Aladetan O. V. Ogunyemi Wole J. & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI F. OMOLEYE, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the Governorship/Legislative Houses Election Tribunal (hereinafter referred to as the Tribunal) sitting in Akure, Ondo State, delivered on 17th July, 2008.

The Appellant, Mr. O. Aladetan contested in the general election held on 14th April, 2007, into the Ondo State House of Assembly, for Ilaje Constituency I in Ilaje Local Government Area under the platform of Peoples Democratic Party (PDP). The 1st Respondent, Mr. Wole J. Ogunyemi, the candidate fielded by the Labour Party also contested for the same seat in the said election. At the end of the election, the Appellant was declared winner and duly returned by the 2nd Respondent.

The 1st Respondent was dissatisfied with the return of the appellant he filed a petition at the Tribunal. At the end of the trial of the petition the Tribunal upheld the petition of the 1st Respondent and nullified the election of the Appellant. The 2nd Respondent was ordered to conduct a bye-election in the constituency within six days from the date of the judgment.

Dissatisfied with that judgment, the Appellant brought the instant appeal wherein he challenged the said order for the bye election. By the order of this Court, the Appellant filed an Amended Notice and Grounds of Appeal containing ten grounds of appeal. The learned senior counsel for the Appellant, Mr. LA. Adedipe SAN filed the Appellant’s brief of argument on 25.3.09. The said brief was deemed properly filed and served on 19.5.09. In it, the Appellant raised seven issues for the determination of this appeal. These read as follows:

1. Whether the Petition which was filed on the 15th of May, 2007 was within time, as prescribed by Section 141 of the Electoral Act 2006 to entitle the Tribunal to exercise jurisdiction over its hearing and determination having regard to the/act that the result of the election was declared on 14th April, 2007?
2. Was the Tribunal correct in holding that the Petition was to be determined on the preponderance of evidence in the light of the serious criminal allegations upon which it was based?

If the answer is no, did the error not occasion a miscarriage of justice to the Appellant?

3. Whether the Tribunal was correct in law in using the result of the ballot recount, as basis for discrediting, and rejecting statutory INEC forms on the ground that the number of ballots counted was less than the figures entered into INEC statutory form?
4. Whether Exhibit ‘R’, a letter written by an INEC staff, six months after the election and during the pendency of the Petition, is legally admissible, and could be accorded the full weight given to it by the Tribunal, even when it was not pleaded, and was not put in through any witness?
5. Was the Tribunal correct in admitting in evidence, various documents that were merely produced which were never put through any witness to enable the Appellant cross-examine on their authenticity, on the ground that they were relevant?
6. Was the Tribunal correct in holding that since political office holders signed INEC result sheet without any documentary proof that such individuals are, in fact, and, in law, political office holders? And is the fact of the signing of INEC Statutory Forms as a witness a ground for the nullification of such result?
7. Whether the Tribunal applied the correct legal approach to the evaluation of the evidence adduced to justify its rejection of the evidence of the witnesses of the Appellant?

A brief of argument was filed for the 1st Respondent by their learned counsel, Dr. O.F. Ayeni. It was deemed properly filed and served on 19th May, 2009. In it, learned counsel formulated a single Issue for the determination of this appeal. The sole issue states thus:

Considering the overwhelming documentary evidence put forth before the Tribunal, coupled with the oral evidence of the petitioner, whether the Tribunal was not right to have relied on same to have arrived at its conclusions and judgment?

The learned counsel for the 1st Respondent in addition to the sole issue formulated by him filed a reply to issue one as formulated by the Appellant’s learned senior counsel. The submissions thereon are contained in paragraphs 3.01 to 3.35 at pages 46 to 59 of the 1st Respondent’s brief of argument.

Responding to this appeal, the 2nd – 4th Respondents on the one part filed a joint brief of argument on 21st May, 2009. Therein, their learned counsel adopted all the seven issues formulated by the Appellant for the determination of this appeal.

On another part, the 5th and 6th Respondents equally reacted positively to and in support of the posturing of the Appellant filed a Notice of Preliminary Objection. It is dated 26th January, 2009 and filed on 30th January, 2009. ‘Vide’ the said objection, the 5th and 6th Respondents sought the following reliefs:

1. AN ORDER striking out petition No. EPT/OND/SH /26/07 filed on 14/5/07 for absence of legal life having been statute barred.
2. AN ORDER setting aside the judgment of the Tribunal in respect of the said petition delivered on 17/7/2008 for being void on the ground of absence of jurisdiction.
3. AN ORDER striking out the Appeal for want of jurisdiction.

The objection was predicated on the following grounds:

(i) Section 141 of the Electoral Act, 2006 makes it mandatory that the petition under the Act “shall be presented within thirty (30) days from the date the result of the election is declared.”

(ii) The result of the election was declared on 14th April, 2007 and the Petition was filed on 14th May, 2007, thirty-one (31) days after the said declaration and therefore statute barred.