Sunday Adeniyi V. Independent National Electoral Commission & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

CHIDI NWAOMA UWA, J.C.A.

This appeal arose out of the decision of the Governorship and Legislative Houses Election Tribunal, sitting at Abeokuta, Ogun State (hereafter called the tribunal), delivered on the 25th day of October, 2007.

In its ruling, the Tribunal upheld a motion/preliminary objection filed by the 3rd and 15th Respondents and struck out the petition as incompetent.

Being dissatisfied with the decision, the Petitioner/Appellant filed the appeal before this court against the decision on the 15th of November, 2007. There were nine (9) grounds of appeal.

The background facts are that the Appellant/Petitioner was a candidate at the Governorship and Legislative Houses Election held on 14th April,2007. The 3rd Respondent Mr. Isaac O. Solaja was one of the other candidates at the election.

The Appellant/Petitioner was credited with 4,546 votes while the Respondent was credited with 12,487 votes. The latter was returned as having been duly elected as member, Ogun State House of Assembly representing Ikenne Constituency of Ogun State. The petition filed on 11th May, 2007, challenged the return of the 3rd Respondent as the winner of the Ikenne constituency of the House of Assembly, Ogun State. He also filed a motion for an order allowing him to inspect all the polling documents and ballot papers for wards 1 to 10 of the above constituency.

On the 13th June 2007, the 3rd and 15th Respondents filed their Reply, so also the 1st, 2nd, 4th – 14th Respondents. The 3rd and 15th Respondents’ reply was said to have been signed by TOKUNBO JIBODU & Co.

In a motion dated 29th June 2007, the 3rd and 15th Respondents prayed for an order striking out or dismissing this petition as being incompetent. On 9th July, 2007 the petitioner filed his answers to the pre-hearing sheet, and thereafter filed a counter-affidavit and written address in opposition to the Respondents’ motion. The 3rd and 15th Respondents filed their answers to the Pre-hearing sheet on 21st July, 2007. On 25th July, 2007, the petitioner filed a motion seeking-

“Leave to file and serve all the documents, including photographs, video cassettes and all other documents listed and filed in this petition in accordance with Rules 1(1) (c) and 4(8) of the Election Tribunal and Court Practice Direction 2007 and the Electoral Act 2006.”

The leave sought was granted on 10th August, 2007.

On 14th September the petitioner filed a motion seeking leave and order of the tribunal permitting forensic and hand writing experts to inspect the ballot papers, forms EC8A(i), EC8D(i) and other forms and documents used in the conduct of the House of Assembly election. The application, the supporting affidavit and written address in support were filed on the said 14th September.

The 3rd and 15th Respondents filed their Counter Affidavit and written address in support on 20th September, 2007 in opposition to the petitioner’s motion of 14th September, 2007.

On 24th September, 2007, the petitioner also filed a motion on Notice (dated 22nd September) in which he prayed for an order striking out the Reply of the 3rd and 15th Respondents on the ground that the reply is fundamentally defective in that it did not comply with the Electoral Act and the first schedule of the Act. On 25th September, 2007, the Tribunal granted the petitioner’s motion of 14/9/07. The 3rd and 15th Respondents then filed a motion on Notice dated 25th September, 2007 filed on 26th September, 2007 praying for an order striking out the petition. The Tribunal had earlier adjudged the petition competent when on 10th August, 2007 it ruled that it had jurisdiction to entertain some paragraphs of the petition at the instance of the 3rd and 15th Respondents. The preliminary objection was based on four grounds, which boil down to seeking for the striking out of the petition on the ground of incompetence in that the petitioner did not specify his right to present the petition.

The petitioner opposed the application dated 25/9/07 and filed his counter affidavit and written address dated 2nd October, 2007.