Barrister Moji Okedui Abimbola & Anor. V. Mr. Moruf Olawale Atilola & Ors. (2009)

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MODUPE FASANMI, J.C.A.

The facts briefly are that by a petition dated 14th May 2007, the Petitioners Mrs. Moji Okediji Abimbola and the Labour Party challenged the declaration and return of the 1st Respondent Mr. Moruff Olawale Atilola who was sponsored by the 2nd Respondent for the Election of 14/4/2007 conducted by the Independent National Electoral Commission into the Oyo State House of Assembly Election in respect of Oyo East & West Local Government Constituency. The grounds are stated in paragraph 13 of the Amended Petition thus:-

(1) The 1st Respondent was not duly elected by a majority of the lawful votes cast at the election.

(2) The election and return of the 1st Respondent is invalid by reason of corrupt practices and non-compliance with the Electoral Act 2006 and

(3) The 3rd Respondent did not comply with Electoral Act 2006 by their failure to display the voters register before the election of 14/4/2007.

In accordance with the provisions of the Election and Practice Direction 2007 a pre-hearing session was concluded on 9/10/07 where the parties agreed and settled issues to be determined at the hearing. At the close of same, the parties proceeded to adduce evidence.

The amended petition is at pages 117-130 of the record. 1st & 2nd Respondent’s reply is at pages 52-57 of the record. The 3rd-7th Respondents reply is at pages 136-139 of the record of proceedings.

The Petitioners/Appellants called 11 witnesses in proof of their petition. 1st & 2nd Respondents called 2 witnesses while the 3rd – 7th Respondents called 2 witnesses in rebuttal of the petitioners case. At the close of the case of the parties and addresses of Counsel, the Tribunal dismissed the petition. The petitioners being dissatisfied with the judgment of the Tribunal filed a notice of appeal dated 10th December 2007 containing 5 grounds of appeal at pages 261-264 of the record.

Appellants filed their brief of argument before this court on the 12th of May 2008. 1st and 2nd Respondents brief of argument was filed on the 19th of May 2008 and 3rd-7th Respondents filed their brief of argument on the 20th of May 2008.

At the hearing of the appeal, learned Counsel for the Appellants adopted his brief but sought the leave of the court to refer to the case of Osunbor vs. Oshiomole unreported CA/B/EPT/179A/2007 delivered on the 11th of November 2008 where it was held that non-joinder of Electoral Officers, Presiding Officers, Returning Officers as parties to a petition will not void the petition as long as I.N.E.C. is a party because they are agents of I.N.E.C. Learned Counsel for the Appellants formulated two issues from the five grounds in the notice of appeal for the court’s determination as follows:-

(1) Whether the non joinder of the Presiding Officers in the wards and units complained of was fatal to the petition of the Petitioners.

(2) Whether in view of the acts of violence, thuggery and malpractices carried out by the 1st & 2nd Respondents and its Agents in some units and wards of Oyo East/West Constituency of Oyo State of Assembly, the lower Tribunal ought to consider the evidence placed before it and examine exhibits PE8 and PE9 in the light of the evidence before it by cancelling the results of the units affected and nullifying the election return of the 1st Respondent.

Learned Counsel for the 1st & 2nd Respondents at the hearing also adopted her brief of argument filed on the 19th of May 2008 and formulated two issues for determination as well. They are hereunder reproduced.

(1) What is the materiality of the Tribunal’s holding that the non-joinder of the Presiding Officers in the wards and units complained of was fatal to the petition.