Mr. Olaniyan Waheed Olaniyi V. Mr. Salam Fatai Adetunji & Ors (2008)

LawGlobal-Hub Lead Judgment Report

M.D. MUHAMMAD, J.C.A.

The House of Assembly Election in Oyo State was held on 14th day or April 2007. The Appellant and 1st Respondent herein along with other candidates contested the Iseyin/Itesiwaju seat in the said election. Whereas the Appellant was sponsored by the Peoples Democratic Party, the 1st Respondent contested on the platform of the Action Congress. Candidates other than these two also vied for the same seat on different political platforms. Appellant was declared and returned the successful candidate in the election by the 2nd Respondent. 1st Respondent challenged Appellant’s election and return at the Election Petition Tribunal silting at Ibadan. Paragraph 32 of the Petition outlined the following grounds:-

“32 (a) The Election of the 1st Respondent was invalid by reason of corrupt practices, violence or non-compliance with the provisions of the Electoral Act 2006.

(b) The 1st Respondent was not duly elected by majority of lawful votes cast at the election of 14/4/07

(c) The 1st Respondent was not qualified or disqualified from contesting the election of 14/4/07.

At the pre-trial conference held by the election petition tribunal on 13-6-07, and all parties thereto were in attendance, grounds 1 and 2 of the Petition were merged and a single issue was agreed upon for the purpose of determining 1st Respondent’s petition. The issue centred on the absence of the results in respect of units 11 and 13 of Ward 7 of the Iseyin/Itesiwaju House of Assembly seat contested by the Appellant, 1st Respondent as well as other candidates on different political, platforms. The 3rd ground in the Petition that had to do with the qualification of the Appellant to contest the election having been abandoned did not abide the Petition.

The Petition proceeded to full trial on the basis of the single issue agreed upon by the parties. In the Tribunal’s considered judgment, 1st Respondent’s petition was upheld and Appellant’s declaration and return nullified. Being dissatisfied, the Appellant who was the 1st Respondent at the tribunal has appealed against the decision on notice dated 6/7/07 containing four grounds.

At the hearing of the Appeal on 21/11/07 even though all parties to the Appeal had been served with hearing notices against that date, none was physically present. The Appellant and 1st Respondent, the only two who had filed their briefs of argument were however represented by Counsel. The others had neither filed their briefs of argument nor were they represented by Counsel. The Appeal was heard without these others.

Learned Counsel for the Appellant and the 1st Respondent adopted their respective briefs which include Appellant’s reply brief. The briefs had been duly filed and exchanged. Appellant’s brief and the reply brief were filed on 22/8/07 and 6/9/07 respectively. 1st Respondent’s brief, on the other hand, was filed on 31- 8-07.

The lone issue identified in the Appellant’s brief as having arisen for the determination of the appeal reads:-

“1 Whether the tribunal rightly nullified the election of the Appellant when he was never found-responsible for violence more so that the election was conducted in substantial compliance with the provisions of the Electoral Act 2006”.

The lone issue is distilled from grounds 1, 2, and 3 in the Appellant’s Notice. Appellant’s 4th ground of Appeal that has been abandoned is hereby struck out. 1st Respondent’s single issue reads:-

“Whether or not absence of Result in Units 11 and 13 of Ward 7 of Iseyin Local Government Constituted substantial non compliance thereby leading to nullification of election and return of the Appellant in the House of Assembly Election of 14th April 2007”.

Following a notice of preliminary objection filed by the 1st Respondent pursuant to Order 3 Rule 15 or the old Rules of this Court, (now Order 10 Rule 1 of the 2007 Court of Appeal Rules) learned Counsel to the 1st Respondent moved and urged the court to strike out the appeal. He contended that grounds 1 and 2 as well as the sole issue formulated by the Appellant for the determination of the appeal is incompetent. The two grounds of appeal have offended Order 3 Rules (2) and 4 of the 2002 rules (now Order 6 Rules 2 and 3 of the 2007 Rules). The grounds are vague and do not arise from the decision being appealed against. The grounds have neither attacked any specific findings of the tribunal nor made reference to any specific error and/or misdirection in the tribunal’s judgment that has occasioned any miscarriage of justice. Learned Counsel has urged that the incompetent grounds be struck out. He relied on Robert Ikweki & 2 Ors Vs. James Ebele & 1 Ors (2005) vol. 15 WRN 42 at 49, Mercantile Bank of Nigeria Plc & 1 Or Vs. Nwobodo (2005) Vol. 40 WRN 1 at 8-13; Kabiru Vs. Ibrahim (2005) 5 WRN 151 al 161 and Kadzi International Ltd. Vs. Kano Tannery Co. Ltd. (2004) 12 WRN 131 at 135 to support his submission.