Stephen Ehikioya Idehenre & Anor. V. Ehigiamusoe Kingsley Omiyi & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the National Assembly/Governorship and House of Assembly Election Petition Tribunal delivered by Hon. Justice B. Orilonise (Chairman), Hon. Justice A.S. Tahir (Member), Hon. Justice P.N. Umeadi (Member), Hon. Justice Obanole Ogbuinya (Member) and Hon. Justice S.M. Anjori (Member).

The complaint from which this appeal arose can be seen from its facts as contained in the judgment of the Tribunal.

The 1st Petitioner, Stephen Ehikioya Idehenre, of the Action Congress (AC) has petitioned against the election and declaration of the 1st Respondent, Ehigiamusoe Kingsley Omiyi of the Peoples Democratic Party as the winner of the Edo State House of Assembly seat for Igueben Constituency. The election was held on 14th April, 2007. The election was conducted by the Independent National Electoral Commission (INEC) joined as the 3rd Respondent in this petition.

The result of the election announced by the 3rd Respondent indicated that the 1st petitioner scored 7797 votes while the 1st respondent scored 8353 votes and was declared as the winner of the election having scored majority of votes cast at the election. He was thus returned as the member elected into the Edo State House of Assembly for Igueben Constituency. The grounds for challenging the election are that it was marred by corrupt practices and non-compliance with the provisions of the Electoral Act, 2006 and was therefore invalid. That the 1st respondent who was sponsored by the P.D.P was duly elected by majority of lawful votes cast at the election.

The reliefs sought by the Petitioners are: an order to invalidate the 8853 votes or such part of them scored or allocated to the 1st and 2nd respondents by the 3rd, 4th and 5th respondents as may be found to be invalid in Igueben Constituency election held on 14th April, 2007 on grounds of corrupt practices or non-compliance with the provisions of the Electoral Act, 2006.

And to declare the 1st petitioner of the Action Congress as validly elected and returned as the winner of the Igueben Local Government Constituency election into the Edo state House of Assembly having scored the highest number of lawful votes of the total valid votes cast at the said election after deducting the invalid votes allegedly scored or allocated to the 1st and 2nd respondents.

At the end of the trial the Tribunal gave judgment found no merit in the petition and therefore dismissed the petition accordingly. The Appellant having been dissatisfied with the said judgment filed Notice and grounds of appeal on 4/2/2008.

The appeal however was fought on the amended notice and grounds of appeal dated 29/3/09 filed on 26/3/10. The said grounds and particulars are set out hereunder for ease of reference as there is a Preliminary Objection to the grounds.

GROUND ONE

The Learned Judges of the Tribunal erred in law when they held as they did that:

“We are of the view that allegation of malpractices, corrupt practices, over voting, falsification of the votes and allocation of fictitious votes at polling stations should be directed at and made specifically against presiding officers and not generally against wards as was the case in this petition”

PARTICULARS OF ERROR OF LAW

i) the Electoral Act, 2006 in the proviso to section 144(2) thereof expressly provided that ‘where such officer or person (Electoral Officer, Presiding Officer, Returning Officer), is shown to have acted as an agent of the commission, his non joinder as aforesaid will not on its own operate n void the petition if the commission is made a party.