Foluso Ojo & Anor. V. Micheal Ayodele & Ors. (2009)

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HON. JUSTICE SOTONYE DENTON-WEST, J.C.A.

This is an appeal from the Judgment of the Governorship and Legislative Houses Election Petition Tribunal sitting at Ado-Ekiti delivered on the 14th April, 2007. The House of Assembly Election was conducted by the 3rd to the 11th Respondents for Oye Constituency 1 of Ekiti State. The Tribunal on the 30th day of July, 2008 delivered its judgment in favour of the Respondent. The case of the Appellant is that, on the 14th of April, 2007, elections were held in Ekiti State into the Ekiti State House of Assembly. At the said election, the 1st Appellant and the 1st Respondent were candidates of the Action Congress and the Peoples Democratic Party respectively. At the conclusion of the election, the 2nd Respondent was declared the winner with 17,145 votes while the 1st Appellant scored 4,447 votes. The Appellants dissatisfied with the judgment of the Election Tribunal filed this appeal and raised six issues for determination namely:

1. Whether the Tribunal was right to have struck out the issues formulated by the parties for their departure from that earlier agreed to by the parties in the pre-trial proceedings.
2. Whether the failure of the Tribunal to carry out a comprehensive review of the evidence of the Appellants and their witness including documentary evidence occasioned a miscarriage of justice;
3. Whether the Tribunal was right to have discountenanced the evidence of Appellants’ witness as having not proferred in respect of any polling unit and as being at large;
4. Whether the Tribunal was right to have explained off a manifest irregularity as being a mistake when there was no evidence of mistake before it;
5. Whether the Tribunal was right in its refusal to ascribe probative value to Exhibit P3 which is the overall report rendered on the disputed election.
6. Whether the Tribunal was right to have held that Appellants did not show how non-compliance with the provisions of Electoral Act 2006 affected the election of the 1st Appellant and dismissed the petition.”

On his part, the Respondents identified two issues for determination namely:

“1. Whether the Tribunal was correct when in its Judgment it preferred to adopt the issues earlier agreed upon by the parties during the pre-hearing session and whether the said decision occasioned any miscarriage of justice to the Appellant.

2. Whether the Tribunal properly evaluated the oral and documentary evidence placed before it by the Appellants in arriving at its decision dismissing the petition?

Brief of arguments were filed and exchanged. The 1st Appellant’s brief was deemed properly filed and served on the 6th October, 2008.

Mr. Balogun the Counsel for the Appellant then adopted their brief and urged the court to allow the appeal, informing the court that he had a list of additional authorities which he referred the court to during his expatiation of his brief, when he cited OSUNBOR -VS- OSHIOMOLE as an unreported decision of this court delivered on 11th November, 2008. He also submitted that election is a process and that there was no election and that the authorities cited by the Respondents in AKINSETE- VS- BALOGUN cannot avail them. Thereafter Oluwasina Ogungbade Esq for 1st and 2nd Respondents adopted their brief which was deemed filed on 22nd October, 2008. The 3rd to 11th Respondents have been served but they were not represented. Ogungbade urged the court to dismiss the Appeal and said that OSHIOMOLE’s case is not applicable in this Appeal and that there is a lot of difference between admissibility of document and the weight to be attached to it.

In the circumstances of this appeal, it would be apt to adopt the two issues filed by the Respondents as it adequately touches all the facts required to determine the appeal. The courts are of the view that it is not ideal to delve into multi issues that do not actually settle the issues in controversy. That it is better to be precise and concise in formulation of issues, than proliferation of issues. See the Supreme Court case of OKO VS CENTRE POINT MERCHANT BANK LTD (2008) ALL FWLR (PART 44) PAGE 837 – 838 PER OGEBE JSC when he said”

“This court frowns at proliferation of issues as presented by the Appellant’s brief in this appeal. The only issue that calls for consideration is that of whether there was proper proof of service of the originating process on the Respondent before judgment was given against it by the trial court.”

The issue in controversy in this appeal is quite clear and could be adequately dealt with in the said two issues formulated by the Respondents. So I proceed to do so

ISSUE 1:

Whether the Tribunal was not correct when in its judgment it preferred to adopt the issues earlier agreed upon by the parties during pre-hearing session and whether the said decision occasioned any miscarriage of justice to the Appellant.

The Appellants in their submission heavily relied on the case of INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) AND 19 OTHERS -VS- COMRADE ADAMS ALIYU OSHIOMOLE to be found in appeal CA/B/179A/2007, CA/B/179B/2007, CA/B/EPT/91/08, CA/B/EPT/92/08 AND CA/B/EPT/93/08 an unreported decision of this court delivered on 11th day of November, 2008, Coram ABDULLAHI PCA, ISA AYO SALAMI JCA, AMINA AUGIE JCA AND UZO ADUKWE ANYANWU JCA where the Court of Appeal unanimously find in favour of the Respondents wherein the Court observed that the Appellants have unfairly made a deliberate attempt at misinterpreting not just the contents of the petition, but also the very purpose and tenor of the Tribunal’s judgment. The effect of this is that by and large, the grounds of appeal, the issues raised in the Appellants brief and the submissions of counsel are poles apart from the judgment of the lower Tribunal and that an appeal is a continuation of hearing and grounds of appeal must be anchored on the judgment of the lower court. It is upon this premises in the Oshomole’s case that the Court of Appeal found in favour of Oshiomole’s and held thus:

“On its part, AC argued along the same line that there is nowhere in the entire length of its judgment that the Tribunal annulled any elections.

The above submission is well taken, and it represents the true position of what the Tribunal found after a painstaking review of all the material placed before it. It is manifest from the Tribunal’s finding, which is unchallenged that the petitioners scored twenty-five percent of the lawful votes cast in ten out of the twelve contested Local Governments, as well as in the four uncontested Local Governments. The petitioners therefore satisfied the requirements of section 179(2)(a) and (b) of the 1999 Constitution by scoring the “highest number of valid votes case at the election” and scoring “not less than one-quarter of all votes cast in each of at least two-thirds” of the eighteen Local Governments of Edo State. From the foregoing, it is clear that the three main appeals lacks merit. They are accordingly dismissed. The judgment of the Tribunal delivered on the 20th March, 2008 is hereby affirmed as well as all the consequential orders made therein, which are as follows: