Afeez Adelowo Jimoh V. Yinusa Kazeem Ayandoye & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A.(Delivering the Leading Judgment)

This appeal was dismissed on the 14th day of December, 2011 and reasons for the said dismissal were reserved. I now give the reasons.

This is an appeal against the decision of the National and State Houses of Assembly Election Tribunal sitting in Ibadan delivered on the 20th October, 2011 by a panel which had Hon. Justice F.C. Nwizu as chairman and Hon. Justice A.O Ajileye and Hon. Kadi M.M. Alkali as members.

On 9th April, 2011 the 2nd respondent (INEC) conducted an election into the Irepo/Oorelope/Olorunsogo Federal Constituency. A total of 9 political parties sponsored and fielded candidates for the election. At the end of the said election 2nd respondent declared the 1st petitioner as the winner of the election, having scored the majority of lawful votes cast at the election. 1st petitioner scored 27,248 votes.

On the 30th April, 2011 the 1st and 2nd respondents filed a joint petition at the lower Tribunal. The petition is on pages 2 -7 of the record of appeal. The main ground of the petition is that the 1st petitioner was unlawfully excluded despite the fact that he was validly nominated and sponsored by his party, the 2nd petitioner/respondent and his name was submitted to the 2nd respondent (INEC). Pleadings were filed and exchanged by parties i.e petition and replies. At the hearing of the petition, the petitioners called 5 witnesses and tendered 8 documents marked Exhibit 1, 2, 3, 4, 5, 5A, 6 and 7.

The 1st respondent/appellant tendered 3 Exhibits marked exhibits 8, 9 and 10, through the 1st petitioner who was PW5. The 1st respondent called one witness while 3rd and 4th respondents did not call witnesses. At the close of hearing counsel exchanged written addresses. The Tribunal in a considered judgment delivered on 20th October, 2011 found in favour of the 1st and 2nd respondents and ordered that a fresh election be conducted so that petitioners (now 1st and 2nd respondents) would have right to participate. Being dissatisfied with the decision appellant lodged an appeal to this court vide his Notice of Appeal filed on 9/11/11 containing 10 grounds of appeal.

In compliance with the Rules of court parties filed and exchanged briefs of argument. Appellant’s brief settled by Chief Makanjuola Esan SAN was filed on 30/11/11. The 1st and 2nd respondents’ brief settled by Kazeem A. Gbadamosi Esq. was filed on 5/12/11. Appellant’s reply brief was filed on 8/12/11. The 2nd respondent Cross-Appellant filed brief of argument on 30/11/11. The 1st Cross-Respondent’s brief of argument was filed on 5/12/11. Reply to the 1st respondent’s brief of argument was filed on 8/12/11 by 2nd respondent Cross-Appellant.

Appellant formulated five issues for determination as follows:

(i) Whether the fact that the 2nd set of respondents did not call any witness amounts to not giving evidence in support of his pleadings and an acceptance of the facts adduced by the plaintiff, GROUND 2.

(ii) Whether the list of candidates submitted pursuant to section 31(1) of the Electoral Act as amended amounts to sponsorship or nomination of the candidates GROUND 1.

(iii) Whether the 1st and 2nd respondents as petitioners at the lower Tribunal proved the fact that they submitted nomination for EC4B (iv) to INEC. This issue is distilled from GROUND 5, 6 and 7.

(iv) Whether the petitioners at the lower Tribunal proved that the 1st petitioner was validly nominated. GROUND 3, 9, AND 10.

(v) Whether the lower tribunal was right in holding that there was no publication of list of candidates in compliance with section 31(3) of the Electoral Act (as amended) GROUND 8.

1st and 2nd respondents formulated two issues as follows: