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R-Adeyemi v. Akande

  1. HON. MUHIBAT RUFAI-ADEYEMI
  2. ALL PROGRESSIVES CONGRESS (APC)

V

  1. VICTOR OLUSEGUN AKANDE
  2. INDEPENDENT NATIONAL ELECTORAL COMMISSION ( INEC )

COURT OF APPEAL

( LAGOS DIVISION )

SAMUEL CHUKWUDUMEBI OSEJI JCA ( Presided )

A. O. OBASEKI-ADEJUMO JCA ( Read the Lead Judgment )

JAMILU YAMMAMA TUKUR JCA

CA/L/EP/HA/1102/2015

MONDAY, 7 DECEMBER 2015

APPEAL - Election petition - Order of retrial - Whether may be made therein on grounds of breach of party’s right to fair hearing - Section 285(6) of the 1999 Constitution of the Federal Republic of Nigeria considered

APPEAL - Record of appeal - Bindingness of Court of Appeal by

ELECTION PETITION - Election - Grounds on which may be challenged - Section 138 of the Electoral Act, 2010 considered

ELECTION PETITION - Non-compliance with electoral provisions - Petitioner who alleges - What must prove to succeed

ELECTION PETITION - Order of retrial - whether may be made therein on grounds of breach of party’s right to fair hearing - Section 285(6) of the 1999 Constitution of the Federal Republic of Nigeria considered

ELECTION PETITION - Respondent’s reply of - Statutorily prescribed time within which to file - Need for compliance with - Rationale for - Electoral Act, 2010 paragraph 12(1) considered

EVIDENCE - Official acts - Presumption of correctness of Whether absolute

EVIDENCE - Burden of proof - Onus on  he who asserts to prove -  When shifts - Evidence Act, sections 131 and 132 considered

INTERPRETATION OF STATUTES - “Shall” in statutory provisions - What connotes

INTERPRETATION OF STATUTES - Document - Construction of - Proper approach of court to

INTERPRETATION OF STATUTES - Statute - Interpretation of -  Proper approach of court to

STATUTE - Constitution of the Federal Republic of Nigeria, 1999  section 285(6) - Election petition - Order of retrial -  Whether may be made therein on grounds of breach of party’s right to fair hearing

STATUTE - Electoral Act - Provisions of - Nature of - Noncompliance with - Effect

STATUTE - Electoral Act, 2010 paragraph 12(1) - Election petition - Respondent - Reply of - Statutorily prescribed time within which to file - Compliance with - Need for Rationale for

STATUTE - Electoral Act, 2010 section 138 - Election - Grounds on which may be challenged

WORDS AND PHRASES - ‘Reschedule’ - Meaning of

WORDS AND PHRASES - ‘Revised’ - Meaning of

WORDS AND PHRASES - “Shall” in statutory provisions -

What connotes

Issues:

  1. Whether the tribunal was right in holding that the petitioner’s right to challenge the competency of the 1st respondent’s reply filed on 17 June 2015 has lapsed when it was clear from the record (page 87) that the 1st respondent was served with the petition on 27 May 2015.
  2. Whether in the circumstances of this case and the evidence before the tribunal, the tribunal was right in holding that the appellants have not proved and established by cogent and substantial evidence as required by law, the allegations of corrupt practices and non-compliance with the provision of the Electoral Act, 2010 (as amended) and that such noncompliance did not substantially affect the result of the election of 11 April 2015 to the Lagos State House of Assembly for Ojo Constituency 1.

Facts:

The 1st appellant who contested the Lagos State House of Assembly election for Ojo Constituency 1 and the party that fielded her were not satisfied with the declaration and return of 1 st respondent as the winner of the election. They therefore filed a petition at the National and State House of Assembly Election Tribunal, sitting in Lagos State seeking declaratory reliefs to the effect that the election was void by reasons of substantial non-compliance and electoral malpractices, the 1st respondent was not duly elected by majority of lawful votes cast, the 1st appellant having secured majority of the lawful votes cast be declared winner of the election. In the alternative, the election be nullified and order for fresh elections. The tribunal dismissed the petition and dissatisfied, the appellants appealed to the Court of Appeal contending that the tribunal erred by holding that they failed to discharge the burden on them and therefore dismissed their petition. The 1st respondent filed a cross-appeal.

In determining the appeal, the Court of Appeal considered the following statutes:

First Schedule to the Electoral Act, 2010 (as amended) paragraph 12(1)

  1. The respondent shall, within fourteen days of service of the petition on him, file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies on in opposition to the election.”

First Schedule of the Electoral Act, 2010 (as amended) paragraph 10(2)

  1. The non-filing of a memorandum of appearance shall, not bar the respondent from defending the election petition if the respondent files his reply to the election petition in the Registry within a reasonable time, but, in any case, not later than twenty-one (21) days from the receipt of the election petition.”

First Schedule of the Electoral Act, 2010 (as amended) paragraph 12(5)

“(5) A respondent who has an objection to the hearing of the petition shall file his reply and state the objection therein, and the objection shall be heard along with the substantive petition”

Electoral Act, section 139(1)

“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the election tribunal or court that the election was conducted substantially in accordance with principles of the Act and that the non-compliance did not affect substantially the result of the election.”

Electoral Act, section 85

“(1) Every registered political party shall give the commission at least 21 days’ notice of any convention, congress, conference or meeting convened for the purpose of electing members of its executive committees, other governing bodies or nominating candidates for the electives office specified under this Act.

  1. The commission may with or without prior notice to the political party attend and observe any convention, congress, conference or meeting which is convened by a political party for the purpose of:
    1. electing members of its executive committees or other governing bodies;
    2. nominating candidates for an election at any level and
    3. approving a merger with any other registered political party
  2. The election of members of the executive committee

or other governing body of a political party, including the election to fill a vacant position in any of the aforesaid bodies, shall be conducted in a democratic manner allowing for all members of the party or duly elected delegates to vote in support of a candidate of their choice.

  1. Notice of congress, conference or meeting for the purpose of nominating candidates for area council elections be given to the Commission at least 21 days before such congress, conference or meeting.”