Sikiru Ikuogbogun & Ors V. Chief Adeleke Rabiu G. B. (1989)

LawGlobal-Hub Lead Judgment Report

OMOLOLU-THOMAS, J.C.A. 

The appellant in this case appealed against the decision of the Hon. Justice Oluborode of the High Court of Oyo State at Oyo in a Petition in which he was the 1st respondent in the Councillorship election held on 12th December, 1987, in Ward 3 of Ifedapo Local Government Council of Oyo State where the petitioner sought the nullification and cancellation of the said councillorship election, a declaration that the nomination of the petitioner be declared valid, and an order for fresh election to be conducted in the area.

After the exchange of pleadings the learned trial Judge proceeded to hear the case on the statement of facts which the parties were relying upon, respectively.

The case of the petitioner in summary was that the petitioner and the 1st respondent were both prospective candidates for the Local Government Election in the said Ward 3 in Ifedapo Local Government. The petitioner, having complied with the nomination procedure, his name was included on the nomination list of candidates to contest the election. He was later informed that an objection had been raised against his candidature on the ground that he had been convicted for an offence of affray at the Chief Magistrates’ Court, Shaki, and sentenced to a fine. The petitioner wrote his defence to the objection and addressed it to the 2nd respondent. A few days later his name was excluded from the final nomination list, in consequence of which the 1st respondent, as the only remaining candidate, was returned unopposed by the 3rd respondent.

The case of the 1st respondent was that he was lawfully returned unopposed because the petitioner had been convicted of offences committed in 1979 and 1982.

The 1st respondent as well as the petitioner were duly nominated to stand for the election according to the 2nd respondent. Thereafter there was an objection to the nomination of the petitioner. When the final nomination list was displayed another objection was raised against the petitioner, the first objection having been overruled. The 2nd respondent was asked to investigate the said convictions and he thereafter obtained a copy of the judgment (Exhibit E) which showed that the petitioner was convicted of an offence of assault occasioning harm. His case was that he invited the petitioner and told him that the Commission had disqualified him on the basis of the judgment.

The case of the 2nd to the 5th respondents, according to the 3rd respondent, was that there was no election in Ward 3 in Ifedapo Local Government Area because the 1st respondent was the only candidate on the final nomination list for the conduct of the election in the said Ward. The name of the respondent was announced by the Electoral Commissioner for Oyo State, 4th respondent, as being unopposed.

The learned trial Judge in substance in his judgment considered that the main issue raised by the petition was on the jurisdiction of the court to decide questions relating to the disqualification of the petitioner by the Commission. He considered that the question is fundamental to the hearing of the petition. He said that the High Court derived jurisdiction to hear election petitions from both Sections 31 and 32 of the Local Government Elections Decree 1987 hereafter called “Decree No. 37.” He also considered that the plank, on which the 1st respondent rested his case, was on paragraphs 1 and 4 of Schedule 1 and Sections 5 and 7 of the Participation in Politics and Elections (Prohibition) Decree 1987 hereafter called “Decree No. 25.” he therefore found as follows-

“From the evidence before the court, the petitioner was not a public office holder from 1st October, 1960 to 15th January, 1966 nor from 1st October, 1979 to 30th December, 1983. From all indications, he was a self-employed man. He was not found guilty by any Tribunal which in the context of the provision means a tribunal as opposed to court of law. It is clear therefore that the category of the petitioner being a public officer who was convicted of a felony, i.e., assault occasioning harm could not have been contained in the relevant provision of the Decree. This is more so when he had not or could not have been dismissed as contained in paragraph 4 of the Schedule to the Decree. The necessary step taken to disqualify the petitioner who had already been validly nominated must be in strict compliance with Section 3(8) and (9) of Decree No. 25. The evidence so far merely showed that the 3rd to 5th respondents have got hold of Exhibit E to disqualify the petitioner not acting in pursuance of the provision of the Decree. To oust the jurisdiction of this court as provided in Section 7 of the Decree No. 25, the Commission must have clearly shown to have acted under the Decree failing which the ouster clause becomes inapplicable.”

He then assumed jurisdiction as provided under Section 31 of Decree No. 37, and concluded that the petitioner had been “unlawfully excluded” as a candidate for the election thus giving room for his opponent to be returned unopposed. He found that the petitioner had not committed any offence specified in Part 2 of Decree No. 37 to exclude him from contesting the local government election, and thus ordered that the return of the 1st respondent who had been declared unopposed is void and of no effect; and that the petitioner’s nomination is valid, and also that fresh election in the Ward be undertaken.

Dissatisfied, the 1st respondent has appealed to this Court on the following Grounds of Appeal –

“1. The learned trial Judge was not competent by reasons of lack of jurisdiction to entertain the election petition brought against the respondents by the petitioner, and the trial was therefore a nullity.

PARTICULARS OF ERRORS

(a) The petitioner in the instant case challenged his disqualification by the National Electoral Commission from contesting the Local Government Elections held on the 12th day of December, 1987.