Hon. Taye Adenowo Oyefolu V. Hon. Abayomi Sadiq & Ors (2008)

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ADZIRA GANA MSHELIA, J.C.A.

On the 14th day of April, 2007 elections were held throughout Nigeria into the House of Assembly Seats of the 36 States of the Federation. 9 candidates representing various Political Parties contested the House of Assembly sit in Lagos State for Ojo Constituency II. 2nd Respondent, Independent National Electoral Commission has the statutory responsibility for the conduct of the election. At the end of the election, the 1st Respondent, Hon. Abayomi Sadiq who was sponsored by the Action Congress was declared the winner with 7,618 votes. The appellant who contested the election on the platform of the Peoples Democratic Party (PDP) came second with 7,609 votes. The election result was declared on 14th day of April, 2007. The appellant was not satisfied with the result declared by the 2nd Respondent. He presented a Petition dated 14th day of April, 2007 before the National Assembly/Governorship and Legislative Houses Election Tribunal holden at Lagos.

The Petitioner’s ground for petition as stated in paragraph 4 of his election petition, dated 14th April, 2007 read as follows:-

“GROUNDS FOR THE PETITION

(i) The first Respondent was not duly elected by the majority of valid or lawful votes cast at the election.

(ii) That the purported election and return of the 1st Respondent as the member of the House of Assembly, Ojo Constituency II, of Lagos State is illegal, null and void on the ground of corrupt and fraudulent practices in certain polling stations within the constituency II of Ojo Local State Constituency, Lagos State.”

The relief sought by the petitioner in paragraph 21 of the petition also read as follows:-

“WHEREFORE your petitioner prays that the petitioner be declared validly elected, the petitioner having scored the highest number of valid votes cast at the election and satisfied the requirements of the 1999 constitution and the Electoral Act, 2006.”

The first respondent, on the service of the petition on him, by substituted means, filed a reply on the 28th June, 2007 (see page 93 to 103 of the record) and denied the allegation of facts contained in the petition, Similarly, in response to the petition the 2nd – 10th Respondents filed their joint reply dated 15th June, 2007 and filed on the 18th day of June, 2007 (see pages 75- 77 of the record) and denied some of the allegation of facts contained in the petition.

Upon the Report of the Pre-Hearing session and the formulation of issues by both parties, the petition was accordingly set down for full trial on the 2nd day of August, 2007. During the trial, the petitioner testified in support of the petition and called three witnesses. While the 1st Respondent testified on his own behalf but did not call any other witness. The 2nd – 10th respondents also called one witness. The tribunal, after taking addresses from the respective counsel, in a reserved and considered judgment, dismissed the petition. The Tribunal on page 269 of the record had this to say:-

“In the circumstances we find that the allegation of over-voting in ward J. code 10, unit 004, Idoluwo polling station is not established by cogent and credible evidence. We further find that the scores to the Results in the four polling stations challenged by the Petitioner were not marred with fraud, fundamental irregularities and corrupt practices as contended. The Election to the House of Assembly for Ojo Constituency II, held in Ojo Local government Area of Lagos State on 14th day of April, 2007 and the results emanating with the Electoral Act, 2006. The Petition therefore lacks merit and is hereby dismissed.”

The petitioner appealed to this court on a notice of appeal dated 25th October, 2007 and filed on 26/10/07 containing three grounds of appeal including the omnibus ground.

Briefs of argument were filed and exchanged at the appellant’s brief, first respondent’s brief as well as second – tenth respondents brief of argument which was deemed filed on 9/01/08.

At the hearing of the appeal, briefs of arguments were adopted and relied upon by all counsel, Appellant formulated two issues for the determination of this appeal as follows:-