ADEBUTU OLADIPUPO OLATUNDE & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 2 ORS

Legalpedia Citation: (2023-08) Legalpedia 23570 (CA)

In the Court of Appeal

ABUJA JUDICIAL DIVISION

Wed Aug 16, 2023

Suit Number: CA/IB/EPT/GOV/04/2023

CORAM

Joseph Shagbaor Ikyegh JCA

Mohammed Baba Idris JCA

Abdul-Azeez Waziri JCA

PARTIES

ADEBUTU OLADIPUPO OLATUNDE 2. PEOPLE’S DEMOCRACTIC PARTY (PDP)

APPELLANTS

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
ABIODUN ADEDAPO OLUSEUN
ALL PROGRESSIVES CONGRESS (APC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellants as the Petitioners before the Governorship Election Petition Tribunal, holden at Abeokuta, Ogun State, challenged the declaration and return of the 2nd Respondent, who was the candidate of the 3rd Respondent as the winner of the election conducted by the 1st Respondent and held on the 18th day of March, 2023 for the office of Governor of Ogun State, Nigeria. They claimed that elections were cancelled in 90 polling units which cut across 41 wards and 16 Local Government Areas of Ogun State due to violent disruptions of the election process and over voting.

They further claimed that there was a gross violation of the provisions of Section 24 (2 & 3); 47(3); 51(20 and 62) of the Electoral Act, 2022 given the margin of lead between the 2nd Respondent and the 1st Respondent petitioner and the total number of permanent voter’s card (PVC) collected, is undue and wrongful. The 2nd Respondent in response to the petition made criminal allegations of financial inducement of voters (vote buying) against the Appellants.

The Tribunal after hearing the arguments of the parties on the application, gave its ruling on the 22nd day of June, 2023 dismissing the Appellants’ application. Dissatisfied by the decision, the Applicant at the trial Tribunal made the instant appeal.

HELD

Appeal dismissed

ISSUES

Whether the Tribunal was right in dismissing the Appellants application seeking to strike out paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 28 and 30 of the 2nd Respondent’s reply of the petition filed on 15th May 2023?

Whether the Tribunal was right in refusing to strike out issue 4 of the 2nd Respondent’s issues for determination relating to vote buying which was never pleaded in the petition?

RATIONES DECIDENDI

REPLY TO AN ELECTION PETITION – WHAT A REPLY TO AN ELECTION PETITION IS (TO THE RESPONDENT)

A reply to an election petition is the Respondent’s pleading. The reply should contain facts properly set out which the Respondent intends to rely upon in opposition to the petition. It may also contain details of facts contained in the petition which the Respondent admits and which he denies. See paragraph 12(1) of the First Schedule to the Electoral Act.

Going further, paragraph 12(2) of the First Schedule to the Electoral Act, 2022 provides: “Where the Respondent in an election petition, complaining of an undue return and claiming the seat or office for a petitioner intends to prove that the claim is incorrect or false, the Respondent in his reply shall set out facts and figures clearly and distinctly disproving the claim of the Petitioner.” – Per M. B. Idris, JCA

PLEADING – RULES OF PLEADING APPLICABLE IN ELECTION PETITIONS

Although, election petitions are sui generis or are in a class of their own, the general rule or principles of pleading, which are applicable in ordinary civil suits, are applicable in election petitions with necessary modification mutatis mutandis but with equal force especially with regard to the filing of petitions and their reply. See the case of OGBEIDE VS. OSULA (2004) 12 NWLR (PT. 886) 86, 131.

Therefore, just like it is for a statement of defence, before a Court can come to a decision on whether there is an admission or denial in a reply to a petition, the Court must consider the entire pleadings of the parties and in doing this, each paragraph is not to be considered in isolation, rather it must be read in conjunction with the other paragraphs to properly ascertain the issues joined in the pleadings. See the cases of BUHARI VS. OBASANJO (2005) 13 NWLR (PT. 941)1 and TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517, 549. – Per M. B. Idris, JCA

ISSUES FOR DETERMINATION – FORMULATION OF ISSUES FOR DETERMINATION

Even the tribunal in the hearing and determination of the petition is not confined to the issues raised by the parties in either the petition or reply. It is clear that unlike briefs in the Appellate Courts, issues are not formulated from any ground of appeal at the trial Court, but rather from the pleadings. Thus the same way the grounds of appeal regulates the issues for determination in an appellate brief is the same way the pleadings regulate the formulation of issues for determination in an address at the trial Court.

The Supreme Court in the case of UBN VS. NWAOKOLO(1995) 6 NWLR (PT. 400) 127, pronounced on the similarity between a ground of appeal and pleadings when it held that grounds of appeal are similar to pleadings and that the trial Court has the duty to consider the case of the parties as pleaded as failure to do so amount to failure of justice.

Pleadings are not restricted only to that filed by the Claimant or as in this case, the Petitioner,however it encompasses that filed by both the Petitioner and the Respondent. Pleadings are meant to let the parties know each other’s case and to state accurately the issues for trial in order not to take the other party by surprise. It also helps the parties settle issues so as to save the Court’s time by agreeing on those facts not in contest and leaves the Court to decide the ones in contest based on received evidence. It is just as the issue of whether a party has satisfied the conditions for grant of any application is an issue of fact which can only be deciphered from the affidavit filed in support. In that scenario, the issue for determination to be formulated in the written address in support of the application must be in regard to those facts. – Per M. B. Idris, JCA

ISSUE FOR DETERMINATION – WHERE AN ISSUE FOR DETERMINATION ARISES FROM

…an issue for determination must arise from the grounds and facts pleaded in the pleadings of the parties (in this case, from the petition, the 2nd Respondent’s reply to the petition and the Petitioner’s reply to the 2nd Respondent’s reply) and there is nothing restricting a Respondent from formulating his own issues as far as it is within the bounds of facts stated in the pleadings… – Per M. B. Idris, JCA