetent.

The 3rd Respondent raised one issue for determination as follows: “Whether the petitioner has proved his case as required by law to sustain the reliefs claimed.”