Full Text of the Judgment of Appeal of Aregbesola vs. Oyinlola Delivered Nov. 26 2010 by Justice Ogunbiyi et. al
See:
IN THE COURT OF APPEAL
IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
ON FRIDAY THE 26TH DAY OF NOVEMBER, 2010
BEFORE THEIR LORDSHIPS
CLARA BATA OGUNBIYI JUSTICE, COURT OF APPEAL JUSTICE
MOHAMMED LAWAL GARBA JUSTICE, COURT OF APPEAL JUSTICE
PAUL ADAMU GALINJE JUSTICE, COURT OF APPEAL JUSTICE
CHIMA CENTUS NWEZE JUSTICE, COURT OF APPEAL JUSTICE
ADAMU JAURO JUSTICE, COURT OF APPEAL JUSTICE
APPEAL NO. CA/I/EPT /GOV /02/2010
BETWEEN:
RAUF ADESOJI AREGBESOLA & 2 ORS. APPELLANTS/CROSS RESPONDENTS
AND
OLAGUNSOYE OYINLOLA & 2 ORS. RESPONDENTS/ CROSS APPELLANTS
INEC & 1363 ORS RESPONDENTS/ CROSS RESPONDENTS
JUDGMENT
(DELIVERED BY CLARA BATA OGUNBIYI,JCA)
This appeal is against the judgment of the Governorship and Legislative House Election Petition (Retrial) Tribunal holden at Osogbo, Osun State (Coram:
Justices Ali Garba, Benedict E. Agbattah, Ismaila H. Bashir, Muhammad T. M. Aliyu and Abimbola O Obaseki) delivered on 28th day of May, 2010. The Notice of Appeal is contained at pages 546 to 601 of Volume 7 of the Record of Appeal.
The brief facts of this case are that on the 14th April, 2007 the 4th Respondent conducted an election for the office of the Governor of Osun State.......
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As a consequence of the foregoing, a computation of the votes recorded for both the 1st – 3rd Appellants and 1st – 3rd Respondents in the disputed 10 Local Governments will be made with a view to deducting same from the totality of the results. The overall results of the election is contained in Form EC8D tendered in evidence as exhibit 92(1-2). The nullified votes in the 10 disputed Local Governments are as follows:
| S/N on Exh 92(1) | Local Governments | Votes recorded for the 1st Petitioner | Votes recorded for the 1st Respondent |
| 2 | Atakumosa West | 2,489 | 15,471 |
| 3 | Aiyedaade | 3,096 | 33,805 |
| 5 | Boluwaduro | 1,784 | 7,902 |
| 6 | Boripe | 328 | 14,497 |
| 11 | Ife Central | 4,866 | 62,257 |
| 12 | Ife East | 13,746 | 35,574 |
| 14 | Ife South | 5226 | 16,312 |
| 15 | Ifedayo | 2041 | 8122 |
| 22 | Isokan | 3249 | 16,243 |
| 25 | Odo Otin | 5098 | 43606 |
| Total for the 10 LGs | 41,923 | 253,789 |
The total votes credited to both parties in the above table in the 10 Local Governments which have been nullified/voided will now be deducted from the overall total votes credited to both parties as follows:
| 1st Petitioner | 1st Respondent | |
| Total Score of Parties on EC8D (Exhibit 92(1-2)) and EC8E (Exhibit 91 | 240,722 | 426,669 |
| Total Score of Parties In the Ten Local Government affected by evidence of unlawful votes | 41,923 | 253,789 |
| Difference on Deduction | 198,799 | 172,880 |
From the above total, it is clear that the 1st Appellant has the majority of highest lawful votes of 198,799 as against 172,880 by the 1st Respondent. See the case of Amadasun v Ativie (2010) All FWLR (Pt.505) 1728 where this court had this to say at page 1728:
"Adjudication in election matters would normally revolve around documentary evidence in most cases. It is part of the resolution of election disputes to cancel unlawful credited votes in appropriate circumstances."
The appellants sought for the following reliefs by paragraph 4 of their notice of appeal on page 599 ofVol.7 of the record.
"4.1 – An order allowing the Appeal of the Appellant and setting aside the judgment of the tribunal dismissing the petitioner's petition.
4.2 – An order that votes recorded and/or returned in the following Local Government Areas, namely, Atakumosa West Local Government, Ayedaade Local Government, Boluwaduro Local Government, Boripe Local Government, Ife Central Local Government, Ife East Local Government, Ife South Local Government, Ifedayo Local Government, Isokan Local Government and Odo – Otin Local Government, do not represent lawful votes cast in the said Local Government Areas in the Osun State Governorship election held on 14 April, 2007 and as having been obtained in vitiating circumstances of substantial non-compliance with mandatory provisions of Electoral Act, 2006, violence and malpractices which substantially affected the validity of the said elections that none or-the candidates in the said elections can be validly returned as having validly won in the said affected Local Government Areas.
4.3 – An order that the said Prince Olagunsoye Oyinlola was not duly elected by majority of lawful votes cast in the Osun State Governorship election held on April 14, 2007 and that his election is void.
4.4 – An order that Rauf Adesoji Aregbesola was elected and ought to have been returned having scored the highest number of votes cast in the Osun State Governorship Election held on April 14, 2007, and satisfied the requirements of the Section 179 Constitution of the Federal Republic of Nigeria, 1999 and the Electoral Act, 2006.
4.5 – An Order that the 1st Petitioner/Appellant be declared validly elected or returned."
In considering the foregoing reliefs sought for, the provision of section 146(1) of the Electoral Act, 2006 is relevant and same is hereby reproduced as follows:-
"An election shall not be liable to be invalidated by reason of noncompliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election."
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As I have earlier alluded to, the prerogative of declaring a witness an expert is that of the judge who heard and examined the witness. As far as I am concerned, the learned trial judges of the tribunal have competently handled the evidence of RW61 and RW62. I do not think I have any justification to interfere with that exercise.
For all I have said here, this issue is also resolved in favour of the Cross Respondents and against the Cross Appellants. The grounds upon which it has been distilled are hereby dismissed.
Having resolved the two surviving issues against the Respondents/Cross Appellants, this cross appeal shall be, and it is hereby dismissed for lack of merit. I make no order as to cost.
Signed
Clara Bata Ogunbiyi
Justice, Court of Appeal
I agree. Signed
Mohammed Lawal Garba,
Justice, Court of Appeal.
I agree. Signed
Paul Adamu Galinje,
Justice, Court of Appeal.
I agree. Signed
Chima Centus Nweze,
Justice, Court of Appeal.
I agree. Signed
Adamu Jauro, Justice,
Justice, Court of Appeal.
Counsel For 1st – 3rd Petitioners/Appellants/Cross-Respondents:
Ebun O. Sofunde SAN
Chief Akin Olujinmi SAN
Oluwarotimi O. Akeredolu SAN
Kola Awodein SAN
Charles Edosomwan SAN
Prof. Yemi Osinbajo SAN
Deji Sasegbon SAN
J. O. Fakayode SAN
Femi Ifaturoti Esq.
Adewale Afolabi Esq
Nath Agunbiade Esq
Funso Olukoga Esq
T. A. Abdul-Wahab Esq
Dapo Akinosun Esq
Adetunji Ajagbe Esq
Olatunji Ibrahim Esq
Mutiu Ganiyu Esq
Lanre Ayanwale Esq
Gbenga Akano Esq
W. A. Salman Esq
Olusegun Olatoy Esq e
Abiodun Olaide Esq
Olayinka Okedara Esq
Ajibola Basiru Esq
Kunle Adegoke Esq
T. S. Adegboyega Esq
Kolapo Alimi Esq
Ibrahim Lawal Esq
B. A. Ramoni Esq
Daud' Akinloye Esq
Omojola Odunaya Esq
Mutiu Olaoye Esq
M. A. Adebisi Esq
Adedoyin Taiwo Esq
Yewande Omotayo Esq
Jide Omoworare Esq
Yinka Ajayi Esq
Lateef Akangbe Esq
Counsel For 1st , 2nd And 3rd Respondents/Cross-Appellants
Yusuf O. Ali SAN
Dr. Alex Izinyon SAN
Tayo Oyetibo SAN
Chief Bolaji Ayorinde SAN
Adebayo Adenipekun SAN
Kemi Pinheiro SAN
Adebayo Adelodun SAN
Otunba Kunle Kalejaye SAN
N. O. O. Oke SAN
R. A. Lawal-Rabana SAN
A. A. Abimbola Esq
Degbile Moronkeji Esq
Wahab Egbewole Esq
Hassan Taiwo Fajimit Esq e
Wole Olukanni Esq
Tewo Lamuye Esq.
Boye Sobanjo Esq.
Adebisi Raimi Esq.
K. K. Eleja Esq.
Adesoji Olaoba-Efuntayo Esq.
Oluwole Kupoluyi Esq.
Yemi Giwa Esq.
M. T. Adekilekun Esq.
Adetunji Muraina Esq.
- A. O. Oyeleke Esq.
Abimbola Arowosebe (Mrs.)
Akeem Olaniyan Esq.
A. O. Oladele Esq.
N. N. Adegboye Esq
Olumide Aliu Esq.
Chukwudi Maduka Esq.
T. B. Olurode (Miss)
T. E. Akintade (Miss)
Chuwudi Enebeu Esq.
Muyiwa Adegun Esq.
I.A. Saka Esq.
Gboyega Oyewole Esq. (Former A-G)
Tunji Lawal Esq.
Olaniran Obele Esq.
Counsel for 4th – 1365th Respondents/Cross-Respondents:
Ayodeji Bobaderin Esq.
Dayo Famakin-Johnson Esq.
Counsel for 1366th and 1367th Respondents:
Hon. Attoney General and Commissioner For Justice – Hon Niyi Owolade
Mrs. K. M. Akano – Solicitor General and Permanent Secretary, Ministry Of Justice.
Mr. Jide Obisakin – Chief State Counsel
Mr. O. F. Akintayo – State Counsel
___________________________________________________________________________________________
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