John L. Ojedokun V. Fatokun S. Adebayo & Ors (2008)

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ISTIFANUS THOMAS, J.C.A.

This is an election petition appeal, against the Lower Tribunal, in which it nullified the election of the present appellant. The decision appealed was delivered on 03-10-07.

The brief facts of the petition is that the present appellant but 1st Respondent at the Lower Tribunal was a candidate of Action Congress(AC) and was elected into the Oyo State House of Assembly to represent Iwajowa Constituency in the general election conducted on 14-04-2007.

The 1st and 2nd petitioners who are now the 1st and 2nd respondents, filed on 11-05-2007,their petition challenging the election of the now appellant who was declared by the present 3rd respondent, INEC, that appellant was the winner.

The sole ground canvassed at the Lower Tribunal, was that, the 1st Petitioner 1st respondent, was validly nominated but was unlawfully excluded from the election. His further position was that he was dully sponsored by his party – (Labour Party) 2nd petitioner now 2nd respondent for the election but was also unlawfully excluded by the 3rd respondent, namely INEC. In proof of his valid nomination, the 1st petitioner/1st respondent produced and tendered at the Lower Tribunal, INEC FORM C F001 which were dully admitted and marked Exhibit PE 3, FORM ECB 4 (iii) admitted as Exhibit PE4 and INEC list of candidates for Iwajowa Constituency admitted as Exhibit PE6.

At the Lower Tribunal, the main defence of the 1st respondent now appellant, was that, the 1st petitioner was not validly nominated by his party (Labour) to contest the House of Assembly election and that therefore he could not complain of unlawful election. In calling oral evidence to support their respective positions the 1st petitioner/1st respondent testified as PW1, while the 1st respondent/appellant testified and called (3) three other witnesses in his defence. The 3rd respondent INEC, called one (1) witness. (underlined are mine for emphasis).

As earlier pointed out, in its considered judgment, the Lower Tribunal delivered its decision nullifying the election of the present appellant and made an order that the INEC should conduct a fresh election into Iwajowa House of Assembly Election.

Dissatisfied with the trial Tribunal, the appellant filed his Notice of Appeal on 24-10-2007 containing 12 grounds of appeal. Distilled from the numerous grounds of appeal, learned counsel for the appellant, has formulated three (3) issues for determination. When the appeal was heard on 24-04-08, all learned counsel adopted and relied on their respective briefs which were all dully filed and served within time.

Appellant’s issues for determination are as follows:

i. Whether the Honourable Tribunal has jurisdiction to grant the reliefs contained in the petition in view of the lack of Locus Standi of the 1st petitioner/respondent to institute an election petition under section 145 (i) (d) of the Electoral Act, 2006.

ii Whether in view of the evidence and pleadings in this case, the 2nd petitioner/respondent discharged the burden of proof that the 1st petitioner/respondents was validly nominated but was unlawfully excluded from the 14th day of April, 2007 election into the House of Assembly for Iwajowa Constituency of Oyo State.

iii Whether the Honourable Tribunal was right in its holding that the defence of the 1st respondent/appellant that the nomination of the 1st petitioner/respondent was not validly nominated to justify a complaint of unlawful exclusion are pre-electoral matters which can not be a subject of litigation before the tribunal.

In their brief of argument, 1st and 2nd respondents have raised two issues for determination and read as follows:

1. Whether the petitioners possess the requisite Locus Standi to present this petition?
2. Whether the Tribunal was right in holding that the 1st petitioner(the 1st respondent herein) was validly nominated but was unlawfully excluded from the election in view of the pleading and evidence of the petitioner and that of the 2nd respondent (now 3rd respondent) and whether the complaints of the appellant was justifiable?

The 3rd respondent (INEC) has formulated two (2) issues for determination of this appeal, and read as follows:-