Joseph Olujimi Kolawole Agbaje V. Babatunde Raji Fashola (San) & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

ADAMU, J.C.A.

The appellant, as a petitioner, filed a petition at the Governorship and Legislative Houses Election Tribunal of Lagos State challenging the election or declaration and return of the 1st respondent by the 2nd, 3rd and 4th respondents as the winner of the election and as the elected Governor of Lagos State in the nationwide general election held on 14th day of April, 2007. The appellant was nominated as the governorship candidate under the platform of Democratic People Alliance (DPA) while the 1st respondent ran under the platform of Action Congress (AC) in the said election. There were also about 20 other candidates for the same office who were sponsored or nominated by various other political parties and who contested in the election. Upon the declaration of the 1st respondent as the winner of the election, the appellant as one of the candidates who lost, was aggrieved by the result and he filed his petition complaining that the said election held in Lagos State on 14/4/07 was invalid by reason of non-compliance with the provision of the Electoral Act, 2006, the Constitution of the Federal Republic of Nigeria and the Common Law on election. The main grounds of his complaint in the petition was that after he had submitted 4 (four) copies of his photographs to be embossed in the ballot paper as prescribed by the 4th respondent, they were not so embossed by the said 4th respondent. Rather, the 4th respondent printed only the photographs of the 1st respondent and other candidates on the said ballot papers, and thereby discriminated against the appellant who was then denied a fair level playing ground and the opportunity afforded to the 1st respondent and other candidates whose photographs were printed on the ballot papers at or during the election. The appellant also complained against the inflation or deflation of votes or figures by the 4th respondent rendering the said election as badly conducted or not in accordance with the dictates of the law or principles of the Electoral Act (supra). Consequently, the appellant urged the tribunal to declare the Governorship Election of 14/4/07 held in Lagos State as invalid and void, to set aside or nullify it and order a new Governorship election to be conducted in the State in accordance with the law and principle of the Electoral Act, 2006.

On the above petition and grounds, the parties filed their respective replies and process. The 1st respondent filed his separate reply while the 2nd – 4th respondents filed their joint reply. A pre-hearing proceeding was conducted in accordance with the practice direction of the tribunal. The appellant gave evidence for himself and tendered several documentary exhibits. The 1st respondent and the 2nd – 4th respondents on the other hand, did not call any witness but relied on the evidence of the appellant. At the conclusion of hearing, the tribunal directed the parties to file their written addresses, which they duly filed. In its considered judgment delivered on 24/7/07, the tribunal found that the non-inclusion of the appellant’s photograph on the ballot papers even if establish is a mere noncompliance with the directive of the 4th respondent and was not enough to void an election or has not affected the result of the said election which was otherwise conducted in substantial compliance with the provisions of the Electoral Act, 2006. Consequently, the tribunal dismissed the appellant’s petition.

Being aggrieved by the decision of the tribunal, the appellant is now appealing against it in this court as the final appellate court on gubernatorial and Legislative Houses Elections. Nineteen (19) ground of appeal were filed by the said appellant whose learned counsel (in his brief) sought for leave to withdraw grounds 1, 2, 7, 9 and 17 leaving only six (6) grounds as remaining or surviving for the hearing of the appeal (see page 6 paragraph 3 of the brief). In line with the Rules of this court, the parties have respectively filed their briefs of arguments. The appellant’s amended brief of arguments is dated and filed on 8/10/07 but deemed duly filed and served on 17/10/07. On his own part, the 1st respondent also filed an amended brief dated 8/1/07 and file (out of time) on 21/11/07. It was however, deemed properly filed in this court on 8/1/08 before the appeal was heard. The 2nd- 4th respondents’ brief is the only brief in the appeal, which did not suffer the fate of an amendment. It is dated and filed on 15/11/07 but also deemed on 8/1/08. Although the 1st respondent had filed a notice of preliminary objected dated and filed on 10/9/07 in which the competence of grounds 1 and 2 of the appeal and the issues formulated therefrom is attacked, the learned senior counsel for the said 1st respondent Chief Olanipekun, SAN, did not say anything about the preliminary objection during the hearing of the appeal. Thus as the learned counsel did not formally seek the leave of this court to move the objection before the appeal was heard, he has or is deemed to have thereby abandoned his notice of preliminary objection – See Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Oforkire v. Maduike (2003) 16 WRN 1; (2003) 5 NWLR (Pt. 812) 166. It may be observed in passing that the reason for the abandonment is probably because the attack in the objection is directed against the competence of grounds 1 and 2 (dealing with the interlocutory appeal) which as I stated above, are among the grounds abandoned by the appellant. In the amended appellant’s brief of arguments, the following 6 (six) issues for determination are formulated:-

“(1) Whether the petitioner/appellant proved that he submitted his passport photographs for embossment on the ballot for the Governorship Election in Lagos State – Grounds 8, 10 and 19.

(2) After the 4th respondent had exercised the power vested in it under section 45 of the Electoral Act by prescribing that the passport photograph of the candidates for the Governorship Election in Lagos State be embossed on the ballot whether it was mandatory on the 4th respondent to emboss the passport photographs of the petitioner on the ballot.”

Subsidiary Issue:

(a) Whether non-compliance with the format prescribed under section 45 with regard to the embossment of the photographs of the appellant could be a ground for petition.

This issue and its subsidiary arise from grounds 3, 4, 5, 6 and 11.

(3) Whether the inclusion of the party symbol of the appellant only on the ballot amounted to a substantial compliance with the provision of section 45 of the Electoral Act – Ground 12.

(4) Whether the onus was on the appellant to prove that the non-compliance affected the result of the Election Grounds 14, 15, and 18.

(5) Whether the petitioner/appellant discharged the onus of proof of falsification of result to show that the election was badly conducted and not in compliance with the Electoral Act – Grounds 16 and 19.

(6) Whether on the complaint before the tribunal, the comparison of the votes cast for the 1st respondent vis-a-vis the vote of all the other candidates was an issue in an allegation of non-compliance with the provisions of section 45 of the Electoral Act – Ground 15.”

In the 1st respondent’s amended brief even though only 3 issues are formulated, the said issues are substantially similar to and have adequately covered those of the appellant and it can be safely said that the two briefs are in agreement as to the issues arising for the determination of the appeal. The 1st respondents 3 (three) issues (in capital form) are as follows: