Chief Akindele Ojo Sunday V. Oyedele Samuel Olugbenga & Ors (2008)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

This is an appeal against the judgment handed out by the Governorship and Legislative Houses Election Petition Tribunal sitting at Ibadan, Oyo State of Nigeria on 6th August, 2007. Therein, the Tribunal, presided over by Bage, J., as he then was, dismissed the appellant’s petition against the return of the 1st respondent as the member of the Oyo State House of Assembly representing Afijio Constituency.

It is apt to recapitulate the background facts of the matter leading to this appeal briefly. The appellant herein, as Petitioner at the Tribunal, contested the 14th April, 2007 election into the Oyo State House of Assembly for Afijio constituency on the platform of the All Nigeria Peoples Party herein referred to as the ANPP (for short). The 1st respondent contested the election into the stated constituency under the banner of the Action Congress – AC (for short). On completion of the electoral process, the 3rd and 4th respondents returned the 1st respondent as the duly elected member of the above stated constituency representing Afijio constituency of Oyo State of Nigeria.

The appellant felt unhappy with the return of the 1st respondent and subsequently filed his petition at the lower Tribunal on 7th May, 2007, As contained in paragraph 7(iii) of the petition, the complaint of the petitioner reads as follows:-

“At all time material to this petition the 1st Respondent who was a person employed in the public service of Oyo State did not disengage and/or validly disengage from the public service of Oyo State prior to his participation in the above election.”

The grounds of the petition, as can be found in paragraph 8 of the petition read as follows:

“8(a) At all time material to this petition the 1st Respondent was not qualified to contest the above named election;

(b) The 1st Respondent did not satisfy the statutory requirements for this election.”

In essence, the 1st and 2nd respondents in their joint reply denied the assertion by the petitioner that the 1st respondent did not validly resign his employment before contesting the election of 14th April, 2007 into the Afijio House of Assembly Constituency.

At the trial of the petition before the lower Tribunal, parties adduced evidence to support their respective stand points. A letter of resignation dated 26-12-06 was admitted as Exhibit PE1. Exhibit PE2 is a letter written by Akinyele local Government forwarding Exhibit PE1 to the Chairman, Oyo State Local Government Service Commission. It is dated 19-3-07. Exhibit PE3 is another letter written by Akinyele local Government to the 1st Respondent for the refund of salary paid into his bank account by mistake. Same is depicted in the salary voucher which was admitted as Exhibit PE4. Exhibit PE5 is the same in ure as Exhibit PE2. A letter approving retirement is Exhibit RE1.

Both sides adduced oral evidence. Thereafter, learned counsel for the parties addressed the lower Tribunal. In its considered judgment delivered on 6-8-07, the tribunal dismissed the petition. The Tribunal upheld the election and return of the 1st respondent after finding that he validly disengaged his employment before contesting the election conducted on 14-4-07.

The Petitioner felt unhappy with the stance of the lower Tribunal and appealed to this court. This was followed by the filing of briefs of argument on behalf of the parties. On 6-10-08 when the appeal was taken, learned counsel for the parties adopted their respective briefs of argument and further expatiated on same.

The issues submitted for determination on behalf of the appellant read as follows:-

“ISSUE ONE