IN THE COURT OF APPEAL OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
ON FRIDAY, THE 2ND DAY OF OCTOBER, 2020.
BEFORE THEIR LORDSHIPS:
ADZIRA GANA MSHELIA JUSTICE, COURT OF APPEAL
OBANDE FESTUS OGBUINYA JUSTICE, COURT OF APPEAL
PETER OLABISI IGE JUSTICE, COURT OF APPEAL
JAMILU Y. TUKUR JUSTICE, COURT OF APPEAL
FOLASADE AYODEJI OJO JUSTICE, COURT OF APPEAL
APPEAL NO: CA/ABJ/EPT/GOV/703/2020
DOUYE DIRI ::: APPELLANT
A N D
COMMISSION (INEC) :: RESPONDENTS
[DELIVERED BY OBANDE FESTUS OGBUINYA, JCA]
This appeal interrogates the majority decision of the Bayelsa State Governorship Election Tribunal, holden at Abuja, (hereinafter addressed as “the tribunal”), coram judice: Yunusa Musa, J. (Member) and S.M. Owodunmi, J. (Member) in Petition No: EPT/BY/GOV./03/2020, delivered on 17th August, 2020. The Chairman of the Tribunal, Mohammad I. Sirajo, J., dissented in a minority judgment. Before the tribunal, the appellant, the second and third respondents were the third, first and second respondents respectively, while the first respondent was the petitioner.
The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The second respondent, the Independent National Electoral Commission (INEC for short), is a body constitutionally charged with the burden responsibility to organise elections in Nigeria. In discharge of that onerous duty, INEC conducted election to the office of the Governor of Bayelsa State on 16th November, 2019. Prior to that, it issued Regulations and Guidelines for the conduct of the election. Several registered political parties (44 in number) partook in the election. The appellant was the flag bearer of the third respondent, the Peoples Democratic Party (PDP) – a registered political party in Nigeria. The first respondent, another registered political party, had Lucky King-George and Mr. David Peter Esikuma and Miss Inowei Janet as its nominated candidates for the positions of Governor and Deputy Governor respectively. Lyon David Pereworimini and Biobarakuma Degi-Eremienyo were the standard bearers of the All Progressives Congress (APC) – a duly registered political party in Nigeria. The first respondent alleged that the second respondent unlawfully excluded it and its candidates from participating in the election. After the polls, the second respondent declared and returned Lyon David Pereworimini of APC as the winner of the election on 17th November, 2019. The first respondent and its candidates, on 5th December, 2019, filed a petition, Petition No: EPT/BY/GOV/02/2019, against the election on grounds of unlawful exclusion from its conduct. At the behest of those petitioners, that petition was dismissed on 21st January, 2020. The third respondent and the appellant challenged the declaration and return made by INEC in the tribunal. The petition meandered from the tribunal via the Court of Appeal to the Supreme Court. On 13th February, 2020, the Supreme Court, in Appeal No: SC1/2020, disqualified the candidates of APC and nullified the declaration/return of the 17th November, 2019 and ordered the second respondent to declare the candidate with the highest number of votes in that election of 16th November, 2019. In due obedience to that decision, the second respondent declared the appellant as the winner of the election on 14th February, 2020. Sequel to the return, the first respondent, with its three candidates whose names were later struck out on their application, beseeched the tribunal, via a petition filed on 26th February, 2020, and tabled against the appellant, the second and third respondents the following reliefs:
(i) That the election be nullified inn that the election was invalid by reason of the unlawful exclusion of the 1st Petitioner and its candidate in breach of Section 138(1)(d) of the Electoral Act, 2010 (as amended).
(ii) That the declaration and return of the 3rd Respondent as winner of the 2019 Bayelsa State Governorship Election be nullified.
(iii) That INEC be ordered to conduct fresh election throughout Bayelsa State, also that INEC be ordered to include the name and logo of the 1st Petitioner together with the names of 2nd and 3rd Petitioners as its candidates in the said fresh election.
(iv) That INEC be ordered to recognize the 2nd and 3rd Petitioners as the 1st Petitioners Governorship and Deputy Governorship for the said fresh election.
OR IN THE ALTERNATIVE:
In reaction, the appellant, the second and third respondents separately joined issue with the first respondent and denied liability by filing their respective replies to the petition. They also challenged the petition by dint of preliminary objections.
Following the rival claims, the tribunal had a full-scale determination of the preliminary objections and the petition. In proof of it, the first respondent fielded two witnesses, PW1 and PW2, and tendered tons of documentary evidence: exhibits P1 – P29. In disproof of it, the respondents called no witness but tendered, from the bar, exhibits R2 – R4. At the closure of evidence, the parties, through counsel, addressed the tribunal in manner required by law. In a considered majority judgment, incorporating the preliminary objections, delivered on 17th August, 2020, found at pages 930 – 988, volume 2, of the record, the tribunal granted the petition.
The appellant was aggrieved by the decision. Hence, on 24th August, 2020, the appellant lodged a 35-ground notice of appeal, copied at pages 1076 – 1114, volume 2, of the record, wherein he prayed this court:
(1) To allow this appeal, set aside the entire majority decision of the Tribunal (per Hon. Justice Yunusa Musa and Hon. Justice S.M. Owodunni) appealed against and to dismiss the 1st Respondent’s Petition in its entirety.
(2) To uphold the minority judgment of the Chairman of the Bayelsa State Governorship Election Petition Tribunal, Hon. Justice Muahmmad I. Sirajo, which clearly appreciated the law and correctly applied same to the facts, and rightly dismissed the Petition.
Thereafter, the parties, through counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of election petition appeals in this court. The appeal was heard on 24th September, 2020.
The first respondent’s application:
By a motion on notice, dated and filed on 6th September, 2020, the first respondent prayed this court as follows:
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