Nathaniel Ige Agunbiade V. Busayo Oluwole Oke & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Osun State Election Petition Tribunal delivered on the 30th of June 2008.

Briefly on the 21st of April 2007, elections were held into the Federal House of Representatives for Oriade/Obokun Local Government Federal Constituency of Osun state. The Appellant contested the election, on the Platform of the Action Congress (AC) while the 1st Respondent contested on the platform of the Peoples Democratic Party (PDP). At the conclusion of the election, the 3rd Respondent returned the 1st Respondent as the winner. The Appellant was dissatisfied with the return of the 1st Respondent. Appellant filed its petition at the Tribunal to challenge the return of the 1st Respondent as the winner of the April 21st 2007 House of representative Election for Oriade/Obokun Local Government Federal constituency on the following grounds:

(a) That the National Assembly Election for Oriade/Obokun Local Government Federal Constituency in the House of Representatives held on 21st April 2007 is invalid by reason of non-compliance with the provisions of the Electoral Act 2006

(b) That the said election was vitiated by substantial non-compliance with the mandatory statutory requirements which substantially affected the validity of the said election that none of the candidates in the said election can be validly returned as having validly won the said election.

The parties duly filed and exchanged pleadings, witness statements on oath and list of documents to be relied upon at the hearing in compliance with the Practice Directions 2007. After the conclusion of the trial, the parties filed and exchanged written addresses. In a considered judgment delivered on 30th June 2008, the Tribunal dismissed the petition. The Appellant being dissatisfied with the decision filed a notice of appeal on the 7th of July, 2008. The Appellant, 1st & 2nd Respondents, 196th – 197th Respondents filed and exchanged their respective briefs of argument. 3rd – 195th Respondents did not file any brief.

Appellant distilled eight issues for determination from the fourteen grounds of appeal as amended. They are:

(1) Whether the issue of excess vote i.e vote in excess of ballot paper allocated being one of the irregularities alleged was not proved and pleaded in this case. (Arising from Grounds 1 & 9)

(2) Whether the malpractices, violence, acts of thuggery, irregularities and the various non-compliance complained of by the Appellant against the 1st Respondent personally and other Respondents did not substantially affect the result of the election as to warrant the nullification of the election. (Grounds 6 & 7)

(3) Whether the Tribunal was right to fail to attach weight to the 33 exhibits tendered before the Tribunal merely because they were not tendered through their makers (Ground 8)

(4) Whether the evidence of the Petition witnesses who gave eye witness account could be hearsay evidence merely because they were not authorized to be at the polling unit (Arising from grounds 3 & 5)

(5) Whether the evidence led by the Petitioner at the Tribunal are at variance with pleading and not pleaded as to justify the Tribunal’s act of not attaching any probative value to them (Grounds 4 & 10)

(6) Whether the tribunal’s refusal to allow the Petitioner to call additional witness to tender the inspection report and the rejection of ballot papers as exhibits does not amount to wrongful exclusion of evidence and denial of fair hearing (Grounds 11 & 12)

(7) Whether it was proper for the Tribunal to disallow the Resident Electoral Commissioner (R.E.C) who was served with subpoena duces tecum and subpoena ad candum from entering the witness box and giving its evidence on oath: merely because its evidence was not front loaded in line with the Practice Direction (Ground 8)