REQUIREMENT OF THE LAW WHERE THERE IS AN ALLEGATION OF CORRUPT PRACTICES AND SUBSTANTIAL NON–COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT 2010 IN AN ELECTION

CASE TITLE: OGEDEGBE & ANOR v. OPUORU & ORS (2019) LPELR-48776(CA)

JUDGMENT DATE: 4TH NOVEMBER, 2019

PRACTICE AREA: ELECTION PETITION

LEAD JUDGE: BIOBELE ABRAHAM GEORGEWILL, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on election petition.

FACTS

This is an appeal against the decision of the National and State Houses of Assembly Election Tribunal, Asaba, Delta State.

On 9 March 2019, the 1st Appellant contested the election, conducted by the 3rd Respondent, into the Delta State House of Assembly for Warri South State Constituency 2, on the platform of the 2nd Appellant. The 1st Respondent was the candidate of the 2nd Respondent at the election. At the conclusion of the polls, the 3rd Respondent declared and returned the 1st Respondent as the winner of the election, with a majority of the lawful votes cast at the election. The 1st Respondent was subsequently issued with a certificate of return by the 3rd Respondent. The Appellants were aggrieved with the conduct of the election and the declaration and return of the 1st Respondent as the winner. They approached the Tribunal, challenging the validity of the said election.

​It was the case of the Appellants that the issue of the structure, number and composition of the wards in Warri South State Constituency 2 was submitted as a pre-election matter to the regular Courts for hearing and determination prior to the questioned election, and which issue was resolved with finality against the 3rd Respondent. Consequently, the 12 Wards Structure created by the 3rd Respondent was declared illegal, null, void and of no effect whatsoever. The 3rd Respondent declared on oath to the assurances of the Appellants that it has begun obeying the said judgment, but surprisingly it proceeded to conduct the questioned election on the nullified 12 wards structure, rather than reverting to the lawful 10 wards structure of the Warri South Local Government. Appellants, therefore, contended that the election conducted by the 3rd Respondent was in contempt of the judgment of the Federal High Court. They also contended that the questioned election was conducted by the 3rd Respondent under inducement and without compliance with the spirit and intent of the Electoral Act and was also marred by assorted forms of irregularities, leading to the illegal return of the 1st Respondent as the winner of the illegal election conducted by the 3rd Respondent.

On the other hand, the Respondents, though they each filed their Reply to the Petition, did not call any witness, and thereby rested their case on the case of the Appellants. The 1st and 2nd Respondents challenged the competence of the Appellants’ Petition on the ground that it was not founded on any grounds as allowed by the Electoral Act 2010 (as amended) for questioning an election. On its part, the 3rd Respondent filed a notice of preliminary objection, challenging the competence of the Appellants’ Petition on the ground that it does not disclose any real ground of challenge to the validity of the Election and further that the acts complained of occurred since 1998 prior to the conduct of the Election in 2019.

The Tribunal upheld the preliminary objections of the respondents and struck out the appellants’ petition. On the merit, the Tribunal held that the Appellants failed to prove their allegations as required by law and accordingly dismissed the Appellants’ Petition for lacking in merit.

Dissatisfied, appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on the following issues:
“1. Whether considering the circumstances of this case, it is not one for which it is appropriate to invoke the well-established principle of precluding persons in disobedience of the orders of Court against them from being heard in respect of the matters which they stand in disobedience of?

2. Whether the issue of ward delineation falls under the scope of pre-election matters that may be decided by the Lower Tribunal?
3. Whether the appellants proved that the election is invalid by reason of corrupt practices or substantial non-compliance with the Electoral Act?”

DECISION/HELD

In conclusion, the Court dismissed the appeal.

RATIOS:

• CONSTITUTIONAL LAW- RIGHT TO FAIR HEARING: What the concept of fair hearing entails; effect of a breach of the right to fair hearing
• CONSTITUTIONAL LAW- RIGHT TO FAIR HEARING: Instance(s) in which an alleged contemnor will be accorded right to fair hearing
• ELECTION PETITION- TIME FRAME: Effect of failure to file a brief of argument within the prescribed period in an election petition
• ELECTION PETITION- GROUNDS FOR CHALLENGING AN ELECTION: Whether a petition must be based on the grounds contained in Section 138(1)(a)-(d) of the Electoral Act, 2010 (as amended); effect of failure

ELECTION PETITION- GROUNDS FOR CHALLENGING AN ELECTION: Whether the issue of delineation of wards falls within the ambit of Section 138(1) of the Electoral Act 2010 (as amended) and amounts to a pre-election matter that can be included in an election petition