Busayo Oluwole Oke V. Nathaniel Agunbiade & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal sitting at Osogbo, Osun State (hereinafter referred to as the lower Tribunal) delivered on 12th August 2011 dismissing the appellant’s petition.

On the 21st day of April 2011, election was held into the Obokun/Oriade Federal Constituency seat in the House of Representatives. The Appellant and 1st Respondent were the candidates of the Peoples Democratic Party (PDP) and the Action Congress of Nigeria (ACN) respectively. After the conduct of the election, the Independent National Electoral Commission (3rd respondent herein) declared the 1st Respondent as the winner of the Election with 22,142 votes while 18,005 votes were ascribed to the Petitioner (Appellant herein). Being dissatisfied with the declaration of the 1st Respondent, the Appellant filed a petition dated 28th April 2011 before the lower Tribunal. The grounds of the petition are contained in paragraph 12 of the petition as follows:

12 “The grounds for this petition are as follows:

12.1 The results of the election for Obokun/Oriade Federal Constituency in the House of Representatives are not correct (are untrue in every respects) and thus invalid by reason of non compliance with Electoral Act 2010 as amended and its principles and the Manual for Election Officials 2011 which said non compliance substantially affected the result of the said election for Obokun/Oriade Federal Constituency in the House of Representatives.

12.2 The 1st Respondent was not duly elected by majority of lawful votes cast at the election for Obokun/Oriade Federal Constituency in the House of Representatives.

12.3 The Conduct of the election is marred by corrupt practices, widespread irregularities and malpractices resulting in substantial non-compliance with mandatory provisions of the Electoral Act 2010 as amended and the Manual for Election Officials 2011.”

He sought the following reliefs in paragraph 37:

37. “Whereof your Petitioner prays that it may be determined as follows:

37.1 That votes recorded and/or returned in the following wards in the Obokun/Oriade constituency seat in the House of Representatives election held on Saturday April 9th, 2011 namely Ward 1 Obokun Local Government; Ward 7, Obokun Local Government; Ward 1 Oriade Local Government, Ward 3, Oriade Local Government; Ward 4, Oriade Local Government; Ward 7 Oriade Local Government; Ward 8 Oriade Local Government, Ward 10 Oriade Local Government and Ward 12 Oriade Local Government do not represent lawful votes cast in the said election held on Saturday April 9th, 2011 having been obtained in vitiating circumstances which substantially affected the validity of the said election that the 1st Respondent cannot be validly returned as having validly won in the said election.

37.2 The votes illegally and invalidly counted for the 1st Respondent be revisited and recounted so as to deduct invalid votes from the total votes scored and recorded for the 1st Respondent.

38. That the said Nathaniel Agunbiade (1st Respondent) was not duly elected by majority of lawful votes cast in the Obokun/Oriade Federal Constituency in the House of Representative election held on Saturday April 9th 2011 and that his election is void.
39. That Busayo Oluwole Oke (Petitioner) was elected and ought to have been returned having scored the highest number of lawful votes cast in the Obokun/Oriade Constituency in the House of Representative election held on Saturday 9th April 2011 and satisfied the requirements of the Constitution and the Electoral Act 2010 as amended and the Manual for Election Officials 2011.
40. That the Petitioner be declared validly elected and returned.
41. The Petitioner prays LATERNATIVELY AND ONLY IN THE ALTERNATIVE.(sic)

That the National Assembly Elections for Obokun/Oriade Federal Constituency seat in the House of Representatives held on Saturday 9th April, 2011 is invalid by reason of non-compliance with the provision of the Electoral Act 2010 as amended and the Manual for election Officials 2011 and that the said election was vitiated by substantial non-compliance with the mandatory statutory requirements which substantially affected the validity of the said elections that none of the candidates in the said election can be validly returned as having validly won the said election.

41.2 That the result of the National Assembly election for Obokun/Oriade Federal Constituency seat in the House of Representatives held on Saturday 9th April, 2011 is nullified and cancelled and the 3rd Respondent is to conduct fresh election for the National Assembly election for Obokun/Oriade Federal Constituency seat in the House of Representatives”.

The 1st Respondent herein and 6 others were joined as Respondents to the Petition. The parties duly filed and exchanged pleadings.

At the hearing of the Petition, the Appellant called 32 witnesses and tendered Exhibits P1-P76. In defence of the Petition, the 1st Respondent called 28 witnesses and tendered 7 documents, which were marked as Exhibits R1 – R7. The 2nd Respondent did not call any witness but tendered 3 documents in evidence. The 3rd – 7th Respondents on their part called two witnesses, RW29 and R30. These witnesses who served as the Electoral officers for Oriade and Obokun Local Governments respectively had also been called by the Appellant as PW29 and PW30. At the conclusion of evidence the parties adopted their written addresses. On the 12th of August, 2011, the Tribunal delivered judgment in which it dismissed the Petition. Being dissatisfied with the dismissal of the Petition, the Appellant on the 19th of August 2011 filed a Notice of Appeal containing 36 grounds of Appeal.