Legalpedia Citation: (2012) Legalpedia (CA) 69882

In the Court of Appeal

HOLDEN AT ILORIN

Fri Apr 20, 2012

Suit Number: CA/IL/EPT/SH/1/2012

CORAM

P. NNAEMEKA-AGU, JUSTICE, SUPREME COURT

PARTIES

1. AIYELABEGAN KAYODE A. 2. ACTION CONGRESS OF NIGERIA (ACN) APPELLANTS

1. SALMAN ABDULFATAI2. PEOPLE DEMOCRATIC PARTY (PDP)3. INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

On the 26th of April 2011, State Houses of Assembly elections were held throughout Kwara State. At the end of the elections which was conducted by the 3rd Respondent, the 1st Respondent was declared the winner and returned elected member of the Kwara State House of Assembly representing Ilorin North/West Constituency. The 1st Appellant herein who was sponsored by the 2nd Appellant in that election was aggrieved by the result of the election and therefore presented a petition challenging the result of the election at the Tribunal. The Tribunal heard the petition and in a considered judgment, it nullified the election in two Wards namely Balogun Alanamu and Oloje Wards and ordered the 3rd Respondent to conduct election in the two Wards and add the result to the results of the remaining five wards whose results were upheld before the announcement of the final result for the constituency. The Appellants were dissatisfied with the decision of the Tribunal, hence they appealed to the Court of Appeal, which appeal was allowed on the ground that the Tribunal did not properly evaluate the oral and documentary evidence before it. A retrial of the petition was ordered to be conducted by another Tribunal strictly on the pleadings already existing on the record. As a result of the decision of this Court, another Tribunal was set up to hear the petition. Relying on the case of ANPP v. Goni (2012) 7 NWLR (pt.1298) 147, the new Tribunal declined jurisdiction and struck out the petition on the ground that the one hundred and eighty (180) days within which its judgment should be delivered from the date of filing the petition as provided for; by section 285(6) of the 1999 Constitution of the Federal Republic of Nigeria had since expired. Once again, the Appellants were unhappy with the decision. Being aggrieved, they appealed to this Court. Parties were heard, and in a reserved and well considered judgment, this court set aside its earlier decision in which it ordered a retrial. In its place the judgment of the Tribunal delivered on the 12th, day of October 2011 in which election in Balogun Alanamu and Oloje Wards was nullified was restored. The 3rd Respondent was therefore ordered to conduct election in the two Wards.
Consequent upon the order of this Court as reproduced above, the 3rd Respondent conducted elections in the two Wards at the end of which the 1st Respondent was again declared winner of the election when the votes from the two wards were added to the votes from five wards where fresh elections were not ordered. The Appellants filed a petition before the Tribunal in which they challenged the result of the election. In doing so, the petition covered allegations of malpractices and noncompliance or irregularities in all the seven Wards that make up the Ilorin North/West constituency. The Respondents filed a reply to the petition and further issued a notice of preliminary objection to the competence of the petition or in the alternative strike out paragraphs 1 – 23, 33 and 36 of the petition which deal with allegations of malpractices, noncompliance and irregularities in the five Wards where fresh elections did not take place. These Wards are Adewole, Ajikobi, Ogidi, Ojuekun/Zaruni and Ubandawaki., The Appellants filed a counter affidavit. The Tribunal heard the preliminary objection and in a reserved, and considered ruling, it upheld the objection and struck out grounds 1 – 23, 33 and 36 of the petition as they relate to the holding of Election conducted on 26th April 2011 in the five Wards on the ground that the Tribunal’s mandate is restricted to the two Wards of Balogun Alanamu and Oloje only where fresh election was conducted on the 30th of June 2012. It is against this ruling that the Appellants have again appealed to this Court.

HELD

Appeal Dismissed

ISSUES

Whether the learned Judges of the Tribunal were right when they struck out grounds 1 – 23, 33 and 36 of the grounds of the petition that touched on the five wards where fresh elections were not held, on the ground that those grounds do not fall within the Tribunal’s mandate.

RATIONES DECIDENDI

ABUSE OF COURT PROCESS -A COURT SEIZED OF A MATTER HAS THE POWER TO PREVENT AN ABUSE OF COURT PROCESS WHERE IT IS ABOUT TO BE OCCASIONED

The first Election Petition Tribunal in its judgment after taking all the necessary evidence “upheld the elections in five Wards and ordered for a fresh election in two Wards. This decision was upheld by the Court of Appeal. It follows therefore that the complaint in respect of the elections in the five wards has been satisfactorily resolved. To bring such petition again for adjudication will definitely amount to an abuse of Court process as alluded to by the learned Counsel for the 1st and 2nd Respondents. see African Recorp v. JOP Const.(Nig) Ltd. (2003) 13 NWLR (Pt.838) 6092 Opekun v. Sadiq (2003) 5 NWLR (Pt.814) 237 where an abuse of court process is about to be occasioned, the Court seized of the matter has the power to prevent it. See Fasakin Foods (Nig) Co. Ltd,. v. Shosanga (2003) 17 NWLR (Pt.849) 237. –

CASES CITED

Not Available

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Electoral Act 2010 (as amended)|

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