Olaosebikan Abbas & Anor V. Kamil Tope Oyedele & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Governorship and Legislative Houses Election Tribunal, Osun State, sitting at Osogbo (hereinafter referred to as the Tribunal) delivered on 16th April, 2008.

On the 14th day of April, 2007 Elections were held into the Irepodun/Orolu Local Government State Constituency seat in the Osun State House of Assembly in which the 1st Respondent was declared as the winner of the election by the 3rd to 5th Respondents.

The Appellants as Petitioners were dissatisfied with the declaration of the 1st Respondent by the 3rd to 5th Respondents as the winner of that election and filed their petition dated 12th May, 2007, on 14th May, 2007 before the Tribunal.

The Reliefs sought before the Tribunal are set out in paragraph 36 of the Petition, page 8 of the records.

The 1st Respondent Kamil Tope Oyedele contested the election on the platform of the 2nd Respondent, Action Congress, and was declared the winner of the election having scored 16,714 votes while the 1st Petitioner/Appellant scored 16,443 votes. At the close of hearing the Tribunal dismissed the Appellants’ petition. The Appellants appealed to this court vide a Notice of Appeal dated 29th April, 2008, filed on 7th of May, 2008, containing three grounds of Appeal from which two (2) issues were formulated for determination. The issues are as follows:-

“1. Whether the Tribunal was right in holding that Exhibit ‘4’ (bundles of ballot papers) was unreliable and thus refused to attach any weight to it. (Ground 1).

2. Whether the Tribunal was right in failing, refusing and/or neglecting to collate, compute and/or evaluate the facts and scores of candidates in Ward 10 Unit 3. (Akeesin Area, Erin-Osun).”

(Grounds 2 & 3).

When this appeal was argued on 27th May, 2010, the learned counsel to the 1st Respondent Kunle Adegoke Esq. drew our attention to his preliminary objection at pages 4 – 5 of the 1st Respondent’s brief of argument filed on 9/4/09. The learned counsel who did not file a separate Notice of Preliminary Objection challenged the 1st issue in the Appellant’s brief; we were urged to strike out same as it is incompetent.

The learned counsel to the 2nd Respondent in a similar manner did not file a separate Notice of Preliminary Objection but argued same at pages 7 – 10 of the 2nd Respondent’s Amended Brief of Argument filed on 20/4/10 in urging us to dismiss the appeal based on the preliminary objection.

The learned counsel to the Appellants A. A. Abimbola Esq. who did not file any reply to the objections, argued that the objections are misconceived. We were urged to discountenance same and hear the appeal on the merits.

In arguing the Appeal, the learned Appellants’ counsel adopted and relied on the Appellants’ brief filed on 15/9/08, deemed as properly filed on 7/4/09, the two issues for determination from the three grounds of appeal were reproduced above. In response, Mr. Adegoke adopted and relied on the 1st Respondent’s brief dated and filed on 9/4/09 in which three issues were formulated in urging us to dismiss the appeal. The issues are:-

“1. Whether the Tribunal was right not to have attached weight to Exhibit (4) (Ground 1). (This issue is raised in the event that the preliminary objection raised above by the 1st Respondent does not succeed).

2. Whether the Tribunal properly evaluated the evidence before it in arriving at the conclusion that the Petitioners/Appellants have not established their case. (Ground 3).
3. Whether the Tribunal was right not to have collated the result and/or scores of candidates in Ward 10 Unit 3. (Ground 2).”

On his part, on behalf of the 2nd Respondent Mr. Afolabi adopted and relied upon his amended brief of argument dated and filed on 20/4/10 in which a sole issue was formulated for the determination of this appeal in urging us to dismiss the appeal, the sole issue is:-