Nicholas Oluyemi & Anor V. Ajewole Edward Asaolu & Ors (2008)

LawGlobal-Hub Lead Judgment Report

O. O.ADEKEYE, J.C.A.

This appeal emanated from the judgment of the Ekiti State Governorship and Legislative houses Election Tribunal delivered on the 31st of October 2007. In the considered judgment the Tribunal dismissed the petition med by the Appellants – Nicholas Oluyemi and the Peoples Democratic Party, against the return of the 1st

Respondent, Ajewole Edward Asaolu as the winner of the election into the Ekiti State House of Assembly in the Ekiti South West 1 Constituency.

Being aggrieved by the decision of the lower Tribunal, the Appellant lodged an appeal in this court on the 19th of November 2007. In giving a resume of the background facts of the case, the 1st Appellant and the 1st Respondent contested the election held on the 14th of April 2007 into the Ekiti State House of Assembly. The 1st Appellant contested under the banner of Peoples Democratic Party (PDP) the 2nd Appellant and the 1st Respondent contested as candidate of the 2nd Respondent, Action congress (AC). The 3rd and 4th Respondents had the constitutional role to conduct the Election. At the conclusion of the election, the 1st Respondent was declared the winner with 4,093 votes while the 1st Appellant scored 3,342 votes. The Petitioners registered their displeasure to the return declared by the 3rd and 4th Respondents by filing a Petition before the Ekiti State Governorship and Legislative Houses Election Tribunal on the 26thof April 2007.

The ground specified in the Petition was as follows:

“(a) That the 1st Respondent was at the time of the election not qualified to contest the election.

In the alternative –

(b) That the election is invalid by reason of corrupt practices and non-compliance with the provision of the Electoral Act 2006. ”

In support of (a) above the 1st Petitioner/Appellant averred in his pleadings that the 1st Respondent who was prior to his election an employee of Ekiti State Local Government Service Commission did not resign his appointment 30 days before the date of the election, as stipulated in the provisions of the 1999 Constitution.

The 1st Respondent filed a Reply where he raised a preliminary objection to the hearing of the petition on the following grounds –

“(1) That the Petitioner lacks locus standi to file the petition.

(2) That Tribunal/Court lacks jurisdiction to entertain the petition

(3) The petition is incompetent. ”

On the 20thof May 2007, the 1st and 2nd Respondents filed a formal application to challenge the jurisdiction of the Tribunal to entertain the petition. The gist of the application was that the PDP had failed to substitute one Olagoke Egunjobi with the 1st Petitioner within the period stipulated by the Electoral Act 2006, in that premises – he did not have the locus to present the petition. On the 10th of July 2007 the Tribunal gave a considered Ruling and found that the 1st Petitioner/Appellant disclosed his locus to file the petition. When the petition proceeded to trial – the Petitioners/ Appellants called five witnesses and the 1st and 2nd Respondents called three witnesses. Documents were tendered to establish that the 1st Respondent resigned his appointment within the time stipulated by the 1999 Constitution. In the judgment delivered at the close of trial on the 31st of October 2007, the lower Tribunal found that the 1st Respondent under Section 144 (1) of the Electoral Act 2006, was by virtue of the fact th he scored votes at the election a candidate de facto. He did not acquire the locus to present the petition as he was not a candidate de jure owing to the fact that his name was not on the list of nominated candidates on 14th of March 2007 – precisely 30 days before the election date.