Dr. Abideen Olaiya V. Hon. Oladepo Oyedokun & Ors. (2009)

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ISTIFANUS THOMAS, J.C.A.

The appeal is against the judgment of the House of Representatives Election Petition Tribunal held at Ibadan, Oyo State delivered on 7th December, 2007 in which the Petitioner’s but now appellant’s petition was heard on merit but dismissed and therefore the appeal.

The appellant’s petition at the lower Tribunal was based on three grounds, namely, that:-

(i) he was validly nominated by his party- labour party but was unlawfully excluded from a rescheduled election of 28/4/2007 (ii) that the election held on 21/4/07 was invalid by reason of non-compliance with Electoral Act, 2006 as contained in sections 46, 64, 74, 75 and 145 of the afore said Electoral Act, 2006; and

(iii) the 1st respondent was not elected by a majority of lawful votes as the election conducted by the 2nd – 4th Respondents was not concluded in respect of the Federal Constituency for Oluyole Oyo State on 21/04/2007.

At the lower Tribunal, a pre-trial conference was conducted whereby, all parties identified just one issue for determination, that is, whether the election held on 21/04/2007 in respect of the Oluyole Federal Constituency of Oyo State, was conclusive or, was the election cancelled and or suspended and therefore, re-scheduled for the 28/04/2007 election? This fact is contained at page 199 paragraphs 3-4 of the record. During the proper trial at the lower Tribunal, the Appellant testified as PW7, and then called 6 other witnesses who tendered Exhibits PE1- PE6, These exhibits are as follows:-

1. Exhibits PE1 is subpoena whereby PW6 named Kolopo Ademola was called to testify.
2. Exhibits PE2 is form EC8E(ii) showing list of nominated candidates for Oluyole Federal Constituency.
3. Exhibit PE3 is identical to exhibit PE2. Exhibits PE1-PE3were tendered by PW6 and admitted without objection. See pages 196D-196E of the record.
4. Exhibits PE4-PE6 are the certified True copies of Punch Newspaper of 23/04/2007, National Newspaper of 27/04/2007 and the Punch Newspaper of 27/04/2007 respectively.

At the Tribunal, the 1st respondent who contested the election held on 21/04/2007 on the platform of PDP and was declared the winner by the 2nd – 4th Respondents. He called a total of 9 witnesses, while the 2nd – 4th Respondents called one witness. The 1st respondent also tendered Exhibits 1st RE2 and 1st RE3 (1- 10) which are the unit results for Oluyole Federal Constituency election to the House of Representatives held on 21/04/2007. These exhibits are contained at pages 196R, 196T, and 196HH of the record.

After the close of hearing of parties witnesses and the address of learned counsel, the lower Tribunal dismissed the appellant’s petition and declared that the 1st respondent was duly elected and returned as the winner of the House of Representative of Oluyole Federal Constituency Oyo State with majority votes of 9231 at the election held on 21/04/2007.

Dissatisfied, the appellant filed within time, his Notice of Appeal containing 17 grounds of appeal which was dated and filed on 28th December, 2007. It is to be noted that, the judgment of the lower Tribunal was delivered on 7th December, 2007. By paragraph 1 of the Practice Direction NO.2 of 2007, in an election petition matter, an Appellant is to file his Notice of Appeal within 21 days from the date of the decision appealed. From the above findings, I am satisfied that this appeal was filed within the statutory period of 21 days from the date of the delivery of the judgment.

From the 17 grounds of appeal, the Appellant distilled and raised 6 issues for determination. Appellant’s brief was filed on 11/9/2008.

The issues read thus:-

(i) Whether the Tribunal was right to have held that the election was conclusive in view of no defence filed legally by the 2nd-4th respondents. (ground 16).

(ii) Whether Tribunal was wrong when it allowed the 2nd – 4th Respondents to withdraw from tendering the set of forms EC8A(ii) sought to be tendered after argument had been taken from parties on the admissibility or otherwise of the document. (ground 8).

(iii) Whether the refusal by the Tribunal to expunge exhibits 1st RE3 (1-10) which was wrongfully admitted from the records of the court in its judgment did not occasion a miscarriage of justice. (grounds 9, 14 and 15).