Alabi A. Kazeem V. Oyejide Gbadebo Kola & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment)

On the 14th day of April, 2007 the Independent National Electoral Commission (INEC) – the 3rd respondent in this case, conducted election to Irewole/Isokan Constituency of Osun State House of Assembly.

Alabi A. Kazeem, the appellant in this court was not satisfied with the result declared by INEC and he filed an election petition in the Election Petition Tribunal set up for Osun State. There were 75 respondents to the petition. The 1st and 2nd respondents to the said election petition were Oyejide Gbadebo Kola and Peoples Democratic Party (PDP), respectively. They are also the 1st and 2nd respondents in this Court.

The appellant’s petition was heard and dismissed on the 13th day of May, 2008 by the Election Petition Tribunal under the Chairmanship of HON. JUSTICE T. D. NARON (pages 385 – 410 of the record of appeal). The appellant was not satisfied and filed an appeal against the judgment of the tribunal (pages 411 – 422 of the record of appeal).

The appellant’s brief of argument, prepared by Ajibola Basiru, Esq. of counsel to the appellant, was filed on the 21st day of August, 2008. The brief of argument prepared on behalf of the 1st and 2nd respondents, by their learned lawyer – Olaitan Olabode Esq., was filed on the 15th day of September, 2008. The 74th and 75th respondents’ brief, settled by Leke Fadeju, Esq. (Senior State Counsel, Osun State) was filed on the 29th day of September, 2009.

At the hearing of the appeal, Mr, Basiru, learned counsel for the appellant, who distilled 8 (eight) issues in his brief, withdrew the 5th and 6th issues and they were accordingly struck out. He adopted and relied on his abridged brief and his reply brief and urged the Court to allow the appeal and set aside the judgment of the tribunal. The 1st and 2nd respondents also adopted their brief and urged the court to dismiss the appeal and affirm the judgment of the tribunal. The 74th and 75th respondents were absent at the hearing of the appeal.

The 74th and 75th respondents were duly notified of the hearing of this case. Therefore, by virtue of the provisions of Order 17 rule 9(4) of the Court of Appeal Rules (2007), the 74th and 75th respondents are deemed to have duly adopted their brief and argued their case. Under the said Order and rule, this Court can safely conclude that the appeal has been duly argued and proceed to deliver judgment. See ODEJIDE V. FAGBO (2004) 8 NWLR (Pt.874) 1 and BOB-MANUEL v. BRIGGS (1995) 7 NWLR (pt.409) 537.

In the tribunal, the 1st and 2nd respondents objected to the competence of the petition and it was also the 1st issue formulated by the tribunal: “Whether the petition before the Tribunal is competent” (page 395 0f the record of appeal). This issue was resolved by the tribunal at pages 396 – 398 of the record of appeal. The tribunal resolved that the petition was competent and, in so doing, the tribunal stated, inter alia, as follows:

“It is not under dispute that the petition under consideration is the one in which the 1st Respondent run as a candidate on the platform of the PDP and also called 5 witnesses. In as much as the petitioner ought to have brought an application to amend paragraph 5 of the petition to reflect the proper parties and Paragraphs 8 and 11 to reflect the name of the 1st Respondent as shown on page 1 of the petition, – we do not believe that such irregularity is Fatal enough to vitiate the entire proceedings thereby affecting the competence of the petition.”

(Page 398 of the record of appeal)

The tribunal arrived at its verdict because the 1st and 2nd respondents “admitted paragraphs 3 and 9 of the petition” in which the petitioner/appellant averred as follows:

“3. The 1st respondent was sponsored for the aforesaid election by the Peoples Democratic Party (PDP), the 2nd Respondent herein and was returned elected as the member of the Osun State House of Assembly for Irewole/Isoka constituency. The 2nd Respondent is one of the registered political parties in Nigeria.”

“9. The 4th Respondent has returned the 1st respondent as being duly elected and the winners (sic) of the House of Assembly election for Irewole/Isokan constituency in the Osun State House of Assembly in the said election.”

(Pages 2 and 3 of the record of appeal)