Agoro Lanre Adeniran & Anor V. Afeez Adelowo Jimoh & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the National and State Houses of Assembly Election Tribunal sitting in Ibadan delivered on the 20th of October, 2011. 1st Appellant was the candidate of the 2nd Appellant at the election into the House of Representatives for the Irepo/Olorunsogo Federal Constituency of Oyo State held on the 9th of April, 2011. The 1st Respondent was sponsored by the 2nd Respondent and returned by the 3rd Respondent.

The Appellants filed their petition on the 30th of April, 2011 challenging the victory of the 1st and 2nd Respondents. Before the lower Tribunal was another petition on the same election filed by one Yinusa Kazeem Ayandoye and Democratic People’s Party EPT/OY/NA/5/2011. The lower Tribunal delivered judgment in the petition which was filed earlier in time nullifying the election on the ground that the petitioner was validly nominated but unlawfully excluded from the same election. The lower Tribunal in its judgment which the subject of this appeal is held that the subject matter of the present petition had been extinguished in view of the judgment earlier delivered in petition no. EPT/OY/NA/5/2011. The Appellant being dissatisfied with the judgment filed this appeal. The Appellants filed 4 grounds of appeal against the decision striking out their petition. The grounds of appeal are at pages 256-259 of the record of appeal.

Parties filed their respective briefs before this court. Appellant’s brief of argument is dated and filed on 30th November, 2011. 1st & 2nd Respondents brief of argument is dated and filed on the 6th of December, 2011 while the 3rd-66th Respondents brief of argument is dated 2nd of December, 2011 but filed on the 5th of December, 2011.

Appellants distilled a sole issue for determination thus:

“Whether the right of the Appellants to fair hearing was breached by the election Tribunal when it struck out the Appellants petition on the ground that it has nullified the said election in petition no. EPT/OY/NA/5/2011 between Yinusa Kazeem Ayandoye and 1 Anor V. Azeez Jimoh Adelowo & 3 others”.

1st & 2nd Respondents distilled a sole issue for determination thus:

“Whether in the circumstances of this petition, the striking out of the petition by the lower tribunal occasioned any miscarriage of Justice.”

While the 3rd-66th respondents distilled a sole issue for determination thus:

“Whether in the circumstances of the Petitioner’s petition, the denial of fair hearing to the parties thereto had occasioned a miscarriage of justice”.

The issues enumerated above are challenging the same point but couched differently. However the issue formulated by the 1st & 2nd Respondents is more apt to the point. This Court will determine the appeal on the issue formulated by the 1st & 2nd Respondents which states:

“Whether in the circumstances of this petition, the striking out of the petition by the lower Tribunal occasioned any miscarriage of justice.”

Learned Counsel for the Appellants submitted that the striking out of the petition without first hearing the Appellants on the effect of the Tribunal’s decision in its judgment in EPT/OY/NA/5/2011 has breached the right to fair hearing of the Appellants as enshrined in Section 36 of the 1999 Constitution as amended. He referred to the case of ADAMU V. AKUKALIA (2008) ALL F.W.L.R. Part 428 page 352 at 405 paragraphs E and AWONIYI V. REGISTERED TRUSTEES OF AMORC (2000) F.W.L.R Part 25 at 1592.

He contended further that the Tribunal having taken evidence was duty bound to have given a decision on the case of the Appellants. The refusal of the lower Tribunal to consider the evidence placed before it by the Appellants breached the Appellants constitutional right to fair hearing. A breach of a Constitutional right entitles the party whose right or rights have been breached to have any judgment so entered in the case to be declared a nullity. See NEWSWATCH COMMUNICATION LTD. V. ATTAH (2006) ALL F.W.L.R Part 378 at 580.