Olusola Adeyeye V. Simeon Oduoye & 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 the Governorship and Legislative Houses Election Tribunal sitting at Osogbo, Osun State delivered on the 23rd of May 2008. The Tribunal dismissed the petition of the Appellant challenging the return of the 1st Respondent as the winner of Osun Central Senatorial District.

The Appellant contested under the platform of the Action Congress while the 1st Respondent contested under the platform of the People’s Democratic Party.

The Appellant by a petition filed on the 21st of May 2007 challenged the declaration and return of the 1st Respondent Simeon Oduoye as the winner of Osun Central Senatorial District conducted by the Independent National Electoral Commission on the ground of electoral malpractices, irregularities and noncompliance with the Electoral Act 2006.

Appellant contended that the National Assembly election for Osun Central Senatorial District held on 21st April 2007 is invalid by reason of non-compliance with the provisions 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 said elections and that none of the candidates in the said election can be validly returned as having validly won the said election. Based on the above, Appellant urged the National Assembly Elections Tribunal to nullify the elections for Osun Central Senatorial District held on 21st April 2007 and urged that the 3rd Respondent be directed to conduct fresh elections for the Osun Central Senatorial District.

In proof of the case Appellant called a total number of 39 witnesses and also tendered exhibits (mainly electoral materials and two reports of the Court ordered inspection of electoral materials all of which were marked exhibits 1-128). Sequel to the issuance of a subpoena on the 3rd Respondent at the instance of the Appellant, materials used during the election were admitted in evidence in the course of the petition.

1st & 2nd Respondents initially called 20 witnesses and with the leave of Court called an additional witness who tendered a document which was marked “rejected”. The 3rd to 710th and 711th-712th Respondents did not call any witness. At the end of the trial, the Tribunal upheld the election of the 1st Respondent. Appellant being dissatisfied with the judgment filed nine grounds of appeal in his notice of appeal dated the 12th of June 2008 but filed on the 13th of June 2008.

In compliance with the Rules of this Court, Appellant filed her brief of argument on the 4th of August, 2008; Appellant’s reply to 1st & 2nd Respondents amended brief of argument was filed on 12/10/09. She also filed the Cross-Respondent’s reply to the Cross-Appellants brief of argument on the 3rd of August, 2008. Learned Counsel adopts and relies on all the said briefs. He urged the Court to, allow the appeal and dismiss the cross-appeal.

Learned Counsel for the 1st & 2nd Respondents filed the amended 1st & 2nd Respondents and Cross-Appellants brief of argument on the 6th of October, 2008. They also filed a notice of preliminary objection on the 11th of March 2009. The Cross-Appellant’s reply to the Cross-Respondent’s brief of argument was filed on 13th November, 2009. In adopting and relying on these briefs, Learned Counsel for the 1st & 2nd Respondents directed the Courts attention to the arguments in respect of the preliminary objection contained in part A of the amended brief of argument on pages (i) -a (vi). 3rd – 710th Respondents did not file any brief. The 711th -712th Respondents brief of argument is dated 17/11/08 and filed the same day but deemed filed on 25/5/09. The crux of the 1st & 2nd Respondents objection is that the appeal is incompetent and should be struck out having been filed outside the time stipulated by law. The grounds of the objection are as follows:

(i) The judgment appealed against was delivered on 23rd May 2008.

(ii) The Notice of appeal was filed on 13th June 2008

(iii) The Appellant had 21 days from the date of judgment to file the notice of appeal in accordance with the provisions of Section 149 of the Electoral Act and Practice Direction No. 2 of 2007 issued by the President Court of Appeal

(iv) The appeal was filed beyond the time stipulated by the Act.

Learned Counsel reproduced Section 149 subsection 1 of the Electoral Act 2006 and posited that the purport of the quoted statute is that a notice of appeal against the decision of the Tribunal shall be filed within 21 days from the date of the decision. Learned Counsel argued further that the provisions of Section 149 (1) of the Electoral Act 2006 and paragraph 1 (1) of Practice Direction No. 2 of 2007 should be interpreted based on their ordinary meaning without using any internal or external aid since they are clear and unambiguous. Learned Counsel referred to the case of A. G, ONDO STATE VS. A. G. EKITI STATE (2001) 17 N.W.L.R Part 743 page 706 at 756 paras C-D where Kutigi J.S.C as he then was had this to say: