Muhammed Bashir Olatunji Ibrahim V. Olatunji Adewale Ogunleye & Ors (2010)

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 conducted election to Oriade constituency of Osun state House of Assembly. Seven (7) candidates, including the appellant – Muhammad Bashir Olatunji Ibraheem of Action congress and Olatunji Adewale Ogunleye (the 1st respondent) of Peoples Democratic Party, contested the said election. The results of the election, as announced by INEC, showed that the appellant scored 10,444 votes while the 1st respondent scored 12,810 votes. The 1st respondent was announced and returned by INEC as the candidate duly elected at the said election.

The appellant was not satisfied with the outcome of the election and filed a petition on the grounds that the 1st respondent was, at the relevant time of contesting the said the election, not qualified to contest the election and that the election was invalid by reasons of non-compliance with the Electoral Act, widespread irregularities, malpractices and disenfranchisement of many voters. (Pages 3 and 4 of the record of appeal) The prayers sought by the appellant, as set out in his election petition, were “that it may be determined as follows:

That the 1st Respondent was not qualified to stand for the election into the House of Assembly, Oriade State Constituency, Osun State, as the said 1st Respondent made a false declaration to the Independent National Electoral Commission in his nomination form with regard to his academic qualification.

The 1st Respondent was not competent to stand for the said election as he falsely represented by forged

document to the Independent National Electoral Commission.

The election to the Osun State House of Assembly Election in wards, l, 3, 7, 8, 9 and 10 of Oriade constituency

held on April 14, 2007 and is therefore invalid by reason of non compliance with the provision of the Electoral Act, 2006 and that the said election was vitiated by substantial non-compliance with the mandatory statutory requirements which substantially affected the validity of the elections that the 1st Respondent cannot be said

to have validly won the said elections.

That the results of the said wards be declared invalid and should be cancelled thereby leaving the lawful votes in other wards of the constituency for the determination of the winner of the said election.

That your petitioner be declared winner and returned as the member of the Osun State House of Assembly representing Oriade State Constituency.”

The appellant’s election petition was heard and determined by the Osun State Governorship and Legislative Houses Election Petition Tribunal (Coram: Hon. Justice T.D. Naron – Chairman, Hon. Justice Saadu Mohammed – Member, Hon.Justice J.N. Akpughunum – Member, Hon. Justice A.T. Badamasi – Member and Hon. Justice J.E. Ekanem – Member). Judgment in respect of the election petition was delivered on the 13th day of May, 2008 and this appeal, filed on the 30th day of May 2008, is against that judgment and three interlocutory rulings of the tribunal. On the 1st day of September, 2008 the appellant filed an amended notice of appeal in which 17 (Seventeen) grounds of appeal and their particulars were set out.

At the hearing of the appeal, Mr. Adewale Afolabi, leading Messrs J.O Akano, Kolapo Alimi and O.O. Morakinyo (Miss), learned counsel for the appellant adopted and relied on the appellant’s brief dated the 16th day of April, 2010 and filed on the same date and urged the court to allow the appeal. The 1st and 2nd respondents, through their learned counsel – Messrs A.A. Abimbola and A.

Morokenji, adopted and relied on their joint brief of argument dated the 25th day of May, 2010 and filed on the same date but deemed as properly filed and serve on 09/06 /2010 and urged the court to dismiss the appeal and affirm the decision of the tribunal. The 3rd – 37th respondents were absent and they were also not represented. It should be noted, however, that they had earlier indicated, through their learned counsel – F.E. Abbe, Esq., that they “adopt the brief of argument of the 1st and 2nd respondents.” The 38th and 39th respondents, through their learned counsel – K.A Tijani, Esq. (Principal State Counsel, Osun State) adopted their brief of argument dated the 2nd day of June, 2010 and filed on the same date but deemed filed and served on 09/05 /2010. The 38th and 39th respondents’ brief was settled by Ademola Adeyemo, Esq. In his brief of argument, settled by Mrs. F.O. Babafemi, Esq; the appellant distilled 8 (eight) issues for determination. In their response the 1st and 2nd respondents formulated 5 (five) issues as arising for determination in the substantive appeal. The 38th and 39th respondents distilled only 2 (two) issues as arising or calling for determination in this appeal.